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Mt. Misri Vs. Mt. Rajmati and anr. - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtAllahabad
Decided On
Reported inAIR1926All103
AppellantMt. Misri
RespondentMt. Rajmati and anr.
Excerpt:
- - 1. the litigation out of which this appeal arises can best be explained by reference to a certain pedigree reproduced in the judgment of the trial court at p. goman's death this business as well as the shop and the house referred to in the plaint, have been in the effective possession of mt. we think it sufficient to say that we see no reason to distrust the good faith of the witness, and that his evidence does prove beyond possibility of doubt that mt. if it were possible to arrive at the conclusion, that in spite of their residing so far apart, their carrying on separate business, and their keeping up a system of accounts which showed cross transactions between the trading firm of ganga ram-jawahir lal at najibabad and that of ram sahai badri das at srinagar, badri das and.....1. the litigation out of which this appeal arises can best be explained by reference to a certain pedigree reproduced in the judgment of the trial court at p. 92 of our record, together with certain relevant facts and dates which the learned subordinate judge has very conveniently appended to the said pedigree. the important names in the pedigree are badri das and waziri lal, commonly referred to in the evidence and the documents as waziri mal. these two persons were distant cousins, being descended in the male line from a common great-grandfather. they both died in the year 1881, badri das dying first. this gentleman resided at srinagar in garhwal, where he carried on business under the name and style of ram sahai-badri das. waziri mal, on the other hand, resided at najibabad and carried.....
Judgment:

1. The litigation out of which this appeal arises can best be explained by reference to a certain pedigree reproduced in the judgment of the trial Court at p. 92 of our record, together with certain relevant facts and dates which the learned Subordinate Judge has very conveniently appended to the said pedigree. The important names in the pedigree are Badri Das and Waziri Lal, commonly referred to in the evidence and the documents as Waziri Mal. These two persons were distant cousins, being descended in the male line from a common great-grandfather. They both died in the year 1881, Badri Das dying first. This gentleman resided at Srinagar in Garhwal, where he carried on business under the name and style of Ram Sahai-Badri Das. Waziri Mal, on the other hand, resided at Najibabad and carried on business there under the name and style of Ganga Ram Jawahir Lal. He died without male issue leaving him surviving a widow, Mt. Goman who died on 25th May 1912. Badri Das had a son by name Nannhu Mal. He must have been born somewhere about the year 1873; at any rate it appears certain that he attained majority in the year 1891. He died on 8th July 1900; that is to say, almost twelve full years before Mt. Goman. He left no issue but his widow, Mt. Rajmati, who is the principal defendant in the present suit. The plaintiff is Mt. Misri, daughter of Waziri Mal by his wife Mt. Goman. Her case is that Waziri Mal's estate passed on his death to Mt. Goman as his widow, and that she, the plaintiff, became entitled to the same under the Hindu Law from the date of Mt. Goman's death. We may note that the parties are Vaish Agarwal Jains and it might, under some circumstances, have been of importance to determine whether the civil law to which they are subject, more particularly as regards the matter of adoption, was or was not the ordinary Hindu Law; but in view of the course actually taken by the litigation, this question doss not arise. There was a second defendant impleaded in the plaint, namely, one Jangi Mal, also called Jagat Narain, described in the plaint as a minor, son of Jamna Das, but impleaded under the guardianship of defendant 1, Mt. Rajmati. With reference to this boy, the allegation in the plaint is that the first defendant wrongly alleges adoption of Jangi Mal alias Jagat Narain as a son to Nannhu Mal. To this Mt. Rajmati replied that she herself had formally adopted the second defendant, after performing all necessary ceremonies and executing a deed of adoption; also that the said adoption was valid according to the custom prevailing amongst Vaish Agarwal Jainjs. There was an issue framed upon these pleadings, but the learned Subordinate Judge came to the conclusion that the suit could be disposed of without trying out this issue. It is fairly obvious nevertheless that this dispute about the adoption of the second defendant is at the bottom of the present litigation. The whole point of the matter is that there was a dispute, on the death of Mt. Goman, regarding the property, both movable and immovable, which seems to have been in the effective possession of that lady at the time of her death, and that this dispute was settled by a family arrangement. Looking more particularly at a certain letter, to which we shall refer again, which is to be found at p. 191 of our record, we have practically no doubt that the possession obtained by Mt. Rajmati under the arrangement arrived at after Mt. Goman's death would never have been challenged if that lady had not adopted, or professed to adopt, a youth who is a member of her own family and not of the family of her late husband. On the main question raised in the plaint, Mt. Rajmati's answer was twofold: in the first place, she alleged that Badri Das, Nannhu Mal and Waziri Mal were members of a joint undivided Hindu family, and so continued up to the time of the respective deaths of Badri Das and Waziri Mal. If so, of course Nannhu Mal would become by survivorship the owner of all property movable and immovable, which had ever belonged either to Badri Das or to Waziri Mal, and on his death the title to such property would pass to his widow, Mt. Rajmati. As a second line of defence it was pleaded that Nannhu, Mal had been adopted by Waziri Mal. If this allegation were proved, then, as regards the property of Waziri Mal, at any rate, the same consequence would follow. It would devolve first upon Nannhu Mal and after his death upon his widow.

