Hindu Joint family - previous compromise decree restricts the rights of mother to life enjoyment - suit schedule property stands in the name of mother - when property purchased in the name of mother out of joint family funds, mother can not sold the same to one the of daughter-in-law - Hence the suit for declaration and possession and damages not arise by the purchaser =
whether Sharbati Bai was
possessed of independent resources and whether the acquisition of the suit
schedule property was out of those resources was not adequate.?
When neither plaintiff nor
Sharbati Bai were examined to speak about the income of Sharbati Bai, it is
difficult to conclude that she possessed of resources to purchase the property.
Added to that, the joint family comprising of the husband and sons of Sharbati
Bai possessed adequate resources from agriculture and business. The manner in
which Sharbati Bai acted, vis--vis the properties, that were standing in her
name i.e., a rice mill in Shamshirgunj and suit schedule property would clearly
disclose that she did not exercise rights of exclusive ownership over them and
on the other hand, treated them as the properties held by the joint family.
Whether the Mother being a joint family member holds the status of coparcener ?
An:- No
More often than not, a joint family, which comprises of several male and
female members with close relationship is treated as synonymous with
coparcenary.
The use of the expression i.e. "joint family" to all such entities
some times blurs the subtle distinction. Though the practice of referring to a
joint family in its strict sense and a coparcenary with that expression cannot
be found fault with; at least, in the context of partition, a restricted
approach is warranted. It is only such persons, who are conferred with the
right to a share in the joint family properties and who can seek partition, that
can be treated as members of the joint family, whenever an issue pertaining
division of the properties arises.
Under Hindu Law, such persons are treated as coparceners.
In the other instances, joint family
can take in its fold, not only the coparceners, but also others, outside the
frame, depending upon the proximity of relationship.
For instance, though the
mother of an individual cannot be treated as a coparcener, she is certainly be
treated as a member of the joint family, in the ordinary parlance.
Whether the unregistered compromise decree can be received in evidence for collateral purpose ?
An:- Yes
The objection raised by the plaintiff is that Ex.B-2 cannot be received in
evidence, for want of registration.
The objection may hold good, if any rights are claimed by the parties to Ex.B-2,
on that basis.
The limited purpose for which it was filed was, to demonstrate
that Sharbati Bai ceased to be the owner of the suit property by the time, she
executed Exs.A-3 and A-4.
Even if there exists any prohibition in law, as to
the admissibility of Ex.B-2 for want of registration, it can certainly be looked
into, for collateral purposes, under proviso to Section 49.
The defendants are not claiming any rights under Ex.B-2.
Added to that the principle laid down by
the Supreme Court in Mst. Subhadra v. Narsaji Chenaji Marwadi7 would apply to
the facts of the case, if only any rights under the deed of compromise are
sought to be enforced.
Once the document is filed by a person who is not a
party to such decree, that too for a collateral purpose, it cannot be said to be
inadmissible.
Whether the withdrawal of one L.P.A by defendant bars him to contest other L.P.A.filed by the plaintiff - arose out of same judgment ?
An:- No
Before the commencement of arguments in this L.P.A., the defendants have
withdrawn L.P.A.226 of 1999.
On behalf of plaintiffs, it is urged that such
withdrawal would disable the defendants from contesting the other L.P.A.
That
contention is taken up at the outset.
The judgment rendered by the learned single Judge of this Court in C.C.C.A.No.1
of 1992 gave rise to two L.P.As, i.e. 166 of 1998 and 226 of 1999. While the
plaintiff filed C.C.C.A.No.166 of 1998, feeling aggrieved by the findings on
points 2 and 3, the defendants filed L.P.A.No.266 of 1999 assailing the findings on
points 1 and 4. This is not a case where two appeals arose out of two separate
proceedings, decided through a common judgment. If the appeals have arisen out
of separate decrees passed in different appeals, albeit, through a common
judgment, the dismissal of one such appeal or failure to file an appeal even
where it was necessary, would attract the principle underlying Section 11 of
C.P.C., and would adversely affect the other appeals. That is not the case
here. Further if some of the findings in a judgment rendered by a Court are
against a particular party, it can canvass the correctness thereof before an
appellate forum, if an appeal is fled by the other party. Rule 33 of Order 41
C.P.C., confers power on the Appellate Court, in this behalf. It is not
necessary that the party who felt aggrieved only by certain observations, and
not the final result, must file an appeal. For all practical purposes, filing
of L.P.A.No.266 of 1999 was superfluous. Without even filing cross-objections,
defendants could have challenged the findings on points 1 and 2 in C.C.C.A.No.1
of 1992. Therefore, the objection raised by the learned counsel for the
plaintiff cannot be sustained.
2014 ( January part ) judis.nic.in/judis_andhra/filename=10796
THE HON'BLE SRI JUSTICE L. NARASIMHA REDDY AND THE HON'BLE SRI USTICE M.S.K.JAISWAL
L.P.A.No.166 of 1998
02-01-2014
Smt. Sharada Bai ..appellant
Smt.Jamuna Bai & others..Respondents
Counsel for the appellant: Sri B. Adinarayana Rao,
Sr.Counsel
Counsel for the Respondents: Sri M.R.K.Chowdary,
Sr.Counsel
<GIST:
>HEAD NOTE:
?Cases referred
1) AIR 1964 Patna 543
2) AIR 1969 Madras 329
3) AIR 1983 Orissa 135
4) AIR (34) 1947 Privy Council 189
5) AIR 1969 SC 1076
6) AIR 1985 SC 716
7) AIR 1966 SC 806
THE HON'BLE SRI JUSTICE L. NARASIMHA REDDY
AND
THE HON'BLE SRI JUSTICE M.S.K. JAISWAL
L.P.A.No.166 of 1998
JUDGMENT: (Per the Hon'ble Sri Justice L. Narasimha Reddy)
This Letters Patent Appeal is being decided after remand by the Hon'ble Supreme
Court. It arises out of O.S.No.1110 of 1981
on the file of the V Additional Judge, City Civil Court, Hyderabad.
The facts, in brief, are as under: For the sake of convenience, the parties are
referred to, as arrayed in the suit.
One Ganesh Lal and his wife Sharbati Bai had four sons, viz., Brij Mohan,
Shambudayal Gupta, Jagadish Pershad and Omprakash Gupta.
Sharbati Bai purchased
a house near Charkaman, Hyderabad through sale deed dated 02-09-1960
(Ex.A-28) from her close relation, by name, Gilli Bai.
The plaintiff, Smt.
Sharada Bai, wife of the youngest son, Sri Omprakash Gupta is said to have
purchased the suit schedule property through two sale deeds dated 05-12-1980
(Ex.A-3) and 04-06-1981 (Ex.A-4) from her mother-in-law, Sharbati Bai.
According
to her, there are three tenants in the premises but the wife and son of her
brother-in-law, Mohan Gupta have trespassed into the property covered by Ex.A-3.
She filed the suit for declaration of title in respect of plaint 'A' and 'B'
schedule properties; recovery of plaint 'A' schedule, perpetual injunction in
respect of plaint 'B' schedule, and for recovery of damages @ Rs.6,000/- per
month from the date of filing of the suit, and @ Rs.2,000/- per month prior to
the filing of the suit.
