1. This appeal and First Appeal No. 110 of 1954 arise out of Civil Suit No. 16A of 1951 decided by the First Additional District Judge, Jabalpur. This suit was tiled by Jhunkaribahu (appellant No. 1) and Ramdas (appellant No. 2) against the respondents for partition of the property in suit which consists of Sir and Khudkast lands invillage Padwar and a house bearing No. 395/253B in Bhaldarpura, Jabalpur.
Another First Appeal No. 166 of 1951 which relates to a share in the same property has also been heard along with these appeals. This latter appeal arises out of Civil Suit No. 22A of 1950 which was filed by Girnarchand (respondent No. 1) against Phulchand (appellant) Rupchand (respondent No. 2) and
Girjabai alias Rajrani (respondent No. 3). This judgment governs the disposal of all the three appeals.
2. The facts which were not disputed in both the suits and are not also disputed in these appeals are these : The properties in suit belonged to one Bhaosingh, who died leaving four sons as shown in the genealogy below :
| | | |
Tikaram (28-9-1996) Kodulal (13-6-1906) Chuttulal (24-10-1905) Nathulal (1891)
=Mst. Rani Bahu =Mst. Noni Bahu =Mst. Sardaran Bahu =Mst. Bari Bahu
(4-10-1908) (2-9-1957) (13-4-1940) (22-2-1903)
(adopted in 1903) (adopted in 1921)
The dates given in the brackets in the above genealogy show the order in which the four brothers and their widows died. After the death of Tikararn and Nathulal, the property passed to Chhuttulal and Kodulal. Chhuttulal was also known as Chhotelal and has been referred to as such in some of the documents filed by the parties. Chhuttulal died in 1905 leaving his widow Sardaran Bahu. Kodulal died in 1906 leaving his widow Noni Bahu. In 1921 Sardaran Bahu adopted Phulchand and in 1928 Noni Bahu adopted Rupchand, Noni Bahu died in 1927 and Sardaran Bahu in 1940.
3. The case of the plaintiffs in both the suits rests on a will dated 11-6-1906 executed by Kodulal. By that will Kodulal made the following dispositions :
(i) Half share in the property to Noni Bahu for life with remainder over to Sonelal who was Noni Bahu's sister's son.
(ii) Half share to Sardaran Bahu for life with remainder over to Lakshmiprasad son of Khushalchand.
These two dispositions by will executed by Kodulal have led respectively to the two suits under appeal.
4. We may now refer briefly to the pleadings and findings in the two suits.
Civil Suit No. 22A of 1950.
(i) Plaintiff Girnarchand filed this suit on these allegations. Sonelal to whom the half share held by Noni Bahu was to pass died in 1919 leaving behind his widow Mst. Rajrani alias Girjabai. The plaintiff Girnarchand was adopted by Rajrani in 1948. The plaintiff thus became the owner of the half share of Noni Bahu in the suit properties after her death.
(ii) The defendant Phulchand admitted that Kodulal had executed, the will as alleged, but stated that Chhuttulal and Kodulal were separate and thus Kodulal's power to devise the property by will was limited to his half share only. The claim for half share in the village Padwar was not thus disputed. As regards the claim to half share in Bhaldarpura house, the defendant admitted that it wasowned in common by Chhuttulal and Kodulal. He, however, pleaded that it was in the exclusive possession of Sardaran Bahu and of himself adversely to the plaintiff all along. Hence the claim of Girnarchand to a share therein was barred by time.
(iii) The lower Court did not find the partition proved and held that the family was joint when Chhuttulal died. Accordingly, it was held that Kodulal became the sole coparcener after the death of Chhuttulal and could dispose of the whole property by will. As regards the house, the claim of defendant Phulchand that he held the house adversely was not accepted. The suit was thus decreed for half share in the Bhaldarpura house as well as the village lands. Phulchand has appealed against this decree, so far as it relates to half share in Bhaldarpura house.
Civil Suit No. 16A of 1951.
(i) Lakshmiprasad, who was to succeed to the half share held by Sardaran Bahu for life according to the will of Kodulal, died in 1920. Plaintiff No. 1 Jhunkaribahu is his widow and plaintiff No. 2 Ramdas is his brother. The case of these two plaintiffs is that after the death of Sardaran Bahu in 1940, the half share in the properties held by her passed to them and Phulchand can claim no share in the property. They accordingly claimed possession of that half share.
