1. This appeal is directed against the judgment dated 22-1-1952 of the Court of the Additional District Judge, Indore, in Civil Suit No. 5 of 1949. The suit was filed by respondents 1 to 4 against the appellants, who were defendants 1 and 2, and respondents 5 to 8, who were defendants 3 to 6.
2. The relationship between the parties is shown by the following genealogical tree:
ABDUL REHMAN KHAN
| | |
Abdul Karim Khan Azizur Rehman Khan Sirajur Rehman Khan=
| | Widow, Mujtabal Begum
| ____________|________________________ (deft. 1)
| | | | | and
| M.R. Khan S.R. Khan R.R. Khan R.R. Khan daughter, Solat Jahan
| (plff. 1) (plff. 2) (plff. 3) (plff. 4) (deft. 2)
| | | |
A.H. Khan H.B. Khan F.J. Khan M.J. Khan
(deft. 3) (deft. 4) (deft. 5) (deft. 6)
The dispute relates to the property of Sirajur Rehman Khan, who died on 5-12-1946. Appellant No. 1 Mujtabai Begum is his widow and appellant No. 2 Solat Jehan is his daughter. The four plaintiffs (respondents 1 to 4) arc the sons of one brother and the other defendants (respondents 5 to 8) are the sons of another brother of Sirajur Rehman Khan. The relationship between the parties is not in dispute.
3. The property in dispute is specified in Schedule A and B of the plaint as follows:
SCHEDULE A(i)Hira Mills DebenturesValued at aboutRs. 5000(ii)Postal Certificates--do--Rs. 500Rs. 5,500SCHEDULE B
(Amounts as fixed deposit in Indore Bank. Indore.) (i)Receipt No. 19091Rs.13,005Date due11-1-47 (ii)Receipt No. 19184Rs.2,380 do31-1-47 (iii)Receipt No. 19981Rs.11,317do21-9-47 (iv)Receipt No. 20,017Rs.11,165do3-10-47 (v)Receipt No. 20,043Rs.24,808do10-10-47 Total :Rs. 62,675
The first four deposits in Schedule B, as appears in the subsequent stages of the trial, were in the names of the deceased and defendant No. 3 (respondent No. 5) and the last deposit was in the names of the deceased and his daughter, defendant No. 2 (appellant No. 2). In both cases, the deposits were joint deposits in Indore Bank, Indore, payable to either of the depositors or to the survivor,
4. There is also a house at Jaora (Schedule C) left by the deceased, but it was not included in the plaint claim and need not therefore be referred to.
5. The plaintiffs claimed a partition of the properties left by Sirajur Rehman Khan and prayed for their three annas share being separated and placed in their possession. They valued their share at Rs. 13090-14-0. The plaintiffs alleged in the plaint that defendant No. 1 (appellant No. 1} and defendant No. 3 (respondent No. 5) were requested to partition the properties, but they refused to do so.
6. Defendants Nos. 1 and 2 (appellants) admitted that Shrajur Rehman Khan died on 5-12-1946, leaving the parties as heirs. They, however, addedthat the deceased left behind a son, Minajur Rehman Khan, and, therefore, the plaintiffs, who are the nephews of the deceased, were not entitled to any share, Defendant No. 1 (appellant No. 1) claimed that she was entitled to get a sum of rupees one lac from the deceased as dower and as this debt remained unpaid, she had a right of lien over the estate until the debt was paid off. Further, it was pleaded on behalf of defendant No. 2 (appellant No. 2) that all the properties mentioned in the plaint schedules had been gifted to her by the deceased and thus nothing was left to be divided.
7. Defendants 3 to 6 (respondents 5 to 8) could not be personally served. Summonses were then published and this service was deemed sufficient by the Court. They did not enter appearance and allowed the suit to proceed ex parte. It may be mentioned that these defendants reside at Gwalior and were thus non-resident foreigners at the time of the institution of the suit at Indore. An application on their behalf has been filed before us to permit them to contest the appeal, as the appellants have raised certain grounds in the memo of appeal affecting them adversely.
