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Kapoorchand Vs. Lalchand and ors. - Court Judgment

LegalCrystal Citation
SubjectProperty
CourtRajasthan High Court
Decided On
Case NumberFirst Appeal No. 87 of 1973
Judge
Reported inAIR1975Raj178; 1974(7)WLN955
ActsEvidence Act, 1872 - Sections 90; Easements Act, 1882 - Sections 60, 62 and 62(2)
AppellantKapoorchand
RespondentLalchand and ors.
Appellant Advocate K.N. Tikku, Adv.
Respondent Advocate M.B.L. Bhargava and; A.K. Bhandari, Advs. (for Nos. 4 and 5) and;
DispositionAppeal dismissed
Cases ReferredIn Mansukh Pana Chand Shah v. Trikambhai Ichhabhai
Excerpt:
.....rebut that presumption, it stands proved from the document that mst. if these requirements are satisfied, documents thirty years old prove themselves and their genuineness as to signatures, attestation etc. it is highly improbable that a lady like mst. jham-kobai came to an end on her death in 1946. it is further contended that there exists no reliable evidence of granting licence or permission by the plaintiff after the death of mst. jhamkobai was that of a trespasser and she acquired title to the property on the expiry of 12 years with the result that the suit brought by the plaintiff stands clearly barred by limitation. all these facts are no longer in dispute before me, 9. now it is well settled that a lady who has only a life interest in the property cannot grant a licence so as to..........through mst. gendbai and mst. gulabbai, for, according to him, they were in possession of the house as licencees of mst. jhamkobai and after the death of mst. jhamkobai as licencees of the plaintiff. in support of the above contention, the plaintiff relies upon the document ex. 1 dated 11-3-32. this document is alleged to have been executed by mst. gendbai and mst. gulabbai in favour of mst. jhamkobai. the relevant portion of this document runs as under:--^^bdjkjukek cj dkxt lvkei ,d :i;k1 ij cgd vkids rgjhj djds bdjkj djrh gs fd ge nksuks csoxku rkthlr vk;zru ftuedkuksa esa jgrh vk jgh gs o vkbzunk hkh vk;zru gh jgrh jgsxh vksj nhxj edkukrgosyh ds fdjk;s dh vkenuh ls viuk xqtkjk djrh jgsxh a** it is argued by the learned counsel for the plaintiff that as this document ex. 1.....
Judgment:

S.N. Modi, J.

1. This first appeal is directed against the judgment and decree of the learned Additional District Judge, Tonk, camp ,at Jaipur, dated 12-3-73 dismissing the suit for declaration, possession and injunction brought by the deceased-plaintiff Bhonrilal, hereinafter be referred to as the plaintiff.

2. The dispute relates to a house situate at Chokri Modikhana, Rasta Ma-niharan at Jaipur, fully described in para. No. 1 of the plaint. Briefly stated, the relevant facts on which the plaintiff based his claim are like this:--

According to the plaintiff, the house in dispute originally belonged to Motilal and his brother Pannalal, and their sons Baldeo alias Ballulal and Joharilal respectively. The last male member who survived in the family of the aforesaid persons was Badlev. He too died sometime in the year 1912, leaving behind his daughter Mst. Jhamkobai and her children Mst. Gilkhabai, Mst. Teejabai and the plaintiff,

Mst. Gendbai and her daughter-in-law Mst. Gulata Kanwar resided in two of the apartments of the suit house namely, sal and tibara situated in the northern line of the house with the permission of the ancestors of Mst. Jhamkobai and Mst. Jhamkobai herself. The plaintiff's case is that Mst. Gendbai and Mst. Gulab-bai were permitted to live in the house as they were indigent issueless widows and there was none to look after or support them. Mst. Jhamkobai at the request of Gendbai and Mst. Gulabbai further allowed them to realise rent from other tenants in the house and appropriate the same towards their maintenance. The plaintiff further alleged that with a view to avoid any dispute in future Mst. Gendbai and Mst. Gulabbai executed document Ex. 1 on 11-3-32 in favour of Mst. Jhamkobai. Mst. Gendbai died on 16-11-45. 15 months thereafter Mst. Jhamkobai died on 7-2-46. After the death of Mst. Jhamkobai, the plaintiff succeeded to the property as heir of his maternal grandfather Baldeo. He did not disturb the previous arrangement, in veiw of the poverty and indigent condition of Mst. Gulabbai. He expressly permitted Mst. Gulabbai to continue to reside in the house and to realise rent from the tenants as hitherto before.

