1. This was a plaintiffs' appeal arising out of a suit for recovery of possession on the allegation that the plaintiff No. 1 is the reversionary heir of Kallu Misra, deceased, the last male owner of the property. Plaintiffs Nos. 2 and 3 are transferees from plaintiff No. 1. In the plaint it was alleged that on the death of Kallu Misra, his widow, Musammat Mohini, entered into possession as a Hindu widow for her life, that she unlawfully made various transfers and ultimately died on the 15th of December, 1907. The suit as brought was just within limitation of this date as the Courts were closed on the 15th and 16th of December, 1919. The defendant No. 1 claimed to be the adopted son of Kallu Misra. The other defendants were transferees either from Musammat Mohini or from the defendant No. 1, who are now in possession of the bulk of the property in dispute.
2. On behalf of the defendants there were several pleas taken. There was a denial of the pedigree set up by the plaintiffs. There was a plea that the claim was barred by time, and there were pleas that Ram Prasad, defendant No. 1, was the adopted son of deceased, that the claim was barred by the principle of res judicata and that it was also barred by estoppel.
3. In the pleadings or at the time when the issues were settled there was no suggestion that the deceased, Kallu Misra, had left any Will. On the other hand, the plaintiffs' vakil admitted that Shib Deo Misra, plaintiff No. 1, had other brothers alive and also stated that he would not amend his plaint. As matters stood on the pleadings, it was clear that in any event Shib Deo Misra, not being the sole surviving reversioner at the time of the death of Mt. Mohini, the entire claim could not be decreed. At a late stage in the case Ram Prasad, defendant No. 1, filed a number of papers among which there was a document purporting to be a will of Kallu Misra and bearing the date, 4th of October, 1887. Under it with the exception of a temple and rights connected therewith which were to go to Ram Prasad himself, the rest of the property was, on the death of Mt. Mohini, to go to Shib Deo Misra to the exclusion of his other brothers.
4. The learned Subordinate Judge came to the conclusion that the plaintiffs' pedigree was established, that Ram Prasad's adoption had not been established, and that the claim was not barred by res judicata. He, however, found that the plaintiffs had Tailed to prove that Mt. Mohini died within 12 years of the suit, that the will produced by Ram Prasad was a forgery and that the claim was barred by the principle of estoppel.
5. The plaintiffs appealed and challenged the findings arrived at against them.
6. [After stating facts as set out above judgment continued.] The learned advocate for the respondents has not only supported the decree on the findings in his favour but has also supported it on the other pleas raised. Thus all the important issues of fact and law have been reargued before us and we propose to dispose 1 of all of them.
7. The first question is one of limitation. This plea was based on three grounds, (1) that the alleged adoption of Ram Prasada not having been set aside within six years, the claim was barred by time, (2) that the plaint when originally filed was not verified at all and this defect was not cured till long after the expiry of the period of limitation, and (3) that Mt. Mohini had not died on the 15th December, 1907 but died either on the 9th or 10th of December of that year and the claim was beyond time.
8. We agree with the learned Subordinate Judge that the six years rule has no application to this case. The reversioners were not bound to bring a suit for a declaration that the alleged adoption had in fact not taken place. They were entitled to wait till the lady died and then bring a suit for recovery of possession. The present claim is not one for mere declaration but is for possession. If it is brought within 12 years of the death of Mt. Mohini, it cannot be hold to be barred by the six years rule.
9. We, however, do not agree with the view taken by the learned Subordinate Judge that the verification having been made after the expiry of 12 years, the suit itself was barred by time. It appears that the plaint was actually presented in Court on the 17th December, 1919, but though it bore the signatures of all the plaintiffs, it did not contain any verification by them. This defect was brought to the notice of the munsarim by one of the defendants and subsequently to that of the Court. Under an order of the Court the verification was ultimately made, but it was some months afterwards.
10. We are, however, of opinion that the plaint was not a void plaint merely because it did not contain the verification clause as required by the Code of Civil Procedure. In our opinion the omission to verify it was a mere irregularity which could be cured even at a later stage. Merely on the ground of such a defect, the plaint cannot be treated as altogether invalid. The subsequent verification was not an amendment of it.
11. This has been the view consistently followed in this Court, and we may refer to the cases of Rajit Ram v. Katesar Nath (1896) 18 All. 396 and Basdeo v. John Smidt (1899) 22 All. 55, which follow the case of Mohini Mbhun Das v. Bengsi Buddan Saha (1890) 17 Cal. 580 (P.C.).
