SUPREME COURT OF INDIA
MST. RUKHMABAI VS. LALA LAXMINARAYAN
DATED : 17.11.1959
DATED : 17.11.1959
Summarised
Judgement (Scroll for Complete Judgement)
Judgement (Scroll for Complete Judgement)
Introduction:
This appeal by
certificate is directed against the decree and judgment of the High Court at
Nagpur, reversing those of the First Additional District Judge, Nagpur, in
Civil Suit No. 12-A of 1940.
certificate is directed against the decree and judgment of the High Court at
Nagpur, reversing those of the First Additional District Judge, Nagpur, in
Civil Suit No. 12-A of 1940.
Observation of Court :
The right to sue under
Art. 120 of the Limitation Act accrues when the defendant has clearly and
unequivocally threatened to infringe the right asserted by the plaintiff in the
suit. Every threat by a party to such a right, however ineffective and
innocuous it may be, cannot be considered to be a clear and unequivocal threat
so as to compel him to file a suit. Whether a particular threat gives rise to a
compulsory cause of action depends upon the question whether that threat
effectively invades or jeopardizes the said right. The facts relevant to the
question of limitation in the present case may be briefly restated: The trust
deed was executed in 1916. The suit house was constructed in 1920. If, as we
have held, the trust deed as well as the construction of the building were for
the benefit of the family, its execution could not constitute any invasion of
the plaintiff’s right. Till 1926, the plaintiff’s father, Ratanlal, was residing
in that house. In 1928 when Daga challenged the trust deed, the family
compromised the matter and salvaged the house.
Art. 120 of the Limitation Act accrues when the defendant has clearly and
unequivocally threatened to infringe the right asserted by the plaintiff in the
suit. Every threat by a party to such a right, however ineffective and
innocuous it may be, cannot be considered to be a clear and unequivocal threat
so as to compel him to file a suit. Whether a particular threat gives rise to a
compulsory cause of action depends upon the question whether that threat
effectively invades or jeopardizes the said right. The facts relevant to the
question of limitation in the present case may be briefly restated: The trust
deed was executed in 1916. The suit house was constructed in 1920. If, as we
have held, the trust deed as well as the construction of the building were for
the benefit of the family, its execution could not constitute any invasion of
the plaintiff’s right. Till 1926, the plaintiff’s father, Ratanlal, was residing
in that house. In 1928 when Daga challenged the trust deed, the family
compromised the matter and salvaged the house.
But in execution of the
decree, the Commissioner appointed by the Court came to the premises on
February 13, 1937, to take measurements of the house for effecting partition of
the property, when the plaintiff raised objection, and thereafter in 1940, filed
the suit.
decree, the Commissioner appointed by the Court came to the premises on
February 13, 1937, to take measurements of the house for effecting partition of
the property, when the plaintiff raised objection, and thereafter in 1940, filed
the suit.
Judgement :
From the aforesaid facts, it is manifest that the plaintiff’s right
to the property was not effectively threatened by the appellant till the
Commissioner came to divide the property. It was only then there was an
effectual threat to his right to the suit property and the suit was filed
within six years thereafter. We, therefore, hold that the suit was within time.
to the property was not effectively threatened by the appellant till the
Commissioner came to divide the property. It was only then there was an
effectual threat to his right to the suit property and the suit was filed
within six years thereafter. We, therefore, hold that the suit was within time.
In the result, the
appeal fails and is dismissed with costs.
appeal fails and is dismissed with costs.
—————————————————
SUPREME COURT OF INDIA
MST. RUKHMABAI VS. LALA LAXMINARAYAN
DATED : 17.11.1959
Equivalent citations:
1960 AIR 335, 1960 SCR (2) 253
1960 AIR 335, 1960 SCR (2) 253
Author : K Subbarao
Bench : Subbarao, K.
PETITIONER : MST. RUKHMABAI
Vs.
RESPONDENT : LALA LAXMINARAYAN AND
OTHERS
OTHERS
DATE OF JUDGMENT : 17/11/1959
BENCH : SUBBARAO, K.
BENCH : SUBBARAO, K. GAJENDRAGADKAR, P.B. SHAH, J.C.
CITATION : 1960 AIR
335 1960 SCR
(2) 253
335 1960 SCR
(2) 253
CITATOR INFO : R 1966 SC 470
(13)
(13)
RF 1967 SC
96 (26)
96 (26)
JUDGMENT :
CIVIL APPELLATE
JURISDICTIoN: Civil Appeal No, 173 of 1955, Appeal from the judgment and decree
dated September 9, 1949, of the former Nagpur High Court, in first appeal No.
45 of 1944, arising out of the judgment and decree dated April 24, 1944, of the
First Additional District Judge, Nagpur, in Civil Suit No. 12A of 1940.
JURISDICTIoN: Civil Appeal No, 173 of 1955, Appeal from the judgment and decree
dated September 9, 1949, of the former Nagpur High Court, in first appeal No.
45 of 1944, arising out of the judgment and decree dated April 24, 1944, of the
First Additional District Judge, Nagpur, in Civil Suit No. 12A of 1940.
W. S. Barlingay,
Shankar Anand and A. G. Ratna parkhi, for the appellant.
Shankar Anand and A. G. Ratna parkhi, for the appellant.
A. V. Viswanatha
Sastri, R. K. Monohar, S. N. Andley, J. B. Dadachanji and Rameshwar Nath, for
the respondents. 1959. November 17. The Judgment of the Court was delivered by
SUBBA RAO J.-This appeal by certificate is directed against the decree and
judgment of the High Court at Nagpur, reversing those of the First Additional
District Judge, Nagpur, in Civil Suit No. 12-A of 1940. It would be convenient
at the outset to give the following genealogy which would help to understood
the contentions of the parties.
Sastri, R. K. Monohar, S. N. Andley, J. B. Dadachanji and Rameshwar Nath, for
the respondents. 1959. November 17. The Judgment of the Court was delivered by
SUBBA RAO J.-This appeal by certificate is directed against the decree and
judgment of the High Court at Nagpur, reversing those of the First Additional
District Judge, Nagpur, in Civil Suit No. 12-A of 1940. It would be convenient
at the outset to give the following genealogy which would help to understood
the contentions of the parties.
(The geneology is given
on the next page).
on the next page).
Ramesahai (d. 1897) |
Ganesh Parsad (d. 1928) | Daughter Mst.
Ganesh Parsad (d. 1928) | Daughter Mst.
Rukhmahai == Lala
Sheoshankar (defendant 1) Ramesahai (d. 1897) | Ajodhya parsad (d. 1912)
Adopted son Chandanlal (d. 31-1-1940) == Window Mst.
Sheoshankar (defendant 1) Ramesahai (d. 1897) | Ajodhya parsad (d. 1912)
Adopted son Chandanlal (d. 31-1-1940) == Window Mst.
Annapurnabai (defandant
2) Ramasahai (d.1897) | Janki parsad (d. 1923) |
2) Ramasahai (d.1897) | Janki parsad (d. 1923) |
———————————————————————-
| | |
Ramprasad daughter Ganga prasad
(defendant 1) Saroobai (defandant 5)
==
Lala Sunderlal
Ramasahai
(d. 1897)
|
Govind prasad
(d. 1923)
adopted son Kisanlal
(defendant 8)
Ramasahai
(d. 1897)
|
Ratanlal
(d. 1926)
|
——————————————————————————
| | |
Laxminarayan Chandanlal Kisanlal
(plaintiff) (adopted to Ajodhya prasad) (adopted to Govind prasad)
|
Ramasahai
(d. 1897)
|
Mangal prasad
(d. 1914)
|
Ghasiram
(d. 1917)
Ramasahai
(d. 1897)
|
Sarjoo prasad
(d. 1903)
|
adopted son Tulsiram
(defendant 3)
Ramasahai
(d. 1897)
|
Ramchand
(d. 5-10-1950)
|
————————————————————————–
| | | |
Tulsiram Sheonarayan Harnarayan Kamal Narayan
(adopted to (defendant
6) (defendant 7) (d. 1924) Sarjoo prasad Ramasahai (d. 1897) |
6) (defendant 7) (d. 1924) Sarjoo prasad Ramasahai (d. 1897) |
Daughter Tarabai
== Lala Chhotelal During the life time of Ramasahai,
== Lala Chhotelal During the life time of Ramasahai,
he and his eight sons and
one cousin, namely, Sitaram, constituted a joint Hindu family with Ramasahai as
its managers The joint family carried on its ancestral family business of
excise contracts in several districts in the former C. P. & Berar
provinces. On January 24, 1897, Ramasahai died and, at the time of his death,
the family, though heavily indebted, had extensive properties distributed at
various places like Nagpur, Kamptee Rajnandgaon, Raipur, Jabalpur etc.
Sarjooprasad died in 1903, Ajodhya prasad in 1912, Mangalprasad in 1914,
Jankiprasad in 1923, Ratanlal in 1926, Ganeshprasad in 1928, Govindprasad in
1934, and Ramchand in 1940. On February 27, 1915, Ganeshprasad, Jankiprasad,
Govindprasad, Ratanlal and Ramchand, the surviving brothers executed a
registered deed of relinquishment in favour of Jankiprasad. In that document it
was recited that the brothers had become separated on January 24, 1898, by a
deed of relinquishment of that date and that, as the said document was not
registered, they were executing a fresh one confirming the earlier arrangement.
one cousin, namely, Sitaram, constituted a joint Hindu family with Ramasahai as
its managers The joint family carried on its ancestral family business of
excise contracts in several districts in the former C. P. & Berar
provinces. On January 24, 1897, Ramasahai died and, at the time of his death,
the family, though heavily indebted, had extensive properties distributed at
various places like Nagpur, Kamptee Rajnandgaon, Raipur, Jabalpur etc.
Sarjooprasad died in 1903, Ajodhya prasad in 1912, Mangalprasad in 1914,
Jankiprasad in 1923, Ratanlal in 1926, Ganeshprasad in 1928, Govindprasad in
1934, and Ramchand in 1940. On February 27, 1915, Ganeshprasad, Jankiprasad,
Govindprasad, Ratanlal and Ramchand, the surviving brothers executed a
registered deed of relinquishment in favour of Jankiprasad. In that document it
was recited that the brothers had become separated on January 24, 1898, by a
deed of relinquishment of that date and that, as the said document was not
registered, they were executing a fresh one confirming the earlier arrangement.
On February 17, 1916, Govindprasad executed a trust deed in favour of his
nephew, Chandanlal, the son of his deceased brother Ajodhyaprasad, and his
niece, Rukhmabai, the daughter of his brother Ganeshprasad, both of whom were
minors at that time. In that deed Govindprasad, after asserting that he had
become divided from his brothers under the aforesaid two deeds of
relinquishment, created a trust in a sum of Rs. 15,000 for the benefit of the
said minors, handed over the said money to the trustees appointed thereunder
and. directed them to construct a building or buy a land and pay the net income
from the said property in equal shares to the two minor beneficiaries. With a
part of that amount a site was purchased in Cotton Market, Nagpur, and between
the years 1916 and 1921 a building was constructed thereon.
nephew, Chandanlal, the son of his deceased brother Ajodhyaprasad, and his
niece, Rukhmabai, the daughter of his brother Ganeshprasad, both of whom were
minors at that time. In that deed Govindprasad, after asserting that he had
become divided from his brothers under the aforesaid two deeds of
relinquishment, created a trust in a sum of Rs. 15,000 for the benefit of the
said minors, handed over the said money to the trustees appointed thereunder
and. directed them to construct a building or buy a land and pay the net income
from the said property in equal shares to the two minor beneficiaries. With a
part of that amount a site was purchased in Cotton Market, Nagpur, and between
the years 1916 and 1921 a building was constructed thereon.
On or about October
25, 1929, Rukhmabai filed a suit against Chandanlal for partition of the said
property and obtained a decree against him on January 5, 1934, for partition
and mesne profits. Chandanlal filed an appeal against that decree and it was
dismissed. After the said decree, Chandanlal died on January 31, 1940. When the
Commissioner appointed by the Court went to the building to effect the
partition by metes and bounds, the respondent, who was in the house, obstructed
the Commissioner, and thereafter on October 8, 1940, filed a suit, out of which
the present appeal arises, for a declaration that the said trust deed executed
by Govindprasad in favour of the appellant and Chandanlal was a sham document.
The respondents’ case, inter alia is that the first relinquishment deed was
brought into existence some- time before the second registered relinquishment
deed was executed and that the said deeds and the trust deed were parts of a
same scheme of fraud conceived by the members of the family to defraud the
creditors.
25, 1929, Rukhmabai filed a suit against Chandanlal for partition of the said
property and obtained a decree against him on January 5, 1934, for partition
and mesne profits. Chandanlal filed an appeal against that decree and it was
dismissed. After the said decree, Chandanlal died on January 31, 1940. When the
Commissioner appointed by the Court went to the building to effect the
partition by metes and bounds, the respondent, who was in the house, obstructed
the Commissioner, and thereafter on October 8, 1940, filed a suit, out of which
the present appeal arises, for a declaration that the said trust deed executed
by Govindprasad in favour of the appellant and Chandanlal was a sham document.
The respondents’ case, inter alia is that the first relinquishment deed was
brought into existence some- time before the second registered relinquishment
deed was executed and that the said deeds and the trust deed were parts of a
same scheme of fraud conceived by the members of the family to defraud the
creditors.
The appellant, on the other hand, alleges that Govind-prasad had
really separated himself from the other members of the family, that he had his
own businesses, that from out of his self-acquisitions he created the trust
deed to benefit his minor nephew and niece for whom he had great love and
affection, and that subsequently the trustees purchased a land and built the
house thereon with additional funds supplied by him. She also alleges that the
first respondent, after having set up by his natural brother, Chandanlal, to to
resist her claim to the building and having failed in that attempt, started the
present litigation to deprive her of the fruits of her decree.
really separated himself from the other members of the family, that he had his
own businesses, that from out of his self-acquisitions he created the trust
deed to benefit his minor nephew and niece for whom he had great love and
affection, and that subsequently the trustees purchased a land and built the
house thereon with additional funds supplied by him. She also alleges that the
first respondent, after having set up by his natural brother, Chandanlal, to to
resist her claim to the building and having failed in that attempt, started the
present litigation to deprive her of the fruits of her decree.
On the pleadings the
learned District Judge framed as many as 12 issues. He held, on a consideration
of the documents and oral evidence adduced, that Govindprasad became divided
from the members of the joint family in 1898, that thereafter he was carrying
on the business of moneylending, was dealing in gold and silver, and also was
taking liquor contracts, that out of his self-acquisitions he created the trust
in respect of Rs. 15,000, and that the land was purchased and the suit building
was put up with the trust amount and additional amounts given by him.
learned District Judge framed as many as 12 issues. He held, on a consideration
of the documents and oral evidence adduced, that Govindprasad became divided
from the members of the joint family in 1898, that thereafter he was carrying
on the business of moneylending, was dealing in gold and silver, and also was
taking liquor contracts, that out of his self-acquisitions he created the trust
in respect of Rs. 15,000, and that the land was purchased and the suit building
was put up with the trust amount and additional amounts given by him.
