C.B. Bhargava, J.
1. This is an appeal from the judgment of the Senior Civil Judge No. 1 Jodhpur, dismissing the plaintiffs suit for partition and recovery of arrears of rent.
2. For the proper appreciation of the facts, the following pedigree showing the relationship of the parties is set out below:
| | |
Dharam Chand Kewal Chand *Zorawar Mal
| | |
Umrao Chand @Dhanpat Chand 'Inder Chand
(Plaintiff) (died in Smt. (Deft. 1 along with
2009 Migsar V. 2= his sons & grand-sons
3-11-1952 (defts. 2 to 5)
Himmat Mal (D.W.12) Chanda Mal
Mohan Mal Sumat Mal
| | | | | |
Ugam Chand Manohar Paras Prakash Prem Chand Pratap Chand
(Deft. 6) Chand Chand Chanda (D. 10) (D. 11)
| (Deft. 7) (Deft. 8) (Deft. 9)
| Raja (Deft. 16)
| | | |
Shanti Mahavir Rikhab Munnichand
Chand Chand Chand (D. 15)
(D. 12) (D. 13) (D. 14)
| | | |
Bhopal Chand Bhag Chand Sumer Chand Shbos Chand
(Deft. 2) (Deft. 3) (Deft. 4) (Deft. 5)
3. In this suit, Umraochand, his sons and grandsons have claimed partition of house mentioned in Schedule A alleging that they have half share in it and the remaining half belongs to defendants Nos. 6 to 16. They have also claimed arreats of rent to the extent of their half share from defendant Nos. 1 to 5 on the basis of a rent-note dated 18-2-40 executed by defendant No. 1 in favour of plaintiff No. 1 and Dhanpatchand, father of defendants Nos. 6 to 11 in regard to some apartments of the same house. Plaintiff's case is that until Sawn Vadi 6, Smt. 1951 corresponding to 31st July, 1934, the three brothers namely Umrao Chand, Dhanpatchand and Inderchand constituted a Join Hindu family and jointly owned movable and immovable properties. However, on the aforesaid date, there was a separation amongst the brothers and they divided their ornaments, utensils and other houshold goods in three equal shares. They also separated in mess and residence from the same date. But the properties described in Schedule A (house) and in Schedule B (outstandings of the joint family) were not divided at that time and remained joint till 16td February, 1940, when the said properties were also divided and the house described in Schedule A was all to the joint share of plaintiff No. 1 and Dhanpatchand deceased. No share was alloted to Inderachand in the house and in lieu thereof, all the outstandings due to the joint family were allotted to his share. A partition deed to the above effect was reduced into writing and was allowed to retain possession of some of the apartments in the house as a tenant of Umraochand and Dhanpatchand at a monthly rent of Rs. 5/- and a rent-note was executed by him in that behalf.
4. This state of affairs continued upto June, 1954, when plaintiff No. 1 served a notice Ex.P-3 dated 11.6.54 on defendant No. 1 claiming rent and ejectment. In reply to this notice, defendont No. 1 asserted that the partition-deed of 16.2.40 and the rent-note of 11.2.40 were sham and collusive documents which were brought into being to defeat his creditor Lalchand and to save his property from being sold in that debt. It was also asserted that the house mentioned in sehedule A was also divided amongst the brothers at the time of the earlier partition of 31st July, 1934, and separate memoranda were written in the Bahis of each of them. On receiving this reply, plaintiff Umraochand asked the sons of Dhanpatchand to join with him in instituting a suit against Inderchand but they declined and fell in line with Inder Chand taking up the same plea. Umraochand and his sons, therefore, instituted the present suit on the above allegations.
5. Inderchand and sons of Dhanpatchand filed separate written statements; but their sum and substance is the same viz. that the house mentioned in Schedule A was partitioned amongst the three brothers on 31st July 1934, when other properties were so partitioned and that the deed of partition of 16-2-40 and the rent-note dated 18.2.40 were sham and collusive documents executed for the purpose of defeating the claim of Inderchand's creditor, Lalchand. It was stated that the parties since 31st July, 1934, were in possession of the apartments which were allotted to them at the time of partition and each of them had made alterations and addition in their respective shares since then. It was stated that the deed of partition dated 31.7.1934 was acted upon by the parties and they carried out alterations and additions in accordance with its terms. Since the date of partition, each brother is in possession of his respective share and had also made alterations and additions at his own expenses in it. It is stated that the outstandings of the firm continued to be joint. Various other pleas were raised in the written-statements, and the learned Senior Civil Judge on the pleadings of parties framed the following issues:
1. Were the partition-deed of 14.2.40 and the rent-note of 18.2.40 executed to save the property which had fallen to the share of Deft. Inderchand in Smt. 1991 from the decree of Lalchand?
2. Were the admissions made in the applications, statement and affidavit mentioned in parts 12, 13 and 14 of the plaint made to save the property 'C' from being sold in execution of the decree of Lalchand and were all these admissions made incorrest.
3. Did complete partition of the joint family property including the property 'A' take place in Smt. 1991, and did property 'C' fall to the share of Deft. Inderchand?
4. Is the suit bad for mis-joinder of causes of action?
5. Are the plaintiffs entitled to get Rs. 78/12/- as rent upto the date of suit regarding property 'C'?
6. Are the plaintiffs entitled to rent at Rs. 2/8/- per month as their share regarding property 'C' from the date of suit till possession of the same is given?
7. Are the plaintiffs entitled entitled to get interest on arrears of rent and if so, at what rate?
8. Did the plaintiffs get constructed the apartments in the third storey as mentioned in para 22 and spend Rs. 800/-, and if so, how does this affect the suit?
9. Was the construction mentioned in part 22 of the plaint (in the first part) got done with the consent of deceased Dhanpatchand, and did cost Rs. 3500/- and if so, how this fact affect the suit?
10. What is the share of the plaintiffs in property 'A' if is taken that it is still joint between the plaintiffs and defendants 4 to 14?