The plaintiff pleaded that the suit schedule was the self-acquisition of her
mother-in-law Sharbati Bai, and that she has purchased the same for valuable
consideration under Exs.A-3 and A-4.
She pleaded that neither defendants 1 and
2, nor any other members of the family have any right over the property.
The suit was contested by the defendants 1 and 2.
They pleaded that the
property was actually purchased by Sri Ganesh Lal with the joint family funds.
According to them, the joint family had extensive properties, including business
in agriculture, rice mill and jewellery, and part of the income therefrom was
utilized in purchasing the property.
It was pleaded that one of the sons by
name, Jagadish Pershad filed O.S.No.1380 of 1978 in the Court of
III Assistant Judge, City Civil Court, Hyderabad, for perpetual injunction in
respect of the present suit schedule property against his mother, Sharbati Bai
and husband of the plaintiff, Omprakash Gupta and in the said suit, a compromise
was entered into wherein Sharbati Bai kept for herself life-estate vis--vis the
suit schedule property and vested remainder in favour of her four sons,
and in that view of the matter, the so-called sale in favour of the plaintiff is
untenable.
The trial Court decreed the suit through judgment dated
25-09-1987. It was declared that the plaintiff has title to the suit property.
The eviction of defendants 1 and 2 from plaint 'A' schedule property was ordered
and perpetual injunction in relation to 'B' schedule was granted. However, the
relief of recovery of damages and future rents was denied.
The defendants 1 and 2 (hereinafter referred to as 'the defendants') filed
C.C.C.A.No.1 of 1992 before this Court against the judgment and decree in the
suit.
A learned single Judge of this Court took the view that the sale deed,
Exs. A-3 and A-4 are valid and genuine and that the compromise entered into in
O.S.No.1380 of 1978 is not binding upon Sharbati Bai.
However, it was held that
the suit schedule property is the joint family property of Ganesh Lal and his
sons, and that Sharbati Bai did not have valid title to execute Exs.A-3 and A-4.
The plaintiff filed the present L.P.A., against the findings of the learned
single Judge in relation to the nature of the suit schedule property, and right
of Sharbati Bai, to sell the property to the plaintiff.
Defendants, on the
other hand, filed L.P.A.266 of 1999, feeling aggrieved by the findings in
relation to the genuinity of the sale transactions and the binding nature of the
compromise, in O.S.No.1380 of 1978.
A Division Bench of this Court upheld the findings of the learned single Judge
about the sale deeds, but reversed the findings in relation to the nature of the
suit schedule property and the right of Sharbati Bai to execute the sale deeds.
Since all the findings went against the defendants, they filed Civil Appeal
Nos.7153 and 7154 of 2003 against the decrees in both the L.P.As. Through its
order dated 11-08-2010, the Hon'ble Supreme Court has set aside the judgment
rendered in the L.P.As and remanded the matter to this Court.
It was observed
that the discussion undertaken on the question as to
whether Sharbati Bai was
possessed of independent resources and whether the acquisition of the suit
schedule property was out of those resources was not adequate. Accordingly the
matter was remanded for fresh consideration and disposal.
Sri B. Adinarayana Rao, learned Senior Counsel for the plaintiff submits that
the plaintiff has her own independent sources of income and purchased the suit
schedule property with the same.
He contends that the occasion to invoke or
apply the presumption about the nature of the properties in relation to a joint
family, would arise only vis--vis the coparceners.
He submits that
though it is well-settled that, if it is proved that there existed a joint family nucleus,
sufficient to acquire an item of property, the burden, to prove that an item of
property was acquired with the funds of a coparcener, who claims the property
exclusively to himself and on such proof, it cannot be treated as joint family property and this cannot be applied to a person who is not a coparcener.
He submits that Sharbati Bai was not a
coparcener of the joint family and the suit property was not part of the
coparcenery.
Learned Senior Counsel has placed reliance upon the judgments of
the High Courts of Patna, Madras and Orissa in Yugal Kishore Sinha v. Nagendra
Prasad Yadav1, Nagayasami Naidu and others v. Kochadai Naidu2 and Smt Manohari
Devi and others v. Choudhury Sibanava Das and others3 in support of his
contention.
He submits that once it is not disputed that the suit property was
purchased in the name of Sharbati Bai, the burden rested squarely upon
defendants to establish that it was a benami transaction, and not upon the plaintiff to prove that Sharbati Bai had her own funds to purchase the property.
Arguments on behalf of the plaintiff on other aspects were supplemented by the
learned counsel Sri J. Prabhakar.
He submits that the record discloses that
Sharbati Bai owned properties such as a rice mill, and other sources of income,
and it cannot be said that there was anything unnatural about her acquiring the
suit property.
He submits that the trial Court as well as the learned single
Judge of this Court have correctly taken the view that the compromise decree in
O.S.No.1380 of 1978 is inadmissible in evidence, since it was not registered, as
required under law.
Learned counsel further submits that the fact that the
permission to construct new building after the suit property was purchased in
1960, was obtained in the name of Sharbati Bai, and absence of any evidence to
show that the construction was made with the aid of the funds of the family
would establish that the suit schedule property was owned, exclusively by
Sharbati Bai. Other contentions are also urged.
Sri M.R.K. Chowdary, learned Senior Counsel for the defendants submits that
though Sharbati Bai cannot be strictly treated as a member of the joint family,
any property acquired in her name, with the funds of the joint family, would
certainly make it available for partition among the coparceners.
He submits
that Sharbati Bai was not possessed of independent resources of income,
sufficient to purchase the suit schedule property, and it was only with the
funds of the joint family, that it was purchased.
He contends that it was admitted on behalf of the plaintiff that the rice mill,
which was said to have been owned by Sharbati Bai, has fallen to the share of
Shambu Dayal Gupta, one of her sons, and that itself would show that the rice
mill itself was owned by the joint family, notwithstanding the fact that it was
in the name of Sharbati Bai.
Learned Senior Counsel further submits that the husband of the plaintiff brought
into existence Exs.A-3 and A-4 by misleading or coercing Sharbati Bai and the
very fact that she was not examined though she was alive, not only through out
the pendency of the suit, but also long thereafter, would disclose that the
plaintiff was afraid that truth would come out if Sharbati Bai is examined as a
witness.
He contends that the compromise decree passed in a suit is certainly
admissible in evidence, notwithstanding the absence of registration, and even
otherwise, the contents thereof can be taken note of, by applying the principle
underlying proviso to Section 49 of the Registration Act. He too placed
reliance upon quite large number of precedents.
As observed earlier, this matter is heard at length, after remand.
Though the
observation of the Supreme Court was only
in relation to the finding about the possession of funds by Sharbati Bai,
arguments are advanced on all facts and relevant law.
The trial Court framed four issues for consideration, viz.,
1. Whether the sale deeds dt.5-12-1980 and 4-6-1981 are true, valid and binding?
2. Whether the defendants trespassed into the suit building on 1-7-81 and
whether the plaintiff's entitled to receive the costs?
3. Whether the plaintiff is entitled to declaration of title, permanent
injunction and damages as claimed?
