C.R. Thakur, J.
1. This appeal has arisen out of a suit brought by Smt. Lila Wati widow of Duni Chand and her sons and daughters against Paras Ram and his sons for possession of the lower flat of house situate in Chowk Bazar, Solan, and for recovery of Rs. 900/- on account of use and occupation and future mesne profits. In order to appreciate the facts of the case it will be better to give the pedigree-table of the parties and which is as under:
| | |
Sawan Ram Munshi Ram Paras Ram
(died isssueless) | (Defdt. No1 I)
Duni Chand |
Saroj, Krishna, Usha |
Surendara (Daughters) |
Anil Kumar, Lalit Kumar'(sons)|
Lila Wati (Window) |
Basheshar Nath Som Nath
(Defdt. No.3) (Defdt. No.2)
Till 1937 according to the plaintiffs the three brothers, Sawan Ram, Munshi Ram and Paras Ram constituted a joint Hindu family and in that year a partition was effected between these three brothers and a mutation to that effect was attested on 6-6-1937. According to this partition the land in khasra Nos. 320 and 325 including the property situated thereon fell to the share of Munshi Ram and the same day, Munshi Ram giffted that property to his son, Duni Chand, who entered into possession of the same. It is averred that after this gift Duni Chand purchased Khasra No. 326/1 from one Kishori Lal by a registered deed, dated 24 10-1944. This land was said to be contiguous to the land acquired by him under a gift from his father. It is pleaded that after the purchase of khasra No. 326/1, Duni Chand carried out many improvements on this consolidated plot and completely dismantled the old structure and erected a two storeyed building consisting of two shops and residential house at his own costs. Duni Chand died on 25-5-1961 and Munshi Ram died in 1962. According to the plaintiffs, they are the legal heirs of Duni Chand. The defendants had taken illegal possession of a portion of lower story of the property shown in red in the map attached to the plaint. The plaintiffs had requested the defendants to surrender the possession of the property by a notice, dated 21-9-1964 but by the reply, dated 26-9-1964 they refused to do so. Hence they had per-force to file the suit They claimed mesne profits at the rate of Rs. 300/- per annum for the use and occupation of the property for the last three years which amounted to Rs 900/-and they also claimed future mesne profits.
2. The defendants denied the partition and averred that the property held by them including the property in suit was their joint Hindu family property. It was also denied thai Munshi Ram made any gift of the property in suit in favour of Duni Chand nor he was competent to do so. It was pleaded that the property bearing khasra No. 326/1 was purchased with the joint family funds and is their joint family property. The building on the land khasra Nos. 320, 325 and 326/1 was constructed with their joint family funds and is joint family property. The defendants were in possession of the property in suit as owners in their own rights as members of the joint family. In their additional pleas it was averred that the alleged mutations are false and fictitious documents. Paras Ram, defendant No. 1 never appeared before the Revenue. Officer nor the Patwari nor he ever made any statement that a partition had taken place. In the alternative it was pleaded that in case it was found that the defendants were in wrongful possession of the property as represented by the plaintiffs yet they had acquired ownership rights by adverse possession as they had been in possession of the property in suit for more than 12 years before the institution of the suit.
3. A number of issues had been framed and after recording the evidence of the parties the trial court dismissed the suit holding that the partition through the mutation, Exhibit P. 1, was a fictitious one made with an ulterior motive by the parties connected with it. Further that the property was heavily encumbered at that time by the mortgages and it was not un-reasonable to infer that the firm Bhuja Mall Sawan Ram was not doing well and was facing financial crisis and so the partition was nominally effected to safe-guard it from the creditors of the firm and that is why on the same day Paras Ram defendant and Munshi Ram deceased further transferred the properties that had fallen to their respective shares to their respective sons by different muvations. It was also held that the property constructed on khasra Nos. 320, 325 and 326/1 was the joint family property of the parties acquired or constructed with the joint family funds.