12. The main point to consider in connection with the plea of limitation is the exact date on which Mt. Mohini died. There can be no doubt that the burden lies on the plaintiffs to prove conclusively that her death took place within 12 years of the suit. The judgment after discussing oral evidence dealt with the contention of the respondent that a certain Daily Death Register was not admissible in evidence, as follows : - He has relied on a number of cases decided by the Oudh Court in support of his contention. In all these reported cases, however, the book in question was the Chaukidar's pocket book and not the Death Register kept at the police station.
13. The cases of Sampat v. Gauri Shanker (1911) 14 O.C. 68, Habibullah v. King-Emperor (1912) 15 O.C. 351, Bisheshar Dayal v. Hira Lal (1916) 19 O.C. 221, and Mohammad Jafar v. Emperor (1919) 22 O.C. 250, are thus distinguishable. On the other hand, it has been laid down in the case of Tamijuddin v. Tazu (1918) 46 Cal. 152, and in the case of Zait-un-nissa v. Hasrat-un-nissa (1919) 22 O.C. 124, that the Death Register kept at the police station is an official book and the entries in it are legally admissible. A somewhat similar view has. been expressed in the case of Ramalinga Reddi v. Katayya (1917) 41 Mad. 26.
14. Under the Police Act (No. V of 1861), Section 12, the Inspector-General of Police is authorised to frame orders and rules relative to, amongst others, the collecting and communication by them of intelligence and information, etc. Under the Police Regulations, Chapter 24, paragraph 274, Sub-clause 4, the Head Muharrir of every police station officer has to keep registers of births and deaths and make entries therein as reported by the village chaukidars. There are prescribed forms, Nos. 1 and 5, which have to be used for that matter. The register in question contains printed pages of the form No. 5 and it was manifestly kept at the police station and later on forwarded to head-quarters. The mere fact that the entries in it are made in chronological order would not show that this document is not an official book.
15. We are clearly of opinion that this register was an official book, register or record made by a public servant in the discharge of his official duty within the meaning of Section 35 of the Indian Evidence Act. An entry made therein would, therefore, be itself a relevant fact.
16. Mr. Dar, who argued the case on behalf of another set of respondents, has strongly contended that even if the Register is an official book within the meaning of Section 35 and even if an entry in it is a relevant fact, the register must either be proved by some evidence or be shown to come within the scope of Section 81 of the Indian Evidence Act.
17. It cannot be denied that there is no oral evidence on the record that this was the identical register which was kept at the police station, Etmadpur, in which circle village Brijnath, where Mt. Mohini died, is situated. All that is known is that this was brought in Court from the Record Room at head-quarters by a clerk named Abdul Ghani.
18. Mr. Dar has, therefore, contended that the Court can presume its genuineness under Section 81 of the Evidence Act only when it is shown that this is a document directed by any law, to be kept by any person and if such document is kept substantially in the form required by law and is produced from proper custody. His argument is that the Police Regulation No. 274, Sub-clause 5 enjoins the keeping of a register with separate pages assigned for each village and that, therefore, this register is not kept substantially in the form required by law, assuming that the law requires it to be kept. He has argued that it was, therefore, incumbent on the plaintiffs to lead evidence to prove the identity of this register and to show that it is this very register which has come from the Record Boom and which was the register kept at the police station.
19. The answer to this objection is that in addition to the original register, the plaintiffs have produced a certified copy of its entry, and a certificate is endorsed on it purporting to have been given by an authorised officer. The correctness of the copy must, therefore, be presumed under Section 79 of the Evidence Act. This copy removes all doubt as to any possible mistake in the identity.
20. We have already said that the entry in the Daily Death Register is corroborated by the statement contained in the plaint of 1908. These two pieces of evidence, even excluding the other register, are very strong evidence of the exact date of the death of Mt. Mohini. As against this we have no rebutting evidence whatever except the solitary statement of Jhamman Lal, the brother of Mt. Mohini. We have already said that Jhamman Lal, when sued in 1908 by Ram Prasad, did not specifically deny the correctness of the date. In the witness box he did not appear to be a man possessing a retentive memory.
