1. This appeal with certificate granted by the High Court to Bombay arises out of a suit for partition filed by the appellant. The Trial Court decreed the suit partially but the High Court of Bombay reversed the decree passed by the Trial Court and dismissed the plaintiff's suit.
2. The following table explains the relationship between the parties:
Laduram d. 1922 Jawarmal d. 1902
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Raichand Champalal Hirachand. | |
Mulchand(Deft. 1) Bhikamchand(d. 1937)
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| Meganlal(Plot. 1) Sitabai
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Mohanlal Amrutlal Kantilal Ratanlal Kanchalal Bansilal
(Deft. 2) (Deft. 3) (Deft. 4) (Deft. 5) (Deft. 6) (Deft. 7)
3. Maganlal son of Bhikamchand claiming that there subsisted between him and the defendants a joint family which possessed a considerable estate, demanded partition and separate possession of his half share in the properties. The dispute in that behalf was referred to arbitration. On May 24, 1952 an arbitration agreement was duly drawn up. But the arbitration proceeding proved infructuous, and Maganlal filed a suit in the Court of the Civil Judge, Senior Division, Thana for a half share in the properties described in Schedules B & C. Schedule B described the moveable properties including gold and silver ornaments and outstandings of a money-lending business and all the assets of 'basket and bamboo business' of the total value of Rs. 65,250/-. Schedule C described a house and two open pieces of land of the aggregate value of Rs. 5,500/-- The suit was resisted by the defendants contending, inter alia, that the plaintiff's father Bhikamchand separated from the joint family in 1930 and had executed a deed acknowledging receipt of his share, that the other members of the family belonging to the branch of Laduram and Mulchand remained joint, that in 1933 the joint family property was divided between the branches of Laduram and Mulchand and that Raichand s/o Laduram was given the ancestral family house and that in the properties or share.
4. On a review of the evidence, the Trial Court upheld the plaintiff's case that there was a subsisting joint family but that it was not proved that the family owned silver and gold ornaments and other articles of the value of Rs. 39,150/-. In the view of the trial court the family owned immoveable properties described in Schedule C, household utensils, furniture etc., and a money-lending business and 'the basket and bamboo business'. The Trial Court accordingly awarded to the plaintiff a half share in the properties proved to belong to the joint family and directed that partition of the properties described in Schedule C be made and that a Commissioner be appointed to take account of outstandings in the money-lending business of the joint family and accounts of the joint family business of 'baskets and bamboo' carried on in the name of defendant No. 1 only.
5. Against that decree the plaintiffs as well as the defendants appealed. In the view of the High Court, there was in 1930 a complete severance between Bhikamchand received his share in the joint family property, and thereafter there was no joint family of Bhikamchand and Mulchand and that the plaintiff was, therefore, not entitled to any share in the properties in the possession of the defendants. In this appeal counsel for the plaintiff contends that the deed Ext. No. 192 dated December 15, 1966 which is styled a deed of dissolution of partnership' effected dissolution of the partnership relating to the money-lending business carried on by the first defendant and Bhikamchand and that it did not sever the joint family status between the first defendant and Bhikamchand and that at all material times Bhikamchand, Mulchand and his sons and the plaintiff remained members of a joint Hindu family. Counsel also contended that the joint family business in baskets and bamboos was carried on for and on behalf of the joint family and the properties in which a share was claimed were acquired with the profits received from that business and on that account it should have been held that in all the properties claimed by the plaintiff he was entitled to a half share.
6. The High Court agreeing with the Trial Court has held that it is net proved that there were with the defendants gold and silver ornaments of the value of Rs. 39,150/-. That is a concurrent finding of fact which must be treated as binding upon this court. The plaintiff's claim must, therefore, be restricted to a share in the properties described in Schedule C and the assets and outstandings of the two business of money-lending and baskets and bamboos. The house and the two open pieces of land in respect of which a claim is made for a share were acquired by Mulchand in his own name after 1930; the house was also constructed on the land purchased by him. The plaintiff contend that the lands were acquired after 1930 and the house was constructed with the aid of the funds of the joint family with Mulchand and were on that account liable to be treated as joint family property.
