MST. Rukhmabai Vs. Lala Laxminarayan
& Ors [1959] INSC 137 (17 November 1959)
SUBBARAO, K.
GAJENDRAGADKAR, P.B.
SHAH, J.C.
CITATION: 1960 AIR 335 1960 SCR (2) 253
CITATOR INFO :
R 1966 SC 470 (13) RF 1967 SC 96 (26)
ACT:
Hindu Law-joint family-Partition-Admissions
of members accepting Partition, value of-New point-When can be allowed to be
raised-Suit for declaration of deed as sham-Right to sue, when
accrues-Limitation-Specific Relief Act, 1877, (1 of 1877), s. 42-Indian Limitation
Act,1908 (IX of 1908), Sch. 1, art. 120.
HEADNOTE:
A joint Hindu family which was heavily
indebted owned extensive properties and business. In 1915 certain members of
the family including one Govindprasad executed a registered deed of relinquishment
in favour of another member. The deed recited that the members of the family
had become separated in 1898 by a deed of relinquishment which was not
registered and so a fresh one was being executed confirming the earlier
arrangement. On February 17, 1916, Govindprasad executed a trust deed in favour
of two minors, Chandanlal, a son of one of his brothers and Rukhmabai, a
daughter of another brother. The trust was created in a sum of Rs. 15,000 for
constructing a building or buying land therewith and paying the net income from
it to the two beneficiaries in equal shares. With a part of this money a site
was purchased and a building was constructed thereon.
On October 25, 1929, Rukhmabai filed a suit
against Chandanlal for partition of the said property and obtained a decree.
When the Commissioner appointed by the Court went to effect the partition on
February 13, 1937, the respondent, who is a brother of Chandanlal, obstructed
him, and, on October 8, 1940, he filed a suit for a declaration that the trust
deed executed by Govindprasad was a sham document and that the property was
joint family property.
Apart from oral and documentary evidence the
appellant relied also upon certain admissions made by members of the family
accepting the partition. The Court dismissed the suit holding that Govindprasad
had become separated in 1898, that the trust deed was genuine and that the
trust money was his self-acquired property. In the appeal before the High Court
by the respondent the appellant raised two new pleas, namely, (i) that the suit
for a mere declaration was barred by s. 42 of the Specific Relief Act and (ii)
that the suit was barred by limitation under art. 12 of the Limitation Act as
it was not filed within six years of the knowledge of the respondent of the
fraudulent nature of the transactions which he had in 1917, or at least in
1929, when the appellant filed her suit for partition. The High Court rejected
both these contentions, held that the two relinquishment deeds and the deed of
trust were sham documents and set aside the decree of the trial court and
decreed the 33 254 respondent's suit. The appellant obtained a certificate and
appealed.
Held, that the documents in question were
sham documents, that the property in suit was joint family property and that
the suit had been rightly decreed.
The admissions made by one or other members
of the family to meet particular contingencies or to get an advantage were not
of much value in determining the question whether some of the members of the
joint Hindu family had separated.
Persons sometimes made statements which
served their purpose, or proceeded upon ignorance of the true position ;
and it was not their statements but their
relations, with the estate, which should be taken into consideration in determining
the issue.
Alluri Venkatapathi Raju v. Dantuluri
Venkatanarasimha Raju, (1935-36) L.R. 63 I.A. 397, relied on.
The new point raised by the appellant that
the suit was barred by s42 of the Specific Relief Act could not be allowed to
be raised as it was not raised in the trial Court. If the point had been raised
at the earliest stage the respondent could have asked for the necessary
amendment to comply with the provisions of S. 42It was a well settled rule of
practice not to dismiss suits automatically but to allow the plaintiff to make
the necessary amendment if he sought to do so. But the new point of limitation
could be allowed to be raised in appeal as even if it had been raised at the
earliest stage the respondent could not have pleaded or proved any new facts to
meet the point.
The suit was not barred by limitation. The
right to sue under art. 120 of the Limitation Act accrued when the defendant
clearly and unequivocally threatened to infringe the right asserted by the
plaintiff. Every threat to such a right was not a clear and unequivocal threat
as to compel the plaintiff to file a suit. The execution of the Trust deed in
1916 and the construction of the house did not constitute any invasion of the
respondent's right as the deed was a sham document executed for the benefit of
the family. Till 1926 the respondent's father lived in the house and since 1936
the respondent had been residing in the house. The decree in the suit filed by
Rukhmabai could not bind him or affect his possession of the house. The
respondent's right was not effectively threatened till the commissioner came to
partition the property on February 17, 1937, and the suit was filed within six
years from that date.
Bolo v. Koklan, (1929-30) L.R. 57 I.A. 325,
Annamalai Chettiar v. A.M.K.C.T. Muthukaruppan Chettiar, (1930) I.L.R. 8 Rang.
645, Govinda Narayan Singh v. Sham Lal Singh, (193031) L.R. 58 I.A. 125 and
Pothukutchi Appa Rao v. Secretary of State, A.I.R. 1938 Mad. 193, relied on.
CIVIL APPELLATE JURISDICTION: Civil Appeal
No, 173 of 1955, 255 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.
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.
(The geneology is given on the next page).
256 Ramesahai (d. 1897) | 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. Annapurnabai (defandant 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) | Daughter Tarabai == Lala
Chhotelal 257 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. 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. 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 258 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 sometime 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 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 money lending,
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
259 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 negative 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 Govind prasad 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 visa-vis the family property, A division 260 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.
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:
" ... 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.
261 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. 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. The ostensible purpose
of the execution of the document is 34 262 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:
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.
"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 263 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. D54 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 expert examined the admitted
signatures on document executed in the years 1903 and 1904 while 264 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. 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:
(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 265 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:
" 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." Mudholkar, J., agreed with the
observations of Hidayatullah, J. We must also give due weight to the 266
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. 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.
267 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. 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 268 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. 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. 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 269 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
35 270 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 P34-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. P34 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 saledeeds 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.
271 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.
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. 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 272 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 anotherlink 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.
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.
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 273 that he was treating some properties as his
selfacquisitions. 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 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 there from 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, 274 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 brotherin-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 hedescribes
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 275 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. 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.
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 276 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. 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. P5 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:
" 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 277 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.
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 36 278 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. D11
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.
279 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. D1 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 D11 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 saledeed, 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 contradictory
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 onthe
basis of the relations of the various parties with the estate.
280 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. 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 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 281
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 construction 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. 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 282 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. 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 283 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 isnothing 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 construction 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 284 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 there under, 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 becomes 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, 285 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.
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. 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 37 286 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.
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.
287 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:
Period Time from which 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.
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:
"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.
(2) (1930) I.L.R. 8 Rang. 645.
(3) (1930-31) L.R. 58 I.A. 125.
(4) A.I.R. 1938 Mad. 193, 198, 288 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 ? " 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.
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.
But in execution of the decree, the Commissioner appointed by the Court came to
the premises on February 13, 1937, to take 289 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 dismissed.
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