2. We gather from this record that Waziri Mal's assets consisted mainly of a trading and money-lending business. The immovable property possessed by him, which has been put in issue in the suit, now before us, comprised one shop and one house in the town of Najibabad and the zamindari rights over the entire 20 biswa mahal in a village known as Rahatpur Khurd. Mt. Misri, we might have noted before, is married to a gentleman of wealth and position named Manohari Lal, who resides at Srinagar in the district of Garhwal. She herself asserts that she was living there with her husband at the time of Goman's death. The defendant, Mt. Rajmati, on the other hand was living in Najibabad with Mt. Goman, and it is alleged in the plaint itself that in some way or other Mt. Rajmati contrived, with the help of servants of the firm and other persons, to get into possession of the account books of the business which had been Waziri Mal's. We take it there can be no doubt that from the time of Mt. Goman's death this business as well as the shop and the house referred to in the plaint, have been in the effective possession of Mt. Rajmati. As regards the property in village Rahatpur Khurd certain facts are admitted. The first application for mutation of names in respect of this property was made by Mt. Rajmati, who claimed to have her name recorded as sole owner of the entire 20 biswas. Mt. Misri says that she and her husband both came to Najibabad as soon as possible after obtaining news of Mt. Goman's death, and it is beyond doubt that on 12th July 1912 the petition re-produced at p. 553 of our record was presented by a pleader on behalf of Mt. Misri to the revenue Court at Najibabad which was seised of the question as to the mutation of names in the revenue records to be effected in respect of the 20 biswa share in Rahatpur Khurd, which share had obviously stood up to that moment in the name of Mt. Goman. In this petition it is stated simply that Mt. Misri has only just received notice of the application filed on behalf of Mt. Rajmati, that she desires to enter an objection to the same, and to produce oral and documentary evidence at any enquiry that may be held. She asked for 20 days' time to enable her to prepare and file a detailed pleading, and also for the production of oral and documentary evidence. On the very next day, that is to say, on the 13th July 1912, a petition was presented to the same revenue Court which is reproduced at p. 555 of our printed book, and is the most important document in the case. It purports to be a compromise in the disputed matter of mutation of names arrived at between Mt. Rajmati and Mt. Misri, the two contending parties. It informs the Court that a settlement has been arrived at, and asks that in accordance with the said settlement, Mt. Misri may be recorded as proprietor in possession of a 5 biswa share in village Rahatpur and Mt. Rajmati is proprietor of the remaining 15 biswa share. There is one phrase in this petition about which there has been much argument. Translating that phrase as literally as possible, we may reproduce it as follows: 'As to the remaining other assets left by Mt. Goman there remains no concern in the same on the part of Mt. Misri.'