7. The defendants deny that the plaintiff was a member of their joint family after December 15, 1930. The deed on which the defendants rely is dated December 51, 1903, it reads as follows :-
'Deed of dissolution of partnership is given in writing in favour of Mulchand Javarmalji and Raichand Laduram residing at Bordi, Taluka Dahanu, District Thana by Sha. Bhikam Chand Javarmalji, residing at Bordi, for the reasons as follows ;--
I had a share in the shop running under the style of Sha. Laduram Kasturchand. I have this day taken out the said share after receiving the outstandings and cash'.
Then follows a list of constituents from whom the amounts were due and the amount due. The document then reads :
'The outstanding of Bassein upto this day. Rs. sixteen hundred in cash. Out of this, one thousand are to be received in cash and a pronote for Rs. 600/- is to be taken. It is agreed that the amount of promissory note is to be recovered after four months. I have taken out my share after receiving in all rupees six thousand eight hundred and forty eight - out standings and cash. I have right over the ornaments which I possess and the aforesaid outstandings. Barring these, you have right over the amount due from others and you are also responsible for the dues payable to others. I have no right whatsoever thereon'.
The deed is styled 'a 'deed of dissolution of a partnership in the name of Laduram Kasturchand'.' There is no reference to the family house in the deed. The deed recites that the share of Bhikamchand was valued at Rs. 6,848/-, but does not disclose the method of valuation. In 1930 the family had an ancestral house in Bordi and the family was carrying on money-lending and 'basket and bamboos business'. The document does not refer to the division of the house nor does it state that Bhikamchand was given a share equivalent to his share in the house. But on that account we are unable to hold that by the deed dated Dec. 15, 1930. Bhikamchand was only given a share in the assets and outstandings of the business and the members of the family continued to remain joint after 1930 in respect of the baskets and bamboos business, and other property. The deed recites the Bhikamchand was given a fourth share in the outstanding, and cash. There is no clear evidence that there were two separate and distinct business carried on by the family one in money-lending and another in 'baskets and bamboos'. The business of the family was on a modest scale and there is no evidence that only outstandings of the money-lending business were divided and Mulchand and Raichand became the owners of that business.
8. There is no recital about complete severance of the joint family status between Bhikamchand on the one hand and Mulchand and the Branch of Laduram on the other. But this is a circumstance from which no inference arises that the family continued to remain joint. The deed appears to have been drawn up without any expert assistance. Apart from the ancestral family house, the family carried on a business. There is in the deed no separate valuation and allotment to Bhikamchand of a share in the different items of the family estate. But it is clear from the record and it is not denied by the plaintiff that in the severance which took place between Raichand and Mulchand in 1933 the family house was allotted to the former. The house in which the plaintiff is claiming a share was constructed on a piece of land which was purchased by Mulchand. The fact that there is no reference to the ancestral family house in the deed dated December 15, 1930 is a circumstance has no significance. The contention that the deed dated December 15, 1930, only relates to money-lending business and the 'baskets and bamboos business' which was commenced in the year 1924 continued to remain joint cannot be accepted. There is no recital about any separate business of 'baskets and bamboos business' continuing to remain as a joint business of the members of the family after the deed of December 15, 1930 and we are unable to infer from the recitals made in the deed that the severance which took place on December 15, 1930 only related to the severance in respect of the money-lending business. The recitals made therein are not consistent with that plea.
9. The plaintiff and his sister Sitabai during the lifetime of Bhikamchand and after his death continued to live with Mulchand and his house, that the plaintiff and his sister were brought up by Mulchand and their respective marriages were performed by Mulchand at considerable expense. This according to counsel for the plaintiff proves that the plaintiff and his sister were treated as members of the family and were given all the benefits of the family assets but when a demand for a share in the family property was made Mukhand denied the plaintiff's claim. It appears from the evidence that shortly after the execution of the deed dated December 15, 1930 Bhikamchand went to live in another house in the village. Thereafter he fell ill and was brought back to the family house by Mulchand and after Mulchand built the new house he lived in that house with Mulchand till his death. Bhikamchand's wife died within six months after Bhikamchand died, and the plaintiff and his sister Sitabai who were then infants were cared for by Mulchand. We are unable to infer that because Bhikamchand and his in ant children were allowed to stay with Mulchand and the plaintiff and his sister were brought up by him, they were members of a subsisting joint family having an interest in its assets. In the village community in which Mulchand was living he would have invited severe censure if he refused to look after his uphaned nephew and niece. The opinion of the villagers and members of his community would deter the first defendant from adopting that course. The conduct of the first defendant is consistent with accepted social moves in a village community, and cannot lead to an inference of a legal right.
