Mt. Jasoda Kuer vs Punit Singh and Others

Kulwant Sahay, J.—This is an appeal under the Letters Patent against a decision of a single Judge of this Court who, agreeing with the Subordinate Judge, decreed the plaintiff''s suit for a declaration of his title to certain property. There were three brothers: Punit, Pryag and Behari. The property admittedly belonged to these three brothers who jointly inherited it on the death of their father. Punit is the plaintiff in this suit and his case is that his brothers Pryag and Behari died in a state of jointness and therefore he took the whole of the property by right of survivorship. Defendant 1 is the widow of Pryag and defendant 2 is his daughter. Defendant 3 is the widow of Behari.

It appears that the plaintiff Punit has executed some sort of deed devising all his property to his daughter''s son who is defendant 4 in the suit, and defendant 1 has made a gift to her daughter, defendant 2.

The defence of defendant 2, who was the contesting defendants in the suit, was that the brothers were separate and that on the death of Pryag and Behari their widows inherited their shares in the property. The trial Court found in favour of the defendants and dismissed the suit. On appeal the learned Subordinate Judge found that the brothers were joint and he gave a decree to the plaintiff. On second appeal to this Court the decision of the Subordinate Judge has been affirmed.

The question no doubt was whether the three brothers were joint or separate which would ordinarily be a question of fact, but the point of law raised is that certain documents relied upon by the defendants as evidence of partition were illegally excluded from evidence on the ground that they were not admissible. The first document is Ex. 1 which is said to be an award by certain arbitrators dividing the property between the three brothers. This document bears the signatures of the three brothers and the question was whether this document was to be treated as an award or as a deed of partition. The Courts below have treated it as a deed of partition on the ground that it bears the signature of the three brothers over and above the signatures of the persons who are said to have effected the partition and acted as punchas.

It has been contended by Mr. Abani Bhusan Mukharji on behalf of the defendant-appellant that because the document bears the signatures of the parties in addition to the signatures of the arbitrators the character of the document cannot thereby be altered and that it remains an award all the same. Reference is made to the decision in the case of Yemnava Shidramappa v. Revanshidappa Malappa AIR 1927 Bom 656 where a Division Bench of the Bombay High Court in dealing with a similar document which was signed by the parties as well as by the punchas decided that it should be treated as an award and it was held that it was therefore not inadmissible for want of registration.

The same view was taken by the Allahabad High Court in Mangali Pershad and Another Vs. Babu Ram and Others, . In that case the learned Judges referred to a decision of the Punjab Chief Court and observed that it was held in that case that a document signed by the arbitrators as their award does not cease to be an award merely because the settlement was arrived at by the parties and was also signed by them and as an award the document did not require registration. I am inclined to agree with the view taken in these cases and to hold that the document remained an award and its character was not altered because the parties put their signatures in token of the acceptance of the partition as made by the arbitrators. Treating it as an award it is clear that the document was admissible without registration.

The second document appears to be an ekrarnama executed by defendant 4 and defendant 2 through their respective guardians. It recites the fact of the partition through the arbitrators as evidenced by the document Ex. 1 and there is an agreement that each of the parties will remain in possession of his one-third share according to that partition. Defendant 4 appears to be a minor and this document was signed by his father as his guardian. Defendant 2 is evidently a pardanashin lady and the document was signed on her behalf by her husband. This document has been excluded on the ground that it contains the admission of third persons which cannot be used as evidence against the plaintiff.

It is clear that it cannot be used as an admission, but the document is certainly admissible in evidence as proof of the fact that there had been a partition if it could be shown that the two persons who purported to act as guardians or agents were acting on behalf of their respective wards or principals. The document was clearly admissible as evidence of the transaction if it could be shown that it was executed in due course of business to settle disputes between the parties. Having regard to these two documents which appear to have been wrongly excluded from evidence I am of opinion that there has not been a proper trial of the case by the Courts below on the merits. The result is that the decree of the Subordinate Judge must be set aside and the case remanded to him for rehearing after using these documents as evidence in the case. Costs will abide the result.

Courtney-Terrell, C.J.

I agree.