8. The trial Court found that the defendants 1 and 2 (appellants) failed to prove that the deceased left behind a son or that the property in dispute was gifted to defendant No. 2 (appellant No. 2) by the deceased. It was accepted that the property mentioned in the plaint was left by the deceased at Indore and was liable to partition and that the Court had jurisdiction to partition it. However, holding that all the property was in the possession of defendants 1 and 2 (appellants), the plaintiffs' (respondents 1 to 4) claim was decreed against them for the full amount.
9. It appears from the record of the case that the plaintiffs (respondents Nos. 1 to 4) had filed applications on 28-1-1947 and 29-1-1947 for a temporary injunction against the defendants (appellants and respondents Nos. 5 to 8) restraining them from withdrawing the deposits in Indore Bank. The Court allowed the applications and an injunction was issued against them and also Indore Bank. This notice was served on defendant No. 3 (respondent No. 5) at Indore on the same day at 9 p. m. which was too late.
The Indore Bank replied that the amount of thefirst four deposits had been withdrawn by defendant No, 3 (respondent No. 5) on the same day. Shri S. D. Sanghi, on behalf of defendant No. 3 (respondentNo. 5), admitted in his arguments before us that the amount of the iirst four deposits had been withdrawn by defendant No. 3 (respondent No. 5) and justified the action on the strength of the terms in the deposit receipts. The last deposit in the name of defendant No. 2 (appellant No. 2) was intact and was not withdrawn by her till the decision of the suit.
10. Before considering the contentions of the parties on the merits of the claim, we shall first consider the question of jurisdiction. Shri K. A. Chitaley, for the appellants, pointed out that the only facts mentioned in the plaint for clothing the Indore Court with jurisdiction were that some of the defendants reside at Indore and that the deposits to be divided were in Indore Bank, Indore.
He contended that the first was untrue and the second was not material to decide the question of jurisdiction. Shri Sanghi, for defendant No. 3 (respondent No. 5), stated that defendant No. 3 did not consider it proper to submit to the jurisdiction of the Court when Indore and Gwalior were independent States and contended that when the two States merged, it was incumbent on the Court to give defendant No. 3 (respondent No. 5) a notice of the suit, without which the Court had no jurisdiction to proceed against him.
He conceded that the Indore Court had jurisdiction over defendant No. 3 (respondent No. 5) after the merger, but contended that for want of notice the suit should be ordered to be resumed from the stage of pleadings and he should be given a chance to defend it.
11. Although the plaintiffs (respondents Nos. 1 to 4) stated in para 7 of the plaint that some of the defendants (appellants and respondents Nos. 5 to S) lived at Indore, it was not disputed that that was not correct. The challenge to the jurisdiction of the Indore Court cannot, therefore, be met on that ground.
12. Shri D. G. Bharucha, for the plaintiffs (respondents Nos. 1 to 4), however, met the contention of Shri Chituley on the ground that the location of the property in dispute in Indore was a part of the cause of action in a partition suit and therefore the Indore Court had jurisdiction. We agree that this is the correct position. We need only refer to the decision in Shiv Bhagwan v. Onkarrnal AIR 1952 Bom 365. The question in that case was whether the existence of movable property, which was sought to be partitioned, was a part of the cause of action and the Court had jurisdiction over the suit on account of such property being in its jurisdiction. The position was explained thus:
'it is difficult to understand, with respect to the learned Judge, how the existence of property in a partition suit is not a part of the cause of action. It is necessary for the plaintiff to allege that there is some property of which he is seeking partition. The mere fact that there was a joint family and that the plaintiff is a member of the joint family would not be sufficient to entitle him to maintain the suit. If a joint family had no property, then there would be nothing to partition, and, therefore, the averment as to the existence of property would be the averment of a necessary and material fact. This necessary and material fact would undoubtedly be a part of the cause of action'.
It is true that Section 16 of the C. P. C. deals with jurisdiction of Courts in specified suits and provides that the suit for partition of immovable property would lie where the property was situate. However, it does not follow from this that suits for partition of movable property would not lie where the property is located. As observed in the Bombay case:
'The question of location of movables does not arise from the point of view of their situs; it arises from the point of view of the cause of action'.
We have no doubt that the location of the deposits at Indore gave jurisdiction to the Indore Court to entertain the suit.