10. It was urged, that the partition with Raichand was executed by both Mulchand and Bhikamchand. Though the plaintiff made several attempts to have the document produced, Raichand who was in possession of the document failed to produce it. Raichand was examined as a witness on behalf of the plaintiff. He stated that he had separated from the family in 1933, that at that time Mulchand and Bhikamchand had made up the account and he received a half share of the property, while the other half share were allotted to Mulchand and Bhikamchand, that at that time Yadis were exchanged between the parties and each had countersigned the one that remained with the others, and that at that partition, he received property of the value of Rs. 13,000/- consisting of outstandings worth Rs. 6,000/-- and the ancestral house, valued at Rs. 7,000/-. Raichand asserted that till about five years before the date of the suit, he had with him the Yadi of partition, but he had since then lost it. In cross-examination he said that he had shown that Yadi to Brahmecha (father-in-law of the plaintiff) who after perusing it had returned it to him. According to the witness Raichand, Brahmecha who is a pleader did not make 'an extract of' it. Brahmecha stated that he had seen the Yadi with Raichand. He also stated that he had seen a copy of the Yadi with Mulchand, but he could not say as to who had signed it. Mulchand in his evidence said that no Yadis were written but only entries were posted in the books of account. He denied that the Yadis were exchanged between them as claimed by Raichand. He also stated that Bhikamchand has no connection with the partition between him and Raichand as Bhikamchand had already separated. It appears that Raichand was supporting the claim of the plaintiff and if he was in possession of a very important document he would not have failed to tender it in evidence. Raichand and Brahmecha stated that the document was available till about five years before the date of the suit. When Raichand was examined he did not explain the circumstances in which he came to misplace the document. Possibility of Brahmecha having taken part in making a partition of the properties between Raichand and Mulchand may not be ruled out. But we are unable to accept the testimony of Brahmecha that he saw the deed but he did not make a copy of it, and did not impress upon Raichand the necessity of ensuring its safety so as to make it available at the hearing of the suit. Raichand was examined in court on February 9, 1959 and the suit was instituted as a pauper-suit on February 15, 1955 prior thereto it appears that there were arbitration proceedings in the year 1952. Disputes between the plaintiff and the first defendant Mulchand were therefore simmering and it is impossible to believe that when Raichand showed the document to Brahmecha, the latter would not at least take a copy of the same and produce it in the court. We agree with the High Court that the story of Raichand and Brahmecha is not reliable.
11. Reliance was also placed upon a recital in a document which was claimed to be a copy of an agreement of reference to arbitration of the three arbitrators Lalchand Panji, Chunilal Lakhmi chand and Rai chand Laduram. The original has not been produced and only a copy of it was produced by Brahmecha. The opening part of the document reads :
'There is a joint Hindu family of us both at Bordi. The joint family or us both has moveable and immoveable properties, houses, lands etc. and outstandings due to and by third parties in these properties.We both have half share each. The both cannot put on together. There is a dispute between us in regard to the move-able and immoveable properties belonging to our joint family. We have appointed you as arbitrators to resolve the dispute and to divide by metes and bounds properly the immoveable and moveable properties between us'.
The original it was claimed was signed by Mulchand and Maganlal. If the original of this document was produced, it would have strongly supported plaintiff's case. But the original is not forthcoming and only a copy of it was tendered in evidence by Brahmecha who is doubtless interested in the plaintiff. There were three arbitrators including Raichand. None of the arbitrators has tendered the original agreement in evidence. The trial Court declined to treat the copy as secondary evidence of the contents of the deed of reference. The High Court examined the matter in some detail and held that on the testimony of Brahmecha it could not be held that what was claimed to be a copy was a draft of the reference to arbitration executed by the parties. In the view of the High Court Brahmecha was not speaking the truth when he said that it was a draft prepared by him from which the original was Subsequently executed. We are unable to disagree with the High Court.