11. Are defendants 4 to 5 not liable under the rent note in question?
12. What will be the relief?
6. In support of the above issues plaintiff Umraochand gave his own statement as P.W. 1 and examined Pragraj P. W. 2, Lalchand P. W. 3, Munawar Ali P. W. 4, Danmal P. W. 5, Ganesh P. W. 5 and Birdaram P. W. 7. On behalf of the defendants. Inderchand gave his own Statement as D. W. 6, Ugamchand defendant as D. W. 14 and examined Abdul Rehman, D.W. 1, Ahmed D W 2 Kiratmal D.W. 3, Shivadas D.W. 4 Rama DW 5 Joharimal DW7, Mohanmal DW 8, Radhakishan DW 9 Takhatraj DW 10 Himmatmal DW 12& Ratanlal D.W. 13. Besides the above oral evidence, plaintiffs produced the partition deed of 16.2.40 Ex. P-1, rent-deed of 18.2.40 Ex. P-2 and other documents Ex. P-3 to 26. Defendants produced Faragkhati Ex. A-8 dated 31.7.34 in the Bahi of Inderchand and Ex. A-26 from the Bahi of Dhanpatcand. They also produced documents Exs. A-1 to A-7, A-9 to A-25 and A-27 to A-36.
7. The learned Senior Civil Judge on a consideration of the entire evidence on record came to the conclusion that the partition of immovable property described in Schedule A also took place between Umraochand. Dhanpatchand and Inderchand on 31st July, 1934, as stated by the defendants, The learned Judge further held that though Ex Section A-8 and A-26 were not admissible in evidence as partition-deeds for want of registration, they could be received in evidence for collateral purposes such as the nature of the possession of the parties over their portions of the house. It was further held that the deed of partition of 16-2-40 and the rent-note Ex. P 3. were sham and fictitious whose purpose was to defeat the claim of Lalchand, creditor of Inderchand, and the plaintiff himself being a party to that fraud was not entitled to enforce these documents. In view of these findings, the plaintiffs' suit was dismissed.
8. In this Court, learned Counsel for the appellants has assailed all the findings of the lower court, and it is contended that the execution of Exs. A-8 and A-26 is not established by the evidence on record, and, at any rate, the documents could not be received in evidence for any purpose whatsoever. It is contended that me documents purport to have been executed on 31.7.34 when Kanoon Registri of 1899 was force in the erstwhile Jodhpur State and under Section 7(7) of that Act, registration of Bhai Banta was compulsory. According to Section 11of that Act, if any document which was required to be compulsory registered, was produced in court by any person, was not to be regarded as a valid document & the courts were prohibited from accepting it, it is pointed out that the Act of 1899 did not contain any provision similar to the proviso to Section 49 of the Indian Registration Act of 1908. The learned Senior Civil Judge was therefore, not right in invoking the proviso to Section 49 of the Indian Registration Act for the purpose of using the document for collateral purposes. It is also pointed out that the learned Judge erred in relying upon the evidence of Pragraj, P.W. 2, for holding that Exs. A-8 and A-26 bear the signature of Umraochand. It is also contended that the aforesaid documents Exs. A-8 and A-26 weve never acted upon by the parties. On the other hand, parties in fact acted upon the deed of 16.2.40 inasmuch as Inderchand himself admitted the genuineness of this document during the coures of litigation with Lalchand and had also been exclusively recovering the outstandings which had fallen to his share at the time of the aforesaid partition Besides this, he continued to pay rent in pursuance of the rent-note Ex,P-2 executed by him.
9. Before I proceed to determine issues Nos. 1, 2 and 3, the crucial issues in the case, it seems necessary to narrate a few salient events which have an important bearing on the matters in controversy. Inderchand defendant owed considerable amount to Lalchand P.W.3 and they referred their dispute to arbitration on 3-2-40. The arbitrations by their award allowed Lalchand's claim for about Rs. 13,000/--gainst Inderchand. On 28th February, 1940 Lalchand than took out evecition against Inderchand and got Inder Chand's share in the disputed house attached on which Umraochand and Dhanpatchand preferred a claim petition under Order 21 Rule 58 C.P.C. for its release from attachment (Ex. 7 dated 23.3.44) founding it upon the partition deed of 16.2.40 and the rent note Ex P-2. Inderchand supported Umraochand and Dhanpat Chand's claim in these proceedings and gave his affidavits (Exs 1 and 12 dated 12.7.45 and 31.1.45, statement Ex.9 dated 12.7.45 and application Ex.11 dated 30.10.45 admitting that he had no share in Schedule A property which had been allotted entirelp to the objectors alone on partition in 1940 and that he was allotted some joint family outstandings in view of his share.
10. The claim petition practically succeeded, the property was released from attachment where eventually on 6.8.52,, Lalchand accepted a sum of Rs. 5500/--in full satisfaction of his decree for Rs. 13767/8/--bearing future interest of 6 per cent per annum.
11. Thus far, the facts are not disputed by the parties and defendants strongly rest their pleas upon them to show the fraudulent purpose for which the partition deed and the rent note Exs. 1 and 2 came to be executed. That purpose was achieved and defendant Inderchand's shore in Sch. A property was saved from being sold in execution of Lalchand's decree.
12. Soon after, nay even some time before the settlement with Lalchand, communications were exchand between Inderchand and Umraochand Ex. 2-4 dated 15.7.52, Ex.21 dated 19.8.52, Ex. 19 dated 20.1.53, Ex. 22 and Ex 23 are addressed to Umraochand by Inderchand while Exs.A-5, A-6 and A-7 dated 3.3.54, 8.3.54 and 4.1.54 and Ex. A-12 are addressed by Umraochand to Inderchand. These communications are couched in dubious language and have thus been the subject of different interpretations by the parties, Umraochand contending that they relate to same dispute, which had arisen between him and the sons of Dhanpatchand, while according to Inderchand st was in relation to the execution of some fresh writing between all the brothers in regard to Schedule A property. These letters shall be discussed subsequently at the appropriate stage. But nothing tangible came out of the negatiations and the differences between the parties remained uncomposed. The plaintiff then on 11.6.54 served the notice of ejectment on Inderchand.
