1. The following genealogy explains the relationship between the parties to this litigation ;
Purshottam (d. Before 1895)
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Laxmishankar (d. 2-4-33) Narbharam (d 21-7-34) Shamji(d. in 1918)
Deo Kunvar (d. 24-1-39) (Nani Kunvar) Man Kunvar
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Mulshankar Rasikchandra Chunilal Pltff
(Deft. No. 1) (Deft: No. 2) (born in 1917)
2. Purshotta'm was a resident of Halvad in the former Indian State of Dhrangadhara in Kathiawar. He was possessed of some agricultural land which was not very productive, and a house at Halvad. Purshottam died before 1895. His sons Laxmishankar and Narbharam migrated to Cuttack in Orissa sometime about the year 1905 and set themselves up in a business of brick making. The business thrived. Later they started another business in coal. The two brothers acquired a considerable estate in Cuttuck. They also made alterations and improvements in the family house at Halvad. Shamji, the youngest brother, who continued to reside at Halvad died in 1918 leaving him surviving his wife Man Kunvar and his infant son Chunilal. Laxmishankar died in 1933 and Narbharam died soon thereafter.
3. After the death of Narbharam the coal business was managed by his two sons Mulshankar and Rasikchandra. Chunilal son of Shamji was not submitted to the benefit of the estate or the business in coal. Chunilal commenced an action in 1950 in the Court of the Additional Subordinate Judge, Cuttuck, for partition of the joint family properties in the possession of the sons of Narbharam, and for a half share therein. To this suit Mani Kunvar, widow of Norbharam was added as a party defendant on the allegation that some of the properties of the family were standing in her name benami. By an amendment made in 1956 the plaintiff claimed an account of the coal business and a share in its assets and goodwill.
4. Two principal contentions were raised by the defendants against the claim made by Chunilal ; (i) that Shamji had separated from Laxmishankar and Narbharam in 1913, and to evidence his separation had executed a writing in that behalf in a book of account maintained by Laxmishankar and Narbharam; and (ii) that the properties in which the plaintiff claimed a half share were acquired by Laxmishankar and Narbheram with their own exertion and the plaintiff had no share therein.
5. The Trial Court dismissed the suit holding that there was severance of the joint family status in 1913 between Shamji on the one hand and Laxmishankar and Narbharam on the other and that a Memorandum relied upon, by the defendants evidenced that severance. The plaintiff, according to the view taken by the Trial Court, had no interest in the properties in the possession of the defendants and in the business carried on by them.
6. In appeal the High Court of Orissa rejected the plea of the defendants and awarded to the plaintiff Chunilal a half share in some of the properties in suit. The High Court also proceeded to declare that the plaintiff had a half share in the coal business in the Railway Dockyard, Cuttuck,' and directed that a preliminary decree be prepared accordingly. Against that decree, with certificate granted by the High Court, the defendants have appealed to this Court.
7. The defendants rely upon a Memorandum in the book of account of 1913 as evidencing severance of Shamji from the joint family. The Memorandum reads :
'Passed in favour of Oza Lakhiram Purushottam and and Narbharam Purshottam; by Oza Shyamji Purshottam; To witness :
I do hereby pass in writing in favour of you both brothers as under :
'Division has been effected between us three brothers on Ashad Vad 13th of the Samvat year 1969 (31-7-1913); therein the Panch (Arbitrator) decided that Brother Shamji be paid Rs. 37/-. Today the filed, known after the name of Rathod Govind Karsan, situated on the road leading to Khan, on which joint moneys of all the 3 brothers were invested has been kept exclusively by Sharaji, by paying Rs. 47/- to the other two brothers. In the said amount the above mentioned Rs. 37/- have been given credit for, to you towards the said dues, and the remaining Rs. 10/- have been received in cash; and this document has been passed.'