4. Therefore, the only point that arises for consideration is whether there was a partition between the three brothers on 6-6-1937 whereunder the suit property i. e. khasra Nos. 320 and 325 fell to the share of Munshi Ram. The learned Senior Sub Judge has held:
'The document Ex. P. 1 purports to show that the three brothers Paras Ram defendant and Munshi Ram and Sawan Ram did effect a private partition in respect of certain shops and (although the defendant Paras Ram has denied this). I am inclined to think that the mutation, the copy of which is Ex. P-1 was attested at the instance of all three brothers. The question, therefore, is whether this was a genuine partition or just a nominal one and after taking all the circumstances into consideration I am of the opinion that this partition is a fictitious one and it did not bring about any severance of joint status of the parties concerned.'
Further on, he observed:
'In my opinion the partition through the mutation Ex. P-1 was a fictitious one made with an ulterior motive by the parties connected with it. It is on record that the property was heavily encumbered at that time by mortgages and it will not be unreasonable to infer that the firm Bhuja Mall Sawan Ram was not doing well at that time and was facing a financial crisis and so the partition was nominally effected to safeguard it from the creditors of the firm; that is why on the same day defendant Paras Ram and Munshi Ram deceased further transferred the properties that had fallen to their respective shares to their respective sons by different mutations.'
5. Thus from the findings of the trial court it is quite evident that there was a partition as evidenced by the mutation, Exhibit P. 1. but the partition according to the finding of the learned Senior Sub Judge is fictitious, made with an ulterior motive to save the property from the creditors. Under para 326 of the Hindu LEW by Mulla in 13th edition, it is mentioned that a partition if otherwise genuine will sever the joint status even if the motive is to defeat the claims of creditors. The defendants-respondents in their written statement had denied the factum of partition. But, there is a clear finding by the learned Senior Sub Judge about that fact. However, he came to the conclusion that it was a fictitious partition. The defendants had also raised an additional plea in their written statement wherein it had been pleaded that the alleged mutations are false and fictitious documents and this plea according to the learned Senior Sub Judge stands proved. It may be that, the mutation was effected to save the property from the creditors but the partition once proved even if it may have been brought about with an ulterior motive will be binding on the brothers or the members who were before the partition members of the joint Hindu family, and in this behalf I may also refer to Gaya Prasad v. Murlidhar, (AIR 1927 All 714). In this case there was a partition between the father and his sons. The respondent brought a suit on a mortgage against the father and impleaded the appellant. It was found that the mortgage-deed had only been executed by the father and one son (other than the present appellants). A simple decree was given against the father and son and the suit was dismissed as against the appellants. In execution the judgment decree-holder sought to attach the joint family property. Objection to this attachment was raised by the appellant on the ground that at the date when the attachment was asked for what had been the joint family property of the father and the appellants had become their separate property by a voluntary partition This objection was allowed by the trial 'court and in appeal the District Judge held that the partition between the father and sons (appellants) was executed during the pendency of the suit and to all intents and purposes was executed in order to defeat the claim of the mortgagor In second appeal by the sons the High Court accepting the appeal held that the sons of a Hindu at any time up to attachment of the joint family property can enter into a partition with their father with the express object of avoiding attachment of what up to the time of the partition has been joint family property. If they do so their individual property acquired by the partition will not be liable to attachment. The partition can only be set aside on evidence showing fraud, and the mere fact of the desire to save their property will not be sufficient to justify in inference of fraud.
6. In Km. Kr. Km. Kuppan Chetiar v. Masa Goundan, (AIR 1937 Mad 424) also it had been held that even if a partition is entered upon in order to defeat the claims of creditors, nevertheless provided that it is a genuine partition, division of status takes place and the power of the father to sell the shares of the sons is brought to an end Therefore, from these authorities it is manifest that if the partition is genuine and has been brought about with the express object of defeating the claims of the creditors such a partition will sever the joint status of the family.