3. This petition purports to be signed by duly authorized pleaders on behalf of both parties and also by the two ladies personally. It is certain both of them were literate to a, certain extent. They could read and write the Nagri character and were quite capable of signing their names in that character. This being a matter in which pardanashin ladies were concerned, the pleaders employed on both sides were not prepared to accept entire responsibility for the presentation of this petition. They therefore asked that a responsible officer, the supervisor qanungo might be sent to the residences of the two ladies to verify the petition. On p. 557 of our record we have the formal report of the said officer, B. Ajit Singh. He tells us that both the ladies verified the agreement after hearing and understanding it. He adds that Mt. Misri was identified at the time of this verification by her own husband, Manohari Lal, and also by the patwari of the village (presumably of Rahatpur) whereas Mt, Rajmati was identified by her brother, Jamna Das, and by the same patwari At the foot of this document are the thumb-impressions of both ladies and their signatures in the Nagri character. There are also the signatures of Manohari Lal and of Mathura Prasad patwari. The defendants were able to call Ajit Singh, supervisor qanungo, and his evidence is to be found at p. 71 and the following pages of our printed book. Obviously the witness had no very distinct recollection of the details of the transaction, apart from what he had stated in the formal report prepared by him at the time. In the course of his examination he professed to recollect a number of circumstances which had at first escaped his memory. We think it sufficient to say that we see no reason to distrust the good faith of the witness, and that his evidence does prove beyond possibility of doubt that Mt. Misri did attest the petition of the 13th July 1912, did understand the contents of that document, and that, apart from the patwari and various persons who had a concern in the matter as servants of Waziri Mal's firm, she had present with her at the time her own husband, Manohari Lal, and a brother of her husband called Anupor Anupi Singh. Evidence substantially to the same effect is given by Narain Das, a Jain moneylender of Najibabad, who is a connexion by marriage of the family; by Ganga Sahai, an old employee of the firm who is now in the service of Mt. Rajmati, and by that lady's brother, Jamna Das. The trial Court has arrived at the following findings:

1. It is not proved that Badri Das and Waziri Mal were joint at the time of the death of either of them; on the contrary there is documentary evidence on the record which absolutely negatives the suggestion of such jointness. 2. As regards the alleged adoption of Nannhu Mal, with reference to which the defendants were with some difficulty tied down to the proposition that the adoption had taken place in the lifetime of Waziri Mal in or about the year 1880, it is not proved that such adoption took place. On the contrary, there are certain facts established, more particularly with reference to Nannhu Mal's succession to the estate of Badri Das, and his dealings with the property of Badri Das, which negative altogether the suggestion that he can have been adopted by Waziri Mal at a time when Badri Das was still alive. 3. Whatever might have been the respective rights of the parties, as a result of these two findings, there was on the 12th or 13th July 1912 a settlement arrived at between the two ladies Mt. Misri and Mt. Rajmati, the terms of which are in part evidenced by the petition of 13th July 1912 and in part by the depositions of witnesses. That arrangement was a bona fide settlement of a dispute between members of the same family, arrived at when there had been no judicial adjudication; the arrangement was in fact acted upon by both ladies, and neither of them can be permitted to resile from it now. Under the terms of that arrangement Mt. Misri took the 5 biswas share in village Rahatpur, of which she is still in possession but relinquished into the hands of Mt. Rajmati, not only the remaining 15 biswa share in village Rahatpur, but also the house and shop in Najibabad and all other property which was in any way claimable by Mt. Misri as the daughter of Waziri Mal.

