The learned counsel for appellants tried to use
section 90 of the Evidence Act in support of his submissions.
Section 90 of the Evidence Act runs as under :-
"90. Presumption as to documents thirty
years old.—Where any document, purporting or
proved to be thirty years old, is produced from
any custody which the Court in the particular case
considers proper, the Court may presume that the
signature and every other part of such document,
which purports to be in the handwriting of any
particular person, is in that person’s handwriting,
and, in the case of a document executed or
attested, that it was duly executed and attested
by the persons by whom it purports to be
executed and attested.
Explanation.—Documents are said to be in
proper custody if they are in the place in which,
and under the care of the person with whom, they
would naturally be; but no custody is improper if it
is proved to have had a legitimate origin, or if the
circumstances of the particular case are such as to
render such an origin probable.
This Explanation applies also to section 81"
The aforesaid provision shows that discretion is given to the
Court by using words 'may presume' to presume due execution
or due attesting of such document. If there are suspicious
circumstances, Court can refuse to raise presumption available
under section 90. In the present matter, the Trial Court refused
to raise such presumption by giving reasons that this document
was never used by Nandlal or even by defendant No. 1 for any
purpose prior to its production in the Court. The Courts below
have observed that there is convincing record to rebut the
presumption which could have been raised in view of section 90
in respect of Exh. 363. This Court has already quoted the
material showing that the family continued to remain joint in all
respects and this record is considered by the Courts below also.
When the finding of the Court is about proof of execution and
section 90 needs to be used for the proof of execution, it
becomes purely matter of discretion and the Appellate Court is
not expected to interfere lightly in finding given by the Trial
Court in such circumstances.
IN THE HIGH COURT AT BOMBAY
APPELLATE SIDE, BENCH AT AURANGABAD
SECOND APPEAL NO. 215 OF 2002
Madanlal Nandlal Zawar V Premsukh Ramdayal Zawar,
CORAM : T.V. NALAWADE, J.
DATED : 3rd May, 2016.
Citation: 2017(2) ALLMR 123
1) The appeal is filed against judgment and decree of
Special Civil Suit No. 130/1974, which was pending in the Court
of Civil Judge, Senior Division, Ahmednagar and also against the
judgment and decree of Regular Civil Appeal No. 35/2001, which
was pending in the District Court, Ahmednagar. The suit filed by
Premsukh for relief of partition and separate possession of his
share from Joint Hindu Family properties is decreed in his favour.
Both the sides are heard.
2) The facts, leading to the institution of the appeal,
can be stated in brief as follows :-
One Ramdayal was the father of plaintiff. Nandlal
was also son of Ramdayal and he was the father of defendant
No. 1 - Madanlal. Defendant Nos. 2 and 3 are sons of defendant
No. 1.
3) It is the case of plaintiff Premsukh that he and
defendant No. 1 were doing business under the name and style
as 'M/s. Ramdayal Nandlal' at Ahmednagar and this was the
business of Joint Hindu Family consisting of plaintiff and
Nandlal. It is contended that only for convenience, the
partnership was formed, but from prior to the formation of this
partnership they were doing the business though under
different name. The particulars of the properties which were
owned by Ramdayal and which was subsequently acquired by
these two brothers are given in the plaint. The properties include
two godowns situated at Panjarapol and Idgah Maidan, one plot
situated at market yard, Ahmednagar, Survey No. 128/B situated
at Shevgaon, Survey No. 128/A situated at Shevgaon, House
properties bearing House Nos. 1285, 1286 and 1287 situated at
Ahemednagar, other movable properties of the firm and gold
and cash amount. It was contended that plaintiff has 1/2 share in
all the properties. As the partnership was formed, relief was
claimed for dissolution of the firm and for its account. Except the
relief of share claimed in 'Sharad Fertilizer', which was said to be
branch of Ramdayal Nandlal Firm, the reliefs are given in respect
of all the other properties by the Trial Court and this decision is
confirmed by the First Appellate Court. The decision of dismissal
of suit in respect of the property 'Sharad Fertilizer' was not
challenged by Premsukh or his successors and so, that property
is not involved in the present proceeding.
4) The plaintiff had given the particulars of previous
business in the plaint by contending that in the past, the
business was done in the name and style as 'Kanhaiyalal
Ramchandra Shop', which was started during the lifetime of
Ramdayal. It is the case of plaintiff that 1/3rd portion of Ginning
Mill property from Shevgaon was purchased in the name of
Kanhaiyalal Ramchandra Shop and afterwards remaining 2/3rd
portion was also purchased. Cause of action was given that the
defendants were trying to grab the properties and they had
withdrawn the amounts of the firm and they had opened
separate accounts to deposit the amounts received for the firm.
It was contended that after the death of Nandlal, defendant No.
1 was made partner in aforesaid firm on 16.4.1957 and this
business was continued and the cause of action took place due
to aforesaid conduct of defendant Nos. 1 and 2 in the year 1974.
5) Defendant No.1 filed written statement and he
contested the suit. His son also contested the suit. Defendant
No. 1 admitted his relationship with plaintiff, but he denied that
the plaintiff has share in the suit properties. He contended that
the suit was not within limitation.
6) The defendant admitted that partnership was formed
by plaintiff and Nandlal under the name and style as 'Ramdayal
Nandlal Firm', but he denied that it was Joint Hindu Family
business and only for convenience, the partnership firm was
created. He admits that in this partnership, the plaintiff has 1/2
share. He also admits that the property of Ginning Factory from
Shevgaon was property of Ramchandra Nandlal Firm. However,
he has contended that 1/3rd portion of Survey No. 128 from
Shevgaon was self-acquired property of his father Nandlal and
so, plaintiff is not entitled to get share in that property. He
contended that 2/3rd part of Survey No. 128/B with building and
movables on it was the property of Ramdayal Nandlal Firm.
Defendant No. 1 contended that 1/3rd portion of entire Survey
No. 128 was purchased by Nandlal and remaining 2/3rd portion
was purchased for Ramdayal Nandlal Firm.
7) Defendant No. 1 contended that house property No.
1285 was purchased by him from his separate income and it has
nothing to do with the aforesaid partnership. However, he
admits that in the past, this house was owned by the Joint Family
of Ramdayal, Nandlal and Premsukh. He contended that the
property was sold for making payments of debts taken for
business by Joint Hindu Family and he purchased this property
from his separate income. Defendant No. 1, however, admitted
that house property 1286-87 is jointly owned by defendant No. 1
and plaintiff, but he contended that this property was purchased
after separation and it was purchased by Ramdayal Nandlal Firm.
He admitted that the plot from market yard belongs to the firm
and two godowns from Panjarapol are taken on rent for running
business of this firm. He denied the allegation that withdrawal of
the amounts was made from firm account to grab the properties
by him.
8) Defendant No. 1 came with specific case that plaintiff
and Nandlal had separated from each other from prior to year
1944. He contended that in the year 1944, some writing was
done by plaintiff in favour of Nandlal to show that there was
separation. He contended that due to partition and writing, the
joint status had come to an end. He made allegation against
plaintiff that plaintiff had withdrawn huge amount from the
account of the firm and when his explanation was sought, he
raised dispute and he filed the suit. He contended that the
business of the firm was stopped long back. Alternatively,
defendant No. 1 had contended that he had become owner due
to adverse possession of 1/3rd portion of Survey No. 128-B,
1/3rd portion of 128/A-2 situated at Shevgaon and entire house
property bearing House No. 1285.
9) On the basis of aforesaid pleadings, issues were
framed by the Trial Court. Issue Nos. 10, 11 and 13 show that
burden was cast on plaintiff to prove that (i) there was Joint
Hindu Family of plaintiff and defendants, (ii) Municipal House No.
1285 was purchased from the income of Joint Hindu Family and
(iii) House No. 1285 was thrown in the common hotch pot or
blended with ancestral property. One issue was framed to show
that the burden was on defendants to prove that the partition
had taken place between Nandlal and plaintiff prior to 1944.
10) Both sides examined witnesses and they placed
reliance on the documentary evidence. Much was argued in the
Courts below and before this Court also for defendants on the
basis of one document at Exh. 363 dated 25.10.1944. The Courts
below have not read this document in evidence and it is
observed that this document was marked as Exh. 363 only for
the purpose of identification and the execution of this document
and contents of this document were not duly proved. On the
basis of this document, the defendants want to prove that there
was a severance of status between plaintiff and Nandlal prior to
1944 and whatever property was purchased by them in their
names subsequent to that year was self-acquired property. By
making such contention, the defendants wanted to prove that
the other properties belong to Ramdayal Nandlal Firm and it was
strictly partnership business and it was not the business of Joint
Hindu Family.
11) On the basis of oral and documentary evidence, the
Courts below have held that the partition has not taken place. It
is further held that except the property, 'Sharad Fertilizers', all
the properties are Joint Hindu Family properties. So, the relief as
claimed in respect of these properties is given by the Courts
below. This Court admitted the appeal on 19.12.2002 by
formulating following substantial questions of law.
(i) Whether the first appellate Court is justified in
treating the document Exh. 363 as a document of
partition which requires registration.
(ii) Whether the first appellate Court misconstrued
the document Exh. 363 as a deed of relinquishment.
(iii) Whether the first appellate Court is justified in
propounding a theory of relinquishment of share in the
joint family properties on its own when, in fact, the
document Exh. 363 does not at all spell out
relinquishment of share in the joint family properties.
(iv) Whether the document Exh. 363 being more than
30 years old can be admitted in evidence and can be
read in evidence.
(v) Whether the first appellate court is justified in
discarding the document Exh. 363 even for collateral
purpose.
(vi) Whether the first appellate Court is justified in
rejecting the theory of previous partition by
misinterpreting the statements of the witnesses with
regard to joint residence and messing as admissions of
the witnesses with regard to joint status.
(vii) Whether the findings recorded by the courts
below suffer from perversity.
(viii) Whether the suit of partition is maintainable
without joining branch of Ramkisan.
12) In the written statement, it was contended by
defendant No. 1 that many years prior to 1944 partition had
taken place between plaintiff and Nandlal. The rival pleadings do
not show that the other sons of Ramdayal like Ramkishan were
living in joint family with Nandlal and Ramdayal for relevant
period. On the other hand, in the written statement, it is
specifically admitted that plaintiff and Nandlal, only two brothers
continued to live in Joint Hindu Family. Due to absence of specific
pleading that other sons of Ramdayal were living in joint family
at the relevant period and they are necessary parties to the suit,
it cannot be said that the suit is bad for non joinder of the said
issues of Ramdayal. The record is available of the property made
by Ramdayal prior to year 1927 which is not disputed and on the
basis of that record, it can be said that only Ramdayal, Nandlal
and Premsukh continued to live in Joint Hindu Family. Further, the
oral evidence on record shows that Ramkishan, one son of
Ramdayal died in the year 1924. In view of these circumstances,
the said point need not be considered in the present matter and
the substantial question of law formulated in this regard was not
necessary.
