Rankin, C. J.
1. In this case the plaintiff brings his suit for arrears of rent and he is met with a defence to the effect that the suit for rent is bad because the plaintiff has title only to four annas share of the superior interest and he has not proved or did assert any right to a separate collection of his share of rent. The suit not being brought in accordance with the special provisions of the Bengal Tenancy Act which enable a cosharer by suing the other cosharers to claim a part of the rent the whole suit is defeated unless the plaintiff can show himself to be entitled to sixteen annas of the rent. Mr Brojo Lal Chakarvarty for the appellant does not dispute that proposition as a matter of law. The contest in this case is whether or not the learned Subordinate Judge has correctly dealt with the issues which arise upon the question whether or not the plaintiff has made out his title to the whole of the rent.
2. Now it appears that at first sight there is something startling about the way in which the Courts below have dealt with this case. It would appear that Dolegovinda was a mukhtear and according to the findings of fact he had an elder brother Radha Kanta who had an even larger practice as a mukhtear than himself. He bought this property now in question in 1884. He took the conveyance in his own name. He got it entered in the books of the Collectorate in a separate account in his own name. He took kabuliats from these very tenants or their predecessors in his own name. It appears that at least on one occasion he took for himself the money which represented a land acquisition award. Then after his death when his representatives had sold to the plaintiff these tenants set up this defence that the whole suit was bad because the property as a matter of fact did not belong to Dolegovinda but belonged to the family of which Dolegovinda was merely one member. That certainly seems to me paradoxical and I must say that I have examined the judgments of the Court below with some care to see whether it is really in accordance with the correct view of the law.
3. Mr. Brojo Lal Chakravarty for the appellant takes three objections. First of all he says that there is a part of a compromise deed which is void for want of registration but which nevertheless is admissible in evidence as an admission by the brother and cousins of Dolegovinda that this property belonged to Dolegovinda alone. He says that that is a matter which the Court below has brushed aside under the impression apparently that for want of registration the document can be looked at for no purpose. In the second ploce he says that under Section 41, T.P. Act, the Courts below have brushed aside his client's claim to be treated as a purchaser for value without notice on the ground that he made no proper enquiry into the title. He says that if one looks at the decisions in Gholam Sidhique Khan v. Jogendra Nath A.I.R. 1926 Cal. 916 and in MacNeil & Co. v. Saroda Sundari Debi : AIR1929Cal83 one would find that one cannot defeat a claim to the protection given by Section 41 without definitely showing what circumstances there were to put the purchaser upon enquiry, what facts would have been found out by enquiry and so forth. Complaint is made that this matter has not been properly dealt with as a matter of law. The third complaint which is made is that the judgment of the Subordinate Judge misplaces the onus of proving that the self-acquired property of Dolegovinda was thrown into the common stock.
4. There is something in each of these objections. In my judgment the document Nirdeshpatra as it is called cannot be said to be inadmissible as evidence of an admission. If one looks at Section 49, Registration Act, one finds that documents which should be registered and are not registered are inadmissible as evidence of a transaction affecting the property, but when they are put forward as. containing an admission it does not seem to me that they are being put forward as evidence of a transaction affecting that property. An authority for that proposition is to be found in Rajangam Ayyar v. Rajangam Ayyar : (1920)39MLJ382 . When one comes, however, to see what the effect of this admission would be together with the other evidence in the case one finds this that a particular term out of a lot of others was that the representatives of the other branch should admit that the land in question--taluk No. 4--was self-acquired property of Dolegovinda.
We the other parties never had nor have any claim or title thereto. As we are not aware of the details of our properties we filed a written statement alleging that we have title thereto. We shall withdraw our said objection.
5. The Munsiff in the first Court took the view that this was a part of the bargain. The bargain having gone off there is no great evidentiary force in that paragraph if it be looked at as an admission, and the learned Subordinate Judge has not looked at the matter from that point of view at all. It does seem to me that this admission is something that is being bought, if one may put it so, by the other terms of the deed. At the same time it is just noticeable that the parties do not say:
we give up claim as one of the terms of this deed, to any title in taluk No. 4.
6. They go on to explain that they never had a claim and that their pretension to a claim was under a mistake. That I think has to be considered when we come to the question of fact in this case.
7. The next point that arises is as regards Section 41, T.P. Act. I am quite satisfied that it is idle in this case to say that Section 41 does not apply because Dolegovinda was not a benamdar. What the section deals with is a person with the consent, express or implied, of the persons interested in an immovable property being the ostensible owner of such property. That is just exactly the position of Dolegovinda according to the defendants. The property stood in his name and a separate account was made; and it seems to me therefore, that the only question under Section 41 for our consideration is the question whether the plaintiff having bought from Dolegovinda's representatives took reasonable care to ascertain that his transferrer had power to make the transfer. There, as I have said, the appellant says:
It is not enough to say that proper enquiry was not made. It must be shown that there was something to call attention and invoke an enquiry. It must be shown that there were means of answering the enquiry. It must be shown what the enquiry would have revealed.