4. On the basis of these findings the present suit, which is for possession of the 15 biswa share in Rahatpur and the house and shop in Najibabad, has been dismissed. A separate suit was brought in respect of a certain bond executed in favour of Mt. Goman. This suit is the subject-matter of a separate appeal, on which we propose to pass a separate judgment. In the appeal now before us the successful defendants, although there is nothing in the decree of the trial Court which they desire to modify, have thought it convenient to avail themselves of their rights under Order 41, Rule 22, Civil P. C, to enter a formal pleading, by way of objection to those findings of the trial Court which are unfavourable to the claims set up by them. They ask this Court to hold that on the evidence it is proved that Nannhu Mal had been validly adopted by Waziri Mal, and also that Nannhu Mal was a member of a joint undivided Hindu family with Waziri Mal and with one Jawahir Lal or Jawahir Mal, a brother of Waziri Mal who died without issue. Nevertheless, as the case has been argued before us, we were asked not to go into the issues regarding jointness and the alleged adoption of Nannhu Mal, unless we were prepared to say that the decision of the trial Court could not be supported on the grounds on which it has proceeded. We are bound to place it on record that, inasmuch as we never reached that stage, the points specifically raised by the petition of cross-objections were never fully argued out before us. It must be admitted that there is a certain awkwardness about dealing with the suit in this way in water tight compartments. The questions upon which the parties are at issue hang together more closely than seems to have been fully appreciated in the trial Court. If it were possible to arrive at the conclusion, that in spite of their residing so far apart, their carrying on separate business, and their keeping up a system of accounts which showed cross transactions between the trading firm of Ganga Ram-Jawahir Lal at Najibabad and that of Ram Sahai Badri Das at Srinagar, Badri Das and Waziri Mal did always believe themselves to be members of a joint undivided Hindu family, then the great bulk of the arguments which have satisfied the trial Court that Nannhu Mal could not have been adopted by Waziri Mal in the latter's lifetime would fall to the ground. On the other hand, when the trial Court came to consider and appraise the evidence as to the alleged adoption, it ought surely to have attached some considerable weight to the facts which it has found to be established with regard to the compromise of 13th July 1912. If it be true that Mt. Misri entered into the compromise which the trial Court has held to be proved, and did so with full understanding with the counsel and consent of her own husband and with proper legal advice available, it does seem difficult to avoid the inference that she herself, along with all the other members of the family, knew that there was real substance about the claim of Mt. Rajmati, based upon the alleged adoption of her husband as a son to Waziri Mal. This point is thrown into stronger relief by certain evidence on the record as to another transaction which took place within less than a year of Mt. Goman's death. The whole of this transaction is set forth in the document reproduced at page 561 of our record.

5. It appears that before the year 1912 was out, one Roshan Lal, son of Makundi Lal a connexion of the family instituted a suit, in which he impleaded both Mt. Rajmati and Mt. Misri as defendant, and in which he claimed this very property in mauza Rahatpur Khurd on the allegation that he was himself the adopted son of Mt. Goman. This litigation was referred to the arbitration of one Salek Chand, a gentleman of position, who is himself a connexion by marriage of the parties. He delivered an award on the 19th of March 1913, absolutely rejecting Roshan Lal's claim; and in the course of this award he states that he knows it for a fact that Mt. Goman had adopted Nannhu Mal, the deceased husband of Mt. Rajmati. Now, this Salek Chand is still alive; he was summoned as a witness for the defendants, but did not attend the Court. It was, of course, open to the defendants to have insisted upon his attendance and to have asked that he might, if necessary, be brought before the Court under a warrant of arrest. This was not done, and we feel that allowance must be made for the practical difficulties felt by litigants in this country when they are driven to choose between dispensing with the evidence of an important witness and dragging him into Court, against his will. These difficulties are likely to be accentuated by the fact that the recalcitrant witness happens to be a gentleman of position who would keenly resent the issue of a warrant for his attendance. We cannot help noticing, moreover, that if the Court is entitled (and the contrary has not bean suggested in argument) to take into consideration all the terms of Salek Chand's award of 19th March 1913, as they stand, then the settlement put forward in this document is not that Waziri Mal had adopted Nannhu Mal, but that Mt. Goman had done so.