13) In addition to aforesaid substantial questions of law
formulated by this Court, the learned counsel for appellants
argued on one more point. He submitted that plaintiff -
Premsukh did not make available himself for cross examination
when his evidence of examination in chief was recorded and due
to this circumstance, adverse inference needs to be drawn
against the plaintiff in respect of document at Exh. 363 and also
the other defences raised by the defendants. The record shows
that Ramvilas, son of plaintiff, gave evidence by contending that
Premsukh had become aged and he was not fit to give evidence.
It appears that examination in chief was recorded and after that,
no progress was made in the case for about five years. It can be
said that the defence wanted to confront Exh. 363 to Premsukh
and so, defence wanted to cross examine Premsukh. Sufficient
discussion about the admissibility of Exh. 363 in evidence is
made at proper place. At this place, for the present purpose, this
Court observes that even the adverse inference which could
have been drawn in respect of Exh. 363 could not have made
change in the decision of the matter. There are many
circumstances which are not consistent with the contents of Exh.
363. However, the contents are also not proved. On this point,
some reported cases were cited by the learned counsel for
appellants like AIR 1968 SUPREME COURT 1413 [Gopal
Krishnaji Ketkar Vs. Mohamed Haji Latif and Ors.] and
(2010) 10 Supreme Court Cases 512 [Man Kaur (Dead) by
L.Rs. Vs. Hartar Singh Sangha]. These cases are in respect of
the provision of sections 103 and 114 (g) of the Evidence Act.
There is no dispute over the propositions made in the two
reported cases, but the facts and circumstances of each and
every case are always different.
14) On merits, it can be said that there is voluminous
oral and documentary evidence to prove that plaintiff -
Premsukh and Nandlal were living in joint family with Ramdayal
and even after the death of Ramdayal, they continued to live in
Joint Hindu Family. The oral evidence from the side of plaintiff is
given to show that there was a joint family and joint family was
doing the business firstly in the name of Kanhaiyalal
Ramchandra Shop and then in partnership. The evidence is
given as follows :-
(i) Ramvilas, son of Premsukh was aged about
45 years when he gave evidence in 1979. He has given
evidence on the basis of some personal knowledge and
on the basis of information which was collected from
his father Premsukh. His evidence that Ramdayal,
father of Premsukh and Nandlal died in the year 1944 is
not disputed. His evidence that Nandlal was elder
brother of plaintiff and Nandlal died in the year 1957 is
also not disputed. Nandlal never contended before
anybody that plaintiff had separated from him and the
Joint Hindu Family had come to an end.
(ii) Ramvilas has given evidence that
Ramdayal and his two sons were living together in Joint
Hindu Family in house No. 1285. He has given evidence
that this house was purchased by Ramdayal for use of
Joint Hindu Family prior to 1927 and in this house, the
Joint Hindu Family was doing business in the name and
style as Kanhaiyalal Ramchandra Shop. This evidence
given by Ramvilas is not disputed.
(iii) Ramvilas has given evidence that for
payment of loan taken for the business of Kanhaiyalal
Ramchandra Shop, a sham sale deed was executed in
respect of house No. 1285 and it was a conditional sale
transaction. He has given evidence that though the
document was executed, the possession remained with
the family. He has given evidence that the market
value was around Rs. 30,000/-, but it was shown to be
sold for Rs. 20,000/- and actual amount of only Rs.
15,000/- was paid by the purchaser. He has deposed
that the purchaser had agreed to pay Rs. 5,000/- to a
third party, to whom the vendor was indebted. Such
amount was not paid by the purchaser to said third
party. The fact that the possession was not given to the
purchaser is not disputed and that can be seen in the
title of the document and also other document like
lease deed executed in favour of Ramdayal, Premsukh,
Nandlal and others. Ramvilas has given evidence that
though the lease document was executed, rent was
never paid to purchaser as it was not real transaction.
Defendants have not disputed that the amount of Rs.
15,000/- was only paid by the purchaser and to the
third party, nothing was paid by the purchaser.
(v) Ramvilas has deposed that initially
business was done by Joint Hindu Family in the name of
Kanhaiyalal Ramchandra Shop and this business was
continued till the year 1945. He has deposed that after
the death of Ramdayal, the business was started by
Premsukh and Nandlal in the name of Firm Ramdayal
Nandlal and the business was started even before the
registration of partnership firm. It is not disputed that
this partnership started business in the house viz.
house No. 1285.
(vi) Ramvilas has given evidence that the
families of Nandlal and Premsukh were joint in
residence, food, worship and business. He has deposed
that they continued to live in the same house during
the lifetime of Nandlal and also for some more time till
the dispute started. He has given evidence that after
the death of Nandlal, in the year 1957 defendant No. 1,
son of Nandlal was made partner in Ramdayal Nandlal
Firm and they continued this business of Joint Hindu
Family. He has given evidence that they were living
together in house No. 1285 till 1972 and only from
1972, Premsukh started living separate in house No.
1286-87. There is admission of defendant No. 1 in the
evidence that family of Premsukh was living with his
family in house No. 1285 though he has tried to
contend that after separation, Premsukh had again
returned to Nandlal and then he started living there.
(vii) Ramvilas has given evidence that the
expenses of the Joint Hindu Family were born by
Ramdayal Nandlal Firm and the payments were made
for the expenditure from the account of this firm. There
is the record in support of this oral evidence which is
being discussed at proper place. Defendant No. 1 has
not specifically rebutted this part of evidence.
(viii) Ramvilas has given evidence that the joint
family was doing the business of Insurance also and
they had work of Insurance Companies like New Asiatic
Insurance Company, Nubi General Insurance Company,
Kaisar Hinga Insurance Company and Skandia
Insurance Company. He has deposed that he had
worked for Skandia Insurance Company and he had
insured the assets of Ginning Mill from Shevgaon by
purchasing policy of this Insurance Company. He has
given evidence that the persons, who were working for
the different Insurance Companies, were working for
Joint Hindu Family and the income was spent for the
Joint Hindu Family.
(ix) Ramvilas has given evidence that house
No. 1285 was repurchased by Joint Hindu Family in the
year 1924 though the transaction was made in the
name of defendant No. 1. He has given evidence that
the property was not purchased in the name of shop as
they were indebted. He has given evidence that the
market value of this house in the year 1944 was more
than Rs. 50,000/-. He has deposed that the
consideration of Rs. 18,500/- was shown, as the
amount of Rs. 15,000/- was given by the vendor to the
joint family in the past and the interest of Rs. 3500/-
was to be paid on this amount. He has given evidence
that to make payment of Rs. 15,000/-, there was the
amount with joint family like the amount of Rs. 3,000/-
given by firm Ramnath Giridharlal Rathi, Rs. 7,000/-
given by Trilokchand Hukumchand and Rs. 8,000/-
received from agriculturists and there was some
amount collected by selling joint family gold
ornaments.
(x) Ramvilas has given evidence that house tax
in respect of house Nos. 1285, 1286-87 was paid by
Ramdayal Nandlal Firm and the cheques were also
issued from the account opened by this firm in Sangli
Bank for making payment of the tax. Defendant No. 1
has admitted that on few occasions, the tax was paid
by the firm by giving cheques, but he has tried to
contend that from his share in the profit, the amount
was paid as per his direction.
(xi) Ramvilas has deposed that Ramdayal
Nandlal Firm had taken loan from a Bank of
Ahmednagar by giving security of house Nos. 1285,
1286-87 and also the property Balaji Ginning Factory.
This fact is not disputed.
(xii) Ramvilas has deposed that suits were filed
for recovery of dues and for enforcing the rights of
previous shop Kanhaiyalal Ramchandra by plaintiff and
Nandlal even after the year 1940. The record in this
regard is produced.
(xiii) Ramvilas has deposed that house No. 1286-
87 was purchased from the funds of shop Kanhaiyalal
Ramchandra though the possession was given to joint
family in the year 1948. He has given evidence that the
joint family made construction of two storied building
on house No. 1286-87 during the year 1950-1952. He
has given evidence that joint family had connected the
two buildings present on house No. 1286 (one building)
and 1286-1287 (one building) by connecting galleries
and by opening the entrances in the walls of the two
houses. He has given evidence that some portion of
house No. 1285 was given on rent to Sangli Bank, but
the rent was deposited in the account of Ramdayal
Nandlal Firm.
(xiv) Ramvilas has deposed that in the year
1928, 1/3rd portion of Ginning Factory from Shevgaon
was purchased by Kanhaiyalal Ramchandra Shop and
along with this share in the factory, share in the land
Survey No. 128 was purchased for the joint family and
one Bansilal remained as owner of remaining 2/3rd
portion. Evidence is given that though the name of
Nandlal was given for running the business of the said
Ginning Mill, it was the business of Joint Hindu Family.
He has given evidence that subsequently, the
remaining portion, 2/3rd share of Bansilal was also
purchased by Joint Hindu Family. He has given evidence
that some portion of land was given to Bhudan
Movement and some portion was converted to non
agricultural use and so, Survey No. 128 was divided in
to Pot-Hissas.
(xv) Ramvilas has given evidence that one
Kanhaiyalal Mundada (witness examined by plaintiff)
was Clerk of Ramdayal Nandlal Firm and he had written
some accounts of the firm. This fact is not disputed by
defendants.
(xvi) Ramvilas has given evidence that as
Nandlal was elder, he was supervising the business till
his death and after that Premsukh started acting as a
Karta of Joint Hindu Family.
(xvii) Ramvilas has deposed that in the year
1931, the aforesaid 2/3rd portion, share in the Ginning
Mill was mortgaged to raise the loan for the business of
Kanhaiyalal Ramchandra Shop. He has deposed that
this mortgage was redeemed in the year 1946 by
making payment of the loan from the business of
Ramdayal Nandlal Firm.
(xviii) Ramvilas has deposed that after the death
of Nandlal, information was given to banks for
operating account by all the members of Joint Hindu
Family and it was informed that they were coparceners
and Premsukh was their Karta.
15) In support of the case, plaintiff has examined one
witness Harikishan Dhut (PW 3). This witness has given evidence
that he was doing business with Kanhaiyalal Ramchandra Shop
and then he did business with Ramdayal Nandlal Firm. He has
deposed that he was selling the goods like agricultural produce
to the Adat Firm of plaintiff and defendants and he had seen that
Premsukh, Nandlal and defendant No. 1 - Madanlal were doing
the business for Joint Hindu Family. He has given evidence that
they were joint in food, residence, worship and business. Though
this witness has no record in respect of aforesaid transactions,
his evidence and the tenor of cross examination show that
defendants are not disputing that this person had contact with
this family. He was aged about 68 years on the date of
deposition, in the year 1981. Another witness Nemichand,
examined by plaintiff, is also businessman and dealing in grains
and cotton. He has deposed that he had seen that plaintiff and
defendants were doing the business of Joint Hindu Family from
1954 to 1969. Witness Babulal, examined by plaintiff, has given
similar evidence. He has given evidence that initially the
business was run in the house No. 1285 and then it was run in
the house No. 1286-87. He has given evidence that initially
name of business was Kanhaiyalal Ramchandra Shop and then
the name was changed to make it as Ramdayal Nandlal Firm.
