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Chandrasekhar Praharaj and ors. Vs. Pitambari Dibya - Court Judgment

LegalCrystal Citation
CourtOrissa High Court
Decided On
Case NumberFirst Appeal No. 11 of 1947
Reported inAIR1953Ori315
ActsEvidence Act, 1872 - Sections 1, 101 to 103 and 114; Hindu Law; Transfer of Property Act, 1882 - Sections 54; Code of Civil Procedure (CPC) , 1908 - Order 6, Rule 17 - Order 41, Rule 1
AppellantChandrasekhar Praharaj and ors.
RespondentPitambari Dibya
Appellant AdvocateC.M. Acharya, Adv.
Respondent AdvocateH. Mohapatra, Adv.
DispositionAppeal allowed
Cases ReferredNisa v. Faiz
- motor vehicles act, 1988 [c.a. no. 59/1988]section 173(1) proviso; [d. biswas, amitava roy & i.a.ansari, jj] appeal without statutory deposit but within limitation/or extended period of limitation maintainability - held, if the provision of a statute speaks of entertainment of appeal, it denotes that the appeal cannot be admitted to consideration unless other requirements are complied with. the provision of sub-section (1) of section 173 permits filing of an appeal against an award within 90 days with a rider in the first proviso that such appeal filed cannot be entertained unless the statutory deposit is made. the period of limitation is applicable only to the filing of the appeal and not to the deposit to be made. it, therefore, appears that an appeal filed under section 173 cannot.....panigrahi, j. 1. the litigation giving rise to this appeal relates to two items of house property situated in the bhasha kosha lane of cuttack town, and to some movables. plaintiff no. 1 is the son of the late rai bahadur gopal chandra praharaj (hereinafter referred to as praharaj) the compiler of the purna chandra bhasha kosha and a leading lawyer of the cuttack bar. plaintiff no. 1 and his two sons plaintiffs nos. 2 and 3, have jointly sued for a declaration of their title to, and for the recovery of possession of, the houses described in schedules a and b attached to the plaint. these houses constitute one contiguous block and lie within one compound. schedule c gives a list of the movables belonging to praharaj and left by him at the time of his death, in the disputed house and are.....

Panigrahi, J.

1. The litigation giving rise to this appeal relates to two items of house property situated in the Bhasha Kosha Lane of Cuttack town, and to some movables. Plaintiff No. 1 is the son of the late Rai Bahadur Gopal Chandra Praharaj (hereinafter referred to as Praharaj) the compiler of the Purna Chandra Bhasha Kosha and a leading lawyer of the Cuttack Bar. Plaintiff No. 1 and his two sons plaintiffs Nos. 2 and 3, have jointly sued for a declaration of their title to, and for the recovery of possession of, the houses described in schedules A and B attached to the plaint. These houses constitute one contiguous block and lie within one compound. Schedule C gives a list of the movables belonging to Praharaj and left by him at the time of his death, in the disputed house and are now in the possession of the defendant. The defendant, Pitambari, is the younger sister of plaintiff No. 1's mother, Muktamani and she was living with Praharaj (father of the first plff.) in his house, it is alleged, as his mistress, from the year 1930 till 1945, when he died of poisoning. The defendant claims title to the house described in schedule A on the strength of a sale deed executed by Praharaj on 29th Feb., 1936 for Rs. 15,500/-/- and to the properties in schedule B, by a sale deed executed by him on 17-2-42 for Rs. 3800/-/- The present suit was instituted two and half months after the death of Praharaj, in which the plaintiffs claimed the disputed properties as survivors of the deceased.

2. The plaintiffs specific case is that the suit houses were the joint family properties of the plaintiffs and that the sale deeds are absolutely devoid of consideration. In paragraph 4 of the plaint it is alleged that the property described in schedule A was acquired in 1904with the aid of joint family funds, in the name of Praharaj who was then a prominent, as well as the managing, member of the family.

It is also alleged alternatively that his earnings if any were thrown into the common fund and that the suit properties were acquired out of the common fund. The property described in Schedule B was purchased in the year 1907 in the name of the late G. N. Choudhury, the family lawyer, at a Court auction. It is said that the purchase money was paid from joint family funds and that the suit property was thrown into the common stock and was blended with other joint family properties. In 1908, G. N. Choudhury executed a deed of relinquish-ment in the name of Muktamoni, mother of plaintiff No. 1 relinquishing his right to the suit properties, but it is claimed that the property remained joint family property, though it stood in the name of the mother of plaintiff No. 1. The plaintiffs, as the surviving members of the co-parcenary are, it is claimed, entitled to the suit properties.

It is further alleged that Praharaj executed fraudulent, collusive and nominal deeds of sale in favour of the defendant on account of his illicit connection with her and owing to ill feelings between him on the one hand and plaintiff No. 1 and his mother Muktamoni, on the other. The motive for the alienations is said to be to deprive the plaintiffs of their just rights to the property. The death of Praharaj took place on 16-5-1945 under very unfortunate and suspicious circumstances. The Chemical Examiner's report was that his death was caused by poisoning at a time when he was living with the defendant in the suit-houses. The defendant was arrested by the Police on 7-6-1945 and was committed to the Sessions Court to stand her trial, but was ultimately acquitted on 8-2-1946. The present suit was filed on 30-7-1945 when she was in jail custody, for a declaration that the plaintiffs are the owners of the properties mentioned in schedules A, B and C, for confirmation of possession thereof, or, in the alternative, for recovery of possession of those properties.

3. The defendant, in her written statement, alleged that Praharaj had been appointed guardian of her properties by the District Judge, Cuttack, during her minority and that later on she was associated with the deceased in the compilation of the Purna Chandra Bhasha Kosha. She averred that the suit properties were the self-acquisitions of Praharaj and that he transferred them to the defendant after receiving full consideration money for the same. Paragraph 8 of the written statement says :

'The vendor was in need of money to repay the debts and to meet his expenses. For this he had sold the properties to the defendant on receiving full consideration from the defendant out of her own money.'

She also claims the movable properties that were in the disputed house.

4. On these pleadings the learned Subordinate Judge who tried the suit in the first instance framed seven issues. But the principal issues on which the decision of the dispute will depend are. :

(i) Issue No. 2 : 'Were the disputed properties the self-acquired properties of Rai Bahadur Gopal Chandra Praharaj' and

(ii) Issue No 3 : 'Are the kabalas in favour of the defendant valid and for consideration?'

The learned Subordinate Judge held, on issue No. 2, that the properties were the self-acquisitions of Praharaj and on issue No. 3 he held that neither of the two sale deeds is supported by consideration. He, however, upheld the transfers as he held that the nonpayment of consideration did not prevent transfer of title to the defendant by the sale deeds. The title of the defendant to the suit houses was, accordingly, upheld and the plaintiffs' claim to them was dismissed. The plaintiffs were, however, granted a decree for possession of schedule C properties or their equivalent in money.