4. Whether the suit is not maintainable without relief to avoid the compromise
in O.S.No.1380/78 on the file of the III Asst. Judge, City Civil Court,
Hyderabad?
On behalf of the plaintiff, PWs 1 to 3 were examined and Exs.A-1 to A-47 were
filed. On behalf of the defendants DWs 1 and 2 were examined and Exs.B-1 to B-4
were filed. Exs. C-1 to C-7 and Ex.X-1 were also taken on record. The suit was
decreed.
In C.C.C.A.1 of 1992, a learned single Judge framed the following points for
consideration:
1. Whether the agreement of sale Ex.A2 and sale deeds Exs.A3 and A4 are valid or
sham or nominal?
2. Whether the suit property is the joint family property of Ganeshlal and his
sons or the self-acquired property of Smt.Sharbati Bai?
3. Whether Sharbati Bai could convey valid title under Exs.A3 and A4 in favour
of the plaintiff?
4. Whether the compromise entered into in O.S.1380/78 is hit by Sec.17 of the
Registration Act and the provisions of the Indian Stamp Act and is not binding
upon Sharbati Bai?
While points 1 and 4 were answered against the plaintiff,
points 2 and 3 were answered in her favour.
In view of the elaborate submissions made by the learned Senior Counsel for the
parties, and the observations made by the Hon'ble Supreme Court, while remanding
the matter, we find that the following points arise for consideration:
a) Whether Sharbati Bai was possessed of sufficient funds to purchase the suit
schedule property through Ex.A-28, dated 02-09-1960;
b) Whether Sharbati Bai treated the suit schedule property as her exclusive one
or as part of the joint family property of her sons and husband;
c) Whether the sale of the suit schedule property through Exs.A-3 and A-4 is
valid and legal; and
d) Whether the decree passed by the trial Court and upheld by the learned single
Judge of this Court can be sustained in law.
Before the commencement of arguments in this L.P.A., the defendants have
withdrawn L.P.A.226 of 1999.
On behalf of plaintiffs, it is urged that such
withdrawal would disable the defendants from contesting the other L.P.A.
That
contention is taken up at the outset.
The judgment rendered by the learned single Judge of this Court in C.C.C.A.No.1
of 1992 gave rise to two L.P.As, i.e. 166 of 1998 and 226 of 1999. While the
plaintiff filed C.C.C.A.No.166 of 1998, feeling aggrieved by the findings on
points 2 and 3, the defendants filed L.P.A.No.266 of 1999 assailing the findings on
points 1 and 4. This is not a case where two appeals arose out of two separate
proceedings, decided through a common judgment. If the appeals have arisen out
of separate decrees passed in different appeals, albeit, through a common
judgment, the dismissal of one such appeal or failure to file an appeal even
where it was necessary, would attract the principle underlying Section 11 of
C.P.C., and would adversely affect the other appeals. That is not the case
here. Further if some of the findings in a judgment rendered by a Court are
against a particular party, it can canvass the correctness thereof before an
appellate forum, if an appeal is fled by the other party. Rule 33 of Order 41
C.P.C., confers power on the Appellate Court, in this behalf. It is not
necessary that the party who felt aggrieved only by certain observations, and
not the final result, must file an appeal. For all practical purposes, filing
of L.P.A.No.266 of 1999 was superfluous. Without even filing cross-objections,
defendants could have challenged the findings on points 1 and 2 in C.C.C.A.No.1
of 1992. Therefore, the objection raised by the learned counsel for the
plaintiff cannot be sustained.
Points (a) & (b):
The entire controversy revolves around the question as to
whether the
Sharbati Bai in whose name the suit schedule property was purchased, was
possessed of adequate funds.
As submitted by
Sri B. Adinarayana Rao, learned Senior Counsel, there is phenomenal difference
in the context of placing of burden in relation to an issue, as to whether a
particular item of property, is held by the joint family or exclusively by a member thereof.
The judgment of
the Privy Council in Appalaswami v. Suryanarayanamurti and others4, and that of
the Supreme Court
in Mudigowda Gowdappa Sankh and others v. Ramchandra Revgowda Sankh5 arose out
of the suits for partition, and there was no dispute that the parties thereto
were coparceners. The same principle cannot be applied, in a case where the
plea as to exclusive ownership is taken by a person, who is not a coparcener.
Reference in this context may be made to the judgment of the Supreme Court, in
State of Maharashtra v. Narayan Rao6.
The following observation in Mayne's Hindu Law was quoted with approval:
"264. It is evident that there can be no limit to the number of persons of
whom a Hindu joint family consists, or to the remoteness of their descent from
the common ancestor, and consequently to the distance of their relationship from
each other.
But the Hindu coparcenary is a much narrower body.......For,
coparcenary in the Mitakshara law is not identical with coparcenary as
understood in English law :
when a member of a joint family dies, "his right
accrusces to the other members by survivorship, but if a coparcener dies, his or
her right does not accrue to the other coparceners, but goes to his or her own
heirs".
When we speak of a Hindu joint family as constituting a coparcenary, we
refer not to the entire number of persons who can trace descent from a common
ancestor, and amongst whom no partition has ever taken place; we include only
those persons who, by virtue of relationship, have the right to enjoy and hold
the joint property, to restrain the acts of each other in respect of it, to
burden it with their debts, and at their pleasure to enforce its partition.
Outside this body, there is a fringe of persons possessing only inferior rights
such as that of maintenance, which however tend to diminish as the result of
reforms in Hindu law by legislation."
More often than not, a joint family, which comprises of several male and
female members with close relationship is treated as synonymous with
coparcenary.
The use of the expression i.e. "joint family" to all such entities
some times blurs the subtle distinction. Though the practice of referring to a
joint family in its strict sense and a coparcenary with that expression cannot
be found fault with; at least, in the context of partition, a restricted
approach is warranted. It is only such persons, who are conferred with the
right to a share in the joint family properties and who can seek partition, that
can be treated as members of the joint family, whenever an issue pertaining
division of the properties arises.
Under Hindu Law, such persons are treated as coparceners.
In the other instances, joint family
can take in its fold, not only the coparceners, but also others, outside the
frame, depending upon the proximity of relationship.
For instance, though the
mother of an individual cannot be treated as a coparcener, she is certainly be
treated as a member of the joint family, in the ordinary parlance.
It is quite possible to argue that not being a coparcener of the joint
family in its strict sense, Sharbati Bai did not owe explanation to anyone, as
to how she acquired the suit schedule property.
However, we refrain from
undertaking any discussion in this behalf, in view of the specific observations
made by the Hon'ble Supreme Court, while remanding the matter.
The relevant portion reads:
"...The learned Single Judge had proceeded on the basis that the presumption
regarding the joint family character of the property had remained unrebutted for
no evidence to displace the presumption had been led.
But the Division Bench has not satisfactorily dealt with that aspect, while
taking a contrary view. We are not inclined in these appeals to reappraise the
evidence to determine whether or not Sharbati Bai possessed any independent
resources and whether the acquisition in question was made out of those
resources. In our opinion remand of the matter back to the High Court for a
fresh disposal in accordance with law is a better course..."