13. Shri Sanghi's contentions on the point of jurisdiction were different. Before the formation of the United States of Gwalior, Indore and Malwa on 28-5-1948, Indore and Gwalior were separate States. A resident of Gwalior was a foreigner so far as the Civil Courts at Indore were concerned. Shri Sanghi pointed out that at that time defendant No, 3 (respondent No. 5) could take advantage of the provisions in the Gwalior Civil Procedure Code which provided in Section 11 that whenever a suit was filed in Gwalior on tho basis of a judgment of a Court in any other State, the Gwalior Court would not be debarred from considering the merits of the claim on which tho foreign judgment was based.
Accordingly, it was contended that defendant No. 3 (respondent No. 5) could decide to absent himself hoping that he would get a chance to defend when the opposite party sought to enforce the decree at Gwalior. We see that that was the correct position and defendant No. 3 (respondent No. 5) could, without prejudicing any of his rights of contest later, absent himself and allow the case at Indore to proceed ex parte against him. We also agree that if he had attended, he would have submitted to the jurisdiction of the Indore Court and thus precluded himself from challenging the decision later.
14. That was the position before 28-5-1948, i.e. before the merger of States, including the States of indore and Gwalior into one unit. The administration of all these States was handed over to the Raj-pramukh. The Madhya Bharat Civil Courts Ordinance (No. 36 of 1948) continued the existing Courts and later those Courts were notified as Courts of the new State on 1-4-1949. The judge appointed to the Court took cognizance of the present suit on 15-6-1949.
Shri Sanghi contended that since it was a new Court, a notice about the proceedings should have been given to defendant No. 3 (respondent No. 5). According to him, the suit really came to be instituted in that Court on 15-6-1949 and as the Court proceeded with the case without any summons to him to answer the claim, it had no jurisdiction over him and the proceedings taken subsequently did not bind him.
15. In this connection Shri Sanghi referred to Jyotish Prokas v. Bagla Kanta, AIR 1922 Cal 274 in which referring to the essentials of jurisdiction, their Lordships quoted the following observations from Cooper v. Reynolds (1870) 10 Wallace 308; 19 Law ED 931:
'By jurisdiction over the subject-matter meant the nature of the cause of action and of the relief sought; and this js conferred by the sovereign authority which organizes the Court, and is to be sought for in the general nature of its power, or in authority specially conferred.
Jurisdiction of the person is obtained by the service of process or by the voluntary appearance of the party in the progress of the cause.
Jurisdiction of the res is obtained by a seizure under process of the Court, whereby it is held to abidee such order as the Court may make concerning it.
The power to render the decree or judgment which the Court may undertake to make in the particular case depends upon the nature and extent of the authority vested in it by law in regard to the subject matler of the cause'.
This supports his contention that jurisdiction over a person is obtained by the service of summons.
16. The effect of an omission to issue notice is elaborately discussed in Govinda Pillai v. K. L. Muthali (S) AIR 1955 Tray Co 113. In that case, an ex parte decree was first passed against three defendants, but it was set aside at the instance of one of them. The suit was heard again and was decreed against all of them for a larger sum. It was held that defendant No. 1, who was not given notice of subsequent trial, was not bound by the decree which was null and void against him. The following passage from Brown on Jurisdiction was quoted in support of the dictum:
'When service of the notice or process is made the Court acquired jurisdiction after the lapse of the, time fixed for the defendant's appearance, and if he fails his default will be entered. The Court has necessarily the power to determine the sufficiency of service. If it determines this wrongfully and enters the default prematurely, the defendant should call its attention to it and ask that the default be set aside. Hence the rule that such error is not jurisdictional.
A distinction is to be made between a case where there is no service whatever, and one which is simply defective or irregular. In the first case the Court acquires no jurisdiction and its judgment is void; in the other case, if the Court to which the process is returnable adjudges the service to be sufficient, and renders a judgment thereon, such judgment is not void, but only subject to be set aside by the Court which gave it, upon reasonable and proper application, or reversed upon appeal'.
Reference was also made to several cases decided by the Travancore-Cochin High Court, and the conclusion reached was that a decree which is passed without notice to a defendant must be regarded as no decree in the eye of law and must be disregarded. We respectfully agree with this view.
17. That, however, is not all. We have to take notice of the special law constituting Courts in Madhya Bharat after the merger. The Civil Courts Ordinance (No. 36 of 1948) under which the Courts were established in the new State provides in Section 3 as follows:
'3. -- Continuance of the existing Courts and arrangements.
