MUSAMMAT JAIRAJI Vs. BHAGWAT PRASAD PANDE

JUDGEMENT

(1.) IN this suit the question in issue was (he jointness or separation amongst the members of a certain Hindu family, the descendants of one Jeo Lal, This gentleman had three sons, named Sital, Durga and Chhutkan. Chhutkan had one son only, named Sheo Mangal, and this man had a son, named Kateshwar, This Kateshwar was married three times but died without male offspring. He left him surviving two widows, named Dharam Raji and Jai Raji, The present suit was instituted by these two ladies jointly to recover possession of specified shares in immovable property of various descriptions, upon the plea that the property so specified formed the separate estate of Kateshwar from which his widows had wrongfully been ousted by the male agnates. Musammat Dharam Raji died after the institution of the suit, but it has been continued by the remaining widow Musammat Jai Raji, who is the appellant in this Court. Of the three sons of Jeo Lal, all of whom had died before the institution of this suit, one Sital had a son who is the principal defendant in the case, Bhagwat Prasad. Durga had four sons. One of these is the defendant Ram Bali. The remaining defendants, Sat Narain and Ram Lal alias Ghisiwan, are respectively the grandson and the son of other sons of the aforesaid Durga. Musammat Jai Raji's case is that, when she had gone in to head quarters to fight the mutation case in respect of her late husband's estate, Bhagwat Prasad and the other defendants took possession of the house in which she had previously been living, of all the lands which Kateshwar had been cultivating in severalty and all Kateshwar's shares in the various Zemindari properties which had belonged to him. The plaint does not say when the joint family was supposed to have broken up, the plaintiffs contenting themselves (as they were quite entitled to do) with pleading that Kateshwar Pande at the time of his death was living as a separated Hindu. We may note that he died in the month of May 1916. The defendants, no doubt, with a view to tying the plaintiffs down to something definite, have put in evidence the statement made by Musammat Dharam Raji, the plaintiff, who has since died, before the Mutation Court. That lady there alleged that the family had separated and some to a partition of the joint family property in the life-time of Sheo Mangal, the father of Kateshwar. The date of Sheo Mangal's death is left uncertain, but he must have been dead at the time of the execution of the deed printed at page 36 R, the date of which is the 7 of August 1906. The defendants in a suit of this sort start with a certain presumption in their favour; but we may readily admit that the presumption is not a very strong one in the present case, because the relationship between Kateshwar and the nearest to him of the defendants, namely, Bhagwat Prasad, is not a very near one. Nor do we consider that the plaintiff was bound to prove that a formal separation, accompanied by an apportionment of such goods or properties as it was desired to divide immediately and an ascertainment of shares in respect of other landed properties, took place in any formal manner or at any specified date. The plaintiff can succeed if she can produce evidence to satisfy the Court that the position of Kateshwar and the defendants up to the tine of the death of the first-named was such that they could not have been living as members of a joint undivided family. The defendants have, however, re-inforced such presumption as may exist in their favour by a very considerable body of evidence. The oral evidence includes statements by tenants who were cultivating lands which, according to the defendants, are the property of the joint family; of the patwaris of villages in which the family property is situated, and or various neighbours or connections by marriage of the parties. It is very little use discussing this evidence in detail, IN a general way, it does go to prove that, up to the time of Kateshwar's death, he and the defendants were regarded by persons in a position to know the facts as living jointly together. Statements like that of the witness Socchit, that be cultivates a field belonging to Kateshwar, deceased, and to the defendants, that he has always paid the rent to Bhagwat Prasad, that be never at any time paid rent to Kateshwar are not without significance. We have been taken through this evidence in detail and much of it has been subjected to criticism of various kinds. It seems sufficient for us to say that we concur in the opinion of the Trial Court that this very considerable body of oral evidence does make out, on the whole, a case in favour of the jointness of the family which it would require some very definite and satisfactory evidence on the other side to rebut. Of oral evidence on the side of the plaintiff there is practically none, beside her own statement and the deposition of Musammat Dharam Raji in the Mutation Court which the other side has brought upon the record, Her brother Nageshar was examined on her behalf and made certain more or less vague and unsatisfactory statements regarding the residence of various members of the family. One Brij Nath, whose son was married to a daughter of