These witnesses are believed by the Courts below.
16) Witness Lalchand, examined by plaintiff, is brother
in law of defendant No. 1. He has supported the case of plaintiff.
His evidence shows that he had married with daughter of
Nandlal in the year 1939. He has deposed that he had seen that
plaintiff and Nandlal were living in Joint Hindu Family and they
were doing the business of Joint Hindu Family together. He has
denied that his relation with defendant No. 1 is not good and so,
he is deposing falsely. This witness is also believed by the Courts
below.
17) The other important witness of plaintiff is
Kanhaiyalal, Clerk of Ramdayal Nandlal Firm. He has deposed
that he joined this business in the year 1955 as an employee
and he had seen that plaintiff and defendants were living in Joint
Hindu Family. He has given evidence that they were joint in food
and business. Some record of firm Ramdayal Nandlal is proved in
his evidence as Exh. 244. The evidence of defendant does not
show that he is disputing that this witness was working atleast
for some time for Firm Ramdayal Nandlal.
18) In rebuttal, defendant No. 1 - Madanlal has given
evidence as follows :-
(i) In Diwali of 1937, three sons of Ramdayal
viz. Laxminarayan, Tarachand and Premsukh separated
from Joint Hindu Family and they shifted to Jalna. There
is no such specific pleading in the written statement.
Nothing is said even in the evidence by Madanlal as to
whether and what property was given to them by
Ramdayal. However, his evidence shows that the
business of Kanhaiyalal Ramchandra Shop was still
continued at Ahmednagar. No record is produced in
respect of separation of these three brothers from the
joint family and when witnesses from other branch
could have been examined, they are not examined in
defence. Nandlal was alive in the year 1937 and no
explanation is given as to why writing was obtained
only from Premsukh and that too in the year 1944.
Thus, there is no consistency in the pleading and in the
evidence.
(ii) Madanlal has given evidence that he was
freedom fighter and he was kept in jail in freedom
struggle on many occasions. He has given evidence
that he worked as organizer with New Asiatic Insurance
Company and he was getting handsome salary from
the said job. No record of income or payments made
for any reason by this company is produced though
appointment letter is produced.
(iii) Madanlal has given evidence that he
purchased house No. 1285 for consideration of Rs.
18,500/-, but actual amount paid to the vendor was Rs.
10,000/-. He has given evidence that the remaining
amount of Rs. 8,500/- was to be paid to one
Vyankatraman Eknath, who had charge on the property.
His evidence shows that he has no record to show that
he had made the payments of remaining amount to
anybody. He has given evidence that he had done
some savings from the income of aforesaid job and
from that income, he had paid consideration to vendor.
It is already observed that there is no record
whatsoever with the defendant No. 1 in respect of his
separate income. No explanation is given as to why the
property was only sold for Rs. 10,000/- when in the
year 1927 the said property was sold for consideration
of Rs. 20,000/-. Thus, the case of the plaintiff appears
to be more probable in this regard. Further, there was
litigation between the vendor and the members of the
Joint Hindu Family which was filed for recovery of
arrears of rent and recovery of possession. This
circumstance speaks loud about the defence taken in
the present matter. There is no rent receipt with the
defendant No. 1. On one hand, he tried to say that he
could not pay the rent for many months and on the
other hand, he tried to prove that from his separate
income, he paid the consideration of Rs. 10,000/-.
(iv) Defendant No. 1 has deposed that he had
given some portion of house No. 1285 on rent basis to
Sangli Bank and to Sarvodaya Industries. Suggestion
was given that wife of defendant No. 1 was involved in
Sarvodaya Industries. No record of Sarvodaya
Industries is produced even like payment of rent.
Similarly, defendant No. 1 admitted that he had no
separate account in any bank and there was only one
account in the name of Ramdayal Nandlal Firm and it
was used by all of them. There is no record to show
that the rent from Sangli Bank was paid only to
defendant No. 1 and he had used that amount for
himself.
(v) Defendant No. 1 has deposed that he had
shown house No. 1285 as separate property when he
applied for security for Hundi to District Urban Central
Cooperative Bank, Ahmednagar. This contention has no
support of record. On the contrary, if he had no
separate business, there was no question of seeking
such cash credit for Hundi from the bank. The record
shows that the cash credit was obtained for the
business and it was the business of Ramdayal Nandlal
Firm.
19) Defendant No. 1 has admitted following facts :-
(i) Ramdayal, father of plaintiff and Nandlal
died in the year 1944.
(ii) Ramdayal was living in joint family with
Premsukh and Nandlal in house No. 1285 and there,
they were running the business of Kanhaiyalal
Ramchandra Shop.
(iii) It is Ramdayal, who had purchased the
house No. 1285 for the business of Joint Hindu Family
and the business, which they were doing at other
place, was shifted to this house after purchasing the
house.
(iv) For repayment of loan of Kanhaiyalal
Ramchandra Shop, house No. 1285 was sold to one
Ramnarayan by all the members of family, but the
possession was kept with Ramdayal and his sons
though separate lease document was prepared.
(v) In some portion of house No. 1285 the
business of Ramdayal Nandlal Firm was started. No rent
was taken from Ramdayal Nandlal Firm and no
separate charge in respect of anything like electricity
connection or telephonic connection were taken from
this firm. Telephone connection standing in the name of
defendant No. 1 was used by this firm.
(vi) There was the litigation in respect of house
property No. 1286-87 and in that litigation, even in the
year 1945, plaintiff - Premsukh was party. This
circumstance is not consistent with the case that
Premsukh had given up everything and he had
separated from the joint family.
(vii) Nandlal and Premsukh had made
construction over the house No. 1286-87, which was
two storied building and this building was connected to
building standing on house No. 1285 by connecting
galleries and by opening doors in the walls of two
buildings.
(viii) Premsukh and Nandlal had started business
in partnership in the year 1947 though the partnership
document was written in 1948-49. Thus, he admits that
even prior to the registration of the firm, they were
doing business in the said name. There is the record
produced in this regard which is pre-1947.
(ix) Defendant No. 1 has admitted in his
evidence that he had signed on the application given to
Central Bank after the death of Nandlal. Though he has
contended that his signatures were obtained on blank
forms and papers by Premsukh, signatures are made
not only by him, but others also and this form shows
that it was informed that they were living in Joint Hindu
Family and they were coparceners.
(x) Defendant No. 1 has admitted in his
evidence that Ramvilas, son of plaintiff was receiving
education in a school from Ahmednagar from the year
1940 onwards. First he tried to say that Ramvilas
stayed in the house of his grandmother and then in one
hostel of which defendant No. 1 was Secretary, but he
could not produce relevant record in that regard. There
is clear probability that son of Premsukh was living in
house No. 1285 itself when he was attending school
during all these years starting from 1940.
(xi) Defendant No. 1 has admitted that the
lease document in respect of house No. 1285 was
signed by all the members of joint family when the
property was sold. He also admits that the suit was
filed by the vendor for recovery of possession and
arrears of rent against all these members.
(xii) Defendant No. 1 has admitted in his
evidence that Ramdayal had filed a suit for Kanhaiyalal
Ramchandra Shop in the year 1943. He avoided to
admit that the litigation was prosecuted by Premsukh
and Nandlal after the death of Ramdayal, but the
copies of that record are produced.
(xiii) Defendant No. 1 has admitted that 1/3rd
share of Ginning Factory from Shevgaon, share in the
agricultural land was purchased in the name of Nandlal,
but it was the property of Kanhaiyalal Ramchandra
Shop.
(xiv) Defendant No. 1 has admitted that
Ramvilas was working for one Insurance Company and
even Sharad was working for one Insurance Company.
He avoided to admit that even Nandlal was working for
one Insurance Company. This evidence came only after
the evidence of Ramvilas that all the members were
doing such work for joint family.
(xv) Defendant No. 1 has admitted that from the
year 1957, they were joint in mess etc. with Premsukh,
though he has tried to deny that prior to that they were
members of Joint Hindu Family. He has given all evasive
answers even in respect of hand writing of Nandlal,
hand writing of employees of the Firm Ramdayal
Nandlal.
(xvi) Defendant No. 1 admitted that 1/3rd share
of Ginning Factory from Shevgaon was purchased for
Joint Hindu Family, but he tried to say that this property
fell to the share of Nandlal in the family partition which
took place in 1937. There is no such record and even
Exh. 363 does not make any mention about any
property.
(xvii) Defendant No. 1 has admitted that house
tax of houses were paid by Ramdayal Nandlal Firm.
19) Witness Rupchand, examined by defendant has
given evidence that defendant No. 1 was doing the Insurance
business. It is already observed that there is no record available
to show that any amount was paid by the Insurance Company to
defendant No. 1. Such record could have been produced and
atleast the account from bank of defendant No. 1 could have
been produced to show that the amounts received from the
Insurance Company by cheque were deposited in the bank
account. This witness has replied that he has no idea of income
which defendant No. 1 was making from that business. On the
other hand, this witness has given vital admission in his cross
examination by saying that the defendants and plaintiff were
joint in meals from the year 1939 to 1969 to his knowledge.
20) Witness Kanhaiyalal examined by defendant has
given evidence that he saw plaintiff first time in the year 1947
and at that time, plaintiff had returned from Marathwada. He has
tried to say that from the year 1947, plaintiff started living with
the family and Nandlal. This evidence is not sufficient to prove
that prior to that there was separation between plaintiff and
Nandlal. His evidence in cross examination shows that he had
never seen Ramvilas and he saw Ramvilas first time in the Court
in 1947. If he was regularly visiting house No. 1285, the house of
family, he could have easily noticed Ramvilas in this family. This
circumstance shows that he has no personal knowledge about
this family.
21) Defendant No. 2 is also examined in defence. He was
aged about 39 years in the year 1984. He has given evidence
that he had seen that since his childhood plaintiff and defendant
No.1 were living separate. This evidence is not consistent with
the other evidence already discussed. Even defendant No. 1 has
admitted that plaintiff was living with him since the year 1947 in
house No. 1285.
22) In support of the case of plaintiff, there are many
documents which falsify the defence taken by defendant No. 1.
At Exh. 214, there is document of purchase of 1/3rd share in
Ginning Mill property of Shevgaon in the year 1929 and it shows
that it was purchased for Kanhaiyalal Ramchandra Shop. At
Exhs. 216, 218 and 219, there is the record of correspondence
made with Central Bank and there are also forms. They show
that after the death of Nandlal, it was informed to bank by all the
adult coparceners of this family like Premsukh, Madanlal,
Ramvilas that Premsukh was acting as a Karta of the
coparcenery. These forms were signed on 15.7.1957. They had
given information that they were doing the business of
Ramdayal Nandlal Firm and it was informed that it was business
of coparcenery.
