Baksiram Mulchand and Another vs Dwarka Prasad and Others

Kulwant Sahay, J.—One Lochan Lal of Colgong died in the year 1903 leaving four sons, Fakirchand Lal, Durga Prasad, Raghunath Lal and Bhagwan Prasad. Fakirchand Lal was a contractor and dealer in grain and generally lived at Colgong; he died in 1917 leaving five sons, Dwarka Prasad, Ram Prasad, Sham Prasad, Kishun Prasad and Sital Prasad. Durga Prasad, the second son of the Lochan Lal, was a supervisor in the District Board at Bhagalpur and he lived at Bhagalpur; he died in 1916 leaving three sons, Baldeo Prasad, Snati Prasad and Jogendra Prasad. Raghunath Lal, the third son of Lochan Lal, was a colliery inspector and generally lived at Giridih; he died without any issue in the year 1915, Bhagwan Prasad, the fourth son of Lochan Lal, lived at home; he died in 1916 leaving a minor son Nand Gopal Lal. The three sons of Durga Prasad have been adjudged insolvents, and a Receiver has been appointed by the District Judge. This Receiver wanted to sell certain properties as the properties belonging to the insolvents. The properties consisted of 140 acres of lakhiraj land in Colgong with houses thereon (2); land in Bhagalpur with a house and trees, being holding No. 11, ward 1, circle 2, Wace Road, in Admapur, Mosakchak in the town of Bhagalpur, and (3) two and a half bighas of basobari land in Bishunpura, sub-division Giridih, in the District of Hazaribagh. These properties were advertised for sale and the 15th January, 1925, was the date fixed for the sale. The sons of Fakirchand Lal and the minor son of Bhagwan Prasad filed a petition before the District Judge objecting to the sale of the three properties on the ground that they formed joint family properties of themselves and of the insolvents and, that, in any event, their interest could not be sold, and all that could be sold was the proportionate share of the insolvents in the said properties. The creditors opposed this application. The District learned Judge has held that the claimants, namely, the cousins of the insolvents have established their right to the share of the properties as claimed by them, and that only the interest of the insolvents, is liable to sale. The creditors have come up in appeal to this Court. The first point taken on behalf of the appellants is that with the exception of one witness who was examined in Court all the other witnesses were examined by the Receiver, and that this procedure was illegal. The learned District Judge has observed in his judgment that the evidence has been taken partly by the Receiver and partly by himself for reasons which appear in the order-sheet. On reference to the order-sheet one does not find any reasons given why the witnesses were not examined in Court but were examined by the Receiver.

Section 4, Provincial Insolvency Act, gives power to the Court to decide all questions of title or priority or of any nature whatsoever which may arise in any case of insolvency coming within the cognizance of the Court or which the Court may deem it expedient or necessary to decide for the purpose of doing complete justice or making a complete distribution of property in any such case. The inquiry as to whether the properties in dispute were the exclusive properties in which the claimants had also an interest was a question which the Court had jurisdiction to decide under this section. Section 5 of the Act prescribes that, subject to the provisions of the Insolvency Act, the Court in regard to proceedings under the Act shall have the same powers and shall follow the same procedure as it has and follows in the exercise of original civil jurisdiction. The procedure as regards the recording of evidence in civil cases is contained in Order XVIII, Civil Procedure Code. Under Rule 4, witnesses have to be examined in open Court and under Rule 5 in cases in which an appeal is allowed the evidence of each witness is to be taken down in writing, in the language of the Court, by or in the presence and under the personal direction and superintendence of the Judge. Rule 8 provides that where the evidence is not taken down by the Judge he shall be bound as the examination of each witness proceeds to make a memorandum of the substance of what each witness deposes, and such memorandum shall be written and signed by the Judge and shall form part of the record. Rule 14 provides that where the Judge is unable to make a memorandum as required by this order, he shall cause the reasons of such inability to be recorded, and shall cause the memorandum to be made in writing from his dictation in open Court. It will thus appear that in civil cases the recording of evidence is an act which is required to be done by the Judge himself. He can, no doubt, in appropriate cases provided for in Order XXVI issue commissions for the examination of witnesses, but the circumstances under which the deposition of a witness is to be recorded on commission are laid down in the Code.

In the present case there does not appear to be any reason why the witnesses were not examined in open Court by the Judge himself. The question is, whether this procedure vitiates the decision of the learned Judge. Although it is extremely undesirable that witnesses should not be examined by the Judge himself and the procedure adopted by the learned Judge is open to grave objection, yet having regard to the provisions of Section 99, Civil Procedure Code, I am not prepared to set aside the decision of the Judge simply on this ground. The procedure only amounts to an error, defect or irregularity in the proceedings, and it does not affect the merits of the case or the jurisdiction of the Court and is no ground for reversing the decision of the learned Judge. No objection appears to have been taken by any of the parties to the examination of the witnesses by the Receiver, and it may be presumed that all parties consented to the witnesses being examined by the Receiver. Although, therefore, the procedure adopted by the learned Judge was not the correct procedure, his decision cannot be set aside on that account.