On those
findings, the suit was dismissed. The respondent No. 1, (hereinafter called the
respondent), preferred an appeal against that decree to the High Court at
Nagpur. The High Court held that the two relinquishment deeds were sham
documents brought into ‘existence to shield the liquid assets of the family,
which were for that purpose placed in the hands of Govindprasad, that the trust
deed was also a sham one designed to achieve the same purpose and that the
house was also constructed with the aid of the family funds. For the first time
before the High Court the appellant raised a plea of limitation. The learned
Judges of the High Court held that the suit was within time under Art. 120 of
the Limitation Act.
findings, the suit was dismissed. The respondent No. 1, (hereinafter called the
respondent), preferred an appeal against that decree to the High Court at
Nagpur. The High Court held that the two relinquishment deeds were sham
documents brought into ‘existence to shield the liquid assets of the family,
which were for that purpose placed in the hands of Govindprasad, that the trust
deed was also a sham one designed to achieve the same purpose and that the
house was also constructed with the aid of the family funds. For the first time
before the High Court the appellant raised a plea of limitation. The learned
Judges of the High Court held that the suit was within time under Art. 120 of
the Limitation Act.
It was also for the first time contended that the
respondent should be non-suited as he failed to claim a further relief within
the meaning of the proviso to sub-s. (1) of s. 42 of the Specific Relief Act.
The High Court negatived the said contentions. It is not necessary to notice
the other points raised before the High Court as they are not pressed before
us. In the result the decree of the District Judge was set aside and the
respondent’s suit was decreed. Hence this appeal. The main point that arises
for consideration is whether the plaint-schedule house is the property of the
joint family or whether it was built out of the self-acquisitions of
Govindprasad in respect whereof he executed the trust deed. At the outset the
relevant and well-settled principles of Hindu Law may be briefly noticed.
respondent should be non-suited as he failed to claim a further relief within
the meaning of the proviso to sub-s. (1) of s. 42 of the Specific Relief Act.
The High Court negatived the said contentions. It is not necessary to notice
the other points raised before the High Court as they are not pressed before
us. In the result the decree of the District Judge was set aside and the
respondent’s suit was decreed. Hence this appeal. The main point that arises
for consideration is whether the plaint-schedule house is the property of the
joint family or whether it was built out of the self-acquisitions of
Govindprasad in respect whereof he executed the trust deed. At the outset the
relevant and well-settled principles of Hindu Law may be briefly noticed.
There is a presumption
in Hindu Law that a family is joint. There can be a division in status among
the members of a joint Hindu family by refinement of shares which is
technically called “division in status”, or an actual division among
them by allotment of specific property to each one of them which is described
as “division by metes and bounds”. A member need. not receive any
share in the joint estate but may renounce his interest therein, his
renunciation merely extinguishes his interest in the estate but does not affect
the status of the remaining members vis- a-vis the family property, A division
in status can be effected by an unambiguous declaration to become divided from
the others and that intention can be expressed by any process.
in Hindu Law that a family is joint. There can be a division in status among
the members of a joint Hindu family by refinement of shares which is
technically called “division in status”, or an actual division among
them by allotment of specific property to each one of them which is described
as “division by metes and bounds”. A member need. not receive any
share in the joint estate but may renounce his interest therein, his
renunciation merely extinguishes his interest in the estate but does not affect
the status of the remaining members vis- a-vis the family property, A division
in status can be effected by an unambiguous declaration to become divided from
the others and that intention can be expressed by any process.
Though
primafacie a document clearly expressing the intention to divide brings about a
division in status, it is open to a party to prove that the said document was a
sham or a nominal one not intended to be acted upon but was conceived and
executed for an ulterior purpose. But there is no presumption that any
property, whether movable or immovable, held by a member of, a joint Hindu
family, is joint family property. The burden lies upon the person who asserts
that a particular property is joint family property. to establish that fact.
But if he proves that there was sufficient joint family nucleus from and out of
which the said property could have been acquired, the burden shifts to the
member of the family setting up the claim that it is his personal property to
establish that the said property has been acquired without any assistance from
the joint family property.
primafacie a document clearly expressing the intention to divide brings about a
division in status, it is open to a party to prove that the said document was a
sham or a nominal one not intended to be acted upon but was conceived and
executed for an ulterior purpose. But there is no presumption that any
property, whether movable or immovable, held by a member of, a joint Hindu
family, is joint family property. The burden lies upon the person who asserts
that a particular property is joint family property. to establish that fact.
But if he proves that there was sufficient joint family nucleus from and out of
which the said property could have been acquired, the burden shifts to the
member of the family setting up the claim that it is his personal property to
establish that the said property has been acquired without any assistance from
the joint family property.
Bearing the aforesaid
principles in view, we shall now proceed to consider the main issue in the
appeal. The appellant naturally relies upon the document of 1898, in support of
her case that Govindprasad renounced his interest in the joint family property
in the year 1898. That document is Ex. D. 54-A, dated January 24, 1898, and is
described as ” farkatnama “. The seven brothers, Ganeshprasad,
Ajodhyaprasad, Jankiprasad, Ratanlal, Mangalprasad, Sarjooprasad and Ramchand,
executed the said relinquishment deed in favour of Govindprasad. It is stated
therein as follows:
principles in view, we shall now proceed to consider the main issue in the
appeal. The appellant naturally relies upon the document of 1898, in support of
her case that Govindprasad renounced his interest in the joint family property
in the year 1898. That document is Ex. D. 54-A, dated January 24, 1898, and is
described as ” farkatnama “. The seven brothers, Ganeshprasad,
Ajodhyaprasad, Jankiprasad, Ratanlal, Mangalprasad, Sarjooprasad and Ramchand,
executed the said relinquishment deed in favour of Govindprasad. It is stated
therein as follows:
” … we are not
pulling together well in affairs and you and we are not on good terms in family
treatment. III-will between you and us all brothers is consequently growing
more and more from day to-day. Similarly, as (our) father himself involved all
ancestral property into debt and the remaining movables were partitioned by all
at that very time, no movable and immovable ancestral property has now
remained. Consequently, we all have to undergo trouble and sustain., loss in
our business.
pulling together well in affairs and you and we are not on good terms in family
treatment. III-will between you and us all brothers is consequently growing
more and more from day to-day. Similarly, as (our) father himself involved all
ancestral property into debt and the remaining movables were partitioned by all
at that very time, no movable and immovable ancestral property has now
remained. Consequently, we all have to undergo trouble and sustain., loss in
our business.
We, therefore, execute
this pharkhatnama (deed of relinquishment) and hereby declare as follows: Each
brother should from this day enjoy his own self- acquired property and that he
may acquire with his personal exertions-articles, grain, cash, movable and
immovable property, so on and so forth. One has no connection with another, of
family relation in property, transactions … (torn), dealings and the like, of
others. Each should enjoy his benefit and sustain his loss … (torn) unless
(we) give voluntarily (some ‘property) to your children and (you) give
voluntarily (some property) to our children, (they) shall have no manner of right
against each other “.” This document purports to have been signed by
the seven brothers. If this deed is not a sham document, it clearly brings
about a division of status between all the members of the family.
this pharkhatnama (deed of relinquishment) and hereby declare as follows: Each
brother should from this day enjoy his own self- acquired property and that he
may acquire with his personal exertions-articles, grain, cash, movable and
immovable property, so on and so forth. One has no connection with another, of
family relation in property, transactions … (torn), dealings and the like, of
others. Each should enjoy his benefit and sustain his loss … (torn) unless
(we) give voluntarily (some ‘property) to your children and (you) give
voluntarily (some property) to our children, (they) shall have no manner of right
against each other “.” This document purports to have been signed by
the seven brothers. If this deed is not a sham document, it clearly brings
about a division of status between all the members of the family.
It also
proves that movables were divided between the brothers at the time of the death
of their father, and -that the joint family property, presumably because it was
heavily involved in debts, was not divided in metes and bounds. Exfacie it does
not support the appellant’s version that Govindprasad alone separated from the
joint family taking his share of movable properties at the time of his father’s
death and relinquishing his interest in all the immovable properties of the
family. The first respondent attacks this document mainly on the ground that
this was a sham one brought into existence after the year 1912 as a part of a
scheme to defraud the creditors. The first circumstance relied upon is that
this document, though it purports to bring about a division in status among the
members of the family and, according to the appellant, amounts to a
relinquishment of Govindprasad’s interest in the extensive joint family
property, was not registered. Doubtless an unregistered document can affect
separation in status; but Ramasahai and his sons were carrying on extensive
businesses, purchased properties in different places and in the course of their
business they were executing registered mortgage deeds.
proves that movables were divided between the brothers at the time of the death
of their father, and -that the joint family property, presumably because it was
heavily involved in debts, was not divided in metes and bounds. Exfacie it does
not support the appellant’s version that Govindprasad alone separated from the
joint family taking his share of movable properties at the time of his father’s
death and relinquishing his interest in all the immovable properties of the
family. The first respondent attacks this document mainly on the ground that
this was a sham one brought into existence after the year 1912 as a part of a
scheme to defraud the creditors. The first circumstance relied upon is that
this document, though it purports to bring about a division in status among the
members of the family and, according to the appellant, amounts to a
relinquishment of Govindprasad’s interest in the extensive joint family
property, was not registered. Doubtless an unregistered document can affect
separation in status; but Ramasahai and his sons were carrying on extensive
businesses, purchased properties in different places and in the course of their
business they were executing registered mortgage deeds.
The ostensible purpose
of the execution of the document is alleged to be the intention of Govindprasad
to free himself from the family troubles caused by its involvement in heavy
debts and to eke out his livelihood by carrying on a new business of his own.
It is not likely that he would not have insisted upon a registered document to
achieve that purpose. There is therefore Some justification for this comment.
Secondly, if there was a partition of the movable properties either at the time
of the execution of the document or even earlier-a rich family like that of
Raniasabai must have had large extent of movables-the details of that partition
should have found a place in the document. The absence of such details is
indicative of the fact that the document was not really intended to be a formal
document effecting a division between the parties.
of the execution of the document is alleged to be the intention of Govindprasad
to free himself from the family troubles caused by its involvement in heavy
debts and to eke out his livelihood by carrying on a new business of his own.
It is not likely that he would not have insisted upon a registered document to
achieve that purpose. There is therefore Some justification for this comment.
Secondly, if there was a partition of the movable properties either at the time
of the execution of the document or even earlier-a rich family like that of
Raniasabai must have had large extent of movables-the details of that partition
should have found a place in the document. The absence of such details is
indicative of the fact that the document was not really intended to be a formal
document effecting a division between the parties.
This document did not
see the light of day till the year 1915, when Govindprasad, for the first time,
made a reference to it in Ex. D. 32, a registered relinquishment deed executed
by him. On September 7, 1912, Govindprasad executed a Will, Ex. P. 1,
bequeathing some properties described by him as his self-acquisitions. In that
Will he stated thus:
see the light of day till the year 1915, when Govindprasad, for the first time,
made a reference to it in Ex. D. 32, a registered relinquishment deed executed
by him. On September 7, 1912, Govindprasad executed a Will, Ex. P. 1,
bequeathing some properties described by him as his self-acquisitions. In that
Will he stated thus:
This property shown
above is all my acquisition, and the ancestral property is not included in this
or received by me. I too have not retained my right over the ancestral property.
above is all my acquisition, and the ancestral property is not included in this
or received by me. I too have not retained my right over the ancestral property.
“My father expired
on 27-1-1897 A.D. From that time without taking any share in my father’s
property, I have acquired this property by solely doing business; business of
relations are not included in this nor have I joined in their business. Hence, nobody
has any right to this. ” If really there was in existence on that date a
written relinquishment deed, Ex. D. 54, it is not likely that Govindprasad
would not have mentioned that fact in the formal document he executed
bequeathing his property. In contrast with this recital, in the Will Ex. P. 2,
executed by him on May 1, 1919, the following recital is found: “… I
have taken no share at all in the movable and immovable property left by him,
and all the property in my possession on my earning it. is acquired by me, and
consequently, my brothers, Lala Ganeshprasad, Jankiprasad Ratanlal, Ramchandra
and -all other brothers had executed a pharkath-nama (deed of relinquishment)
in my favour on 24-1-1898 A.D. . . . ” What could be the reason for Govindprasad
not referring to the deed of relinquishment of the year 1898 in his Will of
1912, but thought fit to do so in his Will of 1919 ? The only possible
explanation is that in between these two documents, another relinquishment
deed, Ex. D. 32, executed by him on February 27, 1915, came into existence. We
will have to say more about this document at a later stage of our judgment.
This document, for the first time, affirms the recitals of the earlier alleged
relinquishment deed of 1898 and is also registered. It is therefore a
permissible inference that Ex. D. 54 might not have been in existence before
Ex. D. 32 was executed or, at any rate, before Ex. P. I was executed by
Govindprasad.
on 27-1-1897 A.D. From that time without taking any share in my father’s
property, I have acquired this property by solely doing business; business of
relations are not included in this nor have I joined in their business. Hence, nobody
has any right to this. ” If really there was in existence on that date a
written relinquishment deed, Ex. D. 54, it is not likely that Govindprasad
would not have mentioned that fact in the formal document he executed
bequeathing his property. In contrast with this recital, in the Will Ex. P. 2,
executed by him on May 1, 1919, the following recital is found: “… I
have taken no share at all in the movable and immovable property left by him,
and all the property in my possession on my earning it. is acquired by me, and
consequently, my brothers, Lala Ganeshprasad, Jankiprasad Ratanlal, Ramchandra
and -all other brothers had executed a pharkath-nama (deed of relinquishment)
in my favour on 24-1-1898 A.D. . . . ” What could be the reason for Govindprasad
not referring to the deed of relinquishment of the year 1898 in his Will of
1912, but thought fit to do so in his Will of 1919 ? The only possible
explanation is that in between these two documents, another relinquishment
deed, Ex. D. 32, executed by him on February 27, 1915, came into existence. We
will have to say more about this document at a later stage of our judgment.
This document, for the first time, affirms the recitals of the earlier alleged
relinquishment deed of 1898 and is also registered. It is therefore a
permissible inference that Ex. D. 54 might not have been in existence before
Ex. D. 32 was executed or, at any rate, before Ex. P. I was executed by
Govindprasad.
Reliance is also placed
by the respondent on the alleged discrepancies between the particulars of
partition given in Ex. D-54 and Ex. D-32. But we do not find much force in this
contention, as the argument cuts both ways. If Ex. D- 54 was forged to support
Ex. D-32, there could not have been any room for introducing discrepancies between
the two documents. We find no such irreconcilable discrepancies between the two
documents and in substance the recitals are similar.
by the respondent on the alleged discrepancies between the particulars of
partition given in Ex. D-54 and Ex. D-32. But we do not find much force in this
contention, as the argument cuts both ways. If Ex. D- 54 was forged to support
Ex. D-32, there could not have been any room for introducing discrepancies between
the two documents. We find no such irreconcilable discrepancies between the two
documents and in substance the recitals are similar.