23) At Exh. 268, there is a copy of plaint of suit filed on
2.11.1930 against Premsukh, Ramdayal and Nandlal for recovery
of possession of house No. 1285 and for recovery of arrears of
rent. Premsukh, plaintiff had appeared in the suit and that can
be seen from the decree. At Exh. 370 and 371, there is the
record of two suits and appeals filed against the decision of two
suits. In Suit No. 553/1943, Kanhaiyalal Ramchandra Shop was
the plaintiff and for it, the suit was filed by Nandlal and
Premsukh. It was filed in respect of property No. 1286-87. The
suit was decreed in favour of this shop and Appeal bearing
R.C.A.No. 136/1946 was dismissed on 8.11.1946. R.C.S. No.
333/1943 was filed against Kanhaiyalal Ramchandra Shop and
the shop was represented by Nandlal and Premsukh. This was
again in respect of share in the house No. 1286-87. Thus,
Premsukh, plaintiff was still there and these circumstances are
against the contents of document at Exh. 363.
24) At Exhs. 169 to 179, there is record of ration cards.
This record shows that after the death of Nandlal, the name of
Premsukh, plaintiff was informed to the authority that he was
Karta of Joint Hindu Family and each adult member of the Joint
Hindu Family had signed the form in that regard. At Exhs. 181 to
187, there are bills of electricity meter bearing customer No.20-
2-1957. The bills were in respect of house No. 1286-87 and
customer's name was shown as 'Nandlal Ramdayal'. Thus, the
elder member of their family viz. Nandlal was shown as
customer and after Nandlal, name of Premsukh was given by the
family as Karta.
25) After considering the aforesaid oral and documentary
evidence, it can be said that not much remains in the case of
defendant No. 1 that document at Exh. 363 is sufficient to prove
that there was severance of status. This document and the
contentions can be considered from other angles also. The
document, Exh. 363, is bearing the date and it is admitted that it
was produced in the Court by defendant No. 1 after the expiry of
30 years from the date of the document. Only defendant No. 1
has given evidence for proving of execution of this document
and it is as follows :-
"I see Exh. 84/A.13. It is the hand writing of
plaintiff and made signature which I know."
Aforesaid document was purportedly made in favour of Nandlal
and not in favour of defendant No. 1. Thus, there was no
question of getting personal knowledge by defendant No. 1 in
respect of this document unless there was something concrete in
that regard. In view of the aforesaid nature of evidence, the Trial
court did not give exhibit to the document even after giving the
aforesaid evidence by defendant No. 1. This approach of the
Court shows that Court was not accepting that due execution of
document was proved. In view of these circumstances, there was
no question of admitting this document or reading the contents
of the document in evidence. In the evidence, defendant No. 1
has tried to say that the attesting witnesses signed on this
document in his presence. No evidence is given that plaintiff
had signed on this document in his presence and so, there was
no question of proving of execution of the document on the basis
of aforesaid evidence. No attempt was made to call the attesting
witnesses to prove the execution.
26) The learned counsel for appellants tried to use
section 90 of the Evidence Act in support of his submissions.
Section 90 of the Evidence Act runs as under :-
"90. Presumption as to documents thirty
years old.—Where any document, purporting or
proved to be thirty years old, is produced from
any custody which the Court in the particular case
considers proper, the Court may presume that the
signature and every other part of such document,
which purports to be in the handwriting of any
particular person, is in that person’s handwriting,
and, in the case of a document executed or
attested, that it was duly executed and attested
by the persons by whom it purports to be
executed and attested.
Explanation.—Documents are said to be in
proper custody if they are in the place in which,
and under the care of the person with whom, they
would naturally be; but no custody is improper if it
is proved to have had a legitimate origin, or if the
circumstances of the particular case are such as to
render such an origin probable.
This Explanation applies also to section 81"
The aforesaid provision shows that discretion is given to the
Court by using words 'may presume' to presume due execution
or due attesting of such document. If there are suspicious
circumstances, Court can refuse to raise presumption available
under section 90. In the present matter, the Trial Court refused
to raise such presumption by giving reasons that this document
was never used by Nandlal or even by defendant No. 1 for any
purpose prior to its production in the Court. The Courts below
have observed that there is convincing record to rebut the
presumption which could have been raised in view of section 90
in respect of Exh. 363. This Court has already quoted the
material showing that the family continued to remain joint in all
respects and this record is considered by the Courts below also.
When the finding of the Court is about proof of execution and
section 90 needs to be used for the proof of execution, it
becomes purely matter of discretion and the Appellate Court is
not expected to interfere lightly in finding given by the Trial
Court in such circumstances. The scope of this Court in Second
Appeal is further reduced. For this reason, this Court is not
expected to interfere in the findings given by the Courts below in
respect of proof of execution and admissibility of Exh. 363 in
evidence.
27) The proof of execution cannot lead to inference that
the contents are correct. Whether such document could have
been considered for proof of execution is other question. The
proof of execution of Exh. 363 could not have been allowed in
the Court for other reasons also. The contents of this document
purport relinquishment of right in coparcenery property, which is
immovable property. Though there was admittedly some charge
on the property like house No. 1285 or even on the share in the
property from Shevgaon, there was the other property like share
in house No. 1286-87 purchased under the registered document.
There was big agricultural land at Shevgaon. As per the
provisions of Transfer of Property Act and the provisions of Indian
Registration Act, such document ought to have been registered.
It was necessary to pay the stamp duty also, if due to this
document plaintiff was to relinquish his rights in immovable
property. For this reason even for collateral purpose the
document could not have been used and proof of execution
could not have been allowed. The provisions of not only Indian
Registration Act, but also the other Act like Stamp Act would
have proved to be obstacle.
28) The learned counsel for respondent placed reliance
on the reported cases to challenge the admissibility of Exh. 363
in evidence. They are as follows :-
(i) 2015 ALL SCR 3388 [Yellapu Uma
Mahesgwari & Ors. Vs. Budda
Jagadheeswararao & Ors.],
(ii) 2015 (5) ALL MR 656 [Jagannath s/o.
Balaji Zagare & Ors. Vs. Kisan Balaji Zagare
(D) thr. L.Rs. & Ors.].
The Apex Court has laid down that document showing
relinquishment of right in respect of immovable property is
compulsory registrable and if not registered, it cannot be relied
upon to prove the factum of partition. It is observed that it
cannot be relied upon even for collateral purpose unless the
same is impounded. The provisions of sections 17 (i) (b) and
section 49 of Indian Registration Act, 1908 and the relevant
provisions of Stamp Act are considered and discussed by the
Apex Court for making such observations. Similar observations
are made by the Bombay High Court.
29) The learned counsel for appellants, on the other
hand, placed reliance on the case reported as AIR 1968
SUPREME COURT 1299 [Siromani Vs. Hemkumar and
Ors.]. The Apex Court referred the provision of section 17 (1) of
Registration Act and held that even if the document of partition
cannot be used for proof of partition if it is not registered it can
be used for proving that there was intention of coparcenery to
become divided in status. There is no dispute over this
proposition. The facts of the present matter are altogether
different. One more case reported as AIR 1968 SUPREME
COURT 1018 [Puttangamma and ors. Vs. Ranganna and
ors.] was cited on this point. This case is also of no help to the
appellants. The facts of the present matter are totally different.
30) The learned counsel for appellants submitted that if
there was severance of status, the burden was on plaintiff to
prove that there was reunion. On this point, he placed reliance
on the case of Puttangamma cited supra and AIR 1952
SUPREME COURT 72 [Bhagwati Prasad Sah and Ors. Vs.
Dulhin Rameshwari Kuer and Anr.]. There is no dispute over
the proposition made by the Apex Court in these cases. The
facts of the present matter are totally different and there is
sufficient material to infer that the joint family continued to
remain joint and only in the year 1972 plaintiff started living
separate from the family of defendants. The learned counsel for
appellants placed reliance on some more cases which are as
under :-
(i) AIR 1980 SUPREME COURT 1173 (1)
[Kalyani (dead) by L.Rs. Vs. narayanan and
Ors.],
(ii) AIR 1960 BOMBAY 159 (V 47 C 48)
[Gulabrao Fakirrao Vs. Baburao Fakirrao and
Anr.],
(iii) AIR 2003 SUPREME COURT 3800 (1)
[D.S. Lakshmaiah and Anr. Vs. L.
Balsubramanyam and Anr.],
(iv) 2013 (7) ALL MR 419 [Ku. Suman Vishnu
Pathak & Ors. Vs. Smt. Usha w/o.
Prabhakarrao Koparkar & Ors.],
(v) AIR 1962 SUPREME COURT 287 (1)
[Bhagwan Dayal (D) L.Rs. and Anr. Vs. Mst.
Reoti Devi (D) L.Rs.],
(vi) AIR 1963 SUPREME COURT 1601
[Lakkireddi Chinna Venkata Reddi and Ors.
Vs. Lakkireddi Lakshmama],
(vii) AIR 2014 BOMBAY 124 [Maharu s/o.
Gaindhal Bhoi Vs. Hemraj s/o. Waman Patil
(D) Thr. L.Rs.],
(viii) AIR 1976 SUPREME COURT 807 [Kale
and Ors. Vs. Deputy Consolidation and Ors.],
(ix) AIR 2003 MADHYA PRADESH 128
[Purushottam and Ors. Vs. Bhagwat Sharan
and ors.],
(x) AIR 1975 ORISSA 214 [Raghunath
Panda Vs. Radhakrishna Panda and Ors.],
(xi) AIR 1964 ORISSA 75 (Vol. 51, C. 32)
[Jagat Krishna Das and Anr. Vs. Ajit Kumar
Das and Ors.].
The facts of these reported cases were also different.
31) The learned counsel for appellants placed reliance on
the case reported as AIR 2001 SC 1273 [Kulwant Kaur Vs.
Gurdial Singh Mann]. The learned counsel submitted that in
view of the scope of provision of section 100 of Civil Procedure
Code, this Court has the power to consider other points raised
which are purely legal and more substantial questions of law can
be considered than the formulated for admission of the appeal.
There is no dispute over the proposition made in the aforesaid
case. This Court has considered all the arguments advanced.
Though the aforesaid substantial questions of law were
formulated, this Court holds that they are not really involved in
the matter and they are answered against the appellants,
defendants.
32) In the result, the appeal is dismissed. Civil
Applications are disposed of.
33) The learned counsel for appellants submits that
there has been stay to the execution of decree from beginning.
He seeks further time as he wants to challenge the decision of
this Court.
34) There shall be stay till 15.7.2016. Both sides are not
to create third party interest in the suit properties during this
period.