21. There is of course always a possibility that the date given by Ram Prasad in his plaint might not have been the exact date or that the date as reported by the chaukidars was not correct date. But in the absence of any other reliable evidence, there is no reasonable ground for doubting that the statements contained in these two independent documents, which corroborate each other, were inaccurate.
22. We accordingly hold that the plaintiffs have established that Mt. Mohini died on the 18th of December 1907 and that, therefore, the present claim was in no way barred by time, the next point which we propose to consider is the question of Ram Prasad's adoption.
23. The plea of resjudicata is raised in connection with this issue and is passed on the following circumstances. Kallu Misra had admittedly brought up Ram Prasad in his house from his childhood. It is the defendant's case that he even performed Ram Prasad's Janeo ceremony and marriage ceremony, but the evidence as to this consists of the solitary statement of f Jhamman Lal and is, therefore, not necessarily strong. There can be no doubt, however, that Ram Prasad had been living in Kallu Misra's house when he died and continued to live for some time longer. On the 20th of August 1897, he executed a bond in which he asserted that he was the adopted son of the deceased Kallu Misra. Mt. Mohini promptly instituted a suit on the 26th of November, 1897, for a declaration that Ram Prasad was not the adopted son of Kallu Misra and that the bond referred to above was altogether invalid and ineffectual. Ram Prasad filed a written statement on the 18th of December, 1897, in which he put forward his claim of a valid adoption.
24. The parties, however, entered into an agreement to refer all their disputes to arbitration and the Court referred rae matter to the arbitration of three arbitrators. Two of these three arbitrators are proved in this case to have been residents of the same mohalla, Kachhri Ghat, where Kallu Misra used to live and one of these two, namely Ganga Prasad, used to live in a house which was in front of Kallu Misra's house, the two houses being separated only by a road. Ganga Prasad's son, Mahabir Prasad, proves this. On the 24th of February, 1898 the arbitrators delivered their award in which they stated that they were empowered under the agreement to decide the dispute between the parties, without having regard for the issues and without taking any evidence. They expressed the opinion 'Ram Prasad is the son and the proper heir of Kallu Misra, deceased.'
25. Then they proceeded to direct that out of the entire estate left by him one house was to remain in the possession of Mt. Mohini for life and to go to Ram Prasad after her death and that two houses were to vest absolutely in her with full power of alienation. Ram Prasad filed objections to this award on the 14th March, 1898. The Court, however, disallowed these objections on the 25th of March, 1898 and ordered that a decree be prepared in accordance with the award. A decree was accordingly prepared which bears the date 25th of March, 1898.
26. The learned Subordinate Judge has held this decree not to be binding on the ground that, in his opinion, it was not passed after a fair trial, but merely embodied a private settlement of the dispute, the arbitrators having been given power to decide the case without taking any evidence and without having regard to the issues framed.
27. There is not much evidence on the record to indicate any peculiar circumstances under which the proceedings had been conducted. All that we know is that there was one sitting of the arbitrators. At least two of the arbitrators wore residents of the same mohalla and there is nothing strange if they had been given power to decide the case on their own personal knowledge without taking any further evidence. The suit was a contested one and the award was made after the case had been referred to the arbitrators under an order of the Court. Objections were also filed to the award and they were disallowed.
28. We are, therefore, entitled to presume, in the absence of any satisfactory evidence to the contrary, that the Court at that time was satisfied that it was a bona fide litigation and not a collusive or fraudulent one. We find it impossible to fix upon any particular circumstance which would justify us in holding that there was not a fair trial at all, Decrees of Courts are not to be lightly treated on a more suspicion and on a mere supposition based on no substantial evidence, that they are collusive.
29. We are, therefore, unable to agree with the view which the learned Subordinate Judge has taken of the arbitration proceedings.
30. Mt. Mohini represented the whole estate for the time being. The reversioners had then no rights in in praesenti. Her claim was to avoid the adoption set up by Ram Prasad. The suit was, therefore, brought not only in her own interest but in the interests of the whole body of reversioners who would be entitled to the property after her death. If the adoption were to be upheld, the line of the reversioners would be altogether cut off, The suit brought by Mt. Mohini must, therefore, be treated as a representative suit and all persons having a common interest must be deemed to have been represented through her under Section 11, Explanation 6 of the Code of Civil Procedure. The defendants Nos. 7 and 8 are claiming through Ram Prasad, whereas the plaintiff No. 1 must be deemed to have been then represented by Mt. Mohini. The award and decree, therefore, operate as res judicata between them.