13. The most important point on which largely the decision of this appeal rests is whether Schedule. A property wae divided between the sons of Kewalchand at the time of severance of their joint status in Samwat 1991. It is admitted by the plaintiffs in paragraph (3) of the plain that on 31.7.34 the three sons of Kewalchand separated in mess and residence and also divided their ornaments, clothes and utensils. According to the plaintiffs, Schedule A and B properties continued to remain joint between the brothers Defendants stoutly controvert this fact and rely upon Exs. A-8 and A-26 by which Schedule A property was divided on the same date. There can be no doubt that if the division of Schedule A property on 31.7.34 between the three brothers is proved, then it would be an uphill task for the plaintiffs to explain why the parties entered into another agreement of partition in 1940. Proof of partition in 1934 on the other hand would go a long way to support defendant's version that it was done to defeat Inderchand's creditor.
14. Partial partition amongst the brothers in 1934 having been admitted by the plaintiffs, the presumption is that all the property was divided and it is now upto them to prove that family property which is now in exclusive possession of one of them after the partition is joint and is liable to be partitioned (See Mulla's Hindu Law para 328).
15. In proof of the fact of partition of Schedule A property in 1934 and the execution of deeds A-8 and A-26, reliance is placed by the defendants on their own statements as D.W. 6 and D.W. 14 and D.W. 8, D.W. 10, D.W. 12 and P.W. 2. Inderchand D.W. 1 his deposed that the movable property of the joint family was also divided between the three brothers on Sawan Badi 6 Smt. 1991 and three memoranda one each in the 'bahi' of every brother was written. Each memorandum was signed by all the three brothers. The witness produced from his own 'bahi' Ex.A-8 and deposed that it bears the signature of Umraochand plaintiff at A-B and of Dhanpatchand at G-D and his own signature at E-F and of Ugamchand defendant No. 6 at G-H. All these persons had subscribed their signatures on A-8 in his presence. It is significant to note that though the witness was cross-examined at length, not a single question was put to shake his aforesaid statement.
16. Ugamchand D.W.14 who is the nephew of Umraochand and Inderchand, being the son of Dhanpatchand fully corroborates Inderchand's statement as regards the division of Schedule A property between the brothers in 1934 and the execution of three memoranda at the same time. He also produced the memorandum Ex.A-26 from his own Bahi and deposed that Umraochand, Dhanpatchand his father, and Inderchand defendant had signed Ex,A-26 in his presence. He also identified the signatures of each of them and his own on Ex-A-26. He also deposed that a similar memorandum was written in plaintiffs' Bahi by his sister's son Kesrimal. This witness too was not cross examined on the above point. Both Inderchand and Ugamchand deposed that after the divition each brother occupied the portion which was allotted to him on partition & alterations were made in the property in terms of the memoranda. Since, the parties are in continuous possession of their respctive separate shares and have made additions and alterations in it.
17. Takhat Raj D. W. 10 is another important witness who has deposed about the execution of three 'Fargkhatis' one each having been written in the Bahi of the parties. He has deposed that Exs. A-8 and A-26 were in the hand of Askaran who had died about 14-15 years back. He deposed that Umraochand, Dhanpatchand, Inderchand and Ugamchand had signed Exs. A-8 and A-26 in his presence. He also identified their signatures on these ' documents. He has further deposed that the memorandum in plaintiffs' bahi was written by Kesrimal Surana and the contents of the three memoranda were the same and he himself had got them compared with the draft. This witness is a near relation of the parties. In cross-examination, he has stated that the draft of the 'Faragkhati' was in the hand of Umraochand plaintiff and all the Faragkhatis were written at the house of the parties in his presence. Nothing has been brought out in cross examination to discredit his evidence.
18. Mohanmal D. W. 8 and Himmatmal D.W. 12 are the first cousins of Umraochand plaintiff and Inderchand defendant Mohanmal deposed that one-half of disputed house belongs to him and the other half belongs to Kewalchand father of Umraochand and Inderchand. He deposed that he was acquainted with the handwriting of Umraochand, Dhanpatchend and Ugamchand because he had seen them writing He identified the signatures of Umraochand, Dhanpatchand and Ugamchand on Exs. A-8 and A-25. In cross-examination he admitted that no document written by Umrarchand was in his possession and that he had seen Umraochand writing letters etc. about 10-20 times, but he could not say when he had seen him writing on the last occasion. He also admitted that Exs. A-8 and A-26 were not executed before him. He stated that the partites had started living separately about 25 years back because of the partition amongst them (statement of the witness was recorded on 1.2.60). To the same effect is the evidence of Himmatmal who too identified the signatures of Umraochand, Inderchand, Dhanpatchend and Ugamchand on Exs. A-8 and A-26.
19. Then there is the evidence of plaintiff's own witness Prayag Raj P.W. 2 who was the plaintiffs' counsel in the objection petition against Lalchand and had not charged any fee from them, He is connected with the family of the parties from his childhood. He deposed that Ex. A-8 bears Umraochand's signature at A-B. After having been good enough to make the above admission the witness gave a guarded reply and stated that on Ex.A-26 at A-B the signatures appeared to be like that of plaintiff Umraochand. He gave the same reply about Umraochand's siganatures on Ex. A-34.
20. Learned Counsel for the appellants contends that the above evideence of the witness was not admissible in evidence because he did not say that he was acquainted with the handwriting of Umraochand, and so the requirement of Section 47, Evidence Act, had not been satisfied. Both sides rely on the following decisions.
21. Shankarrao Gangadhar v. Ramji ILR XXVIII Bom. 58 where in proof of a document a witness stated that he was acquainted with the handwriting of the writer, but he was not asked in examination-in-chief any question which would elicit any of the several matters indicated in the explanation to Section 47 of the Indian Evidence Act (I of 1872) and the witness was not cross-examined on the point, it was held by Jenkins C. J. that
that law on the point is correctly stated in Taylor on Evidence to be as follows:
A witness need not state in the first instance how he knows the handwriting, since it is the duty of the opposite party to explore on cross-examination the sources of his knowledge, if he be dissatisfied with testimony as it stands.
It is within the power of the presiding Judge and often may be desirable to permit the opposing advocate to intervene and cross examine so that the Court may at that stage be in a position to come to definite conclusion on adequate materials as to the proof of the handwriting.