The respondent attacks
the genuineness of Ex. D-54 by attempting to establish that the signatures of
Ajodhyaprasad and Mangalprasad were forged after their death. If this was
proved, this document might have come into existence only after 1914, i.e.,
after Mangalprasad had passed away. On the other hand, if Mangalprasad’s
signature was genuine, but Ajodhyaprasad’s signature was a forged one, this
document could have come into existence after 1912 but before 1914. The learned
District Judge, disposed of this contention with the following remarks:
the genuineness of Ex. D-54 by attempting to establish that the signatures of
Ajodhyaprasad and Mangalprasad were forged after their death. If this was
proved, this document might have come into existence only after 1914, i.e.,
after Mangalprasad had passed away. On the other hand, if Mangalprasad’s
signature was genuine, but Ajodhyaprasad’s signature was a forged one, this
document could have come into existence after 1912 but before 1914. The learned
District Judge, disposed of this contention with the following remarks:
” The expert
examined the admitted signatures on document executed in the years 1903 and
1904 while the disputed document was executed in the year 1898. The opinion of
the expert does not carry conviction and is not corroborated by circumstances.
The farkatnama was found to be genuine in the previous litigation.”
examined the admitted signatures on document executed in the years 1903 and
1904 while the disputed document was executed in the year 1898. The opinion of
the expert does not carry conviction and is not corroborated by circumstances.
The farkatnama was found to be genuine in the previous litigation.”
It may be noticed that
the learned District Judge did not scrutinize the signatures with the help of
the expert’s evidence, and has not expressed any considered view thereon. But
the High Court bestowed greater care on this aspect of the case, as it should,
for, if this document was a forgery., it would go a long way to support the
respondent’s version. The learned Judges of the High Court considered the
evidence of the expert, scrutinized the impugned signature of Ajodhyaprasad,
compared it with his admitted signatures and agreed with the expert in holding
that the disputed signature was not that of Ajodhyaprasad. So far as
Mangalprasad’s signature was concerned, the learned Judges were not able, on
the evidence adduced, to hold that it was not his signature. The expert was
examined as P.W. 3.
the learned District Judge did not scrutinize the signatures with the help of
the expert’s evidence, and has not expressed any considered view thereon. But
the High Court bestowed greater care on this aspect of the case, as it should,
for, if this document was a forgery., it would go a long way to support the
respondent’s version. The learned Judges of the High Court considered the
evidence of the expert, scrutinized the impugned signature of Ajodhyaprasad,
compared it with his admitted signatures and agreed with the expert in holding
that the disputed signature was not that of Ajodhyaprasad. So far as
Mangalprasad’s signature was concerned, the learned Judges were not able, on
the evidence adduced, to hold that it was not his signature. The expert was
examined as P.W. 3.
He is practising as handwriting and finger-print expert in
Nagpur since 1937, and he also keeps a branch office in Bombay. He has examined
the impugned signature of Ajodhyaprasad with the latter’s admitted signatures found
in the mortgage deeds, Exs. P-7 dated March 10, 1898, P-66 dated November 2,
1902, and P-6 dated June 25, 1904. He has examined the disputed signatures
synthetically and analytically and found differences in the pictorial aspect of
the admitted signatures and the disputed signature in that that the admitted
signatures are fluently scribed with no hesitation and with a flourish, whereas
both the fluency and flourish are lacking in the disputed signature. Examining
the signatures analytically, he gives the following differences between the
impugned signature and the admitted signatures:
Nagpur since 1937, and he also keeps a branch office in Bombay. He has examined
the impugned signature of Ajodhyaprasad with the latter’s admitted signatures found
in the mortgage deeds, Exs. P-7 dated March 10, 1898, P-66 dated November 2,
1902, and P-6 dated June 25, 1904. He has examined the disputed signatures
synthetically and analytically and found differences in the pictorial aspect of
the admitted signatures and the disputed signature in that that the admitted
signatures are fluently scribed with no hesitation and with a flourish, whereas
both the fluency and flourish are lacking in the disputed signature. Examining
the signatures analytically, he gives the following differences between the
impugned signature and the admitted signatures:
(i) in the disputed
signature the down strokes end bluntly, whereas in the admitted signatures,
they end in’& flourishing manner with ticks to the right; (ii) in the disputed
signature, the down strokes have a tendency to curve in the centre quite
differently from the down strokes in the admitted signatures; (iii) in the
disputed signature there are dots after the letter “dha” in
“dhasthur” instead of the usual dashes found in the admitted
signatures; (iv) in the admitted signature in spelling the name ”
Ajodhyaprasad ” the letters ” Joo ” have been used, whereas in
the disputed signatures, the letters ‘Jo ” have been used; (v) in the
disputed signature there is uneven pen-pressure which is not found in the
admitted signatures; (vi) there are over-writings in the disputed signature;
and (vii) there is a marked difference in the formation of letters between
those found in the admitted signatures and those found in the disputed
signature.
signature the down strokes end bluntly, whereas in the admitted signatures,
they end in’& flourishing manner with ticks to the right; (ii) in the disputed
signature, the down strokes have a tendency to curve in the centre quite
differently from the down strokes in the admitted signatures; (iii) in the
disputed signature there are dots after the letter “dha” in
“dhasthur” instead of the usual dashes found in the admitted
signatures; (iv) in the admitted signature in spelling the name ”
Ajodhyaprasad ” the letters ” Joo ” have been used, whereas in
the disputed signatures, the letters ‘Jo ” have been used; (v) in the
disputed signature there is uneven pen-pressure which is not found in the
admitted signatures; (vi) there are over-writings in the disputed signature;
and (vii) there is a marked difference in the formation of letters between
those found in the admitted signatures and those found in the disputed
signature.
The credentials of this expert have not been questioned in the
cross-examination. Except suggesting some irrelevant theories, no real attempt
has been made to discredit this witness or demolish his factual observations or
his conclusions. The appellant has not thought fit to examine another expert to
contradict this witness or to prove her case. In the circumstances, we derive
great assistance from the expert’s evidence in our attempt to compare for
ourselves the disputed signature with the admitted signatures. The learned
Judges of the High Court also compared the signatures with the help of a
powerful magnifying glass. Hidayatullah, J., as he then was, gives the results
of his observation thus:
cross-examination. Except suggesting some irrelevant theories, no real attempt
has been made to discredit this witness or demolish his factual observations or
his conclusions. The appellant has not thought fit to examine another expert to
contradict this witness or to prove her case. In the circumstances, we derive
great assistance from the expert’s evidence in our attempt to compare for
ourselves the disputed signature with the admitted signatures. The learned
Judges of the High Court also compared the signatures with the help of a
powerful magnifying glass. Hidayatullah, J., as he then was, gives the results
of his observation thus:
” To begin with
the pictorial aspect differs in many respects and even to a person not versed
in the identification of handwritings they would appear to be dissimilar. The
letter formations are different; the strokes and the little curls at the end of
vertical strokes are all wrong. There is also a spelling change. Whereas the
writer usually wrote ‘ joo’, in the disputed signature this has been changed to
‘Joo’. This detracts somewhat from the force of this argument but the document
Exhibit P-81 is merely a copy of a copy and we were unable to compare the
signatures as such. The fact however remains that barring this solitary
instance, the admitted signatures contain the’ other spelling.”
the pictorial aspect differs in many respects and even to a person not versed
in the identification of handwritings they would appear to be dissimilar. The
letter formations are different; the strokes and the little curls at the end of
vertical strokes are all wrong. There is also a spelling change. Whereas the
writer usually wrote ‘ joo’, in the disputed signature this has been changed to
‘Joo’. This detracts somewhat from the force of this argument but the document
Exhibit P-81 is merely a copy of a copy and we were unable to compare the
signatures as such. The fact however remains that barring this solitary
instance, the admitted signatures contain the’ other spelling.”
Mudholkar, J., agreed
with the observations of Hidayatullah, J. We must also give due weight to the
observations of the learned Judges. We have also compared the impugned
signature with the admitted signatures with the help of the expert’s evidence,
and we are inclined to agree with the view of the expert and the learned Judges
of the High Court. The learned Counsel for the appellant has not been able to
place before us any material to compel us to take a view different from that of
the High Court. We, therefore, agree with the High Court that it has been
established that the impugned signature of Ajodhyaprasad in Ex. D-54 is not
his. This conclusion lends strong support to the respondent’s version that Ex.
D-54 must have been brought into existence at a later stage when Ajodhyaprasad
was no more.
with the observations of Hidayatullah, J. We must also give due weight to the
observations of the learned Judges. We have also compared the impugned
signature with the admitted signatures with the help of the expert’s evidence,
and we are inclined to agree with the view of the expert and the learned Judges
of the High Court. The learned Counsel for the appellant has not been able to
place before us any material to compel us to take a view different from that of
the High Court. We, therefore, agree with the High Court that it has been
established that the impugned signature of Ajodhyaprasad in Ex. D-54 is not
his. This conclusion lends strong support to the respondent’s version that Ex.
D-54 must have been brought into existence at a later stage when Ajodhyaprasad
was no more.
It leads us to the
consideration of Ex-D-32. It is dated February 27, 1915, and purports to be a
relinquishment deed executed by Ganeshprasad, Jankiprasad, Ratanlal and
Ramchaild in favour of Govindprasad. In this document, referring to Ex.D-54 it
is stated that the brothers became separated on that date and that as the
earlier document was not registered, they executed a fresh document and
registered the same. A recital is also made, persumably to explain the conduct
of some of the brothers in living together and having a common mess, that by
such common living they should not be deemed to be united. This document, as we
have already indicated, is attacked on the ground that it was part of a scheme
of fraud and that it was executed only nominally to achieve the purpose of the
said scheme.
consideration of Ex-D-32. It is dated February 27, 1915, and purports to be a
relinquishment deed executed by Ganeshprasad, Jankiprasad, Ratanlal and
Ramchaild in favour of Govindprasad. In this document, referring to Ex.D-54 it
is stated that the brothers became separated on that date and that as the
earlier document was not registered, they executed a fresh document and
registered the same. A recital is also made, persumably to explain the conduct
of some of the brothers in living together and having a common mess, that by
such common living they should not be deemed to be united. This document, as we
have already indicated, is attacked on the ground that it was part of a scheme
of fraud and that it was executed only nominally to achieve the purpose of the
said scheme.
Our finding that the document of January 24, 1898, was
subsequently got up after the death of Ajodhyaprasad undermines to some extent
the reality of the transaction. That apart, we shall further scrutinize with
great care the surrounding circumstances to unravel, if possible, the true
purpose of this document. It is common case that the members of the family had
been executing nominal documents such as mortgage deeds, sale deeds etc. in
favour of family friends to defeat or, at any rate, delay the creditors. Our
attempt, therefore, will be to draw a real picture of the attempted scheme of
fraud and to see whether this document will fit into that picture.
subsequently got up after the death of Ajodhyaprasad undermines to some extent
the reality of the transaction. That apart, we shall further scrutinize with
great care the surrounding circumstances to unravel, if possible, the true
purpose of this document. It is common case that the members of the family had
been executing nominal documents such as mortgage deeds, sale deeds etc. in
favour of family friends to defeat or, at any rate, delay the creditors. Our
attempt, therefore, will be to draw a real picture of the attempted scheme of
fraud and to see whether this document will fit into that picture.
We have already noticed
that at the time of the death of Ramasahai the family was heavily indebted. On
June 12, 1895, Ramasahai, Sitaram, Ganeshprasad and Mangalprasad had executed a
mortgage deed in favour of one Buty. On March 2, 1898, the said Buty filed
Civil Suit No. 5 of 1898 against the members of the joint family for recovery
of the amount due under the mortgage and obtained a decree on June 16, 1900. On
August 25, 1897, Ajodhyaprasad, Ratanlal and Govindprasad executed a mortgage
deed, Ex. P-81 in favour of Baliram Hari Bokhare for a sum of Rs.2,400 alleged
to have been borrowed from him on the said date. This document was executed six
months before Buty filed his suit on his mortgage, Nothing further was heard of
this mortgage. In the circunistances it may be assumed that the mortgage, deed
was only a sham one brought into existence to defraud the creditors.
that at the time of the death of Ramasahai the family was heavily indebted. On
June 12, 1895, Ramasahai, Sitaram, Ganeshprasad and Mangalprasad had executed a
mortgage deed in favour of one Buty. On March 2, 1898, the said Buty filed
Civil Suit No. 5 of 1898 against the members of the joint family for recovery
of the amount due under the mortgage and obtained a decree on June 16, 1900. On
August 25, 1897, Ajodhyaprasad, Ratanlal and Govindprasad executed a mortgage
deed, Ex. P-81 in favour of Baliram Hari Bokhare for a sum of Rs.2,400 alleged
to have been borrowed from him on the said date. This document was executed six
months before Buty filed his suit on his mortgage, Nothing further was heard of
this mortgage. In the circunistances it may be assumed that the mortgage, deed
was only a sham one brought into existence to defraud the creditors.
On March
10, 1898, Ganesh, prasad, Ajodhyaprasad, Jankiprasad and Ratanlal executed a
mortgage deed, Ex. P-7, in favour of one Hemraj for a sum of Rs’ 2,000. Under
this document, properties not covered by Ex. P-81 were mortgaged. There is
nothing on record to show what has happened to this mortgage and whether the
alleged debt was discharged. This also appears to be another sham transaction.
On February t4, 1902, Ganeshprasad executed a mortgage deed, Ex. P-75, in
favour of Sheoprasad: though this document is dated February 14, 1902, the stamp
for the document appears to have been purchased only on April 27,1902. This
document appears to have been ante-dated for some ulterior purpose. On November
2, 1902, six of the Lala brothers, i.e., all except Govindprasad and
Mangalprasad, executed another mortgage deed, Ex. P-66, in favour of Narayanrao
Govindrao Mahajan for a sum of Rs. 9,975 mortgaging thereunder the family
immovable properties. For this mortgage deed a stamp paper purchased on June
25, 1898, was utilised. Again on February 26, 1903, the same executants
executed another mortgage deed, Ex. p-74, in favour of the said Narayanrao
Govindrao Mahajan for a. sum of Rs. 10,000. The stamp for this document was
purchased on August 4, 1902. Both the Exs. P-66 and P-74 were presented for
registration on February 26, 1903 but they were registered on March 4, 1903.
This delay in the registration is presumably for the reason that the Lala
brothers waited till the mortgagee executed an agreement, Ex. P-7, dated March
3, 1903, in their favour.