From this, it is evident that Their Lordships wanted this Court to decide,
whether Sharbati Bai was possessed of independent resources, that enabled her to
purchase the suit schedule property.
The best person to speak about this was, Sharbati Bai herself. Not only
in this context, but also from the point of view of proving Exs.A-3 and A-4, her
evidence was material. The plaintiff did not enter the witness box. Sharbati
Bai was alive till the year 1991, i.e. for full length of the pendency of the suit, and part of the pendency of CCCA No.1 of 1992. Failure on the part of the plaintiff to examine Sharbati Bai
gives a scope for drawing inference, provided for under law.
Throughout the length and breadth of the oral evidence, adduced by the
plaintiff, extensive reference was made to the various steps taken by Sharbati
Bai.
It was mentioned that, she had a rice mill and the income derived
therefrom was utilized in purchasing the suit schedule property.
The defendants, on the other hand, pleaded that the said rice mill, though was
standing in the name of Sharbati Bai, was owned by the joint family.
One of the undisputed facts is that, out of the four brothers, Shambu
Dayal Guptha started living separately from 1964 onwards. At more places than
one, it was mentioned that he was given his share of property in 1964 itself.
In the cross-examination of DW-2, the 1st defendant, the following suggestion
was made on behalf of the plaintiff:
"...The Rice Mill of Shamshirgunj was also in the name of my mother in
law. I do not know if my mother in law gave Rice mill to Shambu dayal in 1964
when he insisted...
...I do not know if Sharbathi Bai was having income from her lands in village.
It is not true to suggest that Sharbathi Bai was having gold, jewellery and
income and that she had capacity to purchase the land. It is not true to
suggest that Sharbathi Bai constructed the suit house with her own funds..."
It needs to be noted that the so-called giving of the Rice Mill was neither
through gift, nor through other modes of transfer. If it was given towards the
share of Shambu Dayal Gupta, it obviously means that though the mill stood in
the name of Sharbati Bai, it was treated as the one, owned by the joint family.
Though it was mentioned that Sharbati Bai had lands also, no evidence in that
behalf was adduced.
The effort of an individual to speak about the income or assets of a third
party has its own limitations.
If such third party is not available to speak,
one has only to wander in the realm of speculation, for want of exact
information.
However, if such third party is very much available, but the
person adducing evidence to discharge the burden in this behalf fails to examine
the third party, a presumption provided for under Section 114 of the Evidence Act deserves to be
drawn.
One strong circumstance, which has some relevance to point (d) is that in
O.S.No.1380 of 1978 filed by one of the sons of Sharbati Bai, a compromise was
entered into. PW-1 herein i.e. the husband of the plaintiff, and Sharbati Bai
were parties to that suit.
The compromise decree that was passed in, in that suit (Ex.B-2) contained the
following clause, in relation to the suit schedule property:
"Clause (e) ...House No.21-2-131/7 to 9 Charkaman shall belong to and in
possession of Sharbathi bai and Jamunabai and they shall have life interest in
this house.
They shall be entitled to receive benefits with enjoyment for their
lifes time in this house.
They shall be entitled for the possession of the said
house and to utilize the rents of this house till their respective life time.
After their death the would be wife of Jagmohan Alias Anil Kumar shall become
absolute owner of the said property.
However in the event of the no marriage
took place of Sri Jagmohan alias Anil Kumar or the marriage if dissolved or
death of his wife, the said Jagmohan alias Anil Kumar shall become absolute
owner of the said property exclusively.
Shambudayal Gupta, Jagdishprashad and
Omprakash Gupta shall have no interest or rights or any kind whatsoever in the
said house..."
The admissibility of the compromise decree would be dealt with while
discussing point (d) in detail.
In case Sharbati Bai was the absolute owner of the property, there was no
question of her relinquishing the rights in favour of third parties, in the
manner indicated in the above paragraphs.
The plaintiff did not examine any witness, closely associated with the income or
administration of properties of her mother-in-law, Sharbati Bai.
PW-1 is the husband of the plaintiff, and he did not speak of any
independent resources of his mother. PW-2 is one of the tenants. His evidence
is only to the effect that his tenancy was attorned to the plaintiff. PW-3 is
none other than the brother of the plaintiff. When neither plaintiff nor
Sharbati Bai were examined to speak about the income of Sharbati Bai, it is
difficult to conclude that she possessed of resources to purchase the property.
Added to that, the joint family comprising of the husband and sons of Sharbati
Bai possessed adequate resources from agriculture and business. The manner in
which Sharbati Bai acted, vis--vis the properties, that were standing in her
name i.e., a rice mill in Shamshirgunj and suit schedule property would clearly
disclose that she did not exercise rights of exclusive ownership over them and
on the other hand, treated them as the properties held by the joint family.
Points (a) and (b) are accordingly answered against the plaintiff.
Point (c):
At least after the matter was remanded, no effort was made by the
plaintiff to place any material before this Court, to establish that her vendor
was possessed of adequate properties.
It has already been mentioned that the various acts and omissions on the part of
the Sharbati Bai indicated that she never exercised absolute rights of ownership
over the suit schedule property.
Once it is held that Sharbati Bai did not
possess adequate resources to purchase the property, the inescapable conclusion
is that it was purchased in her name by her husband Ganesh Lal with the funds of
the joint family. Added to that, she sacrificed whatever rights she had in it,
through the compromise, evidenced through Ex.B-2, which was long prior to the execution of Exs.A-3 and A-4 in favour of the plaintiff. Therefore, no valid title can be said to have been transferred by Sharbati Bai, in favour of the plaintiff, vis--vis the suit schedule property.
Point (d):
The defendants intended to rely upon Ex.B-2, a memorandum of compromise,
in O.S.No.1380 of 1978. That was filed for the relief of injunction. However,
as between the members of the same family, several other proceedings ensued.
With the intervention of some of the well-wishers, a compromise was brought, to
put an end to all the proceedings, including a criminal complaint filed by one
of the sons of Ganesh Lal and Sharbati Bai against his brothers.
PW-1 herein, who figured as a party to that suit, did not dispute the truth of
Ex.B-2.
On the other hand, he made extensive reference to it in his deposition.
The objection raised by the plaintiff is that Ex.B-2 cannot be received in
evidence, for want of registration.
The objection may hold good, if any rights are claimed by the parties to Ex.B-2,
on that basis.
The limited purpose for which it was filed was, to demonstrate
that Sharbati Bai ceased to be the owner of the suit property by the time, she
executed Exs.A-3 and A-4.
Even if there exists any prohibition in law, as to
the admissibility of Ex.B-2 for want of registration, it can certainly be looked
into, for collateral purposes, under proviso to Section 49.
The defendants are not claiming any rights under Ex.B-2.
Added to that the principle laid down by
the Supreme Court in Mst. Subhadra v. Narsaji Chenaji Marwadi7 would apply to
the facts of the case, if only any rights under the deed of compromise are
sought to be enforced.
Once the document is filed by a person who is not a
party to such decree, that too for a collateral purpose, it cannot be said to be
inadmissible.
For the foregoing reasons, the L.P.A. is dismissed.
The miscellaneous petitions filed in this appeal shall also stand disposed of.
There shall be no order as to costs.