(ii) Defendant Phulchand pleaded that Chhuttulal and Kodulal were separate and held a defined half share in the family properties. It was hence contended that Kodulal had no power to bequeath the share held by Chhuttulal and this share passed to his widow Sardaran Bahu after his death. Accordingly, it was claimed that she continued in possession by virtue of her right of inheritance and not under the will. The defendant further claimed that his adoption in 1921 related back to the elate of death of Chhuttulal and even if the two brothers were joint then, Kodulal could not dispose of Chhuttulal's share which should be deemed to have vested in the defendant in 1905 by virtue of the adoption. As regards the Bhaldarpura house, it was pleaded that it was separate and exclusive property ofChhuttulal and could not be disposed of by Kodulal by will in any case.
(iii) The lower Court found that Kodulal and Chhuttulal were joint and after his death the family property passed to Kodulal as the sole surviving coparcener. His right to dispose of the property by will was upheld and the contention that the adoption of defendant displaced the alienation was repelled. Accordingly, the suit was decreed as regards the village share. However, as regards the Bhaldarpura house, the Court held that it was exclusive property of Chhuttulal and accordingly dismissed the claim for a half share therein.
(iv) In drawing up the decree only four anna share in the suit lands has been given to plaintiffs whereas on the findings they were entitled to eight annas share. The plaintiffs thus came up in appeal (First Appeal No. 80) claiming eight annas share in the lands as also half a share in the Bhaldarpura house. The defendant Phulchand came up in appeal (First Appeal No. 110) claiming dismissal of the entire claim.
5. At this stage, it would be convenient to refer to two previous suits regarding the properties in dispute as they have been referred to in Jhunkaribahu's case :
(a) Civil Suit No. 48 of 1914.
This suit was filed by the daughters of Tikaram in 1914 against Noni Bahu, Sardaran Bahu, Lakshmiprasad and Sonelal claiming Tikaram's four anna share. It was claimed that the four brothers were separate, that Tikaram's share passed to his daughters and that it could not be disposed of by will to the defendants in that case. The suit was dismissed on the ground that the family was joint and Tikaram's share passed by survivorship. (Judgment Ex. P-5).
( (b) Civil Suit No. 15A of 1930.
This suit was filed by Rupchand against Sardaran Bahu and Phulchand. Rupchand claimed to be the adopted son of Kodulal and claimed half share in the property on the ground that the disposal under Kodulal's will did not bind him. It was held that the adoption did not affect the bequest made by Kodulal inasmuch as the remainder-man acquired a vested interest immediately on the demise of Kodulal in spite of the intervening life estates. (judgment Ex. P-4).
6. On behalf of the plaintiffs in Civil Suit No. 16A it was urged that these judgments acted as res judicata and created an estoppel against the defendant Phulchand. This contention was negatived by the lower Court by a preliminary order dated 26-8-52. Shri B.C. Verma did not dispute the correctness of this finding. His grievance, however, is that the lower Court has misread the finding so as to exclude the effect of certain statements made by Sardaran Bahu and Phulchand as admissions.
The preliminary finding is confined to the aspect whether the previous decisions operated as res judicata and whether the previous statements created an estoppel. The effect of artestoppel is quite different from the effect of admissions and we agree with Shri B.C. Verma that the lower Court should have considered the effect of the admission in appreciating evidence. Admissions doubtless raise only a presumption which is rebuttable but unless the peculiar circumstances under which the admissions were made are satisfactorily explained, they would have to be considered just as any other piece of evidence.
7. Before we consider the facts of the case, we may record our finding on an important point of law, viz., the effect of an adoption by the widow of a predeceased coparcener on the alienations made by the sole surviving coparcener prior to such adoption. Shri R.S. Dabir contends that after Phoolchand was adopted by Mst. Sardaran Bahu as a son to her husband Chhuttulal, the adoption related back to the date of the death of Chhuttulal, that is to say, 24-3 0-1905. According to this fiction, he argues, the coparcenary after that date consisted of Kodulal & Phoolchand and therefore Kodulal was not competent to dispose of any part of the joint family property by will.
8. To support his contention he relied on the principle laid down by their Lordships of the Privy Council in Anant Bhikappa v. Shankar Ramchandra, 70 Ind App 232: (AIR 1943 PC 196) (A). In that case, the property belonged to one Keshav and after his death in 1917 it passed to Shankar, who was Keshav's great-grand father's grandson. In 1930 Keshav's mother adopted Anant who sued Shankar for the joint family property on the ground that Shankar was divested of the estate on his adoption. Their Lordships observed :
'That the property had vested in the meantime in the heir of Keshav is not of itself a reason, on the principles laid down in Amarendra Mansingh v. Sanatan Singh, 60 Ind App 242: (AIR 1933 PC 155) (B), why it should not divest and pass to the appellants.'