10, 1898, Ganesh, prasad, Ajodhyaprasad, Jankiprasad and Ratanlal executed a
mortgage deed, Ex. P-7, in favour of one Hemraj for a sum of Rs’ 2,000. Under
this document, properties not covered by Ex. P-81 were mortgaged. There is
nothing on record to show what has happened to this mortgage and whether the
alleged debt was discharged. This also appears to be another sham transaction.
On February t4, 1902, Ganeshprasad executed a mortgage deed, Ex. P-75, in
favour of Sheoprasad: though this document is dated February 14, 1902, the stamp
for the document appears to have been purchased only on April 27,1902. This
document appears to have been ante-dated for some ulterior purpose. On November
2, 1902, six of the Lala brothers, i.e., all except Govindprasad and
Mangalprasad, executed another mortgage deed, Ex. P-66, in favour of Narayanrao
Govindrao Mahajan for a sum of Rs. 9,975 mortgaging thereunder the family
immovable properties. For this mortgage deed a stamp paper purchased on June
25, 1898, was utilised. Again on February 26, 1903, the same executants
executed another mortgage deed, Ex. p-74, in favour of the said Narayanrao
Govindrao Mahajan for a. sum of Rs. 10,000. The stamp for this document was
purchased on August 4, 1902. Both the Exs. P-66 and P-74 were presented for
registration on February 26, 1903 but they were registered on March 4, 1903.
This delay in the registration is presumably for the reason that the Lala
brothers waited till the mortgagee executed an agreement, Ex. P-7, dated March
3, 1903, in their favour.
Under this agreement, the mortgagee admitted that the
said mortgages had been paid up and he also undertook to execute a written
” mortgage deed ” and get the same registered at any time when the
mortgagors paid the full expenses in that regard. This agreement proves beyond
any doubt that the said two mortgages in favour of Narayanrao Govindrao Mahajan
were colourable and sham transactions. On June 25, 1904, five out of the six
executants, Sariooprasad having, died meanwhile, executed a mortgage deed, Ex.
P-6, in favour of Awasarilal for a sum of Rs. 2,000 for payment to Hemraj. It
has already been noticed that there is no evidence on record to show that
Hemraj paid any amount and the record does not disclose any further details in
regard to this mortgage.
said mortgages had been paid up and he also undertook to execute a written
” mortgage deed ” and get the same registered at any time when the
mortgagors paid the full expenses in that regard. This agreement proves beyond
any doubt that the said two mortgages in favour of Narayanrao Govindrao Mahajan
were colourable and sham transactions. On June 25, 1904, five out of the six
executants, Sariooprasad having, died meanwhile, executed a mortgage deed, Ex.
P-6, in favour of Awasarilal for a sum of Rs. 2,000 for payment to Hemraj. It
has already been noticed that there is no evidence on record to show that
Hemraj paid any amount and the record does not disclose any further details in
regard to this mortgage.
On May 26, 1908, Ganeshprasad, Jankiprasad, Ratanlal
and Ramchand executed a mortgage deed, Ex. P-76, in favour of one Kasturchand
Daga for a sum of Rs. 20,000. The document discloses that all the family
properties mortgaged there under were purchased in execution in the name of the
mortgagee with the funds provided by him and that, as the said amount was paid
to him, the property was put in the possession of the mortgagors. It may be
reasonably inferred from this recital that the properties purchased in the name
of the said Daga were mortgaged to him for the amounts advanced by him. This
document also recognized the existence of other mortgage debts due by the
family to Daga. It may be mentioned that there is no dispute that the family
was borrowing moneys from Daga. This document was not execut. ed by
Ajodhyaprasad, but he attested it.
and Ramchand executed a mortgage deed, Ex. P-76, in favour of one Kasturchand
Daga for a sum of Rs. 20,000. The document discloses that all the family
properties mortgaged there under were purchased in execution in the name of the
mortgagee with the funds provided by him and that, as the said amount was paid
to him, the property was put in the possession of the mortgagors. It may be
reasonably inferred from this recital that the properties purchased in the name
of the said Daga were mortgaged to him for the amounts advanced by him. This
document also recognized the existence of other mortgage debts due by the
family to Daga. It may be mentioned that there is no dispute that the family
was borrowing moneys from Daga. This document was not execut. ed by
Ajodhyaprasad, but he attested it.
On July 31, 1914, Ganeshprasad and Ratanlal
executed another mortgage deed, Ex. P-73, in favour of Narayanrao Govindrao
Mahajan for a sum of Rs. 18,925, being the amount alleged to be due by the
family under two registered documents dated February 26, 1903. This mortgage
was engrossed on a stamp paper purchased as early as January 31, 1903, and was
registered on November 23, 1914. Before the registration of this document, the
inortgagors obtained from the mortgagee a deed of agreement, Ex. P-38, dated
October 6, 1914, admitting that the said mortgage was a nominal one. On June
18, 1915, Kasturchand Daga filed Civil Suit No. 1 of 1915 against the Lala
brothers on the basis of the mortgage deed, Ex. P-76. Three days prior to the
filing of this suit i.e., on June 15, 1915, Ganeshprasad, Ratanlal. Jankiprasad
and Ramchand executed the following three sale-deeds: (i) sale-deed, Ex. P-9
dated February 21, 1915 in favour of Baliram Hari Bokhare conveying the family
properties situated at Jubbulpore and Kamptee for a consideration of Rs. 9,500;
(ii) sale-deed dated February 21, 1915, Ex. P-71, executed in favour of the
said Baliram Hari Bokhare for a consideration of Rs. 9,250 in respect of properties
at Raipur and Kamptee: this document was executed on a stamp paper purchased on
August 8, 1910; and (iii) sale-deed dated June 11, 1915, Ex. P-70, in favour of
Narayanrao Govindrao Mahajan for a consideration of Rs. 10,000 conveying some
property at Kamptee.
executed another mortgage deed, Ex. P-73, in favour of Narayanrao Govindrao
Mahajan for a sum of Rs. 18,925, being the amount alleged to be due by the
family under two registered documents dated February 26, 1903. This mortgage
was engrossed on a stamp paper purchased as early as January 31, 1903, and was
registered on November 23, 1914. Before the registration of this document, the
inortgagors obtained from the mortgagee a deed of agreement, Ex. P-38, dated
October 6, 1914, admitting that the said mortgage was a nominal one. On June
18, 1915, Kasturchand Daga filed Civil Suit No. 1 of 1915 against the Lala
brothers on the basis of the mortgage deed, Ex. P-76. Three days prior to the
filing of this suit i.e., on June 15, 1915, Ganeshprasad, Ratanlal. Jankiprasad
and Ramchand executed the following three sale-deeds: (i) sale-deed, Ex. P-9
dated February 21, 1915 in favour of Baliram Hari Bokhare conveying the family
properties situated at Jubbulpore and Kamptee for a consideration of Rs. 9,500;
(ii) sale-deed dated February 21, 1915, Ex. P-71, executed in favour of the
said Baliram Hari Bokhare for a consideration of Rs. 9,250 in respect of properties
at Raipur and Kamptee: this document was executed on a stamp paper purchased on
August 8, 1910; and (iii) sale-deed dated June 11, 1915, Ex. P-70, in favour of
Narayanrao Govindrao Mahajan for a consideration of Rs. 10,000 conveying some
property at Kamptee.
The said three documents were registered on June 15, 1915,
though they were all purported to have been executed on different dates. On
June 20, 1915, Narayanrao Govindrao Mahajan executed three documents, Exs.
P-10, P-35 and P-36. Ex. P-10 is an agreement executed by Naravanrao Govindrao
Mahajan in favour of the Lala brothers, whereunder Narayanrao Govindrao Mahajan
agreed to reconvey the property conveyed to him. Ex. P-35 is a receipt given by
Narayanrao Govindrao Mahajan to Lala brothers, wherein it is mentioned that it
was agreed between them at the time of the execution of the sale-deed that
whenever the Lala brothers paid Narayanrao Govindrao Mahajan the, amount of the
sale-deed and interest thereon, the latter would return the said property and
would execute a deed of reconveyance and that, as they have paid him a total
amount of Rs. 11,200, he would execute the reconveyance in their favour. Ex. P
36 of the same date is a Will executed by the said Narayanrao Govindrao Mahajan
directing his heirs to convey the property to the Lala brothers in case he died
without executing the said document. It is not disputed that the grand-son of
Narayanrao Govindrao Mahajan did execute a sale deed in favour of two members
of the Lala brother’s family and the same was given to Kasturchand Daga in
discharge of his debt. The learned District Judge, and, on appeal, the High
Court held that the said saledeeds were nominal transactions and the appellant
did not, and could not, question the correctness of the facts found by them.
though they were all purported to have been executed on different dates. On
June 20, 1915, Narayanrao Govindrao Mahajan executed three documents, Exs.
P-10, P-35 and P-36. Ex. P-10 is an agreement executed by Naravanrao Govindrao
Mahajan in favour of the Lala brothers, whereunder Narayanrao Govindrao Mahajan
agreed to reconvey the property conveyed to him. Ex. P-35 is a receipt given by
Narayanrao Govindrao Mahajan to Lala brothers, wherein it is mentioned that it
was agreed between them at the time of the execution of the sale-deed that
whenever the Lala brothers paid Narayanrao Govindrao Mahajan the, amount of the
sale-deed and interest thereon, the latter would return the said property and
would execute a deed of reconveyance and that, as they have paid him a total
amount of Rs. 11,200, he would execute the reconveyance in their favour. Ex. P
36 of the same date is a Will executed by the said Narayanrao Govindrao Mahajan
directing his heirs to convey the property to the Lala brothers in case he died
without executing the said document. It is not disputed that the grand-son of
Narayanrao Govindrao Mahajan did execute a sale deed in favour of two members
of the Lala brother’s family and the same was given to Kasturchand Daga in
discharge of his debt. The learned District Judge, and, on appeal, the High
Court held that the said saledeeds were nominal transactions and the appellant
did not, and could not, question the correctness of the facts found by them.
The two sale-deeds
executed in favour of Baliram Hari Bokhare for a total sum of Rs. 19,425,
alleged to be the amount due under earlier mortgages executed in his favour are
also colourable transactions; for, on July 1, 1915, Baliram Hari Bokhare
executed Exs. P-11, P-33 and P- 34-under Ex. P-11 he agreed to reconvey the
properties covered by the sale deeds if the said amount was paid to him;. Ex.
P-33 is a receipt given by Baliram Hari Bokhare to the Lala brothers
acknowledging the receipt of the said amount and there is a recital in the
document that he would reconvey the said property to the Lala brothers; and Ex.
P- 34 is a Will executed by Baliram Hari Bokhare directing his heirs to
transfer the said property to the Lala brothers in case lie died before
transferring the same to the said brothers. It is, therefore, seen that the
same pattern was followed by the Lala brothers in the case of the two sale-
deeds executed by them in favour of Baliram Hari Bokhare. It is said that the
three sale-deeds exhausted the family’s unencumbered immovable properties and
there can hardly be any doubt that the three documents were executed to prevent
the decree-holder in Civil Suit No. 1 of 1915, from proceeding against them
after exhausting the mortgage properties. Both the District Judge and the High
Court held that these documents were collusive; and, on the facts noticed,
their finding is correct.
executed in favour of Baliram Hari Bokhare for a total sum of Rs. 19,425,
alleged to be the amount due under earlier mortgages executed in his favour are
also colourable transactions; for, on July 1, 1915, Baliram Hari Bokhare
executed Exs. P-11, P-33 and P- 34-under Ex. P-11 he agreed to reconvey the
properties covered by the sale deeds if the said amount was paid to him;. Ex.
P-33 is a receipt given by Baliram Hari Bokhare to the Lala brothers
acknowledging the receipt of the said amount and there is a recital in the
document that he would reconvey the said property to the Lala brothers; and Ex.
P- 34 is a Will executed by Baliram Hari Bokhare directing his heirs to
transfer the said property to the Lala brothers in case lie died before
transferring the same to the said brothers. It is, therefore, seen that the
same pattern was followed by the Lala brothers in the case of the two sale-
deeds executed by them in favour of Baliram Hari Bokhare. It is said that the
three sale-deeds exhausted the family’s unencumbered immovable properties and
there can hardly be any doubt that the three documents were executed to prevent
the decree-holder in Civil Suit No. 1 of 1915, from proceeding against them
after exhausting the mortgage properties. Both the District Judge and the High
Court held that these documents were collusive; and, on the facts noticed,
their finding is correct.
The contesting
respondent’s case is that the farkatnama of February 27, 1915, was also
executed as part of the said scheme to preserve the cash and the movables of
the family for itself. The nominal sale-deeds executed in favour of Narayanrao
Govindrao Mahajan and Baliram Hari Bokhare might be used to screen the family’s
immovable properties from being proceeded against in execution of the decree
obtained against them, but could not prevent the decree-holder from proceeding
against the family’s movables and cash. It is said that the said farkatnama was
intended to plug this loophole in the scheme of fraud. This document also was
registered on the date when the other documents were registered. There is no
acceptable reason why this document should have been executed and registered on
the same date when admittedly colourable documents were executed by the family,
if it was not intended to support the same design.
respondent’s case is that the farkatnama of February 27, 1915, was also
executed as part of the said scheme to preserve the cash and the movables of
the family for itself. The nominal sale-deeds executed in favour of Narayanrao
Govindrao Mahajan and Baliram Hari Bokhare might be used to screen the family’s
immovable properties from being proceeded against in execution of the decree
obtained against them, but could not prevent the decree-holder from proceeding
against the family’s movables and cash. It is said that the said farkatnama was
intended to plug this loophole in the scheme of fraud. This document also was
registered on the date when the other documents were registered. There is no
acceptable reason why this document should have been executed and registered on
the same date when admittedly colourable documents were executed by the family,
if it was not intended to support the same design.
The appellant suggests that
the coincidence in dates was not decisive of the question raised; for, it might
well have been that Govindprasad realising the danger which prompted his
brothers to resort to fraudulent transactions insisted upon them to reaffirm
the earlier transaction to avert the same danger to his self-acquisitions. This
may be a plausible contention, but in the context of the then existing
circumstances it does not appeal to us. The creditors’ possible threat to
proceed against Govindprasad’s alleged self-acquisitions on the ground that
they were part of the joint family property had always been there. What had
happened was that instead of Buty, Daga become the creditor.
the coincidence in dates was not decisive of the question raised; for, it might
well have been that Govindprasad realising the danger which prompted his
brothers to resort to fraudulent transactions insisted upon them to reaffirm
the earlier transaction to avert the same danger to his self-acquisitions. This
may be a plausible contention, but in the context of the then existing
circumstances it does not appeal to us. The creditors’ possible threat to
proceed against Govindprasad’s alleged self-acquisitions on the ground that
they were part of the joint family property had always been there. What had
happened was that instead of Buty, Daga become the creditor.
There is,
therefore, no reason why the tell-tale date was fixed for the execution of Ex.