According to the plaintiff, the dispute arose on the death of Mst. Gulabbai on 19-8-62. The plaintiff after her death went to the house to take possession of the apartments which were in occupation of Mst. Gulabbai but he was not allowed to do so by Kistoorchand, defendant No. 1, Tarachand, defendant No. 2 and Bhag-chand, defendant No. 3. These defendants asserted their own title to the house. The plaintiff then asked the tenants, defendants Nos. 6 to 10, to execute rent-notes in his favour but they also refused to oblige him. The plaintiff then reported the matter to the police and also initiated proceedings under Section 145, Cr. P. C. but when he failed to obtain any relief from the criminal court, he ultimately brought the present suit on 25-4-63 for grant of a declaration that he is the owner of the house. He also prayed for possession of the house as also that the sale-deed dated 23-8-62 executed by defendant No. 1 Kistoorchand in favour ofdefendants Nos. 4 and 5 be held ineffective against his interest. During the pendency of the suit, the plaintiff as also defendant No. 1 Kistoorchand, defendant No. 7 Chandmal, defendant No. 8 Gan-patsingh and defendant No. 9 Mahalji died and their legal representatives were brought on the record.

The suit was resisted by defendants Nos. 1 to 5. They traversed all material allegations pleaded in the plaint. They denied execution of the document Ex. 1-by Mst. Gendbai and Mst. Gulabbai. They asserted that Ex. 1 was a forged document. According to the defendants Mst. Gendbai and Mst. Gulabbai were in possession of the house in their own right as owners. On the pleadings of the parties, several issues were framed by the trial court. Of them the important ones are these:--

'1. Whether the disputed Haveli belonged to Motilal, Pannalal, Johari-lal and Ballulal?

2. Whether Baldev alias Ballulal was the last owner of the Haveli in dispute and after this death Mst. Jhamkobai became the owner of the same?

3. Whether Mst. Gendbai and Mst. Gulabbai lived in the northern line of the Haveli and sal facing east and the possession of these ladies was permissive from Mst. Jhamkobai and her ancestors?

4. Whether Mst. Gendbai and Mst. Gulabbai took rent of other portions of the house with the permission of Mst. Jhamkobai and executed an Ikrarnama on 11th March, 1932?

5 to 9. x x x10. Whether the suit is barred by limitation?11. x x x'

3. The learned Additional District Judge, on a consideration of the oral and documentary evidence produced by the parties, found against the plaintiff that he was the owner of the house and that Mst. Gendbai and Mst. Gulabbai were in permissive possession of the house. He accordingly decided issues Nos. 1 to 4 against the plaintiff. No finding was recorded on issue No. 10. Since the plaintiff has failed to prove his title or possession, the learned Additional District Judge dismissed the suit. Dissatisfied with the said judgment and decree, the legal representative of the plaintiff, namely, Kapoorchand, has preferred this appeal.

4. The facts narrated in the plaint clearly go to show that from a period prior to 1932 Mst. Gendbai and Mst. Gulabbai were in possession of the entire house and their possession continued upto 1962. They were in actual possession of two of the apartments, namely, sal and tibara in the northern line of the house and as regards the rest of the apartments they were in possession through tenants from whom they realised rent and appropriated the same to their own use. After the death of Mst. Gulabbai in 1962 it is admitted that the plaintiff was not allowed to take possession of the house and the defendants continued to remain in possession till the date of the suit. There is thus no doubt that at no time within 12 years from the date of the suit the plaintiff was in possession of the suit house. The plaintiff claims possession of the house through Mst. Gendbai and Mst. Gulabbai, for, according to him, they were in possession of the house as licencees of Mst. Jhamkobai and after the death of Mst. Jhamkobai as licencees of the plaintiff. In support of the above contention, the plaintiff relies upon the document Ex. 1 dated 11-3-32. This document is alleged to have been executed by Mst. Gendbai and Mst. Gulabbai in favour of Mst. Jhamkobai. The relevant portion of this document runs as under:--

^^bdjkjukek cj dkxt LVkEi ,d :i;k1 ij cgd vkids rgjhj djds bdjkj djrh gS fd ge nksuks csoxku rkthLr vk;Zru ftuedkuksa esa jgrh vk jgh gS o vkbZUnk Hkh vk;Zru gh jgrh jgsxh vkSj nhxj edkukrgosyh ds fdjk;s dh vkenuh ls viuk xqtkjk djrh jgsxh A**