5. The two points that have been debated before us are :

1. Whether the houses purchased by Praharaj constituted his self-acquisitions or were the joint family properties belonging to the plaintiffs and Praharaj; and

2. Whether the sale deeds in favour of the defendant are valid and binding upon theplaintiffs.

The contention is that these deeds are not supported by consideration and that there was no intention to transfer title expect on receipt of consideration. If it be held that the suit properties formed part of the joint family property the plaintiffs would be entitled to a decree for possession as the vendor had no title to convey any part of the co-parcenary property, without the consent of the other coparceners. It is also urged, in the alternative, that even if it be held to be the self-acquired property of the vendor, the sale deeds would not be operative as the intention of the transferor was not to transfer title, expect on receipt of consideration.

6. The admitted facts are that Praharaj belonged to a wealthy and influential family owning considerable immovable properties and having money-lending business. Praharaj was the eldest son of Narasingha who belonged to the senior branch of the joint family consisting of himself and his second cousin Kulamoni. This family, admittedly, consisted of the following members as per the genealogy given below :



| |

Srikar Haladhar

| |

Bhagirathi Damodar

| |

Narasingha Kulamoni

(died September, 1914) (died in 1877)

| _________|_________

| | |

| Udaynath Abhimanyu

| (married Fakir Dibya)

| died on 19.8.1915


| | | | |

Gopal Udayanath Banchchanidhi Batakrishna Raja-

(adopted to Kishore


Praharaj took his law degree in 1902 and got himself enrolled as an Advocate of the Cuttack Bar sometime in the year 1903, as will appear from the entry in Ext. 4, the Register of Pleaders kept in the Court of the District Judge. When actually he joined the Bar does not appear from the document but P. W. 3, his clerk says that he started practice from 9-6-1903. On 20-6-1904, he purchased the property described in schedule A consisting of two pucca rooms and three thatched rooms together with a latrine, a well, and some dilapidated rooms by Ext. Q-3, for Rs. 950/-/-, from one Mahaboob Ali Khan and others. This document describes the occupation of Praharaj as Vakil and Zamindar, etc. etc. The property was then subject to a mortgage in favour of one Durga Prasanna Das Gupta for the sum of Rs. 300/-. On 23-6-1904, Praharaj executed a hand-note in favour of the mortgagee and the mortgage-deed was returned as fully discharged and on 7-7-1904 Mahaboob Ali Khan the vendor was paid the balance and he passed a receipt (Ext. K-4) acknowledging receipt of the entire amount of consideration for the sale. No evidence has been adduced by either side to show whence the purchase money came and there is an utter lack of evidence, also on the side of the defendant, to show that Praharaj was making any income from his profession as a Vakil.

7. Plaintiffs examined P. Ws. 2 and 3 to explain how the property was acquired with the aid of family funds. Their evidence is to the effect that the family was possessed of considerable properties at the time and that there was a nucleus with the aid of which the purchase could have been made. Two account books and some handnotes and diaries maintained by Praharaj have been filed by the defendant in support of her case that the acquisition was made and the cost of putting up new structures later was met by Praharaj himself. The account books exhibited as Exts. U and U-1 contain almost a complete account of the expenses incurred for putting up the new structures and additions to the house purchased from Mahaboob Ali. They also contain the daily household expenses incurred by Praharaj during the years 1906 and 1907. The diaries (Ext. B series) maintained by Praharaj relate to a later period and have no bearing on this aspect of the case. The hand-notes executed by Praharaj during this period are Exts. K-5, dated 15-8-1905, K-1 dated 24-10-1906 and K and K-2 of the year 1907. Ext. U contains entries from 17-12-1905 to 11-10-1906 and Ext. U-l commences from 12-10-1906, the last entry being of 30-11-1907. Learned counsel for either party had made free use of the entries and relied upon particular entries as supporting his point of view.

Counsel for the respondent contends that these books would show that the entire cost of the additions to the new structures was met by Praharaj and that it does not matter whether the money was borrowed from others or from his father. Learned counsel for the appellants, however, says that he can take advantage of such entries as suit his case and use them for his purposes to show that Praharaj took the aid of the joint family properties at least sometimes. The learned Subordinate Judge also appears to have proceeded on that basis and refers to particular entries here and there in deciding the merits of the rival contentions. It appears to me that this is not the proper use to be made of these account books. All the entries have to be taken together and an inference which is consistent with the surrounding circumstances and the probabilities had to be drawn in deciding whether the cost was met by Praharaj, exclusively from his funds, or whether it was met by the joint family funds be it partly. I there-fore took the trouble of making an abstract of all the. relevant credit and debit entries and placed them before counsel so that their contentions may be tested in the light of these entries. I propose to refer to such entries as would indicate the source of money that came into Praharaj's hands and the manner in which it was spent.

Ext. U is partly in the handwriting of some other person, presumably a clerk of his estate. The entries up to 9-3-1906 relate to current household expenses incurred for running the day-to-day expenses of the family at Cuttack. The foundation stone was laid on 27-7-1906 and it would, therefore, be convenient to take up the entries between these two dates and discuss their bearing separately. Praharaj moved into the new house on 7-2-1907 when the construction was completed. I shall take up the entries made subsequent to the laying of the foundation stone and up to the completion of the house as (relating to?) the second period and examine their significance. I would also refer to the findings of the learned Subordinate Judge on the contentions raised by either party up to the date of occupation of the house and record my view of the same.

8. The book, Ext. U opens with first entry dated 17-12-1905 and a sum of Rs. 274-13-6 is shown as the amount on hand. Out of this amount, the daily expenses are met, but there is no entry on the credit side to show where his money came from. The opening balance may have come from the family or from the balance of the money borrowed on 15-8-1905 from Joyram Das under the handnote, Ext. K-5. This handnote merged in another hand-note, Ext. K-l executed by Praharaj on 24-10-1906 for Rs. 900/-/- in favour of the same creditor. This latter handnote, again, was discharged by Ext. K, dated 27-8-1907, a third handnote executed in favour of the same creditor by Praharaj and his father. Praharaj wrote the entries himself from 10-3-1906. The earlier entries up to 9-3-1906 appear to have been made by some clerk attached to his father's zamindari office as no suggestion was made to P. W. 3, the Pleader's clerk attached to the office of Praharaj that they were made by him. Both the account books, Exts. U and U-l were produced long after the trial of the suit commenced and marked as exhibits as they were more than 30 years old. The defendant's evidence was closed on 18-11-1946, but she was recalled on 10-12-1946, and cross-examined after the two account-books were admitted in evidence. D. W. 1 was recalled the next day and the handwriting of Praharaj in Exts U, U-l and T was proved. The handwriting of the entries up to 9-3-1906 was not separately proved and they have all been assumed to be genuine by both the parties. In these circumstances the plaintiffs justly complain that they have had no chance of explaining the entries in these documents on account of their production at that late stage.

