Kan Singh, J.
1. The two appeals before me arise out of the judgment and decree of the learned Senior Civil Judge No. 1, Jodhpur in a suit under Order 21, Rule 103, Civil Procedure Code.
2. Plaintiff Hastimal and others were the sons of late Shri Mukanchand Balia. Eao Raja Panney Singh had mortgaged one 'Haveli' known as Haveli of Thikana Sanwrad situated at Jodhpur and fully described in para 4 of the plaint, as also some other property for Rs. 28,000/-with Shri Mukanchand Balia by a registered mortgage deed on 14-9-1943. On 21-1-1946, Rao Rafa Panney Singh took a fresh loan of Rs. 7,000/- and executed a second mortgage in favour of Shri Mukanchand. According to the plaintiffs, this Haveli belonged to Rao Raja Panney Singh and for it he had a patta dated 9-7-1934 in his name as also in the names of his sons Rao Raja Ranveer Singh, Rao Raja Chain Singh, Rao Raja Sukh Singh and Rao Raja Tej Singh, the defendants in the case.
Shri Mukanchand obtained a decree for the sale of the mortgaged property from the court of the Senior Civil Judge. The final decree was passed on 30-11-56. Thereafter, the Haveli was put to auction and the decree-holder Shri Mukanchand himself purchased it and obtained a sale certificate in his favour. After obtaining the sale certificate Shri Mukanchand applied for possession of the Haveli. The Court Amin put him in possession of a portion of the Haveli described in para 11 of the plaint, but in respect of the remaining parts of the Haveli, defendant Smt. Swaroop Kanwar widow of Rao Raja Fateh Singh offered resistance. Likewise, Smt. Vijay Kanwar widow of Rao Raja Arjun Singh offered resistance. Accordingly, Shri Mukanchand applied to the Court under Order 21, Rule 97, Civil Procedure Code. Both the ladies filed their objections claiming that they were living in the Haveli in their own right.
The execution court dismissed Shri Mukanchand's application on 21-4-61. Smt. Vijay Kanwar died after this order was passed. Defendants Nos. 2 to 11, that is, Rao Raia Ranveer Singh, Rao Raja Chain Singh, Rao Raja Sukh Singh, Rao Raja Tej Singh, Rao Raja Puran Singh, Rao Raja Kalyan Singh, Smt. Padam Kanwar, Smt. Ratan Kanwar, Smt. Sajjan Kanwar, Smt. Lichhman Kanwar and Smt. Basant Kanwar were made the defendants in the case as legal representatives of Smt. Vijay Kanwar. Shri Mukanchand too had died and accordingly his sons brought the suit under Order 21, Rule 103, Civil Procedure Code for a declaration that the entire Haveli belonged to Rao Raja Panney Singh and that the defendants had no right, title or interest therein.
3. Defendant No. 1 Swaroop Kanwar in resisting the suit took the stand that the Haveli in question was not known as 'Haveli of Sanwrad', but it was purchased by Rao Raja Bhawani Singh, her father-in-law and it was known after his name. She further averred that on Sawan Ved 1, Samvat 1967, Rao Raja Bhawani Singh had given half portion of this Haveli to each of his younger sons Kishan Singh and Fateh Singh. As Fateh Singh had no son, Smt. Swaroop Kanwar claimed to have succeeded him as his heir. She further stated that by virtue of Section 14 of the Hindu Succession Act, 1956 her limited estate in the Haveli as the widow of Fateh Singh ripened into fullfledged ownership of the Haveli and consequently the mortgage on which the heirs or Shri Mukhanchand relied or the mortgage decree for that matter were not binding on her.
Rao Raja Tej Singh, Rao Raja Sukh Singh, Rao Raja Chain Singh and Rao Raja Puran Singh, the four out of five sons of Rao Raja Panney Singh claimed that the half portion of the Haveli belonged to Rao Raja Arjun Singh and on Rao Raja Arjun Singh's death his share devolved on his widow Smt. Vijay Kanwar. They proceeded to say that by virtue of Section 14 of the Hindu Succession Act, 1956, the limited estate of Smt. Vijay Kanwar ripened in to fullfledged ownership and thereafter before her death Smt. Vijay Kanwar had gifted her share in the Haveli in favour of these defendants by a registered gift deed. Thus, these defendants did not came into possession of the portion of the Haveli as heirs of Panney Singh, but in their own right as the donees from Smt. Vijay Kanwar.