7. In this case the learned counsel for the appellants has contended that the factum of partition is fully established from the document Exhibit P. 1 which is a mutation effected subsequent to the oral partition brought about by mutual consent and the learned Senior Sub Judge has also held that there was a partition. So, if the learned Senior Sub Judge later on held that the parties continued to be joint then there should have been some evidence or plea of reunion and which there is none. Unless the defendants had taken a specific plea that the partition was fake and that it was not meant to be acted upon the learned Senior Sub Judge could not make out a new case for the defendants in the absence of any pleadings or any issue on the point. The defendants, in fact, denied the factum of partition and under Order 6 Rule 8 C.P.C. where a contract is alleged in any pleading, a bare denial of the same by the opposite party shall be construed only as a denial in fact of the express contract alleged or of the matters of fact from which the same may be implied, and not as a denial of the legality or sufficiency in law of such contract. But this Rule 8 of Order 3. in my opinion does not come into play because the plaintiffs had not based their case on any agreement. More so the defendants have stated in quite unmistakable words in their additional plea that if there was any partition it was a faked and fictitious one. Although the learned 'Senior Sub Judge has given a clear finding to the effect that there was a partition amongst all the three brothers but since he came to the conclusion that it was fictitious one and the defendants-respondents still contest that there was no partition, therefore, it would be necessary to go into the evidence to see how far the findings of the learned Senior Sub Judge are correct
8. First, I must take the point raised by the defendants-respondents that there was no partition because the shares allotted to the three brothers affording to these mutations are quite unequal and no reason whatsoever has been indicated in Exhibit P. 1 or Exhibit PW-8/A as to why there has been this inequality in the shares. Further that two very valuable and substantial items of immovable property belonging to the joint family were left unpartitioned and undivided. Therefore, according to the learned counsel for the respondents the alleged acting upon of the so-called partition is obviously illusory and smacks of artificiality. Further, in order to elaborate this point he has contended that the very day when the partition was made Munshi Ram ES also Paras Ram are alleged to have made transfers in favour of their sons and that this indecent haste in the matter shows that the so-called gifts were illusory and even window-dressings.
9. Further he has contended on the strength of (Thakur) Nirman Singh v. Thakur Lal Rudra Partab Narain Singh, (AIR 1926 P. C. 100) that it is an error to suppose that the proceedings for the mutation of names are judicial proceedings in which the title to and the proprietary rights in immovable property are determined. They are nothing of the kind. They are much more in the nature of fiscal inquiries instituted in the interest of the State for the purpose of ascertaining which of the several claimants for the occupation of certain denominations of immovable property may be put into occupation of it with greater confidence that the revenue for it will be paid. Further, that the orders in mutation proceedings are not evidence that the successful applicant was in possession as sole legal owner in a proprietary sense, to the exclusion, for example, of all claims of the other members of the family as co-owners.
10. It may be stated that toe submission that two very valuable and substantial interns of immovable property belonging to the joint family were left un-partitioned and as such there could not be said to be the severance of the joint family of the parties is not correct. There is no illegality if the parties partition a particular property and leave the other joint. According to para 328 of the Hindu Law by Mulla, Thirteenth Edition a partition between coparceners may be partial either in respect of the property or in respect of the persons making it. It is open to the members of a joint family to make a division and severance of interest in respect of a part of the joint estate, while retaining their status as a joint family and holding the rest as the properties of a joint and undividel family. In the instant case what the plaintiffs have pleaded is that this property in a family partition effected on 6-6-1937 had fallen to their share. So, if they had made a specific prayer with regard to the allotment of this particular property that does not mean that merely because