Fazl Ali, J.These appeals arise out of two suits which were tried together by the Subordinate Judge of Manbhum and which were instituted under circumstances which will presently appear.

2. One Bechan Ojha had two sons, Baijnath Ojha and Biswanath Ojha. Baijnath Ojha died leaving behind a widow Mt. Rashooni and a son Ramlal Ojha and Biswanath died leaving a son Nandlal. It is common ground that Nandlal and Ramlal remained joint till the year 1295 B.S. or 1888. It is further fully established that the two cousins not only separated in mesa in the year 1888, but also divided their moveables as well as nij-jote lands which they began to cultivate separately. The only properties which were not divided were those in mauzas Tilai and Sirkabad.

3. Between 1895 and 1900 fresh property which is referred to in Schedule 4 of the plaint filed in Suit No. 3 and which may be called the Jerka property was acquired in Ramlals name by three separate deeds, one of which was virtually a kobala or a sale-deed and the other two leases. In Baisak 1314, or April 1907, Ramlal died leaving behind him two widows Umamayi and Purnima and a daughter by Umamayi named Amodbala and it is hardly necessary to say that under the Hindu law, if Ramlal died in state of jointness with Nandlal, the latter became entitled to the entire property by the rule of survivorship; but on the other hand, if he had separated from Nandlal before his death, his two widows were entitled to succeed to his property. In September 1908, Umamayi settled Ramlals share in Manirambad lands in village Sirkabad with one Kartik Mahto who executed a registered kabuliyat in her favour and the boundaries given in the documents show that the lands of Nandlal in this chak were quite separate from those of Ramlal. In November 1908, Umamayi and her co-widow Purnima describing themselves as the heirs of Ramlal Ojha brought a Suit against Mangal Bhumij and Amar Singh Sardar for the possession of certain lands in village Jerka and the suit was compromised.

4. It may be mentioned here that Amar Sardar, one of the defendants in this suit, was no other person than the proprietor of Jerka from whom Ramlal had acquired the Jerka property. In February 1909, Umamayi and Purnima brought a Small Cause Court suit against Nandlal Ojha for the recovery of a certain sum of money on the allegation that he had realized not only his share, but their share of the rent also from certain tenants in village Tilai. The suit was contested by Nandlal on various grounds one of which was that he was entitled to the entire property left by Ramlal as survivor. The matter was referred to the arbitration of three pleaders of Purulia and by their award they upheld the claim of the widow and overruled the plea that Ramlal was joint with Nandlal and the latter was entitled to the property by way of survivorship. This award being accepted by the Court a decree was passed accordingly. In execution of the decree Umamayi proceeded to attach Nandlals share in village Tilai, but Nandlal paid the decretal amount and a petition of satisfaction was filed. From 1909 onwards up to her death which took place in the year 1916 Umamayi continued to possess and deal with the properties as if she and her cowidow were the heirs of Ramlal and no step appears to have been taken by Nandlal either to question her rights or to get an adjudication as to his claim of survivorship.

5. In August 1909, Amar Singh Sardar who had granted the previous leases to her husband gave to her and not to Nandlal a fresh patta in respect of certain lands in village Jerka which she had purchased from one Kuna Laya and thereby recognized her as a tenant in respect of those lands. In 1913 she and her cowidow Purnima applied for and obtained a succession certificate from the District Judge of Manbhum-Sambalpur. In June 1914, she granted a lease to Kartik Mahto in respect of Manirambad lands for a further period of five years. In 1915 Amar Singh Sardar, the proprietor of Jerka, sued her and obtained a decree against her for arrears of cess in respect of village Jerka. The documentary evidence filed by Nandlal also supports the case that Umamayi was in undisturbed possession of at least Tilai and Jerka so long as she was alive and in fact he attempts to explain her possession by setting up a story that she was allowed to remain in possession in lieu of maintenance. It is impossible however to accept this explanation in view of the fact that Umamayi had been asserting throughout that she was holding the property as an heir of Ramlal and also because no such case as is now set up by Nandlal was set up either in his plaint in Suit No. 3 nor in his written statement in Suit No. 50. It is true that Nandlal did contend, though unsuccessfully, before the Settlement Court in the year 1921 that Umamayai was in possession of Jerka in lieu of maintenance but what was contended before us was that she was in possession of not only Jerka, but also of Tilai in the aforesaid capacity. Again, if Umamayi was allowed by Nandlal to be in possession in lieu of maintenance, there seems to be no good reason for his not showing similar indulgence to Purnima, who was equally entitled to maintenance. On the other hand, what we find is that soon after Umamayis death Nandlal attempted once more to secure for himself the entire property.

6. It appears that when Umamayi died Purnima was still quite young, for even according to the estimate of her age given by Nagendra Nath Chakravarty, a witness for Nandlal, she must have been about 14 or 15 years of age at the time, while according to the other witnesses she was still younger (vide P. W. 3). The settlement operations were also to commence shortly in the district and in fact they actually commenced about the year 1920. Thus we find that in January 1918, Nandlal obtained two kabuliyats in his favour in respect of certain lands in Sirkabad (Exs. 11 and 20). Again on 31st January 1918, he got an ekrarnama from one Dharup Singh Sardar by which the latter was given the right to fish in a tank appertaining to Jerka for a period of four months. We also find that in the same year he obtained certain rent receipts in respect of village Jerka, Exs. 14(c), (d), (e) and (f), though it is to be noted that he has not filed any receipts in respect of this village of a date prior to the year 1325 or 1918 and the other receipts which he has filed relate to the year 1332. There were also two rent suits brought against him in respect of lands in village Sirkabad and, both the suits were allowed to be decreed exparte though curiously enough the period for which the two suits were brought to some extent overlapped each other.