D-32, if it was not intended to be a prop to the common design of fraud.
Further, it became necessary to put back the date of the alleged division in
status to 1898, i.e., to a date prior to the filing of the suit by the creditor
Buty against the family on March 2, 1898, to meet the possible argument that
the claim could be traced back to that of Buty and therefore the alleged
partition could not affect the claim of Daga. Ex. D-32 purports to be a
confirmation of the farkatnama dated January 24, 1898. We have already held
that the said document was an ante-dated one and that the signature of
Ajodhyaprasad was forged therein. If so, it follows that Ex. D-32 is another-
link in the chain of fraud perpetrated by the family. To summarize: the family
had joint business and extensive properties as well as heavy debts at the time
of the death of Ramasahai on January 24, 1897.
therefore, no reason why the tell-tale date was fixed for the execution of Ex.
D-32, if it was not intended to be a prop to the common design of fraud.
Further, it became necessary to put back the date of the alleged division in
status to 1898, i.e., to a date prior to the filing of the suit by the creditor
Buty against the family on March 2, 1898, to meet the possible argument that
the claim could be traced back to that of Buty and therefore the alleged
partition could not affect the claim of Daga. Ex. D-32 purports to be a
confirmation of the farkatnama dated January 24, 1898. We have already held
that the said document was an ante-dated one and that the signature of
Ajodhyaprasad was forged therein. If so, it follows that Ex. D-32 is another-
link in the chain of fraud perpetrated by the family. To summarize: the family
had joint business and extensive properties as well as heavy debts at the time
of the death of Ramasahai on January 24, 1897.
After Ramasahai’s death, the
family creditor, Buty, filed a suit against the members of the family to
enforce his mortgage. In the year 1898, the members of the family executed
nominal mortgages in favour of Hemraj, Narayanrao Govindrao Mahajan and
Chunnilal Sonar, and when some of the family properties were brought to sale in
execution of the decree obtained by Buty, they were purchased by Kasturchand
Daga benami for the members of the family, and some of the members of the
family executed a mortgage deed on May 26, 1908, for the sale price in favour
of the said Daga.
family creditor, Buty, filed a suit against the members of the family to
enforce his mortgage. In the year 1898, the members of the family executed
nominal mortgages in favour of Hemraj, Narayanrao Govindrao Mahajan and
Chunnilal Sonar, and when some of the family properties were brought to sale in
execution of the decree obtained by Buty, they were purchased by Kasturchand
Daga benami for the members of the family, and some of the members of the
family executed a mortgage deed on May 26, 1908, for the sale price in favour
of the said Daga.
The said Daga filed Civil Suit No. 1 of 1915 against the
family to enforce the mortgage, on June 18, 1915. Three days before the filing
of this suit, i.e., on June 15, 1915,. the brothers brought into existence
three nominal sale-deeds-two in favour of Baliram Hari Bokhare and another in
favour of Narayanrao Govindrao Mahajan-and a relinquishment deed in favour of
Govindprasad; and all the documents were registered on the same day. Three of
them were admittedly nominal documents and the fourth, viz., the relinquishment
deed, has been proved to be another nominal document. The said facts disclose
an integrated scheme of fraud and it is not possible in the circumstances to
single out therefrom Ex. D-32 and hold that it is a bona fide transaction; on
the other hand, the circumstances already narrated by us indicate beyond any
reasonable doubt that the said document is also a part of that scheme and
intended to protect the cash and movables of the family.
family to enforce the mortgage, on June 18, 1915. Three days before the filing
of this suit, i.e., on June 15, 1915,. the brothers brought into existence
three nominal sale-deeds-two in favour of Baliram Hari Bokhare and another in
favour of Narayanrao Govindrao Mahajan-and a relinquishment deed in favour of
Govindprasad; and all the documents were registered on the same day. Three of
them were admittedly nominal documents and the fourth, viz., the relinquishment
deed, has been proved to be another nominal document. The said facts disclose
an integrated scheme of fraud and it is not possible in the circumstances to
single out therefrom Ex. D-32 and hold that it is a bona fide transaction; on
the other hand, the circumstances already narrated by us indicate beyond any
reasonable doubt that the said document is also a part of that scheme and
intended to protect the cash and movables of the family.
The appellant relies
upon the Wills executed by Govindprasad in 1912, 1919, 1920, 1926 and 1930 to
establish that he was divided from the family, and that he was treating some
properties as his self- acquisitions. If, as we have held, neither Ex. D-54 nor
Ex-D-32 effected a severance of Govindprasad from the joint family, the said
documents would not carry the matter further; for the Wills were based upon the
assertions made by Govindprasad that he was separated from his family in 1898
and that the properties he was bequeathing were his self-acquistions. As we
have held that there was no severance of the joint family, the evidentiary
value of these documents must be rejected on the ground that they were further
attempts on the part of the family to keep up the appearance consistent with
the alleged partition.
upon the Wills executed by Govindprasad in 1912, 1919, 1920, 1926 and 1930 to
establish that he was divided from the family, and that he was treating some
properties as his self- acquisitions. If, as we have held, neither Ex. D-54 nor
Ex-D-32 effected a severance of Govindprasad from the joint family, the said
documents would not carry the matter further; for the Wills were based upon the
assertions made by Govindprasad that he was separated from his family in 1898
and that the properties he was bequeathing were his self-acquistions. As we
have held that there was no severance of the joint family, the evidentiary
value of these documents must be rejected on the ground that they were further
attempts on the part of the family to keep up the appearance consistent with
the alleged partition.
We now come to the consideration of the main document in
the case, namely, the trust deed dated February 17, 1916. It is marked as Ex.
D-12. It purports to be a deed of trust executed by Govindprasad in favour of
his nephew Chandanlal, the natural son of his brother Ratanlal and adopted son
of his another brother Ajodhyaprasad, and his niece, Rukhmabai, the daughter of
his eldest brother Ganeshprasad. Under this document Rs. 15,000 was set up for
the said beneficiaries, who were minors at that time. Kasheo Rao Laxman Rao Aurangabadkar,
Gujalal, Davidin, Mahadeo, and Govindprasad were appointed trustees. The
document directed that the trustees should carry on the management of the trust
money and that they should make over the money to the minors on their attaining
majority. They were also directed to construct a building or buy a land which
might bring in good rent and to reserve one-fourth for themselves for expenses
of the building or the land, as the case may be, and to distribute the the
remaining three-fourths in equal shares to the two beneficiaries.
the case, namely, the trust deed dated February 17, 1916. It is marked as Ex.
D-12. It purports to be a deed of trust executed by Govindprasad in favour of
his nephew Chandanlal, the natural son of his brother Ratanlal and adopted son
of his another brother Ajodhyaprasad, and his niece, Rukhmabai, the daughter of
his eldest brother Ganeshprasad. Under this document Rs. 15,000 was set up for
the said beneficiaries, who were minors at that time. Kasheo Rao Laxman Rao Aurangabadkar,
Gujalal, Davidin, Mahadeo, and Govindprasad were appointed trustees. The
document directed that the trustees should carry on the management of the trust
money and that they should make over the money to the minors on their attaining
majority. They were also directed to construct a building or buy a land which
might bring in good rent and to reserve one-fourth for themselves for expenses
of the building or the land, as the case may be, and to distribute the the
remaining three-fourths in equal shares to the two beneficiaries.
Alternatively, they were also directed to carry on a business with the said,
amount and distribute the income therefrom to the beneficiaries in equal
shares. The first question that occurs to one is, why did Govindprasad execute
the trust, deed if his intention was to give a sum of Rs. 15,000 to his nephew
and niece; for, he could have easily achieved, that purpose by executing a Will
or a settlement deed,and during his life time by giving them the income
therefrom in equal shares. The amount set apart is comparatively small and is
surprising that he should have appointed five trustees for implementing the
trust. Secondly, the trust deed itself refers to the earlier deeds of
relinquishment and we have already held that the said two deeds were colourable
transactions. The trustees appointed were the agents of the family. Ex. P-72
dated September 9, 1913, the General Power of Attorney, shows that two of the
trustees, Kasheo Rao Laxman Rao and Davidin were the family agents of the Lala
brothers. Ex. P-38 dated October 6, 1914, indicates that Kasheo Rao Laxman Rao,
one of the trustees, attested the said document whereunder Narayanrao Govindrao
Mahajan declared that the, mortgage deed executed in his favour by the Lala
brothers was a nominal transaction.
amount and distribute the income therefrom to the beneficiaries in equal
shares. The first question that occurs to one is, why did Govindprasad execute
the trust, deed if his intention was to give a sum of Rs. 15,000 to his nephew
and niece; for, he could have easily achieved, that purpose by executing a Will
or a settlement deed,and during his life time by giving them the income
therefrom in equal shares. The amount set apart is comparatively small and is
surprising that he should have appointed five trustees for implementing the
trust. Secondly, the trust deed itself refers to the earlier deeds of
relinquishment and we have already held that the said two deeds were colourable
transactions. The trustees appointed were the agents of the family. Ex. P-72
dated September 9, 1913, the General Power of Attorney, shows that two of the
trustees, Kasheo Rao Laxman Rao and Davidin were the family agents of the Lala
brothers. Ex. P-38 dated October 6, 1914, indicates that Kasheo Rao Laxman Rao,
one of the trustees, attested the said document whereunder Narayanrao Govindrao
Mahajan declared that the, mortgage deed executed in his favour by the Lala
brothers was a nominal transaction.
This shows that Kasheo Rao Laxman Rao was
one of the close associates of the members of the family in executing the
fraudulent documents. Mahadeo is the brother- in-law of Babulal, a servant of
Ganeshprasad, who is the father of Rukhmabai, the appellant. The fact that most
of the trustees were either the agents or the servants of the family is also a
circumstance, though not. conclusive, against the version of the appellant. Two
minor members of the family were selected for the bequest; though ordinarily it
may not have any significance, in the peculiar circumstances of the case, this
fits in the general scheme of fraud perpetrated by the family. What is more,
the trust comes to an abrupt end. Ex. D-3 is the deposition of Govindprasad in
Civil Suit No. 204 of 1931.
one of the close associates of the members of the family in executing the
fraudulent documents. Mahadeo is the brother- in-law of Babulal, a servant of
Ganeshprasad, who is the father of Rukhmabai, the appellant. The fact that most
of the trustees were either the agents or the servants of the family is also a
circumstance, though not. conclusive, against the version of the appellant. Two
minor members of the family were selected for the bequest; though ordinarily it
may not have any significance, in the peculiar circumstances of the case, this
fits in the general scheme of fraud perpetrated by the family. What is more,
the trust comes to an abrupt end. Ex. D-3 is the deposition of Govindprasad in
Civil Suit No. 204 of 1931.
Therein he- describes how the trust deed was
implemented and how it came to an end. He says that for building the house the
site opposite Cotton Market at Nagpur was acquired from Babulal, and Rs. 10,000
out of the sum of Rs. 15,000 was utilised for building the house and Rs. 5,000
was given to Babulal by the trustees as loan. The -trustees demanded Rs. 5,000
more from him, but he gave them only Rs. 2,500 and another sum of Rs. 2,500 was
given to them by Sheoshankar, the husband of the appellant. The trust was
dissolved in 1921 and after that he commenced to construct the second storey
and completed it with a sum of Rs. 6,000 returned by Babulal. This evidence
proves that the trust was put to an end even before the completion of the
building, and Govindprasad completed the construction.
implemented and how it came to an end. He says that for building the house the
site opposite Cotton Market at Nagpur was acquired from Babulal, and Rs. 10,000
out of the sum of Rs. 15,000 was utilised for building the house and Rs. 5,000
was given to Babulal by the trustees as loan. The -trustees demanded Rs. 5,000
more from him, but he gave them only Rs. 2,500 and another sum of Rs. 2,500 was
given to them by Sheoshankar, the husband of the appellant. The trust was
dissolved in 1921 and after that he commenced to construct the second storey
and completed it with a sum of Rs. 6,000 returned by Babulal. This evidence
proves that the trust was put to an end even before the completion of the
building, and Govindprasad completed the construction.
This conduct indicates
that no distinction was made between the trust property and his own property,
and that, though a registered document had been executed, he was able to put to
an end to the trust when he chose to do so. Ex. D-30 is the copy of the
proceedings from the Proceeding Book filed by the trustees in Civil Suit No. 55
of 1929. Therein Govindprasad says that Chandanlal and Rukmabai became majors
and, though he wanted to make over the building to them, they did not like to
take it and agreed to have it left with him so long as he was alive and that,
as Davidin left the place, Gajulal passed away, Mahadeo had gone to another
district for a service and Kasheo Rao was unwilling to take further
responsibility, he had taken over the building according to the wishes of his
nephew and niece.
that no distinction was made between the trust property and his own property,
and that, though a registered document had been executed, he was able to put to
an end to the trust when he chose to do so. Ex. D-30 is the copy of the
proceedings from the Proceeding Book filed by the trustees in Civil Suit No. 55
of 1929. Therein Govindprasad says that Chandanlal and Rukmabai became majors
and, though he wanted to make over the building to them, they did not like to
take it and agreed to have it left with him so long as he was alive and that,
as Davidin left the place, Gajulal passed away, Mahadeo had gone to another
district for a service and Kasheo Rao was unwilling to take further
responsibility, he had taken over the building according to the wishes of his
nephew and niece.
This laboured explanation also demonstrates the nominal
nature of the trust deed. Ex. D-35 is a Power of Attorney dated January 26,
1921, executed by Rukhmabai and Chandanlal in favour of Govindprasad. In that
document both of them, who had become majors declared that they could not
manage the property and therefore they appointed Govindprasad as their agent
and authorized him to manage the property and act for them in the courts.
Whatever might be the reason, the said document shows that the property was
taken back by Govindprasad and there is nothing on record to show that any
benefit from the trust reached the hands of either Chandanlal or Rukhmabai.
nature of the trust deed. Ex. D-35 is a Power of Attorney dated January 26,
1921, executed by Rukhmabai and Chandanlal in favour of Govindprasad. In that
document both of them, who had become majors declared that they could not
manage the property and therefore they appointed Govindprasad as their agent
and authorized him to manage the property and act for them in the courts.
Whatever might be the reason, the said document shows that the property was
taken back by Govindprasad and there is nothing on record to show that any
benefit from the trust reached the hands of either Chandanlal or Rukhmabai.
This conduct of Govindprasad also fits in with the general scheme of colourable
transactions: and the property in fact continued to be the joint family
property. There is also positive evidence, both documentary and oral, to prove
that the brothers, including Govindprasad, were living an members of a joint
Hindu family. Ex. P-63-A is a letter written by Ganesh prasad to Chandanlal.
This letter is not dated, but it appears to have been written in or about the
year 1926. In this letter Ganeshprasad points out:
transactions: and the property in fact continued to be the joint family
property. There is also positive evidence, both documentary and oral, to prove
that the brothers, including Govindprasad, were living an members of a joint
Hindu family. Ex. P-63-A is a letter written by Ganesh prasad to Chandanlal.