Further, the following observations in Pratap Singh Shiv Singh v. Agarsinghji Raisingji, 46 Ind App 97: (AIR 1918 PC' 192) (C), were quoted with approval:
'Again, it is to be remembered that an adopted son is the continuator of his adoptive father's line exactly as an aurasa son, and that an adoption, so far as the continuity of the line is concerned, has a retrospective effect; whenever the adoption may be made there is no hiatus in the continuity of the line. In fact, as West and Buhler point out in their learned treatise on Hindu Law (3rd Edn., p. 996 note (a)), the Hindu lawyers do not regard the male line to be extinct or a Hindu to have died without male issue until the death of the widow renders the continuation of the line by adoption impossible.'
9. The principle laid down in Anant's case (A), was later on extended to the case of adoption by a widow of a deceased coparcener in a case where the coparcenary was put an end to by the two surviving coparceners by partition: Ramkrishna Krishnarao v. Ramchandra Shrinivas, AIR 1950 PC 20 (D). In that case, it was held that the adopted son was entitled to a share in spite of the partition between the remaining two coparceners.
10. The same question arose for consideration in Tatya Shantappa v. Ratnabai, 1949 FCR 258: (AIR 1949 FC 301) (E). The principles laid down in Anant's case (A), was thus explained :
'The rights of the adopted son relate back to the date of the adoptive father's death must equally apply to the facts of the present case and the plaintiff must be deemed, by a fiction of Hindu Law, to have been in existence as the son of Shantappa at the time of the latter's death in 1921 so as to entitle him to a share in the family properties. .... We are unable to see why such adoption should not equally operate to entitle the adopted son to claim a share in the family properties in spite of the extinction of the coparcenary by virtue of a partition.'
11. The matter came up before the Supreme Court in Shrinivas Krishnarao Kango v. Narayan Devji 1955-1 SCR 1: (AIR 1954 SC 379) (F). In that case the question was whether a subsequently adopted son could divest another remoter heir of the estate which came to him from a collateral after the death of the adoptive father. Explaining that the view taken in Anant's case (A), would properly be limited to the effect of adoption on the intervening devolution of coparcenary property, their Lordships of the Supreme Court held that the principle did not extend to collateral succession opening before adoption. The principle laid down in Anant's case (A), was stated thus :
'The coparcenary must be held to subsist so long as there was in existence a widow of a coparcener capable of bringing a son into existence by adoption, and if she made an adoption, the rights of the adopted son would be the same as if he had been in existence at the time when his adoptive father died, and that his title as coparcener would prevail as against the title of any person claiming as heir of the last coparcener. In substance, the estate in the hands of such heir was treated as impressed with the character of coparcenary property so long as there was a widow alive who could make an adoption. This principle was re-affirmed in Neelangouda Limbangouda v. Ujjan Gouda, AIR 1948 PC 165 (G).'
It was laid down that although the adopted son was entitled is the interest of his adoptive father in the joint Hindu family, 'the decision in that case went far beyond what had been previously understood to be law.' It was accordingly held that the decision in so far as it relates to properties inherited from collaterals is not sound and that in respect of such properties the adopted son can lay no claim on the ground of the adoption relating back to the date of the death of the adoptive father.
12. Their Lordships further observed :
'When an adoption is made by a widow of either a coparcener or a separated member,then the right of the adopted son to claim properties as on the date of the death of the adoptive father by reason of the theory of relation back is subject to the limitation that alienation made prior to the date of adoption are binding on him, if they were for purposes binding on the estate.
Thus, transferees from limited owners, whether they be widow or coparceners in a joint family, are amply protected. But no such safeguard exists in respect of property inherited from a collateral, because if the adopted son is entitled on the theory of relation back to divest that property, the position of the mesne holder would be that of an owner possessing a title defeasible on adoption, and the result of such adoption must be to extinguish that title and that of all persons claiming under him.'
Shri Dabir argues that in the light of the decision of the Supreme Court the principle laid down in Anant's case (A) holds good in all cases except what has been observed on that doctrine by the Supreme Court. He accordingly contends that unless the alienation is binding on the estate, the rights of an adopted, son would be regulated by the principle of relation back and remain unaffected by the alienation.