7. Meanwhile about the year 1920 settlement operations began and once more it was asserted by Nandlal that Ramlal had died in a state of jointness with him and so he was entitled to the entire property of the family by survivorship. Thus a dispute arose before the settlement officers in charge of Khanapuri and attestation work as to whether the name of Nandlal or that of Purnima and Amodebala Debya, the daughter of Ramlal, should be entered in respect of village Jerka and Randals share in village Tilai and Sirkabad. Nandlal wholly failed with regard to Tilai and Jerka and ultimately khewats were prepared in the name of Purnima in respect of these villages [D (1), D (2), Z, 31]. With regard to Sirkabad however Nandlal was partially successful, and on 30th July 1921 he preferred an objection u/s 83, Clause (1), and Section 111, Clause (1), Chota Nagpur Tenancy Act, praying that:

after striking off the name of Sreemati Purnimamai Debya the khatian may be amended by preparing the 16-annas khewats in the name of Nandlal Ojha.

8. This objection was decided in his favour on 5th September 1921, on the ground that one Sashi Bhusan Ojha, who was the agent and brother of Purnima had admitted the objectors claims and stated before the settlement officer that his sister Purnima had got no share and that according to Mitakshara she was not entitled to any share. Relying upon this admission the settlement officer cancelled Purnimas khewat and recorded an order that the khewat should be prepared in the name of Nandlal. In connexion with this entry it was pointed out in this Court on behalf of Purnima that Ex. 24 which purports to be a general power-of-attorney given by Purnima to Sashi Bhusan Ojha (who is not her brother but only a cousin) is not a registered document and that curiously enough the alleged signature of Purnima on this document purports to have been written by Sashi Bhusan Ojha. himself. On the other hand it has been urged that Sashi Bhusan Ojha should have been examined on behalf of Purnima to deny that he had appeared before the settlement officer and made the admission which is attributed to him. However that may be, it is clear that the admission in question was not made by Purnima directly but is said to have been made by her through another person and it has not been proved that this other person, whoever he may be, had really been authorized by Purnima to make any admission on her behalf. Besides, it appears that Nandlal had by this time succeeded in winning over Purnima to his side with the result that Purnima began to live in Nandlals house and Amodebala, the daughter of Ramlal (whose husband Kali Kinker Misser had died while the survey operation was going on), was left alone to carry on. the struggle with Nandlal.

9. In this fight Nandlal was decidedly in a position of some advantage because he could successfully urge, and on certain occasions did urge, that during the life-time of Purnima, Amodebala had no interest in the properties of Ramlal even on the assumption that Nandlal and Ramlal had separated. It appears however that Amodebala also had some influence over the tenants because we find that on 28th September 1922, Nandlal was forced to bring a rent suit against certain tenants of Sirkabad--Alai Mahta and others for the recovery of Rs. 48 on the allegation that though the defendants had delivered to him his share of the paddy, they had removed the entire straw. The suit was contested by defendant 1 who pleaded that he held the land under Umamayi and afterwards under her daughter Amodebala and he also contended that the suit could not proceed in the absence of Amodebala and Purnima. Both Amodebala and Purnima were accordingly made parties to the suit but the suit was contested mainly by Alai Mahta and Amodebala. The suit was. finally dismissed on the ground that the kabuliyat of 1918 which had been executed in Nandlals favour shortly after the death of Umamayi was a collusive document. Nandlal appealed from this decision to the Deputy Commissioner of Manbhum, but his appeal also was dismissed on 15th February 1923.

10. Meanwhile Nandlal brought a suit (Suit No. 48 of 1923) against Purnima for a declaration that Tilai and Jerka properties belonged to him, that the defendant had no right to the said properties and that the Record of Rights had been incorrectly prepared. This suit was instituted on 13th March 1923, and was decreed on 31st May 1923. As the circumstances under which the decree was obtained have to be investigated in this appeal, it is sufficient to say that the decree purports to have been passed on the admission of Purnima as contained in her deposition which was recorded by a Commissioner Babu Pashupati Mukherji. In the same year Nandlal Ojha once more instituted a rent suit against Alai Mahta for the recovery of produce rent for the years 1328 and 1329 in respect of the land held by him in Sirkabad. Alai Mahta again challenged the title of Nandlal and pleaded having made a bona fide payment of rent to Amodebala, and the latter was therefore impleaded as a pro forma defendant. This suit also was dismissed with costs and the decision of the trial Court was upheld on appeal by the Judicial Commissioner of Manbhum, the judgment of the appellate Court being delivered on 16th January 1925. On 6th January 1926, Nandlal instituted Suit No. 3 of 1926 (out of which appeal No. 142 arises) upon the allegation that Ramlal Ojha had died in a state of jointness with him; that neither his two widows nor Amodebala could therefore inherit his property and that defendants 2, 3 and 4 (against whom the two rent suits had been unsuccessfully brought by Nandlal) were liable to pay rent to him and not to any other person. The reliefs that he prayed for in his plaint were as follows:

(a) That it may be declared that the plaintiff has got panchak brahmottar right, mentioned in plaint to the land specified in Sch, 3 and that defendant 1 has no right whatever there to.