8. Further:--The one filed named 'Khakhdasarwalu' measuring 80 Bighas of land, which is DAETU CHOKU BHAGIUN (a sort of tenure), has come to the share of brother Lakhiram; the document thereof is in the old account book of brother Shamji, at page 6 thereof, and is dated Vaishakh Sud 2 of Samvat 1969 (8-5-1913). It is hereby agreed that whenever you require the same brother Shamji has to give the said account book whenever it may be required. Dated Asho Sud 14 of Samvat 1969 (14-10-1913);
9. Written by Gandhi Malukchand Motichand at the request of both parties;
10. Sd. Oza Shamji Purshottam, acquiescing in what is written above in the hand-writing of Shah Kastur Amarchand at the request of the signatory.'
11. Certain peculiar features of this Memorandum are at once apparent:
12. (1) Shamji was carrying on a money leading business, at Halvad and there is no evidence to show that he was illiterate. But his signature is not taken on the Memorandum. Not even the thumb mark of Shamji was obtained. It was suggested that it was not customary in the Indian State of Dharangadhara to take the thumb mark of an illiterate person when a document was executed by him. But there is no reliable evidence in support of that case; and it remains a mere assertion made at the Bar;
13. (2) The Memorandum purports to be written by Gandhi Malukchand at the request of the parties. At the date of the trial of the suit; out of which this appeal arises, Gandhi Malukchand was alive. But no attempt was made to examine him as a witness to prove that the document was in his handwriting. For not examinining Gandhi Malukchand who was practising the profession of law at Halvad, the reasons suggested are flmsy. It is said that Gandhi Malukchand was an old man and in failing health. But that did not prevent the defendants from applying for a commission for his examination at Halvad. It was also said that Gandhi Malukchand was siding with the plaintiff. Even if that was so, they should have left it to the court to decide whether his testimony was untrue. In any case the court could have been requested to examine Gandhi Malukchand as a Court witness, so that if he did not support defendants he could be cross examined by them. It was also said that the plaintiff had relied upon certain documents for the proof of which it was necessary to examine Gandhi Malukchand, but he was not examined. To these documents, we will presently refer. It may suffice to observe at this stage that those documents were produced in evidence when the High Court remanded the case for recording additional evidence sometime in the year 1961. It is difficult to appreciate the grounds on which the defendants could have assumed that the plaintiff will be required to prove some documents which may necessitate the presence of Gandhi Malukchand as a witness and therefore they will not examine him as a witness;
14. (3) The handwriting of Kastur Amarchand who claimed to have signed the entry at the instance of Shamji was not proved;
15. (4) No extracts from the revenue records showing that the properties referred to in the Memorandum were mutated pursuant to the Memorandum relied upon by the defendants; and
16 (5) There is an alteration of the figure '1969' when it occurs for the second time in the Memorandum: the original figure is scored out and the figure '1919' is written. The alteration of the figure '1969' into '1919' is not capable of any rational explantion. The original was not produced before us, but counsel for the defendants showed to us a photostat copy in which the figure '1969' was scored through and the figure '1919' was written.
17. The Memorandum is in the book of account of Laxmishankar and Narbharam for the year 1913. At the date of the trial of the suit the entry was more than 30 years old and on the case of the defendants it came from proper custody. The Memorandum could therefore, be regarded as proved under Section 90 of the Evidence Act. But technical proof of the document does not invest it with strong evidentiary value. It was open to the plaintiff to show that the Memorandum was not genuine, or that it did not recite true facts :
18. The circumstances raise a strong inference that the Memorandum cannot be accepted as evidencing severance of the joint family status in 1913. It does not refer to the partition of the family house. It appears that Shamji, and after his death his widow Man Kunvar and Chunital lived in the house, and later Deo Kunvar widow of Laxmishankar also lived in that house. There would have been same Municipal or other entries forth coming if it was true that partition was made in 1913 showing the division of the house. But none such is forthcoming.