6. We mention this point more particularly, because it has a bearing on the attitude we propose to adopt towards those findings of the trial Court which we have not been able to reconsider. We must hold that Mt. Rajmati, as defendant in the Court below failed to prove either the alleged jointness of Badri Das, Waziri Mal and Nannhu Mal, or the alleged adoption of Nannhu Mal by Waziri Mal in the lifetime of the latter. We recognize also the fact that this is the case to which she was tied down by her own pleadings, noting at the same time that it was only with some difficulty and under pressure that she was compelled to tie herself down to the assertion that the adoption had taken place in Waziri Mal's lifetime. When however we come to consider the issue upon which the trial Court has determined the suit in favour of the defendants, we cannot shut our eyes to the possibility that the defendants may have landed themselves in a difficulty, merely because Mt. Rajmati may have been misled as to matters of fact of which she could have had no personal knowledge, or because she was acting under the advice of persons who preferred to enter an inaccurate plea of fact rather than embark upon the cumbrous task of satisfying the Court as to the precise points in which the Customary Law applicable to the Jain community in the matter of adoption differs from the ordinary Hindu law. We must make our position clear on this point. It is not that we propose to decide the issue argued out before us on appeal on the mere supposition that something may conceivably be true which was not alleged by either party, namely that Nannhu Mal was actually adopted by Mt. Goman after Waziri Mal's death. What we mean is that we cannot consider the evidence as to the settlement arrived at between the two ladies, Mt. Misri and Mt. Rajmati, in the month of July 1912, on the assumption that the two important issues as to the jointness of the family and the alleged adoption of Nannhu Mal had then been completely tried out (which of course they had not) or that Mt. Rajmati had no arguable case which she could have litigated with good hope of success, if Mt. Misri had refused to enter into any compromise and had put her title in suit promptly in the year 1912 or early in the following year. On the contrary we have to put ourselves back as nearly as possible into the position of the parties in the month of July 1912. It is quite apparent from the pleadings and from the evidence that Mt. Rajmati was somehow or other in effective possession, not only of the immovable property now in suit, but also (in our opinion) of the entire estate of Waziri Mal. We have moreover, a document on the record which leaves us no doubt whatever as to the position which Mt. Misri's husband was then prepared to take up. This gentleman, Manohari Lal, has not thought fit to tender himself for examination as a witness in the present litigation, although there is matter enough on the record, in our opinion, to make it really essential to the success of the plaintiff's case that he should have done so. Under the circumstances we have no doubt that the defendants were entitled to put in evidence the postcard which has been reproduced at page 191 of our record. On the face of it this document is one addressed by the trading firm of Ram Dayal-Basti Ram to that of Ganga Ramjawahir Lal. The latter, we have already noted, is the trade name of Waziri Mal's firm and the former, we note from the evidence, is the trade name of Manohari Lal's firm. We are satisfied from other evidence on the record that these Jains were in the habit of carrying on private-correspondence in the names or under the description of their trading firms. We are satisfied from the evidence, and particularly from that of Ganga Sahai at page 64 of our record, that this postcard must be treated on the same footing as a letter written by Manohari Lal, or under his direct authority. The postcard refers to a communication received, obviously written by or on behalf of, Mt. Rajmati, with reference to the claim which had been preferred by Roshan Lal. The date of this postcard is 2nd November 1912, and the writer acknowledges the receipt of information that Roshan Lal's claim had been preferred not merely against the person addressed (that is to say, against Mt. Rajmati), but also 'against us,' which expression can only mean against Mt. Misri, the wife of the writer. The tone of the latter is as remarkable as its contents. We are doing the parties no injustice if we paraphrase it somewhat as follows:

My wife and I decline altogether to interest ourselves in any way about this claim of Roshan Lal's. You have got hold of the entire property of Waziri Mal, except this paltry 5 biawa share in village Rahatpur which you have thrown to us as a sop. Yon may fight out your quarrel with Roshan Lal as you think best. We care so little about this 5 biswa share that we are ready to hand it over either to Roshan Lal, or for the matter of that to you, if you want it back again.' In fact the actual concluding words of the letter are: 'We have no objection to give it to any one who asks for it.' Apart from all the other evidence in the case, it does appear to us difficult to the verge of impossibility to believe that the writer of that letter knew at the time that his wife, if she chose to fight the matter out, had a perfectly clear claim, not only to the entire village of Rahatpur, but to all the rest of the valuable estate which had belonged to Waziri Mal and had subsequently been in the hands of Mt. Goman, of Nanhu Mal, and of Mt. Goman and Mt. Rajmati jointly.

