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Mohabir Saran and ors. Vs. Lala Baldeo Sahai and ors. - Court Judgment

LegalCrystal Citation
SubjectFamily
CourtKolkata
Decided On
Judge
Reported in1Ind.Cas.205
AppellantMohabir Saran and ors.
RespondentLala Baldeo Sahai and ors.
Excerpt:
succession certificate - does not confer title to recover property--right of suit--whole estate--co-sharer not heard of for years--other co-share not entitled to take whole estate--evidence--khasra papers admissibility of--second appeal--failure of appellate court to consider important evidence--ground for second appeal--no combination among defendants--joint decree against them not sustainable. - .....the plaintiff was consequently entitled to a decree for a half share thereof. upon appeal, the subordinate judge has reversed the decision of the court of first instance, and made a decree in full in favour of the plaintiff.2. the defendants have now appealed to this court and on their behalf, the decision of the subordinate judge has been challenged substantially on three grounds, namely, first, that upon the case made in the plaint, the plaintiff was not entitled, in any view of the matter, to more than a half share of the properties left by sham lal secondly, that so far as the garden is concerned, the conclusion of the subordinate judge, that it formed part of the estate of sham lal, cannot be supported, in as much as he has not taken into consideration important evidence which.....
Judgment:

1. This is an appeal on behalf of the defendants in an action for recovery of possession of property, moveable and immoveable, which according to the plaintiff respondent belonged at one time to a man named. Sham Lal. The plaintiff alleged that he himself and another man, by name Raghu Nath Sahoy, were equally entitled to take by inheritance the properties left by Sham Lal. In the plaint he farther stated that Raghu Nath had not been heard of for upwards of 12 years and, consequently, could not be made a party to the suit. The Court of First Instance found as a fact that of the properties claimed by the plaintiff the garden did, at no time, form part of the estate of Sham Lal and that there was no evidence to show, as regards the moveables, that any of the defendants was in possession of any portion of them. As regards the kasht land and the dwelling house, the Court of First Instance found that they formed part of the estate of Sham Lal and that the plaintiff was consequently entitled to a decree for a half share thereof. Upon appeal, the Subordinate Judge has reversed the decision of the Court of First Instance, and made a decree in full in favour of the plaintiff.

2. The defendants have now appealed to this Court and on their behalf, the decision of the Subordinate Judge has been challenged substantially on three grounds, namely, first, that upon the case made in the plaint, the plaintiff was not entitled, in any view of the matter, to more than a half share of the properties left by Sham Lal secondly, that so far as the garden is concerned, the conclusion of the Subordinate Judge, that it formed part of the estate of Sham Lal, cannot be supported, in as much as he has not taken into consideration important evidence which was dealt with by the Court of First Instance; and thirdly, that as regards the moveables, the Subordinate Judge has erred in supposing that the defendants had combined to keep the plaintiff out of possession, and that at any rate no decree could be made jointly as against the defendants for recovery of the moveables, when it was not found that any of the moveables was in possession of any of them in our opinion, these contentions must prevail.

3. As regards the first point the learned Vakil for the respondents has candidly conceded that the view taken by the Court of appeal below cannot be supported. The Subordinate Judge has given the plaintiff a decree for all the properties left by Sham Lal, on the ground that as the plaintiff has obtained a Succession Certificate, his title has been conclusively established. He also adds that as Raghu Nath has not been heard of and as the defendants are trespassers, there is no reason why the plaintiff should not recover possession of the properties in dispute. These reasons are manifestly unfounded. A Succession Certificate merely entitles the holder thereof to collect debts due to the deceased; it does not entitle the holder to recover possession of properties, either moveable or immoveable. Then the mere fact that Raghu Nath has not been heard of for 12 years, does not show that the plaintiff is entitled to take the whole estate left by Sham Lal. The last reason given, namely, that as the defendants are trespassers, the plaintiff, although the owner of a moiety share is entitled to take possession of the whole estate, is not based upon any intelligible principle. We must hold, therefore, that the plaintiff is entitled to a decree in respect of a half share only of the kasht land and the dwelling house; and if he ultimately succeeds in establishing his title to the garden or any portion of the moveables, ho will be entitled only to a half share thereof.

4. As regards the second point, it is clear that the finding of the Subordinate Judge is not based upon the entire evidence on the record In dealing with the question whether the garden formed part of the estate of Sham Lal, the Subordinate Judge refers to the khasras and points out that they cannot be treated as evidence of title, This is perfectly true. But it cannot be contended that khasras are not admissible in evidence. They furnish important evidence upon the question of possession and to that extent reliance may be placed upon them. The learned Vakil for the respondents very properly invites our attention to some passages in the judgment of the Court of First Instance, which tend to throw doubt upon the reliability of the khasras. In fact it is pointed out that in some portions, at any rate, the khasas are inaccurate. But that affects not the admissibility of the documents, but only their evidentiary value, and when the case goes back, the Subordinate Judge, in dealing with the khasras as evidence of possession, will consider whether they are reliable. We observe that in the Court of First Instance reliance was placed, and in our opinion very properly, upon the Jamabandi which was filed in the partition proceedings and was signed by the plaintiff himself. No reference has been made by the Subordinate Judge to this document and the learned Vakil for the respondent has not been able to suggest any reason why it should be excluded from consideration in the decision of the question, whether the garden formed part of the estate of Sham Lal. We must, therefore, set aside the decree of the Subordinate Judge, so far as the garden is concerned and remit the case to him to decide that question with reference to the whole evidence on the record. We wish to add that it is not right that a carefully considered judgment of the Court of First Instance, in which the whole evidence is referred to and dealt with in detail, should be summarily set aside in appeal. This Court ought to be in a position to find out whether the whole of the evidence, which was considered by the Court of First Instance, has or has not been considered by the Court of appeal below.

5. Lastly, as regards the moveables, the Court of First Instance found that there was no reliable evidence to show that any one amongst the defendants had possession of them The Subordinate Judge does not expressly reverse this finding but proceeds on the ground that as a number of persons joined to deprive the plaintiff of his just rights, he is entitled to recover the properties that were attempted to be taken away from him. But when we turn to the plaint, we find that no case of combination among the defendants was even alleged. The Subordinate Judge must, therefore, find on the evidence whether upon the death of Sham Lal, any of the moveables, now in dispute, was seized by any of the defendants. He must differentiate the cases of the different defendants and if he finds that any one amongst thorn took possession of any of the moveables in dispute, a decree should be made against him, to that extent only. As we have already observed, if the plaintiff succeeds in getting a decree in respect of the garden or the moveables, he will be entitled to a half share of the same.

6. The result is that this appeal is allowed the decree of the Subordinate Judge is modified as regards the kasht land and dwelling house, and is set aside as regards the garden and the moveables. As regards the latter, the case is remitted to him to be dealt with in accordance with the directions given above.

7. The appellants are entitled to their costs of this appeal. The costs of the hearing in the Court below after remand will abide the result.


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