(b) That after declaring plaintiffs right to get bhag paddy from defendant 2 in respect of land in the possession of Alai Mahta within the land, covered by Schedule 3, a decree for khas possession thereof may be passed in favour of the plaintiff.

(c) That if defendant 1 has realized bhag paddy for the years 1330, 1331 and 1332 B.S. from defendant 2, a decree for Rs. 201 (two hundred one) on account of the price of the said paddy may be passed against her.

(d) And that costs in Court and interest may also be awarded.

11. Written statements were filed in this suit by all the defendants, defendants 3 and 4 admitting the claims of the plaintiff and the other defendants contesting it. The main ground on which, the suit was contested by Purnima and Amodebala was that Ramlal had separated during his lifetime from Nandlal and that therefore Nandlal was not entitled to any property by way of survivorship.

12. It was further contended that the matter was res judicata in view of the decision in Small Cause Suit No. 215 of 1908 and there was also a plea of limitation raised. Alai Mahta, defendant 2, alleged that the kabuliyat of 1918 was collusive, inoperative and invalid and had been obtained by Nandlal in order to create evidence on his behalf and that the decision in the previous suit as to the collusive nature of the kabuliyat was binding on the plaintiff. It was also alleged by him that he and his brothers formerly held their land under Ramlal Ojha and subsequently under Umamayi and then under defendant 1 Amodebala. In May 1929, Purnima brought Suit No. 50 of 1926 (which is the subject-matter of appeal No. 142) for setting aside the decree obtained in Suit No. 48 of 1923 on the ground of fraud. Her main allegations have been set forth in paras. 8, 9 and 10 of the plaint and were in substance these: (1) that she had no knowledge of the suit; (2) that she had not appointed Babu Brajendra Nath Muzumdar (the pleader who acted for her in the suit) as her pleader; (3) that she never authorized him to ask for commission or to take the other steps which were taken in the suit; (4) that the deposition recorded by the Commissioner did not represent her statement, nor had she made a voluntary statement before him; and that in fact she had been made to say "yes" or "no" to every question put to her; (5) that the defendant instead of disclosing the real facts before the Court had suppressed them and obtained the decree by practicing fraud upon the Court.

13. The defence of Nandlal on the other hand was that he had not practised any fraud upon the Court and that the decree obtained by him was binding upon Purnima. Upon these allegations a number of issues were framed in both suits and by consent of the parties the two suits were tried together.

14. Two main questions arose at the trial: (1) whether Ramlal had separated in estate from Nandlal during his lifetime; and (2) whether the decree in Suit No. 48 of 1923 was vitiated by fraud. It need not be stated that issue 1 was considered to be the most material issue so far as Suit No. 3 of 1926 was concerned, while the second was the chief issue in Suit No. 50. The learned Subordinate Judge held that Nandlal was entitled to the declaration prayed for by him in his plaint as he was of opinion that Ramlal had died in a state of jointness with him. With regard to Jerka property however he found that it was the self-acquired property of Ramlal and therefore Nandlal had no valid claim to it. In Suit No. 50 he held that the decree obtained by Nandlal was vitiated by fraud; but in view of his finding that Nandlal was entitled to all the properties excepting Jerka, he vacated the decree only with regard to Jerka.

15. From this decision two appeals have been preferred, one by Amodebala and Purnima and another by Purnima alone. In Appeal No. 141, which arises out of Suit No. 50, the grievance of the appellant is that when the decree was found to have been vitiated by fraud, it should have been vacated in its entirety, whereas the main question raised in Appeal No. 142, which arises out of Suit No. 3, is that it should have been held that Ramlal had been separate from Nandlal and that the suit of Nandlal should have been dismissed on certain legal grounds. The cross-objection of Nandlal in Appeal No. 141 relates to the finding that the decree in Suit No. 48 had been procured by fraud, whereas his cross-objection in the other appeal relates to the finding as to Jerka being the self acquired property of Ramlal.

16. Both the appeals and the cross-objections have been argued at great length in this Court and the arguments were mainly directed to the two important questions in the case to which I have already referred.

17. I shall first take up the question as to whether Ramlal died in a state of jointness or separation with Nandlal because that was the first question argued before us although logically the second question, namely, whether the decree in Suit No. 48 was obtained by fraud, should have been dealt with first.

18. The learned advocate for the appellant in discussing this question has referred us to a large number of documents but before dealing with them in detail I would like to dispose of two preliminary points raised in course of the argument. It was said in the first place that the decree in the Small Cause Court suit of 1908 in which the identical question had been raised by the parties and decided by the arbitrators operates as res judicata. It is conceded that the Small Cause Court which tried the previous suit was not competent to try the present suit and therefore one of the conditions laid down by Section 11, Civil P.C., is not satisfied. It was however urged that what we have to look to is whether the arbitrators who gave the award were or were not competent to try the present suit and as there is no limit to the jurisdiction of the arbitrators, the award given by them would operate as res judicata. In support of his argument the learned advocate for the appellant relied upon Bhajahari Saha Banikya v. Behari Lal Basu [1906] 33 Cal. 881 and Krishna Panda v. Balaram Panda [1896] 19 Mad. 290. Neither of these cases however appears to me to help the appellant.