(1) All courts established, powers exercised and arrangements made under the laws of any of the Covenanting States in force at the time of the commencement of this Ordinance shall continue to function and remain in force till replaced or modified by competent authority under this Ordinance.
(2) Such replacement or modification as referred to in Sub-section (1) shall not vitiate any proceedingpending in the courts thus replaced or modified. Such proceedings or cases pending in such courts shall be taken cognizance of by the respective courts established in their place and all proceedings disposed of by the Courts so replaced or modified shall be deemed to have been disposed of by the Courts established under this Ordinance'.
Sub-section (1) of this section not only provides for the continued functioning of the existing Courts but also lays down that 'all powers exercised under the laws of any of the Covenanting States shall remain in force'. This obviously means that any order passed by the Court under the existing law would continue in force. It appears, therefore, that the order of the Court passed in 1947 holding the service on defendant No. 3 (respondent No. 5) as sufficient and directing the proceedings ex parte is valid. This conclusion is further strengthened by Sub-section (2) of Section 3 that the replacement of the Court shall not 'vitiate any proceeding'. The replacement of Courts, which came about under the Ordinance on 1-4-1949, did not therefore, affect previous orders. Further, the final clause in Sub-section (2) has the same effect. The expression 'proceedings disposed of by the Courts' does not necessarily mean proceedings which have been finally disposed of and consigned to record room. It may reasonably refer to orders passed during the pendency of a suit which dispose of particular stages in the trial. Surely, it was not intended that the new Courts should start every case afresh and anything done before should be considered non-eristent.
In the subsequent Act, Madhya Bharat Civil Court Act, 1949 (No. 43 of 1949) Section 3 is similarly worded and Section 36, which deals with the earlier Ordinance, confirms the same position. Thus, we find that there is a continuity of the Courts maintained by law and validity is given to the orders passed by the earlier Courts in spite of their replacement by new Courts. In view of these provisions, we have no doubt that the order passed by the Court against defendant No. 3 (respondent No. 5) in 1947 continued valid and no fresh notice was necessary.
18. The principle that notice of proceedings must be given to a defendant is one of natural justice. It is on that view that the orders passed by the Civil Courts without notice to the defendant were considered void. However, this effect would not follow in the instant case in view of the express legislation. It would be pertinent to refer to the decision in Kiran Singh v. Chaman Paswan AIR 1954 SC 340.
After observing that it is a fundamental principle that a decree without jurisdiction is a nullity and its validity could always be challenged, their Lordships refused to apply this principle where relevant statutes provided to the contrary. The matter arose in this way. The plaintiff instituted his suit in a particular Court undervaluing his claim. He lost it and also the appeal which he preferred. He filed a second appeal in the High Court and the valuation was then corrected. On the corrected valuation the appeal before the District Judge was not tenable.
The plaintiff, therefore, contended that the decree of the District Judge was a nullity. This contention was repelled in view of the special provisions in Section 11 of the Suits Valuation Act 1887, and Section 21 of the Code of Civil Procedure. While accepting the general principle that a decree where the Court had no territorial jurisdiction would be a nullity, their Lordships laid down that if the objection was not taken at the early stage as provided in Section 21 of the Code, the decree could not be challeng-ed.
In other words, the general principle was held not to prevail against the specific provisions of law. Similarly, in the instant case, the general principle must give place to the special law which provides to the contrary and maintains the validity and continuity of the notice issued earlier.
19. In this view, we arc of the opinion that defendant No. 3 (respondent No. 5) cannot challenge the proceedings leading to the decree as invalid for want of notice. It was his duty to find out the stage of the proceedings and enter appearance. It would have been passible for the Court to set aside the earlier ex parte proceedings on his application showing that he remained absent on account of the special position of the two States before the merger and the provisions in the Gwalior Civil Procedure Code. The Court would have normally allowed such an application and he could have got the advantage of reopening the case. But he failed to do so. We must, therefore, hold that he is bound by the trial and cannot claim to take the case back to the stage of pleadings.