_____________________
L. NARASIMHA REDDY, J.
______________________
M.S.K. JAISWAL, J.
Dt.02-01-2014.
whether Sharbati Bai was
possessed of independent resources and whether the acquisition of the suit
schedule property was out of those resources was not adequate.?
When neither plaintiff nor
Sharbati Bai were examined to speak about the income of Sharbati Bai, it is
difficult to conclude that she possessed of resources to purchase the property.
Added to that, the joint family comprising of the husband and sons of Sharbati
Bai possessed adequate resources from agriculture and business. The manner in
which Sharbati Bai acted, vis--vis the properties, that were standing in her
name i.e., a rice mill in Shamshirgunj and suit schedule property would clearly
disclose that she did not exercise rights of exclusive ownership over them and
on the other hand, treated them as the properties held by the joint family.
Whether the Mother being a joint family member holds the status of coparcener ?
An:- No
More often than not, a joint family, which comprises of several male and
female members with close relationship is treated as synonymous with
coparcenary.
The use of the expression i.e. "joint family" to all such entities
some times blurs the subtle distinction. Though the practice of referring to a
joint family in its strict sense and a coparcenary with that expression cannot
be found fault with; at least, in the context of partition, a restricted
approach is warranted. It is only such persons, who are conferred with the
right to a share in the joint family properties and who can seek partition, that
can be treated as members of the joint family, whenever an issue pertaining
division of the properties arises.
Under Hindu Law, such persons are treated as coparceners.
In the other instances, joint family
can take in its fold, not only the coparceners, but also others, outside the
frame, depending upon the proximity of relationship.
For instance, though the
mother of an individual cannot be treated as a coparcener, she is certainly be
treated as a member of the joint family, in the ordinary parlance.
Whether the unregistered compromise decree can be received in evidence for collateral purpose ?
An:- Yes
The objection raised by the plaintiff is that Ex.B-2 cannot be received in
evidence, for want of registration.
The objection may hold good, if any rights are claimed by the parties to Ex.B-2,
on that basis.
The limited purpose for which it was filed was, to demonstrate
that Sharbati Bai ceased to be the owner of the suit property by the time, she
executed Exs.A-3 and A-4.
Even if there exists any prohibition in law, as to
the admissibility of Ex.B-2 for want of registration, it can certainly be looked
into, for collateral purposes, under proviso to Section 49.
The defendants are not claiming any rights under Ex.B-2.
Added to that the principle laid down by
the Supreme Court in Mst. Subhadra v. Narsaji Chenaji Marwadi7 would apply to
the facts of the case, if only any rights under the deed of compromise are
sought to be enforced.
Once the document is filed by a person who is not a
party to such decree, that too for a collateral purpose, it cannot be said to be
inadmissible.
Whether the withdrawal of one L.P.A by defendant bars him to contest other L.P.A.filed by the plaintiff - arose out of same judgment ?
An:- No
Before the commencement of arguments in this L.P.A., the defendants have
withdrawn L.P.A.226 of 1999.
On behalf of plaintiffs, it is urged that such
withdrawal would disable the defendants from contesting the other L.P.A.
That
contention is taken up at the outset.
The judgment rendered by the learned single Judge of this Court in C.C.C.A.No.1
of 1992 gave rise to two L.P.As, i.e. 166 of 1998 and 226 of 1999. While the
plaintiff filed C.C.C.A.No.166 of 1998, feeling aggrieved by the findings on
points 2 and 3, the defendants filed L.P.A.No.266 of 1999 assailing the findings on
points 1 and 4. This is not a case where two appeals arose out of two separate
proceedings, decided through a common judgment. If the appeals have arisen out
of separate decrees passed in different appeals, albeit, through a common
judgment, the dismissal of one such appeal or failure to file an appeal even
where it was necessary, would attract the principle underlying Section 11 of
C.P.C., and would adversely affect the other appeals. That is not the case
here. Further if some of the findings in a judgment rendered by a Court are
against a particular party, it can canvass the correctness thereof before an
appellate forum, if an appeal is fled by the other party. Rule 33 of Order 41
C.P.C., confers power on the Appellate Court, in this behalf. It is not
necessary that the party who felt aggrieved only by certain observations, and
not the final result, must file an appeal. For all practical purposes, filing
of L.P.A.No.266 of 1999 was superfluous. Without even filing cross-objections,
defendants could have challenged the findings on points 1 and 2 in C.C.C.A.No.1
of 1992. Therefore, the objection raised by the learned counsel for the
plaintiff cannot be sustained.
2014 ( January part ) judis.nic.in/judis_andhra/filename=10796
THE HON'BLE SRI JUSTICE L. NARASIMHA REDDY AND THE HON'BLE SRI USTICE M.S.K.JAISWAL
L.P.A.No.166 of 1998
02-01-2014
Smt. Sharada Bai ..appellant
Smt.Jamuna Bai & others..Respondents
Counsel for the appellant: Sri B. Adinarayana Rao,
Sr.Counsel
Counsel for the Respondents: Sri M.R.K.Chowdary,
Sr.Counsel
<GIST:
>HEAD NOTE:
?Cases referred
1) AIR 1964 Patna 543
2) AIR 1969 Madras 329
3) AIR 1983 Orissa 135
4) AIR (34) 1947 Privy Council 189
5) AIR 1969 SC 1076
6) AIR 1985 SC 716
7) AIR 1966 SC 806
THE HON'BLE SRI JUSTICE L. NARASIMHA REDDY
AND
THE HON'BLE SRI JUSTICE M.S.K. JAISWAL
L.P.A.No.166 of 1998
JUDGMENT: (Per the Hon'ble Sri Justice L. Narasimha Reddy)
This Letters Patent Appeal is being decided after remand by the Hon'ble Supreme
Court. It arises out of O.S.No.1110 of 1981
on the file of the V Additional Judge, City Civil Court, Hyderabad.
The facts, in brief, are as under: For the sake of convenience, the parties are
referred to, as arrayed in the suit.
One Ganesh Lal and his wife Sharbati Bai had four sons, viz., Brij Mohan,
Shambudayal Gupta, Jagadish Pershad and Omprakash Gupta.
Sharbati Bai purchased
a house near Charkaman, Hyderabad through sale deed dated 02-09-1960
(Ex.A-28) from her close relation, by name, Gilli Bai.
The plaintiff, Smt.
Sharada Bai, wife of the youngest son, Sri Omprakash Gupta is said to have
purchased the suit schedule property through two sale deeds dated 05-12-1980
(Ex.A-3) and 04-06-1981 (Ex.A-4) from her mother-in-law, Sharbati Bai.
According
to her, there are three tenants in the premises but the wife and son of her
brother-in-law, Mohan Gupta have trespassed into the property covered by Ex.A-3.
She filed the suit for declaration of title in respect of plaint 'A' and 'B'
schedule properties; recovery of plaint 'A' schedule, perpetual injunction in
respect of plaint 'B' schedule, and for recovery of damages @ Rs.6,000/- per
month from the date of filing of the suit, and @ Rs.2,000/- per month prior to
the filing of the suit.