[ T.V. NALAWADE, J. ]
section 90 of the Evidence Act in support of his submissions.
Section 90 of the Evidence Act runs as under :-
"90. Presumption as to documents thirty
years old.—Where any document, purporting or
proved to be thirty years old, is produced from
any custody which the Court in the particular case
considers proper, the Court may presume that the
signature and every other part of such document,
which purports to be in the handwriting of any
particular person, is in that person’s handwriting,
and, in the case of a document executed or
attested, that it was duly executed and attested
by the persons by whom it purports to be
executed and attested.
Explanation.—Documents are said to be in
proper custody if they are in the place in which,
and under the care of the person with whom, they
would naturally be; but no custody is improper if it
is proved to have had a legitimate origin, or if the
circumstances of the particular case are such as to
render such an origin probable.
This Explanation applies also to section 81"
The aforesaid provision shows that discretion is given to the
Court by using words 'may presume' to presume due execution
or due attesting of such document. If there are suspicious
circumstances, Court can refuse to raise presumption available
under section 90. In the present matter, the Trial Court refused
to raise such presumption by giving reasons that this document
was never used by Nandlal or even by defendant No. 1 for any
purpose prior to its production in the Court. The Courts below
have observed that there is convincing record to rebut the
presumption which could have been raised in view of section 90
in respect of Exh. 363. This Court has already quoted the
material showing that the family continued to remain joint in all
respects and this record is considered by the Courts below also.
When the finding of the Court is about proof of execution and
section 90 needs to be used for the proof of execution, it
becomes purely matter of discretion and the Appellate Court is
not expected to interfere lightly in finding given by the Trial
Court in such circumstances.
IN THE HIGH COURT AT BOMBAY
APPELLATE SIDE, BENCH AT AURANGABAD
SECOND APPEAL NO. 215 OF 2002
Madanlal Nandlal Zawar V Premsukh Ramdayal Zawar,
CORAM : T.V. NALAWADE, J.
DATED : 3rd May, 2016.
Citation: 2017(2) ALLMR 123
1) The appeal is filed against judgment and decree of
Special Civil Suit No. 130/1974, which was pending in the Court
of Civil Judge, Senior Division, Ahmednagar and also against the
judgment and decree of Regular Civil Appeal No. 35/2001, which
was pending in the District Court, Ahmednagar. The suit filed by
Premsukh for relief of partition and separate possession of his
share from Joint Hindu Family properties is decreed in his favour.
Both the sides are heard.
2) The facts, leading to the institution of the appeal,
can be stated in brief as follows :-
One Ramdayal was the father of plaintiff. Nandlal
was also son of Ramdayal and he was the father of defendant
No. 1 - Madanlal. Defendant Nos. 2 and 3 are sons of defendant
No. 1.
3) It is the case of plaintiff Premsukh that he and
defendant No. 1 were doing business under the name and style
as 'M/s. Ramdayal Nandlal' at Ahmednagar and this was the
business of Joint Hindu Family consisting of plaintiff and
Nandlal. It is contended that only for convenience, the
partnership was formed, but from prior to the formation of this
partnership they were doing the business though under
different name. The particulars of the properties which were
owned by Ramdayal and which was subsequently acquired by
these two brothers are given in the plaint. The properties include
two godowns situated at Panjarapol and Idgah Maidan, one plot
situated at market yard, Ahmednagar, Survey No. 128/B situated
at Shevgaon, Survey No. 128/A situated at Shevgaon, House
properties bearing House Nos. 1285, 1286 and 1287 situated at
Ahemednagar, other movable properties of the firm and gold
and cash amount. It was contended that plaintiff has 1/2 share in
all the properties. As the partnership was formed, relief was
claimed for dissolution of the firm and for its account. Except the
relief of share claimed in 'Sharad Fertilizer', which was said to be
branch of Ramdayal Nandlal Firm, the reliefs are given in respect
of all the other properties by the Trial Court and this decision is
confirmed by the First Appellate Court. The decision of dismissal
of suit in respect of the property 'Sharad Fertilizer' was not
challenged by Premsukh or his successors and so, that property
is not involved in the present proceeding.
4) The plaintiff had given the particulars of previous
business in the plaint by contending that in the past, the
business was done in the name and style as 'Kanhaiyalal
Ramchandra Shop', which was started during the lifetime of
Ramdayal. It is the case of plaintiff that 1/3rd portion of Ginning
Mill property from Shevgaon was purchased in the name of
Kanhaiyalal Ramchandra Shop and afterwards remaining 2/3rd
portion was also purchased. Cause of action was given that the
defendants were trying to grab the properties and they had
withdrawn the amounts of the firm and they had opened
separate accounts to deposit the amounts received for the firm.
It was contended that after the death of Nandlal, defendant No.
1 was made partner in aforesaid firm on 16.4.1957 and this
business was continued and the cause of action took place due
to aforesaid conduct of defendant Nos. 1 and 2 in the year 1974.
5) Defendant No.1 filed written statement and he
contested the suit. His son also contested the suit. Defendant
No. 1 admitted his relationship with plaintiff, but he denied that
the plaintiff has share in the suit properties. He contended that
the suit was not within limitation.
6) The defendant admitted that partnership was formed
by plaintiff and Nandlal under the name and style as 'Ramdayal
Nandlal Firm', but he denied that it was Joint Hindu Family
business and only for convenience, the partnership firm was
created. He admits that in this partnership, the plaintiff has 1/2
share. He also admits that the property of Ginning Factory from
Shevgaon was property of Ramchandra Nandlal Firm. However,
he has contended that 1/3rd portion of Survey No. 128 from
Shevgaon was self-acquired property of his father Nandlal and
so, plaintiff is not entitled to get share in that property. He
contended that 2/3rd part of Survey No. 128/B with building and
movables on it was the property of Ramdayal Nandlal Firm.
Defendant No. 1 contended that 1/3rd portion of entire Survey
No. 128 was purchased by Nandlal and remaining 2/3rd portion
was purchased for Ramdayal Nandlal Firm.
7) Defendant No. 1 contended that house property No.
1285 was purchased by him from his separate income and it has
nothing to do with the aforesaid partnership. However, he
admits that in the past, this house was owned by the Joint Family
of Ramdayal, Nandlal and Premsukh. He contended that the
property was sold for making payments of debts taken for
business by Joint Hindu Family and he purchased this property
from his separate income. Defendant No. 1, however, admitted
that house property 1286-87 is jointly owned by defendant No. 1
and plaintiff, but he contended that this property was purchased
after separation and it was purchased by Ramdayal Nandlal Firm.
He admitted that the plot from market yard belongs to the firm
and two godowns from Panjarapol are taken on rent for running
business of this firm. He denied the allegation that withdrawal of
the amounts was made from firm account to grab the properties
by him.
8) Defendant No. 1 came with specific case that plaintiff
and Nandlal had separated from each other from prior to year
1944. He contended that in the year 1944, some writing was
done by plaintiff in favour of Nandlal to show that there was
separation. He contended that due to partition and writing, the
joint status had come to an end. He made allegation against
plaintiff that plaintiff had withdrawn huge amount from the
account of the firm and when his explanation was sought, he
raised dispute and he filed the suit. He contended that the
business of the firm was stopped long back. Alternatively,
defendant No. 1 had contended that he had become owner due
to adverse possession of 1/3rd portion of Survey No. 128-B,
1/3rd portion of 128/A-2 situated at Shevgaon and entire house
property bearing House No. 1285.
9) On the basis of aforesaid pleadings, issues were
framed by the Trial Court. Issue Nos. 10, 11 and 13 show that
burden was cast on plaintiff to prove that (i) there was Joint
Hindu Family of plaintiff and defendants, (ii) Municipal House No.
1285 was purchased from the income of Joint Hindu Family and
(iii) House No. 1285 was thrown in the common hotch pot or
blended with ancestral property. One issue was framed to show
that the burden was on defendants to prove that the partition
had taken place between Nandlal and plaintiff prior to 1944.
10) Both sides examined witnesses and they placed
reliance on the documentary evidence. Much was argued in the
Courts below and before this Court also for defendants on the
basis of one document at Exh. 363 dated 25.10.1944. The Courts
below have not read this document in evidence and it is
observed that this document was marked as Exh. 363 only for
the purpose of identification and the execution of this document
and contents of this document were not duly proved. On the
basis of this document, the defendants want to prove that there
was a severance of status between plaintiff and Nandlal prior to
1944 and whatever property was purchased by them in their
names subsequent to that year was self-acquired property. By
making such contention, the defendants wanted to prove that
the other properties belong to Ramdayal Nandlal Firm and it was
strictly partnership business and it was not the business of Joint
Hindu Family.
11) On the basis of oral and documentary evidence, the
Courts below have held that the partition has not taken place. It
is further held that except the property, 'Sharad Fertilizers', all
the properties are Joint Hindu Family properties. So, the relief as
claimed in respect of these properties is given by the Courts
below. This Court admitted the appeal on 19.12.2002 by
formulating following substantial questions of law.
(i) Whether the first appellate Court is justified in
treating the document Exh. 363 as a document of
partition which requires registration.
(ii) Whether the first appellate Court misconstrued
the document Exh. 363 as a deed of relinquishment.
(iii) Whether the first appellate Court is justified in
propounding a theory of relinquishment of share in the
joint family properties on its own when, in fact, the
document Exh. 363 does not at all spell out
relinquishment of share in the joint family properties.
(iv) Whether the document Exh. 363 being more than
30 years old can be admitted in evidence and can be
read in evidence.
(v) Whether the first appellate court is justified in
discarding the document Exh. 363 even for collateral
purpose.
(vi) Whether the first appellate Court is justified in
rejecting the theory of previous partition by
misinterpreting the statements of the witnesses with
regard to joint residence and messing as admissions of
the witnesses with regard to joint status.
(vii) Whether the findings recorded by the courts
below suffer from perversity.
(viii) Whether the suit of partition is maintainable
without joining branch of Ramkisan.
12) In the written statement, it was contended by
defendant No. 1 that many years prior to 1944 partition had
taken place between plaintiff and Nandlal. The rival pleadings do
not show that the other sons of Ramdayal like Ramkishan were
living in joint family with Nandlal and Ramdayal for relevant
period. On the other hand, in the written statement, it is
specifically admitted that plaintiff and Nandlal, only two brothers
continued to live in Joint Hindu Family. Due to absence of specific
pleading that other sons of Ramdayal were living in joint family
at the relevant period and they are necessary parties to the suit,
it cannot be said that the suit is bad for non joinder of the said
issues of Ramdayal. The record is available of the property made
by Ramdayal prior to year 1927 which is not disputed and on the
basis of that record, it can be said that only Ramdayal, Nandlal
and Premsukh continued to live in Joint Hindu Family. Further, the
oral evidence on record shows that Ramkishan, one son of
Ramdayal died in the year 1924. In view of these circumstances,
the said point need not be considered in the present matter and
the substantial question of law formulated in this regard was not
necessary.