4. A number of issues were framed by the trial court and after recording the evidence led by the parties the learned Judge found that the mortgage by Rao Raja Panney Singh in favour of Smt Mukanchand was proved. Likewise, from a perusal of the decree of the court as also the sale certificate he came to the conclusion that the property which was first mortgaged with the plaintiffs' father was purchased by him as a result of the court sale. However, the court came to the conclusion that half share of the Haveli by virtue of the deed of Samvat year 1967 belonged to Rao Raja Fateh Singh, the husband of defendant No. 1 Smt. Swaroop Kanwar and consequently the plaintiff was not entitled to take possession of it.
Regarding the share of Smt. Vijay Kanwar which was claimed by the four sons of Rao Raja Panney Singh as donees, the court held that this has not been proved, as neither the defendants had come in evidence, nor the so-called gift deed produced in support of the defendants' claim. Accordingly, the trial court passed a decree in favour of the plaintiffs and against the defendants to the effect that the plaintiffs are entitled to get possession over half share in the suit property which had devolved on the descendants of Rao Raja Panney Singh and which was not included in the half share of defendant No. 1 Smt. Swaroop Kanwar. The rest of the plaintiffs' suit in respect of the Haveli was dismissed. The parties were left to bear their own costs of the suit.
5. The plaintiffs have come up in appeal in respect of the half share that was allowed to remain with Smt. Swaroop Kanwar. Rao Raja Tej Singh, Rao Rsja Sukh Singh, Rao Raja Chain Singh and Rao Rafa Puran Singh have come up in appeal regarding the share of Smt. Vijay Kanwar which, according to them, was gifted by Smt. Vijay Kanwar in their favour before her death. These four defendants had also filed cross-objections in the appeal filed by the plaintiffs as the appeal filed by them was barred by time.
6. In assailing the judgment and decree learned counsel for the plaintiffs has made a three-fold argument. In the first place, he submitted that the deed of Samvat year 1967 Ex. A/1 on which Smt. Swaroop Kanwar based her claim has not been proved. It was pointed out that Smt. Swaroop Kanwar produced one witness D.W. 1 Kanmal for proving the signatures of late Rao Raja Bhawani Singh and his son Shimbhu Singh on Ex. A/1, but she failed in this ana consequently, according to learned counsel, the trial court was in error in drawing a presumption under Section 90 of the Evidence Act regarding this document which of course, was admittedly more than 30 years old.
In the second place, it was urged that the identity of the property in dispute with the property described in document Ex. A/1 has not been established. Lastly, it was submitted that even according to the document Ex. A/1 Rao Raja Bhawani Singh who was the Jagirdar of Sanwrad had only made provisions for the maintenance and residence of his younger sons in accordance with the custom of Jagirs governed by the law of primogeniture. Then, according to learned counsel, as Smt. Swaroop Kanwar would not be acquiring any property, within the meaning of Section 14 of the Hindu Succession Act, 1956, but would at best be only having a right of residence being the widow of the younger son of Rao Raja Bhawani Singh, she cannot claim ownership in the Haveli. This position was contested by Shri Pyaralal learned counsel for Smt. Swaroop Kanwar.
7. Shri R. L. Purohit, learned counsel for Rao Raja Tej Singh, Rao Raja Sukh Singh and Rao Raja Puran Singh submitted that the case be remanded for taking evidence of these defendants, as the evidence or the gift deed could not be produced because of the death of their counsel Shri Ugam Raj Bhansali. According to the defendants they had handed over the gift deed to their counsel and it remained with him. So also they could not prosecute their claim on account of the death of their counsel. Shri R. L. Purohit endorsed the contention of Shri Pyare Lal, learned counsel for Smt. Swaroop Kanwar regarding Smt. Vijay Kanwar being the absolute owner of the property by virtue of Section 14 of the Hindu Succession Act, 1956.
