MADHUSUDAN DAS v. SMT. NARAYANI BAI AND OTHERS (2)

Citation: [1983] 1 S.C.R. 851

Court: Supreme Court of India

Bench: V.D. TULZAPURKAR, R.S. PATHAK

Case summary

contrary we find that the trial court examined the evidence relating to the actual adoption with great care and pointed out that as Jagannathdas had accepted Premwati's suggestion to have the adoption that very day and during her Jifotime the issue of invitations to relations...

Judgment text

SSI . MAOHUSUOAN, OAS v. SMT. NARAYANI BAI AND OTH. ERS November 25, 1982 (V. :iJ. TULZAPURKAR AND R,S, PATHAK, JJ. ] Evidence-Weight to be given to finding of facts by trial court-Principle governing. re-a;Jpraisal oforal evfdence by appellate court. Evidence-Ofwitnesses holding position ofrelationship with parties-C,o~t should examine its. probative value with reference to entire mosaic offacts appearing on record. Adoption-:--Fact ofadoption to be proved in the same way as any Other fact-Proofofphysical act ofgivYlg and taking essential. Joint Hindu Family-Partit/011-Notice to co·shareTs of intent{on to separat~ essentiaL Jagannathdas and his wife Premwati had no children. Premwati suffered from tuberculosis and died on September ,24, 1951:. ThC'. reafter Jagannathd8s created a trust in respCct of-his estate which comprised of properties falling· to his share in' a faMily partition. The. appe! latit filed a suit claiming that he bad been .

adopted by, Jagannath~as and Premwati as their son on September 24, 1951, that the trust was void and that be was entitled. to a half share in the estate. The trial court ~ecrecd the suit after finding that_ the appell~t had in fact been ad. opted, by Jagannathdas and Prf:mwati and that the adoption was val! d. On appeal by the trustees·the High Court reversed the finding· of tho trial court taking a different view of the . evidence on record and dismissed the suit. Allowing tho appeal against tho order of tbo High Court, HELD : ·in an appeal against a trial, . court decree, when the appellate Court consider. s an issue turning on oral evidence it must bear in mind that it does not enjoy the advantage which the trial court had in having the witnesses before il and of observing the manner in which they gave their testimor:iy. When there is a conflict of-Oral evidence on any matter in issue and its resolution turns upon tht!

I credibility of the witnesses, the general rule is 'that the appellate court should permit the findings of faCt1 rende'ted by the trial court to prevail unless it clearly appears that some special feature about the evidence of a particular witness has escaped the notice of the trial court or there is a sufficient balance of improbability 'to displace its opinion as to where the credibility lies. The principle is one of practice and ~ovcms the weight to be given to·a finding of fact by the trial court. 852 SUPRBMB COUllt RB! >ORTli (1983l 1s. c. I :;:,A. l. Ro; 1964 .... S G;: ,~_.. 136·and Kiabo,i;LQ/ v. ·Chall! baii{l959] Supu,+ S. C. J! ,. §98-referr~d..! Q. 1. ,, . :: \ MADHUSUDAN V, NARAYAN! BAJ S53 (c) For a valid adoption the physical . act ot. siviog and taking is an' J. ' esseittial reQuisite, a:~ceretnonY imperative· in -au adap·tions, WbateVe'r (he caste~' Abd~ihi!