13) In addition to aforesaid substantial questions of law
formulated by this Court, the learned counsel for appellants
argued on one more point. He submitted that plaintiff -
Premsukh did not make available himself for cross examination
when his evidence of examination in chief was recorded and due
to this circumstance, adverse inference needs to be drawn
against the plaintiff in respect of document at Exh. 363 and also
the other defences raised by the defendants. The record shows
that Ramvilas, son of plaintiff, gave evidence by contending that
Premsukh had become aged and he was not fit to give evidence.
It appears that examination in chief was recorded and after that,
no progress was made in the case for about five years. It can be
said that the defence wanted to confront Exh. 363 to Premsukh
and so, defence wanted to cross examine Premsukh. Sufficient
discussion about the admissibility of Exh. 363 in evidence is
made at proper place. At this place, for the present purpose, this
Court observes that even the adverse inference which could
have been drawn in respect of Exh. 363 could not have made
change in the decision of the matter. There are many
circumstances which are not consistent with the contents of Exh.
363. However, the contents are also not proved. On this point,
some reported cases were cited by the learned counsel for
appellants like AIR 1968 SUPREME COURT 1413 [Gopal
Krishnaji Ketkar Vs. Mohamed Haji Latif and Ors.] and
(2010) 10 Supreme Court Cases 512 [Man Kaur (Dead) by
L.Rs. Vs. Hartar Singh Sangha]. These cases are in respect of
the provision of sections 103 and 114 (g) of the Evidence Act.
There is no dispute over the propositions made in the two
reported cases, but the facts and circumstances of each and
every case are always different.
14) On merits, it can be said that there is voluminous
oral and documentary evidence to prove that plaintiff -
Premsukh and Nandlal were living in joint family with Ramdayal
and even after the death of Ramdayal, they continued to live in
Joint Hindu Family. The oral evidence from the side of plaintiff is
given to show that there was a joint family and joint family was
doing the business firstly in the name of Kanhaiyalal
Ramchandra Shop and then in partnership. The evidence is
given as follows :-
(i) Ramvilas, son of Premsukh was aged about
45 years when he gave evidence in 1979. He has given
evidence on the basis of some personal knowledge and
on the basis of information which was collected from
his father Premsukh. His evidence that Ramdayal,
father of Premsukh and Nandlal died in the year 1944 is
not disputed. His evidence that Nandlal was elder
brother of plaintiff and Nandlal died in the year 1957 is
also not disputed. Nandlal never contended before
anybody that plaintiff had separated from him and the
Joint Hindu Family had come to an end.
(ii) Ramvilas has given evidence that
Ramdayal and his two sons were living together in Joint
Hindu Family in house No. 1285. He has given evidence
that this house was purchased by Ramdayal for use of
Joint Hindu Family prior to 1927 and in this house, the
Joint Hindu Family was doing business in the name and
style as Kanhaiyalal Ramchandra Shop. This evidence
given by Ramvilas is not disputed.
(iii) Ramvilas has given evidence that for
payment of loan taken for the business of Kanhaiyalal
Ramchandra Shop, a sham sale deed was executed in
respect of house No. 1285 and it was a conditional sale
transaction. He has given evidence that though the
document was executed, the possession remained with
the family. He has given evidence that the market
value was around Rs. 30,000/-, but it was shown to be
sold for Rs. 20,000/- and actual amount of only Rs.
15,000/- was paid by the purchaser. He has deposed
that the purchaser had agreed to pay Rs. 5,000/- to a
third party, to whom the vendor was indebted. Such
amount was not paid by the purchaser to said third
party. The fact that the possession was not given to the
purchaser is not disputed and that can be seen in the
title of the document and also other document like
lease deed executed in favour of Ramdayal, Premsukh,
Nandlal and others. Ramvilas has given evidence that
though the lease document was executed, rent was
never paid to purchaser as it was not real transaction.
Defendants have not disputed that the amount of Rs.
15,000/- was only paid by the purchaser and to the
third party, nothing was paid by the purchaser.
(v) Ramvilas has deposed that initially
business was done by Joint Hindu Family in the name of
Kanhaiyalal Ramchandra Shop and this business was
continued till the year 1945. He has deposed that after
the death of Ramdayal, the business was started by
Premsukh and Nandlal in the name of Firm Ramdayal
Nandlal and the business was started even before the
registration of partnership firm. It is not disputed that
this partnership started business in the house viz.
house No. 1285.
(vi) Ramvilas has given evidence that the
families of Nandlal and Premsukh were joint in
residence, food, worship and business. He has deposed
that they continued to live in the same house during
the lifetime of Nandlal and also for some more time till
the dispute started. He has given evidence that after
the death of Nandlal, in the year 1957 defendant No. 1,
son of Nandlal was made partner in Ramdayal Nandlal
Firm and they continued this business of Joint Hindu
Family. He has given evidence that they were living
together in house No. 1285 till 1972 and only from
1972, Premsukh started living separate in house No.
1286-87. There is admission of defendant No. 1 in the
evidence that family of Premsukh was living with his
family in house No. 1285 though he has tried to
contend that after separation, Premsukh had again
returned to Nandlal and then he started living there.
(vii) Ramvilas has given evidence that the
expenses of the Joint Hindu Family were born by
Ramdayal Nandlal Firm and the payments were made
for the expenditure from the account of this firm. There
is the record in support of this oral evidence which is
being discussed at proper place. Defendant No. 1 has
not specifically rebutted this part of evidence.
(viii) Ramvilas has given evidence that the joint
family was doing the business of Insurance also and
they had work of Insurance Companies like New Asiatic
Insurance Company, Nubi General Insurance Company,
Kaisar Hinga Insurance Company and Skandia
Insurance Company. He has deposed that he had
worked for Skandia Insurance Company and he had
insured the assets of Ginning Mill from Shevgaon by
purchasing policy of this Insurance Company. He has
given evidence that the persons, who were working for
the different Insurance Companies, were working for
Joint Hindu Family and the income was spent for the
Joint Hindu Family.
(ix) Ramvilas has given evidence that house
No. 1285 was repurchased by Joint Hindu Family in the
year 1924 though the transaction was made in the
name of defendant No. 1. He has given evidence that
the property was not purchased in the name of shop as
they were indebted. He has given evidence that the
market value of this house in the year 1944 was more
than Rs. 50,000/-. He has deposed that the
consideration of Rs. 18,500/- was shown, as the
amount of Rs. 15,000/- was given by the vendor to the
joint family in the past and the interest of Rs. 3500/-
was to be paid on this amount. He has given evidence
that to make payment of Rs. 15,000/-, there was the
amount with joint family like the amount of Rs. 3,000/-
given by firm Ramnath Giridharlal Rathi, Rs. 7,000/-
given by Trilokchand Hukumchand and Rs. 8,000/-
received from agriculturists and there was some
amount collected by selling joint family gold
ornaments.
(x) Ramvilas has given evidence that house tax
in respect of house Nos. 1285, 1286-87 was paid by
Ramdayal Nandlal Firm and the cheques were also
issued from the account opened by this firm in Sangli
Bank for making payment of the tax. Defendant No. 1
has admitted that on few occasions, the tax was paid
by the firm by giving cheques, but he has tried to
contend that from his share in the profit, the amount
was paid as per his direction.
(xi) Ramvilas has deposed that Ramdayal
Nandlal Firm had taken loan from a Bank of
Ahmednagar by giving security of house Nos. 1285,
1286-87 and also the property Balaji Ginning Factory.
This fact is not disputed.
(xii) Ramvilas has deposed that suits were filed
for recovery of dues and for enforcing the rights of
previous shop Kanhaiyalal Ramchandra by plaintiff and
Nandlal even after the year 1940. The record in this
regard is produced.
(xiii) Ramvilas has deposed that house No. 1286-
87 was purchased from the funds of shop Kanhaiyalal
Ramchandra though the possession was given to joint
family in the year 1948. He has given evidence that the
joint family made construction of two storied building
on house No. 1286-87 during the year 1950-1952. He
has given evidence that joint family had connected the
two buildings present on house No. 1286 (one building)
and 1286-1287 (one building) by connecting galleries
and by opening the entrances in the walls of the two
houses. He has given evidence that some portion of
house No. 1285 was given on rent to Sangli Bank, but
the rent was deposited in the account of Ramdayal
Nandlal Firm.
(xiv) Ramvilas has deposed that in the year
1928, 1/3rd portion of Ginning Factory from Shevgaon
was purchased by Kanhaiyalal Ramchandra Shop and
along with this share in the factory, share in the land
Survey No. 128 was purchased for the joint family and
one Bansilal remained as owner of remaining 2/3rd
portion. Evidence is given that though the name of
Nandlal was given for running the business of the said
Ginning Mill, it was the business of Joint Hindu Family.
He has given evidence that subsequently, the
remaining portion, 2/3rd share of Bansilal was also
purchased by Joint Hindu Family. He has given evidence
that some portion of land was given to Bhudan
Movement and some portion was converted to non
agricultural use and so, Survey No. 128 was divided in
to Pot-Hissas.
(xv) Ramvilas has given evidence that one
Kanhaiyalal Mundada (witness examined by plaintiff)
was Clerk of Ramdayal Nandlal Firm and he had written
some accounts of the firm. This fact is not disputed by
defendants.
(xvi) Ramvilas has given evidence that as
Nandlal was elder, he was supervising the business till
his death and after that Premsukh started acting as a
Karta of Joint Hindu Family.
(xvii) Ramvilas has deposed that in the year
1931, the aforesaid 2/3rd portion, share in the Ginning
Mill was mortgaged to raise the loan for the business of
Kanhaiyalal Ramchandra Shop. He has deposed that
this mortgage was redeemed in the year 1946 by
making payment of the loan from the business of
Ramdayal Nandlal Firm.
(xviii) Ramvilas has deposed that after the death
of Nandlal, information was given to banks for
operating account by all the members of Joint Hindu
Family and it was informed that they were coparceners
and Premsukh was their Karta.
15) In support of the case, plaintiff has examined one
witness Harikishan Dhut (PW 3). This witness has given evidence
that he was doing business with Kanhaiyalal Ramchandra Shop
and then he did business with Ramdayal Nandlal Firm. He has
deposed that he was selling the goods like agricultural produce
to the Adat Firm of plaintiff and defendants and he had seen that
Premsukh, Nandlal and defendant No. 1 - Madanlal were doing
the business for Joint Hindu Family. He has given evidence that
they were joint in food, residence, worship and business. Though
this witness has no record in respect of aforesaid transactions,
his evidence and the tenor of cross examination show that
defendants are not disputing that this person had contact with
this family. He was aged about 68 years on the date of
deposition, in the year 1981. Another witness Nemichand,
examined by plaintiff, is also businessman and dealing in grains
and cotton. He has deposed that he had seen that plaintiff and
defendants were doing the business of Joint Hindu Family from
1954 to 1969. Witness Babulal, examined by plaintiff, has given
similar evidence. He has given evidence that initially the
business was run in the house No. 1285 and then it was run in
the house No. 1286-87. He has given evidence that initially
name of business was Kanhaiyalal Ramchandra Shop and then
the name was changed to make it as Ramdayal Nandlal Firm.
