INDERDEO RAI Vs. DEOKARAN RAI

JUDGEMENT

(1.) The plaintiffs are the appellants, and the appeal arises out of a suit for declaration of title and recovery of possession with regard to certain immoveable properties which once belonged to one Nohar Rai. Nohar Rai had six sons, Dudhnath, Harnandan, Sheonandan, Jadu, Misri and Bhadu. Sheonandan, Jadu and Misri died issueless. Dudhnath had six sons, out of whom three are plaintiffs in this suit. Dudhnath's son Mahatim Rai died leaving his son Bihari Rai who is plaintiff 4 in this action. Deokaran Rai, one of the sons of Dudhnath, is defendant 1, and his three sons are defendants 2, 3 and 5. Narain Rai, another son of Dudhnath, had died issueless. Plaintiff 5, Girja Prasad Rai, is the son of Inderdeo Rai, plaintiff No. 1. The case for the plaintiffs is that Sheonandan, Jadu and Misri had died in a state of jointness with their other brothers and the other members of the family, and that the branch of Dudhnath .Rai separated long ago after taking one-third share in the family properties. The branches of Hamandan and Bhadu are said to have remained joint after the separation of the branch of Dudhnath, and according to the plaintiff's allegation they have remained all along joint in property and business, accordingly Brahmadeo, the son of Harnandan, & the deceased husband of defendant 5 & Kapildeo & Banarsi, the sons of Bhadu, were jointly recorded with regard to 10 annas 4 pies share, and the plaintiffs were recorded in respect of 5 annas 4 pies share." Kapildeo was the husband of Mt. Naurangi Kuer, defendant 6, and Benarsi was the husband of Mt. Jagrani Kuer who died in the year 1945. Later on, defendant 1 separated from the plaintiffs, and the plaintiffs still continue to be the members of a joint Hindu family. The allegation of the plaintiffs is that Brahmadeo died in 1325 Fasli, and thereafter Kapildeo died and Banarsi died last of all. It was contended by the plaintiffs that after the death of Jagrani in the year 1945 the plaintiffs and defendant 1 are the persons entitled to inherit the properties which have been described in Schedule A of the plaint and which originally belonged to the sons of Nohar Rai, but that the defendants 1st party in collusion and con cert with the two widows, defendants 5 and 6, did not allow the plaintiffs to enter into possession and themselves took possession of the entire properties. It is further stated that defendant 1, Deokaran Rai, had brought the three ladies under his influence and had got the name of his son, defendant 2, entered in the Land Registration office with regard to the entire properties. The plaintiffs, therefore seek a declaration that after the death of Jagrani, plaintiffs 1, 2 and 3 are en titled to three-fourth share in the properties, that defendant 1 is entitled to one-fourth share and that the ladies, defendants 5 and 6 are entitled only to maintenance. Consequent upon a declaration of their title they seek to recover possession of the disputed properties. The alternative relief prayed for is that if the plaintiffs be held to be not entitled to possession of the disputed property or any portion of it, then it be declared that the action taken by defendants 5 and 6 for giving the property to defendant 2 will not be binding on the plaintiffs after the death of defendants 5 and 6. Defendants 2, 5 and 6 resisted the claim on various grounds. Substantially, their defence was that all the sons of Nohar Rai were separate from one another, and while Dhanbrata Kuer, defendant 5, came in possession of the properties left by Brahmadeo as his widow, after the death of Kapildeo who was the male owner of the properties, which had been allotted to the branch of Bhadu Rai, his widow Mt. Naurangi, came in possession of the properties. Defendants 5 and 6 had, according to the authority which they had received from their respective husbands, put defendant 2 in possession of the properties left by their husbands, and defendant 2 has by the efflux of time acquired an absolute title to those properties. The definite assertion of these defendants is that Banarsi had predeceased Kapildeo, and as such Jagrani, his widow, could not come in possession of any property as a limited owner.

(2.) The learned Subordinate Judge has dismissed the plaintiffs' claim on the findings that the six brothers had separated from one another, that Bana-rsi had predeceased Kapildeo and that defendant 2 has been in possession of the properties since the year 1924.