9. It appears from the entries of this period that Praharaj was living with his brother, Bata, and his own children, and that he was maintaining a horse and a coach, though he was living in a rented house. (His Lordship considered the entries and proceeded :)

10. All the same there is clear evidence that he was utilising family funds. (His Lord-ship considered some more entries and continued :) It is, therefore, fair to presume thatall these expenses were met from the family funds as Praharaj had no income of his own, admittedly, during this period. There is no direct proof of how he paid the balance of the purchase money to Mahaboob Ali on 7-7-1904. But an entry dated 22-7-1907 in Ext. U-1 shows that he discharged a handnote dated 5-7-1904 executed in favour of one Krushna Palit and paid Rs. 100/- towards the principal and Rs. 36/- towards interest. There is no evidence of any connection of this loan with the payment of purchase money to Mahaboob.This handnote, for some reason or other has not been produced and the presumption would be that it does not support the defendant's case. Otherwise, the handnote and the other evidence of the loan should have been forthcoming. The mortgage executed in favour of Durga Prasanna Dasgupta and the pronote executed in his favour on 23-6-1904, have been produced by the defendant. If there was any other handnote executed by Praharaj and subsequently discharged by him, it is reasonable to expect that that also would have been produced. It is not likely that he borrowed, or could have borrowed, a heavy sum at the time as he was a stranger to Cuttack and had just set up practice. I am, therefore, inclined to hold that the balance of purchase money paid to Mahaboob Ali may have come from out of family funds of which, however, there is no direct evidence.

11. The house purchased from Mahaboob Ali was in a dilapidated condition and was unfit for habitation. Praharaj, therefore, undertook extensive repairs and made some additions to the house. (His Lordship considered the relevant entries relating to the expenses in this matter and proceeded :) Analysing these entries of 1906 upto the date of the foundation stone, it is clear that he was getting bricks from Gopalpur and using the labour of the tenants who were carrying bricks for him. He also received Rs. 500/- from his father and a sum of Rs. 750/- came into his hands on 10-7-1906 from an unidentified source. In the absence of any evidence that it represented his income I would hold that this money came either from his father or from some other family source. This is all the evidence relating to the expenses incurred upto 27-7-1906 the day when the foundation stone was laid and regular construction started.

11a. Praharaj occupied the new house on the 7-2-1907 and it may be presumed that he occupied it only after the construction had been completed. What remained to be done thereafter' was petty work such as plastering and payment for work already done. It would, therefore, be necessary to examine the contributions received by Praharaj from the family assets from 27th July 1906 to this date. (After referring to the appraisement by the subordinate Judge of the entries and commenting up-on it his Lordshin proceeded :) In any case the evidence is far too insufficient to justify any inference in favour of self-acquisition.

12-17. (His Lordship went through the oral evidence and other entries in the books and other documents and proceeded :)

18. The learned Subordinate Judge in discussing this part of the case was satisfied that there was a sufficient nucleus of joint family property to provide funds for the A schedule site, the cost of which was only Rs. 950/-. But he also held that Praharaj was making some income, however meagre, from the profession in 1906, and that would not exclude the possibility of his having acquired this property from out of his separate earnings. (After considering the evidence his Lordship continued :) I am unable to agree with the learned Judge's conclusion that the 'meagre income from the profession would not exclude the possibility ot his acquiring this property out of his own separate earnings, however small because the consideration for the purchase is only Rs. 950/-'. It is unfortunate that the learned Subordinate Judge overlooked the fact that the purchase of the house was made in 1904 and not in 1906. As I have already stated there is no evidence at all to show that Praharaj was making any income in 1904 or in 1905 to justify the inference that the purchase of the house was made with his own funds. The learned Judge proceeded on the assumption that the plaintiff should have proved that the purchase of Schedule A was actually made with joint family funds. In view of his findings that the family was possessed of adequate nucleus the onus was wrongly cast on the plaintiffs to show further that the purchase was actually made with joint funds. (His Lordship further considered the findings of the lower court and the evidence on which they were based and proceeded :) The learned Judge appears to have made another erroneous assumption that the Rai Bahadur was making some income from his profession in 1904 and that he could have paid the balance of Rs. 575/- towards the purchase money.

19-21. The plaintiffs' case was that Praharaj was managing the properties in the vicinity of Cultack ever since he came to Cuttack and settled down to practise. (His Lordship further discussed the evidence and proceeded :) I would, accordingly, hold that while, on the one hand, the family was possessed of considerable properties which could form the nucleus for the purchase of the house described in Schedule A, there is no evidence on the other, that the purchaser was capable of contributing anything towards the purchase money. It would not, therefore, be an unnatural presumption to make that the purchase was made with the aid of joint family funds and that the defendant has failed to discharge the onus of proving that it was the self-acquisition ot Praharaj.

22. It is not necessary for the plaintiffs to establish that the properties were acquired with family funds. All that is necessary to be proved, when there is no evidence on either side, is that there was nucleus with which the properties could have been acquired. But apart from onus, the plaintiffs have succeeded in proving from the entries in the accounts kept by Praharaj himself that, on different occasions he was taking money from his father, was collecting debts due to the family, withdrawing deposits from the Treasury on behalf of the family, receiving lease amounts from the lessees and using the family property for sand and laying of bricks required for construction of the house. Unfortunately, the judgment of the lower Court is vitiated by errors of record and a certain amount of confusion has crept into the judgment. The learned Subordinate Judge was in error in thinking that the plaintiffs should have proved that the cost of construction was actually met by the family. Such evidence as there is in the case is sufficient to negative the contention of the defendant that it was separate property of Praharaj. P. W. 2 says that besides money labour was also supplied by the father of Praharaj and there is some indication in support of that statement in the account books.

23-30. I shall now consider the evidence relating to the purchase of schedule B properties. (His Lordship reviewed the evidence on this point and continued :)

31. On a review of the evidence discussed so far I hold that there was ample joint family nucleus with which the A schedule property could have been purchased in 1904, that part of the consideration money has been proved to have come from the compenstaion money paid by Government as a result of the acquisition of the family house at Cuttack & part of it came from lease amount, and that there is an utter economy of material to justify the inference that Praharaj had any resources of his own which could have contributed to the purchase of the house. The cost of reparis and additions to schedule A house was met mostly from joint family funds & by loans contracted by Praharaj which were later discharged from joint family funds. The income that Praharaj made as receiver of Darpan Estate was earned with the aid of joint family funds inasmuch as the family pledged its properties as. security for Praharaj. There is no tangible evidence of any other income having been made by Praharaj till the extensions were completed. It is also satisfactorily established that Praharaj got all the sand and bricks necessary for the construction from the joint family properties besides getting free labour supplied by his father.