These witnesses are believed by the Courts below.
16) Witness Lalchand, examined by plaintiff, is brother
in law of defendant No. 1. He has supported the case of plaintiff.
His evidence shows that he had married with daughter of
Nandlal in the year 1939. He has deposed that he had seen that
plaintiff and Nandlal were living in Joint Hindu Family and they
were doing the business of Joint Hindu Family together. He has
denied that his relation with defendant No. 1 is not good and so,
he is deposing falsely. This witness is also believed by the Courts
below.
17) The other important witness of plaintiff is
Kanhaiyalal, Clerk of Ramdayal Nandlal Firm. He has deposed
that he joined this business in the year 1955 as an employee
and he had seen that plaintiff and defendants were living in Joint
Hindu Family. He has given evidence that they were joint in food
and business. Some record of firm Ramdayal Nandlal is proved in
his evidence as Exh. 244. The evidence of defendant does not
show that he is disputing that this witness was working atleast
for some time for Firm Ramdayal Nandlal.
18) In rebuttal, defendant No. 1 - Madanlal has given
evidence as follows :-
(i) In Diwali of 1937, three sons of Ramdayal
viz. Laxminarayan, Tarachand and Premsukh separated
from Joint Hindu Family and they shifted to Jalna. There
is no such specific pleading in the written statement.
Nothing is said even in the evidence by Madanlal as to
whether and what property was given to them by
Ramdayal. However, his evidence shows that the
business of Kanhaiyalal Ramchandra Shop was still
continued at Ahmednagar. No record is produced in
respect of separation of these three brothers from the
joint family and when witnesses from other branch
could have been examined, they are not examined in
defence. Nandlal was alive in the year 1937 and no
explanation is given as to why writing was obtained
only from Premsukh and that too in the year 1944.
Thus, there is no consistency in the pleading and in the
evidence.
(ii) Madanlal has given evidence that he was
freedom fighter and he was kept in jail in freedom
struggle on many occasions. He has given evidence
that he worked as organizer with New Asiatic Insurance
Company and he was getting handsome salary from
the said job. No record of income or payments made
for any reason by this company is produced though
appointment letter is produced.
(iii) Madanlal has given evidence that he
purchased house No. 1285 for consideration of Rs.
18,500/-, but actual amount paid to the vendor was Rs.
10,000/-. He has given evidence that the remaining
amount of Rs. 8,500/- was to be paid to one
Vyankatraman Eknath, who had charge on the property.
His evidence shows that he has no record to show that
he had made the payments of remaining amount to
anybody. He has given evidence that he had done
some savings from the income of aforesaid job and
from that income, he had paid consideration to vendor.
It is already observed that there is no record
whatsoever with the defendant No. 1 in respect of his
separate income. No explanation is given as to why the
property was only sold for Rs. 10,000/- when in the
year 1927 the said property was sold for consideration
of Rs. 20,000/-. Thus, the case of the plaintiff appears
to be more probable in this regard. Further, there was
litigation between the vendor and the members of the
Joint Hindu Family which was filed for recovery of
arrears of rent and recovery of possession. This
circumstance speaks loud about the defence taken in
the present matter. There is no rent receipt with the
defendant No. 1. On one hand, he tried to say that he
could not pay the rent for many months and on the
other hand, he tried to prove that from his separate
income, he paid the consideration of Rs. 10,000/-.
(iv) Defendant No. 1 has deposed that he had
given some portion of house No. 1285 on rent basis to
Sangli Bank and to Sarvodaya Industries. Suggestion
was given that wife of defendant No. 1 was involved in
Sarvodaya Industries. No record of Sarvodaya
Industries is produced even like payment of rent.
Similarly, defendant No. 1 admitted that he had no
separate account in any bank and there was only one
account in the name of Ramdayal Nandlal Firm and it
was used by all of them. There is no record to show
that the rent from Sangli Bank was paid only to
defendant No. 1 and he had used that amount for
himself.
(v) Defendant No. 1 has deposed that he had
shown house No. 1285 as separate property when he
applied for security for Hundi to District Urban Central
Cooperative Bank, Ahmednagar. This contention has no
support of record. On the contrary, if he had no
separate business, there was no question of seeking
such cash credit for Hundi from the bank. The record
shows that the cash credit was obtained for the
business and it was the business of Ramdayal Nandlal
Firm.
19) Defendant No. 1 has admitted following facts :-
(i) Ramdayal, father of plaintiff and Nandlal
died in the year 1944.
(ii) Ramdayal was living in joint family with
Premsukh and Nandlal in house No. 1285 and there,
they were running the business of Kanhaiyalal
Ramchandra Shop.
(iii) It is Ramdayal, who had purchased the
house No. 1285 for the business of Joint Hindu Family
and the business, which they were doing at other
place, was shifted to this house after purchasing the
house.
(iv) For repayment of loan of Kanhaiyalal
Ramchandra Shop, house No. 1285 was sold to one
Ramnarayan by all the members of family, but the
possession was kept with Ramdayal and his sons
though separate lease document was prepared.
(v) In some portion of house No. 1285 the
business of Ramdayal Nandlal Firm was started. No rent
was taken from Ramdayal Nandlal Firm and no
separate charge in respect of anything like electricity
connection or telephonic connection were taken from
this firm. Telephone connection standing in the name of
defendant No. 1 was used by this firm.
(vi) There was the litigation in respect of house
property No. 1286-87 and in that litigation, even in the
year 1945, plaintiff - Premsukh was party. This
circumstance is not consistent with the case that
Premsukh had given up everything and he had
separated from the joint family.
(vii) Nandlal and Premsukh had made
construction over the house No. 1286-87, which was
two storied building and this building was connected to
building standing on house No. 1285 by connecting
galleries and by opening doors in the walls of two
buildings.
(viii) Premsukh and Nandlal had started business
in partnership in the year 1947 though the partnership
document was written in 1948-49. Thus, he admits that
even prior to the registration of the firm, they were
doing business in the said name. There is the record
produced in this regard which is pre-1947.
(ix) Defendant No. 1 has admitted in his
evidence that he had signed on the application given to
Central Bank after the death of Nandlal. Though he has
contended that his signatures were obtained on blank
forms and papers by Premsukh, signatures are made
not only by him, but others also and this form shows
that it was informed that they were living in Joint Hindu
Family and they were coparceners.
(x) Defendant No. 1 has admitted in his
evidence that Ramvilas, son of plaintiff was receiving
education in a school from Ahmednagar from the year
1940 onwards. First he tried to say that Ramvilas
stayed in the house of his grandmother and then in one
hostel of which defendant No. 1 was Secretary, but he
could not produce relevant record in that regard. There
is clear probability that son of Premsukh was living in
house No. 1285 itself when he was attending school
during all these years starting from 1940.
(xi) Defendant No. 1 has admitted that the
lease document in respect of house No. 1285 was
signed by all the members of joint family when the
property was sold. He also admits that the suit was
filed by the vendor for recovery of possession and
arrears of rent against all these members.
(xii) Defendant No. 1 has admitted in his
evidence that Ramdayal had filed a suit for Kanhaiyalal
Ramchandra Shop in the year 1943. He avoided to
admit that the litigation was prosecuted by Premsukh
and Nandlal after the death of Ramdayal, but the
copies of that record are produced.
(xiii) Defendant No. 1 has admitted that 1/3rd
share of Ginning Factory from Shevgaon, share in the
agricultural land was purchased in the name of Nandlal,
but it was the property of Kanhaiyalal Ramchandra
Shop.
(xiv) Defendant No. 1 has admitted that
Ramvilas was working for one Insurance Company and
even Sharad was working for one Insurance Company.
He avoided to admit that even Nandlal was working for
one Insurance Company. This evidence came only after
the evidence of Ramvilas that all the members were
doing such work for joint family.
(xv) Defendant No. 1 has admitted that from the
year 1957, they were joint in mess etc. with Premsukh,
though he has tried to deny that prior to that they were
members of Joint Hindu Family. He has given all evasive
answers even in respect of hand writing of Nandlal,
hand writing of employees of the Firm Ramdayal
Nandlal.
(xvi) Defendant No. 1 admitted that 1/3rd share
of Ginning Factory from Shevgaon was purchased for
Joint Hindu Family, but he tried to say that this property
fell to the share of Nandlal in the family partition which
took place in 1937. There is no such record and even
Exh. 363 does not make any mention about any
property.
(xvii) Defendant No. 1 has admitted that house
tax of houses were paid by Ramdayal Nandlal Firm.
19) Witness Rupchand, examined by defendant has
given evidence that defendant No. 1 was doing the Insurance
business. It is already observed that there is no record available
to show that any amount was paid by the Insurance Company to
defendant No. 1. Such record could have been produced and
atleast the account from bank of defendant No. 1 could have
been produced to show that the amounts received from the
Insurance Company by cheque were deposited in the bank
account. This witness has replied that he has no idea of income
which defendant No. 1 was making from that business. On the
other hand, this witness has given vital admission in his cross
examination by saying that the defendants and plaintiff were
joint in meals from the year 1939 to 1969 to his knowledge.
20) Witness Kanhaiyalal examined by defendant has
given evidence that he saw plaintiff first time in the year 1947
and at that time, plaintiff had returned from Marathwada. He has
tried to say that from the year 1947, plaintiff started living with
the family and Nandlal. This evidence is not sufficient to prove
that prior to that there was separation between plaintiff and
Nandlal. His evidence in cross examination shows that he had
never seen Ramvilas and he saw Ramvilas first time in the Court
in 1947. If he was regularly visiting house No. 1285, the house of
family, he could have easily noticed Ramvilas in this family. This
circumstance shows that he has no personal knowledge about
this family.
21) Defendant No. 2 is also examined in defence. He was
aged about 39 years in the year 1984. He has given evidence
that he had seen that since his childhood plaintiff and defendant
No.1 were living separate. This evidence is not consistent with
the other evidence already discussed. Even defendant No. 1 has
admitted that plaintiff was living with him since the year 1947 in
house No. 1285.
22) In support of the case of plaintiff, there are many
documents which falsify the defence taken by defendant No. 1.
At Exh. 214, there is document of purchase of 1/3rd share in
Ginning Mill property of Shevgaon in the year 1929 and it shows
that it was purchased for Kanhaiyalal Ramchandra Shop. At
Exhs. 216, 218 and 219, there is the record of correspondence
made with Central Bank and there are also forms. They show
that after the death of Nandlal, it was informed to bank by all the
adult coparceners of this family like Premsukh, Madanlal,
Ramvilas that Premsukh was acting as a Karta of the
coparcenery. These forms were signed on 15.7.1957. They had
given information that they were doing the business of
Ramdayal Nandlal Firm and it was informed that it was business
of coparcenery.