20. We may now pass on to the merits of the claim. The first contention of the appellants is that Minajur Rehman Khan, the alleged son of Sirajur Rehman Khan, should have been ordered to be im-pleaded as a defendant by the Court under Order 1, Rule 10, Civil Procedure Code, as a necessary party. It is true that the Court has discretion to add parties to a suit; but this power has to be exercised in exceptional cases. The plaintiff must be allowed full discretion to put his case in the manner he likes and should not be forcibly involved into controversies with persons whom he does not wish to implead. He takes the risk of not impleading a particular party. This view finds support in Vithoba v. Secretary of State AIR 1925 Nag 373. We may refer to the following passage:
'The plaintiff is the best Judge of his own interest. If he, seeks relief against a particular individual and impieads that individual as a sole defendant, it is not 'the look-out of the Court or of any other third person, to see whether somebody else must be allowed to intrude into the case as a co-defendant, against the plaintiff's will, simply because that third person represents to the Court that he is a person who would be affected by the decision'.
Reliance was, however, placed by the appellants on Razia Begum v. Sahebzadi Anwar Begum AIR 1958 SC 886, In that case, the plaintiff had sought a declaration that she was the legally wedded wife of the defendant and the applicant sought to be implead-ed as a defendant to contest the claim. The applicant claimed to be another married wife of the defendant. The prayer was granted by the trial Court and the High Court refused to interfere in revision. The Supreme Court considered the order of the trial Court correct.
The view in that particular case was based on the consideration that the declaration of the status of a party acts, more or less, in rem and affects the parties for generations to come. The relief for declaration being discretionary, the interest of persons not impleaded should be considered, and accordingly it was held that persons vitally affected by the declaration should be impleaded under Order 1, Rule 10.
In the instant case, the plea was raised by the appellants only to contest the plaintiffs' (respondents Nos. 1 to 4) right to a share. It was not even stated that Minajur Rehman Khan was a necessary party or that the suit was bad for non-joinder. It is signifi-cant that defendant No. 1 (appellant No. 1), who claims to be the mother of the minor Minajur Rehman Khan, did not apply on his behalf for impleading him. As the objection about non-joinder was not taken, no question of impleading him arose.
The finding of the lower Court that Minajur Rehman Khan is not Sirajur Rehman Khan's son does not bind Minajur Rehman Khan. We do not, there-Fore, consider it proper to remit the case to enable him to contest a finding which does not affect his rights.
21. Taking up the question whether Minajur Rehman Khan is Sirajur Rehman Khan's son, the appellants stated that he was born of defendant No. 1 (appellant No. 1) at Rampur where she was sent for delivery to her brother. The counter-case set up by the plaintiffs (respondents 1 to 4) was that Minajur Rehman Khan was really the illegitimate son of defendant No. 2 (appellant No, 2) and was born at Indore. They examined Dr. Mrs, Amy Brandon. who had attended the delivery, and adduced other evidence to show that defendant No, 2 (appellant No. 2) had delivered a male child at the Kalyanmal Nursing Home at Indore.
The trial Court did not consider this aspect of the case, as the only relevant issue before it was whether Minajur Rehman Khan was the son of the deceased. The evidence on this point has been dis-pussed at length in paragraphs 4 to 7 of the judgment. The appellants produced a copy of the Municipal Register of Births at Rampur; but the Court found that it had been tampered with, and could not also be relied upon for the reason that there was no corresponding entry in the connected register which was also required to be maintained.
The oral evidence adduced by the appellants was not found worthy of reliance. The probability that the decessed, who was ill in Indore hospital in his last days, never wrote to his wife to send the son to him and the son never came there has also been taken into consideration. In our Opinion, the finding arrived at by the trial Court that the appellants have failed to prove that the deceased left a son is well based. The shares of the parties as stated in the plaint are not, therefore, atlected.
22. The next point urged was that the plea of dower debt raised by the appellants was not put in issue and was not considered. Defendant No. 1 (appellant No. 1) did not give proper details about the dower debt and has not produced any documentary evidence. As the matter was not put in issue, we need not assess the evidence on the point. It is sufficient to observe that defendant No. 1 (appellant No. 1) is in the position of a creditor and can file a separate suit to prove her claim.
This question could be material in this suit, if she was in possession of any part of the property in dispute, over which she could claim a lien for her dower debt. But as she is not possessed of any part of that property, the matter need not be enquired into in this suit. This would not injure her interests, as the heirs who would receive the property of the deceased would be liable to contribute to the debt in proportion to their share when the existence of the dower debt is established.