This letter is not dated, but it appears to have been written in or about the
year 1926. In this letter Ganeshprasad points out:
” I have so far
helped all my brothers upto this day and have been helping them so far as
possible in spite of experiencing such great miseries. What should I do ? Had I
thought of passing my time by living separate, it could have been done in a
good way; I would have not fallen in such difficulties. With all this you are
seeing how memberji is causing different troubles. Whatever I have done, I have
done with my earnings; I have given to my men family.” In unravelling a
fraud committed jointly by the members of a family, only such letters that
passed inter se between them can give the clue to the truth.
helped all my brothers upto this day and have been helping them so far as
possible in spite of experiencing such great miseries. What should I do ? Had I
thought of passing my time by living separate, it could have been done in a
good way; I would have not fallen in such difficulties. With all this you are
seeing how memberji is causing different troubles. Whatever I have done, I have
done with my earnings; I have given to my men family.” In unravelling a
fraud committed jointly by the members of a family, only such letters that
passed inter se between them can give the clue to the truth.
This letter shows
that notwithstanding the assertions of the family to the contrary to suit a
particular occasion, they were really living together as members of a joint
family and the whole responsibility of the conduct of the affairs of the family
was taken by the eldest member of it. Ex. P- 5 dated January 21, 1922, is a
public notice given by all the members of the family and published in ”
The Maharastra ” on January 25, 1922. Therein they asserted that in Nagpur
‘City they owned an ancestral property, consisting of a house, vacant land and
a pacca well, constructed with stones for drinking water for the public, and
that Mt. Deoka Bai, W/O Sitaram Lala Kalar had no right to sell the same.
that notwithstanding the assertions of the family to the contrary to suit a
particular occasion, they were really living together as members of a joint
family and the whole responsibility of the conduct of the affairs of the family
was taken by the eldest member of it. Ex. P- 5 dated January 21, 1922, is a
public notice given by all the members of the family and published in ”
The Maharastra ” on January 25, 1922. Therein they asserted that in Nagpur
‘City they owned an ancestral property, consisting of a house, vacant land and
a pacca well, constructed with stones for drinking water for the public, and
that Mt. Deoka Bai, W/O Sitaram Lala Kalar had no right to sell the same.
If
Govindprasad had separated himself from the family, as it is now contended, he
would not have joined in the issuing of this public notice, for, in that event
he would not have had any interest in the ancestral property. Ex. P-59 is a
copy of the application made by Govindprasad to the Secretary of State for
India on May 19, 1922. In that application Govindprasad states:
Govindprasad had separated himself from the family, as it is now contended, he
would not have joined in the issuing of this public notice, for, in that event
he would not have had any interest in the ancestral property. Ex. P-59 is a
copy of the application made by Govindprasad to the Secretary of State for
India on May 19, 1922. In that application Govindprasad states:
” I have now to
mention that for the long standing three years, i.e., 1920-21, 1921-22, and the
remaining nine months of 1922, 1 have undergone and have to undergo a serious
loss of about rupees twenty thousand which is heavy and unbearable to meet the
Government Revenue and to maintain my large family consisting of twenty-five
(25) members.” Govindprasad alone could not have lost so much amount in
his individual business. What is more, he had no children and so his family of
twenty five members must have reference only to the members of the joint
family.
mention that for the long standing three years, i.e., 1920-21, 1921-22, and the
remaining nine months of 1922, 1 have undergone and have to undergo a serious
loss of about rupees twenty thousand which is heavy and unbearable to meet the
Government Revenue and to maintain my large family consisting of twenty-five
(25) members.” Govindprasad alone could not have lost so much amount in
his individual business. What is more, he had no children and so his family of
twenty five members must have reference only to the members of the joint
family.
There is also the
evidence of P.Ws. 12,/ 13 and 14, who are the common relatives of both the
parties. P.W. 12, Bhagwandas, is the brother of Lala Chotelal, the husband of
Tarabai, daughter of Ramasahai. He has been acquainted with the affairs of the
family for about 30 years, i.e., since the time his brother was married to Tara
Bai. He is positive that Govindprasad used to live either at Kamptee or Nagpur
in the family house and that all the brothers were keeping account books
jointly. P.W. 13, Lala Sadanand, is the brother of Mangalprasad’s wife. He says
that his sister married Mangalprasad in 1896 or 1897 and his knowledge of the
family, therefore, went back to that year. He asserts that the sons of
Ramasahai were members of a joint Hindu family and that their excise contracts
were also joint, and that none of the brothers had separate trade or property.
P.W. 14, Lala Sitaram’s son was married to Ratanlal’s daughter about 25 years
before the date of his giving the evidence.
evidence of P.Ws. 12,/ 13 and 14, who are the common relatives of both the
parties. P.W. 12, Bhagwandas, is the brother of Lala Chotelal, the husband of
Tarabai, daughter of Ramasahai. He has been acquainted with the affairs of the
family for about 30 years, i.e., since the time his brother was married to Tara
Bai. He is positive that Govindprasad used to live either at Kamptee or Nagpur
in the family house and that all the brothers were keeping account books
jointly. P.W. 13, Lala Sadanand, is the brother of Mangalprasad’s wife. He says
that his sister married Mangalprasad in 1896 or 1897 and his knowledge of the
family, therefore, went back to that year. He asserts that the sons of
Ramasahai were members of a joint Hindu family and that their excise contracts
were also joint, and that none of the brothers had separate trade or property.
P.W. 14, Lala Sitaram’s son was married to Ratanlal’s daughter about 25 years
before the date of his giving the evidence.
He supports the evidence of P. Ws.
12 and 13. Nothing has been elicited in the course of cross-examination of any
of these witnesses which would detract from the weight of their evidence. They
are natural witnesses who could with authority speak to the affairs of the
family. The oral evidence adduced by the plaintiff also establishes that there
was no partition among the members of the family. We, shall now briefly notice
the admissions alleged to have been made by one or other members of the family
accepting the partition. In this context, the observations of the Judicial
Committee in Alluri Venkatapathi Raju v. Dantuluri Venkatanarasimha Raju (1)
are apt and they read: It sometimes happens that persons make statements which
serve their purpose, or proceed upon ignorance of the true position; and it is
not their statements, but their relations with the estate, which should be
taken into consideration in determinining the issue.” The issue in that
case, as it is in the present case, was whether one of the members of a joint
Hindu family separated himself from the others by renouncing his interest in
the joint family property.
12 and 13. Nothing has been elicited in the course of cross-examination of any
of these witnesses which would detract from the weight of their evidence. They
are natural witnesses who could with authority speak to the affairs of the
family. The oral evidence adduced by the plaintiff also establishes that there
was no partition among the members of the family. We, shall now briefly notice
the admissions alleged to have been made by one or other members of the family
accepting the partition. In this context, the observations of the Judicial
Committee in Alluri Venkatapathi Raju v. Dantuluri Venkatanarasimha Raju (1)
are apt and they read: It sometimes happens that persons make statements which
serve their purpose, or proceed upon ignorance of the true position; and it is
not their statements, but their relations with the estate, which should be
taken into consideration in determinining the issue.” The issue in that
case, as it is in the present case, was whether one of the members of a joint
Hindu family separated himself from the others by renouncing his interest in
the joint family property.
Exhibit 49 is the
rejoinder filed by Lala Laxminarayan in Civil Suit No. 260 of 1931 filed
against Sheoshankar, the husband of the appellant. Therein he stated that the
members of the family separated from time to time -and that the last but one
group that remained joint was the one ‘With four brothers and the very last was
with two brothers, Ganeshprasad and Ratanlal and that after the death of the
two brothers he (Lala Laxminarayan) was the only survivor. It is obvious that
the said statement was made to serve his purpose in that suit and support his
claim therein. Ex. D- 11 is an application dated November 10, 1938, made by
Lala Laxminarayan to the Deputy Commissioner, Nagpur, for exemption from
furnishing security at Excise Sales.
rejoinder filed by Lala Laxminarayan in Civil Suit No. 260 of 1931 filed
against Sheoshankar, the husband of the appellant. Therein he stated that the
members of the family separated from time to time -and that the last but one
group that remained joint was the one ‘With four brothers and the very last was
with two brothers, Ganeshprasad and Ratanlal and that after the death of the
two brothers he (Lala Laxminarayan) was the only survivor. It is obvious that
the said statement was made to serve his purpose in that suit and support his
claim therein. Ex. D- 11 is an application dated November 10, 1938, made by
Lala Laxminarayan to the Deputy Commissioner, Nagpur, for exemption from
furnishing security at Excise Sales.
Therein he alleged that Lala Ratanlal
owned and possessed immovable and movable properties worth about a lakli of
rupees, which on his death devolved on his son, the applicant therein, that all
the said properties were held by the applicant in his own right as the sole
owner thereof and that he was in uninterrupted possession of the same since the
death of his father. He also alleged that the business was inherited by the
members of the family in 1890 and that he had been doing the business of his
forefathers since the year 1927. In this document Laxminarayan did not set up
any case of partition in 1898; but it is pointed out that he did not include
the trust property in the schedule attached to that application. The object of
that application was to show that he owned (1) (1935-36) L.R. 63 I.A. 397, 406.
owned and possessed immovable and movable properties worth about a lakli of
rupees, which on his death devolved on his son, the applicant therein, that all
the said properties were held by the applicant in his own right as the sole
owner thereof and that he was in uninterrupted possession of the same since the
death of his father. He also alleged that the business was inherited by the
members of the family in 1890 and that he had been doing the business of his
forefathers since the year 1927. In this document Laxminarayan did not set up
any case of partition in 1898; but it is pointed out that he did not include
the trust property in the schedule attached to that application. The object of
that application was to show that he owned (1) (1935-36) L.R. 63 I.A. 397, 406.
large extent of
properties, and the fact that he had omitted some items of property would not
establish that the said items were not joint family properties. That question
has to be considered on other evidence. Lala La But what is important in Ex. D-
1 1 is his assertion that there was no partition in the family. If we do not
place much reliance on Ex. D-11, we should also, for the same reason, not place
much value on the assertions made in Ex. D-49. Exs. D-49 and D- 11 show that
the plaintiff was making -assertions to suit his purpose. Ex. D-56 is the
deposition of Jankiprasad in Civil Suit No. 260 of 1931. Therein he stated that
the defendants were all brothers but were divided. That was a suit filed by
Kasturchand Daga against some of the brothers and, perhaps, Jankiprasad thought
that it was necessary to assert separation so that some of the, family
properties, other than those mortgaged, might be salvaged. The same
Jankiprasad, in Ex. P-80, asserted to the contrary.
properties, and the fact that he had omitted some items of property would not
establish that the said items were not joint family properties. That question
has to be considered on other evidence. Lala La But what is important in Ex. D-
1 1 is his assertion that there was no partition in the family. If we do not
place much reliance on Ex. D-11, we should also, for the same reason, not place
much value on the assertions made in Ex. D-49. Exs. D-49 and D- 11 show that
the plaintiff was making -assertions to suit his purpose. Ex. D-56 is the
deposition of Jankiprasad in Civil Suit No. 260 of 1931. Therein he stated that
the defendants were all brothers but were divided. That was a suit filed by
Kasturchand Daga against some of the brothers and, perhaps, Jankiprasad thought
that it was necessary to assert separation so that some of the, family
properties, other than those mortgaged, might be salvaged. The same
Jankiprasad, in Ex. P-80, asserted to the contrary.
In that exhibit he stated
that the farkatnama was cancelled by him by notice to Govindprasad and that he
and Govindprasad continued to have common food. The claim of the creditor,
Kasturchand Daga, who sought to attach the trust property along with other
family properties, was settled and some of the family properties were sold to
him under Ex. P-24 in discharge of his claim. On the sale- deed, Govindprasad
made the following endorsement: ” As I have been living separate for a
number of years from all the members of the family, I have no right to this
property and no objection to its sale.” This endorsement is entirely
consistent with the case of the respondent that the properties in the hands of
Govindprasad were intended to be preserved by this compromise. That statement
must have been made to strengthen the case of the family. These con- tradictory
statements were made by one or other members of the family to meet a particular
contingency or to get an advantage, and, therefore, these cannot be of much
value and the case really falls to be decided not on such statements, but on-
the basis of the relations of the various parties with the estate.
that the farkatnama was cancelled by him by notice to Govindprasad and that he
and Govindprasad continued to have common food. The claim of the creditor,
Kasturchand Daga, who sought to attach the trust property along with other
family properties, was settled and some of the family properties were sold to
him under Ex. P-24 in discharge of his claim. On the sale- deed, Govindprasad
made the following endorsement: ” As I have been living separate for a
number of years from all the members of the family, I have no right to this
property and no objection to its sale.” This endorsement is entirely
consistent with the case of the respondent that the properties in the hands of
Govindprasad were intended to be preserved by this compromise. That statement
must have been made to strengthen the case of the family. These con- tradictory
statements were made by one or other members of the family to meet a particular
contingency or to get an advantage, and, therefore, these cannot be of much
value and the case really falls to be decided not on such statements, but on-
the basis of the relations of the various parties with the estate.
From the aforesaid
evidence, we must hold that there was no severance in the joint family of
Govind prasad and his brothers and that they continued to be joint, doing joint
business, that all of them collusively brought into existence documents,
including the relinquishment deeds, to tide over the financial difficulties in
which they were involved. On the basis of the finding that Govindprasad did not
relinquish his share in the joint family, but continued to be its member, the
next question is whether the sum of Rs. 15,000, in respect whereof the trust
deed was -executed by Govindprasad and the moneys spent to put up the suit
house, came out of the selfacquisitions of Govindprasad. This question we must
approach on the basis of our finding that Govindprasad continued to be a member
of the joint Hindu family until his death.
evidence, we must hold that there was no severance in the joint family of
Govind prasad and his brothers and that they continued to be joint, doing joint
business, that all of them collusively brought into existence documents,
including the relinquishment deeds, to tide over the financial difficulties in
which they were involved. On the basis of the finding that Govindprasad did not
relinquish his share in the joint family, but continued to be its member, the
next question is whether the sum of Rs. 15,000, in respect whereof the trust
deed was -executed by Govindprasad and the moneys spent to put up the suit
house, came out of the selfacquisitions of Govindprasad. This question we must
approach on the basis of our finding that Govindprasad continued to be a member
of the joint Hindu family until his death.
