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Ramchandra Hanmant Deshpande and ors. Vs. Kashinath Laxman Deshpande and ors. - Court Judgment

LegalCrystal Citation
CourtMumbai
Decided On
Judge
Reported in87Ind.Cas.804
AppellantRamchandra Hanmant Deshpande and ors.
RespondentKashinath Laxman Deshpande and ors.
Excerpt:
evidence act (i of 1872), section 92 - deed executed by manager of joint hindu family--members of family, whether parties to deed. - indian evidence act, 1872 section 24: [v.s. sirpurkar & deepak verma,jj] dying declaration - multiple murders by accused - dying declaration not implicating one accused - evidence of eye witnesses however completely fixing his criminal liability ocular evidence found credible held, absence of his name in dying declaration would be of no help to accused. - otherwise most disastrous results would follow if the members of a joint family were enabled to dispute the transaction effected by the manager of the family, not on the ground that the manager had no power to effect the transaction, but on the ground that the transaction was really a, different one..........trial on the other issues which had been framed.2. now in 1902 the plaintiff and his father were joint. the father had sold the property as manager of the joint family. it is not suggested in this case that the ' father was exceeding the powers he had as such manager. the real question is whether the son can dispute the transaction of his father by seeking to call evidence to show that the document, although on the face of it a sale, was in reality a mortgage. it was contended in both the lower courts that the real question then was whether the plaintiff was a representative-in- interest of his father. if he was not, he could lead evidence and prove ex. 27 to be a mortgage under section 99 of the indian evidence act. the proper question to be considered was whether the plaintiff was a.....
Judgment:

1. The plaintiff filed this action in 1920 asking for a declaration' that the sale-deed, Ex. 27, was of the nature of a mortgage, and prayed that the amount due under it to the mortgagees might be ascertained. The document was passed on May 27, 1902, and even if the previous decision of this Court that agriculturist's in this District were not entitled to take advantage of Section 10A of the Dekkan Agriculturists' Relief Act had been set aside since the case was heard in the Trial Court as Sections 2 and 20 of the Act were only extended to this District from January 21, 1903, the plaintiff could not take advantage of that extension. After the suit was dismissed in the Trial Court, the District Judge in appeal made an order that 'the suit should be remanded to the lower Court under Order XLI, Rule 23, C. P.C., for trial on the other issues which had been framed.

2. Now in 1902 the plaintiff and his father were joint. The father had sold the property as manager of the joint family. It is not suggested in this case that the ' father was exceeding the powers he had as such manager. The real question is whether the son can dispute the transaction of his father by seeking to call evidence to show that the document, although on the face of it a sale, was in reality a mortgage. It was contended in both the lower Courts that the real question then was whether the plaintiff was a representative-in- interest of his father. If he was not, he could lead evidence and prove Ex. 27 to be a mortgage under Section 99 of the Indian Evidence Act. The proper question to be considered was whether the plaintiff was a party to the document of 1902 so that he would be excluded from calling the evidence which he sought to adduce under Section 92 of the Indian Evidence Act. It is clear that if a father as one of the joint owners sells, as representing all the other members joint with him, those other members must be treated as parties to the document. Otherwise most disastrous results would follow if the members of a joint family were enabled to dispute the transaction effected by the manager of the family, not on the ground that the manager had no power to effect the transaction, but on the ground that the transaction was really a, different one from what it appeared to be on the face of the document. That is the real point in dispute, and we are of opinion that as the plaintiff' was joint with his father at the time of the transaction of 1902, clearly he must be considered as a party thereto, and he cannot, therefore, seek to show by calling oral evidence that the sale-deed was a mortgage. The appeal; therefore, must be allowed and the decree of the Trial Court restored with costs throughout.


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