19. The conduct of Laxmishankar and Narbharam is also inconsistent with the case set up by the defendants that Shamji had separated from the joint family in 1913 and that his son Chunilal had no intrest in the 'property in their partition. Three deeds Ext. 18 dated April 3, 1923, Ext. 17 dated November 19, 1928 and Ext. 16 dated -May 29, 1933, may immediately be referred to. Exhibit 18 dated April 3, 1923 is a registered sale deed of land in Cuttack executed by Gani Bax in favour of the plaintiff Chunilal represented by his uncle Laxmishankar. In 1923 Chunilal was about 6 years and was living at Halvad. It is recited in that deed that the executant of the sale deed Gani Bux was in need of money for the marriage of his son Abdul Jalil and that he had borrowed a loan of Rs. 150/- from Mani Kunvar wife of Narbharam by executing a simple mortgage bond in her on January 8, 1923, but since that amount was insufficient he had to sell the property. The mortgage deed in favour of Mani Kunvar in Ext. Y(3) executed by Gani Bux on January 9, 1923. Counsel for the defendants suggested that this sum of Rs. 150/- was advanced by Mani Kunvar from her stridhana property and she had obtained the mortgage deed in her favour. On this part of the case there is no evidence. Mani Kunvar was alive at the date of the trial of the suit but she did not give evidence. Even if it be assumed that Mani Kunvar had her stridhana funds and Rs. 150/- were advanced on the security of the property mortgaged, there is no explanation why the sale deed should be taken in the name of Chunilal represented by his uncle Laxmishankar.
20. The next deed is Ext. 17 dated November 19, 1928, executed by Handu Das and two others conveying a house to Laxmishankar, Chunilal son of Shamji, and Narbharam for Rs. 200/-. It is recited in the deed that previously an amount of Rs. 100/- was borrowed on November 1, 1925, under a mortgage of the land and house and as some more money was required by the vendor, the sale deed was executed. The mortgage deed referred to in Ex. 17 is Ext. Y(1) a deed executed in favour of Laxmishankar on November 16, 1925- Here again there is no explanation why in 1928 when a sale deed in respect of the property mortgaged in favour of Laxmishankar was obtained, the name of the plaintiff Chunilal who was then about 11 year old was included.
21. The third deed is Ext. 16 dated May 29, 1933 a saledeed executed by Narbharam, his son Mulshankar aged 11 yearand Chunilal aged 16 years. The purchaser is Snecbalata Devi andthe sale is for Rs. 400/-. It relates to an agricultural land 0-38acres in area. This laud apparently was for Rs. 200/- on July30, 1928, under a registered sale deed (Ext. Y(13) from one MadanBehura. The purchaser was Mulshankar acting through his guarguardian Mani Kunver.
22. In these three deeds Chunilal was associated in dealings relating to properties either sold or purchased by the other members of the family. No rational explanation has been given by the defendants in that behalf. Counsel for the defendants submitted that in none of these properties' the plaintiff had claimed a share. But the value of the evidence lies not in the fact that the properties did contian to remain the properties of the joint family; its evidentiary value lies in the fact that between 1923 and 1933 when Chunilal was a' minor he was associated in transactions of sale and purchase of properties in the names of other members of the family.
23. In the Survey records also the name of Chunilal was entered as a holder in possession of several item of property, which were claimed by the defendants. Settlement proceedings were commenced in Cuttack some time in 1928 and continued till 1933. In Khata No. 229 Plots Nos. 592 & 593 relating to a land originally belonging to Tulasa Dei the property is shown to have been transferred to the names of Laxmishankar, Narhbaran and Chunilal in respect of Khata No. 344, Plots Nos. 616 and 619 the properties were shown to be in the possession of Laxmishankar, Narbharam and Chunilal. Another land in Khata No. 306, Plot No. 591 was also shown as purchased by Laxmishankar, Narbharam and Chunilal. Similar entries are to be found in the names of Laxmishankar, Narbharam and Chunilal in respect of Khata No. 344 Plots Nos. 610, 611, 612, 613 and 614 Khata No. 390 Plot No. 609.
