Judgement

Appeal from a judgment and decree of the High Court (April 10, 1913) reversing a decree of the Subordinate Judge of Saharanpur.

The suit was instituted in 1910 by the appellants to enforce a mortgage dated August 28, 1890, executed by the respondent Prabhu Lai. The defendants pleaded that Prabhu Lal was a member of a Mitakshara joint family and incompetent to mortgage his share in the family property. The appellants case was that Prabhu Lal was separate.

On April 6, 1889, Prabhu Lal had instituted a suit against the members of the joint family claiming partition. By his plaint in that suit he alleged that his father had failed to give him money for his daily expenses and had not supplied him with food. The Subordinate Judge on July 19, 1890, dismissed that suit. He found that the facts alleged by Prabhu Lal had not been proved, and held that, although Prabhu Lal was entitled to partition under HINDU LAW , the facts alleged not being proved, no cause of action had accrued. There was no appeal from that decision, a settlement being arrived at by which the share to which Prabhu Lal was entitled upon partition was assigned to him, but remained in his fathers name in the Revenue records.

In the present suit the Subordinate Judge found upon the evidence that a

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Kawal Nain V. Prabhu Lal 40

partition had been effected by the settlement above referred to, and that Prabhu Lal was separate at the date of the mortgage. The High Court (Sir H. G. Richards C.J. and Banerji J.) reversed that decision. With regard to the suit in 1889, the learned judges, while pointing out that the Subordinate Judge was not justified in dismissing the claim for partition, said that that litigation showed that on the date upon which the suit was dismissed the family was joint. Upon the evidence they held, differing from the trial judge, that the evidence did not show that a partition was effected by the settlement.

1917. April 17. De Gruyther, K.C., and Dube, for the appellants. The institution of the suit in 1889 was an unequivocal expression by Prabhu Lal of his intention to separate. There was a partition of title from the date of the plaint Girja Bai v. Sadashiv Dhundiraj. (L. R. 43 Ind. Ap. 151.) It is not material that the trial judge in that suit erroneously refused to decree a partition.

The respondents did not appear.

1917. April 24. The judgment of their Lordships was delivered by

VISCOUNT HALDANE. This is an appeal from a judgment of the High Court at Allahabad which reversed a judgment of the Subordinate Judge of Saharanpur. The question which arose was whether a mortgage of certain interests in land was valid, as contended by the appellants, who were the successors in title of the original mortgagee. The land had been the property of a joint family subject to Mitakshara law, and the controversy turned on whether the respondent Prabhu Lai, the mortgagor, had separated from the joint family before executing the deed, and so rendered himself competent to make a valid hypothecation of the interest which had come to him as a member of the joint family.

Prior to the mortgage, which was dated August 28, 1890, the respondent Prabhu Lal had on April 6; 1889, commenced a suit for partition. By his plaint he had claimed a fifth share of the family property, and their Lordships entertain no doubt that the claim amounted to an intimation to the defendants, his co-sharers, of the unequivocal desire of the plaintiff for separation from the joint family. If this be so, the judgment of the Judicial Committee in the recent case of Girja Bai v. Sadashiv Dhundiraj (L. R. 43 Ind. Ap 151.) renders it beyond question that the commencement of this suit for partition effected a separation from the joint family. It is immaterial, in such a case, whether the co-sharers assent. A decree may be necessary for working out the result of the severance and for allotting definite shares, but the status of the plaintiff as separate in estate is brought about by his assertion of his right to separate, whether he obtains a consequential judgment or not.

These considerations are sufficient to dispose of the only serious question raised by the present appeal. Had their Lordships judgment in the case just referred to been delivered before and not after the judgments now under review, that of the High Court would probably have been different. The Subordinate Judge thought himself bound to examine a number of transactions from which he drew the inference that the members of the joint family had assented to the severance contended for, although a complete partition had not been carried out. It was not necessary for him to find so much in order to establish the severance, but the result at which he arrived was right. The High Court, in reversing his decision, proceeded on the footing that no agreement for severance had been established, and that it was necessary that the existence of such an agreement should be shown. This is plainly contrary to the principle as subsequently laid down by this Board in the other case. It was argued below that the suit for partition, commenced by the plaint of 1890, was dismissed and that the plaint was therefore of no effect. Their Lordships cannot assent to this argument. It is true that in the suit of 1890 the Subordinate Judge dismissed the claim, disbelieving the case put forward in support of it, namely, that the father, who was head of the joint family, had refused to supply his son Prabhu Lal with the funds required to maintain him, and had otherwise ill-treated him. The High Court says that, while this

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disbelief was no valid ground for dismissing a claim for partition, it still shows that on the date when the suit was dismissed the family remained joint. It will, however, be observed that the judgment in that suit proceeded on the ground that owing to the age of the father he might have other children and that in consequence the property could not be divided or the plaintiffs share fixed But, while this was obviously wrong, the judgment on its face concedes that the plaintiff had a right to partition, although no cause of action for an actual partition was regarded as having accrued. It cannot be said that the plaint did not amount to such an expression of intention as to satisfy the conditions of the law as now settled.

Their Lordships have thought it necessary to examine the argument for the appellants in the present appeal with the more care because the respondents have not been represented at the bar. But they are satisfied that the High Court has given a decision which cannot stand. They will therefore humbly advise His Majesty that this appeal should be allowed and the decree of the Subordinate Judge restored. The respondents must pay the costs here and below. But their Lordships desire to point out that, as the personal remedy under the mortgage is probably barred by limitation, the liberty to apply for a personal decree, which is given by the decree in accordance with Order xxxiv. of the Code of Civil Procedure and s. 90 of the Transfer of Property Act in the event of the proceeds of a sale proving insufficient, must be subject to the right of the respondents to raise any such defence to the personal claim, such as one based on limitation, which may prove open to them.