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Chhabilal Singha and ors. Vs. Jharulal Singha and anr. - Court Judgment

LegalCrystal Citation
SubjectFamily;Property
CourtKolkata High Court
Decided On
Case NumberA.F.O.D. No. 408 of 1966
Judge
Reported inAIR1971Cal540
ActsCode of Civil Procedure (CPC) , 1908 - Order 7, Rule 7
AppellantChhabilal Singha and ors.
RespondentJharulal Singha and anr.
Appellant AdvocateManindra Nath Ghose and ;Jamini Kumar Banerjee, Advs.
Respondent AdvocateNarayan Chandra De and ;Kshitindra Kumar Mitter, Advs.
DispositionAppeal dismissed
Cases ReferredM. M. B. Catholicos v. T. Paulo Avira.
Excerpt:
- .....it was further alleged that items nos. 28 and 29 were acquired by the defendant no. 1 with the joint family fund in the benami of his son and wife respectively. the plaintiffs alleged that these two items of properties were also joint family properties. the plaintiffs claimed partition of one-half share in the immovable properties described in schedule 'ka' and moveable properties described in schedule 'kha'.3. the case of the defendants was that the immoveable properties described in items nos. 5 and 7 were acquired by the defendant no. 1. these two properties were gifted to the defendant no. 1 by the owners thereof as rewards for services rendered by him. regarding items nos. 28 and 29 the defendants alleged that those were acquired by the defendant no. 2 tapesh, the son of.....
Judgment:

M.M. Dutt, J.

1. This Is a defendants' appeal and it arises out of a suit for partition and accounts.

2. The plaintiff No. 1 is the father and the plaintiff No. 2 is the son. The suit was filed by the plaintiffs against the defendant No. 1 the brother of the plaintiff No. 1 and the sons of the defendant No. 1 being defendants Nos. 2 to 7. The wife of the defendant No. 1 was impleaded in the suit as pro forma defendant No. 8. The parties are governed by the Mitakshara School of Hindu Law. It was alleged by the plaintiffs that out of items Nos. 1 to 27 of immovable properties mentioned in the schedule 'ka' in the plaint, some were ancestral properties of the plaintiff No. 1 and the defendant No. 1 and some were acquired after the death of their father with the ioint family fund. It was further alleged that items Nos. 28 and 29 were acquired by the defendant No. 1 with the joint family fund in the benami of his son and wife respectively. The plaintiffs alleged that these two items of properties were also joint family properties. The plaintiffs claimed partition of one-half share in the immovable properties described in schedule 'Ka' and moveable properties described in schedule 'Kha'.

3. The case of the defendants was that the immoveable properties described in items Nos. 5 and 7 were acquired by the defendant No. 1. These two properties were gifted to the defendant No. 1 by the owners thereof as rewards for services rendered by him. Regarding items Nos. 28 and 29 the defendants alleged that those were acquired by the defendant No. 2 Tapesh, the son of defendant No. 1 and the defendant No. 8 the wife of the defendant No. 1 respectively with their own funds. The defendants denied that those properties, namely, items Nos. 5, 7, 28 and 29 were joint family properties. The defendants also denied the plaintiffs' claim for accounts. The defendants did not dispute the plaintiffs' claim regarding the other items of properties mentioned in schedule 'Ka'. Regarding the moveable properties mentioned in schedule 'Kha' to the plaint the defendants alleged that the movables were divided between the parties in 1363 B, S. The defendants claimed some of the movables as belonging to the defendant No. 1 exclusively and denied the existence of bricks mentioned in item No. 18 of Kha Schedule.

4. The learned Subordinate Judge by his judgment dated August 17, 1965, came to the findings that items Nos. 5 and 7 were acquired by the defendant No. 1 as rewards from the owners thereof for services rendered by the defendant No. 1 to them, but the defendant No. 1 threw these two items of properties into the common stock and treated them as ioint family properties. The learned Subordinate Judge held that items Nos. 28 and 29 were not the Ioint family properties, but the same were the self acquired properties of defendants Nos. 2 and 8 respectively. The learned Subordinate Judge decreed the suit in part in preliminary form declaring the plaintiffs' one-half share in all the properties of schedule 'Ka' excepting items Nos. 28 and 29 thereof. Out of the movables mentioned in schedule 'Kha'. to the plaint, plaintiffs' half share to such of them as found to have belonged to the joint family was declared. The plaintiffs' claim for accounts was disallowed by the learned Subordinate Judge. Hence this appeal by the defendants.

5. The plaintiffs have also filed a cross-objection challenging the decree dismissing the plaintiffs' claim for accounts and for partition in respect of items Nos. 28 and 29 and the disputed movables.

6. Mr. Ghose, learned Advocate for the appellants challenged the finding of the learned Subordinate Judge that items Nos. 5 and 7 of the immovable properties were thrown by the defendant No. 1 into the common stock. Mr. Ghose submitted that there was no allegation in that regard in the plaint. It was argued that even assuming that the finding of the learned Subordinate Judge is correct, it was a case of variance between pleading and proof and accordingly the plaintiffs were not entitled to claim items Nos. 5 and 7 as joint family properties.