8. For appreciating the contentions I may first refer to the relationship of the defendants inter se.
9. Rao Raja Bhawani Singh was their common ancestor. Rao Raja Bhawani Singh had four sons Shambhu Singh, Kishan Singh, Fateh Singh and Madho Singh. Madho Singh died issueless and the parties are not concerned with him. Shambhu Singh was the eldest son of Rao Raja Bhawani Singh and he is said to have died during the lifetime of Rao Raja Bhawani Singh, but before Shambhu Singh's death the document Ex. A/1 is said to have been executed by Rao Raja Bhawani Singh in favour of his sons Kishan Singh and Fateh Singh. Smt. Swaroop Kanwar is the widow of Fateh Singh. After Rao Rafa Bhawani Singh's death, Rao Raja Kishan Singh succeeded him as the Jagirdar vide the statement of Smt. Swaroop Kanwar as D. W. 4. Rao Raja Kishan Singh had three sons Panney Singh, Arjun Singh and Inder Singh. Rao Raja Panney Singh succeeded his father Rao Raja Kishan Singh as Jagirdar of Sanwrad.
Smt. Vijay Kanwar was the widow of Arjun Singh. Inder Singh, the third son of Rao Raja Kishan Singh had one son Kalyan Singh, but Kalyan Singh had not laid any claim in the Haveli, though he was impleaded as a defendant. Rao Raja Ran-veer Singh, Rao Raja Chain Singh, Rao Raja Sukh Singh, Rao Raja Tej Singh and Rao Raja Puran Singh are the five sons of Rao Raja Panney Singh. The property is claimed by the four sons of Rao Raja Panney Singh other than Rao Raja Ran-veer Singh as the donees from Smt. Vijay Kanwar. The five sons of Rao Raja Panney Singh were the judgment-debtors im the decree obtained by the plaintiffs' father Shri Mukanchand Halia.
10. The document Ex. A/1 is a registered one. It is more than 30 years old and has been produced from proper custody. D.W. 1 Kanmal has stated that Ruo Raja Rhawani Singh had given land for the maintenance or his younger sons and a house for their residence. He further stated that the house or the Haveli that was given to the younger sons of Rao Raja Bhawani Singh was situated near the Haveli of Thikana Khinwsar at Jodhpur. According to the witness, after the house was allotted by Rao Raja Rhawani Singh to his sons, Fateh, Singh and Kishan Singh, they had made additions and improvements to it. He also stated that he was familiar with the handwriting of Shimbhu Singh whom he had seen writing and further Rao Raja Bhawani Singh had put his mark on the document at A to B. The seal at mark 'D', according to the witness, was of Rao Raja Bhawani Singh's Jagir. In cross-examination the witness admitted that this Haveli was known as the Haveli of Sanwrad and further he had not seen Rao Raja Rhawani Singh's writing. So also he admitted that he had not seen Sbimbhu Singh's writing.
The witness has given his age as 70 years in 1966 when he was examined. Therefore, at the time when the document was written he would not be more than 15 years. It is true, Rao Raja Bhawani Singh's signature or mark on the document cannot be said to have been proved by this witness, but then it is to be remembered that the document is a registered one and has been produced in original from proper custody. Learned counsel for the appellants takes the position that once a party seeks to prove a document then he cannot fall back on the presumption that may arise under Section 90 of the Evidence Act regarding documents which are more than 30 years old. He has cited Kanhaiya Lal v. Jamnalal, 1950 Raj LW 199 = (AIR 1950 Raj 47) and Ramchandra v. Usmangni, 1953 Raj LW 153 in support of his submission.
11. I have carefully considered these cases but they are, to my mind, inapplicable to A case like the present one.
12. In 1950 Raj LW 199 = (AIR 1950 Raj 47), the learned Judges observed that there is no presumption of genuineness regarding an anonymous document the writer or which is not known. They further held that where an entry in an ancient document is not signed by the person who wrote it and there are no materials upon which one can say that a particular person purports to have written it except a general statement that it is kept amongst the family records as a record of the family transactions, the document cannot be taken to be properly proved by virtue of the presumption under Section 90. The present is not a document which could be said to be an anonymous one or one not signed by the alleged executant.