24. Counsel for the defendants said that Laxmishanker and Narbharam did not know the Oriva language and they had given to one Batakrishna a power of attorney to attend the proceedings before the settlement Officer, and that Batakrishna had in collusion with the plaintiff and persons interested in him, got false entries made. But there is evidence that Laxmishankar and Narbheram were present before the Settlement Officer, and were aware of the Settlement proceedings. Witness Govind Chowdhury has deposed that Laxmishankar and Narbharam were present during the settlement operations when entries in the record were made in respect of their properties and that.Batakrishan was assisting him. The High Court accepted the testimony of one Chandramoni Kanungo who stated that neither Laxmishankar nor Narbharam ever attended the settlement proceedings. We see no reason to differ from the High Court on this point.
25. Entry of the name of Chunilal as a person either in possession or having a title to the properties referred to in the settlement record would be a singular circumstance, if he had no concern with the lands. As we have noticed earlier his name is included in formal Documents executed either in his favour or on his behalf and that could obviously be with the consent of the other members of the family. There is a recital in Ext. 16 about the settlement records, and it was recited therein that Mulshankar and Chunilal were shown to be in possession thereof by virtue of purchase and a Patta which had been obtained in their names. This clearly shows that settlement proceedings were known to Narbharam who acted as a guardian of Chunilal in Ext. 16 by a 177(3) of the Orissa Tenancy Act entries in the settlement register are presumed to be correct. Narbharam and Laxmishankor were not ignorant villagers. They were sophisticated businessman and it is difficult to believe that they were unaware of the importance of settlement proceedings, and of the entries made in the settlement records in Chunilal's name with regard to the properties which belonged to them and in which Chunilal had no interest. We are unable to hold that without their knowledge the name of Chunilal was entered in registered documents and in the settlement recordas a person having interest in properties to which those documents related.
26. Conduct of other members of the family and outsiders also throws some light on the question in dispute Exhibit E is a will by Deo Kunvar widow of Laxmishankar executed on January 21, 1939. It is recited in the will that she had an immoveable property, and a house at Halvad; that the land and the building was in the joint ownership of herself, Narbharam and Chunilal 'without dissolution of partnership' and that she bad a third share in it and that after her death Chunilal was to be the owner of the property. The will obviously has no legal effect for it purports to be executed by a widow in a Hindu undivided family, disposing of her alleged share on the assumption that it had devolved upon her on the death of her husband. But the will is evidence of the admission made by Deo Kunvar that the house was of joint ownership of herself deriving title from her husband, and of Narbharam and Chunilal. It was urged that Gandhi Malukchand was responsible for the fabrication of this will. The will bears the attestation of four witnesses including Gandhi Malukchand But on that account we are unable to hold that the lawyer was attempting to create in 1939 evidence in favour of the plaintiff.
27. Exhibit 2 dated August 6, 1923 is a Sanad issued' by the Ruler of Dhrangadhara, the relevant part of which states :
''Passed by Maharajadhiraj Mabarana Shri Ghanshyamsingji Dharanpadhara State, in favour of Nandwana Narbharam Purushottam doing the Vehivat (management) of Oza Purshottam Jeha resident of Halvad'.
By that Sanad apparently some area of land on which there was encroachment was granted to Narbharam. The Sanad is dated August 6, 1923, and it is relevant because it purports to be a grant in favour of Narbbaram as representing Oza Purshottam Jeha (the sons of Purshottam). It was contended that the expression 'Vahivat' (Management) of Oza Pursbottom Jeha' had been interpolated in the document. But that in our judgment, is a futile suggestion. The Sanad evidences a grant and is executed by an officer of the Dhrangadhara State It does not appear from the judgment of the High Court that there was anything which supported the contention that there was interpolation in the Sanad. The defendants could have the original or a copy of the grant produced from the State records. It is true that at the date of the trial the State of Dharanghara had ceased to exist as a separate entity, but the record of that State which had merged in the State of Saurashtra could not been destroyed. No attempt was made to secure a copy of the grant from that State The suggestion made by counsel for the defendants 'that the document was in the handwriting of Gandhi Malukchand is without any witnesses. In terms it is a grant made on behalf of the State.