19. In Bhajaharis case [1906] 33 Cal. 881 Mookerjee, J., simply pointed out that certain rights may be created under an award even though it has not been enforced either by an application u/s 525, Civil P.C., or by a regular suit. Similarly in the case decided by the Madras High Court although both parties having objected to the award, it had never been carried into effect, it was held in a subsequent suit for partition that such an award was equivalent to a final judgment and was binding on the parties in the absence of positive evidence that both parties had agreed that the former state of things should be restored. It is not disputed here that the award was final so far as the claim in the Small Cause Court suit is concerned; but it does not follow that the award by itself will have any greater value than the decree of the Court which is based upon the award. If therefore a decree passed on contest in the Small Cause Court suit could not operate as res judicata, I do not see how a decree based upon an award in the same suit or the award itself, if it is possible to treat it as something apart from the decree, can operate to make any matters decided thereby res judicata.

20.The next point urged was that the decisions in the Small Cause Court suit as well as in certain other proceedings which followed it including the proceedings before the settlement officers, even though they might not operate as res judicata, should be treated as evidence in the case, and some stress was laid on the fact that the learned Subordinate Judge had in the face of so many decisions, come to a finding that the two cousins were joint at the time of Ramlals death.

21. Here again, I am afraid the learned advocate for the appellant is attempting to place his case too high. The question as to whether a certain judgment pronounced in another case is or is not relevant is to be governed by Sections 40 to 42, Evidence Act. It is conceded that these judgments would not come under Sections 40 to 42 and Section 43 clearly provides that such judgments as are not relevant under these sections are irrelevant unless the existence of such judgment is a fact in issue or is relevant under some other provisions of this Act. The question as to whether there are any other provisions in the which would make such judgments relevant has been debated in a series of cases in this country. In Gujja Lal v. Fatteh Lall [1881] 6 Cal. 171, it was held by the Full Bench of the Calcutta High Court, Mitter, J., dissenting, that a former judgment which is not a judgment in rem, nor one relating to matters of public nature, is not admissible in evidence in a subsequent suit either as res judicata or as proof of the particular point which is decided, unless between the same parties or those claiming under them.

22. A question arose in this case whether such a judgment was admissible u/s 13, Evidence Act, and Garth, C.J., expressed an opinion that the former judgment was not a transaction and that the right claimed in the particular suit was not a right within the meaning of Section 13. On the other hand, in Collector of Gorakhpur v. Palakdhari Singh [1889] 12 All. 1 (F.B.) a Full Bench of the Allahabad High Court came to a different conclusion and held (Bradhurst, J. dissenting) that such judgments were in many cases admissible u/s 13. The view that was put forward in this case was that the majority of the learned Judges of the Calcutta High Court had put too narrow a construction on the word "right" as used in Section 13 and that the term "right" includes not only incorporeal rights, but a right of ownership. It was further held that though the judgment itself was not a transaction, the suit or the litigation in which it was pronounced might be treated as a transaction or an instance in which a right may have been asserted, acknowledged or denied. The point has been considered so exhaustively in these two judgments that I do not think it is necessary for me to deal with it at any great length. It appears however that although in many cases the Judges have expressed the view that the decree if not conclusive evidence is not evidence at all: see Mahendra Lal Khan v. Rosomoyi Dasi [1885] 12 Cal. 207, Surendra Nath Pal v. Brojo Nath Pal [1886] 13 Cal. 352 Krishnaswami Ayyangar v. Rajagopala Ayyangar [1895] 18 Mad. 73, Ramaswami v. Appavu [1889] 12 Mad. 9, Subramanyan v. Paramaswaran [1888] 11 Mad. 116. there are, on the other hand, a large number of cases where the Courts have shown their inclination towards the view propounded by Mitter, J., in Gujja Lal v. Fatteh Lall [1881] 6 Cal. 171. In Abinash Chandra Chatterjee v. Paresh Nath Ghose 9 C.W.N. 402, Ghose, J., observed:

I am disposed to hold that the Judicial Commitee in Ram Ranjan v. Ram Narain Singh [1895] 22 Cal. 533 and Bitto Kuar v. Kesho Prashad Missir [1897] 19 All. 277, rather adopted the views expressed by Mitter, J., in Gujja Lal v. Fatteh Lall [1881] 6 Cal. 171 wherein the learned Judge held that a judgment though not inter partes may be received in evidence u/s 11 or Section 13, Evidence Act.

23. See also Tepu Khan v. Rajani Mohan Das [1898] 25 Cal. 522, Lakshman Govind v. Amrit Gopal [1900] 24 Bom. 591, Dharnidhar v. Dhundiraj Ganesh [1903] 5 Bom. L.R. 230, Mahamad Amin v. Hasan [1907] 31 Bom. 143, Thama v. Kondan [1892] 15 Mad. 378 (here the judgment was held to be admissible to prove the result of an admission). It appears that in certain special circumstances the Judicial Committee also has not questioned the admissibility of such judgments. In Run Bahadur Singh v. Lucho Koer [1885] 11 Cal. 301 Sir R.P. Collier observed:

Although the judgment in the rent suit is not conclusive still their Lordships cannot help attaching some weight to the decision of the Munsif and the Subordinate Judge, both natives, who heard the same case as that now before us, and a good deal of the same evidence. It may be added that the judgment in the certificate suit in which the plaintiff set up the same case was the same; it was the same, also, and the case and evidence much the same, in proceeding before a Magistrate requiring the plaintiff to enter into recognizance to keep the peace. All the native Judges who have heard the case--and it has been heard by them four times--have concurred in their judgment upon it.