This decision was followed by a learned Judge of this Court in Pusaram v. Manmal 1952 RLW 79 where also the witness had deposed that he was acquainted with the handwriting of the writer. A special appeal was taken against the above decision and the Division Bench consisting of Wanchoo C. J. and Modi J. agreed with the above view of law though the judgment of the leanned single Judge was reversed on other grounds. See Pusaram v. Manmal 1956 RLW 126. In the above case, the learned Chief Justice quoted with approval the judgment of the Patna High Court in Mahant Jagdish Das v. Emperor AIR 1938 Pat. 497. on which learned Counsel for the respondent has placed much reliance. In that case the witness had not even said in the examination in chief that he was acquainted with the handwriting of the writer and the learned Judge held that
Where therefore a witness deposes that a certain document is in the hand-writing of a particular person, it is evidence of fact and it is not rendered inadmissible by the absence of the mere statement 'I know his handwriting', more particularly when the evidence indicates that he had been acquainted with the handwriting of that person.
22. It appears that in that case there was ample evidence to show that the witness (Head-master) was familiar with the handwriting of the writer and so the mere absence of the Statement 'I know the handwriting' was held not to render the statement inadmissible. For the above vitw, the learned Judge placed reliance on Shankarrao Gangadhar v. Ramji (supra).
23. In Shyam Pratap v. Beni Nath Dubey AIR 1942 Pat. 449, Fazl Ali J,, as he then was, also followed the view taken in Shankarrao Gangadhar v. Ramji (supra).
24. It would thus seem that except in Mahant Jagdish Das v. Emperor (supra), in all other cases the question for decision was whether to make the statement of a witness admissible under Section 47 of the Indian Evidence Act, it is necessary to elicit from him in the examination-in chief how he was acquainted with the handwriting of the writer and this was answered in the negative. These decisions do not lay down that even the bald statement of witness that a particular writing is written by so and so without saying that he is acquainted with his handwriting would be admissible under Section 47 Evidence Act. In Mahant Jagdish Das v. Emperor (supra) there were special circumstances appearing in the statement of the witness from which the court could come to this conclusion that he was acquainted with the handwriting of the writer, Provisions of Sections 45-51 of the Indian Evidence Act contain exceptions to the general rule that the opinion of a witness on a question of fact or law is irrelevant. On matters of science and art where inexperienced persons are not likely to form correct judgment, opinion of persons who have acquired special knowledge of those subjects and are known as experts has been made relevant (Section 45). Similarly evidence of non-expert witness as to handwriting is relevant only upon the familiarity which the witness has acquired with the handwriting of that person about which the opinion is expressed (Section 47).
25. In order, therefore, that the evidence of a witness as to handwriting may be admissible under Section 47, it must be established that he is familiar or acquainted with that person's handwriting, though it may not be necessary to establish in the first instance how the witness became acquainted with such handwriting.
26. Shri.Prayag Raj did not say that he was acquainted with the handwriting of Umraochand and therefore the basis on which opinion evidence of a non-expert witness could be admissible is missing from his statements. Learned Counsel for the respondents, however, argues that having regard to the fact that the witness had old intimate connection with the family of the parties and had worked as the plaintiffs' counsel in their claim petition under Order 21 Rule 58, it should be presumed that he was acquainted with Umrao-Chand's handwriting. These facts in my opinion, cannot necessarily lead to the inference that the witness had seen Umraochand writing or had received documents purporting to be written by him in answer to documents written by him self or documents written by Umraochand had been habitually submitted to him.
27. The learned Judge was, therefore, not right in taking the statement. of Prayag Raj into consideration for the proof of Umraochand's signature on Exs. A-8 and A-26.
28. As against the above evidence given by the defendants in proof of the execution of Ex. A-8 and A-26 by Umraochand, plaintiff Umraochand denied the fact of partition of Schedule A property in 1934 as also his signature on the two documents. The trial court was not impressed with the evidence of this witness and has remarked that his behaviour in the witness-box was anything but satisfactory. It appear to me also that there was persistent 'fencing' by the witness during the course of his statement. He not only denied his signatures on Exs. A-8 and A-26 but denied the signatures of Inderchand, Dhanpatchand and Ugamchand too. In his cross-examination on 7.2.61 he was asked to identify Gulraj's writing on some documents and he evaded giving direct answer on the ground that he had developed catract in his eyes. Similarly on 9.2.1961 he was asked about certain entries made by him in the joint Rokar but he declined to answer on the ground that his eyesight was, weak and he was unable to see the entries.
29. As already stated, defendants, besides their own statements, have examined three more witnesses who are closely related to the parties to prove the execution of Exs. A-8 and A-26, and there seems to be no reason to reject the evidence of these witnesses. Therefore in agreement with the lower court, I hold that Schedule A property was divided between the three brothers in 1934 at the time of their separation and Exs. A-8 and A-26 were executed by them at that time.
30. The next question is whether for want of non-registration Exs. A-8 and A-26 are inadmissible in evidence. Exs. A-8 and A-26 purport to have been executed on 31.7.34 when Kanoon Registri of 1899 was in force in the arstwhile State of Jodhpur. Section 7 of the said Act enumerates the documents which are compulsorily registrable. I do not agree with the learned Counsel of the respondent that the words
Neechay Likhiyora Dastawez Rt Registri Ki Jawela
in Section 7 do not mean that the undermentioned documents shall be registered. The language used is preemptory and requires compulsory registration of the documents enumerated. One of the documents enumerated under the section is Deed of Bhai Banta' i. e., a deed of partition. Learned Counsel of the respondents was at great pains to point out the distinction between a 'family arrangement' and a partition to show that Exs. A-8 and A-26 only record a family arrangement, and is not a deed of partition. I do not agree. Exs. A-8 and 26 is not a record of any previous agreement between the parties. It is on the other hand a declaration of the intention of the parties to divide the joint family property by metes and bounds in three equal shares and to enjoy and remain in separate possession of the share allotted to each brother. The document begins with the recital in the first paragraph that 'up to this day the 3 brothers were joint in everything but henceforth by mutual agreement, they have taken possession of their portions & shall abide by it. At several places the members to whom the particular portion of the house has been described as its 'Dhani' that is the owner. It also recites that the said division shall be bindind upon them and their descendants. It also therefore contains a feature of permanency. It was intended by the parties that the document shall be the sole repository of the arrangement of partition arrived at between them. I am, therefore, of the view that it is an our-right partition requiring registration under the Law then in force in Jodhpur State.