the other properties had not been partitioned there was no partition at all. Such a partial partition is also not illegal. If the partition is admitted or proved the presumption is that the properties are divided and the person alleging that family property in the exclusive possession of one of the members after the partition is joint and is liable to be partitioned has to prove his case. The submission that the properties of the other two villages had been left undivided is also rendered false by the mere perusal of the mutation, Exhibit P. 1. Although in the English version, copy of which is placed on the record, there is no mention about the property of village Ser having been partitioned but the original in Urdu would show that the parties had partitioned the properties both at Solan and Ser. Further this is strengthened by the mutation, Exhibit P. 3, which is a copy of the mutation in which under the column of ownership Sawan Mal is shown as the exclusive owner of the land in village Ser and by this mutation he has gifted this property in favour of Smt. Lila Wati wife of his nephew Duni Chand. This is no other property than the property in village Ser from which the only conclusion that can be deduced is that the property in village Ser had fallen to the share of Sawan Mal alone who later on gifted the same to Smt. Lila Wati on 12-2-1942. Further this fact stands fully established from the copy of jamabandi for the year 1959-60 (Exhibit P. 4) that not only the property comprised in Khasra Nos. 320 and 325, but also Khasra No. 326/1 which is alleged to have been acquired subsequently by Duni Chand under a purchase from one Kishori Mal is entered in the exclusive ownership and possession of Duni Chand and presumption of correctness under Section 45 of the Himachal Pradesh Land Revenue Act attaches to the entries of the jamabandi. Further it is evident from another copy of the jamabandi of the same year (Exhibit P. 5) that Bararu and Basheshar Nath, who are the defendants in the case and the sons of Paras Ram defendant No. 1 also have been shown in exclusive ownership and possession of the property comprised in khasra Nos. 466/3 and 463 and which khasra numbers, according to the mutation Exhibit P 1. stood allotted according to the family partition as stated therein to Paras Ram the father of defendants 2 and 3. Therefore, it is a complete partition and the learned Senior Sub Judge also has come to the same conclusion although he held it to have been effected with an ulterior motive. The parties have also led us through the entire oral as well as documentary evidence to prove their respective contentions, but from the documentary evidence, as adduced by the plaintiffs I am of the view that there was a family partition whereunder the suit property comprised in Khasra Nos. 320 and 325 fell to the share if Munshi Ram. The other khasra numbers mentioned in mutation. Exhibit P. 1, fell to the share of Paras Ram. It is also manifest from the other documentary evidence, Exhibit P. 2 that Paras Ram gifted land khasra Nos. 463 and 466/3 in favour of his sons Bararu Ram and Bashehar Nath on 6-6-1937 and in this it is stated by Paras Ram that the property which had fallen to his share is gifted by him to his sons Bararu Ram and Basheshar Nath Exhibit PW 8/A shows that khasra No. 236 was allocated to the share of Sawan Mal. Exhibit PW 8/B evidences the fact that Munshi Ram gifted away khasra Nos. 320 and 325 in favour of his son, Duni Chand, on the same day i. e. 6-6-1937.
11. Further this partition stand established from Ex. PW 4/A which is sale deed in respect of Kh. Nos. 466/3 and 463 which were sold by defendants 1 and 2 to Madan Lal (PW4) for a sum of Rs 7,000/-; along with the sale deed the defendants 2 and 3 had also filed a copy of the jamabandi for the year 1959-60 to evidence their title. Therefore, they have not only treated the property as their own but actually acted upon the partition.
12. It is also manifest from the registered document Exhibit PW 5/A that khasra No. 326/1 situate in Solan Bazar adjacent to khasra Nos. 320 and 325 was sold by Kishori Lal to Duni Chard after obtaining sanction from the then erstwhile princely State of Baghat for a sum of Rs. 900/-. Now the question is whether this property 326/1 was purchased with the joint family funds, but to that effect there is no evidence worth the name on the record to establish that this property was purchased by the joint family consisting of Sawan Mal, Manshi Ram and Paras Ram or their sons with the income of the joint family property. Kishori Lal (PW5), however, has not said anything in that behalf but since the property was purchased by Duni Chand after partition the presumption is that he purchased the same with his own income.