23. This takes us to the most important part of the defence which is whether the deceased had gifted all his properties to defendant No. 2 (appellant No. 2). In this connection it is pertinent to note that no details about the alleged gift were given in her written statement. Nor could any details be given when the counsel for both the defendants were examined on 25-8-1947 and 28-8-1947 by the Court under Order 10, Rule 1, Civil Procedure Code. The only circumstance Shri Chitaley mentioned for defendant No. 1 (appellant No. 1) in support of the alleged gift was that the deposit was in joint names of the deceased and defendant No. 2 (appellant No. 2).
Similarly, Shri Bhalerao, for defendant No. 2 (appellant No. 2), stated that he did not know whether there was a gift deed, but only knew that the amount was in joint names in Hukumchand Mills and was later deposited in joint names in Indore Bank. His statement obviously refers to the fifth deposit and not the firs! four deposits in which defendant No. 3 (respondent No. 5) was joined as a co-depositor.
24. Shri Chitaley before us relied on some of the letters written by the deceased to prove the gift. We would refer to them in some details, as they also help to decide the alternative plea of 'advancement' raised before us. Ex. D-2-1 is a letter dated 24-2-1936 written by the deceased to defendant No. 2 (appellant No. 2), The following passages are relied upon:
'When your mother has given her 'mehr' to you, I also write my estate for you and as I am not sure that someone may take away the money from you by undue influence I appoint Abdul Hakim Khan as trustee so that all the property and money may beuseful to you and may not be misappropriated by anyone'.
There is a sentence at the end saying 'now that this money belongs to you'. Although the letter says that the gift had been made, there is nothing to show that this was done by. any other document. The letter, no doubt, shows a desire on the part of the father to make a gift, but it was written long before the deposits were made and it is difficult to hold on its basis that any gift was made.
25. The next important letter relied upon is Ex. D-2-7 which is undated. It appears from this letter that the deceased wanted to take out some deposits from Kalyanmai (Hukumchand) Mills and deposit them in Indore Bank. The deposit was in the joint names of the father and daughter and it was intended to be deposited again in joint names, For this reason, the deceased asked for signatures of the daughter on some papers. This letter must have been written in 1946 when the deposits in the Mills matured for withdrawal and were withdrawn. No intention to make a gift is expressed in this letter. At the most, it only shows that the earlier deposit in Kalyanmai (Hukumchand) Mills was in joint names and the money was intended to be deposited in the same manner in Indore Bank.
26. It appears from other letters that the father was annoyed with his daughter and his relations with her and his wife were not cordial for some years before his death, The trial Court has found this on the basis of the oral evidence also. Exhibit P-14 is a letter from the daughter to the father imploring him to give her half an hour to explain her position, as she was shocked at his annoyance. No doubt, the father wrote a reply on this letter (Ex. C-8) in which he assured her that he did not believe the rumours. However, the letter clearly shows that the relations between them were not Happy or cordial. Exhibit P-12, which is dated 9-9-(no year given), was written sometime before his death by the deceased. The following sentences are significant:
'I wanted to know if you had decided upon any place to spend the rest of your life. Write to me so that I may arrange about it in my will. You did not do well in coming to live at Jaora. The Nawab must have known about it and I do not know what he must be saying about it. There was bad name at Rampur and now there is a bad name at Jaora. .....What have you done to Mamusahebwho is responsible for all this disrepute........ -Yougo away to another place so that I may come to Jaora.......Parents the after arranging for theirchildren but what you have done is well known.. . .I have not given you any trouble; whatever is, is your own doing ......You know it and your Godknows it.'
This is quite a strong language condemning something in the deeds of the daughter which shocked the father.
27. The defendants (appellants) have examined witnesses, Aquiluddin and Mohamamd Farid Khan to prove the oral gift; but the trial Court has found their statements unreliable (para 8 of the judgment). There is no document to prove the gift. Exhibit D-2-1 was written in 1936 and does not prove any gift having been made at that time. The subsequent conduct of the deceased is inconsistent with such a gift. In Ex. P-12 he said that he would dispose of his property by a will which shows that he considered himself as its owner. Defendant No. 1 (appellant No. 1) claims her dower debt in the written statement which means that she never assigned it to defendant No. 2 (appellant No. 2)
It was, however, contended that a gift should be presumed, as the deposit receipt is in the appellants' possession. They do not say anything about this in the witness-box and do not even say that the receipts were handed over to them by Sirajur Rehman Khan. Unless the delivery of the receipt by Sirajur Rehman Khan is proved, no presumption of a gift can be drawn. The evidence on record is, therefore, insufficient to prove a gift, and we agree with the trial Court that this fact has not been proved.