13. In 1953 Raj LW 153, Judge observed:--
'A definite issue as to the execution of the rent-note Ex. P/1 was raised and the burden of proof thereof was placed upon and accepted by the plaintiffs. This burden they have failed to discharge as held by the lower appellate court and that finding being a finding of fact, is binding upon me in second appeal. Besides, whether a presumption under Section 90 of the Evidence Act should or should not have been raised, was a matter for the discretion of the courts below. It is quite clear upon the plain language of Section 90 of the Evidence Act that it is not obligatory on a court to raise any presumption under the section in favour or a person who desires to prove a fact. Of course, if the plaintiffs had asked the court to make a presumption in their favour in accordance with the provisions of that section, it would have been necessary for the courts below to have dealt with that matter. See Surendra Nath v. Sambhu Nath, AIR 1927 Cal 870. It is, however, quite clear from the judgments of the courts below as well as from the record itself that as a matter of fact, the plaintiffs did not rely on this presumption until they came to this Court, but they adduced evidence to prove the genuineness of the rent-note Ex. P/l as already stated above. In such circumstances, the appellants can have no just grievance if such presumption does not find any mention in the judgments of the courts below.'
In the present case, an application was filed by the defendant for raising the presumption under Section 90, Evidence Act. The cited cases do not bear out a broad argument like the one advanced before me that regardless of the document no presumption can be drawn once the party has attempted to prove the document by direct evidence and has failed. In my humble view, the law is not to be construed in this regard as a penal provision. Once the party has made it known that he wants to rely on the presumption under Section 90 of the Evidence Act and the document and the surrounding circumstances are such that a presumption under Section 90 of the Evidence Act may justifiably be raised then the mere fact that the party has a witness or two in addition for proving the signature or the writing of the alleged executant will not always be a sufficient reason for not drawing the presumption.
In the present case, on account of the document being a registered one and it having been produced from proper custody the presumption was rightly drawn by the trial court that the document was executed by Rao Raja Bhawani Singh by whom it purports to have been executed. The document after it was executed is likely to be with the person or persons in whose favour it was executed. Therefore, it could be in the possession of Rao Raja Fateh Singh and thereafter in the possession of his widow on his death. The document also furnishes intrinsic evidence about the making of an arrangement for the maintenance and residence of his younger sons by Rao Raja Bhawani Singh. It is in keeping with the usages of Jagirs governed by the rule of primogeniture. Therefore, I am unable to find any substance in the first contention raised by learned counsel.
14. As regards the identity of the property in question the statement of D.W. 4 Smt. Swaroop Kanwar is explicit. She has stated that she came to live in the Haveli after she was married with Rao Raja Fateh Singh. Regarding the other members of the family she has stated that they were living in the other portion of the Haveli. She has been living in the Haveli since her marriage. It is for the portion of this very Haveli that the Court Amin was resisted when he went to give possession of it to the plaintiff. Apart from this, there is the evidence of D.W. 1 Kanmal that this was the Haveli known as the 'Haveli of Sanwrad'. It is not the plaintiffs' case that Rao Raja Bhawani Singh and before him his father and grant-father were not the Jagirdars of Sanwrad. Therefore, the identity of the Haveli with the Haveli mentioned in Ex. A/1 can be said to have been established.
15. Now, I may deal with the last contention of learned counsel as to what was the nature of interest that Smt. Swaroop Kanwar can be said to have in the Haveli and whether she can be said to have acquired full-fledged ownership by operation of Section 14 of the Hindu Succession Act, 1956. For seeing what interest was conveyed to Rao Raja Fateh Singh one has to look to the document Ex. A/1 in the light of the incidents of a Jagir governed by rule of primogeniture. The document recites in the beginning that Rao Raja Bhawani Singh was making arrangement for the maintenance of his younger sons as 'Chhut Bhais' (younger members). A provision for grant of agricultural land of the income of Rs. 1000/- per year was made and the various lands so granted were described. Regarding it this was said:--
^^Fkus NqV HkkbZ i.kk jh vkthohdk:i;s 1000 v[kjs ,d gtkj jh b.k eqtc nh oh gS lks Fkkjh vky vkSsykn ihMh nj ih