13. We may at this stage refer to some cases of the Bombay High Court in which the decision in Anant's case (A), was considered.
(a) In Bhimaji Krishnarao v. Hanmantrao, AIR 1950 Bom 271 (H), it was held that the decision was confined to the case of inherited property and could not be extended to a case of lawful alienation. It was observed:
'It (the alienation) must be lawful, not in relation to the rights of the adopted son, but it must be lawful at the date when the alienation was made, and there can be no doubt that when Hanmantrao made the alienations, there being no adoption, the alienations made by him were lawful. If they were lawful, they cannot be questioned or challenged by the adopted son whose adoption was subsequent to these alienations.'
(b) In Vithalbhai Gokalbhai v. Shivabhai Dhoribhai, AIR 1950 Bom 289 (I), it was held that a disposition made by a will made by a sole surviving coparcener could not be challenged by a subsequently adopted son.
(c) In Ramchandra Hanmant v. Balaji Dattu, (S) AIR 1955 Bom 291 (FB) (J), the question came before a Full Bench after the decision of the Supreme Court referred to above. It was held that the fiction of the adoption relating back to the date of the adoptive father's death should be confined to a case of inheritance by the heir of surviving coparcener but it should not be extended to subsequent inheritance on the death of such heir. It was observed that the decision in the case of Anant was not intended to be an exposition of the whole law of adoption and that decision must be governed and qualified by the particular facts of the case.
14. In Puttappa v. Basappa, AIR 1953 Mys 113 (K), the Mysore High Court has alsotaken a similar view. In that case an alienation had been made by the sole surviving coparcener and thereafter his son's widow adopted a son. It was held that the principle in Anant's case (A) did not apply and that alienation was binding on the adopted son.
15. The question came up for consideration before the Nagpur High Court in Udhao v. Bhaskar, ILR (1946) Nag 423: (AIR 19-16 Nag 203) (L). It was held that the decision in Anant's case (A), did not apply to a case where the solo surviving coparcener had bequeathed the family properties by a will. The reason for the decision given is that the fiction of adoption in Anant's case (A), should be confined to the facts of the case and could not be extended to disturb alienations made prior to the adoption. The following discussion about the principle involved may be referred :
'It is evident that their Lordships had this in view in the later case because they have been careful to limit their decision TO cases in which titles based on inheritance are displaced. Thus they say at page 130 (of ILR (1944) Bom): (at p. 200 of AIR 1913 PC):
'It must vest the family property in the adopted son on the same principle, displacing any title based merely on inheritance from the last surviving coparcener'.
And at page 128 (of ILR (1944) Bom) : (at p. 199 of AIR 1943 PC), their Lordships appear to draw a distinction between the rights of outsiders who acquire otherwise than by inheritance, and those in the family whose title is based on inheritance, because their Lordships cite, apparently with approval, a Madras decision in which that conflict is resolved. Thus their Lordships say at page 128 (of ILR (19-14) Bom): (at p. 199 of AIR 1943 PC):
Keshav's right to deal with the family property as his own would not be impaired by the mere possibility of an adoption : Cf. Veeranna v. Sayamma, ILR 52 Mad 398: (AIR 1929 Mad 296) (M). But .... the same right to adopt subsisting after his death must, in their Lordships' view, have qualified the interest which would pass by inheritance from him.' In Pralhad v. Gendalal, ILR (1948) Nag 271: (AIR 148 Nag 351) (N), a Division Bench of the Nagpur High Court has held that an alienation made by a sole surviving coparcener cannot be disturbed by a subsequently adopted son.
16. In most of the cases, which have been referred to above, reliance is placed on the observations made in ILR 52 Mad 398: (AIR 1929 Mad 296) (M), quoted in Anant's case (A). The Bombay High Court has further relied on a passage in Anant's case (A), to be a clear authority for their view that alienations prior to adoption are not affected. That passage is :
'Keshav's right to deal with the family property as his own would not be impaired by the mere possibility of adoption.' Reliance has also been placed in most of these cases on the following observation at p. 525 (of ILR): (at p. 144 of AIR), in KrishnamurthiAyyar v. Krishnamurthi Ayyar, ILR 50 Mad 508: (AIR 1927 PC 139) (O):
'When a disposition is made inter vivos by one who has full power over property under which a portion of that property is carried away, it is clear that no rights of a son who is subsequently adopted can affect that portion which is disposed of. The same is true when the disposition is by will and the adoption is subsequently made by a widow who has been given power to adopt. For the will speaks as at the death of the testator and the property is carried away before the adoption takes place.'