28. Certain circumstances on which reliance was placed on behalf of the defendants may now be considered. Exhibit B 1 is a mortgage bond for Rs. 300/- executed by Sbivshankar Ranchhod in favour of Chunilal 'represented by Narbharam. The bond purports to have been executed in favour of Narbharam who is described as 'doing the Vahivat (management) of Nandwana Shamji Purshottam'. The circumstances that the bond is in favour of the minor Chunilal acting through his guardian Narbharam does not give rise to an Inference that Chunilal was separate from his uncle who acted as his guardian.
29. Strong reliance was placed upon the order made by the Nyayadish, Halvad Mahal, dated January 7, 1919. It appears that on January 7, 1919 Narbharam presented for registration the documents as guardian on behalf of Chunilal, It was recited in the application that Narbharam was doing Vahivat of shamji and he was on that account entitled to produce the document for registration. On that on January 7, 1919, the Nyayadish, Halvad Mahal, who Apparently exercised the powers of the Registrar of Conveyances made in order that Sharnji had died and Narbharam and Shamji were not joint; and that Man kunvar widow of Shamji stated that she had no objection to the registration of the document. These observations made by the Registrar do not amount to any decision given on objection raised before him which the Registrar was competent to decide. The statement of Man Kunvar widow of Shamji does not so indicate. Presumably the Registrar thought that when the minor's mother was living, and the uncle was still setting up a document to be presented for registration it was necessary that the mother should be called and in the course of that proceeding he observed that Narbharam and Shamji were not joint. We do not think that any undue importance may be given to that recital.
30. Reliance was also placed upon a mortgage deed executed in favour of Chunilal on April 16, 1925. In that deed the plaintiff Chunilal was represented by his mother Man Kunvar. The executant was Joshi Fulji Bechar. On this deed a suit was instituted in the Court of Nyayadish, Halvad Mahal, against the mortgagor's sons. The plaint is signed by Man Kunvar as guardian of Chunilal Shamji. The suit was decreed on August 9, 1930, and a proceeding in execution was taken for recovery of the amount. It appeals that at time of institution of the suit and the execution proceedings the plaintiff Chunilal was in Cuttack. The circumstances that his mother filed the suit and obtained the decree and executed the same does not in our judgment, lead to the inference that Chunilal was separated from his uncle.
31. Reliance was placed upon three letters Exts. W(180) dated May 1, 1926, W(182) dated-May 14, 1927 and w(181) dated June 4, 1927. The first letter is written by Laxmishankar to Narbharam. It refers to the 'ploughing of a field'. The second letter is written by Laxmishankar and another to Motiram and others. It is also with regard to letting of a piece of land. The third letter is written by Gandhi Malukchand on behalf Phui Shankar to Laxmishankar regarding the ploughing of some land. These letters do not throw any light on the question of dispute.
32. There is a letter written by Deo Kunvar on November 10, 1938 Ext. W (136) in which she bemoaned ter extreme poverty and stated that she had been suffering from illness for a fortnight.
The letter only shows that the members of the family residing at Cuttack were not prepared to look after Deo Kunvar, when after the death of her husband she was living at Halvad. It was not the case of the defendants that Laxmishanker had separated and the fact Deo Kunvar was not given any maintenance by the defendants will not prove that the plaintiff Chunilal had separated from the joint family.
33. Finally, reliance was placed upon a letter Ext. L writtenby Chunilal to Mani Kunvar in which he had stated that he hadaddressed a letter to Mulshankar asking for Rs. 200/- for medicaltreatment but nothing was sent to him. Chunilal in that letterstated that he will 'sooner or latter repay' that amount, that if hewas helped he would feel obliged and that if he survived he wouldrepay the amount, if he did not repay it may be written off. Wedo not think that this letter also raises any justifiable inferencethat the plaintiff was conscious that he had not interest in theproperty. He had barely attained the age of majority and beingstruck with a serious ailment he asked for help for medical treatment. It cannot be inferred therefrom that Chunilal write theletter in the belief that there was severance between him and theother members' of the family. It appears that even when DeoKunvar was lying seriously ill, very little help was rendered toher by the defendants The defendants did not recognize the claimseither of the plaintiff or of Deo Kunvar. But that, in our judgment, will not lead the inference that there was severance of thefamily.