rreqC1iSit'e·is·•salisfied·iii"'its -essence·oh1y~bf·ttie actual delivery &rid· acceptancerof•the~boy;1even·-thoti'gh)there~exiSts'an·rexpresSibtJ. 'of:cOOSdnt'br \iifexdCii~Cd deed1of,adoption.... In 'SOme,cases,to complete. • the ·adoptibn;-a· •''dattat"hOmafu" has_· been~ considered necessary but in the case-of .. the twice.. born classes -no . such ceremony is nccdCd if the adopted boy belongs to the same gotra as the adoptive father. [862-E; 863-B] · Shoshinath v. Krlshnasunder (1881) L. R. 7· J. A, 250; Lakshman Singh v. s1n1,nRupkan,;ar [1962] I s. o:&. ' 477•and''Bdl'Giilig'"adhafTtlak vi'Shrtiilva•' Pandit --. ,. ...... ·(1915) L. R. 42 I. A. 135 re(erred to. ,, ln tbeFin$tant cast:. tbe,Hiah Oaurt~t. elyiD. g•on:-rcertainubbsetvllf:iObs made by. the Privy Councii .. -in . S11troogan v. Sabitra,• helld' that·~the'. \trial. (Jourt.

rhad,not scrutinised the CVidence relating to the· pCrformance Or the ceremony o(giving and taking and also did'not have due regard to the probabilities and, o~ that ba5is, . proceeded to'rCappraise the evidence in elaborate detail. When the Privy Council ma:de· those rt>bSei:vations'(it hB. d in1mind'cases Where it·w&s paS~lbJe'no·doubt to make the ackno~ledgements, observe the cere~onies and give the nc;itiaes,adver:ted I to by jt. The High Court applied· that standard to ·a case which was quite different. The issue here was whethei: the adoption had been effected in circums· tances which plainly did not permit time for i:naking acknowledgements, observing elabora,. te'teremnnies~attd1giving n0tices·genei8:tly; hAcc0'rding-_·to bdth"the parties, Premwa. ti was seriously ill, ·The appellant's case hfthat she was so ill that she wanted to effect the adoption that very day... Tbe respondents have 8Ueged tbat she was already incapable of. any acti_vity. tJ~.

is,inco~ivable~that~ny·, elaborate arrangements for adoPtion could have been envisaged. In consequence, the High Court misdirected itself in·applying a standard o_f proofto the evidence which the circumstances did not . warrant. Even upon the approach adppted by the High Court itStfiD. d~ngs are vitiatCd·by•its, failure tO'tdnsider mitei'ial-eVidence od~record and by its r~aching concJti'sions not sustainable in ·reason. ''T. he pappellant .. baS pleaded the custom of his community that the act of giving and taking suffices to . \ . effect a valid adoption and nothing has been shown to indicate that the further . >-. _ 1 ceremony of datta horoam•,was necessary. [863.. ,:0·J;I; -864--A-P; 864.. F; 863·B] ~ F. Sutroogan v. Sabitra, (1866) 5 W. R. 109 referred to. : • 'i_ ,l, ··(d) Separatiori from a Joinf'HiildU FaITtily is 'effected bY a ·clear aDd uneq"uivoc·ai:. cintlmaticn ~on!

the (p·art of- a- member-of-·the1FarriilJ td hhf·co:sharers ·of his desire to sever himseif from the Family. ,_ ~A--mere ·U! :\Co·mmunicated'ldeclar. ation amounts to no mo~ than merely harbouring an intention to separate. A valid. partition requires notice to the co·sharers of the intention to separate. [8. 69-C-E] ! i•Girfo Bai v. ~·Sadashiv,Dhundlr:a/;1{1·960]_:43-1'. AS- fSl ; Bal-Ktishart ittlld'iOrs. v. Ram Krishan and Ors.. , [1931],,581. A. 220; ·A Raghavamma and... Anr. v. A. Cherichamma ahd Anr. A. I. R. " 1964 ·s. c. 136; 'Puttrangamma ·and Ors. ;v. M. S. Ranganita-:a~d Ors. A-. [R. 1968' S. C. ' 1018 i1and ! Kalyan_f :Sufficient balance ·of. improbability to displace its opinion as to where· the, credibility· lies. In this connection, reference inay usefully· be made to W. C. ·Macdonaldv.