8. That is quite sound law, but in the present case we have to apply the doctrine to a somewhat peculiar position. It is clearly for the plaintiff to satisfy us that he took 'reasonable care' within the meaning of the section, and when we look at the evidence it seems that it is pretty plain that it is impossible to say that the plaintiff has affirmatively shown that he took reasonable care over this transaction at all. He did not even see the main document of title passing the property to Dolegovinda. It is true that he got certain title-deeds from his vendor. Certain title-deeds he got in that way and we have the fact that the property was entered in his name as separate estate No. 41. But in view of the plaintiff's evidence and of the burden of proof being upon him I find it very difficult to see how any Court can say that he has satisfied the burden which lay under Section 41. Both Courts have dealt with the matter rather summarily just for the reason that the plaintiff's evidence is in so perilous a condition. The Munsiff paid a good deal of attention to the fact that shortly before a near neighbour of the plaintiff made an offer for this property and finally the contract for sale went off. I find it a little difficult to gather from the judgment what exactly the facts were about that and whether if the plaintiff had made an enquiry he would have known anything in particular and if so what. Putting that matter on one side altogether, it remains that if the Courts have dealt with this contention somewhat similarly it is because the evidence is in a state which is highly unsatisfactory.
9. I now come to consider the way in which the learned Subordinate Judge has dealt with the main point. The learned Subordinate Judge finds that this property was bought with Dolegovinda's own money. So far, therefore, it is the self-acquired property of Dolegovinda. It is quite true that it is possible even so to apply the principle that a property originally self-acquired may become joint property if it has been voluntarily thrown by the owner into the joint stock with the intention of abandoning all separate claims upon it. The learned author Mr. Mayne in his well known book on Hindu Law says:
The question whether he has done so or not is entirely one of fact to be decided in the light of all the circumstances of the case but a clear intention to waive his separate rights must be established and will not be inferred from acts which may have been done merely from kindness or affection.
10. The learned Subordinate Judge in this case having found that the property wasself-acquired goes on to say:
Now the question arises whether he treated this property as his exclusive and separate property. The evidence does not support this theory.
11. The learned Judge should have asked himself whether there was sufficient evidence to support the opposite theory and to show that Dolegovinda had thrown it into the common stock with an intention to abandon his individual right. There are other passages which seem to show that the learned Judge was equally unhappy in expressing himself. However, when I come to look at the basis of the judgment of the learned Subordinate Judge I find this: I find first of all that the question of the admission in the Nirdeshpatra is overlooked. Then I find that there is in the year 1888 in connexion with Dolegovinda's application for mutation of names a very strong piece of evidence to the effect that this property in the name of Dolegovinda was really of the joint family. I regard that piece of evidence as particularly strong: and again in the written statement Ex. F-it is true that it is a written statement to a suit by a stranger - Dolegovinda does, unnecessarily it is true but quite clearly, state after reciting his title that he has been in possession of this property along with the other members of his family. These are I think extremely strong pieces of evidence to show that Dolegovinda was putting this property into the joint fund and when I come to look at the circumstances of the case I find this that the elder brother Radhakanta, who was apparently a gentleman with a larger practice of the two hadadmittedly left -his self-acquired property to go to the common stock. Radhakanta was the karta of the family till his death After him Dolegovinda be came the karta; and in these circumstances, it does seem to me that the mere fact that the property was bought with Dolegoviada's funds is by no means conclusive and there is very strong evidence on the record to show that in any case Dolegoviada did put this property into the common stock. That evidence is assisted in various ways by evidence which by itself, I confess, would not be enough to persuade me. It would appear that so far from keeping a separate clerk and a separate set of books for this particular estate Dolegovinda let it be managed like the other family properties and it certainly appears that from time to time the proceeds of the rent are differently shown to have been applied for the joint family purpose. There was evidence of a gentleman named Dwarakanath Dutta who was a family friend and acted for the brothers; and, as far as I can make out, his evidence was definitely in favour of the defendants.
12. In these circumstances the real question that we have to consider is this:-- Having regard to the fact that the Nirdeshpatra was not treated exactly in accordance with the principles of law and having regard to the fact that the learned Subordinate Judge has expressed himself at times as though the burden were on the plaintiff to show that Dolegovinda did not put this property into the common stock, is it desirable or necessary for us to send this matter back to have another adjudication upon this question of fact. I do not think so for two reasons: first of all because I take very much the same view of the evidentiary value of para. 5 of the Nirdeshpatra as was taken by the Munsiff. I think it would be unsafe to rely upon that as anything except a term of bargain. However that may be having regard to the other evidence to which I have referred I think its weight is comparatively slight. On the other question of onus what I feel is this that while the learned Subordinate Judge has thought that though there was a presumption in the circumstances that this property was bought with Dolegovinda's own earnings he has not sufficiently considered this that the treatment of the property is in itself evidence as to whether or not the property was bought for Dolegovinda alone or for his family including himself. It appears to me that if this case were sent back with the best instructions which we can give on points of law it would be very little likely that any different result would have been arrived at. We have examined into the evidence ourselves with very considerable care and have spent a good deal of time and I am satisfied from what we gather from the evidence that it is better that we should here bring this matter to a decision and in my judgment the broad finding of fact that the property belonged to the family is on the whole right and we ought not to disturb the conclusion of the learned Subordinate Judge merely because on the two points that I have mentioned it could possibly be criticized. I think the appeals must fail and be dismissed with costs. The application for taking additional evidence in this Court is withdrawn. Let the documents be returned.
C.C. Ghose, J.
13. I agree.