12. The letters were relied upon by counsel for the plaintiff There is Ext, 135 written about December 17, 1953 by the three arbitrators to the plaintiff. There is nothing in that letter which supports the plaintiff's case. It merely refers to the inability of the arbitrators to decide the dispute. There is another letter Ext. 142 written by Raichand to the plaintiff on January 29, 1955 in which he said that the first defendant Mulchand was prepared to give one portion on the southern side of the building with the well, one house behind the main building, half the cut-standings and half the open space and beyond that he had nothing else to give. The letter contains no admission by the first defendant. It is merely a statement by Raichand who is interested in the plaintiff and unless the testimony of Raichand is accepted, an statement made by him shortly before the institution of the su(sic) will have little evidentiary value. Though it is proved that there was a reference to arbitration had that arbitration proved aboortive, because the arbitrators were unable to decide the dispute, what the terms of the reference were have not been proved, may be assumed that there were arbitration proceedings between Mulchand and the plaintiff with regard to the claim made by the latter, but an inference will not arise that the first defendant admitted the claim of the plaintiff that he was a member of a subsisting joint Hindu family,
13. Reliance was also placed upon a 'notice' Ext. 139 served by C.G. Adhiya, a pleader on behalf of Kantilal and Amrutlal sons of defendant No. 1. They are defendants 3 & 4 in the suit. It is recited in that notice that there was a joint family consisting of Mulchand and Maganlal and they were dealing on behalf of that family under the name and style of Mulchand Jawarmal Pedhi and that his clients Kantilal and Amrutlal had no relation whatever with that Pedhi for its dealings, and that his clients were 'about to do their own independent business and work'. There was no evidence on the record that Adhiya was a lawyer engaged by the first defendant. At the time when the notice is said to have been given in 1951, Amrutlal was 18 years of age and Kantilal was 15 years of age. We are unable to accept that these two boys one of whom was undisputedly a minor and the other, if at all, had barely attained the age of majority, could have carried on a business or could have any immediate prospect of carrying on a business and would have instructed a lawyer to give a notice containing the averments sought to be relied upon. Adhiya has not been examined as a witness and there is no evidence that any such instructions as alleged were given. The learned Trial Judge declined to put any reliance upon the so called admissions made by Amrutlal and Kantilal and the High Court agreed with that view. The evidence on the record apart from the contents of the notice, renders it highly improbable that Amnitlal and Kantilal were carrying on or intended to carry on any independent business in 1952 and it was necessary for them to address a formal notice through a lawyer to their father with whom they were residing, intimating that they had nothing to do with the business carried on by the first defendant, and the plaintiff jointly.
14. Reliance was also placed upon entries in Behi Khata Vahi Ext. 140 which were tendered in evidence by the plaintiff In that book the first page which was called Puja Pan is written in the handwriting of Bhikamchand and some of the entries are also in the handwriting of Bhikamchand. The first defendant admitted that some of the entries in that book were written by Bhikamchand, the other entries in that book were written by him. The High Court observed that on inspection it was found that a 'large number of entries were underlined in red and it was impossible to say which entries were marked by the first defendant and which entries were underlined by someone else'. From the Puja Pan it appeared that the book was for Samvat Year 1992 i.e. for the year on October 28, 1935. If it was a book in which transactions of the joint family were entered, the title page would not have borne in inscription book belonged to or was of Muichand Jawarmal Nahar. Apart from this book of account, there was no evidence that there was a joint family shop or business carried on in the name of Mulchand Jawarmal. The High Court declined to draw an inference in favour of the plaintiff merely from the entries in the books of account in the handwriting of Bhikamchand that the transaction entered therein represented dealings of the joint family between Muichand and Bhikamchand, and even if it be inferred that after Bhikamchand started living in the house of Muichand and assisted him in writing certain entries in the books of account, no inference can be raised that they were members of the joint Hindu family and notwithstanding the deed of 1930 they were still members of the joint family. We agree with the High Court in that view.
15. Reliance was also placed upon a book of counterfoils of receipts for despatch of parcels both by Bhikamchand and Muichand. When parcels were despatched by Muichand the consignment was made by Bhikamchand in the name of Mulchand. Muichand admitted that Bhikamchand used to help him in his business. Mulchand's testimony was supported by Harakchand, who deposed that Bhikamchand used to collect outstandings on behalf of Muichand. In the view of the High Court the book relied upon was not an account book; it merely contained entries regarding railway receipts for the despatch of railway parcels and there was 'nothing peculiar' if the brothers who were living together at the relevant time maintained only one book in view of the comparatively small extent of the business carried on by them. We agree with that inference raised by the High Court.