34. No attempt was made to rely upon the oral evidence of the witnesses examined at the trial. The reason is obvious. The partition set up by the defendants took place, if it was true, in 1913, and within five years thereafter Shamji died. The suit was tried in 1956. The three brothers had died many years before that year. Deo Kunvar also was dead The witnesses who were examined were either born after 1913 or were infants then. They could have no personal knowledge of the transaction which took place in 1963 and counsel for the defendants has rightly not attempted to rely upon the oral testimony of those witnesses. Mani Kunvar who might possibly have some information has not chosen to enter the witness box. It may, however, be observed that when her husband died in 1934, she was a young woman in her thirties and she could not have any information as to what her husband did in the year 1913.
35. Admittedly Laxmishankar, Narbharam and Shamji were members of a joint family till 1913. It is the defendants' case that there was severance of the joint family status in the year 1913. It is not the case that severance took place at any lime after 1913. If the defendants fail to establish severance in 1913, the joint family must be held to be subsisting at the date of the suit.
36. 'But the proof of the fact that there was a subsisting joint family between the plaintiff and the defendants will not establish that all the properties in the possession of the joint family. It is true that the plaintiff set up the case that the defendants had acquired the properties with the aid of the joint family nucleus and were on that account the properties were joint family properties.
37. The ancestral estate was meagre. There was one house and some land which was not very productive. Even on the plaintiff's own admission the income from the family estate did not exceed Rs. 200/- per annum and the family house could not yield any income. The three brothers and their respective wives had to be maintained out of this income. It is difficult to believe that there was any substantial saving with the aid of which the business in bricks could be narrated. Some suggestion was also made that Shamji during his lifetime was associated with his brothers in the business of brick making and coal business, and the business continued to be joint family business. There is no evidence that Shamji was associated with his two brothers in the business of brick making. The brick making business was started by Laxmishankar and Nerbharam, and there is no clear evidence as to when the coal business was started and who started it. But it seems that the coal business was also started by Laxmishankar and Narbheram.. In the absence of any evidence to prove that the brick making and coal business were started with the aid of joint family nucleus, we cannot hold that the business were of the joint family in which the plaintiff was a member.
38. The High Court has given to the plaintiff a share in those properties only in which his name was entered in the settlement records. Counsel for the defendants contends that the plaintiff had never made out a case that the properties were thrown into the joint family stock and on that account they had become joint family properties. The plaintiff did assert that the properties in which he had been given a share were joint family properties and that the High Court has given to the plaintiff a share therein. We do not think that we would be justified in taking a technical view of the pleadings and hold that even though the properties were entered in the names of Laxmishanker. Narbharam and Chunilal as joint owners, the plaintiff's suit should fail merely because it was not expressly pleaded that those properties were thrown into the joint family estate. Such a technical view of the pleadings would in our judgment, be justified.
39. The High Court has given to the plaintiff a share not only in the properties which were jointly entered in the revenue records, but also a share in the coal business. As we have already observed that there is no evidence that the coal business was started with the aid of joint family funds. There is no evidence about the fear in which of the coal business was commenced. In the circumstances it cannot be assumed that the defendants were carrying on the coal business, on behalf of the joint family of the plaintiff and defendants. The High Court was, in our judgment, in error in granting to the plaintiff a share in the coal business carried on by defendants 1 and 2. The observations made by the High Court that 'the coal business grew out of the brick business which was also started with some nucleus brought by the two brothers Laxmishanker and Narbfaaram from Halvad in 1905' are not supported by' any evidence. On the view we take there is no evidence to show that the brick business was started with the aid of any nucleus of the joint family estate. The decree passed by the High Court declaring a half share in the coal business in the Railway Dock Yard, Cuttck, must therefore be set aside.
We accordingly modify the decree passed by the High Court and set aside the declaration made by the High Court with regard to the plaintiffs claim of a half share in the coal business carried on by defendants 1 and 2. Subject to that modification the appeal is dismissed. The plaintiff will be entitled to two thirds of his costs in this Court. The order of costs passed by the High Court is maintained.