24. Similarly in Bitto Kuer v. Kesho Prasad Missir [1897] 19 All. 277 it was held that a prior judgment was admissible though not conclusive evidence in the case. In one case [Midnapur Zamindari Co., Ltd. v. Naresh Narayan Roy AIR 1922 P.C. 241] it was observed that a previous decision was entitled to some weight as the facts of the case were nearer to the ken of the Court which decided it: see also Ram Ranjan v. Ram Narain Singh[1895] 22 Cal. 533 and Dinomoni Chowdhrani v. Brojo Mohini Chowdhrani [1902] 29 Cal. 187.

25. In some cases again a distinction has been made between a judgment which is inter partes and one which is not so, a distinction which has not been lost sight of even in Gujja Lal v. Fatteh Lall [1881] 6 Cal. 171 and sometimes it has also been emphasized that although a judgment given in a different case will not be generally admissible under the English law, it should not be supposed that the Indian Evidence Act is a mere servile copy of the English law. Apart however from the case law on the subject, it appears to me that the Evidence Act itself does not draw a distinction between a judgment which is not inter partes and a judgment which is inter partes except where the judgment is clearly res judicata. The logical view, therefore seems to me to be that unless a judgment is relevant under Sections 40 to 42, Evidence Act, it is not evidence at all so far as regards the matter which it decides. It is true that Section 43 provides that a judgment other than that mentioned in Sections 40 to 42 though otherwise inadmissible may be admissible if it is relevant under some other provisions of this Act. Also in view of the numerous decisions of the various High Courts in this country as well as the decision of the Privy Council in Dinomi Chowdhrani v. Brojo Mohini Chowdhrani [1902] 29 Cal. 187, it is now, in my opinion, too late to say that a litigation or a suit is not a transaction and that the word "right" as used in Section 13 must be interpreted in the somewhat narrow sense in which it was construed in Gujja Lal v. Fatteh Lall [1881] 6 Cal. 171. Taking this view as I do I am inclined to think that a judgment other than a judgment referred to in Sections 40 to 42 may be admissible to prove that a right was asserted or denied u/s 13, Evidence Act or to explain or introduce facts in issues or to explain the history of the case. In some cases it has also been held that it may be used to prove an admission made by the ancestor of one of the parties (though the decisions on this point are not unanimous) or to show how certain property was dealt with in the past.

26. I must confess however that I have not been able to discover any provision in the Evidence Act which would warrant the view that the actual decision or the findings arrived at in a previous judgment can be used as evidence to decide the points which are in issue in a particular case. Such a decision may by virtue of specific provisions operate as res judicata or be relevant as a pronouncement on matters of public nature, but otherwise it is not better than a mere opinion expressed on the issues involved in a particular case and the Evidence Act is clear that "opinion" will be relevant in those cases only which are specifically referred to in the and in no others. I am of opinion therefore that although, as observed by Sargent, C.J., in Ranchhoddas Krishnadas v. Bapu Narhar [1886] 10 Bom. 439 one might have wished that the door had been opened somewhat wider for this class of evidence yet under the law as it stands the actual decision or the findings arrived at in a judgment pronounced in a different case are inadmissible except in cases referred to under Sections 40 to 42, Evidence Act and except perhaps in the special type of cases which have been referred to by the Judicial Committee. This being my view, although I would not go so far as to hold that the judgments which are on the record of the present case were inadmissible, I would proceed to decide this case not upon the findings which have been arrived at in favour of the appellant in those judgments, but upon the other evidence adduced in the case.

27. Now, the most important evidence in this case is an old document, Ex. M of Baisak 1295, corresponding to April 1888. It purports to be a receipt given by Nandlal Ojha to Ramlal Ojha and runs thus:

This receipt is executed to the following effect: That your father the late Biswanath Ojha and my father the late Shrinath Ojha were two brothers, of whom you are the son of the eldest and I am the son of the youngest. I lost my mother while I was a child. Your mother has brought up both the brothers. We both the brothers having proposed to separate from each other in mess, we appointed Raghumani Adhikari, Mukhtear of Purulia Court, and Fachu Malla of Raghunathdih, parganna Kansaipur and Muchiram Mahata of Keraya and Goor Dutta of Ghatbera and 16-annas tenants of the village, as panchayet; and we having agreed to the partition and division made by them, we receive in our respective shares moveables and immovables, articles, etc., as per schedule herein below. Hence, after having received all () the things detailed in the schedule, I execute this receipt in your favour for the purpose of a memorandum.