With regard to Schedule B properties I am satisfied that the bulk of the consideration money was paid by Narasingha, father of Praharaj and that it was a benami purchase made for the benefit of the family. I am not satisfied that the loans contracted for raising the purchase-money were discharged by Praharaj. On the other hand, it is clear from the evidence that the debt due to Ram Bux was partly discharged from joint family funds. I am also satisfied that the suit properties were allotted to the share of Praharaj at the family partition in 1916 and that the papers relating to that partition remained with Praharaj.

32. It is unnecessary to load this judgment with citations of authorities bearing on the point. A number of cases have been cited before us in support of the respective contentions as to wherher in the circumstances of this case the suit properties should be held to be ancestral or self-acquired. The doctrine of self-acquisition is stated by Yajnavalkya as follows :

'Whatever is acquired by the coparcener himself without detriment to the father's estate, as a present from a friend, or gift at nuptials, does not appertain to the co-heirs'.

The test, therefore, is whether these properties were acquired without detriment to the father's estate. If the acquisitions were made with the aid of the joint estate, it would become part of the joint family property. Even if it be proved that the acquirer contributed to the acquisition by his exertions he cannot derive any benefit and retain it for himself whatever may have been his personal exertions. The bur-den of proving that any particular property is joint family property is, of course, in the first instance, upon the person who claims it as coparcenary property. But where the possession of adequate nucleus of joint family property is either admitted or proved, an acquisition made by a member of the family is presumed to be joint family property provided the joint family property is such that with its aid the property in question could have been acquired. If the existence of an adequate nucleus is shown the onus shifts on to the person who claims the property as self-acquired, affirmatively to make out that the property was acquired without any aid from the family estate. -- 'Lal Bahadur v. Kanhai Lal', 34 Ind App 65 (A). It is also well settled that a purchase made with money borrowed on the security of the common property belongs to the joint family the members of which would be jointly liable for the debt as the detriment to the common property is obvious. Even where it is proved that a coparce- ner takes a loan from the joint family funds and acquires property, that property would vest in the family and not in the acquirer. The proper inference to be drawn in a particular case will depend upon all the circumstances of the case and not merely upon the title deeds or their custody.

In 'Lal Bahadur's case (A)' there was no evidence that Durga Prasad and bis brothers were making any income at the time of their father's death. The properties purchased soon after their father's death was held to be joint family property and their Lordships held

'It is tolerably clear that the money for thesepurchases must have been provided from funds left by their father'.

It was proved that considerable nucleus of an ancestral property was in the hands of Durga Prasad after the partition though later he made substantial income and retired on a pension of Rs.4000/- a year and was in a position to save a far portion of his income. But as there was a nucleus of ancestral property in his hands, the onus was laid on the respondent to prove-that the property acquired subsequently was his separate estate. He did not keep account of his income separately and did not discriminate between the sources of his income. It was held by their Lordships in those circumstances that that was strong evidence that there was but common stock of the whole family into which each voluntarily threw what might otherwise have claimed to have been self-acquired, and that the property purchased by or with the assistance of joint family funds was joint pro-perty and not o any particular member of it.

In --'Parbati Dasi v. Baikuntha Nath' 19 Cal. L. J. 129 (B) some properties had been purchased in the name of one Rup Charan during the lifetime of his father Raghunath. The finding was that there was no evidence that Rup Charan, father of the plaintiff, had any separate funds, or that the properties in dispute were purchase with the money belonging to him. Their Lordships observed :

'In the absence of such evidence the presumption is clear and decisive that they were acquired by the father in the name of the son, and that they were not the self-acquired properties of Hup Charan'.

On the other side of the line is a case reported in --'Appalaswami v. Suryanarayana Murti' AIR 1947 P. C. 189, at. P. 192 (C). In that case their Lordships held :

'The evidence establishes that the property acquired by the appellant under Ext. A is substantially intact, and has been kept distinct. The income derived from the property and the small sum derived from the sale of a part of it have been properly applied towards the expenses of the family and there is no evidence, from which it can be held that the nucleus of joint family property assisted the appellant in the acquisition of the properties specified in the schedule to the written statement.'

If, therefore, no separate accounts for receipts and expenditure are maintained to show how much was taken from the joint family and how much was the separate income of the acquirer, or if the general expenditure was provided from the same source, an inference or intention to surrender the separate right to joint family may be drawn. In what cases such inference is to be drawn will, of course, depend upon the peculiar circumstances of the case.

32a. These are the principles which have been again laid down by text-book writers and in the reported cases. In --'BabaBhai v. Ujamlal', AIR 1937 Bom 446 (D) Beaumont C. J. held that the nucleus of the joint family necessary to give rise to the presumption must be family property from which the purchase money for the property in suit might have been derived wholly, or, at any rate, in considerable part. In-- 'C. Sankarnarayana v. Tangaratna', AIR 1930 Mad 662 (E) Anantakrishna Ayyar J. formulated the rule in very guarded language. His Lordship said :

'If having regard to the nature of the income from the admitted joint family property or otherwise the same could not have possibly helped in or led to the acquisition of the subsequent property, then there is no presumption that the subsequent property is joint family property'.

In -- 'Vythianatha Iyer v. Varadaraja Iyer', AIR 1938 Mad 841 (F), it was held that the ancestral nucleus must be shown to be of such substantial value that it might well have contributed to the acquisition of the property in question.

The learned counsel for the respondent, however, laid great stress on a judgment reported in -- 'Amrita Lal v. Surathlal', AIR 1942 Cal 553 (G), in which Pal J. reviewing these authorities said

'I respectfully agree with the views expressed in cases referred to above and, in my judgment, in order to raise the presumption that the acquired property is joint family property not only should the nucleus be established to be sufficient for the acquisition of the property, but it should also be established that it was available to the acquirer.'

In that case the first Court of appeal held that there was never any ejmali fund created by contribution from all the cosharers and that there was no nuclous of any joint funds sufficient for acquisition of the disputed property. It was also found that the income derived from the joint property was appropriated for the worship of certain idols and that there was no surplus left. That was a case where the brothers of a Dayabagh family were living at different places and the property in suit was acquired by Jamini Kanta who was in the service of the Collectorate in his own name for Rs, 335/-/-. It was found, as a fact, that Jamini was in a position to procure the purchase money at the time of his purchase. In those circumstances Pal J. held that the acquirer did not get any contribution from the joint family funds and the property acquired by him was accodingly his own. Pal J. cites the text from 'Jimutavahana' :

'What a brother has acquired by his labour, without using the patrimony, he need not give up without his assent, for it was gained by his own exertion'.