Krishnamurthy's case (O) was decided by the Privy Council in 1927 and is not referred to in Anant's case (A). It is clear from the decision m Krishnamurthy's case (O), that adoption cannot have the effect of displacing a disposition already made prior to the adoption including a disposition by will. This is on the face of it contrary to the doctrine of 'relation back' which has been laid down in Anant's case (A). As both the decisions arc of equal authority the only way to reconcile them would be to treat the doctrine laid down in Anant's case (A), as confined to the case of inheritance.
17. We do not feel impressed by the argument that the Supreme Court has laid down in Shriniwas' case (P) any law directly on the question of the effect of adoption on previous alienations. No doubt, the reference to alienation made prior to the date of adoption is made in the passage relied on by the learned counsel for the appellant which has been quoted above, but the reference seems to have been made to bring out the contract between the case of an alienation by a coparcener of joint family property and of the property inherited by him from a collateral.
18. We are in respectful agreement with the view taken by this Court and other High Courts in the cases referred to above that the principle laid down in Anant's case (A) should be restricted to the case of inheritance by a coparcener and that it has no application to the case of alienation made prior to the adoption. We accordingly hold that Phulchand's adoption in the present case does not affect the disposition made by Kodulal by will, which had taken effect immediately on his death, that is before the adoption was made.
19. Coming to questions of fact, we shall first consider the question whether Kodulal had executed the will as alleged. The original will is not on record and is stated to have been lost but a certified copy of the same is filed (Ex. P-17). Roopchand (P. W. 10) has deposed that he had filed the original will in Civil Suit No. 15 of 1930 and did not get it back as it had been eliminated. The loss of the will may thus be accepted as proved.
The will was a registered document, and the original copy in the registration office was called and shown to this witness who testified that the copy in the register was the copy of the original will. The copy produced in the case is more than thirty years old but this fact can-not lead to a presumption about the genuineness of the original. All that can be presumed is that the officer granting the copy endorsed it as an authentic copy (See Basantsingh v. Brijrajsaransingh, ILR 57, All 491: (AIR 1935 PC 132) (P).
20. As the will was made prior to the Indian Succession Act 1927, the will did not require attestation compulsorily and therefore it was not necessary to prove valid attestation, nor was its execution provable by an attesting witness alone. All that was necessary to show was that the will had been executed by Kodulal. No witness has been called directly to prove this fact and we have now to see whether under the circumstances of the case, we should act on the assumption that the will was executed.
21. We may here mention that in Girnarchand's case Phulchand has admitted the genuineness of the will executed by Kodulal (written statement para 2). The issue does not, therefore, arise in that case. It is only in Jhunkaribahu's case, that Phulchand has made a denial of the will and therefore the issue is material only in this case.
22. It appears from the certified copy of the will produced that Phulchand's adoptive mother Sardaran Balm was one of the attesting witnesses in the will. In Civil Suit No. 15 of 1930, Sardaran Bahu was a party as also Phulchand. It appears from the judgment (Ex. P-4) that both of them bad admitted the genuineness of the will in their pleadings in that case. Phulchand had also admitted the will in Civil Suit No. 23-A of 1950. When he was examined as D. W. 6, he found it difficult to explain his admissions in the written statement which is Ex. P7 on record. He admitted the correctness of the admission by saying, ''My statement in Ex. P7 to the effect that Kodulal executed a will on 11-6-1906 and made Sonelal and Laxmiprasad owners of -/8/- share of his property is correct.' These admissions by Phulchand can be considered against him. As laid down in Jawaharbeg v. Abdulaziz, AIR 1556 Nag 257 (Q), what a party admits to be true may reasonably be presumed to be so, unless that presumption is satisfactorily rebutted by other evidence. The qualification does not apply to this case as Phulchand has not tried to explain his admission.
23. The will was duly registered. There is an endorsement on it by the sub-registrar that its execution was admitted by Kodulal. This 13 an act performed by him in official capacity and it should be presumed that he would not make such an endorsement unless the execution was admitted before him by the testator. The will is about 50 years old, and has been acted upon by the parties. It was also admitted by Sardaranbahu and Phulchand in 1930 and later by Phulchand in the connected suit in 1950. It is for the first time that the denial comes from Phulchand in 1954. Under the circumstances, execution of the will by Kodulal must be presumed. We hold accordingly that the will in question was duly executed by him.
