Mahindra Ojha vs Sitaram Ojha

Mohammad Noor, J.—The suit out of which this second appeal arises wag instituted by the plaintiff-respondent for a declaration that a deed of gift said to have been executed by his uncle Radha Prasad Ojha in favour of the defendant is not genuine and is null and void. It was alleged by the plaintiff that ho and his deceased uncle Radha Prasad Ojha were members of a joint Hindu family and therefore even if the deed in question was genuine, the donor was not competent to make a gift of his undivided share in favour of the defendant. The defence was that the deed was genuine and that the uncle and the nephew had separated in Kartik 1334 (corresponding to 1926). In support of separation the defendant produced a certain document which has been marked as Ex. G in the suit. The trial Court at first refused to take this document into evidence, and on other evidence adduced before it decreed the suit. The defendant appealed, and the learned Subordinate Judge remanded the case with an order that the document in question be taken into evidence for the limited purpose of proving partition, but not for the purpose of proving what particular properties were allotted to each cosharer. This was done and as I have said the document was marked as Ex. G in the case; but the learned Munsif again decreed the suit holding that the deed of gift was suspicious and that it was not properly attested as the witnesses to the deed did not speak of its having been executed in their presence. He further held that there was no partition between the plaintiff and his uncle and that Ex. G was not genuine.

There was again an appeal by the defendant. It was argued mainly on the basis whether or not there was a partition between the plaintiff and his uncle. The learned Subordinate Judge held that they were joint and that Ex, G, which purports to be evidence of partition, was not genuine. He therefore dismissed the appeal. The defendant has preferred this second appeal. Two points have been raised before us. One is that the learned Subordinate Judge having found that the signature of the plaintiff on Ex. G was genuine was not justified in holding that the deed itself was not genuine. I do not find any such finding in the judgment of the learned Subordinate Judge. What happened was this. The learned Munsif gave as one of the reasons for holding Ex. G to be not genuine that it was signed in Kaithi characters while the plaintiff used to sign his name in Devanagari. The learned Subordinate Judge, while he gave some reasons against the genuineness of Ex. G, found that the plaintiff used to sign both in Devanagari and Kaithi Hindi and said that though he did not agree with the reasons given by the learned Munsif he nevertheless held the document to be not genuine. This is a finding of fact and is conclusive in second appeal. As this was the only point argued before the learned Subordinate Judge, the appeal is fit to be dismissed on the ground that it is concluded by the finding of fact.

Mr. Varma has however urged a point which does not seem to have been raised either before the trial Court or before the learned Subordinate Judge. He contends that assuming that there was no partition, as alleged, in Kartik 1334, which was sought to be proved by Ex. G, nevertheless as the uncle of the plaintiff in the deed of gift specified his share in the joint family property as half and stated that he was separate from his nephew, this statement itself constitutes separation and therefore the deed is valid. He has drawn our attention to the fact that the question of attestation mentioned by the trial Court does not arise now since the definition of attestation in the Transfer of Property Act has been amended and the amendment has a retrospective effect. If we could accept this contention of the learned Advocate it would have been necessary to remand this case, because there is no finding of fact by the learned Subordinate Judge about the genuineness of the deed of gift. The learned Munsif, as I have said, has only said that the deed was suspicious. A clear finding of fact about its genuineness would have been necessary. It is not however necessary to adopt this course. In my opinion, the point of law which is urged by Mr. Varma has no foundation. He has relied upon a decision of the Lahore High Court in Jumma Ram v. Munsab Rai, 1922 Lah 473 = 67 I C 812. There the question was whether a certain bequest in a will was valid. The question depended upon the fact whether the testator was joint with his nephews or separate from them. The District Judge relied upon a document showing that the parties had separated. The High Court pointed out that the deed relied upon by the District Judge was subsequent to the will, but their Lordships said:

Nevertheless, there is the fact that the shares are specified also in the will the testator''s share being mentioned therein as one-third, and we think that this would suffice to constitute a separation in law, an unequivocal declaration by a member of the co-parcenary body of his intention to be divided in status being sufficient to effect a severance without an agreement by all the co-parceners being required.

The terms of the will are not given in the report. If their Lordships intended to lay down that if an undivided member of a family transfers his share by will or inter vivos, the transfer is valid simply because he specifies the share, then with all respect I cannot agree. This will practically be nullifying a series of decisions, which have held that an undivided member of a joint Mitakshara family cannot make a transfer of his share. We can however conceive of cases in which from statements of separation in the deed of transfer itself an inference of fact may be drawn that there was a partition, but simply a statement in the deed that the transferor has a specific share will not constitute separation as a matter of law. In Amar Dayal Singh v. Har Pershad Sahu, 1920 Pat 433 = 58 I C 72 = 5 Pat L J 605 it was held that an intention to separate from the rest of the joint family cannot be inferred from the fact that the member of the family executing a mortgage purported to hypothecate only his own share out of the whole property. In Balgobind Das v. Narain Lal, (1893) 15 All 339 = 20 I A 116 = 6 Sar 313 (P C) it was held that it is the settled law of the Mitakshara, as administered in Bengal and the North-West Provinces, that a Hindu cannot, without the consent of his coparceners, sell or mortgage his undivided share in the ancestral estate for his own benefit. In that case there was a conflict between a mortgage of half share executed by the son and a sale of a portion of that share in execution of a decree against him. It was held that the son''s co-parcenary interest passed to the purchaser at the auction and that the only remedy of the mortgagee was to attach and sell any unsold portion of the mortgaged property in execution of a money decree against the mortgagor. It will be seen in this case that the Court sale was held to be valid but not the private mortgage executed by the son. The law is exactly the same in the case of a gift or will. I see no merit in this appeal and I would dismiss it with costs.

Varma, J.

I agree.