7. Having made this remark, it is as well that we should pause and explain precisely what we mean by it. The question of the actual possession over Waziri Mal's estate from the date of that gentleman's death down to the date of the institution of the present suit is only indirectly relevant to the issue which we are engaged in trying; but it is not without significance. It was very fairly put to us in argument by Sir Tej Bahadur Sapru, on behalf of the respondents, that the evidence bearing on this point can only be appreciated by classifying it under three distinct periods of time. No doubt, as a matter of law, from the date of Nannhu Mal's adoption, whenever that adoption actually took place, Nannhu Mal became the owner in law of the estate of Waziri Mal. The first period which we have to consider is from the date of the alleged adoption in 1880 down to the year 1891 when Nannhu Mal attained majority. We know that during this period certain persons who were acting as Nannhu Mal's, guardians ware engaged in administering and realizing on his behalf the estate of his natural father, Badri Das. We know that Mt. Goman was in effective possession of everything which had been held by Waziri Mal on the date of his death. We think it may be said that generally speaking, she dealt with this property as if she had been a Hindu widow in possession of her late husband's estate. In one document only does she definitely speak of Nannhu Mal as the adopted son of Waziri Mal. We must next take the period from 1891 to 1900 the letter year being the year of Nannhu Mal's death. Broadly speaking, though we have not gone into this matter in detail, it does seem to us that during these years, between the attainment off his majority and the date of his death Nannhu Mal held effective possession of the estate of Waziri Mal, and generally described himself in documents executed by him during this period as the adopted son of Waziri Mal The third period commences with the death of Nandhu Mal and may be said to extend to the date of the institution of the present suit. It is divided into two parts by the death of Mt. Goman in 1912. Obviously, if Nannhu Mal had been adopted as the son of Waziri Mal, the successor to his estate was not his adoptive mother Mt. Goman, but his widow, Mt. Rajmati. The former must have been a masterful lady and it is antecedently unlikely that her widowed daughter-in-law, who must have been still quite young when Nannhu Mal died, would have contested any steps Mt. Goman might see fit to take for the management of the property. We think she resumed effective possession over Waziri Mal's estate from the date of Nannhu Mal's death; but we note that in a number of documents on the record persons dealing with the trading firm of Ganga Bam Jawahir Lal preferred to deal with Mt. Goman and Mt. Rajmati as if they were what they could not possibly be in law, joint owners of the same. From the date of Mt. Goman's death we have no doubt that Mt. Rajmati obtained effective possession. By Salek Chand's arbitration award she successfully defeated the claim preferred by Roshan Lal, and Mt. Misri and her husband accepted the compromise referred to in the revenue Court petition of July 13th, 1912 rather than prosecute in Court any claim which Mt. Misri might have as the daughter of Waziri Mal. The present suit has been brought after an interval of well over seven years, and, as already stated, we have no doubt that its institution was determined by Mt. Rajmati's action in executing the deed of adoption in favour of the second defendant.

8. With regard to the revenue Court petition of July 13th, 1912, the first difficulty which confronts us is the plaintiff's objection to its admissibility in evidence. That objection is based upon Sections 17 and 49 of the Indian Registration Act (XVI of 1908). We have been referred to a great deal of case-law on the subject, much of which will be found summarized and discussed in Jagrani v. Bisheshar Dube (1916) 38 All 366, when the whole question was referred to a Pull Bench of this Court and separate judgments were delivered by the three learned Judges who constituted the Full Bench. There is one later decision, Baldeo Singh v. Udal Singh AIR 1921 All 248, to which one of us was a party, in which the matter is further discussed; but the authority of that decision is affected by the circumstance that separate judgments were delivered and that the two Judges constituting the Bench, although coming to an agreement as to the determination of the appeal then before them, were by no means in full agreement as to the principles of law on which that decision ought to be based. A still later pronouncement of this Court is the decision of a Bench of two Judges in Kunti v. Gajraj Tewari AIR 1921 All 826, and, if that decision is to be followed, there can be no question that the document we are now considering is at least admissible in evidence.