Under the Dayabagh law a father and his sons do not form a joint family in the technical sense having coparcenary property. The earnings of each brother are his own and the dictum of Pal, J. should be understood in the context of the facts of that case. But the presumption of Hindu. Law that while a family remains joint, all properties including acquisitions made by individual members is joint property applies to all cases.

The correct rule is enunciated in -- 'Jasoda v. Lal Mohan' AIR 1926 Cal. 361 (H). The properties ia suit were acquired in the name of the eldest son during the life-time of the, father. In such a case, Mukerji, J. held : 'The criterion is to consider from what source the money comes with which the purchase money is paid. Therefore, in the absence of evidence that the junior member had any separate funds or that the, property in question was purchased with the money belonging to him the presumption is clear and decisive that it was acquired by the head of the family in the name of the junior member and that it was not the self-acquired property of the junior member'.

I would, therefore, hold that Pal, J.'s observation is rather broadly worded and should be confined to the facts of that case and would not apply to a Dayabhag family consisting of father and his sons.

Another case of the Privy Council on which great reliance was placed by the learned counsel for the respondent is -- 'Nutbehari v. Nanilal, AIR 1937 P C 61 (I). The point that directly arose for decision in that case was whether there was a blending of joint family funds with income derived from business of the Karta. Rankin J. disbelieved the evidence of the Karta as well as of his nephew and observed :

'Even in the case of a karta mixing his own money with family moneys, the mere fact of a common till, or a common bank account, need of itself effect no blending so long as accounts are kept.'

I am unable to see how this case helps the respondent as there is no question of separate accounts of incomes in this case nor is it a case of a family having business. The only account produced shows that there was no separation of income if there was any income at all by the acquirer. There is no question of a common till or a bank account into which the separate income, of each member is thrown.

33. If I am correct in my reasoning so far that both A and B Schedule properties were acquired with the aid of joint family funds and formed part of the joint family property, the question whether the sale deeds in favour of the defendant viz., Ex. 1-a dated 29-2-1936 and Ex. 1 dated 17-2-1942 are valid and supported by consideration is of small importance. If the properties were a part of the joint family properties Praharaj could convey no title to the defendant for consideration or otherwise. If, however, they were the self-acquisition, the question would still arise whether title was intended to be transferred and has in fact been transferred by the sale deeds. The Court below found that although there was no consideration for the two sale deeds, the defendant still acquired a title under the sale deeds as it was the obvious intention of Praharaj to transfer the properties to her. At this stage, it is necessary to refer to the antecendent circumstances and the relationship between the defendant and Praharaj that influenced Praharaj's action.

The plaintiffs' case is that Praharaj had illicit intimacy with the defendant even when he assumed guardianship of her property and later as the intimacy grew stronger Praharaj brought the defendant to his house in or about 1930. As a result of Fraharaj living in open adultery with the defendant, his wife Mukta-moni had frequent quarrels with both and ultimately left her husband and began to live at Sidheswarpur, the native home of Praharaj. From 1930 up to the death of Praharaj in 1945 the two lived together as husband and wife. It emerges from the evidence that Pitambari was 15 years of age when her husband died on 8-7-1919, the date of her birth being 12-6-1904 as given in Ex. Z-4, the petition filed by Praharaj for being appointed as guardian in Misc. Case No. 10 of 1920. The evidence of D. W. 1 that from 1920 the defendant used to come to Gopal Babu's house at Cuttack has been accepted by the trial Court as true and I am of the same opinion. On 3-8-25 Praharaj was discharged from his guardianship on an application by the defendant that she had attained majority on 28-2-25 and that she had taken charge of her properties and given a full and complete discharge to her guardian. (His Lordship considered the diaries and proceeded :) The learned Subordinate Judge was, therefore, right in holding that there was ample evidence in this case to show that the defendant was the mistress of the Rai Bahadhur and that long before she came and lived with him, this illicit connexion had begun. It is unnecessary to refer to other items of evidence pointing to the same conclusion as I am satisfied that the learned Subordinate Judge has admirably summed up this part of the case and arrived at the right conclusion.

34. It has been found by the trial Court that by the time of the publication of the 5th volume of Bhasakosh in March, 1936 Praharaj had received by way of donations and subscriptions a sum of about Rs. 76000/-and that by February, 1936 Praharaj could not have any loan on account of Bhasakosh, far less Rs. 10,000/- odd due to the defendant. According to him, the receipts from the different sources were more than enough to satisfy his liability in connexion with Bhasakosh and there could be no pressing necessity at all for the sale of the house on 29-2-36. It was also held that Ex. A, the account book maintained by Praharaj and filed in support of the defendant's case that Rs. 10,000/- was due to her is not a genuine account and that there was no other evidence to support the alleged loan of Rs. 10,000/- odd before the date of the sale deed. The learned Subordinate Judge has exhaustively dealt with this part of the case and it will be an act of supererogation on my part to traverse the same ground as I am in entire agreement both with his reasoning and with his conclusion.

35. I have referred to the entries in the diaries of the years 1922-1929 and I find nothing in them to justify the contention that Praharaj was indebted to Pitambari by the end of 1929. The falsity of Ex. A will be apparent from the first entry which says 'From 1919 April to April, 1925 loan from Pitambari by instalments Rs. 3000/-. (His Lordship further considered the evidence on this point and proceeded :) In the introduction to volume III published in May, 1933 he again refers to the loan of Rs. 7000/- borrowed for bringing out the second volume. In the introduction to the 4th volume published in June, 1934 he says that a sum of Rs. 10,000/- has been borrowed and the introduction to volume V published in March, 1936 mentions the loan of Rs. 10,000/-'as loan on security of my residential house'. It is, therefore, impossible to hold that there was any amount due to Pitambari on mere slips and Khata account as has been deposed to by her. If they did exist, mention would certainly have been made in these introductions. Plaintiff's contention is that the only loan that he had contracted was that due to Narondranath Sur on the registered mortgage bond for Rs. 5000/- and Praharaj was giving an inflated amount of his liabilities in order to attract sympathy of donors and subscribers. The lower Court was therefore, justified in refusing to place any reliance on Ex. A as a genuine document.

36-38. The defendant's case in the writtenstatement was not that there were prior loansand that there was a statement of accountsprior to the execution of the first sale deed 'and Rs. 10,000/- odd was found due to her.Her specific case was that 'the vendor wasin need of money to repay his debts and tomeet his expenses. For this he had sold theproperties to the defendant on receiving fullconsideration from the defendant out of herown money'. (After considering the evidenceof the defendants His Lordship concluded thatthe story put in by her was not proved. HisLordship then proceeded :) I would, therefore, hold that Ex. 1-s was a nominal andsham transaction and is not supported by consideration.