Kateshwar, says that he has known the family for about three years and that during that time Kateshwar was living as a separated Hindu. This evidence is of very little weight as against the oral evidence for the defendants. The plaintiff relies mainly on certain documents arid the inferences to be drawn from them, It may be as well to discuss these in some little detail. At page A4 we have a lease of the 3 of January 1808, purporting to be executed by Musammat Karamdani, the widow of the father of the defendant Sat Narain, in favour of one Bhawani Baksh. By this document Musammat Kararmdani, acting for herself and as guardian of her minor son Sat Narain, purports to lease out to Bhawani Baksh a number of shares in various items of property in dispute, We may take it that the shares purporting to be conveyed are those which that lady's husband would have taken OH a partition of what the defendants call the joint family property. Now, the mere execution of a document of this sort has little or no evidential value. Any Hindu widow on bad terms for the time being with the male relatives oil her late husband may set her name to a document of this sort, merely for the purpose of making herself unpleasant to the members of the family. If the lessee obtained actual and effective possession under the lease, it would become a significant circumstance that the male members of the family should be allowing a fraction of the alleged joint family property to be dealt with in this way. Now, Bhawani Baksh was called as a witness. He turns out to be the brother of Musammat Karamdani and he deposes positively that he never obtained possession under the lease. He says he was allowed for a time to manage a few bighas of sir land which had been separately apportioned for purposes of enjoyment to the husband of his ostensible lessor, but that even this only lasted for a short time and that he certainly never obtained possession over the shares in Zemindari property specified in his lease. The statement of Bhawani Baksh has been criticised before us and we have been asked to disbelieve him, mainly on the ground that the term of the lease having now expired the deponent had no interest in asserting his rights under it. It does not follow that he had any interest in perjuring himself for the sake of the defendants. We cannot say that we see sufficient reason for disbelieving the witness and in any case the result of his evidence, there being no direct contradiction of it on behalf of the plaintiff, leaves the lease of the 3 of January 1908 absolutely unsupported by any evidence that its terms were ever effectively in operation. There is, therefore, no real importance to be attached to this item of evidence. The next document on which the plaintiff relies is a sale-deed printed at A 6. By this document one Bachcha purports to sell certain Zemindari property to Bhagwat Prasad and to Ram Bali, defendants, and the feature of the document most insisted upon is that he conveys two shares to Bhagwat Prasad and one share to Ram Bali. Bhagwat Prasad was examined about this transaction. He says that Kateshwar had been seriously ill for three years before his death and was in fact dying of phthisis. When spoken to about this proposed purchase of land from Bachcha he said that he had no particular interest in the matter and did not wish his name to appear in the sale-deed. Bhagwat Prasad, although he does not express himself very clearly, obviously means that this is the reason why the specification of shares was made out in this peculiar manner. Assuming, as the witness wishes us to believe, that it was really a joint family transaction, the representatives of the three branches of the family, namely, Bhagwat Prasad, Kateshwar and Ram Bali, would be interested in the matter to the extent of one- third each, if we take into consideration the shares that would fall to them on a partition. As Bhagwat was acting for himself and Kateshwar, and the latter had not wished to be associated in the transaction, he caused the document to be drafted in the manner in which it was. It is by no means an unusual thing for members of a joint family, when acquiring landed property by purchase, to cause to be specified in their document of title the shares which they would respectively take upon a partition, Where this is not done the ordinary inference from the document, on the face of it, would be that the vendees are taking in equal shares, and the members of the family may well think it convenient that such a presumption, where it is not in accordance with the facts, should be rebutted by a specification of shares; no clear inference in favour of separation or the break-up of the joint family can be drawn from a transaction of this sort. Very similar remarks apply to the document printed at A8; the manner in which the parties were really dealing with the property is further illustrated by the fact, proved by documentary evidence printed at page R 56, that when it came to mutation of names Bhagwat Prasad and Ram Bali allowed themselves to be recorded as having acquired the property in equal shares, ignoring Kateshwar altogether. There is only one more document produced by the plaintiff on which her case is strongly based and that is a