31. Learned Counsel for the respondents however rightly argues that the factum of partition can be proved by other evidence even though the deed of partition is inadmissible in evidence for want of registration and Section 91 of the Evidence Act is no bar to the reception of such other evidence. See Tejraj v. Mohan Lal ILR V Raj. 476 and K. Kanna Reddy v. K. Venkata Reddy : AIR1965AP274 (FB), Therefore, if it is established from other evidence that the property had been partitioned between the three brothers in 1934, the present suit for partition would fail. As already stated, there is firstly the admission of the plaintiff that in 1934 there was severance of joint family status-between the brothers, they having divided their ornaments utensils. etc and also becoming separate in mess and residence. There is then the evidence of the respondents and D.W. 10 about the division of properties amongst the brothers. Besides this, it is undisputed that since 1934 the three brothers are in possession of different portions of the house. There is also evidence which will be discussed in detail presently that each brother had been dealing with his own portion as if it exclusively belonged to him. Various alterations and additions were done by the brothers soon after 18.7.34 and thereafter also. All this evidence conclusively establishes that the house had been partitioned between the brothers in 1934.
32. That apart, Exs. A-8 and 26 are also admissible as evidence of any collateral transaction i.e., the nature of possession of the parties. In the present case indisputably they have been in possession of their respective portions for more than 12 years before the institution of the suit though the document may not affect immovable property comprised therein or be not received as evidence of partition. (See proviso to Section 49 of the Indian Registration Act). It is contended on behalf of the appellant that the Act of 1899 did not contain any proviso similar to the one under Section 49 of the Indian Registration Act of 1908. In the old Act Section 18 completely barred the reception of such unregistered document by the Court. But the question of admissibility of a document being a matter of procedure shall be governed by the law in force when the document is tendered in evidence though the question whether registration was compulsory shall be governed by the registration law in force at the time the document was executed. See Khuda Bakhsh v. Sheo Din 1956 RLW 126, Fakirji v. Bhagvatlal AIR 1929 Bom. 290 and Benarsi Das v. Ali Muhammad AIR 1936 Lah. 5. Proviso to Section 49 was added by the Amending Act 21 of 1929.
Its purpose is (1) to declare the law under which Section 49 (c) is construed as not forbidding the use of an unregistered document as evidence of a collateral transaction not required to be registered, and (2) to empower Courts to admit unregistered documents in evidence for the purpose of proving part performance. The proviso applies to an unregistered document. Section 49 is not a bar against a registered document which may not be a complete lease. (Mulla's Registration Act 6th Ed. Page 175).
Even before this proviso was added to Section 49, its principle was applied by the Privy Council in N. Narade Pillai v. Jeevarathammal AIR 1919 P.C. 44
33. In Karshan Jaram v. Harkha Hari AIR 1953 Saurashtra 56 it was held:
Whether the proviso to Section 49 is retrospective in operation or not, the law contained there in was always held to have governed the provisions of Section 49. The provisions of Section 36 of the Nawanagar State Act are identical in terms with Section 49 of the Registration Act and therefore even if the admissibility of an unregistered sale deed which is complsorily registrable, must be construed with reference to the Nawanagar State Act, the provisions of Section 36 of that Act must be regarded as subject to the rule contained in that proviso. Therefore, such a sale deed must be held as receivable as evidence of a collateral transaction such as the origin of the purchaser's entry into the land and the character of his subsequent possession.
There can be no doubt therefore that Exs.A-8 and A-26 can be looked at for showing the nature of possession of the defendants over their portion which is admittedly for more than 12 years.
34. Before the execution of the formal deeds of partition Exs. A-8 and A-26, a draft Ex. A-36 is said to have been prepared. It does not bear the date of its execution. In this draft schedule A property has been divided in three shares, Plaintiff Umraochand has admitted that it is in the handwriting of Dhanpatchand and the correction marked as (UC) were made by him. Umraochand says that Ex. A-36 was prepared some time in 1937-38. He says that the writing in red ink must have been written subsequently by Inderchand. On behalf of the respondents it is urged that Ex. A-36 was prepared on the day the property was partitioned and Exs. A-8 and A-26 were executed. It is also urged that the apartments allotted to each brother at the time of partition are almost identical to that mentioned in the draft Ex A-36 However, no direct question in cross examination was put to Umraochand to elicit that the shares mentioned in Ex. A-36 and A-8 and A-26 are identical. But it is not possible to accept that Ex. A-36 was prepared in 1937-38 because there was then no occasion for the parties to do so. From Ex. 36 it can at least be inferred that the parties had intended to divide the property in three equal shares and that being so it is strange that in 1940 when Ex P.1 was executed the whole house was allotted jointly to Umraochand and Dhanpatchand and their brother Inderchand was not allotted any share- By Ex.A-36. at any rate, a serious doubt is cast upon the genuineness of Ex. P.1.
35. The subsequent conduct of the parties in regard to their dealings with the property also confirms the correctness of the earlier partition of 1934 and the collusive nature of the deed of 1940. Inderchand defendant has described in detail the repairs, alterations and additions which he made at his own cost in the portion which was allotted to him on partition in 1934. Electricity fittings were got done by him in his own portion and the amount spent for it is entered in Ex A-9 in the plaintiff's handwriting. Ex.A-9 is an account of the expenses incurred at the time of Inderchand's daughter's marriage. He has stated that once permission from the Municipality to make addition in his own portion was taken by Umraochand for him because he was then posted at Merta. He had also handed over the Patta Ex. A-10 of his house to Umraochand for submitting its copy in the Municipal office which he subsequently returned to him. Dhanpatchand and his sons also made new constructions over their own portions and at an approximate costs of Rs. 6000/-.