9. The question is to our minds considerably complicated by the way in which this document is referred to in the pleadings of the parties and was dealt with in the Court below. Mt. Misri, in her plaint, is not content with merely suing upon her title as the daughter of Waziri Mal, and leaving the opposite parties to put in any document which they might desire to set up in bar of that title, but she goes out of her way to refer to this revenue Court petition, and, in substance, she seeks relief against it on the ground of fraud. She represents herself as an ignorant and barely literate pardansshin lady, with no proper independent advice available to her; and not content even with this, she goes so far as to assert that the petition of compromise actually laid before the revenue Court was fraudulently obtained by interested parties, without any knowledge whatsoever on her part of its contents and was engrossed upon paper to which her signature and thumb-impression had previously been obtained on the false representation that the paper would be used for a petition asserting her rights to mutation of names in respect of Rahatpur Khurd. The document was produced on behalf of the defendants while Mt Misri was under cross-examination, her evidence being taken on commission. On page 24 of our record it is quite clear that when the document was put to the deponent, and, therefore, tendered in evidence, no objection to its admissibility was taken by the counsel representing Mt. Misri. As pointed out by the learned Chief Justice, in the Full Bench case above referred to, the proper time for the raising and the determination of all questions as to the admissibility of documentary evidence is the time when such documents are tendered in evidence. We know by experience that it is exceedingly difficult to induce subordinate Courts in this province to appreciate and to follow consistently this principle of law. In the present case the learned Subordinate Judge has actually framed an issue (No. 7) as to the admissibility in evidence of this document; but he left it over for determination along with the other issues in the suit, and in the meantime let in the document itself and all sorts of other evidence bearing upon it. Whatever may be 'the correct answer' as a pure matter of law, to the question whether a petition to a revenue Court, worded as this document on page 555 of our record actually is, does or does not require registration under Section 17 of Act XVI of 1908, it becomes a matter of extreme difficulty for an appellate Court to determine that question when the document itself has been dealt with as this petition has been in the trial Court. It is scarcely too much to say that Mt. Misri had herself put the document in evidence by the pleading entered in para. 5 of her plaint, and that in the face of that pleading it was scarcely open to her at a later stage to turn round and deny the right of the defendants even to place the document upon the record of the Court.

10. Apart from these considerations we are of opinion that although one phrase in the document comes perilously near to bringing it under the provisions of Section 17 of the Registration Act, it is possible to treat the document not as one which purports to declare, assign or relinquish any rights in immovable property, but which merely purports to inform a Court of revenue of the results of a settlement arrived at by oral agreement between the parties. We have good authority in the Privy Council case of Khunni Lal v. Gobind Krishna Narain (1911) 33 All 356, for the proposition that a family arrangement between members claiming title to certain property in settlement of their dispute, 'each one relinquishing all claim in respect of all property in dispute other than that falling to his share and recognizing the right of the others as they had previously asserted it to the portion allotted to them respectively,' does not by law require to be reduced to writing at all, much less to be embodied in a registered instrument. This was the view taken by one of ourselves in the case of Baldeo Singh v. Udal Singh AIR 1921 All 248 already referred to. The only result of the absence of any writing would be to make it difficult for the party subsequently desiring to rely upon the family settlement against another party repudiating the same, to prove by satisfactory evidence what the terms of the settlement really were.