28.Then follows a schedule in which a list of properties allotted to the two cousins is given and then appear the signatures of certain persons. We have examined this document carefully and in my opinion there can be no question as to its genuineness. It has been proved to be in the handwriting of one Raghumani Mukhtar who, even Nandlal admits, used to act as his mukhtar in the old days and who has been long dead. It appears to have been filed in the suit of 1908 and the admission made in the plaint of Nandlal that he separated in mess and began to cultivate some lands separately in the year 1295 also goes to support its genuineness. The question however is whether this document proves that there was an effective severance of joint estate in the year 1295. The learned advocate for the respondent tries to show that there was only a separation in mess then and the only reason for the separation was that Nandlal was asked to cook food even after Ramlal had married a wife. It is urged by him that a mere separation in mess which was induced by an ordinary quarrel like this could not be regarded as sufficient to cause a disruption of the joint family. Stress is also laid upon the words: "we both the brothers having proposed to separate from each other in mess" and it is argued that this clearly indicates that the intention was to separate in mess 1932 P/15 & 16 only. The learned advocate for the appellant on the other hand contends that the document should be read as a whole and that the Bengali expression which has been translated as meaning "separation in mess" does not really carry that meaning but means in ordinary parlance an effective partition. As this view is not accepted on behalf of the respondent I shall proceed on the assumption that the document has been correctly translated, though I agree with the learned Counsel for the appellant that it will be most unsafe to isolate any particular passage in the document from its context for the purpose of discovering what the intention of the parties was when this document was written. We must also bear in mind that this document does not claim or purport to be a complete and self-contained formal agreement entered into between parties but merely evidences to some extent what actually happened and should therefore be considered along with the evidence as to the surrounding circumstances and other matters. We have therefore to examine not only the language of this document but also the schedule which is an integral part of it and also consider the extent and kind of properties partitioned and those left undivided. As to the recital in the document itself it is true that it is said in one place that the cousins had proposed to separate in mess, yet in the very next sentence it is made clear that they had also agreed to the partition and division made by the panches. It is significant that the writer had not only used the words "partition" and "division" here, but also referred to

their respective shares in moveable and immovable articles as given in the schedule.

29. It is needless to emphasize that a mere agreement to hold separate properties for the sake of convenience is quite different from getting ones share in the joint property by means of a division or partition and that the latter was the case is fully confirmed by a careful perusal of the schedule atached to this document. It is fully established by evidence that the parties divided on this occasion all their moveables and nij-jote lands and on this point there has been no serious controversy. (After discussing evidence, his Lordship observed as follows): It is also to be noted that after 1895 the Jerka property was acquired in the name of Ramlal alone and even the learned Subordinate Judge had to hold on the evidence before him that this was the self-acquired property of Ramlal. I have already stated that this property was acquired during the lifetime of Ramlal by three documents and Nandlal states that he was present on all the occasions on which the consideration was paid to the former proprietor of Jerka. It is curious however that although in every other document, which related to the property which was admittedly common, both Ramlal and Nandlal joined, the Jerka properties were allowed to be acquired only in the name of Ramlal. It is true that such a transaction is possible even in a joint family; and where the family is joint, the mere fact that a certain property has been acquired in the name of one of the members only, does not necessarily make it the sole property of that particular member. In this particular case however it has been proved by D.W. 1, and his statement is supported by Ex. D-l, that about the year 1304 Fasli or 1897 there was a criminal case between Ramlal and Nandlal in which the complaint was that one of these persons had encroached upon the land of the other. It is therefore a matter to be considered as to whether in such circumstances Nandlal who was elder than Ramlal would allow the acquisition to be made in the name of Ramlal only. Again what we find is that in 1909 the very proprietor of Jerka who had executed the three previous documents in favour of Ramlal executed a fourth document in favour of Umamayi, the widow of Ramlal, and not Nandlal. I do not suggest that any of these matters taken by itself is conclusive; but one will have to take into consideration the cumulative effect of all these transactions. The criminal case to which I have referred has not only an important bearing op the question as to whether the Jerka property was acquired by Ramlal for himself alone or for himself and Nandlal but also on the general question as to whether Ramlal and Nandlal were joint at the time when this case was instituted. It is needless to say that it is not usual to find one member of a joint family bringing a case of trespass against another in respect of property which is still in law joint but which is held in separate possession only for the convenience of enjoyment by individual members of the joint family.

30. A joint Hindu family again has certain peculiar features of its own; but the evidence in this case, so far as it goes, discloses that those features are singularly wanting in this case. Generally one would expect a karta or a manager in the family and some sort of a joint fund or family chest or till as it is sometimes called which is drawn upon on such occasions as the marriage of a daughter or a member of the joint family or the sradh of a deceased member. In this particular case Nandlal was admittedly the elder member and it is stated in para. 1 of his written statement in Suit No. 50 of 1925 that:

When the defendant and Ramlal Ojha were members of one family and joint in mess they all lived under the care of Rashmoin Ojha in, mother of Ramlal. The property described in Schedule 3 of the plaint was acquired at the time out of the income of the joint property and the defendant formerly as karta of the joint family and thereafter alone is in possession there of.

31. Here there is a clear suggestion that Nandlal was the karta of the family after the death of Rashmoin and was the sole owner of Jerka after the death of Ramlal. The case about Nandlal being a karta seems to have been abandoned at the trial and in evidence an attempt was made to suggest that Ramlal being the more intelligent of the two cousins was entrusted with the collection of the joint property though it is not expressly stated as to who was the karta. However that be there is nothing in the whole of the evidence before us to show that Nandlal took any part in marrying the daughter of Ramlal or that Ramlal took any part in Nandlals domestic affairs. On the other hand, in his own plaint Nandlal accuses, Ramlal Ojha of having married his daughter in saprabara sagotra and adds that forth at reason he (Ramlal) gave up connexion with the said daughter and

for fear of being outcasted, he never brought her in his own house.