28. Shri Chitaley contended that if an immediate gitt is not found proved, then the deposit in the names of the deceased and defendant No. 2 (appellant No. 2) should be treated as an 'advancement'. He relied for this contention on the joint nature of the deposit as also on the correspondence between the father and the daughter.
29. Mayne on Hindu Law and Usage (11th Edn.) discusses the question of benami transactions in the name of wife or child in paragraph 817 and states the position as follows:
'In England, art exception is made to this rule where the person in whose name the conveyance is taken or made is a child of the real owner; then tho transaction is presumed to have been made by way of advancement or gift to the child. But this presumption is rcbuttable. So too, a similar presumption is made in England where a husband purchases or transfers property in the name of his wife.
But this presumption of advancement or gift in favour of the child or wife has not been extended to Hindus and Mahommadans in India.' This is because of the widespread practice in India to make transfers benami for no obvious reason or purpose or without the slightest intention of vesting the donee with any beneficial interest therein. The burden of proving the intention of advancement is thus on the person who asserts it though 'very little evidence of intention is sufficient to turn the scale'.
30. The appellants relied upon the decision in Shambhu Nath v. Pushkar Nath, 71 Ind App 197: (AIR 1945 PC 10) in which the law as laid down in an earlier case Guran Ditta v. Ram Ditta, 55 Ind App 235: (AIR 1928 PC 172) was approved. In the earlier case, a Hindu had left behind deposits in the joint names of himself and his wife payable to either or survivor, just as in the case before us. It was held that such a deposit did not constitute a gift to the wife and that there was a resulting trust in favour of the husband in the absence of a contrary proof, there being in India no presump-tion of an advancement in favour of a wife. In the decision relied upon, their Lordships extended the principle to all properties and to all relations of the deceased.
31. It is thus clear that the contrary intention was to be shown by defendant No. 2 (appellant No. 2), who relies on the joint nature of the deposit as an advancement. The fact that in 1945 the deposit was in the joint names of the father and the daughter in Kalyanmai (Hukurnchand) Mills and it was then transferred to Indore Bank in their joint names does not take the case of the defendant any further. Earlier history of the deposit to connect it with the letter (Ex. D-2-1) is not on record and it cannot be inferred that the deposit in 1945 was in pursuance of the intention which was expressed nine years earlier in 1936. The other letter (Ex. D-2-7) written probably in 1946 Joes not show anything except that the deposit was joint.
It does not show any intention to the effect that the deposit was made as an advancement and not in accordance with the usual practice of joint deposits. On the contrary, as the relations between the father and daughter had considerably worsened there was little likelihood of his making an ad-vancement. This is further borne out by the letter (Ex. P-12) which was written a lew months prior to his death when he was ailing in the hospital.
He said hi this letter that he would make ar-rangements for the daughter by a will which shows that he arrangement for her maintenance had till then been made by him. This shows that although the deposit was in their joint names, the deceased did not intend it as an arrangement for her maintenance. Considering the evidence on record, we are unable to agree that the- fifth deposit in Indore Bank can be construed as an 'advancement'. We hold that the amount continued to form assets of the deceased available to the heirs.
32. We shall now pass on to the first four deposits which were in the names of the deceased and defendant No. 3 (respondent No. 5). The earlier history of these deposits is not on record. ShriSanghi argued that the deposits were payable to the holders or the survivor and as defendant No. 3 (respondent No. 5) was the survivor, he was within his rights in withdrawing the money from Indore Bank. According to him, no evidence has beengiven by the parties to the suit to show that the deposits belonged to the deceased at all.