36. Ugamchand D.W. 14 also corroborates Inderchand on the above question and has stated that after the partition in 1934 alterations in Schedule A property were made by the parties in accordance with its terms and they are marked from 1-17-in the site plan Ex. A-27 Account of the expenses incurred on the said alterations was written by Gulraj and is Ex. A-28, and Ex. A-29 relates to the amount of expenses pertaining to his share and is in his father's handwriting. Exs. A-30 to A-33 are the cash memos for the material purchased for the said alterations. The witness has then mentioned the details of the construction made by the each brother in the respective portions allotted to them in the partition of 1934. He states that item Nos. 18 to 23, Nos. 24 to 30 and 31 to 37 shown in Ex. A-37 were constructed by Umraochand, Dhanpatchand. and Inderchand respectively in their own portions. Umraochand plaintiff has practically admitted the making of new constructions by the parties. He has stated that items Nos. 30, 26 and 27 were made by Dhanpatchand with his permission at his own cost on the understanding that due regard shall be given to the said constructions at the time of partition. As for items Nos. 24, 25, 28 and 29, he stated that they were made by Dhanpatchand after the institution of the suit. He also admits that after they had separated in residence in Section 1991 and before the execution of Ex. P. 1 in 1940. he himself had made alterations mentioned in items Nos. 6, 8 and 12, while Dhanpatchand and Inderchand had made items Nos 10, and 11, and Nos. 7,25, and 24 respectively. Items Nos. 4, 5, 13, 15, 16 and 17 were made by Dhanpat chand after 1940 with his permission. He admits that since 31.7.34 the three brothers occupied separate portions of the house and their possession over the same has been correctly shown in Ex. A-27. They were also in possession of the same portions in 1940 which means that since 1934 they are in continuous possession of the same portions. The witness has said that Inderchand has also made the new constructions with his permission. On the plaintiffs' own admission, it is clear that alterations were made in the house by each party in terms of Exs A-8 and A-26 and new contructions were similarly made by them. It is also clear that considerable amount was spent by each of them towards the constructions. This kind of dealing with the property can only be explained on the hypothesis that the property had been divided between them Plaintiff's version that he and Dhanpatchand had made new construction with the permission of each other on the understanding that equities shall be adjusted at the time of partition and that Inderchand who according to his version was only a tenant after 18.2.40 was allowed to make new construction by him cannot be accepted in the absence of other corroborative proof. On behalf of the defendant's other witnesses, D.W. 1, D. W. 2, D.W. 5, D.W. 6 and D. W. 7 have also been produced about the making of additions and alterations by the defendants but in view of the admission made by the plaintiff it is not necessary to discuss their evidence. In my view, the evidence of the parties themselves fully establishes that each of them dealt with the property so far as additions and alterations in it are concerned as if the property had been divided between them. This clearly lends support to the defendant's version that the property had been divided in 1934. and negatives the defendant's version that it was kept joint between him and Dhanpatchand in 1940. The entire conduct of the parties is inconsistent with the deed of 1940, that is Ex. P-1.
37. Exs. A-8 and A-26 contain a recital that patta and writing regarding the house situate on the back of the main house have been delivered to Inderchand. This house by virtue of these deeds had fallen to the share of Inderchand. Patta Ex. A-10 dated Sawan Sudi 1 Smt. 1973 and sale-deed Ex. All dated 28.12.1906 have been produced in this case from the custody of Inderchand If Inderchand had not been the owner of the property to which the said documents relate, they could not have been in his custody. Umraochand plaintiff has explained in his statement that he had given these documents to Dhanpatchand for preparing their copies for being submitted to the Municipality when he had applied for permission to make constructions in the house. Dhanpatchand, however, failed to return these documents to him and instead gave them to Inderchand and that is why they remained in his custody. It is difficult to accept this explanation because Umraochand would not have allowed the title deeds of his own property to remain with either Dhanpatchand or Inderchand. At any rate, there is nothing to show that he had at any time before the instituting of the suit demanded these title deeds from either of them. Ugamchand son of Dhanpatchand also does not support Umraochand on this point. On the other hand, Inderchand has stated that when new constructions were made in his portion, permission was obtained for him by his elder brother Umraochand because he himself was posted at Merta. At that time he had given the patta of the house to Umraochand so that its copy may be submitted to the Municipal Board. After submitting its copy, Umraochand returned the patta to him. Production of these title deeds by Inderchand also confirms the genuineness of Ex. A-8 and Ex. A-26.
38. The apartments behind the main house were let out to tenants. Umraochand was asked if these apartments were let out to Lal Mohammed and Abdul Rehman from Migsar Vadi 10 Smt. 1984 and that their tenancy continued up to the time ornaments were divided between the three brothers, but he replied that he did not remember. He, however, admitted that these persons had remained tenants for three years. He did not remember when they vacated the house nor did he remember whether they paid rent after Smt. 1991 or not. He was asked about the tenancy of Kiratmal and he replied that he did not remember whether he was a tenant from 1952 to 1957. He admitted that Kiratmal did not pay rent to him. He might be paying rent to Inderchand. On behalf of the defendants, both Abdul Rehman and Kiratmal have been examined.
39. Abdul Rehman D.W. 1 was examined on 3rd February, 1956, and he has deposed that he was a tenant of the parties about 30 to 32 years back and remained as such for about 18 to 20 years. In the beginning he paid rent to plaintiff Umraochand to about 11 to 12 yrs. Thereafter for about 8 to 9 yrs., he paid rent to Inderchand & the reason for it was that Umraochand had told him that the house had come to the share of Inderchand and so he should in future pay rent to him. He has stated that for three years after the partition, he continued to pay rent without any writing but after that he executed a rentnote in favour of Inderchand which was Ex.A-1 (dated 4.11.37). Similarly Kiratmal D. W. 3 who was examined on 8.8.56 deposed that for the last four years he was a tenant of Inderchand defendant and has been paying rent to him.
40. It, therefore, appears from the statements of D.W. 1 and D.W. 3 that after 1934 they had paid rent to Inderchand of the apartments which according to Ex. A-8 and Ex, A-26 had come to his share. Apartments were also let out to Kiratmal before the institution of the suit and Umraochand did not make any objection to it Umraochand's evasive reply as regards the tenancy of Abdul Rehman also shows that at least he did not recover any rent from him after 1934. This is another circumstance which goes to prove the correctness of Exs. A-8 and A-26.