24. We shall now take up the question whether the family was joint at the time of Chhuttulal's death in 1905 or whether a disruption of the joint family had already taken place. If the family was joint, then whole property would pass to Kodulal as the sole surviving coparcener. Otherwise, Kodulal would get only half a share, and the other half would go to Chhuttulal's heirs. The power of Kodulal to dispose of the property will thus be affected by the finding on this issue.
25. At the outset it is pertinent to note that under Hindu Law, a disruption of the joint Hindu family takes place as soon as there is an unequivocal declaration by any member to separate. From that moment, the shares of the coparceners become defined and the incidence of survivorship ceases. For a disruption of the family in this sense, it is not necessary that the property should be divided by metes and bounds. Even if there is no such division, the parties would hold the property as tenants-in-common. The evidence on record has to be appreciated in the light of this principle. (See Mt. Girja Bai v. Sadashiv, 12 Nag LR 113 : (AIR 1916 PC 104) (R) and Mt. Anurago Kuer v. Darshan Raut, AIR 1938 PC 65 (S) .
26. The oral evidence adduced by the parties is not of much help in this case on this point. The witnesses stated that members of the different branches used to reside in the same house and sometimes they used to have a common mess and sometimes they used to have separate mess and then would join again. This evidence would be consistent with either conclusion.
Quarrels in a family may lead to separate mess although in law the family may continue joint. Conversely the coparceners may continue joint in mess even after there has been a disruption on the declaration of any of the coparceners to separate. The evidence has to be judged as a whole and in the case of an ancient partition where direct evidence of such declaration is not possible, the conduct of the parties should be weighed to arrive at a conclusion one way or the other.
27. We shall first consider the revenue records regarding the village property. Ex. D-29 is the settlement Patta of 1888-92 in which the village is shown recorded in the names of the four brothers separately, each owning a defined one-fourth share in it. In 1903, Mst. Baribahu, the widow of one of the brothers, Nathulal, died and her share was recorded in the name of Kodulal and Chhotelal (Chhuttulal), the two surviving brothers at the time, and Mst. Ranibahu, the widow of a predeceased brother, Tikaram. Ex. 1 D 2 is the report of the patwari in this connection.
Although, copy of the mutation register is not filed, this report is not disputed. Shri R.S. Dabir relies upon it to show that this circumstance proves disruption inasmuch as the property would have otherwise passed only to the surviving male members of the family. Shri B.C. Verma, on the other hand, contends that the record must be deemed to have been made out of a formal regard to the female members in spite of the joint status of the family inasmuch as one-third of Baribahu's share is shown to have gone to the widow of Tikaram.
28. After the death of Chhuttulal in 1905, the share held by him was recorded in the name of Kodulal and Sardaranbahu alias Tejabai (Ex. 1 D 5). Thereafter, they both continued as having half share each. It is true that mutation entries are not conclusive evidence about partition, but they are certainly to be considered as relevant evidence. In AIR 1938 PC 65 (S), it has been held that partition in a Hindu family consists of defining shares, which may be proved by entries in the record of rights, such an entry being evidence of disruption.
Accordingly, we think an inference about disruption can be drawn on the basis of these revenue records which cannot reasonably be explained except on the hypothesis that there was a family partition. This incidently explains why Kodulal did not regard himself as owner of the entire property on the death of Chhuttulal and bequeathed only half of the property to his own relations, and the other, to those of his brother.
29. The above conclusion is also supported by the conduct of the parties in dealing with the properties separately. As early as 1892, Kodulal had executed a mortgage deed, Ex. 1 D-26 reciting about the four annas share in village Padwar '....which has been obtained in my share from my father's property and over which I am in possession and my name is recorded. . .' Ex. 1 D-27 is another mortgage deed executed by him in 1896 wherein he stated, '. . . .which occupancy property came in my share and over which my name is recorded without partnership of anybody..'.
The reference is to four annas share in village Parwar which is in suit. Again in 1903, Kodulal executed another mortgage deed (Ex. 1 D-28) referring to this properly as his own property. Chhotelal's (Chhuttulal) statement in the mutation case which was started after the death of Baribahu, is unambiguous (see Ex. 2 D-34 in F. A. No. 166 of 1951),
He says, 'The deceased was the brother's wife of the deponent. She expired. Her heirs are the deponents, Kodulal and Mst. Ranibahu. Partition has been affected. Therefore equivalent share be recorded in place of the name of the deceased'. This statement was made by Phulchand's adoptive father and the word 'partition' used therein has no other meaning except that there was partition in the family.