The plaintiff pleaded that the suit schedule was the self-acquisition of her
mother-in-law Sharbati Bai, and that she has purchased the same for valuable
consideration under Exs.A-3 and A-4.
She pleaded that neither defendants 1 and
2, nor any other members of the family have any right over the property.
The suit was contested by the defendants 1 and 2.
They pleaded that the
property was actually purchased by Sri Ganesh Lal with the joint family funds.
According to them, the joint family had extensive properties, including business
in agriculture, rice mill and jewellery, and part of the income therefrom was
utilized in purchasing the property.
It was pleaded that one of the sons by
name, Jagadish Pershad filed O.S.No.1380 of 1978 in the Court of
III Assistant Judge, City Civil Court, Hyderabad, for perpetual injunction in
respect of the present suit schedule property against his mother, Sharbati Bai
and husband of the plaintiff, Omprakash Gupta and in the said suit, a compromise
was entered into wherein Sharbati Bai kept for herself life-estate vis--vis the
suit schedule property and vested remainder in favour of her four sons,
and in that view of the matter, the so-called sale in favour of the plaintiff is
untenable.
The trial Court decreed the suit through judgment dated
25-09-1987. It was declared that the plaintiff has title to the suit property.
The eviction of defendants 1 and 2 from plaint 'A' schedule property was ordered
and perpetual injunction in relation to 'B' schedule was granted. However, the
relief of recovery of damages and future rents was denied.
The defendants 1 and 2 (hereinafter referred to as 'the defendants') filed
C.C.C.A.No.1 of 1992 before this Court against the judgment and decree in the
suit.
A learned single Judge of this Court took the view that the sale deed,
Exs. A-3 and A-4 are valid and genuine and that the compromise entered into in
O.S.No.1380 of 1978 is not binding upon Sharbati Bai.
However, it was held that
the suit schedule property is the joint family property of Ganesh Lal and his
sons, and that Sharbati Bai did not have valid title to execute Exs.A-3 and A-4.
The plaintiff filed the present L.P.A., against the findings of the learned
single Judge in relation to the nature of the suit schedule property, and right
of Sharbati Bai, to sell the property to the plaintiff.
Defendants, on the
other hand, filed L.P.A.266 of 1999, feeling aggrieved by the findings in
relation to the genuinity of the sale transactions and the binding nature of the
compromise, in O.S.No.1380 of 1978.
A Division Bench of this Court upheld the findings of the learned single Judge
about the sale deeds, but reversed the findings in relation to the nature of the
suit schedule property and the right of Sharbati Bai to execute the sale deeds.
Since all the findings went against the defendants, they filed Civil Appeal
Nos.7153 and 7154 of 2003 against the decrees in both the L.P.As. Through its
order dated 11-08-2010, the Hon'ble Supreme Court has set aside the judgment
rendered in the L.P.As and remanded the matter to this Court.
It was observed
that the discussion undertaken on the question as to
whether Sharbati Bai was
possessed of independent resources and whether the acquisition of the suit
schedule property was out of those resources was not adequate. Accordingly the
matter was remanded for fresh consideration and disposal.
Sri B. Adinarayana Rao, learned Senior Counsel for the plaintiff submits that
the plaintiff has her own independent sources of income and purchased the suit
schedule property with the same.
He contends that the occasion to invoke or
apply the presumption about the nature of the properties in relation to a joint
family, would arise only vis--vis the coparceners.
He submits that
though it is well-settled that, if it is proved that there existed a joint family nucleus,
sufficient to acquire an item of property, the burden, to prove that an item of
property was acquired with the funds of a coparcener, who claims the property
exclusively to himself and on such proof, it cannot be treated as joint family property and this cannot be applied to a person who is not a coparcener.
He submits that Sharbati Bai was not a
coparcener of the joint family and the suit property was not part of the
coparcenery.
Learned Senior Counsel has placed reliance upon the judgments of
the High Courts of Patna, Madras and Orissa in Yugal Kishore Sinha v. Nagendra
Prasad Yadav1, Nagayasami Naidu and others v. Kochadai Naidu2 and Smt Manohari
Devi and others v. Choudhury Sibanava Das and others3 in support of his
contention.
He submits that once it is not disputed that the suit property was
purchased in the name of Sharbati Bai, the burden rested squarely upon
defendants to establish that it was a benami transaction, and not upon the plaintiff to prove that Sharbati Bai had her own funds to purchase the property.
Arguments on behalf of the plaintiff on other aspects were supplemented by the
learned counsel Sri J. Prabhakar.
He submits that the record discloses that
Sharbati Bai owned properties such as a rice mill, and other sources of income,
and it cannot be said that there was anything unnatural about her acquiring the
suit property.
He submits that the trial Court as well as the learned single
Judge of this Court have correctly taken the view that the compromise decree in
O.S.No.1380 of 1978 is inadmissible in evidence, since it was not registered, as
required under law.
Learned counsel further submits that the fact that the
permission to construct new building after the suit property was purchased in
1960, was obtained in the name of Sharbati Bai, and absence of any evidence to
show that the construction was made with the aid of the funds of the family
would establish that the suit schedule property was owned, exclusively by
Sharbati Bai. Other contentions are also urged.
Sri M.R.K. Chowdary, learned Senior Counsel for the defendants submits that
though Sharbati Bai cannot be strictly treated as a member of the joint family,
any property acquired in her name, with the funds of the joint family, would
certainly make it available for partition among the coparceners.
He submits
that Sharbati Bai was not possessed of independent resources of income,
sufficient to purchase the suit schedule property, and it was only with the
funds of the joint family, that it was purchased.
He contends that it was admitted on behalf of the plaintiff that the rice mill,
which was said to have been owned by Sharbati Bai, has fallen to the share of
Shambu Dayal Gupta, one of her sons, and that itself would show that the rice
mill itself was owned by the joint family, notwithstanding the fact that it was
in the name of Sharbati Bai.
Learned Senior Counsel further submits that the husband of the plaintiff brought
into existence Exs.A-3 and A-4 by misleading or coercing Sharbati Bai and the
very fact that she was not examined though she was alive, not only through out
the pendency of the suit, but also long thereafter, would disclose that the
plaintiff was afraid that truth would come out if Sharbati Bai is examined as a
witness.
He contends that the compromise decree passed in a suit is certainly
admissible in evidence, notwithstanding the absence of registration, and even
otherwise, the contents thereof can be taken note of, by applying the principle
underlying proviso to Section 49 of the Registration Act. He too placed
reliance upon quite large number of precedents.
As observed earlier, this matter is heard at length, after remand.
Though the
observation of the Supreme Court was only
in relation to the finding about the possession of funds by Sharbati Bai,
arguments are advanced on all facts and relevant law.
The trial Court framed four issues for consideration, viz.,
1. Whether the sale deeds dt.5-12-1980 and 4-6-1981 are true, valid and binding?
2. Whether the defendants trespassed into the suit building on 1-7-81 and
whether the plaintiff's entitled to receive the costs?
3. Whether the plaintiff is entitled to declaration of title, permanent
injunction and damages as claimed?
4. Whether the suit is not maintainable without relief to avoid the compromise
in O.S.No.1380/78 on the file of the III Asst. Judge, City Civil Court,
Hyderabad?
