NATHU Vs. GULABCHAND

JUDGEMENT

(1.) 1. The plaintiffs sued the defendants for a half share in certain malik makbuza fileds. The share in dispute was purchased from one Tutya in the year 1894. Tutya was the cousin of the fathers of the present defendants. The sale deed executed by Tutya in favour of the plaintiffs' predecessor in title was unregistered, but it was claimed that the sale was valid in that being for less than Rs. 100 the transfer was made by the delivery of the property. Tutya died at the close of the year 1894 and early in the following year the plaintiffs' predecessor in title got a fresh sale deed from Mb. Magan, Tutya's widow. It is admitted that no consideration was passed on this occasion, and that it was merely confirmatory of the sale deed executed by Tutya. The plaintiffs had never cultivated the fields themselves, but claimed to have let them on batai to the defendants who owned the other eight annas share in the fields. They stated that their share was regularly paid up to the year before the suit was brought when the defendants denied their title and claimed full ownership. The plaintiffs accordingly brought a suit for partition of their share and for possession. The defendants' case was that Tutya was joint with his cousins until his death, whereas the plaintiffs had alleged that he was separate. They denied that possession was given at the time of the unregistered sale deed and, following naturally that Mt. Magan had no right whatever to execute a sale deed in 1895. They denied the batai contract and denied that they ever paid any share of the produce to the plaintiffs. The trial Court held that Tutya was joint; with his cousins, that Tutya did not deliver possession of the fields at the time of the sale deed (indeed the plaintiffs admit that they did not take possession until some years after Tutya's death) and also held that Tutya being a joint member of a Hindu family could not dispose of his share without the consent of his coparceners.

(2.) THE sale deed by Mt. Magan was entirely void. In subsequent mortgage deeds executed by the defendants in respect of the other eight annas share in the fields in 1909 and 1917 there are admissions that the other half of the fields belonged to the plaintiffs, but these the learned Subordinate Judge considered had no effect in plaintiffs' favour and raised no presumptions, as no title to immovable property could arise on mere admissions and that these admissions were nothing more than an untrue statement concerning non existent facts. The Judge also disbelieved the plaintiffs' story of the batai and emphasised the fact that account books had not been produced although the plaintiffs themselves stated that all payments had been duly credited in their account books. He also disbelieved the plaintiffs' contention that they had not been paid anything for the batai for the last ten years and that this was the reason why the suit was brought. The plaintiffs' claim was accordingly dismissed as they had failed to prove their title to the property. This decision was reversed on appeal. The first reason given by the learned District Judge for disagreeing with the decision of the trial Court is incontrovertible. In the Central Provinces a coparcener in entitled to alienate for value his undivided interest in the coparceners' property without the consent of the other coparceners: Bhojraj v. Nathuram AIR 1916 Nag 25.

(3.) THE fact that Tutya was empowered to alienate his undivided share if he so chose is not disputed. The first point for determination is whether the plaintiffs have succeeded in establishing the fact that Tutya was separate at the time he sold his share in 1894. If they have succeeded in establishing that, the appeal must fail. Now the finding that Tutya was separate is not a finding of fact, as laid down in Bed Prasad v. Nakchhed Prasad AIR 1924 Nag 410: A finding that there has or has not been a disruption of a joint Hindu family is not a finding of fact, and can be questioned in second appeal. It is an inference of the legal effect of [the facts found.