32. Again in his evidence he referred to his. own concubine and the daughter begotten by her and adds that:

Ramlal was alive when Nagendra was married....Ramlal did not participate in the marriage.

33. It is true that merely because a member of the family did not participate in the marriage of a natural daughter, it does not follow that he was not a member of the joint family; but this passage as well as the passage in the plaint to which I have referred would give some indication of the relations between the two cousins as well as the condition of the so-called joint family. (After discussing the evidence, his Lordship observed): The evidence in the case, in my opinion, does not show by any means that Nandlal was either joint with Ramlal or was ever in exclusive possession of the properties in Tilai, Jerka and Sirkabad or any of them in its entirety after the death of Ramlal.

34. Once the facts are fully ascertained there cannot be much difficulty in my opinion in applying the law. The learned Subordinate Judge has reviewed a series of authorities in his judgment and a number of cases have also been cited in the course of the elaborate arguments advanced in this Court. It appears to me however that the learned Subordinate Judge was too much obsessed with the case law on the subject and that he has not correctly appreciated the facts of the case. There is no doubt that the summary of the law given in his judgment cannot be found fault with, but the case law cannot provide us with a ready-made formula and each case has to be judged on its own facts. It may well be that certain circumstances when taken individually do not furnish conclusive evidence of separation, yet they may point to a different conclusion when taken collectively or with reference to the particular facts of any individual case. It is to be remembered that separation in status is not quite the same thing as "partition" as used in common parlance. It is possible for the members of a joint family to sever themselves in estate without there being a formal partition or an actual division of the properties by metes and bounds. In law a severance of the joint estate is effected as soon as an intention to this effect has been clearly and unequivocally expressed. It is also to be remembered that although it has been emphasized in many cases that a declaration of the intention to separate must be made in definite and unambiguous terms, it does not follow that where there is no evidence of an express declaration of intention, separation cannot be proved. The question is really one of intention and all that the law requires is that the intention should be clearly and unequivocally expressed whether it be by explicit declaration or by conduct: see AIR 1927 224 (Privy Council) .

35. Thus in the absence of an explicit declaration, the evidence of conduct as well as of the surrounding circumstances is material for the purpose of judging whether the members intended to separate or not. In this connexion the Courts have always pointed out that mere cesser of commensality or separate enjoyment of distinct portions of the properties or separate definement of shares in revenue or survey paper or mere proof of separate transactions entered into by the coparceners with strangers will not be conclusive to prove separation in estate. It does not however necessarily follow that even though all these elements may be present in a case and no matter what special significance any of these various circumstances may have having regard to the facts of a particular case, they can under no circumstances be sufficient to prove separation. Even as to the cesser of commensality the Privy Council has pointed out that though it may not be conclusive, yet it may properly be considered in determining the question whether there was a partition of the joint family or not: see Anandi v. Khedu Lal [1872] 14 M.I.A. 412 and Ganesh Dutt v. Jewach Thakurain [19041 31 Cal. 262. Similarly any one or more of the other circumstances referred to above may have a special significance or bearing on the intention of the parties and therefore decisive in a particular case having regard to its peculiar circumstances though the same circumstances or set of circumstances may not be quite conclusive in another case. In the present case my view is that the separation of 1295 must have caused a serious breach in the union and it was by no means such a trivial or ordinary incident as to have left the joint family wholly unaffected.

36. What is significant is that the parties did not take for themseles only so much of the properties as would have been sufficient for their maintenance but they divided everything which could be conveniently divided and received their "share" of such properties by what they called "partition and division" brought about through the intervention of certain panches. In Vaidyanatha Aiyar v. Aiyasamy Aiyar [1909] 32 Mad. 191 it was held that when a partial partition is proved or admitted to have taken place, the presumption is that there has been an entire partition both with reference to rights and properties and this view was reaffirmed in Sundaramma v. Kamakotiah 26 Ind.Cas.514 and in Subha Hiddi v. Alagammal 31 Ind.Cas. 674. I have already discussed the matter at some length before and all I need say here is that even apart from this presumption the conclusion which I have arrived at on a consideration of the oral as well as the documentary evidence produced in the case is that Ramlal and Nandlal separated in estate in the year 1295 and that Nandlal was not therefore entitled to succeed to any of the properties in dispute. The learned Subordinate Judge relying on an isolated passage in the evidence of D. W. 2 has held that so long as Rashmoni Debi lived she managed the properties and her orders were carried out; but when I refer to this passage in the evidence of this witness I do not find anything in it to show that the witness was referring to the common property of Nandlal and Ramlal and not to the separate property of Ramlal, having already said in the examination-in-chief that the two cousins had separated.