41. During the course of argument much stress was laid on behalf of the appellants that the partition-deed of 1940 was acted upon by Inderchand defendant in as much as he got his name substituted in the court proceeding relating to the execution of decrees which had been allotted to his share. It was he alone who recovered monies under the decrees. It is true that in the proceedings for execution of the decrees, Inderchand got his name substituted, he could not have acted otherwise. At that time the main purpose was to show that Ex. 1 was genuine and that he did not get any share in Schedule A property and only joint family outstandings had come to his share. So there is nothing strange if Inderchand alone took steps for recovery of the amounts due under the decrees. Similarly Inderchand's filing of affidavits, applications and giving statement in the proceedings instituted on the petition of Umraochand and Dhanpatchand under Order 21 Rule. 58 C.P.C for getting his share released from attachment in the decree of Lalchand is explicable in the same manner. He filed the affidavits, applications and gave his own statement for achieving the same purpose for which Ex. 1 had been executed. However, on behalf of the defendants, documents have been produced to show that though Inderchand alone recovered amounts under the decree, it was equally divided amongst the brothers. In this connection reliance has been placed on Exs. A-13 to A-23 which are entries in the account-book of Dhanpatchand. Exs. A-20 to A-23 are said to be in the hind of Dhanptchand deceased. Reliance is also placed on Exs. A-5. A-6 and A-7 to show that Umraochand was taking keen interest in the recovery of the dues under the decree. On behalf of the appellant, it is contended that the entries Exs. A-13 to A-23 were not in regularly kept account-books and no value should be attached to such entries. As regards Exs. A-5, A-6 and A-7, it is contended that the only contain some advice which was sought from Umraochand by Inderchand and no more than that. It may be that the entries Exs. A-13 to A-23 are not contained in regularly kept account-books, but the geuineness of Exs. A-20 to A-23 cannot be doubted because they are in the hand of Dhanpatchand who had died before the institution of the suit. The lower court has also rightly remarked that Exs. A-3, A-6 and A-7 contain much more than a casual advice.
42. It was also contended that Inderchand after executing the rentnote Ex 2, continued to pay rent of the apartments to plaintiff & made endorsements to payments on Ex.2. Umraochand has deposed that he had received rent from Inderchand. Inderchand has denied any payment of rent to his brothers. Ugamchand who was entitled to one half of rent from Inderchand on the basis of Ex.2 has also not supported Umraochand on this point. The amount of rent said to have been received has not been entered in any account-book. It is, therefore, difficult to accept the solitary statement of Umraochand that any rent was in fact paid by Inderchand to him. The endorsement no Exs.2 like the rent deed itself is sham and collusive made for the purpose of deceiving the creditor. It is significant that there is no endorsement regarding payment of rent after Smt. 2008
43. Thus looking to all the evidence which has been produced by the parties in regard to the execution of Exs. A-8 and A-26 and the circumstances to their conduct, I have no hesitation in deciding issue No. 3 in favour of the defendants.
44. Having found that Schedule A property was in fact partitioned between the brothers in Smt. 1991, the question arises why parties agreed to execute the partition deed Ex.1 of 16.2.40. No explanation whatsoever has been offered to explain it on behalf of the appellants. On the other band, the explanation given by the defendants, as stated earlier, is that its purpose was to defeat Inderchand's creditor Lalchand and to save his portion from being sold in his debt. At the time of the partition of 1934, Schedule A property was divided in three equal shares; but in the partition of 1940, the whole property was given jointly to Umraochand and Dhanpatchand while Inderchand got no share out of it and was only allotted joint family outstandings. According to Umraochand, Inderchand did not take any share in the house because his financial condition at that time was weak and he was indebted. But it has not been shown that Inderchand was indebted, besides Lalchand, to any one else. A perusal of the list of joint family outstandings (Ex. 10) which are said to have been allotted to Inderchand would show that excepting three or four items, the rest were old debts which had become irrecoverable by lapse of time. It is, therefore, quite obvious that Ex. 1 was only paper transaction and not a genuine one. There is no reason why such an unequal partition was made in which Inderchand was only allotted outstandings worth a few thousand rupees in lieu of his valuable one-third share in the house. There was no other reason for such unequal distribution except that the parties wanted to defraud Inderchand's creditor, and that, it was not intended by them to be a true transaction. Ugamchand D.W.14's statement in this connection is very important and deserves considerable weight. Ugamchand should have been interested in supporting the plaintiff's case because by the deed of 1940, his father got half share in the whole property. But instead of supporting the plaintiff's case, he is claiming one-third share in the property against his own interest on the basis of partition of 1934. Normally no one is expected to act against his own interest. But from the statement of Ugamchand, it appears that he has given a true account of the whole matter stating that Ex-1 was a sham document executed by the parties to defraud Inderchand's creditors. I do not find any reason to disbelieve Ugamchand's statement in this behalf.
45. Inderchand's share was released from attachment when Lalchand had come to terms with him by accepting Rs. 5500/- in full satisfaction of his claim. Some negotiations started between the parties and letters were exchanged as mentioned earlier. There is, however, one letter Ex.A-12 by Umraochand to Inderchand and which has been placed to show that the parties were contemplating to execute some document in accordance with the old partition of 1934. Umraochand's letter does not bear any date but the endorsement made by Inderchand & which is addressed to his son is dated Asoj Vadi 3 Smt. 2009 corresponding to 6.9.52 and, therefore Umraochand's letter must have also been received by him nearabout that date. In this letter, Umraochand, after acknowledging the receipt of Inderchand's letter had made serious complaints against the behavior of Paraschand of Dhanpatchand and then has stated his own attitude towards the whole affair in the following words:
Jo Kuch JiyadatiYa Sabuti Bant Ri Vakt Hooi Men Phir Naj Paida Kiyon Karoon. Inh Sivay Bant Maro Saimobdo Levan Chave To Unhone Devane Taiyar Hoon Kiyon Ki Mujhe Khud Ri Sathat Ughariyon Ne Sharm Avan Ri Bat Hai So Apsuje Tah Hat So Main Likhvane Taiyar Hoon Mat Purani Farkhati men Koi Radobadal Kami Chahoon Nahin.