7. The learned Subordinate Judge has found that items Nos. 5 and 7 of immovable properties were the self acquired properties of the defendant No. 1. He got these two properties as rewards from the owners thereof. There is no satisfactory evidence on behalf of the plaintiffs that these properties were either ancestral properties or were acquired with the joint family fund. We would accordingly accept the finding of the learned Subordinate Judge that items Nos. 5 and 7 were the self acquired properties of the defendant No. 1.

8. The learned Subordinate Judge has, however, found that the defendant No. 1 threw these two items of properties into the common stock and treated the same as properties belonging to the joint family. In the R. S. record of rights these two properties have been recorded in the names of the plaintiff No. 1 and the defendant No. 1 to the extent of one-half share each. It was alleged by the plaintiffs that at the instance of the defendant No. 1 these two items of properties were recorded in the joint names of the plaintiff No. 1 and the defendant No. 1. The learned Subordinate Judge has believed the plaintiffs' case in that regard. We do not also find any reason not to believe the evidence of the plaintiff No. 1 that it was the defendant No. 1 who got these two items of properties, namely, items Nos. 5 and 7 recorded in the joint names of himself and the plaintiff No. 1 in the record of rights.

9. It was admitted by the parties that there was an attempt to amicably partition the joint family properties through the arbitration of some local people. A list of joint properties was prepared and handed over to the Arbitrators. The said list has been marked as Exhibit 2. The plaintiff No. 1 says that the defendant No. 1 prepared the list. The list also contained items Nos. 5 and 7 of immovable properties. Although the defendant No. 1 in his evidence denied that those two items of properties were included in the list (Exhibit 2) at his instance, it is clear from the evidence of P. W. 2 Kailash Ch. Misra that the same were included at the instance of the defendant No. 1. P. W. 2 is a common friend of the plaintiff No. 1 and the defendant No. 1. He was cited as a witness by both the parties. It is not disputed that he was a member of the Salish. We believe the evidence of this witness and hold that the defendant No, 1 included these two properties, namely, items Nos. 5 and 7 in the list of joint properties and delivered the same to the members of the Salish.

10. We are also satisfied that the plaintiffs have been able to prove that items Nos. 5 and 7 had been in the joint possession and enjoyment of the members of the family as joint properties. We do not accept the case of the defendant No. 1 that these two properties had been exclusively in his possession.

11. From the facts aforesaid we are in agreement with the finding of the learned Subordinate Judge that items Nos. 5 and 7 of the immovable properties though acquired by the defendant No. 1 were thrown by him into the common stock and treated as joint family properties and that by doing so the defendant No. 1 ceased to be the exclusive owner of the said two items of properties.

12. As to the contention of Mr. Ghose that there is variance between the pleading and the proof, it may be stated that it is now a well established rule of law that every variance between) pleading and proof is not fatal. The Court must carefully consider whether the objection is one of form or of substance, having in view the purpose which the rule that allegation and proof must correspond is intended to serve, namely, first, to apprise- the defendant distinctly and specifically of the case he is called upon to answer, so that he may properly make a defence and not be taken by surprise, and secondly, accurate record of the cause of action as a protection against a second proceeding founded upon the same allegations. (See Kumar Satish Kanta v. Satish Chandra, 24 Cal WN 662 = (AIR 1920 Cal 26) ) In Sagarmull Nathany v. John Carapiet Galstaun, 52 Cal LJ 1 = (AIR 1930 PC 205), the Privy Council has held that pleadings should not be construed too narrowly, and therefore in dealing with the question whether there has been a variance between a plaintiff's pleadings and the case alleged at the trial the Court must look not to the mere wordings of the plaint, but to the issues which were settled for trial and the manner in which the case was deliberately fought out by both the parties in the trial Court. The plaintiffs claimed these properties as joint family properties of the parties. It is true that there is no averment in the plaint that items Nos. 5 and 7 of the properties were thrown into common stock by the defendant No. 1 and as such they ceased to be his personal properties. It was alleged that some of the properties mentioned in items Nos. 1 to 27 of the 'Ka' schedule were ancestral properties and some were acquired by the plaintiff No. 1 and the defendant No. 1 with the joint funds. But the question is whether the defendants were taken by surprise. The plaintiffs produced the R. S. record of rights and the said list (Exhibit 2) in order to show that these two items of properties were treated by the defendant No. 1 as the joint family properties. The plaintiff No. 1 alleged in his evidence that items Nos. 5 and 7 of the immovable properties were recorded in the R. S. record of rights at the instance of the defendant No. 1. It has been already noticed that P. W. 2 stated hi his evidence that these two items of properties were included in the list (Exhibit 2) at the instance of the defendant No. 1. The defendant No. 1 in his examination-in-chief stated that he never mixed up the income of these two properties with the joint family fund. This statement of the defendant No. 1 in his examination-in-chief is very significant and it indicates that the defendant No. 1 understood that he was to meet the case that these two properties were thrown into the common stock and treated as the joint family properties. We may refer to issue No. 4 framed in the suit which is as follows-- 'Are all the properties the joint and ejmali properties of the parties?' This issue also covers the question whether by throwing items Nos. 5 and 7 of the properties into the common stock by the defendant No. 1, the same became ioint family properties or not. Considering the pleadings of the parties and the evidence, particularly the evidence of the defendant No. 1, we are of the view that the variance between the case established and the case pleaded in the plaint is not fatal to the plaintiffs. The defendant No. 1 was aware of the case he was to meet and he gave evidence in that regard. There was no grievance made before the Trial Court on behalf of the defendants as to the variance between the pleading and the proof. In the circumstances, we are unable to accept the contention of Mr. Ghose that the plaintiffs' claim should be disallowed in respect of items Nos. 5 and 7 of the immovable properties as there was variance between the pleadings and the proof.