16. It is true that Muichand did not produce his books of account. His plea was that the books of account were 'eaten up by white ants' and were on that account not available. There is no reason to suppose that the books of account were available but were not tendered intentionally. In any event failure to produce the books of account will not necessarily lead to the inference that they contained entries relating to the business in which Bhikam Chand was interested as a member of the family.
17. It appears from the testimony of Muichand that Bhikam Chand was also carrying on business in baskets during his lifetime. Evidently the business must have come to an end after the death of Bhikamchand. His widow died within six months from the date on which Bhikamchand died. If the fact be true that Bhikam Chand was also carrying on business in 'baskets and bamboos', existence of another joint family business in 'baskets and bamboos' carried on by Mulchand and Bhikamchand would be rendered highly improbable.
18. The High Court has carefully considered the evidence and we see no reason to disagree with the view taken by the High Court. The argument raised by counsel for the plaintiffs is based upon an assumption that in 1930 the family had two independent businesses-one in money-lending and another in 'basket and bamboos', and there was dissolution of money-lending and the baskets and bamboos business continued. We are unable to accept that assumption. If there was severance in respect of the two branches of business money-lending as well as 'baskets and bamboos' business-the plaintiffs' claim must fail, for the plot on which the house in Schedule C in respect of which claim has been made, was purchased after 1930 and the house was constructed later on. After 1930 there was no joint family business in which Bhikamchand the plaintiff was interested, and any income received by Mulchand out of the business must be deemed to be treated as his separate income.
19. In the High Court an attempt was made to produce on the last day when the judgment was being delivered in open court, the document which purported to be the original deed of partition executed by Mulchand and Bhikamchand in favour of Raichand. The High Court declined to allow that evidence to go on the record. In this Court counsel for the plaintiff urged that in the ''interests of justice' the plaintiff may be permitted to produce that document and an enquiry be directed whether an inference arises from that document that both Bhikamchand and Mulchand were parties to the partition between them and Raichand. It was urged that if the recitals in the document established that case it would clearly show that there was no severance between Mulchand and Bhikam Chand in the year 1930. We will not be justified at this late stage in allowing such a document to go on the record and to re-open the proceedings which were instituted 14 years ago. The document was according to the plaintiff in the possession of Raichand, who did not produce the document during the trial, nor even during the time the appeal was pending in the High Court. Counsel for the plaintiff after the arguments concluded when it was clear that the High Court was recording a decision against the plaintiff, sought to produce the document with an affidavit of Raichand. Under Order 41, Rule 27 of the CPC a Court of Appeal may allow a document to be produced or witness to be examined in order to enable it to pronounce judgment or for any other substantial cause. Additional evidence is allowed to be produced for the requirement of the Court and not to enable a party to make good a deficiency in his case. By the rule it is expressly enacted that the parties to an appeal shall not be entitled to produce additional evidence, whether oral or documentary, in the Appellate Court. Plainly the application for production of the additional evidence does not fall within the terms of Rule 27, Order 41, CPC. Counsel for the plaintiff, however, (sic)rged that 'in the larger interests of justice' we may exercise our (sic)nherent power and allow the document to go on the record. We to not propose to decide whether this Court, apart from the terms of Order 41, Rule 27 CPC may allow additional evidence to go on the record. It suffices to observe that we have looked into the document and scrutinised its contents. From its appearance it is difficult to believe that it is nearly 40 years old as it purports to be if genuine. Again a singular circumstance appears from the document. The document purports to bear the signature of Bhikamchand at two places. The signature is 'Bhikam Chand' whereas in the Behi Khata Vahi which it is claimed was written by Bhikarnchand the signature appears to be written as 'Bhikamchand': the alignment of the letters is also different. The formation of the letter 'ch' in the signatures and the account book is different. It is difficult to believe that in 1933 Bhikamchand signed in one way in the document and signed in another way in the account books written by him within one year thereafter. Having regard to these circumstances and especially the fact that the document was brought before the High Court at a very late stage and in circumstances which are suspicious, we do not think that any case is made out which would justify us in disagreeing with the view of the High Court.
The appeal fails and is dismissed with costs.