13. The defendants have t.ied to show from their evidence that the property was constructed from the nucleus of the joint property and have examined on Munsha Singh (DW2) who is alleged to have been employed as a mason in the construction of the building. He was examined on 23-8-1967. According to him, some 13 or 14 years back he had put the cemented roof or lintel on the house-cum-shop in dispute. His son, Niranjan Singh, also worked with him. They ware paid Rs 4/- per day at that time. The defendants also tried to introduce documentary evidence in the form of Bahis to show that there was an entry with regard to the payment of wages to the witness and his son and which purported to bear the signatures of the witness. The plaintiffs had objected to this on the ground that the documents and the entries had not been relied upon and were being produced on the date of the examination of the witness. It was sought to be explained by the learned counsel for the defendants that when they filed their written statement and the list of reliance this Bahi was misplaced. However, this Bahi was exhibited as 'X' subject to the objections of the plaintiffs. I have seen the Bahi which is in Tankri script and its transliteration is Exhibit D. 28. There is no date given thereon in order to show when this entry was made. This evidence, in my opinion, was rightly objected to because this was one of the pieces of evidence on the basis of which the defendants wanted to establish that this property was constructed with the joint funds of the family. The only explanation was that these Bahis at the time of the institution of the suit were not traceable which explanation does not appear to be correct. These Bahis as has rightly been pointed out by the learned counsel for the plaintiffs were produced after, the close of the evidence of the plaintiffs. Further these Bahis do not mention as to which is that particular shop which was constructed with the joint nucleus, no doubt DW-2 has come forward to connect the property by saying that he put the lintel on the property in dispute and got the wages. There are three Bahis and it is not understood from where these 13 sheets which are sought to be produced in the Court are procured nor it is evident from these Bahis as to which is the firm to which these accounts pertain. There is no name of the owner scribed on these Bahis. It is also not established as to in whose hands the entries which are sought to be proved were made None except DW-2 has come forward to prove the entries. He only identifies his signatures in token of receipt of wages. Paras Ram defendant has also admitted that none of the entries in these Bahis are in his hand. Therefore, in - the absence of any evidence to that effect, these Bahi entries are not of any evidentiary value. Under Section 34 of the Indian Evidence Act all entries in books of account, regularly kept in the course of business, are relevant and, therefore, admissible whenever they refer to a matter into which the Court has to inquire. So, before this document could be pressed into service it was incumbent upon the defendants to prove that the account books were regularly kept in the course of business but to. that effect there is no evidence worth the name on the file. Moreover, these entries in the books of account could be admissible when they were against the interest of the party producing it, but this is an entry in favour of the party itself. Therefore, without any proof with regard to their being kept in the regular course of business these entries which have been produced at the fag end of the case and were not relied upon by the defendants cannot be used in their favour. Furthermore, the defendants had to establish that these entries were made by such and such person, especially when they are not admitted by the plaintiffs who say that these 13 pages of the Bahi entries are quite spurious and it would be quite evident from Bahadur Singh v. Padam Chand Asa Ram, (AIR 1933 Lah 384) that it is not sufficient merely to prove that the books are correct and have been regularly kept in the course of business, but the entries must also be proved unless the necessity for such proof is removed by the admission of the opposite party. In the absence of any proof with regard to these entries they are inadmissible. There is also nothing on the record to establish that these books of account out of which these 13 pages are sought to be used as evidence related to the joint family nor is there any proof that the property was purchased in the name of the joint family, rather it is fully established that the property was purchased in the name of Duni Chand alone.
14. The defendants urged that these Bahi entries were relevant and admissible because the only objection of the defendants at the time of the production of the Bahi entries was that they were in Tankri and were not produced at the earliest stage. That may be correct, but. it is for the Court to see that no irrelevant and inadmissible evidence goes on the record even if the party takes no objection. Since the party had objected and the evidence was permitted subject to objection therefore, the Court can at this juncture also decide about the admissibility and after having taken all the pros and cons of the matter into consideration, I am of the view that these 13 pages the translated copy of which has been exhibited as DA 28 are inadmissible and, therefore cannot be pressed into service.