On behalf of the plaintiff, PWs 1 to 3 were examined and Exs.A-1 to A-47 were
filed. On behalf of the defendants DWs 1 and 2 were examined and Exs.B-1 to B-4
were filed. Exs. C-1 to C-7 and Ex.X-1 were also taken on record. The suit was
decreed.
In C.C.C.A.1 of 1992, a learned single Judge framed the following points for
consideration:
1. Whether the agreement of sale Ex.A2 and sale deeds Exs.A3 and A4 are valid or
sham or nominal?
2. Whether the suit property is the joint family property of Ganeshlal and his
sons or the self-acquired property of Smt.Sharbati Bai?
3. Whether Sharbati Bai could convey valid title under Exs.A3 and A4 in favour
of the plaintiff?
4. Whether the compromise entered into in O.S.1380/78 is hit by Sec.17 of the
Registration Act and the provisions of the Indian Stamp Act and is not binding
upon Sharbati Bai?
While points 1 and 4 were answered against the plaintiff,
points 2 and 3 were answered in her favour.
In view of the elaborate submissions made by the learned Senior Counsel for the
parties, and the observations made by the Hon'ble Supreme Court, while remanding
the matter, we find that the following points arise for consideration:
a) Whether Sharbati Bai was possessed of sufficient funds to purchase the suit
schedule property through Ex.A-28, dated 02-09-1960;
b) Whether Sharbati Bai treated the suit schedule property as her exclusive one
or as part of the joint family property of her sons and husband;
c) Whether the sale of the suit schedule property through Exs.A-3 and A-4 is
valid and legal; and
d) Whether the decree passed by the trial Court and upheld by the learned single
Judge of this Court can be sustained in law.
Before the commencement of arguments in this L.P.A., the defendants have
withdrawn L.P.A.226 of 1999.
On behalf of plaintiffs, it is urged that such
withdrawal would disable the defendants from contesting the other L.P.A.
That
contention is taken up at the outset.
The judgment rendered by the learned single Judge of this Court in C.C.C.A.No.1
of 1992 gave rise to two L.P.As, i.e. 166 of 1998 and 226 of 1999. While the
plaintiff filed C.C.C.A.No.166 of 1998, feeling aggrieved by the findings on
points 2 and 3, the defendants filed L.P.A.No.266 of 1999 assailing the findings on
points 1 and 4. This is not a case where two appeals arose out of two separate
proceedings, decided through a common judgment. If the appeals have arisen out
of separate decrees passed in different appeals, albeit, through a common
judgment, the dismissal of one such appeal or failure to file an appeal even
where it was necessary, would attract the principle underlying Section 11 of
C.P.C., and would adversely affect the other appeals. That is not the case
here. Further if some of the findings in a judgment rendered by a Court are
against a particular party, it can canvass the correctness thereof before an
appellate forum, if an appeal is fled by the other party. Rule 33 of Order 41
C.P.C., confers power on the Appellate Court, in this behalf. It is not
necessary that the party who felt aggrieved only by certain observations, and
not the final result, must file an appeal. For all practical purposes, filing
of L.P.A.No.266 of 1999 was superfluous. Without even filing cross-objections,
defendants could have challenged the findings on points 1 and 2 in C.C.C.A.No.1
of 1992. Therefore, the objection raised by the learned counsel for the
plaintiff cannot be sustained.
Points (a) & (b):
The entire controversy revolves around the question as to
whether the
Sharbati Bai in whose name the suit schedule property was purchased, was
possessed of adequate funds.
As submitted by
Sri B. Adinarayana Rao, learned Senior Counsel, there is phenomenal difference
in the context of placing of burden in relation to an issue, as to whether a
particular item of property, is held by the joint family or exclusively by a member thereof.
The judgment of
the Privy Council in Appalaswami v. Suryanarayanamurti and others4, and that of
the Supreme Court
in Mudigowda Gowdappa Sankh and others v. Ramchandra Revgowda Sankh5 arose out
of the suits for partition, and there was no dispute that the parties thereto
were coparceners. The same principle cannot be applied, in a case where the
plea as to exclusive ownership is taken by a person, who is not a coparcener.
Reference in this context may be made to the judgment of the Supreme Court, in
State of Maharashtra v. Narayan Rao6.
The following observation in Mayne's Hindu Law was quoted with approval:
"264. It is evident that there can be no limit to the number of persons of
whom a Hindu joint family consists, or to the remoteness of their descent from
the common ancestor, and consequently to the distance of their relationship from
each other.
But the Hindu coparcenary is a much narrower body.......For,
coparcenary in the Mitakshara law is not identical with coparcenary as
understood in English law :
when a member of a joint family dies, "his right
accrusces to the other members by survivorship, but if a coparcener dies, his or
her right does not accrue to the other coparceners, but goes to his or her own
heirs".
When we speak of a Hindu joint family as constituting a coparcenary, we
refer not to the entire number of persons who can trace descent from a common
ancestor, and amongst whom no partition has ever taken place; we include only
those persons who, by virtue of relationship, have the right to enjoy and hold
the joint property, to restrain the acts of each other in respect of it, to
burden it with their debts, and at their pleasure to enforce its partition.
Outside this body, there is a fringe of persons possessing only inferior rights
such as that of maintenance, which however tend to diminish as the result of
reforms in Hindu law by legislation."
More often than not, a joint family, which comprises of several male and
female members with close relationship is treated as synonymous with
coparcenary.
The use of the expression i.e. "joint family" to all such entities
some times blurs the subtle distinction. Though the practice of referring to a
joint family in its strict sense and a coparcenary with that expression cannot
be found fault with; at least, in the context of partition, a restricted
approach is warranted. It is only such persons, who are conferred with the
right to a share in the joint family properties and who can seek partition, that
can be treated as members of the joint family, whenever an issue pertaining
division of the properties arises.
Under Hindu Law, such persons are treated as coparceners.
In the other instances, joint family
can take in its fold, not only the coparceners, but also others, outside the
frame, depending upon the proximity of relationship.
For instance, though the
mother of an individual cannot be treated as a coparcener, she is certainly be
treated as a member of the joint family, in the ordinary parlance.
It is quite possible to argue that not being a coparcener of the joint
family in its strict sense, Sharbati Bai did not owe explanation to anyone, as
to how she acquired the suit schedule property.
However, we refrain from
undertaking any discussion in this behalf, in view of the specific observations
made by the Hon'ble Supreme Court, while remanding the matter.
The relevant portion reads:
"...The learned Single Judge had proceeded on the basis that the presumption
regarding the joint family character of the property had remained unrebutted for
no evidence to displace the presumption had been led.
But the Division Bench has not satisfactorily dealt with that aspect, while
taking a contrary view. We are not inclined in these appeals to reappraise the
evidence to determine whether or not Sharbati Bai possessed any independent
resources and whether the acquisition in question was made out of those
resources. In our opinion remand of the matter back to the High Court for a
fresh disposal in accordance with law is a better course..."
From this, it is evident that Their Lordships wanted this Court to decide,
whether Sharbati Bai was possessed of independent resources, that enabled her to
purchase the suit schedule property.