The initial burden is no doubt on
the contesting respondent to prove that the trust property is part of the joint
family property; but if it was established that there was sufficient nucleus
from or with the aid of which the property could have been acquired, the burden
shifts to the appellant. The first question, therefore, is whether the joint
family had sufficient property or income out of which Govindprasad could have
put aside Rs. 15,000, under the trust deed and also could have advanced other
amounts for constructing the building. We have already noticed at an earlier
stage of the Judgment that the family owned extensive properties distributed at
different places. Ex. 9-D-8 is a copy of the Valuation Register for 1923 in
Civil Suit No. 260 of 1931. There the annual income from one of the liquor
shops, Lala Bada Liquor Shop, from the year 1919 to 1923 is given. The licence
was for Rs. 15,000.
the contesting respondent to prove that the trust property is part of the joint
family property; but if it was established that there was sufficient nucleus
from or with the aid of which the property could have been acquired, the burden
shifts to the appellant. The first question, therefore, is whether the joint
family had sufficient property or income out of which Govindprasad could have
put aside Rs. 15,000, under the trust deed and also could have advanced other
amounts for constructing the building. We have already noticed at an earlier
stage of the Judgment that the family owned extensive properties distributed at
different places. Ex. 9-D-8 is a copy of the Valuation Register for 1923 in
Civil Suit No. 260 of 1931. There the annual income from one of the liquor
shops, Lala Bada Liquor Shop, from the year 1919 to 1923 is given. The licence
was for Rs. 15,000.
The profit for 1919-20 was Rs. 1329; for 1920 21 was Rs.
14,152; for 1921-22 was Rs. 185; for 1922 was Rs. 7,650; and for 1923 was Rs.
5,140. Ex. 9-D-7 is the copy of the Valuation Register for 1924 in the same
suit in respect of Janajail Liquor Shop, Nagpur. It shows that the profit for
the year 1919-20 was Rs. 1,486; for 1920-21 was Rs. 8,814; for 1921-22 was Rs.
1,779; and for 1922-23 was Rs. 3,837. Ex. P-77 is a security bond executed by
the members of the family in favour of Kasturchand Daga. It shows that security
was given in connection with the contract taken by the family in the name of
Lala Ratanlal for retail dealing in liquor in different shops at Karnptee and
Nagpur during the years 1906 and 1907. In that connection Ratanlal deposited a
sum of Rs. 54,700. These three documents show the extensive business the
members of the family were doing-in liquor. Indeed, the learned Counsel for the
appellant does not dispute the fact that the family was in a position to give
Govindprasad the amount covered by the trust deed and that spent for the con-
struction of the building. If so, the question is whether the appellant has
proved that Govindprasad paid the said amounts from and out of his
self-acquisitions.
14,152; for 1921-22 was Rs. 185; for 1922 was Rs. 7,650; and for 1923 was Rs.
5,140. Ex. 9-D-7 is the copy of the Valuation Register for 1924 in the same
suit in respect of Janajail Liquor Shop, Nagpur. It shows that the profit for
the year 1919-20 was Rs. 1,486; for 1920-21 was Rs. 8,814; for 1921-22 was Rs.
1,779; and for 1922-23 was Rs. 3,837. Ex. P-77 is a security bond executed by
the members of the family in favour of Kasturchand Daga. It shows that security
was given in connection with the contract taken by the family in the name of
Lala Ratanlal for retail dealing in liquor in different shops at Karnptee and
Nagpur during the years 1906 and 1907. In that connection Ratanlal deposited a
sum of Rs. 54,700. These three documents show the extensive business the
members of the family were doing-in liquor. Indeed, the learned Counsel for the
appellant does not dispute the fact that the family was in a position to give
Govindprasad the amount covered by the trust deed and that spent for the con-
struction of the building. If so, the question is whether the appellant has
proved that Govindprasad paid the said amounts from and out of his
self-acquisitions.
If Govindprasad had a business of his own, he must have had
accounts, but no such accounts were forthcoming. Summons was served on
Tuljabai, the wife of Ganeshprasad and mother of Rukhmabai, for producing the
account books of the Lala brothers from the year 1897 to 1928, but no accounts
were produced except Ex. D-22, which is an extract from the accounts of
Ganeshprasad covering a period of only one month of the year 1927. This extract
does not help either party. It may, therefore, be held that the accounts, which
could have thrown some light on the sources from which Rs. 15,000, was drawn by
Govindprasad and the further amounts for building the house were supplied, were
not filed. D.W. I is one Jainarayan, who was a member of Legislative Council of
the State from 1930 to 1936. He states that Govindprasad was doing business in
shares and also in moneylending, that he had his own account books; that before
going to Jabalpore he took away all his account books, and that he (the
witness) may still have one or two account books of Govindprasad with him.
accounts, but no such accounts were forthcoming. Summons was served on
Tuljabai, the wife of Ganeshprasad and mother of Rukhmabai, for producing the
account books of the Lala brothers from the year 1897 to 1928, but no accounts
were produced except Ex. D-22, which is an extract from the accounts of
Ganeshprasad covering a period of only one month of the year 1927. This extract
does not help either party. It may, therefore, be held that the accounts, which
could have thrown some light on the sources from which Rs. 15,000, was drawn by
Govindprasad and the further amounts for building the house were supplied, were
not filed. D.W. I is one Jainarayan, who was a member of Legislative Council of
the State from 1930 to 1936. He states that Govindprasad was doing business in
shares and also in moneylending, that he had his own account books; that before
going to Jabalpore he took away all his account books, and that he (the
witness) may still have one or two account books of Govindprasad with him.
This
witness did not produce any account books. Rukhmabai also says in her evidence
that the account books of Govindprasad were with him but she could not say
whether they were at Nagpur or at Kamptee. But Govindprasad in his deposition
made on October 23, 1932, in Civil Suit No. 204 of 1931 stated that he had no
regular account books showing his income or expenditure, but he had only a sort
of note book and that was not in his possession then. If Govindprasad was doing
business on a large scale, as the appellant asked us to believe, he must have
had account books. If we accept the statement of Govindprasad that he had no
account books, it shows that he could not have had any extensive business; on
the other hand, if we accept the evidence of D. W. 1 and Rukhmabai that he had
account books, it was not explained why they were not produced. The only direct
evidence in regard to Rs. 15,000, the subject-matter of the trust deed, and the
moneys spent for building the house, is that of Govindprasad in the earlier
suit, viz., Civil Suit No. 204 of 1931, and it has been marked as Ex. D-3.
witness did not produce any account books. Rukhmabai also says in her evidence
that the account books of Govindprasad were with him but she could not say
whether they were at Nagpur or at Kamptee. But Govindprasad in his deposition
made on October 23, 1932, in Civil Suit No. 204 of 1931 stated that he had no
regular account books showing his income or expenditure, but he had only a sort
of note book and that was not in his possession then. If Govindprasad was doing
business on a large scale, as the appellant asked us to believe, he must have
had account books. If we accept the statement of Govindprasad that he had no
account books, it shows that he could not have had any extensive business; on
the other hand, if we accept the evidence of D. W. 1 and Rukhmabai that he had
account books, it was not explained why they were not produced. The only direct
evidence in regard to Rs. 15,000, the subject-matter of the trust deed, and the
moneys spent for building the house, is that of Govindprasad in the earlier
suit, viz., Civil Suit No. 204 of 1931, and it has been marked as Ex. D-3.
He
has stated therein that he had some deposits in banks and that out of affection
he set apart Rs. 15,000 for his nephew and niece and executed a trust deed in
respect of that sum. He adds that out of the said sum of Rs. 15,000, Rs. 10,000
was spent in purchasing the site from Babulal and for constructing a part of
the suit house thereon, and the balance of Rs. 5,000 was given to Babulal as
loan. He further stated that the trust was dissolved in 1921 and that
thereafter he spent another sum of Rs. 6,000 out of his own pocket in addition
to the sum of Rs. 6,000 returned by Babulal for completing the building and
that Sheoshankar, the husband of the appellant spent Rs. 2,500 in connection
with the building; but in the cross-examination he admitted that he bad no shop
for gold and silver and that lie used to do business in a small scale.
has stated therein that he had some deposits in banks and that out of affection
he set apart Rs. 15,000 for his nephew and niece and executed a trust deed in
respect of that sum. He adds that out of the said sum of Rs. 15,000, Rs. 10,000
was spent in purchasing the site from Babulal and for constructing a part of
the suit house thereon, and the balance of Rs. 5,000 was given to Babulal as
loan. He further stated that the trust was dissolved in 1921 and that
thereafter he spent another sum of Rs. 6,000 out of his own pocket in addition
to the sum of Rs. 6,000 returned by Babulal for completing the building and
that Sheoshankar, the husband of the appellant spent Rs. 2,500 in connection
with the building; but in the cross-examination he admitted that he bad no shop
for gold and silver and that lie used to do business in a small scale.
He gave
evasive answers when he was asked whether the first defendant was managing the
liquor shop in dispute ; he did not know whether the defendant was managing the
liquor shop in dispute, he did not remember the year in which the shop was opened
in the suit building; he could not say when the shop was discontinued; he,
admitted that he had no regular account books showing his income or
expenditure. Though he said that he had a sort of note book, he said that he
was not in possession of it then. Though he said in examination in-chief that
he spent Rs. 6,000 for the building, had to admit in the cross-examination that
the said money was not withdrawn from any bank. He also admitted that the
materials were bought by Ganeshprasad and Ratanlal and that he did not know
when they purchased them.
evasive answers when he was asked whether the first defendant was managing the
liquor shop in dispute ; he did not know whether the defendant was managing the
liquor shop in dispute, he did not remember the year in which the shop was opened
in the suit building; he could not say when the shop was discontinued; he,
admitted that he had no regular account books showing his income or
expenditure. Though he said that he had a sort of note book, he said that he
was not in possession of it then. Though he said in examination in-chief that
he spent Rs. 6,000 for the building, had to admit in the cross-examination that
the said money was not withdrawn from any bank. He also admitted that the
materials were bought by Ganeshprasad and Ratanlal and that he did not know
when they purchased them.
The evidence of Govindprasad clearly establishes that
he was merely lending his name for the family and that the amounts were spent
from the family coffer,-, under the supervision of one or other members of the
family. Ex. P-62-A is a copy of the letter written by Ganeshprasad to Babulal
in the year 1922-Babulal was acting as the agent of Ganeshprasad. Therein
Ganeshprasad complaints that large amounts had already been spent but the upper
portion of the building had not yet been constructed. Though it is suggested
that Ganeshprasad was constructing some other building,in the year 1922, there
is- nothing on record to support that theory. Babulal was certainly connected
with the suit building and the reference in the said document must be to the
suit building. This letter also shows that Ganeshprasad, presumably on behalf
of the family, was giving moneys for the construction of the building. Ex.
P-60-1-A is another letter written by Ganeshprasad to Babulal. Therein
Ganeshprasad gave specific direction in regard to the construction of the
building. The building referred to in this letter also must be the suit
building.
he was merely lending his name for the family and that the amounts were spent
from the family coffer,-, under the supervision of one or other members of the
family. Ex. P-62-A is a copy of the letter written by Ganeshprasad to Babulal
in the year 1922-Babulal was acting as the agent of Ganeshprasad. Therein
Ganeshprasad complaints that large amounts had already been spent but the upper
portion of the building had not yet been constructed. Though it is suggested
that Ganeshprasad was constructing some other building,in the year 1922, there
is- nothing on record to support that theory. Babulal was certainly connected
with the suit building and the reference in the said document must be to the
suit building. This letter also shows that Ganeshprasad, presumably on behalf
of the family, was giving moneys for the construction of the building. Ex.
P-60-1-A is another letter written by Ganeshprasad to Babulal. Therein
Ganeshprasad gave specific direction in regard to the construction of the
building. The building referred to in this letter also must be the suit
building.
Exs. D-63 to D-96 are
the receipts for the amounts disbursed in connection with the construction of
the suit building. Govindprasad states in Ex. D-3 that he used to hand over the
money to his brother Ganeshprasad or Ratanlal for disbursement. This lame explanation
cannot explain away the fact that the moneys were spent and receipts taken by
the other members of the family in regard to the construc- tion of the house’
Then remains the oral evidence of P.Ws. 4, 5, 9 and 13, who were some of the
contractors connected with the construction of the house and they say that
either Ganeshprasad or Ratanlal asked them to do the work and paid them the
amounts clue to them. Their evidence is consistent with the evidence of Govind
prasad in Ex. D-3. They are disinterested witnesses and their evidence can
safely be accepted. There is also the evidence that the family liquor shop was
located in the suit building and that must be so because it was built by the
family.
the receipts for the amounts disbursed in connection with the construction of
the suit building. Govindprasad states in Ex. D-3 that he used to hand over the
money to his brother Ganeshprasad or Ratanlal for disbursement. This lame explanation
cannot explain away the fact that the moneys were spent and receipts taken by
the other members of the family in regard to the construc- tion of the house’
Then remains the oral evidence of P.Ws. 4, 5, 9 and 13, who were some of the
contractors connected with the construction of the house and they say that
either Ganeshprasad or Ratanlal asked them to do the work and paid them the
amounts clue to them. Their evidence is consistent with the evidence of Govind
prasad in Ex. D-3. They are disinterested witnesses and their evidence can
safely be accepted. There is also the evidence that the family liquor shop was
located in the suit building and that must be so because it was built by the
family.
The foregoing
discussion of the evidence brings out the following facts: (i) the family had
extensive business and was in a position to purchase the land and build the
suit house; (ii) there is no reliable evidence to show that Govindprasad had
separate income from which he could have set apart Rs. 15,000 and paid an
additional sum of Rs. 6,000 for building the house; (iii) there is evidence
that Ganeshprasad and Ratanlal supervised the construction of the building,
paid the contractors and had taken receipts from them; and (iv) though the
trustees under the trust deed pretended to function thereunder, they were the
agents of the family and the trust was abruptly put an end to in 1921. On the
said facts it must be held that the appellant has failed to prove that
Govindprasad had self-acquisitions and the suit site was purchased and the
building put up thereon with the private funds of Govindprasad.
discussion of the evidence brings out the following facts: (i) the family had
extensive business and was in a position to purchase the land and build the
suit house; (ii) there is no reliable evidence to show that Govindprasad had
separate income from which he could have set apart Rs. 15,000 and paid an
additional sum of Rs. 6,000 for building the house; (iii) there is evidence
that Ganeshprasad and Ratanlal supervised the construction of the building,
paid the contractors and had taken receipts from them; and (iv) though the
trustees under the trust deed pretended to function thereunder, they were the
agents of the family and the trust was abruptly put an end to in 1921. On the
said facts it must be held that the appellant has failed to prove that
Govindprasad had self-acquisitions and the suit site was purchased and the
building put up thereon with the private funds of Govindprasad.