Fred Latimer(')•where the Privy Council·Iaid down·that when there is· a• direct conflict between the· oral' evidence of the, parties, ·_and ·there ·is ·no documentary evidence that clearly' affirms one view -or contradicts the other, and there is no sufficient balance of improbability ·to displace the trial court's findings as to . the truth of the oral evidence, the appellate court can interfere only on vei:y clear ·proof of'•lllisfake by the trial· court. ··Io Watt v. Thomasf) it was observed:· " ...... it is a cogent circ"ucnstaoce that a judge of'fil'st instance, when estimating the value· of verbal testimony has the advantage (which is denied to courts of appeal) of having the _witnesses before •him and· observing• the manner 'in which their evidence is given. " This was adverted to with approval by the (! ) AIR 1929 P. C. 15, 18. (2\ L. R: 1947 A. C. 484, 486. · Privy Council in Sara Veeraswami alias Sara Veerraju v. Tal/url Narayya (deceased) and others(') .

l'nd found favour with this Coun in 2 ·Sarju Parshad v. Raja Jwaleshwari Pratap Narain Singh and Ors,( ). It. seems to' us that this app. roach should be placed in the ·forefront in . considering whether the High Court· proceeded correctly in the evaluation of the evidence before it when deciding to reverse the findings of the trial court. The principle is one of practice and governs the weight to be given to a finding of fact by the trial court. There is, of course, no doubt that as a matter of law if the appraisal of the evidence by the triai court suffers from a material irregularity or is based on inadmissible evidence ·or on a misreading of the evidence or on conjectures and surmises the appellate court is entitled to interfere with the finding of fact. Our attention has been drawn by the respondents to The Asiatic Steam Navigation Co. Lrd. v.

Sub- 3 Lt:habindra Chakravarti( ) ,but nothing said therein detracts,- in otir opinion~ from the validity ·of the proposition enunciated here. - The judgment of the . trial court shows that it analysed the testimony of each material witness and in re1ching. its conclusions on the issues' of fact it relied in some instances upon its own appraisal of the_ manner in which the witnesses present before it rendered their. · testimony'and weighed with great care the probative value of the evidence in the context of established fact and probability. On the central issue whether the appellant had been adopted by Jagannathdas and Premwati it commenced logically with an examination of the circumstances in which an adoption could he envisag~d. Jagannathdas and Premwati were without issue. The wife was suffering from tuberculosis for about_ eight to ten years without any possibility of improvement and her health was fast deteriorating. There· was no hope that she would bear a child.

Jagann"athdas admittedly belonged to an old respected family steeped in tradition and orthodox belief. ·He was the owner of considerable property. It was natural that Jaoannathdas and Premwati should conceive the need for adopting a so~. Jagannathdas was on the evidence, a sickly man of weak mind and ·. of weak will and of little. education, and in the administration· of his. affairs Mankuarbai, his father's sister, and Narsinghdas, his uncle's son, played a prominent role. Premwati was aware of her husband's limitations and handicaps and quite understandably was anxious that a son should be adopted. The .... (I) AIR 1949 P. C. 32. (2) [1950] S. C. R. 781, 783. (3) [1959] Supp, 1 SCR 979. husband and wife were devoted to each othe. r, and all the · circum· stances point to the conclusion that if Premwati desired the adoption of a son Jagannathdas. would readily go along with the idea. He would willingly agree to whatever. she wanted. Th.

ere is evidence that Mankuarbai, who Jived with Jagannathdas, knew of Premwati's desire to adopt a son. the desire to adopt a son was known to others also, and they included Narsinghdas. For it was first decided to consider the adoption of his son Gopalda s. There is clear evidence that the child spent six months to a year in the house of Jagannathdas spending the day with Premwati and sleeping during the night with Mankuarbai. For some reason, however, it was decided not to adopt him. There is a suggestion in the evidence that his horoscope indicated an early death, but ·the trial court . has not relied on this. The desire to adopt a son continued aud it was in the circumstances only natural to consider one of the sons of Seth Ja,mnadas, the only other brother of the father of Jaganoathdas. The appellant, Madhusudandas, was then a boy studying in college a:nd the choice alighted on him.