15. The next submission is that these Bahis were not intended tu charge any person with liability within the meaning of Section 34 of the Indian Evidence Act and were produced particularly as proof of the construction of the suit property by the joint Hindu family and to indicate custody and reliance is placed on Sarangdhar v. Parvati, (1953) ILR 32 Pat 983). But this submission of his does not appear to be correct nor this authority is in any way applicable.
16. Exhibit D. 28 which Is a copy of the roznamcha would show that these Bahis have been started since 13th September 1958 and this copy of the roznamcha also does not indicate the name of the firm and the business to which it relates. However, one fact is clear that the Bahis which are sought to be relied upon by the defendants relate to 1958, whereas the constructibn, even according to the defendants, had started during the Hindu Muslim riots, i. e. in the year 1947 or thereabout.
17. Exhibit D. 27, the sale deed, also does not indicate if the parties were joint or separate. Even if they had purchased the property at Yamunanagar and the defendant had set apart a share in the land for Lalit Kumar, that does not mean that they constituted a joint Hindu family. Once partition is proved subsequent joint residence or acting jointly for business would not give them the status of coparceners under the Mitakshara law as is held in Bhagwati Prasad Sah v. Dulhin Rameshwari Kuer, (AIR 1952 SC 72). After the partition if the members of the separated family owned any property jointly they hold the same as tenants-in-common and not as members of the joint family or as coparceners. Hence this document also does not advance the case of the defendants. Exhibit D. 26 which is a mortgage deed, dated 4-8-1934 contains a receipt at the back for payment of the mortgage money but the same remains unproved. No effort has been made to show who actually made the payment of the mortgage money.
18. Exhibits D. 2 to 15 are receipts in respect of payment of the taxes, etc. and no effort has been made to connect these receipts of payment of taxes with the property in suit. Hence they are also not of any relevance to the matter in issue. On the contrary these receipts only show that they have been issued in favour of firm Lala Sawan Ram Munshi Ram and which was not the ancestral firm.
19. The other documents. Exhibits D. 18, D. 19 and D. 20 are notices issued by the Municipal Committee to M/s. Munshi Ram Paras Ram. These notices also do not connect the property in question. Then there are a large number of letters, Exhibits D. 1 D-A, D. 2 D. 3, D. 4, D. 5, D. 6, D 7, DA-6, D. 9' D. 10-A/8, D. 11. D/12 A-10 D/13 D 14, D. 15, D. 16/A-13, D 17/A-14 D-18/A-15, D.19/A-16, D. 20/A-17, D 21/A-18, D. 22/A-19, D.23/A-20, D.24/A-21 and D. 25/A-22 which purport to have been written either by Lalit Kumar or by Duni Chand to Baba Ji and it is not indicated as to who that Baba Ji is. However, there are some of the letters of Lalit Kumar or Duni Chand, who lived at Simla aftei 1948 as an employee of the Himachal Fradesh Government on his transfer and formation of Himachal Pradesh from Solan to Simla and through these letters certain articles have been requisitioned from Baba Ji or other persons at Solan. These letters had been relied upon by the defendants to prove that they had been getting goods from the joint family shop free of charge, but these letters indicate on the contrary that the plaintiff or his predecessor-in-interest had been making payments for all the goods which they got from Solan. Therefore, these letters are also not of any assistance. In Exhibit D. 12 which is a letter written by Lalit Kumar to Baba Ji there is a specific mention made of the following words. 'At our instance you must have constructed the wall towards the shop of Anand Potato Park side. We are very much worried about it.'' This is a clear indication to the fact that they were not the members of the joint family and they had requested Baba Ji only to get the wall constructed and it was at their instance. This is sufficient to hold that they were not members of the joint family. The family had disrupted and it was only on that account that he could ask Baba Ji to construct the wall at his instance.