sale-deed of the year 1305 Fasli, According to this document Bhagwat Prasad joins with Ram Bali and with Sri Nivas, the brother of Ram Bali, who was then alive, in conveying to Sheo Manga the father of Kateshwar, a one-third share in certain mortgagee rights, for a price which is stated at one third of the mortgage- money. The document nowhere says that payment of the consideration had passed from Sheo Mangal to the ostensible transferors. The learned S ubordinate Judge does Bhagwat Prasad something less than justice when he says that the latter was unable to explain this transaction when he was questioned about it. The truth seems to be, that Bhagwat Prasad had forgotten all about it and was taken by surprise by the production of the document. His statement on the subject does not strike us as being at all the kind of statement which a dishonest litigant would have made, as such a person would have come to Court primed with a plausible explanation on a point of this sort. What Bhagwat Prasad is quite certain about is that no consideration passed from Sheo Mangal; that it was mere paper transaction intended as an acknowledgment of the fact that the mortgage having been acquired out of joint family funds, Shed Mangal was interested in the same and that the extent of his interest, in the event of a partition would amount to a one-third share. There is really no reason for not believing this explanation. INdeed, the learned Subordinate Judge has himself accepted in substance this very explanation, though he says that Bhagwat Prasad did not give, it. A transaction of this sort would be very unlikely to take place if Sheo Mangal had actually separated from the rest of the family. Assuming a separation to have taken place, accompanied by an apportionment of immoveable property, a division by metes and bounds of such immoveable property as it was desired to partition and an ascertainment of shares in respect of Zemindari properties which the family desired to keep under joint management, it would not have been open to one member of the family, after such a transaction had been completed, to approach the others and claim an interest to the extent of his rateable share in a property which had not been dealt with at the time of the separation and division. Any such claim on his part would probably be met by the assertion that, inasmuch as he had not advanced it at he time of the separation, he had virtually admitted the particular mortgage in question to be the separate self-acquired property of the members ostensibly interested therein. On the other hand it is quite conceivable that such a document might be executed as between members of joint family, merely in order that there might be clear evidence in existence as to their respective rights in the event of any future difference or separation. It may be conceded to the plaintiff that such a document might also quite conceivably be executed at a moment when a separation of the family was taking place; but if this transaction of 1805 Fasli had taken place as part of a formal separation and distribution of assets and specification of shares between Sheo Mangal and the other members of the family, one would have expected to find clear evidence both oral and documentary of contemporaneous transactions to the same purpose and effect. IN the absence of such evidence, it is impossible to treat the execution of this document as if it proved an actual transfer of property from Bhagwat Prasad, Ram Bali and Sri Nivas to Sheo Mangal, which transfer would no doubt, (had it in fact taken place) be very difficult to reconcile with the existence of a state of jointness between the three at the time seems to us however, that there was no real transfer but merely a formal recognition of an interest which every one concerned admitted Sheo Mangal to possess and, as we have said, such formal recognition is not inconsistent with a state of jointness this is really the whole of the evidence for the plaintiff. IN the very careful and exhaustive argument which has been addressed to us in support of this appeal we were taken through the defendants evidence and here and there a point was made in favour of the plaintiff, from the wording of particular portions of documents produced and relied upon by the other side. We do not think it necessary to discuss these matters in detail. It is sufficient to say that there is a mass of documentary evidence tending to prove that the defendants and Kateshwar Pande were living and carrying on Zemindari business and money-lending business, right up to the time of Kateshwar's death, on such terms as one would expect them to do if they were members of a joint undivided family. The points that have been made to the contrary are, in our opinion, of slight weight and not such as to call for detailed discussion. We are satisfied that the decision of the Court below was correct and that this suit has been rightly dismissed. We dismiss the appeal accordingly with costs, including fees on the higher scale. Walsh, J.

(2.) I agree, The case seems to me to lie within such a small compass that I am not surprised that any one who was able to devote five hours to its discussion should find himself too exhausted to take any further interest in it.