The trial court nlied on the evidence of, among others, ·Narayanibai, mother of Jagannathdas, in reaching this con· clusion. It has also referred to material clearly showing that when Premwati went to Panchmarhi in the summer of 1951 and stayed there for about two months with Narayanibai it was decided to send for Madhusudandas and have him stay wi. th them for some time in order to determine whether, by his deportment and behaviour and the manner of his living, he was a suitable boy for adoption. The trial court found that the appellant·did go to Paochmarhi and stayed with premwati for some days. The trial court has also analy· sed the testimony of witnesses deposing to the contrary, and· has given good reason for discarding that testimony. It inclined to the . . view that the appellant had found favour with Jagannathdas ancl Premwati and that they decided to adopt· him.

The next question considered by the trial court was whether ·the appellant was in fact adopted on September 24, 1951. Consider- · ~ able evidence was led on both sides to show the physical and mental condition of Premwati on that day, it being the case of the appellant that she was in fit condition to effect the adoption while the case of the contesting respondents was that her condition was so serious that it forbade any such possibility. There is no doubt that her condition ·-""" was not good, having suffered deterioration during the preeeding four days. The appellant produced a number of witnesses to prov HUSUDAN v: NARAYAN! BAI (Pathak, J. ) 861 ' There was a letter dated September 27, 1957 purporting to have ·. _, been written by Jagannathdas to Narsinghdas indicating that Jagannathdas had taken exception to the appellant instituting the present suit and be desired ,that the suit be resisted vigor9usly in order to protect the trust.

The trial court has commenied that this letter was produced very late during the trial of the suit in Septemb~r 1961, without any adequate reason for the delay, and it observed that the document was not free from suspicion. ··• " In the result, the trial court held that the adoption of the appellant stood proved in fact. On the validity of the adoption the· trial court examined the · law and found that legal requisites for a valid adoption in the case of the families of the appellant and Jagannathdas, who belonged to Rajasthan, did not extend to more than the ceremony of giving and taking, and that the ceremony of '·dattak homam" was not necessary to effectuate the adoption of the appellant. Accordingly, the trial court took the view that the adoption was valid in law.. The High Co~rt disagreed with the trial court and held that the. adoption had not been established. In doing so, it adopted an approach which, to our mind, i. s plainly erroneous.

It proceeded to judge the credibility of the witnesses mainly with reference to their · relationship wi_th the parties without placing adequate weight on the nature of the evidence and the probability of its truth in the context · of the surrounding circumstances. It rejected the testimony ofthe appellant's witnesses substantially on the ground that they were related to the appellant or out of favour with Narsinghdas. This • consideration, in our opinion, cannot by itself constitute a sufficient basis for discrediting the witness,s. We think the proper rule to be that when a witness holds a-position of relationship favouring the party producing him or of possible prejudice against the contesting party, it is incumbent on ihe court to exercise appropriate caution .. when appraising his evidence and to examine its probative value with · reference to the entire mosaic of facts appearing from the record.

It· • is not open to the court to reject the evidence with0ut anything more on the mere ground of relationship or favour or possible prejudice. The judgment '! nder appeal indicates thet the High Court commenced with that mistaken approach, and we see its influence working throughout its appraisal of the testimony of the several witnesses. It is only logical that with its approach so oriented even the most significant material adduced by the appellant should, in the eyes of the High Court, take on a negative hue. The High Court should also have reminded itself that these same witnesses had given their evidence before the trial court, whicr had the opportunity of seeing their demeanour in the witness box, and the appreciation of their evidence by the trial court should have been given due consideration 8 in the light of that fact. It is well settled that a person who seeks to displace the natural succession to property by alleging an adoption must discharge the .. .