37. I shall now pass on to consider the next important point in the case that is to say, whether the decree in Suit No. 48 of 1923 was obtained by fraud. The circumstances under which this suit was brought were no doubt peculiar. It is not disputed that at the time when the suit was brought Purnima was living with Nandlal and that there was no quarrel or friction whatsoever between her and the latter. It appears strange therefore that it should have been considered necessary to bring a suit against her in the absence of any dispute. This matter by itself would not perhaps have had much significance if it had stood alone; but there are many other suspicious features in the case. (After dealing with the evidence, his Lordship proceeded). Now the main question in this case is whether Purnima has established a case of fraud. It is said that although there may be suspicious features about the case, yet that is not enough so long as definite particulars of fraud are not set forth and they are not established beyond doubt. As to the particulars of fraud I have already said that the case of Purnima in substance was that the decree had been obtained by keeping her in ignorance of the suit, by representing to the Court that Babu Brajendra Nath was her pleader although as a matter of fact he was not, by taking various steps in the suit on her behalf although she had never authorized those steps to be taken and by using before the Court a deposition which did not contain her full and free statement. All these allegations are fully supported by her in her evidence and the question is whether her evidence should be taken to be sufficient in this case.

38. The learned Subordinate Judge before whom she gave her evidence has apparently believed her and in my opinion he has rightly done so. The circumstances of the case to which I have referred fully lend support to her statements and there seems to be no reason why they should be rejected. It is true that her statements are to be taken with caution and in one or two instances, for example, where she says that her thumb-impression had been obtained not on the record of deposition but on a blank piece of paper it may not be safe to accept her statement; but the statements in other respects, specially where they are fully supported by the probabilities and the circumstances of the case, seem to have been accepted by the learned Subordinate Judge and I see no reason to differ from his conclusions.

39. I cannot disbelieve her evidence that Brajendra Babu was never appointed by her; that she never authorised him to say to the Court that no written statement was necessary or that she was to be examined on commission. This fact by itself would be a serious fraud upon the Court, because if it is believed it means that the decree was obtained by setting up a person as a pleader for the party where as a matter of fact he had no authority to act as such. I am also of opinion that her statement as to her being wholly ignorant of the suit and as to the manner in which the deposition had been recorded cannot also be easily discarded. These facts in my opinion are quite sufficient for the purpose of upholding the decree of the lower Court independently of the argument advanced on behalf of the appellant on the score of her being a pardanashin lady and not having had any free and independent advice at any stage of the suit. In my opinion this, question could directly arise only if there was a contract or an agreement entered into by the lady which was sought to be impugned or if the decree passed in this case had been a compromise decree. The learned advocate for the appellant however refers to the evidence of Nandlal in which he speaks of the decree as if it was one based on a compromise. He says:

After the compromise Purnima went to her fathers house

and then again:

He (Brajendra Babu) appeared for me in my case with Urma and Debi....I cannot say whether it was before or after the compromise in Suit No. 48.

40. The learned advocate for the appellant thus refers us to the case of Nistarini Dassi v. Nundolal Bose [1899] 26 Cal. 891, where Stanley, J., after referring to the fact that the plaintiff there was a pardanashin lady living with the defendant Nundolal Bose who had exercised considerable influence over her and that while she was living under his care, he had induced her to put her name to documents which were not explained to her, referred to the following passage of Phear, J. in Kanailal Jawhari v. Kamini Debi [1867] 1 B.L.R. O.C. 31:

I may remark that I have more than once felt myself obliged to hold that a Hindu pardanashin is entitled to receive in this Court that protection which the Court of Chancery in England always extends to the weak, ignorant and infirm, and to those who, for any other reason, are specially likely to be imposed upon by the exertion of undue influence over them. The undue influence is presumed to have been exerted unless the contrary be shown. It is therefore in all dealings with those persons who are so situated, always incumbent on the person who is interested in upholding the transactions to show that its terms are fair and equitable. The most usual mode of discharging this onus is to show that the lady had good and independent advice in the matter, and acted therein altogether at arms length from the other contracting party.

41. As I have however already indicated although the youth of the lady and her being a pardanashin Hindu widow and her living with Nandlal at the time the decree was obtained may be circumstances tending to show that she could be easily imposed upon, I do not think that the principle laid down in the decision relied on by the learned advocate exactly applies to this case because this is not a case in which Purnima was strictly speaking a contracting party and a case of undue influence is not quite the same as a case of fraud. In my opinion however the case of fraud has been fully established and her suit has been rightly decreed.

42. The only thing which I cannot understand is why the learned Subordinate Judge having found that the decree had been obtained by fraud should have partially decreed the suit only with regard to Jerka property. In my opinion Appeal No. 141 should be allowed with costs and Suit No. 50 of 1926 should be decreed. As to Suit No. 3 as I have held that Ramlal had separated from Nandlal during his lifetime, the plaintiff has failed to establish his title upon which his suit is based and therefore his suit must necessarily fail.

43. It may be mentioned that it was urged on behalf of the respondent that Suit No. 3 was purely one u/s 177, Chota Nagpur Tenancy Act, and the question as to whether Ramlal and Nandlal were joint or separate need not be gone into. On the other hand it was urged on behalf of the respondent that if the plaintiffs suit was one u/s 177 it was barred by limitation because it was brought more than one year after the decision of the rent Suit No. 1,400 of 1921-22. In my opinion however on the plaint as framed it cannot be held either that the question of title cannot be gone into or that the suit is wholly barred by limitation.

44. The result is that Suit No. 3 of 1926 must be dismissed and Appeals Nos. 141 and 142 must be allowed with costs throughout. The cross-objections in both the cases will be dismissed.

Wort, J.

45. I agree.