39. I shall now consider the respondent's case in regard to the second sale deed (Ex. '1) dated 17-2-1942. (After reviewing the evidence His Lordship continued :) My finding, therefore, is that both the sale deeds are utterly devoid of consideration and are nominal and sham transactions.

40. It was, however, held by the trial Court that the sale deeds are none the less operative to convey title to the defendant. In arriving at this conclusion the learned Sub-ordinate Judge referred to his earlier finding that the properties were the self-acquired properties of Praharaj and that therefore, he had absolute power of disposal over them. He also appears to have been influenced by the fact that both the deeds were scribed by Praharaj in his own hand and the recital in the sale deed that neither his son, grandson nor his wile would have any claim to the properties as his heirs. His subsequent conduct in getting a mutation of the names in the records of the landlord was also treated as an indication of his intention to convey title. The fact that Praharaj executed an agreement (Ex. F) on the date of the first sale deed and occupied the house as a tenant under the vendee was also referred to as a factor indicating his intention.

The entries in Ex. B-1 dated 13-2-42 and Ex. B-2 dated 17-2-42 in his diary for 1942 also have been referred to in the judgment of the lower Court. In Ex. B-1, Praharaj noted : 'Have resolved to sell my remaining plot lying to the west of the building to Pitambari Debi in order to free myself from my outstanding liabilities'. In Ex. B-2 he states : 'Received Rs. 3000/-/- in the presence of the sub-Registrar. Now I am free from a great burden of anxiety'. These entries were admitted in evidence under Section 32(3) of the Evidence Act on the ground that they are against the pecuniary interest of the Rai Bahadur when they were made by him and are receivable in evidence in favour of his rcpresentative-in-interest. The learned Subordinate Judge finally sums up the evidence in these words :

'From the custody of the documents which were with the defendant, from the possession of the house which the defendant admittedly had, and from all the other facts and the environing circumstances of the case, there can be no shadow of doubt that the two sale deeds were not sham or unreal transactions, but that they were transactions by which the Rai Bahadur definitely intended to pass title to the defendant in respect of both the items of the disputed property.'

41. There is no evidence of any delivery of possession of the house or of the documents. The defendant continued to live as his mistress both before & after the sale. The execution of a rent deed and the mutation of names in the landlord's books or the municipal register are all parts of the same scheme to please his mistress. Praharaj himself had paid the mutation fees on 20-5-36. He continued to pay the electric bills from month to month till his death in 1945. He continued paying municipal taxes and meeting the cost of patch repairs subsequent to the sale as the entries of 28-7-36 and 30-7-36 would show. The entries of August and September show that some additions were made to the buildings and the cost was met by Praharaj himself.

It is amazing that he never made mention of his sale of the house in any of his introductions to the several volumes of the Bhasha Kosha although he referred to his indebtedness in more than one volume. If he had to sell his residential house on account of his undertaking to publish the Bhasha Kosha, Praharaj is not the man who would have hesitated to exploit the fact to attract public sympathy by referring to it. Nor does he say that Pitambari who was his associate-editor had purchased the house and that he was living as her tenant. although profuse references are made in the introductions to her 'help, inspiration and sympathy' in bringing out the several volumes. He does not even refer to any monetary help received by him from her. The accounts as well as the oral evidence both show that he got more help than he required from the donors and all the moneys he earned were kept with the defendant. Towards the latter part of his life he completely effaced himself and was entirely in the hands of an unscrupulous and designing woman as his diary of the year 1942 clearly indicates. Having regard to the setting in which these deeds were executed I am disposed to think that these transactions were prompted by a desire to maintain harmony in the house and keep the defendant pleased.

42. On a consideration of all the facts referred to by the trial Court, I have come to the contrary conclusion as, in my opinion, the learned Subordinate Judge has wholly misconceived the legal position. When a sale deed is executed and registered there is a prima facie completion to transfer of title to the vendee. The mere non-payment of consideration will not arrest the passing of the title as a sale of immovable property may be effected in exchange for the price paid, or promised to be paid. But whether the vendor really did intend to transfer ownership by mere execution and registration, or contracted to do so only after receipt of consideration as a condition precedent, would depend upon the terms of the contract between the parties. If there is a stipulation in the sale deed itself that title to and ownership of the property would vest in vendee after payment of the purchase money the reasonable inference would be that until the condition is fulfilled there is no effective transfer of ownership. To gather the intention of the parties the Court is bound to look to the terms of the contract and not to speculate as to the intention from evidence 'de hors' the instrument. The only evidence that the Court will look into is that afforded by what the parties have said and evidence aliunde is not admissible to prove their intention if the language employed is unambiguous. The plaintiffs' contention in this case is that there is an express stipulation in the sale deeds that on receipt of consideration title would be transferred. If. therefore, the consideration is proved not to have been paid before execution, the intention should be presumed to be not to transfer title. The defendant, however, says that both the antecedent circumstances and the subsequent conduct of Praharaj would show that his real intention was to benefit the defendant by transferring his title to the properties.

43. During the last day of his arguments learned counsel for the respondent realizing that the findings of the trial court that the defendant was the mistress of Praharaj and that the sale deeds were not supported by consideration are unassailable, filed a petition seeking the permission of the Court to amend the written statement. The amendment sought to be introduced is in the following terms :

'That the defendant pleads alternatively that the disputed transactions were intended to be gifts to benefit the defendant and the late Rai Bahadur G. C. Praharaj did not want to take the consideration money mentioned in the documents.'

The only ground given for this belated application is that the defendant had not had adequate opportunities to take full legal advice for the purpose of drawing up the written statement. The written statement was filed on 10-12-1945 about six years before this petition was filed. The defendant herself said in her evidence :

'Harihar Babu and Sudhansu Babu, my lawyers, Used to see me in jail to receive instructions from me in this case. The written statement was read over to me before it was filed. I do not remember to have suggested any alteration in the written statement after coming out of the Jail.'