Before we close this
aspect of the case, the conduct of the respondent in not questioning the trust
deed from 1916 to 1940, when he filed the suit, requires some explanation. The
contesting respondent was a minor. Even after he become a major, he could not
have had any grievance because the trust deed was executed for the benefit of
the family. It is in evidence that Ratanlal, his father, was living in the
house till his death in the year 1926. It is also in evidence that he was
residing in the house from the year 1936. It is true that when the litigation
between Rukhinabai and Chandanlal was being conducted he did not intervene;
that may be because Chandanlal was his natural brother and he might not have
thought fit to set up any claim against his brother.
aspect of the case, the conduct of the respondent in not questioning the trust
deed from 1916 to 1940, when he filed the suit, requires some explanation. The
contesting respondent was a minor. Even after he become a major, he could not
have had any grievance because the trust deed was executed for the benefit of
the family. It is in evidence that Ratanlal, his father, was living in the
house till his death in the year 1926. It is also in evidence that he was
residing in the house from the year 1936. It is true that when the litigation
between Rukhinabai and Chandanlal was being conducted he did not intervene;
that may be because Chandanlal was his natural brother and he might not have
thought fit to set up any claim against his brother.
His conduct, therefore, is
not such as to give rise to any inference that the trust deed was executed in
regard to Govindprasad’s self-acquired income, To summarize: There was no
separation of the members of the family: all the members of the family
continued to be joint and the family was doing business in different places.
They had extensive properties and a fairly large income: they were also heavily
indebted. The family was involved in debts in Ramasahai’s life time and even
after his death the position continued to be the same. Various attempts were
made to salvage the properties of the family and to keep both the movable and
immovable properties not mortgaged from the reach of the creditors. The
relinquishment deeds, innumerable mortgages, sale deeds and the trust deed were
all executed as parts of the same scheme.
not such as to give rise to any inference that the trust deed was executed in
regard to Govindprasad’s self-acquired income, To summarize: There was no
separation of the members of the family: all the members of the family
continued to be joint and the family was doing business in different places.
They had extensive properties and a fairly large income: they were also heavily
indebted. The family was involved in debts in Ramasahai’s life time and even
after his death the position continued to be the same. Various attempts were
made to salvage the properties of the family and to keep both the movable and
immovable properties not mortgaged from the reach of the creditors. The
relinquishment deeds, innumerable mortgages, sale deeds and the trust deed were
all executed as parts of the same scheme.
We, therefore, hold that the suit
property was the joint family property and the respondent is entitled to the
declaration he has asked for, namely, that the trust deed dated January 17,
1916, was a colourable and fictitious document and could not affect the
respondent’s right to ownership of the property in the suit.
property was the joint family property and the respondent is entitled to the
declaration he has asked for, namely, that the trust deed dated January 17,
1916, was a colourable and fictitious document and could not affect the
respondent’s right to ownership of the property in the suit.
The next question
raised by the learned Counsel for the appellant is that the suit should have
been dismissed in limine as the plaintiff asked for a bare declaration though
he was in a position to ask for further relief within the meaning of s. 42 of
the Specific Relief Act. The proviso to s. 42 of the said Act enacts that
” no Court shall make any such declaration when the plaintiff, being able
to seek further relief than a mere declaration of title, omits to do so.”
It is a well-settled rule of practice not to dismiss suits automatically but to
allow the plaintiff to make necessary amendment if he seeks to do so.
raised by the learned Counsel for the appellant is that the suit should have
been dismissed in limine as the plaintiff asked for a bare declaration though
he was in a position to ask for further relief within the meaning of s. 42 of
the Specific Relief Act. The proviso to s. 42 of the said Act enacts that
” no Court shall make any such declaration when the plaintiff, being able
to seek further relief than a mere declaration of title, omits to do so.”
It is a well-settled rule of practice not to dismiss suits automatically but to
allow the plaintiff to make necessary amendment if he seeks to do so.
The
learned Counsel for the appellant contends that in the plaint the cause of
action for the relief of declaration was given as the execution of the
partition decree through the Commissioner appointed by the Court and,
therefore, the plaintiff should have asked for a permanent injunction
restraining the appellant from interfering with his possession. The appellant
did not take this plea in the written statement; nor was there any issue in
respect thereof, though as many as 12 issues were raised on the pleadings; nor
does the judgment of the learned District Judge disclose that the appellant
raised any such plea. For the first time the plea based on s. 42 of the
Specific Relief Act was raised before the High Court, and even then the
argument advanced was that the consequential relief should have been one for
partition : the High Court rejected the contention on the ground that the
plaintiff, being in possession of the joint family property, was not bound to
ask for partition if he did not have the intention to separate himself from the
other members of the family.
learned Counsel for the appellant contends that in the plaint the cause of
action for the relief of declaration was given as the execution of the
partition decree through the Commissioner appointed by the Court and,
therefore, the plaintiff should have asked for a permanent injunction
restraining the appellant from interfering with his possession. The appellant
did not take this plea in the written statement; nor was there any issue in
respect thereof, though as many as 12 issues were raised on the pleadings; nor
does the judgment of the learned District Judge disclose that the appellant
raised any such plea. For the first time the plea based on s. 42 of the
Specific Relief Act was raised before the High Court, and even then the
argument advanced was that the consequential relief should have been one for
partition : the High Court rejected the contention on the ground that the
plaintiff, being in possession of the joint family property, was not bound to
ask for partition if he did not have the intention to separate himself from the
other members of the family.
It is not necessary in this case to express our
opinion on the question whether the consequential relief should have been asked
for; for, this question should have been raised at the earliest point of time,
in which event the plaintiff could have asked for necessary amendment to comply
with the provisions of s. 42 of the Specific Relief Act. In the circumstance,
we are not justified in allowing the appellant to raise the plea before us.
opinion on the question whether the consequential relief should have been asked
for; for, this question should have been raised at the earliest point of time,
in which event the plaintiff could have asked for necessary amendment to comply
with the provisions of s. 42 of the Specific Relief Act. In the circumstance,
we are not justified in allowing the appellant to raise the plea before us.
This leaves us with the
only surviving question, namely, whether the suit was barred by limitation.
This point was raised for the first time in the High Court and the High Court
allowed the same to be raised but negatived the contention. The learned Counsel
for the respondent contends that, for the reasons mentioned in regard to the
plea based upon s. 42 of the Specific Relief Act, we should also not allow the
appellant to raise this contention either. But there is an essential
distinction between the two contentions; while in the former case, if the
contention was allowed to be raised, the, respondent would be prejudiced, in
the latter case, even if this plea was taken at the earliest point of time, the
contesting respondent would not have adduced better evidence or put before the
Court further evidence. When the Court asked the learned Counsel to state what
further facts he would have proved in respect of this plea if this contention
was taken earlier, he was not able to suggest any. In the circumstances, when
the appellate Court allowed the appellant to raise the plea of limitation, we
do not think we are justified at this stage to say that the High Court should
not have allowed the plea to be raised.
only surviving question, namely, whether the suit was barred by limitation.
This point was raised for the first time in the High Court and the High Court
allowed the same to be raised but negatived the contention. The learned Counsel
for the respondent contends that, for the reasons mentioned in regard to the
plea based upon s. 42 of the Specific Relief Act, we should also not allow the
appellant to raise this contention either. But there is an essential
distinction between the two contentions; while in the former case, if the
contention was allowed to be raised, the, respondent would be prejudiced, in
the latter case, even if this plea was taken at the earliest point of time, the
contesting respondent would not have adduced better evidence or put before the
Court further evidence. When the Court asked the learned Counsel to state what
further facts he would have proved in respect of this plea if this contention
was taken earlier, he was not able to suggest any. In the circumstances, when
the appellate Court allowed the appellant to raise the plea of limitation, we
do not think we are justified at this stage to say that the High Court should
not have allowed the plea to be raised.
The argument on the
question of limitation is put thus: The plaintiff, respondent herein, had
knowledge of the fraudulent character of the trust deed as early as 1917 or, at
any rate, during the pendency of the partition suit between Rukhmabai and Chandanlal
instituted in the year 1929, and the suit filed in 1940, admittedly after six
years of the said knowledge, would be barred under Art. 120 of the Limition
Act. Article 120 of the Limitation Act reads:
question of limitation is put thus: The plaintiff, respondent herein, had
knowledge of the fraudulent character of the trust deed as early as 1917 or, at
any rate, during the pendency of the partition suit between Rukhmabai and Chandanlal
instituted in the year 1929, and the suit filed in 1940, admittedly after six
years of the said knowledge, would be barred under Art. 120 of the Limition
Act. Article 120 of the Limitation Act reads:
Period Time from which
Description of suit of period begins limitation. to run.
Description of suit of period begins limitation. to run.
120. Suit for which no
period of limitation is Six years When the right provided elsewhere in to sue
accrues.
period of limitation is Six years When the right provided elsewhere in to sue
accrues.
this Schedule.
This Article was
subject to judicial scrutiny both by the Judicial Committee as well as by the
High Court of various States. The leading decision on the subject is that of
the Judicial Committee in Bolo v. Koklan (1). Therein, Sir Benod Mitter,
observed:
subject to judicial scrutiny both by the Judicial Committee as well as by the
High Court of various States. The leading decision on the subject is that of
the Judicial Committee in Bolo v. Koklan (1). Therein, Sir Benod Mitter,
observed:
“There can be no
‘right to sue’ until there is an accrual of the right asserted in the suit and
its infringement, or at least a clear and unequivocal threat to infringe that
right, by the defendant against whom the suit is instituted.” The said
principle was restated and followed by the Judicial Committee in Annamalai
Chattiar v. A.M.K.C.T Muthukaruppan Chettiar (2 ) and in Gobinda Narayan Singh
v. Shain Lal Singh (3). The further question is, if there are successive
invasions or denials of a right, when it can be held that, a person’s right has
been clearly and unequivocally threatened so as to compel him to institute a
suit to establish that right. In Pothukutchi Appa Rao v. Secretary of State
(4), a Division Bench of the Madras High Court had to consider the said
question. In that case, Venkatasiibba Rao, J., after considering the relevant
decisions, expressed his view thus: ” There is nothing in law which says
that the moment a person’s right is denied, he is bound at (1) (1929-30) L.R.
57 I.A, 325, 331.
‘right to sue’ until there is an accrual of the right asserted in the suit and
its infringement, or at least a clear and unequivocal threat to infringe that
right, by the defendant against whom the suit is instituted.” The said
principle was restated and followed by the Judicial Committee in Annamalai
Chattiar v. A.M.K.C.T Muthukaruppan Chettiar (2 ) and in Gobinda Narayan Singh
v. Shain Lal Singh (3). The further question is, if there are successive
invasions or denials of a right, when it can be held that, a person’s right has
been clearly and unequivocally threatened so as to compel him to institute a
suit to establish that right. In Pothukutchi Appa Rao v. Secretary of State
(4), a Division Bench of the Madras High Court had to consider the said
question. In that case, Venkatasiibba Rao, J., after considering the relevant
decisions, expressed his view thus: ” There is nothing in law which says
that the moment a person’s right is denied, he is bound at (1) (1929-30) L.R.
57 I.A, 325, 331.
(2) (1930) I.L.R. 8
Rang. 645.
Rang. 645.
(3) (1930-31) L.R. 58
I.A. 125.
I.A. 125.
(4) A.I.R. 1938 Mad.
193, 198, his peril to bring a suit for declaration. The Government beyond
passing the order did nothing to disturb the plaintiff’s possession. It would
be most unreasonable to hold that a bare repudiation of a person’s title,
without even an overt act, would make it incumbent on him to bring a
declaratory suit “.
193, 198, his peril to bring a suit for declaration. The Government beyond
passing the order did nothing to disturb the plaintiff’s possession. It would
be most unreasonable to hold that a bare repudiation of a person’s title,
without even an overt act, would make it incumbent on him to bring a
declaratory suit “.
He adds at p. 199:
” It is a more
difficult question, what is the extent of the injury or infringement that gives
rise to, what may be termed, a compulsory cause of action ? “
difficult question, what is the extent of the injury or infringement that gives
rise to, what may be termed, a compulsory cause of action ? “
The legal position may
be briefly stated thus: The right to sue under Art. 120 of the Limitation Act
accrues when the defendant has clearly and unequivocally threatened to infringe
the right asserted by the plaintiff in the suit. Every threat by a party to
such a right, however ineffective and innocuous it may be, cannot be considered
to be a clear and unequivocal threat so as to compel him to file a suit.
Whether a particular threat gives rise to a compulsory cause of action depends
upon the question whether that threat effectively invades or jeopardizes the
said right.
be briefly stated thus: The right to sue under Art. 120 of the Limitation Act
accrues when the defendant has clearly and unequivocally threatened to infringe
the right asserted by the plaintiff in the suit. Every threat by a party to
such a right, however ineffective and innocuous it may be, cannot be considered
to be a clear and unequivocal threat so as to compel him to file a suit.
Whether a particular threat gives rise to a compulsory cause of action depends
upon the question whether that threat effectively invades or jeopardizes the
said right.
The facts relevant to the question of limitation in the present
case may be briefly restated: The trust deed was executed in 1916. The suit
house was constructed in 1920. If, as we have held, the trust deed as well as
the construction of the building were for the benefit of the family, its
execution could not constitute any invasion of the plaintiff’s right. Till
1926, the plaintiff’s father, Ratanlal, was residing in that house. In 1928
when Daga challenged the trust deed, the family compromised the matter and
salvaged the house. From 1936 onwards the plaintiff has been residing in the
suit house. It is conceded that he had knowledge of the litigation between
Rukhmabai and Chandanlal claiming the property under the trust deed; but, for
that suit he was not a party and the decision in that litigation did not in any
way bind him or affect his possession of the house.
case may be briefly restated: The trust deed was executed in 1916. The suit
house was constructed in 1920. If, as we have held, the trust deed as well as
the construction of the building were for the benefit of the family, its
execution could not constitute any invasion of the plaintiff’s right. Till
1926, the plaintiff’s father, Ratanlal, was residing in that house. In 1928
when Daga challenged the trust deed, the family compromised the matter and
salvaged the house. From 1936 onwards the plaintiff has been residing in the
suit house. It is conceded that he had knowledge of the litigation between
Rukhmabai and Chandanlal claiming the property under the trust deed; but, for
that suit he was not a party and the decision in that litigation did not in any
way bind him or affect his possession of the house.
But in execution of the
decree, the Commissioner appointed by the Court came to the premises on
February 13, 1937, to take measurements of the house for effecting partition of
the property, when the plaintiff raised objection, and thereafter in 1940,
filed the suit. From the aforesaid facts, it is manifest that the plaintiff’s
right to the property was not effectively threatened by the appellant till the
Commissioner came to divide the property. It was only then there was an
effectual threat to his right to the suit property and the suit was filed
within six years thereafter. We, therefore, hold that the suit was within time.
decree, the Commissioner appointed by the Court came to the premises on
February 13, 1937, to take measurements of the house for effecting partition of
the property, when the plaintiff raised objection, and thereafter in 1940,
filed the suit. From the aforesaid facts, it is manifest that the plaintiff’s
right to the property was not effectively threatened by the appellant till the
Commissioner came to divide the property. It was only then there was an
effectual threat to his right to the suit property and the suit was filed
within six years thereafter. We, therefore, hold that the suit was within time.
In the result, the
appeal fails and is dismissed with costs.
appeal fails and is dismissed with costs.
Appeal dismissed.