20. Reference may be made to Exhibit D. X, the objections fileri by the defendants in the small Cause Court at Meerut in a suit filed by Khatoo Mall in the year 1963 against the firm Bhuja Mall. In that suit the defendants had denied that they were members of the firm sued against and that they pleaded that they had no concern with the firm. This is so admitted by Paras Ram in his statement. He admits his signatures on the endorsement Exhibit PW 7/B, in which there is an evasive denial. He has further stated that he did not file any written statement in that suit and further that an Advocate was engaged by Lalit Kumar. These documents, Exhibits PW7/B&C; stand proved by the testimony of PW7, who had gone to effect service of the notice on Paras Ram and his sons. Anyway he had also gone to Meerut along with his sons, defendants 2 and 3, who had filed a written statement denying their liability or their concern with the firm of Sawan Mal Munshi Ram. In para 2 of this document Exhibit D/J it has been specifically mentioned that the suit had been wrongly instituted by the plaintiff, i. e. Khatoo Mal, impleading the said defendants as partners. In para 3 it had also been mentioned that Paras Ram defendant never joined the above mentioned firm nor he had any liability or responsibility for the said firm. Therefore, what follows is that it was a new firm under the name and style Bhuja Mal Sawan Mal or Sawan Ram Munshi Ram which had been formed after the disruption of the joint family and the defendants were not the members of that firm, which means that they had definitely separated.
21. I need not refer to the judgments and notice which have been filed by the plaintiffs on the record to establish that they had constructed a staircase on a street which caused obstruction and that the Municipality had issued notices to Duni Chand for the removal of the same and which subsequently led to litigation of which the judgments have been produced. These notices and judgments are not, in my opinion, material for the decision of the case.
22. From Exhibit DA which is proved by Bhajan Lal (PW1) it is proved that this suit property was leased out on 16-8-1948 by Duni Chand to M/s. Ram Saran Nand Gopal at a rental of Rs. 470/-per annum and this also establishes that this was the property which was treated by Duni Chand as his own. This witness, however, stated in cross-examination that the repairs used to be carried out by Sawan Ram, Munshi Ram and Paras Ram. However, he could not say as to who spent the money. Therefore, this evidence on the point of separation is not very material. But, what is proved from his statement is that he had taken a portion of the property from Munshi Ram in 1948. He also proved the receipts issued by Munshi Ram or Duni Chand in respect of the realisation of the rent vide Exhibits PW1/A to H and J and K and he had denied having paid any rent to Paras Ram. These receipts would also show that it was Munshi Ram who wad dealing with the property as his own. The statements of other witnesses, in my opinion, are not very material.
23. Lalit Kumar has gone in the witness-box. He has testified to the fact that separation had been effected. It has been contended by the learned counsel for the defendants-respondents that the mother of Lalit Kumar did not appear in the witness-box because it was the who had a personal knowledge about the partition, whereas Lalit Kumar was born only in the year 1941, i.e. 4/5 years after the partition. That is true that Smt. Lila Wati, the mother of Lalit Kumar did not appear and Lalit Kumar could not have any personal knowledge, but fiom the documentary evidence there can be no escape from the conclusion that this was a property which had actually been allotted to the share of Munshi Ram who had gifted the same to Duni Chand on the same date. Similarly the defendant Paras Ram was also allotted the land Khasra Nos. 466/3 and 463 as per his statement in Exhibit P. 1 and thereafter he also gifted the same in favour of his sons, i. e. defendants 2 and 3 to save the property from the creditors of the firm. Hem Chand (DW1) also makes it clear that round about 1940-42 Paras Ram started a retail shop and at that time he was living behind the shop in dispute. He has further stated that that very shop in which he had started the business is now in the ownership of Moti Shah and Sons who are no other persons than those to whom this shop was sold for Rs. 7000/-by defendants 2 and 3. Therefore, from this what follows is that due to financial unsoundness of the defendants they sold the property and as stated by tha plaintiff they started living in the premises in dispute with the permission of his grand-father. In these circumstances even the subsequent joint residence or acting jointly for business does not in any way establish that there was no severance of the status of the joint family as has been held by the Supreme Court in the case supra. In so far as the statement of Paras Ram defendant