23) At Exh. 268, there is a copy of plaint of suit filed on
2.11.1930 against Premsukh, Ramdayal and Nandlal for recovery
of possession of house No. 1285 and for recovery of arrears of
rent. Premsukh, plaintiff had appeared in the suit and that can
be seen from the decree. At Exh. 370 and 371, there is the
record of two suits and appeals filed against the decision of two
suits. In Suit No. 553/1943, Kanhaiyalal Ramchandra Shop was
the plaintiff and for it, the suit was filed by Nandlal and
Premsukh. It was filed in respect of property No. 1286-87. The
suit was decreed in favour of this shop and Appeal bearing
R.C.A.No. 136/1946 was dismissed on 8.11.1946. R.C.S. No.
333/1943 was filed against Kanhaiyalal Ramchandra Shop and
the shop was represented by Nandlal and Premsukh. This was
again in respect of share in the house No. 1286-87. Thus,
Premsukh, plaintiff was still there and these circumstances are
against the contents of document at Exh. 363.
24) At Exhs. 169 to 179, there is record of ration cards.
This record shows that after the death of Nandlal, the name of
Premsukh, plaintiff was informed to the authority that he was
Karta of Joint Hindu Family and each adult member of the Joint
Hindu Family had signed the form in that regard. At Exhs. 181 to
187, there are bills of electricity meter bearing customer No.20-
2-1957. The bills were in respect of house No. 1286-87 and
customer's name was shown as 'Nandlal Ramdayal'. Thus, the
elder member of their family viz. Nandlal was shown as
customer and after Nandlal, name of Premsukh was given by the
family as Karta.
25) After considering the aforesaid oral and documentary
evidence, it can be said that not much remains in the case of
defendant No. 1 that document at Exh. 363 is sufficient to prove
that there was severance of status. This document and the
contentions can be considered from other angles also. The
document, Exh. 363, is bearing the date and it is admitted that it
was produced in the Court by defendant No. 1 after the expiry of
30 years from the date of the document. Only defendant No. 1
has given evidence for proving of execution of this document
and it is as follows :-
"I see Exh. 84/A.13. It is the hand writing of
plaintiff and made signature which I know."
Aforesaid document was purportedly made in favour of Nandlal
and not in favour of defendant No. 1. Thus, there was no
question of getting personal knowledge by defendant No. 1 in
respect of this document unless there was something concrete in
that regard. In view of the aforesaid nature of evidence, the Trial
court did not give exhibit to the document even after giving the
aforesaid evidence by defendant No. 1. This approach of the
Court shows that Court was not accepting that due execution of
document was proved. In view of these circumstances, there was
no question of admitting this document or reading the contents
of the document in evidence. In the evidence, defendant No. 1
has tried to say that the attesting witnesses signed on this
document in his presence. No evidence is given that plaintiff
had signed on this document in his presence and so, there was
no question of proving of execution of the document on the basis
of aforesaid evidence. No attempt was made to call the attesting
witnesses to prove the execution.
26) The learned counsel for appellants tried to use
section 90 of the Evidence Act in support of his submissions.
Section 90 of the Evidence Act runs as under :-
"90. Presumption as to documents thirty
years old.—Where any document, purporting or
proved to be thirty years old, is produced from
any custody which the Court in the particular case
considers proper, the Court may presume that the
signature and every other part of such document,
which purports to be in the handwriting of any
particular person, is in that person’s handwriting,
and, in the case of a document executed or
attested, that it was duly executed and attested
by the persons by whom it purports to be
executed and attested.
Explanation.—Documents are said to be in
proper custody if they are in the place in which,
and under the care of the person with whom, they
would naturally be; but no custody is improper if it
is proved to have had a legitimate origin, or if the
circumstances of the particular case are such as to
render such an origin probable.
This Explanation applies also to section 81"
The aforesaid provision shows that discretion is given to the
Court by using words 'may presume' to presume due execution
or due attesting of such document. If there are suspicious
circumstances, Court can refuse to raise presumption available
under section 90. In the present matter, the Trial Court refused
to raise such presumption by giving reasons that this document
was never used by Nandlal or even by defendant No. 1 for any
purpose prior to its production in the Court. The Courts below
have observed that there is convincing record to rebut the
presumption which could have been raised in view of section 90
in respect of Exh. 363. This Court has already quoted the
material showing that the family continued to remain joint in all
respects and this record is considered by the Courts below also.
When the finding of the Court is about proof of execution and
section 90 needs to be used for the proof of execution, it
becomes purely matter of discretion and the Appellate Court is
not expected to interfere lightly in finding given by the Trial
Court in such circumstances. The scope of this Court in Second
Appeal is further reduced. For this reason, this Court is not
expected to interfere in the findings given by the Courts below in
respect of proof of execution and admissibility of Exh. 363 in
evidence.
27) The proof of execution cannot lead to inference that
the contents are correct. Whether such document could have
been considered for proof of execution is other question. The
proof of execution of Exh. 363 could not have been allowed in
the Court for other reasons also. The contents of this document
purport relinquishment of right in coparcenery property, which is
immovable property. Though there was admittedly some charge
on the property like house No. 1285 or even on the share in the
property from Shevgaon, there was the other property like share
in house No. 1286-87 purchased under the registered document.
There was big agricultural land at Shevgaon. As per the
provisions of Transfer of Property Act and the provisions of Indian
Registration Act, such document ought to have been registered.
It was necessary to pay the stamp duty also, if due to this
document plaintiff was to relinquish his rights in immovable
property. For this reason even for collateral purpose the
document could not have been used and proof of execution
could not have been allowed. The provisions of not only Indian
Registration Act, but also the other Act like Stamp Act would
have proved to be obstacle.
28) The learned counsel for respondent placed reliance
on the reported cases to challenge the admissibility of Exh. 363
in evidence. They are as follows :-
(i) 2015 ALL SCR 3388 [Yellapu Uma
Mahesgwari & Ors. Vs. Budda
Jagadheeswararao & Ors.],
(ii) 2015 (5) ALL MR 656 [Jagannath s/o.
Balaji Zagare & Ors. Vs. Kisan Balaji Zagare
(D) thr. L.Rs. & Ors.].
The Apex Court has laid down that document showing
relinquishment of right in respect of immovable property is
compulsory registrable and if not registered, it cannot be relied
upon to prove the factum of partition. It is observed that it
cannot be relied upon even for collateral purpose unless the
same is impounded. The provisions of sections 17 (i) (b) and
section 49 of Indian Registration Act, 1908 and the relevant
provisions of Stamp Act are considered and discussed by the
Apex Court for making such observations. Similar observations
are made by the Bombay High Court.
29) The learned counsel for appellants, on the other
hand, placed reliance on the case reported as AIR 1968
SUPREME COURT 1299 [Siromani Vs. Hemkumar and
Ors.]. The Apex Court referred the provision of section 17 (1) of
Registration Act and held that even if the document of partition
cannot be used for proof of partition if it is not registered it can
be used for proving that there was intention of coparcenery to
become divided in status. There is no dispute over this
proposition. The facts of the present matter are altogether
different. One more case reported as AIR 1968 SUPREME
COURT 1018 [Puttangamma and ors. Vs. Ranganna and
ors.] was cited on this point. This case is also of no help to the
appellants. The facts of the present matter are totally different.
30) The learned counsel for appellants submitted that if
there was severance of status, the burden was on plaintiff to
prove that there was reunion. On this point, he placed reliance
on the case of Puttangamma cited supra and AIR 1952
SUPREME COURT 72 [Bhagwati Prasad Sah and Ors. Vs.
Dulhin Rameshwari Kuer and Anr.]. There is no dispute over
the proposition made by the Apex Court in these cases. The
facts of the present matter are totally different and there is
sufficient material to infer that the joint family continued to
remain joint and only in the year 1972 plaintiff started living
separate from the family of defendants. The learned counsel for
appellants placed reliance on some more cases which are as
under :-
(i) AIR 1980 SUPREME COURT 1173 (1)
[Kalyani (dead) by L.Rs. Vs. narayanan and
Ors.],
(ii) AIR 1960 BOMBAY 159 (V 47 C 48)
[Gulabrao Fakirrao Vs. Baburao Fakirrao and
Anr.],
(iii) AIR 2003 SUPREME COURT 3800 (1)
[D.S. Lakshmaiah and Anr. Vs. L.
Balsubramanyam and Anr.],
(iv) 2013 (7) ALL MR 419 [Ku. Suman Vishnu
Pathak & Ors. Vs. Smt. Usha w/o.
Prabhakarrao Koparkar & Ors.],
(v) AIR 1962 SUPREME COURT 287 (1)
[Bhagwan Dayal (D) L.Rs. and Anr. Vs. Mst.
Reoti Devi (D) L.Rs.],
(vi) AIR 1963 SUPREME COURT 1601
[Lakkireddi Chinna Venkata Reddi and Ors.
Vs. Lakkireddi Lakshmama],
(vii) AIR 2014 BOMBAY 124 [Maharu s/o.
Gaindhal Bhoi Vs. Hemraj s/o. Waman Patil
(D) Thr. L.Rs.],
(viii) AIR 1976 SUPREME COURT 807 [Kale
and Ors. Vs. Deputy Consolidation and Ors.],
(ix) AIR 2003 MADHYA PRADESH 128
[Purushottam and Ors. Vs. Bhagwat Sharan
and ors.],
(x) AIR 1975 ORISSA 214 [Raghunath
Panda Vs. Radhakrishna Panda and Ors.],
(xi) AIR 1964 ORISSA 75 (Vol. 51, C. 32)
[Jagat Krishna Das and Anr. Vs. Ajit Kumar
Das and Ors.].
The facts of these reported cases were also different.
31) The learned counsel for appellants placed reliance on
the case reported as AIR 2001 SC 1273 [Kulwant Kaur Vs.
Gurdial Singh Mann]. The learned counsel submitted that in
view of the scope of provision of section 100 of Civil Procedure
Code, this Court has the power to consider other points raised
which are purely legal and more substantial questions of law can
be considered than the formulated for admission of the appeal.
There is no dispute over the proposition made in the aforesaid
case. This Court has considered all the arguments advanced.
Though the aforesaid substantial questions of law were
formulated, this Court holds that they are not really involved in
the matter and they are answered against the appellants,
defendants.
32) In the result, the appeal is dismissed. Civil
Applications are disposed of.
33) The learned counsel for appellants submits that
there has been stay to the execution of decree from beginning.
He seeks further time as he wants to challenge the decision of
this Court.
34) There shall be stay till 15.7.2016. Both sides are not
to create third party interest in the suit properties during this
period.
[ T.V. NALAWADE, J. ]
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