11. Mr. Ghosh relied on three decisions of the Supreme Court namely, Firm Srinivas Ram Kumar v. Mahabir Prasad, : [1951]2SCR277 ; M. M. B. Catholicos v. T. Paulo Avira, AIR 1959 SC 31; and Mohd. Mustafa v. Abu Bakar, : AIR1971SC361 .

14. In Firm Srinivas Ram Kumar v. Mahabir Prasad, : [1951]2SCR277 , the Supreme Court has observed that the rule undoubtedly is that the Court cannot grant relief to the plaintiff on a case for which there was no foundation in the pleadings and which the other side was not called upon or had no opportunity to meet. In the present case before us in view of the facts stated above it cannot be said that there was no foundation in the pleading and that the defendants were neither called upon nor had they an opportunity to meet the case of the plaintiffs to the effect that the defendant No. 1 threw items Nos. 5 & 7 of the properties into the common stock. In the case of M. M. B. Catholicos v. T. Paulo Avira. AIR 1959 SC 31, the charges sought to be relied upon by the plaintiffs as a fresh cause of action for the suit were not covered by the pleadings or the issues. But, this is not the position in the instant case. The plaintiffs claimed items Nos. 5 and 7 of the 'Ka' schedule properties as the ioint family properties of the parties. We have already referred to the issue No. 4 which is to the effect whether all the properties were ioint properties or not. It has been found on evidence that those two items of properties are the joint properties of the parties.

15. The last case of the Supreme Court relied upon by Mr. Ghose is the decision in : AIR1971SC361 . In this case the appeal before the Supreme Court arose out of a suit for partition in a Muslim family. There was no pleading in the written statement of the defendant that certain items of properties were the Ioint properties of the parties, but it was pleaded that the suit was bad for artial partition. As there was no pleading, no issue was framed as to whether e said items of properties were joint properties or not. When the case came appeal to the High Court, the defendant applied to the High Court to permit (sic) to amend the written statement and (sic) the plea that the said items of pro (sic)ties should be considered as joint pro(sic)rties. The High Court re j ected that application, but on appeal the SupremeCourt allowed the defendant to amend the written statement and sent the case (sic) on remand holding that the High Court took a highly technical matter. decision of the Supreme Court does (sic) in the least, support the contention (sic)Mr. Ghose, for, as aforesaid, (sic)there (sic)no pleading in the written statement (sic)the defendant claiming the said items (sic)properties as the .ioint properties.

16. In all the aforesaid decisions on the Supreme Court, there was no foundation in the pleading regarding certain important and vital matters and no issue was framed on the same. It cannot, however, be said that in the instant case there is no foundation in the pleading. There is, however, some variance between the pleading and the proof, but the variance is not fatal to the plaintiffs' case. The decisions relied upon by Mr. Ghose do not apply to the facts and circumstances of the instant case. These decisions of the Supreme Court do not militate agninst the view which we have taken, namely, that although there was some variance between the pleading and the proof, the variance is not fatal to the plaintiffs' case.

17. As to the cross-objection filed by the respondents the only contention that was advanced before us was with regard to the plaintiffs' claim to items nop. 28 and 29 of the immovable properties. It was contended that the plaintiffs' claim to items Nos. 28 and 29 should have been allowed. We do not find any merit in the said contention. We are satisfied with the evidence adduced on behalf of the defendants that items Nos. 28 and 29 were acquired by the defendant No. 2 and the defendant No. 8 with their own funds. The plaintiffs have failed to prove that those two items of properties were acquired by the defendant No. 1 in the benami of defendants Nos. 2 and 8. We would accordingly reject the claim of the plaintiffs in respect of items Nos. 28 and 29.

18. In the result, the judgment and decree of the learned Subordinate Judge are hereby affirmed. Both the appeal and the cross-objection are dismissed, but in the facts and circumstances of the case we direct each party to bear his own costs in this Court.

Arun K. Mukherjea, J.

19. I agree.


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