is concerned the same is full of contradictions and lies He has himself admitted that the house in dispute was constructed during the period of Hindu Muslim riots, i.e. 1947, but he tried to rely on the Bahis or roznamchas which pertain to the year 1958 and afterwards and this statement, therefore, is not in accord with the documentary evidence relied upon by him. Further his statement is that they were joint and were running their business uncter the name and style Bhuja Mal Sawan Mal. His attention was drawn to the documentary evidence relating to the suit Khatoo Mal v. Bhuja Mal Sawan Ram in which he denied that he was a partner or had any concern with the same and to that he had no explanation. He had also stated that the firm was never run under the name of Munshi Ram Sawan Ram although letters used to be received by the firm on this address. This also is quite contradictory. In so far as the statement as contained in document Exhibit P, 2 is concerned whereby he gifted the property to his son, he does not deny the fact but only says that he does not remember to have made' such a statement He also admits the fact that his son executed a registered deed in favour of Mota Shah and also admitted the signatures of his son as vendors on the sale deed. Therefore, his statement is totally incredible. It is also manifest from, his statement that in addition to this disputed property which he claims to be joint they had one more shop in which they had started business of Atta and Dal in the year 1942-43 and that Munshi Ram too used to work in that shop and that shop was later on sold to Mota Shah Madan Lal and out of the consUeration of this sale they had purchased a plot at Yamunangar. Therefore, from this what would follow is that they had separated before 1942-43 and that is why they had been just working in separate shop and which was later on sold to Mota Shah by the sons of Paras Ram. It is totally wrong to say the Munshi Ram was working with him in that shop. He had stated that the property in the name of Duni Chand was purchased with the joint funds but this also does not appear to be correct. His is the statement of a party which cannot be accepted as correct unless it is corroborated. In cross-examination he tried to give evasive replies which means that he is not a truthful and a straightforward man
24. It may also be stated that the learned counsel for the defendants-respondents has argued that this property which is a huge structure could not have been built by Duni Chand because he was merely a clerk and could not be expected to have so much money as to raise such a massive structure. Any way this is not a material point. The value of the property at the time of the institution of the suit was only six to seven thousand rupees and this amount cannot be said to be so huge as could not be spent by Duni Chand about whose means there is no evidence Moreover the means of a person are quite immaterial. He may have borrowed the money and merely because he was a clerk it cannot, be inferred that he did not or could not acquire the property.
25. It has further been contended that the case of the plaintiffs was that the defendants were trespassers and in the evidence it has been sought to establish that when the defendants became financially weak the grand-father of Lalit Kumar out of compassion permitted the defendants to live in the disputed premises and in these circumstances according to the defendants the plaintiffs were not entitled to get possession. But, the objection appears to have been raised simply to be rejected on the ground that the plaintiffs had served a notice on the defendants on 21-9-1964 to vacate the premises and when they failed to do so they became trespassers. Therefore, there is nothing wrong if they had pleaded that they were trespassers and their cause of action for bringing a suit for possession accrued only from the time they denied to vacate the premises which they held as licencees.
26. The long and short of the entire discussion, therefore, is that the property in suit has been fully proved to have been partitioned and which was also the finding arrived at by the learned Senior Sub Judge. However, the further finding on which the plaintiffs were nonsuited was that the partition was fictitious, brought about with an ulterior motive to save the property from the creditors, but, as already stated, the partition when genuine is binding on the members to the partition when the object of the partition is to defeat the claims of the creditors. The partition with whatever ulterior motive it may have been effected is genuine. It has been acted upon by treating the property falling to the share of each party as their own by their subsequent conduct and dealings. In these circumstances the judgment and decree dismissing the suit is hereby reversed and the suit of the plaintiffs is decreed for possession with costs as also decreed for mesne profits, as prayed for.
D.B. Lal, J.
27. I agree.