The next point relates to the merits of the case. As has been stated above, three properties form the subject matter of the claim. The learned Advocate for the appellant does not in this Court raise any objection as regards the lakhiraj land in Colgong and the basobari land in Bishunpura, properties Nos. 1 and 3, and in respect of these two properties the decision of the learned Judge will stand. The learned Advocate, however, seriously objects to the finding of the learned Judge in respect of the second property, namely, the land with the house in the town of Bhagalpur, and he contends that this property is the exclusive property of the insolvent in which the claimants have no interest whatsoever.

The learned District Judge has discussed the entire evidence in the case and has come to the finding that all the four sons of Lochan Lal and their sons formed members of a joint Mitakshara family, and that there has been no separation amongst them, and that the properties acquired by any one of the members of the family was the property of the joint family. Upon the evidence on the record 1 am prepared to admit that it has not been shown that there has been any disruption of the joint family and that the claimants and the insolvents are members of a joint Hindu family. The question, however, as regards the family being a joint Hindu family is only incidentally raised in the present proceeding. The real question for decision is whether the house on Bhagalpur, which is the principal property claimed by the claimants, is exclusive property of the insolvents, or a joint family property.

The house in dispute was purchased by Durga Prasad, the father of the insolvents under a deed of sale, dated 27th October, 1913, for a consideration of Rs. 2,500. Durga Prasad was a supervisor in the District Board at Bhagalpur and lived there. It appears from the evidence that he had a considerable income. His sons, namely, the insolvents, were carrying on a separate gola business of their own, and the very fact that the insolvents have contracted debts, which are their exclusive debts and not debts of the joint family, for which they have been adjudicated insolvents, goes to show that the members of the family had separate dealings and acquired properties separately. Dwarka Prasad, the eldest son of Fakirchand who is one of the claimants in the present case was also adjudged an insolvent in the year 1902, which goes to show that he had also separate dealings of his own. The evidence on the record leaves no room for doubt that Durga Prasad and his sons were carrying on business with which the other members of the family had no concern, and it is very likely that Durga Prasad acquired a house in the town of Bhagalpur for his own residence and for the residence of his sons and other members of his own family. No doubt the evidence goes to show that the sons of Fakirchand and Bhagwan, when they went to Bhagalpur, lived in that house. That by itself is not conclusive of the fact that the house was a joint family property. An attempt has been made to prove that out of the consideration of Rs. 2,500 a portion, viz., Rs. 1,100 wag paid by Fakirchand, who brought this money from Colgong, and that Durga Prasad paid Rs. 1,400 at Bhagalpur from his own funds.

This evidence is not satisfactory, and the witnesses who speak to such payment by Fakirchand are not men upon whom reliance can be placed. The first witness who speaks about this payment by Fakirchand is Saukhi Lal, a resident of Colgong and a relation of the family of the insolvents. He says that he was brought by Fakirchand Lal and Bhagwan Lal to Bhagalpur for writing the kobala in respect of the Bhagalpur house, and that, out of the consideration money, Rs. 1,100 was paid by Fakirchand, Raghunath Lal and Bhagwan Prasad and Rs. 1,400 by Durga Babu. He says that he asked them whether the kobala was to be written in the name of all the brothers upon which Fakirchand, Raghunath and Bhagwan said that it should be in the name of Durga Babu as other properties were all in his name This does not appear to be a correct explanation because all the properties did not stand in the name of Durga Babu. The kobala Ex. 4 was executed in the name of Lochan Lal, The khatian of the land in Colgong stood in the name of all the four brothers. There does not appear to be a joint fund of the family as Peyarai Lal Chaudhry, another resident of Colgong who is an Honorary Magistrate and a Municipal Commissioner in the Colgong Municipality, says that to his knowledge there was no joint fund of the family.

The different members of the family were living at different places and each of them was an earning member and kept separate funds; and it is hard to believe that Durga Prasad contributed Rs. 1,400 and that the other three brothers contributed Rs. 1,100 towards the purchase of the house. The witnesses for the claimants admit that the house at Bhagalpur was in charge of Durga Babu and that he lived there with his family. The evidence on the whole leaves no doubt in my mind that the house was a separate property of Durga Prasad and on his death it became the separate property of the insolvents.

It is contended on behalf of the claimants that a property standing in the name of any one of the members of a joint family has to be presumed to be a property belonging to the joint family. Under ordinary circumstances such presumption does arise, but such presumption is capable of rebuttal by evidence, and the evidence in the present case to my mind establishes that the house in dispute was not a joint family property but belonged exclusively to the insolvents.

I would, therefore, set aside the decision of the learned District Judge in so far as property No. 2, viz., the house and land in Bhagalpur, is concerned. His decision as regards the other two properties will stand. The result is that the decision of the learned District Judge is modified and it is declared that the house in Bhagalpur is liable to sale by the Receiver for payment of the debts of the insolvents. There will be no order for costs.

Macpherson, J.

I agree.