11. This principle of law is wholly independent of the provisions of the Indian Registration Act, which lay down what documents, when once written and executed, require registration and are ineffective and inadmissible in evidence in the absence of registration. The practical difficulty which often confronts the Courts, particularly in this province, where revenue Courts exercise special jurisdiction defined and limited by statute, is that the parties to a family settlement are apt to content themselves with embodying the terms of their settlement in a petition to a revenue Court and put forward such petitions afterwards as documents of title. We agree with what was said by Sir Henry Richards, C.J., in the Full Bench case in. Jagrani v. Bisheshar Dube (1916) 38 All 366 that all cases of this nature must be decided with reference to the terms of the particular document under consideration, and, we may add, with reference also to the pleadings of the parties and the manner in which the disputed document was tendered in evidence and admitted or rejected by the trial Court. The correct principles of law to be borne in mind we have already stated. A family arrangement as such does not require to be embodied in a written instrument; but if a document is tendered in evidence as proving the terms of the settlement, the mere fact that the document in question is a petition addressed to a Court of revenue does not exempt it from the provisions of Section 17 of the Registration Act (XVI of 1908). It is worth nothing, for the point has sometimes been overlooked, that their Lordships of the Privy Council in Khunni Lal v. Gobind Krishna Narain (1911) 33 All 356 were dealing with a document executed in the year 1860 and anterior to the passing of the Registration Act XX of 1866 in which the law as to the compulsory registration of documents was first laid down in the sense in which it still appears in the existing law.

12. Having thus cleared the way, it seems to us that we can dispose, briefly, of the issue which we are considering. With regard to the compromise of July 1912, we rely not merely on the revenue Court petition, but on the oral evidence, and more particularly on that of Ganga Sahai at page 69 of our record. We rely also on the letter of the plaintiff's husband, to which we have already referred. We are quite satisfied that all the allegations made in the plaint as to the circumstances under which the compromise of July 13th, 1912 came to be executed and presented to the revenue court are false. We agree with the trial Court that Mt. Misri gave her full and free consent to the settlement evidenced by that petition,that she was acting under the advice of her own husband, and that she fully understood what she was doing. The statement of Ganga Sahai, to which we have referred above, was made under cross-examination and obviously in reply to a challenge on the part of counsel for the plaintiff that he should state all he remembered a3 to what actually took place in the course of the discussions which preceded the settlement. If he was not speaking the truth, there were two witnesses who could have contradicted him, Manohari Lai and Salek Chand. The former preferred not to enter the witness box; the latter was reluctant to do so when summoned by the defendants and the plaintiff on her side never attempted to produce him. Obviously Ganga Sahai is only reproducing from memory what appeared to him to be the salient features of the negotiation. He ascribes a prominent part in bringing about the settlement to Salek Chand, the very gentleman who a few months later delivered his emphatic arbitration award against the claim of Roshan Lai. The attitude which he ascribes to Mt. Misri and those acting on her behalf is frankly that of throwing themselves on the mercy of Mt. Eajmati. They are not prepared to dispute her claim in Court; they merely suggest that under all the circumstances she ought to do something for Mr. Misri, who is after all & member of the family, Manohari Lai's own attitude in his letter of November 2nd, 1912, shows thai he regarded the 5 biswa share in village Rahatpur as a trumpery concession which it had scarcely been worth the while to accept. We have no real doubt in our own minds as to what happened. We cannot say with certainty what Manohari Lai or Mt. Misri, or this gentleman Salek Chand] who interested himself in the matter', really knew concerning the circumstances of the family or the alleged adoption of Nannhu Mai. We are quite satisfied that Mt. Misri, acting under the very competent advice of her own husband and with legal advice available, was not prepared at that time to contest Mt. Rajrnati's-claim, and, that she and her husband accepted,it would seem ungraciously enough, the 5 biswa share in village Rahatpur and surrendered everything else that had ever belonged to Waziri Mai or that haP been in the effective possession of Mt Goman on the date of that lady's death into the hands of Mt. Rajmati.

13. The decision of the trial Court is therefore, correct on the grounds on which it proceeds, and this appeal fails. We dismiss it accordingly with costs.


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