Harihar Babu referred to is the learned Advocate who has appeared for the defendant both in the trial court and in the appellate stage before this court. The reason given for explaining the delay of six years appears to me, therefore, unsatisfactory and is not warranted by the evidence of the defendant herself. In the lodgment filed by counsel for respondent on 21-2-52 it was contended that 'the observations of the trial court in regard to the passing of consideration will be shown to be erroneous'. The hearing of the appeal was commenced on 1-12-52 and counsel for respondent began his address on 5-12-52 and continued till 19-12-52 when the Court closed for the winter holidays. I am not satisfied that the defendant could complain of lack of opportunities for properly presenting her case to the Court. But another and more formidable objection to the amendment of the written statement at this stage is that the plaintiffs would be taken completely by surprise. The proposed amendment will enable the defendant to make a complete 'volte face' and to go back upon her pleading and her evidence. Her case throughout has been that she paid full consideration for the sale deeds and that there was no illicit intimacy between her and Praharaj. Her evidence is that she was about to sue Praharaj for recovery of the arrears due to her and that she consulted the late Mr. Ashghar, Bar-at-law, as to how to recover her dues. She said that she had demanded payment two or three months before the sale deed through Dina-bandhu Rath and through Krushna Babu, Pleader. She protested that the relation between her and the Rai Bahadur was nothing but that of a sister-in-law towards her brother-in-law. She went to the length of saying : 'I have had no sexual intercourse in my life. Ten years ago I came and began to live with the Rai Bahadur'. Then she says : 'I have not lived with him'. In view of these categorical assertions, to allow her to take up the plea that she was his mistress and that Exts. 1 and 1-a were not intended to be sale deeds but were gifts to her, would be to disregard all rules of procedure and practice.

Learned counsel for the appellants also pointed out that if these deeds were to be regarded as deeds of gift the question of valid attestation would assume greater importance and the plaintiffs would be put to the necessity of recalling the witnesses. We indicated to learned counsel that we would reserve orders on this petition and after hearing both sides I am satisfied that it would not be proper or just to allow the defendant to make out a new case, particularly as it would in-volve tne taking of fresh evidence on both sides and ignoring the evidence already re-corded in total.

44. Several authorities were cited before us in support of the respective contentions of the parties as to how the intention of the vendor is to be gathered. The recitals in the two sale deeds are as follows : Para 6 of Ext. 1-a dated 29-2-36 is entitled, 'Conditions of the sale' and the covenant regarding the receipt of consideration is as follows :

'Being in necessity to repay the loans, to manage the rest expenses regarding the correction of proofs, addition, separation, and binding purposes, of the volume V of Bhasakosh and to maintain ourselves, I settled to sell to you, the vendee, the Lakh-raj Bajyapti. 219 decimals of land described in the sale deed at the rate of Rs. 10/- per decimal according to present valuation, i.e., Rs. 2190/-/- and with the present value of the building, i.e. Rs. 13,310/-/- in this way amounting in two items to total of Rs. 15500/-..... You have been adjusted towards your loans of Rs. 10,495/-/- in principal, which is due with me towards the consideration of the sale deed, and I adjusted it as if a cash payment of Rs. 3285/- is adjusted out of the consideration money towards your undertaking to repay the consideration and interest of Babu Narendra-nath Sur and Babu Dhirendranath Sur due on me on account of the simple mortgage and I have adjusted. You have Paid the rest consideration money of Rs. 1720/- to me hand to hand. Having received the total consideration money in this way I execute the kabala in your favour making you the owner and possessor in the vended land.'

Ext. 1 dated 17-2-1940 contains similar terms & covenants. In para 5 the vendor says :

'Out of Rs. 3800/- for which I have agreed to sell this property I have already received Rs. 800/- from time to time to discharge my creditors and today, I have received Rs. 3000/- before the Sub-Registrar, through Shri Kali Charan Bose. I have received the total sum of Rs. 3800/- in all including this amount and that taken previously and I solemnly declare making you the owner under sale.'

45. The covenants in both the sale deeds will thus appear to be that payment of consideration is made a condition precedent to the passing of title. In both the sale deeds the vendor says that after having received the consideration he makes the transferee the owner of the properties. It has been held in a series of decisions of the Patna High Court that the intention of the vendor in such cases is not to transfer title unless consideration has been paid.

In -- 'Pirtam Singh v. Jagannath Sarawgi', AIR 1947 Pat 1 (J), the entire case law was discussed and the principle governing such cases was laid down by Chatterji J. which was approved in the Letters Patent appeal that followed. The principle is this :

'The question whether title under a sale deed-passes upon execution and registration, or is postponed till the payment of the entire consideration is made depends on the intention of the parties which has to be gathered from the sale deed itself. But where theterms of the deed are not decisive and clear, the surrounding circumstances and the conduct of the parties may be looked into.'

In that case, after the stipulation regarding the conveyance of title had been made, the vendor stated in the concluding portion of the document

'as per recitals made above on receipt of Rs. 1000/- the entire consideration money covered by this deed, I have of my own accord and free will executed this deed of absolute sale'.

It was held by Chatterji J. that the recital about the consideration was an acknowledgment of receipt of the money and did not prevent title being conveyed.

In -- 'Md. Murtaza Hussain v. Abdul Rah- man', AIR, 1949 Pat 364 (K), the sale was as follows :

'In exchange for the price of Rs. 100/- settled as the consideration for the sale, the vendor has sold, and executed, the deed of sale in favour of the vendee after realization of the entire consideration in cash.'

The Court held that the intention of the parties was that the passing of the title should be dependent on the passing of consideration. Meredith, J. held that the correctness of the recitals cannot be contradicted by external evidence for the purpose of deriving an inference with regard to the contractual intention of the parties. Where, however, there is latent ambiguity in the recitals and the correctness is it-self in issue, evidence may be admitted to make the ambiguity apparent. But, if the recital is clear that the receipt of consideration and the transfer of title should be simultaneous, or that the sale is made in exchange for the price and the vendee is made the owner and put in possession after realization of the entire consideration the only inference should be that one is dependent on the other. If the recital about the receipt of consideration is proved to be incorrect, a latent ambiguity arises and if the circumstances show that the consideration was not, in fact, paid it would follow that the intention of the parties was not to effect a transfer of ownership by the mere execution or registration of the document.

A similar case is reported in -- 'Motilal Sahu v. Ugra Narain', AIR 1950 Pat 288 (L), where it was held that

'the intention of the parties was that title would not pass if money had not been paid, and as the money had not been paid the title remained where it was. In other words, the transaction was a dead letter.'

In the latest case of the Patna High Court reported in -- 'Panchoo Sahu v. Janki Mandar'. AIR 1952 Pat 263 (M), Chatterji J. observed :

'This question has been considered by this court in various cases and it is now well settled that the intention is to be gathered from the sale deed itself'

and a reference was made to -- 'Rasikananda Mallick v. Gangadhar Panda'. 1 Cut LT 1 (N); -- 'Radhamohan Thakur v Bipin Bihari', AIR 1938 Pat 505 (O); -- AIR 1949 Pat 364 (K); and -- 'AIR 1950 Pat 288 (L). The recitals in the sale deed that was before Their Lord-ships were as follows

'Having received payment of the whole and entire consideration money in cash from the aforesaid vendee I put him (the vendee) in possession and occupation of the vended property'.

Lower down it again recites :

'On receipt of the fair consideration money I, the executant, sell the vended land'.