30. As against this evidence, the lower court has given weight to certain bonds which were executed jointly in the names of the brothers (Ex. P 20 to Ex. P 63). These bonds do not lead to any definite inference as joint dealings are not inconsistent with a disruption of the family in the sense in which it is understoodin Hindu Law. We have already referred to Kodulal's mortgages of his separate share. Exs. 1 D 14 to 1 D 16 are money bonds taken by Chhotelal (Chhuttulal) in his exclusive name. The brothers thus seem to have had some joint as well as some separate business of money-lending. This fact alone is not helpful and our conclusion must, as we have already said, be based on the evidence as a whole.
31. The plaintiffs in Civil Suit No. 16-A of 1951 rely upon the decision in Civil Suit No. 48 of 1914 which was brought by Tikaram's daughters for a share in the joint family property. The suit failed as it was held that the property passed by survivorship. This decision no doubt upheld the contention that the family was joint and this plea was in that case advanced on behalf of the heirs of Kodulal and Chhotelal.
The decision docs not, however, operate as res judicata between the defendants to that case as the matter was not in controversy between them. It also appears that emphasis then was laid on partition by metes and bounds. However, as the decision raises no bar of res judicata, it is open in the present case for the parties to plead and prove partition in spite of that judgment.
32. Reliance is placed by the plaintiffs on certain admissions made by Phulchand about the jointness of the family in Civil Suit No. 23-A of 1950 giving rise to First Appeal No. 166 of 1951, which has been heard along with these appeals. Phulchand's admission about jointness was not material as both the parties went to trial in that case on the assumption that Kodulal and Chhotelal were joint.
Actually, in that case Phulchand stands to gain if his contention about the retrospective effect of adoption is accepted. That explains why he did not dispute the position which was taken by the plaintiffs in that case. On this issue the pleadings of the parties are different in the two cases. The admission of Phulchand about jointness should be confined to the case in which it was made, and, in any case, as it is explained as stated above, it has little evidentiary value.
33. The learned counsel for the plaintiffs has taken us through the oral evidence which shows that the parties were residing in the suit house and had joint mess and separate mess alternately. We have considered all this evidence carefully and as we already observed it does not lead to any definite conclusion. It is the documentary evidence in the case which is decisive on this issue.
34. To sum up then, we find that the shares of the coparceners in the family were defined in the last quarter of the nineteenth century and have been treated as so separate thereafter. The shares were mutated in the names of widows which was not merely on account of sentiment but an account of their right to inherit, the separated share of their husbands. Chhuttulal's admission about partition in his statement made in 1903 is significant as also the statements of Kodulal whomortgaged his share in the family property separately.
It is true that Phulchand had pleaded that the partition took place near about the year 1902 and the evidence shows that this was much earlier. This, however, does not matter, as the fact remains that the family had disrupted. We conclude that there was partition of the family and the two brothers Kodulal and Chhuttulal were holding separately half a share in the family property. Accordingly, Chhuttulal's share did not pass to Kodulal by survivorship.
35. While on this question, we may briefly refer to the effect of our finding on the dispositions made by the will executed by Kodulul.' So far as the disposal in favour of Kodulal's widow Nonibahu and the remainder to Sonelal is concerned, the position is that Kodulal had full disposing power of his halfshare. Therefore, Girnarchand's claim in First Appeal No. 166 of 1951 is bound to succeed in whole unless, in the case of Bhaldarpura house, Phulchand had exclusive title to it.
So far as the disposal of the other half to Sardaranbahu and remainder over to the predecessor of plaintiffs in Civil Suit No. 16-A of 51 is concerned, that share passed to Chhuttulal's widow on his death as Kodulal had no right of disposal of this share by will or otherwise. The claim of these plaintiffs will therefore failon this finding.
36. This brings us to the question whether the house in Bhaldarpura was jointly held by Kodulal and Chhuttulal or whether it was the separate property of Chhuttulal. On this question, the trial court has come to contrary findings in the two suits. In Jhunkaribahu's suit, it has been found that the house was the separate property of Chhuttulal and hence Kodulal could not will away any share in it. In Girnarchand's case, the house has been found to be joint and a share has been allowed in it to him.