According to learned Counsel for the respondents, 'Purani Faragkhati' referred to in this letter means Faragkhati of 1934 while according to the appellant, it really refers to deed of 1940. Although it cannot be conclusively said whether 'Purani Faragkhati' referred to in this letter means the Faragkhati of 1934 or of 1940 but as beetween the two Faragkhatis, that of 1934 was certainly an earlier one that is 'Purani'.
46. I am, therefore, of the view that having regard to all the circumstances of the case, the partition deed of 16.2.40 and the rent-note of 18.2.40 were executed to save the property of Inderchand from the debt of Lalchand and the admissions made by Inderchand in his affidavits, applications and statement were also for the same purpose. Issues Nos.1 and 2 are, therefore, decided in favour of the defendants.
47. The next question which arises is whether Inderchand can take advantage of his own fraud and successfully defeat the plaintiffs' claim for partition and recovery of rent on the basis of Exs. 1 and 2, In this connection, learned Counsel invited my attention to Bhimsen Mahapatra v. Ramachandra Das : AIR1950Ori123 , Shiva Narain v. Phuliharia AIR 1919 Pat. 539 and Raunaq Ali v. Syed Nazir Husain AIR 1924 Oudh 321. In the first case, the court had come to the finding that the transaction in question was genuine and the lady was the real owner of the properties. However, the court considered the other objection regarding fraud also and followed the well-settled, principle that after fraud has been perpetrated no party to the fraud can take advantage of his own act and the real owner shall not be permitted to challenge the title of the ostensible owner if a benami conveyance was executed in order to perpetrate a fraud. In the second case also the same principle was followed, and it was held that:
Where a benami transaction is effected in order to defeat a creditor and the creditor is defeated, the real owner cannot subsequently attack the benami transaction.
The third case lays down that:
To enable a fraudulent confederate to retain property transferred to him in order to effect a fraud the contemplated fraud must be actually carried into effect. Then and then alone does the fraudulent grantor or giver loose the right to claim the aid of the law to recover the property he has parted with.
But in none of these cases, the question that where both parties were in equal fraud in carrying out the transfer to defraud the creditors of the transferor and the fraud contemplated has been carried out, each one of them is estopped from pleading its own fraud was considered. However in Immani Appa Rao v. G. Ramalingamurthi : 3SCR739 , the Supreme Court has exhaustively dealt with this question and held that where both the transferor and the transferee are in equal fraud and fraud has been carried out and creditors of transferor have been defrauded and where possession of the property has remained with the transferor, he can plead fraud in defence in a suit for possession by the transferee and the court will not help transferee in recovering possession of the property. The court observed that in such cases 'the paramount consideration of public interest requires that the plea of fraud should be allowed to be raised and tried, and if it is upheld the estate should be allowed to remain where it rests. The adoption of this course is less injurious to public interest than the alternative course of giving effect to a fraudulent transfer. In giving effect to the considerations of public interest or policy it makes no difference that the deed on which the present suit is borught is one of conveyance.
48. Similarly, in Raghupati v. Nrishingha AIR 1923 Cal. 90, where A fraudulently made a conveyance in favour of B and B sued for possession on the strength of it, it was held that:
the balance of authority is in favour of permitting A to set up the true nature of the transaction in answer to B's claim. Merely because B has helped A to cheat C it does not follow that the Court should assist B to cheat A,
It was further held that:
Where both parties to an indenture know that it is executed for immoral purposes or in contravention of a statute or of public policy in general, neither will be estopped from proving facts which will render the instrument void ab initio, for although a party will thus in certain cases be enabled to take advantage of his own wrong, yet this evil is trifling in compartion with the flagrant evasion of the law that results from an opposite rule.
The court further held that:
The maxim Nemo allegans suam thrpitu dinem audioudus est gives way to the maxim in pari delicto potior est conditio possisdentis.
In the present case also, the plaintiff himself was a party to Exs.1 and 2 which were executed for defrauding the creditor of Inderchand. Learned Counsel for the appellant contended that the defendants' evidence that they had been advised by Umraochand when he was approached by them to execute Exs. 1 and 2 to save the property from being sold in the decree of Lalchand should not be believed. But apart from that oral evidence, the inference is obvious that the plaintiff being a party to Ex.l & Ex.2 was a party to the fraudulent plan to which the three brothers had agreed. The document was executed with their mutual consent in order to defraud of creditor Inderchand. The parties knew well that the property had already been partitioned between them in 1934 and that they executed another sham document to defraud the creditor of Inderchand. In such circumstances, the plaintiff must be held to be a confederate in the fraud and equally guilty. After the execution of the document, he preferred a claim petition under Order 21 Rule 58 when Inderchand's share in the property was attached, pursued the claim petition and got the property released from attachment. Thus the purpose of saving the property from the creditor was achieved and he was apparently forced to compromise his claim for a much lesser amount. In such circumstances, the above-mentioned decision of the Supreme Court applies with full force to the facts of the case and it does not debar Inderchand from pleading his own fraud in this case, and the courts will not help the plaintiff who was himself a party to the fraud in enforcing Exs. 1 and 2 and the possession of the parties cannot be disturbed. Plaintiff is, therefore, not entitled to claim partition of the property from Dhanpatchand's sons and to recover arrears of rent on the oasis of Ex. 2 from Inderchand.
49. It was lastly contended that Ex.1 being a registered document must take effect against Exs A-8 and A-26 which are unregistered documents and relate to the same property. Reliance is placed on Section 50 of the Indian Registration Act. But it is a well recognised principle of law that no man can gain title by fraud. The legislature never intended to give priority to registered documents which have been executed for a fraudulent purpose. A registered deed tainted by fraud cannot be placed on the same footing as an honest and bonafide deed. I am, therefore, of the view that Ex. 1 cannot have priority over Exs. A-8 and A-26.
50. The result, therefore, is that this appeal fails but in the circumstances of the case, the parties shall bear their own costs of this Court as well.