burden that lies upon him by proof of the factum of adoption and 1 its· validity. A. Raghavamma and Anr. v. A. Chanchamma and Anr ( ) It is also true that the evidence in proof of the adoption should be free from all suspicion of fraud and so consistent and probable as to give no occasion for doubting its truth. Kishori Lal v. Chaltibai. (') Nonetheless the fact of adoption must be proved in the same way as any other fact. 0 For a valid adoption, the physical act of giving and takin'g is an essential requisite, a ceremoliy imperative in all adoptions, whatever the caste. And this requisite is satisfied in its essence only by the actual delivery and acceptance of the boy, even though there exists an expression of consent or an executed deed of adoption. Shoshinath v. Krishnasunder. (') In Lakshman Singh v.

'Sm{ Rup-' kanwar,(') this Court briefly stated the law thus : "Under the Hindu Law, whether among the regenerate caste or among Sudras, there cannot be a valid adoption unless the adoptive boy is transferred from one family to another and that can be done only by the ceremony of giving and taking. The object of the corporeal giving and receiving in adoption is obviously to secure due publicity. • To achieve this object it is essential to have a formal cere·. many. No particular form is prescribed for the ceremony, but the law requires that the natural parent shall hand over . the adoptive boy and the adoptive parent shall receive him. ' The nature of the ceremony may vary depending upon the (I) AIR 1964 (SC) 136. (21 [1959] (Supp) I SCR 698. (3) [1881] LR. 7 I. A. 1250, (4) [1962] I SCR 477, 490. MADHUSUDAN v. NARAYANJ. BAI (Pathak, ). ) S63 circumstances of each case. •But a ceremony there shal I be, and giving and taking s~all be part of it.

" In some cases, to complete·the adoption a "datta homam" has been considered necessary, but in ·the case of the twice-born classes no such ceremony is needed if the adopted boy bciongs ti;> the same 8 gotra as the adoptive father. Bal Gangadhar Tilak v. Shriniwas 1 Pandi,t. ( ) In the present case, the appellant has pleaded the custom of his community that the act of giving and taking suffices to effect a · valid adoption, and nothing has been shown to us to indicate that the • further ceremony of "datta homam" was necessary. Apparently, for this reason the parties concentrated in the "C maiil liefore ihe High Court on the limited controversy whet! ier in fact th~ ceremony of giving and taking had been performed. In the course of adjudicating on this controversy, the High Court referred to the observations of the. Privy Council in Sutroogan v. Sabitra(2) : , . ,'Although n'eiiher ·written ac!

Cnowledgements, nor the performance ·of any 'reilgiobs cereniohial, are essential to llie validity of 'adopiioris, such acknowledgements are 'usUahy given, and such cer'eriionfos 'observed, and notices 'giVen'df tlietimes when ·aaopfions are"to take pface, in all E. fatnilies 6l' ·aistioctfon, as 'iliose·of 'Zarilindars' or opulent -Brahhiihs, that 'wherever 'ihese have been omitted, it bello\les tliis Court to regard with extreme suspfoion the proof offered in support of an adoption. I would say, that in no case should the rights of wives and daughters be transferted to ·strangers, or inore remote relatives, unless the proof of adoption, by which the transfer i~ effected, be proved by evidence free from all suspicion offraud, and so consistent and probable as to give·no occasion for doubt of its truth.

" • and it proceeded to hold that the trial court had not scrutinised the evidence relating to the :performance of the ceremony of giving and taking and did not have due regard to th~ probabilities. On that basis the High Court rested its justification for re-appraising the e~idence in elaborate detail. Now, when the ~rivy Council made . u (! ) [19JS] L. R. 42 I. A. 135. (2) [1866] S W. R. (P. remwati in what she 'intended. The evidence demonstrates that he was a loving and ·devoted husband ahd greatly concerned with the gratification of'his wife's wishes. His attitude ·to the ·appellant's adoption changed ·only as Premwati's life ebbed away, and the influence ·of Narsinghda·s, without any significant force to counter it, began to spread its pall over him. We must remember that the real possibility ·of the· adoption of his son Gopaldas, at an earlier stage, must have greaily appealed to Narsinghdas as it wouid have extended his domain over the estate of Jagannathdas.