It was therefore held :

'These recitals clearly indicate that title would pass and possession would be delivered on payment of the 'whole and entire consideration money.'

Appellants' counsel sought to distinguish the case on the ground that the bulk of the consideration money, namely Rs. 70/- out of Rs. 100/- was proved to have been paid. But Their Lordships observed 'If the intention of the parties as gathered from the sale deed itself was that title would pass only on payment of the 'whole and entire consideration money' it is immaterial that the bulk of the consideration was actually paid'. I am in entire agreement with the view taken in this case, if I may respectfully say so.

46. Counsel for the respondent did not seriously challenge the correctness of these propositions and sought to side-track them by accepting a new line of argument. His contention is that if it be found that the defendant was really a concubine of the vendor and he was anxious to please her, the conveyance of title should be upheld irrespective of the form that the deed of conveyancy took. According to him Praharaj was determined to please the defendant and confer a benefit upon her. He was equally determined to deprive his son and grandsons of any inheritance to the suit property. Reliance was placed on the evidence of P. W. 1 who said that Praharaj had disclosed to him that he was executing the two kabalas in favour of the defendant 'to enable her to claim the Cuttack house as against the son and the wife'. P. W. 2 said that his brother 'was in great fear of the defendant and that he would coax and console her when she was furious'. P. W. 10 said that Praharaj had most embittered feelings both for his son and wife, and that Praharaj had told him that he had executed these two collusive kabalas in favour of Pitambari in order to deprive his son and wife, as he had embittered feelings against them. Relying on these statements Mr. Mohapatra contended that Praharaj's intention in bringing about these sale deeds was to deprive his son and wife of any right in the property by conveying the title to the defendant. The mere fact that that intention was carried into effect in the form of two sale deeds should not prevent the Court from giving effect to the intention, if indeed it is proved that they were no more than gifts.

Our attention was invited to two decisions of the Privy Council reported in -- 'Ismail Musajee v. Hafiz Boo', 33 Ind App 86 (P) and -- 'Hanif-Un-Nisa v. Faiz-Un-Nissa', 38 Ind App 85 (Q). In the first of these two cases there was clear evidence that Khaja Boo had authorised her attorneys to pay the sale proceeds of her house to her daughter either in rash or by purchase of some other property in her name. Their Lordships construing the power of attorney held that it contemplated an absolute gift of the sale proceeds to Hafiz Boo and this is how she treated the matter in her written statement. Incidentally it may be observed that the case went up before the Board irom Burma where the Transfer of Propeny Act was not in force at that time. In the second case relied on by learned counsel all that Their Lordships observed was that the proper course will be to remit the case to the High Court to be dealt with on the evidence. The question, however, is whether such a plea can be allowed to be raised in the absence of pleadings or evidence that Praharaj made a gift to the defendant. The defendant's case, as I have already pointed out, is that she was anxious to recover her loans and took the advice of a Barrister as to how to enforce them. It would appear from the entries made by Praharaj in Ext. A dated 25-2-1936, that Praharaj merely intended to create evidence of a debt and so a non-judicial stamp was purchased for executing a usufructuary mortgage bond in favour of the defendant. That would have created difficulties in the way of his heirs claiming the property. He also purchased stamp paper at the same time 'for executing a monthly rent agreement in her favour' as a mortgagee. The entry of the next day shows that Mr. Ashghar was consulted 'about the proposed deeds by Pitambari and myself'. It does not appear that a gift was ever contemplated. I am inclined to think that Praharaj must have found it impossible to make a gift of the properties having regard to the manner in which they were acquired & dealt with at the family partition. He was himself an experienced lawyer and knew that he could not make a gift of his co-parcenary property. If, however, he could create evidence of : an antecedent debt the only way to effect a transfer would be to give the transaction the semblance of a sale. The illusion thus created was also kept up by the execution of a rent deed simultaneously with the sale deed. It would appear from the entries made by Praharaj in Ext. A on 25-2-36 that Mr. Ashghar was paid by him Rs. 5/- 'for consultation' and Rs. 12/- was paid on the next day 'for coming to the Bhasha Kosha office to be consulted about the proposed deeds by Pitambari and myself.' The defendant however, says that she paid Rs. 20/- to Ashghar, a fact directly contradicted by the entries made by Praharaj. It may also be noticed that the execution of two deeds was contemplated at the beginning. It also appears that it was contemplated that Pitambari also should execute a deed, for Praharaj says : 'the proposed deeds by Pitambari and myself' in his note. It is possible that an agreement signed by both parties was originally contemplated but such a course would have defeated the object of Praharaj to keep the transaction a closed secret if Pitambari was obliged to go to the Registrar's office. Praharaj ultimately executed a unilateral agreement in favour of the defendant. I cannot, therefore, readily accept the contention of the learned counsel that his real intention was to make a gift though he chose to put it in the form of a sale deed as the only way of giving effect to his intention. But apart from the merits of this contention, such a case had never been made out in the lower court, either in the pleadings or in the evidence. We are therefore constrained to overrule this contention as untenable.

47. One other fact remains to be considered though it is not of great significance. The plaintiffs examined P. Ws. 5, 6 and 12 to prove that Praharaj was trying to dispose of these very properties shortly before his death. The trial court thought that Praharaj's subsequent conduct may have been due to his change of mind which, however, would not affect the title which had already vested in the defendant. The evidence of these witnesses is certainly entitled to great respect and it may throw some light on the contention of the plaintiff's that Praharaj executed the disputed sale deeds under the influence of Pitambari without ever intending to part with his title. In any event, this evidence supports the conclusion that I have arrived at, namely that the sales were sham transactions and were not intended to be operative. As I have already held the intention to be gathered from the documents alone, and his subsequent conduct one way or the other is not a relevant consideration, though it may afford a motive for his being poisoned. It is significant that Praharaj's diaries from 1943 to 1945 have not been produced by the defendant. The inventory prepared by the commissioner shows that there were in all 70 diary books of Praharaj and his clerk found in the house. I have no doubt that the diaries of the years 1927, 1936 and 1943 to 1945 have been deliberately withheld.

48. I am satisfied that the properties in suit were not the self-acquisitions of Praharaj and that the defendant derives no title by reason of the sale deeds in her favour. This appeal must accordingly succeed and the judgment and decree of the learned Subordinate Judge, in respect of A and B schedule properties must be set aside. The plaintiffs shall have a decree for possession of the suit properties as prayed for in the plaint, with costs, in this court, as well as those incurred in the court below, together with interest at 6 per cent, per annum till realisation. In the peculiar circumstances of this case, and having regard to the complexity of the points raised and the time occupied for the hearing, I would fix a special hearing fee Rs. 1000/- (one thousand rupees only) in this court.

Mohapatra, J.

49. I agree.

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