It is argued by the learned counsel for the plaintiff that as this document Ex. 1 purports to be more than 30 years old and was produced from proper custody, the trial court by its order dated 17-1-68 rightly raised a presumption as to its genuineness under Section 90 of the Evidence Act. Since the defendants have failed to rebut that presumption, it stands proved from the document that Mst. Gendbai and Mst. Gulabbai were mere licencees and they were in possession of the house on behalf of Mst. Jhamkobai. It is further argued that the learned Additional District Judge in face of his previous order dated 17-1-68 committed gross error in doubting the genuineness of this document in the impugned judgment. On the other hand, it is argued on behalf of the defendant-respondents that the order of the trial court dated 17-1-68 by which a presumption was raised as to the genuineness of the document Ex. 1 was entirely wrong, uncalled for and unwarranted. It is further argued that the trial Judge himself on consideration of the evidence appearing on the face of the document held in hisjudgment that the document is not genuine.

5. I have carefully examined the document Ex. 1 and considered the arguments advanced on behalf of the parties. Section 90 of the Evidence Act reads as under:--

'Sec. 90-- Where any document, purporting or proved to toe thirty years old, is produced from any custody which the court in the particular case considers proper, the Court may presume that the signature and every other part of such document, which purports to be in the handwriting of any particular person, is in that person's handwriting, and, in the case of a document executed or attested, that it was duly executed and attested by the person by whom it purports to be executed and attested.

Explanation.-- Documents are said to be in proper custody if they are in the place in which, and under the care of the person with whom, they would naturally be; tout no custody is improper if it is proved to have had a legitimate origin or if the circumstances of the particular case are such as to render such an origin probable.

This explanation applies also to Section 81.'

The principle underlying this section is that if a private document 30 years old or more is produced from proper custody and is on its face free from suspicion, the Court may presume that it has been signed or written by the person whose signatures it bears or in whose handwriting it purports to be. In other words, the age of a document, its unsuspicious character, its production from proper custody and other circumstances are the foundation for the presumption of genuineness under Section 90 of the Evidence Act. If these requirements are satisfied, documents thirty years old prove themselves and their genuineness as to signatures, attestation etc. is presumed. In Shafiq-un-Nissa v. Shaban Ali Khan, (1904) ILR 26 All 581 (PC), the courts below notwithstanding that the document was thirty years old and had been produced from proper custody refused to raise the presumption under Section 90 of the Evidence Act on the ground that the document threw great doubt on its genuineness. The courts below therefore did not. admit the document in evidence without formal proof and rejected it when no such proof was given. When the case went before the Privy Council, the Judicial Committee held that the discretion exercised by the courts below was rightly exercised. In Mansukh Pana Chand Shah v. Trikambhai Ichhabhai, AIR 1930 Bom 39, it was observed that in the case of the document more than 30 years old the genuineness of which isdisputed, the courts should consider the evidence both external and internal appearing on the face of document in order to enable them to decide whether in any particular case they should or should not presume proper signature and execution.

6. If the document Ex. 1 is examined, keeping in mind the above principles, I am of the opinion that the court below was not justified in presuming the genuineness of the document under Section 90 of the Evidence Act by order dated 17-1-68. A hare look at the document would show that it is not free from suspicion. The manner in which it is written, the spreading of the ink on the back side of the paper and the condition in which the two thumb impressions alleged to be of Smt. Gendbai and Smt. Gulabbai appear, indicate that the document is not beyond suspicion. Again, if we read the contents of the document, they also lead to the same inference. The document does not show why Mst. Jham-kobai or her ancestors were so much interested in Mst. Gendbai and Mst. Gulab-bai as to allow them to live in the house free of charge. Not only that, Mst. Jhani-kobai also permitted them to realise all the rent from other tenants and utilise the same for their maintenance. This sort of philanthropic act of Mst. Jhamkobai would have been easily understandable if Mst. Jhamkobai had been affluent lady with abundant wealth, but the matter appears to be quite reverse. The plaintiff's own witnesses have admitted that Mst. Jhamkobai and her husband owned no house and they resided in a rented house throughout their lives. In these circumstances, it is highly improbable that Mst. Jhamkobai would grant a licence simply because Mst. Gendbai and Gulabbai were childless, indigent widows with none to support them. It is highly improbable that a lady like Mst. Jhamkobai who herself lived in a rented house would allow the two widows with whom she had no apparent relationship to occupy not only certain apartments of the house but also allow them to realise rent from other tenants of the house. The defendants in their written statements not only denied the genuineness of the document Ex. 1 but it was also asserted that it was a forged document. In this background, I have no hesitation to say that the trial court was wholly unjustified in exercising its discretion under Section 90 of the Evidence Act to presume the genuineness of the document Ex. 1 by its order dated 17-1-68. The trial court in the circumstances should have required the plaintiff to prove the document.