When, however, that i)Ossibility died and it became evident that Jagannathdas and Premwati wotillt adopt the appellant instead, his attitude towards the intended adoption would inevitably have been hostile. It must not be forgotten that he had ·been intimately associated with the administration of. the affairs of Jagannathdas and there is evidence thanhey met almost daily. In the circumstances, the decision of Jil. gannathdas and Premwati to abandon their intention to adopt his son Gopaldas and to prefer the appe! Jant must have hurt considerably. The·events which took place on September 24, 1951 moved much too rapidly for him to have taken any effective·counter•measures, and he could ·have been able to assert his will over Jagannathdas only after Premwati's restraining influence was removed from the scene.

With a person of Jagannathdas's weak character and at a time when he was oppressed by his wife's death and bewildered by the confusion surrounding him, that would not have been difficult. Indeed, ·the pressure of Narsinghdas's influence began to manifest itself almost shortly after the ·adoption bad taken place, and Premwati, who was aware of the injury which be could work on her husband's simple MADH\Js\JDAN v. NARA\ ANI BAI (Pathak, J. ) 867 mind, insisted on the execution of an adoption deed while she was still alive in order to protect the adoption. · That her misgivings were not unfounded is evident. from the circumstance that shortly after the document had been entrusted to Seth Govinddas, Jagannathdas asked for its return. The High Court has. declined to accept the adoption also on the ground that the adoption deed mentioned the performance of a '. 'havan" and other ceremonies when in fact there· is no evidence whatever that those ceremonies were performed.

It does appear that there is an inconsistency between the case of the appellant' and some of the recitals in. the adoption deed. The inconsistency has been explain_ed satisfactorily by. the trial court. It is apparent that the document was prepared by the lawyer, . Jamna Prasad Dubey, containing recitals usual in such a document, and Manmoh_andas who had entrusted him with the task could have given him only the briefest instructions in regard to its contents. Time was running out fast as Premwati's condition grew progressively worse, and when it was brought before her and read out it was too late to 'effect change in some of the recitals, and ·con·sequently it was signell as it was by Jagannathdas ·and Premwati. · "' The complaints made by Jagannaihdas to the Deputy Commissioner and the District Superintendent of Police as well as the public notices published in the. newspapers disclaiming execution of the adoption..

deed and the adoption are explicable only in the context of the overpowering influence of Narsinghdas.. So also is the creation of the Trust in which Narsinghdas secured for himself the office of working trustee in respect of most of the properties. It is significant that the power ohevocation reserved to himself by . Jagannathdas was relinquished by him within a merefour mon(l:is of the creation of the Trust. The entire conduct of Jagannathdas persisting thereafter can be ascribed to the position to which he had been persuaded, namely, one of active. opposition to the appellant's claim of adoption. The attitude was tempered only later, when few weeks before his death he wrote to his mother that he had "ow. ned" the appellant as his adopted son. The High Court has referred to some instances where the H· appellant, inconsistently with . his Claim of adoption, continued to 868 SUPIU! i. IE COtlRT REPORTS [1983) 1 s. C. 11.. show himself as the son of Seth Jamnadas.

There were the partition deed, the application, for mutation of names in Naya Mahal, the Income-tax proceeding and other records, but cleaily these are matters in respect of which . the appellant plainly considered it judicious not to assert his title in proceedings which could only ·result in its summary determination but to prefer to wait and institute an appropriate suit for an authoritative ·declaration of his status. The determination to file the suit must have gathered impetus from the changing attitude of Jagannathdas in favour of the appellant and ' . reflected in his letter dated August 21, 1957 addressed to his mother ' in wliich he clearly states his acceptance of the appellant as his son. It may be noted that this case of adoption was not conceived for the. first time by the appellant when the suit was filed ; the claim to that status had been asserted by an application made as early as October 20, 1951. The High.