31. Defendants Nos. 2 and 3 and defendant No. 9, as will be shown, later claim title under Mt. Mohini and, therefore, the plea of res judicata cannot be successfully urged on their behalf. The question of adoption was next taken up and it was held that the adoption was proved. Then referring to the objection to the validity of the adoption on the ground of the adopted son and adoptive father belonging to different sub-castes the Judgment proceeded : - Nor can the adoption of a boy belonging to the same sub-caste be held to be invalid. In the case of Narain Singh v. Mt. Shiam Kali Kunwar (1914) 17 O.C. 186 the Oudh Bench, of which one of us was a member, held that for the purposes of inheritance each primary caste must adopt from within its own limits and that the adoption would not be invalid so long as the adoptive father and the adopted son belonged to a sub-caste of the same primary caste. We, therefore, think that there is no force in this objection.
32. We have already indicated that so far as the pleadings went, Shib Deo Misra and his transferees would in no case be entitled to the entire property left by Kallu Misra, as it is admitted that at the time of the death of Mt. Mohini when succession opened to the reversioners, there were more than one person entitled to it. In cases of such collateral succession the property inherited is the separate property of all the reversioners and does not go to the head of the family only. In order to get over his difficulty, the appellants relied on a Will which was produced by Ram Prasad at a very late stage in the case. The judgment held the Will to be a forgery and then referring to the question of estoppel, continued : - We are satisfied that Har Dayal and Baj Narain were bona fide transferees for value after due enquiries. The claim as against them is barred by Section 41 of the Transfer of Property Act.
33. Defendants Nos. 7 and 8 derive title from Ram Prasad. After the death of Mt. Mohini, Ram Prasad remained in possession of the house which is now in their possession. He mortgaged it on the 18th of May, 1910, to Behari Lal and then on the 3rd of October, 1911, contracted to sell the equity of redemption to Badri Prasad. On the 16th April, 1912, be sold the equity of redemption to Badri Prasad, the mortgagee. Defendants Nos. 7 and 8 are the sons of Badri Prasad. We are satisfied that Badri Prasad was a bona fide transferee for value and he had made due enquiries and acted in good faith on the strength of the award of the arbitrators which was recited in the previous title-deed. The reversioners allowed Ram Prasad to remain in possession as ostensible owner and the transferees are protected.
34. Defendants Nos. 4, 5, 6 and 10 are also transferees but they have compromised their disputes and we are not now concerned with their rights in this appeal.
35. The case of defendant No. 9 Khubi, stands on a slightly different footing. He took a mortgage from Mt. Mohini herself on the 17th of July 1898, and then took a sale-deed of the equity of redemption from her on the 11th of March, 1899. He, therefore, derived title from Mt. Mohini herself and the deeds in his favour were executed in her life-time. We are of opinion that a transferee from a Hindu widow who takes the property from her before the reversioner's right has accrued cannot successfully plead the bar of Section 41 of the Transfer of Property Act.
36. Assuming that he was a bona fide transferee for value who has taken the property after due enquiry and believing on the validity of the award, it cannot be held that he has taken it from an ostensible owner who was in possession with the consent express or implied of the reversioners. A Hindu widow enters into possession of her husband's estate by right and not with any express or implied consent of the reversioners. While she is alive the reversioners have no voice in the matter and have no right to intervene. She can continue in possession in spite of their protest. A transferee from such a person, who is in possession by her own right and as to whose possession no consent of the roversioner can be implied by law, cannot claim the protection of Section 41 of the Transfer of Property Act.
37. The only point that remains now is the question of costs. The suit is failing substantially on a ground common to all the defendants, namely, the factum of the adoption of Ram Prasad. We think, therefore, that it is a case in which one sat of costs only should be allowed to the defendants against the plaintiffs. The learned Subordinate Judge has not allowed separate costs though the decree that has been prepared gives the defendants separate costs on account of pleaders' fees.
38. We accordingly dismiss this appeal with this modification that the plaintiffs' suit shall stand dismissed as against all the defendants. The plaintiffs will bear their own costs and pay the costs of all the defendants other than Ram Prasad in both Courts. The defendant Ram Prasad shall bear his own costs throughout. The total legal fee allowed will be the maximum taxable fee both in this Court and in the Court below. Pees in this Court will include fees on the higher scale.