37. According to our finding that the share of Chhuttulal did not pass to Kodulal by survivorship and that he could, not therefore bequeath that share to Lakshmiprasad, the claim of Jhunkaribahu to the house becomes untenable and the question does not therefore arise in that case. It has to be considered with reference to Girnarchand's suit only, in which Appeal No. 166 of 1951 has been filed by Phulchand disputing the decree in respect of the house.
38. There is no evidence in Girnarchand's suit as to when and by whom the house was purchased, it is clear from the documents, Exs. 2 D 1 to 2 D 5 that taxes for this house were paid in the name of Chhuttulal in 1898 to 1901. This may be a circumstance in favour of Phulchand, but unfortunately for him, his pleadings in the case are otherwise. In para 1 of the written statement, he stated 'this much is admitted that Kodulal and Chhuttulal were brothers and that they owned house No. 195-253 and sixteen annas share in Mouza Padwar'.
Later in para 17, he stated, 'At one time, however, it (the house) seems to have been held in common by Kodulal and Chhuttulal'. It is clear from these pleadings that the fact of the house being owned jointly by Kodulal and Chhuttulal was not disputed. The only ground on which the claim was resisted was adverse possession for over 12 years. On these pleadings, we do not think that it is open to the plaintiff to contend that Chhuttulal owned the house exclusively.
39. As to the contention that Phulchand held the house adversely to the exclusion of other parties, we need refer to only his own statement as D.W. 1. He admits that even from before 1921, Nonibahu and Rajrani have been occupying the upper storey of the house and they used to keep their portions locked whenever they went out to other places. They were never asked to vacate and paid no rent for occupation. In fact, they had occupied the house much before Phulchand was adopted in 1921. He does not therefore know and in what right they came in possession.
40. Shri R.S. Dabir argues that nothing turns on such possession as it must be deemedto be permissive only. That may be so under certain circumstances. Under others, it may be in assertion of a right. When such a right exists, the presumption would be that the possession was related to the right. In the present case, they had not only a right of residence but also of ownership in the house and it must therefore be presumed that they continued in possession by virtue of it.
41. The question of the nature of possession depends upon the intention of the parties and the overt acts which follow. Ex. 1 D6 is a notice dated 6th April, 1935 which was given by Phulchand (he is also called Manikchand) to Rupchand who was Nonibahu's adopted son and was occupying the house. Nonibahu was Kodulal's widow to whom the interest of Kodulal had passed. In the notice, this is what Phulchand stated :
'I am in possession of one part of the house and one part is in possession of Mst. Rajrani widow of Sonelal on behalf of yourself. No partition of the house has taken place yet . . . .hence the betterment of yourself and myself lies in this only that after a due partition of the house we should enter into possession of our respective shares.. . .'
Then there is a request for having the partition made through arbitrators and a threat that otherwise he would file a suit to compel partition. Nothing could be clearer to show that the claim to half a share of the other party was admitted along with the nature of possession of either party. He was given an opportunity to explain this statement and all that fee said was that it was a mistake (para 7 of the statement as D.W. 1). He says 'I did so without consulting anyone and it was my own construction'. This is all the more reason to conclude that it correctly represented his mental attitude regarding the nature of possession.
42. Shri R.S. Dabir, however, sought escape from the effect of the admissions in the notice Ex. 1 D6 on the ground that it was addressed to Rupchand. It may be noted that Rupchand was claiming as an adopted son of Kodulal while Girnarchand was claiming the same share as a representative of the devisee under Kodulal's will. However, both were claiming the same share which was held by Nonibahu during her lifetime.
The material question is regarding the nature of possession of Nonibahu and after her death that of Rajrani, the adoptive mother of Girnarchand. The admission in Ex. 1 D 6 relates to the nature of Rajrani's possession and it is clear from the notice that Phulchand claimed to be in possession of half the house only in his own right. There is, therefore, no substance in this contention.
43. Under the circumstances, we must confirm the finding that the house in Bhaldarpura was not the exclusive property of Phulchand and that Girnarchand is entitled to half share in it.
44. In the result:--
(i) First Appeal No. 80 of 1954 is dismissed and First Appeal No. 110 of 1954 is allowed. The decree in Civil Suit No. 16-A of 1951 is accordingly set aside, and instead a decree dismissing the suit shall be drawn up. The costs in the suit and two appeals arising out of it may be borne by the appellants Jhunkaribahu and Ramdas.
(ii) First Appeal No. 166 of 1951 is dismissed with costs.