7. It is argued on behalf of the plaintiff-appellant that since no opportunity was afforded to the plaintiff to provethe document the case may either be remanded to the trial court or the plaintiff may be allowed bo adduce evidence in this Court to prove Ex. 1. On the other hand, it is strenuously contended on behalf of the defendants that no useful purpose is going to be served even if the plaintiff is allowed to prove the document Ex. 1. It is contended that the document Ex. 1, even if it toe deemed to be genuine, merely creates a licence in favour of Mst. Gendbai and Mst. Gulabbai and this licence or permission given by Mst. Jham-kobai came to an end on her death in 1946. It is further contended that there exists no reliable evidence of granting licence or permission by the plaintiff after the death of Mst. Jhamkobai. In these circumstances, it is contended that the possession of Mst. Gulabbai after the death of Mst. Jhamkobai was that of a trespasser and she acquired title to the property on the expiry of 12 years with the result that the suit brought by the plaintiff stands clearly barred by limitation.

8. Prom the plaint allegations, it is clear that Baldev alias Ballulal died leaving his daughter Mst. Jhamkobai. The latter being the nearest heir of Bal-dev, she inherited the property in dispute. Again, it is admitted that Mst. Jhamkobai being a female heir, she had only a life interest in the property. According to the law prevailing in those days, it is further not in dispute that the plaintiff who is the son of Mst. Jhamkobai inherited the suit property after the death of Mst. Jhamkobai not as an heir of Mst. Jhamkohai but as an heir of his maternal grand-father Baldev. All these facts are no longer in dispute before me,

9. Now it is well settled that a lady who has only a life interest in the property cannot grant a licence so as to continue even after the ceasing of her life interest. The licence granted by Mst. Jhamkobai who admittedly had life interest in the suit property ceased to have any effect on her death in 1946. Under Section 62(a) of the Easements Act, the licence would be deemed to have been revoked by operation of law as soon ,as Mst. Jhamkobai died. The learned counsel for the plaintiff, however, argues, in the first instance, that the licence granted by Mst. Jhamkobai being irrevocable, it cannot be deemed to have been revoked or ceased to have any effect on the death of Mst. Jhamkobai. In this connection my attention has been drawn to the document Ex. 1 which provides that the licence granted to Mst. Gendbai and Mst. Gulabbai shall last till their lifetime. In the circumstances, it is argued that the licence was irrevocable during the lifetime of either of the two licencees. It is next argued that Mst. Gendbai and Mst. Gulabhai were allowed to realise rent from other tenants of the house and that being the case, the licence granted to Mst. Gendbai and Mst. Gulabbai was not a simple licence but ,a licence coupled with a grant or profit a prendre. According to the learned counsel, such a licence is irrevocable. I regret to say that these contentions have not impressed me at all. As already pointed out above, a person having life interest in the property cannot grant any licence whether revocable or irrevocable so as to last after her death or after the ceasing of the life-interest. Section 62(a) of the Easements Act is not controlled by Section 60 of the same Act. Even if a licence has become irrevocable under the provisions of Section 60, it shall be deemed to be revoked if from a cause preceding the grant of it, the grantor ceases to have any interest in the property. In the present case, Mst. Jliamkobai admittedly had life interest in the property even before the licence was granted by her. The licence therefore came to an end on her death irrespective of the fact whether it was revocable or irrevocable.

10. Lastly, it is argued on behalf of the plaintiff-appellant that it is proved from tihe statement of the plaintiff that after the death of Mst. Jhamkobai, the plaintiff orally granted a licence or permission to Mst. Gulabbai to remain in occupation of the apartments and also go on receiving rent from the tenants as hitherto before. It is true that the plaintiff has deposed so in his statement but the question arises whether this statement is reliable one. Having regard to the circumstances of the case, I am not inclined to believe his solitary testimony. As already pointed out above, the plaintiff has no house of his own and he was himself living in a rented house even after the death of Mst. Jhamkobai. It is difficult to believe that such a person would grant a licence to a widow not only for her residence but also allow her to realise rent from the tenants of the house. In my opinion, the plaintiff's statement has no semblance of truth and cannot be acted upon.

11. For the reasons stated above, the appeal fails and it is dismissed with costs.


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