(3.) The main points for determination in this appeal are (1) whether Banarsi predeceased Kapildeo; and (2) whether the defendant 2 has acquired any interest in these properties and, if so, whether the plaintiffs are entitled to the alternative relief sought. We have no hesitation in agreeing With die learned Subordinate Judge that Banarsi had predeceased Kapildeo. (After discussion of some oral evidence his Lordships proceeded.) In my opinion, on the admission made by P. W. 3 that Kapildeo died in Kartik or Aglian, the only reasonable conclusion will be that the plaintiffs' version "on this point stands completely discredited. Exhibit B(1) is an application for mutation of names filed by Narain Rai and others, and this petition undoubtedly shows that Kapildeo and Banarsi were both alive on 30-9-1918 when this petition was filed . If Kapildeo had died in Jeth, then he could not be alive on 30-9-1918, which corresponds to 10th Ashin 1326. It has, however, been pointed out by Mr. Tar-keshwar Nath, the counsel for the appellants, that this is really not a petition on behalf of Kapildeo and' Banarsi, but undoubtedly the contents of this petition go to show that Kapildeo and Banarsi were alive when it was filed. And in the objection petition that was filed on behalf of Dhanbrata Kuer and Naurangi Kuer on 25-1-1919 in this Land Registration case it is distinctly stated that after the death of Banarsi his 'entire property devolved upon Kapildeo and after the death of Kapildeo his 'entire property devolved upon Naurangi Kuer. It appears that there were about 20 Land Registration cases arising out of application for mutation filed by Narain Rai and others and objections were filed in all those cases. Ultimately, these cases were compromised, and the compromise petition is Ex. 1. The adimissibility of the documents, Exs. A and B(1) cannot, in my opinion, be objected to at the present stage. The formal proof of these two documents was waived and, as such, the defendants had no opportunity of proving the execution and the filing of these documents. Our attention has been drawn to the statement of Naurangi Kuer (D. W. 7) to the effect that the objection petition was not drafted under her instructions. This statement cannot be considered without any regard to the context and without noting the other statements, of the lady in this connection. She had stated in her examination-in-chief that she had filed an objection petition and her name was mutated, and it appears that while she was being cross-examined on the point the cross-examining lawyer wanted to know certain details. She did state even in her cross-examination that her father was looking after the case, but she could not give all the details because, admittedly, she is a pardanashin lady and, she had her father for looking after the proceedings. Naturally, it was not possible for her to state if all the parties to the proceeding had joined in the compromise, nor could she state who had deposed in the case on her behalf. It was also not possible for her to say which mukhtar had drafted the objection petition, and when she says that the petition was not drafted under her instructions, she certainly means that it was not she who had given instruction to the mukhtar for drafting the objection. The statement referred to by the learned Counsel cannot, therefore, be considered without looking to the context in which it was made, and without having regard to her entire statements in this connection including her definite statement in her examination-ill-chief that she had filed an objection petition. Learned Counsel for the appellants faintly suggested that the lady could not use her own previous statement in her favour and that consequently the statement made in Ex. A, the objection petition, that Banarsi predeceased Kapildeo was inadmissible. But, I think I rightly pointed out during the course of the argument that the statement in question was admissible at least under Section 11, Evidence Act, if under no other section. And Mr. Sinha, the Counsel for the respondents, has placed before us a decision reported in -- 'Sayeruddin Akonda v. Samiruddin Akonda', AIR 1923 Cal 378 (A), which supports my view completely. So far as these documents are concerned, it has to be borne in mind that they are practically admitted documents, inasmuch as their formal proof was dispensed with at the instance of the plaintiffs and also because it is common ground that the Land Registration cases were disposed of on the basis of the com-promise petition, Ex. 1. The applicants, Narain Rai, Deokaran Rai and others, were certainly parties to the compromise, and it is not open to them to question the genuineness of the application for mutation or the objections that were filed in the Land Registration department. For these reasons we are in absolute agreement with the learned Subordinate Judge in his view that Banarsi had predeceased Kapildeo, and if Banarsi had predeceased Kapildeo, Jagrani could not acquire any interest in these properties. Kapil-deo's widow, Mt. Naurangi Kuer, is still alive, and as a limited owner she is entitled to possess all the family properties till her life-time. Mr. Sinha, the Counsel for the respondents, stated before us the position very correctly when he said that the plaintiffs had no case if Kapildeo was the last male owner and that the defendants had no case if Banarsi was the last male owner. But we have found that Kapilde was the last male owner, and consequently the contention put forward by the plaintiffs cannot succeed.