The best person to speak about this was, Sharbati Bai herself. Not only
in this context, but also from the point of view of proving Exs.A-3 and A-4, her
evidence was material. The plaintiff did not enter the witness box. Sharbati
Bai was alive till the year 1991, i.e. for full length of the pendency of the suit, and part of the pendency of CCCA No.1 of 1992. Failure on the part of the plaintiff to examine Sharbati Bai
gives a scope for drawing inference, provided for under law.
Throughout the length and breadth of the oral evidence, adduced by the
plaintiff, extensive reference was made to the various steps taken by Sharbati
Bai.
It was mentioned that, she had a rice mill and the income derived
therefrom was utilized in purchasing the suit schedule property.
The defendants, on the other hand, pleaded that the said rice mill, though was
standing in the name of Sharbati Bai, was owned by the joint family.
One of the undisputed facts is that, out of the four brothers, Shambu
Dayal Guptha started living separately from 1964 onwards. At more places than
one, it was mentioned that he was given his share of property in 1964 itself.
In the cross-examination of DW-2, the 1st defendant, the following suggestion
was made on behalf of the plaintiff:
"...The Rice Mill of Shamshirgunj was also in the name of my mother in
law. I do not know if my mother in law gave Rice mill to Shambu dayal in 1964
when he insisted...
...I do not know if Sharbathi Bai was having income from her lands in village.
It is not true to suggest that Sharbathi Bai was having gold, jewellery and
income and that she had capacity to purchase the land. It is not true to
suggest that Sharbathi Bai constructed the suit house with her own funds..."
It needs to be noted that the so-called giving of the Rice Mill was neither
through gift, nor through other modes of transfer. If it was given towards the
share of Shambu Dayal Gupta, it obviously means that though the mill stood in
the name of Sharbati Bai, it was treated as the one, owned by the joint family.
Though it was mentioned that Sharbati Bai had lands also, no evidence in that
behalf was adduced.
The effort of an individual to speak about the income or assets of a third
party has its own limitations.
If such third party is not available to speak,
one has only to wander in the realm of speculation, for want of exact
information.
However, if such third party is very much available, but the
person adducing evidence to discharge the burden in this behalf fails to examine
the third party, a presumption provided for under Section 114 of the Evidence Act deserves to be
drawn.
One strong circumstance, which has some relevance to point (d) is that in
O.S.No.1380 of 1978 filed by one of the sons of Sharbati Bai, a compromise was
entered into. PW-1 herein i.e. the husband of the plaintiff, and Sharbati Bai
were parties to that suit.
The compromise decree that was passed in, in that suit (Ex.B-2) contained the
following clause, in relation to the suit schedule property:
"Clause (e) ...House No.21-2-131/7 to 9 Charkaman shall belong to and in
possession of Sharbathi bai and Jamunabai and they shall have life interest in
this house.
They shall be entitled to receive benefits with enjoyment for their
lifes time in this house.
They shall be entitled for the possession of the said
house and to utilize the rents of this house till their respective life time.
After their death the would be wife of Jagmohan Alias Anil Kumar shall become
absolute owner of the said property.
However in the event of the no marriage
took place of Sri Jagmohan alias Anil Kumar or the marriage if dissolved or
death of his wife, the said Jagmohan alias Anil Kumar shall become absolute
owner of the said property exclusively.
Shambudayal Gupta, Jagdishprashad and
Omprakash Gupta shall have no interest or rights or any kind whatsoever in the
said house..."
The admissibility of the compromise decree would be dealt with while
discussing point (d) in detail.
In case Sharbati Bai was the absolute owner of the property, there was no
question of her relinquishing the rights in favour of third parties, in the
manner indicated in the above paragraphs.
The plaintiff did not examine any witness, closely associated with the income or
administration of properties of her mother-in-law, Sharbati Bai.
PW-1 is the husband of the plaintiff, and he did not speak of any
independent resources of his mother. PW-2 is one of the tenants. His evidence
is only to the effect that his tenancy was attorned to the plaintiff. PW-3 is
none other than the brother of the plaintiff. When neither plaintiff nor
Sharbati Bai were examined to speak about the income of Sharbati Bai, it is
difficult to conclude that she possessed of resources to purchase the property.
Added to that, the joint family comprising of the husband and sons of Sharbati
Bai possessed adequate resources from agriculture and business. The manner in
which Sharbati Bai acted, vis--vis the properties, that were standing in her
name i.e., a rice mill in Shamshirgunj and suit schedule property would clearly
disclose that she did not exercise rights of exclusive ownership over them and
on the other hand, treated them as the properties held by the joint family.
Points (a) and (b) are accordingly answered against the plaintiff.
Point (c):
At least after the matter was remanded, no effort was made by the
plaintiff to place any material before this Court, to establish that her vendor
was possessed of adequate properties.
It has already been mentioned that the various acts and omissions on the part of
the Sharbati Bai indicated that she never exercised absolute rights of ownership
over the suit schedule property.
Once it is held that Sharbati Bai did not
possess adequate resources to purchase the property, the inescapable conclusion
is that it was purchased in her name by her husband Ganesh Lal with the funds of
the joint family. Added to that, she sacrificed whatever rights she had in it,
through the compromise, evidenced through Ex.B-2, which was long prior to the execution of Exs.A-3 and A-4 in favour of the plaintiff. Therefore, no valid title can be said to have been transferred by Sharbati Bai, in favour of the plaintiff, vis--vis the suit schedule property.
Point (d):
The defendants intended to rely upon Ex.B-2, a memorandum of compromise,
in O.S.No.1380 of 1978. That was filed for the relief of injunction. However,
as between the members of the same family, several other proceedings ensued.
With the intervention of some of the well-wishers, a compromise was brought, to
put an end to all the proceedings, including a criminal complaint filed by one
of the sons of Ganesh Lal and Sharbati Bai against his brothers.
PW-1 herein, who figured as a party to that suit, did not dispute the truth of
Ex.B-2.
On the other hand, he made extensive reference to it in his deposition.
The objection raised by the plaintiff is that Ex.B-2 cannot be received in
evidence, for want of registration.
The objection may hold good, if any rights are claimed by the parties to Ex.B-2,
on that basis.
The limited purpose for which it was filed was, to demonstrate
that Sharbati Bai ceased to be the owner of the suit property by the time, she
executed Exs.A-3 and A-4.
Even if there exists any prohibition in law, as to
the admissibility of Ex.B-2 for want of registration, it can certainly be looked
into, for collateral purposes, under proviso to Section 49.
The defendants are not claiming any rights under Ex.B-2.
Added to that the principle laid down by
the Supreme Court in Mst. Subhadra v. Narsaji Chenaji Marwadi7 would apply to
the facts of the case, if only any rights under the deed of compromise are
sought to be enforced.
Once the document is filed by a person who is not a
party to such decree, that too for a collateral purpose, it cannot be said to be
inadmissible.
For the foregoing reasons, the L.P.A. is dismissed.
The miscellaneous petitions filed in this appeal shall also stand disposed of.
There shall be no order as to costs.
_____________________
L. NARASIMHA REDDY, J.
______________________
M.S.K. JAISWAL, J.
Dt.02-01-2014.
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