The case was proceeding ex parte against this defendant and therefore the evidence of the appel-lants was enough to show that the deceased had in-terest in the deposits. There is the further fact that the name of the deceased was mentioned jointly in the deposits which raises an inference that he had an interest therein. The fact that defendant No. 3 (respondent No. 5) was all along residing in Gwalior and was a foreigner to Indore confirms this inference further, as it is unlikely that he would deposit his exclusive money at Indore and that too in the joint name of some one else. No plea on behalf of defendant No, 3 (respondent No. 5) that the money exclusively belonged to him was raised.
It does not matter if this omission was on account of his being ex parte. However, we take into consideration the fact that the deceased Sirajur Reh-man Khan and defendant No. 3 (respondent No. 5) were both salaried servants and were thus in a position to save money. In the absence of any contrary evidence, the only reasonable conclusion that can be drawn from the joint nature of the deposits is that it belonged equally to both of them. In this view, half the amount only would be the assets of the deceased available for distribution amongst the heirs.
33. Coming now to the form of the decree, we have no doubt that the trial Court has passed a personal decree against the appellants on an erroneous assumption. The reason given for passing a personal decree in paragraph 11 of the judgment is that defendants 1 and 2 (appellants) were in possession of the deposits in Indore Bank. It is not clear how the trial Court came to the conclusion. It seems that the admissions in paragraph 11 of the written statements of defendant No. I (appellant No, 1) and defendant No. 2 (appellant No. 2) have been misread.
Defendant No. 1 (appellant No. I) referred to her possession not as an actual fact but only in the context of her lien for the dower debt. Defendant No. 2 (appellant No. 2) said that the deposits in Indore Bank were in the joint names of herself and the deceased. Obviously, this statement referred only to the fifth deposit. There is nothing in the written statements to show that the appellants admitted possession of the first four de-posits which were in the name of the deceasedjointly with defendant No. 3 (respondent No. 5) and were withdrawn by the latter, if the Court accepted that these four deposits formed the assets of the deceased, the decree should have been passed against the two sets of the defendants in proportion to the money in their respective hands. A personal decree against the appellants alone couid not be passed at all.
34. In the light of the discussion above, we find that the appellants were in possession of properties worth Rs. 5,500/- as mentioned in Schedulee A of the plaint and Rs. 24,808/-, the amount of the fifth deposit in Indore Bank. Out of the assets of the deceased, defendant No. 3 (respondent No. 5) holds half the amount of the first four deposits, which conies to Rs. 18,933/-. The total assets thus come to Rs. 49,241/- only. The plaintiffs' (respondents Nos. 1 to 4) share thereof comes to Rs. 9231/- and the appellants' share comes to Rs. 30,773/-.
35. Shri Chitaley has suggested that the parties should be asked to produce the amounts in Court lor distribution. We do not consider this necessary, as the rights of the parties can be adjusted by calculation according to their shares.
36. During the course of the arguments, it was admitted by Shri Bharucha, for the plaintiffs (respondents 1 to 4), that they have received the amount decreed in their favour from the appellants by attaching the deposit which stood in the joint names of the deceased and defendant No. 2 (appellant No 2) in Indore Bank. As the appellants are not liable for paying anything personally to the plaintiffs (respondents 1 to 4), the amount received by them shall have to be restored to the appellants. The appellants shall be entitled to apply for restitution of the amount wrongly realized from them under the decree of the trial Court.
37. To sum up, the plaintiffs (respondents Nos. 1 to 4) arc entitled to receive Rs. 9234/- from defendant No 3 (respondent No. 5). Defendants I and 2 (appellants) are entitled to Rs. 30,770/- They are thus entitled to Rs. 462/- from defendant No 3 (respondent No. 5), We do not consider it necessary to work out the rights of defendants 4 to 6 (respondents 6 to 8), who did not appear at any stage of the suit.
38. In the result, the appeal is allowed and the decree of the trial Court is set aside Instead it is ordered that a decree he drawn up as below:
(i) Defendant No. 3 (respondent No. 5) do payto the plaintiffs (respondents 1 to 4) a sum of Rs. 9231/-.
(ii) Defendant No. 3 (respondent No. 5) pay to defendants 1 and 2 (appellant I) a sum of Rs 462/-only.
(iii) Costs of the appeal incurred by the appellants shall be borne easily by the two sots of respondents, i.e., respondents 1 to 4 and respondents 5 to 8.
The costs of the trial Court shall be borne as incurred.