Court ·rejected the letter dated August 21, 19i7 written by Jagannathdas to his mother accepting the appellant as his son. We are not impressed by the reasons given by it. It erred in assuming that the. photostat copy was produced only at the stage of evidence. It was in fact filed by the appellant on February 15, 1958 · before the written statements of the defendants were filed. We have referred to some ·of the errors which vitiate the judgment of the High Court. It is not necessary, we think. to advert to all of them.. Jt is sufficient to say that there was no adequaie ground for the High Court to interfere with the finding of the trial' court. ·we are of opinion that the finding ~f the High Court thai - the appellant bad not proved his adoption _must be set aside and that of the trial court restored. It .

is urged by the contesting respondents that in the event of the Court holding that the appellant is the adopted son of the Jagannathdas and Premwati he can be found entitled to a half share · only in the properties. The submission is based on a recital in the trust deed executed by Jagannathdas that if the adoption deed "is declared valid. by the highest court then, today, I expresB, ·by this writing, a strong and unequivocal intention to separate at once from the heir by . the aforesaid alleged adoption deed and direct the trustees that in that event they shall get the property immediately partitioned and apply at least. my half share in the property for fulfilment of the objects of the trust. '' It is contended that the declaration contained in the trusL deed must be regarded as effecting a partition whereby the share of Jagannathdas in the property stood separated froin the share of . the appellant and the. \former share must be treated as the subject of the trust. Both .

the trial court and· the High Court rejected the contention. They held that a valid partition required notice to the co-sharer of the intention to separate, and no such notice was given nor could be inferred from Jagannathdas to the appellant. We are in agreement with the courts below. It was held by the Pr. ivy Council in Girja Bai v. Sadashiv Dhundiraj(') and Bal Krishan and Ors. v. Ram Krishan and Ors. (') that a separation is effected by a clear and unequivocal intimation on the part of one . member of a Joint Hindu Family to his co·sharers of his desire to sever himself from the Joint Family. In A. Raghavamma and Anr. v. Chenchamma and Anr. (Supra), Puttrangamma and Others v. M. S. 3 Ranganna and Ors. ( ) and Kalyani (dead) by L. Rs. v. Narayanan and Ors.

(') this Court held that there should be an intimation, indication or representation of such intention, and that this manifestation or declaration of intention should be to the knowledge of the persons affected because a mere uncommunicated declaration amounts to no more than merely harbourin·g an intention to separate. In the present case, there is no evidence whatever to show that the intention to separate was communicated by Jagannathdas to the appellant at any time when creating the trusi. There are other grounds on which the appellant contends "that ihe declaration of separation in the trust deed is wholly in effective, but we consider it unnecessary to consider them here. It may be pointed out that the High Court. also repelled the plea raised by the contesting respondents that pursuant to a com. promise affected by Narayanibai in a suit filed by. her against the trust it was not open to'. her to claim from the trust a one·fourth share in that estate.

The High Court rightly pointed out that the question did not arise because she could not be regarded as having given up a right then which vested in her only on the death of Jagannathdas on October 7, 1957. O_n the question whether the suit was barred (I) [1960] 43 I. A. 151. (2) [1931] 58 I. A. 220. · (3) AIR 1968 SC 1018. (4) AIR 1980 SC 1173, A by limitation the High CoQrt, in our opinion, also rightly concurred rith the trial court in maintaining that it was not. No argument has been seriously raised before us in respect of these two points. In the result the appeal is allowed, the judgment and decree of the High Court are set aside and the judgment and decree of the B trial court are restored. The appellant is entitled to his costs from the second and ninth respondents. H. L. C. Appeal allowed. •