Mt. Ramjhari Kuer and Others vs Deyanand Singh and Others

Pande, J.—This in an appeal against the decree dated 3rd September 1943, of the Second Additional District Judge, Patna, which reversed the decree dated 4th February 1942 of the Subordinate Judge, Third Court, Patna. The suit relates to a dispute regarding certain properties of a Hindu family governed by the Mitakshara school of Hindu law. The pedigree given below-indicates the relations between the parties and other descendants of the common ancestor, Ujiar Mahton.

Ujiar Mahton ----------------------------|----------------------------- | | |

Lakpat Mahton Rampati Mahton Ganpat Mahton | | | ---------------------------------- Chanderdip Mahton Fouzdar Mahton | | Ramnarain Jagatnarain = Sunderbaso Kuer = Samunder Kuer Mahton Mahton | | | | ----------------------- | | Raja Prasad, deft. 5. | | | | Ragho Mahton Mithla Mahton | ---------------------------------------------------------------- | | | | | Misri Singh Subedar Singh, deft. 4. Kedarnath Singh | | | | Rameswar Singh ------------------------------------- | (minor) plff. 1. | | | Dayanand Singh, plff. 2. Sachidanand Singh, plff. 3. | ------------------------------------------------------------------------------| | | | Ramjhari Kuer, deft. 1. Sonjhari Kuer, deft. 2. Sonkali Kuer, deft. 3, 2. The plaintiffs in the suit are descendants of Lakpat Mahton, one of the three sons of Ujiar Mahton. The defendants are daughters of Fauzdar Mahton, grandson of Ujiar by his third son Ganpat Mahton. Fouzdar died in the year 1926 leaving behind him his widow Mt. Samundar Kuer and three daughters who are defendants in the suit. On the death of Fouzdar Mahton a dispute arose between the sons and grandsons of Lakpat Mahton on one side and Mt. Samunder Kuer, widow of E''ouzdar, on the other, in land registration proceedings for the mutation of names in place of the deceased proprietor Fouzdar Mahton in respect of certain revenue paying estates which were recorded in the names of Lakpat''s descendants and Fouzdar Mahton having certain separate shares. Mt. Samunder Kuer claimed to be mutated in the place of her husband on the ground of separation of her husband from the joint family. Lakpat''s sons and grandsons claimed mutation on the allegation that Fouzdar died in state of jointness with them and so his interest in those estates devolved upon them by survivorship. Mt. Samunder Kuer''s claim was allowed and her name was mutated in the place of her husband. Lakpat''s descendants then instituted a suit for a declaration that they were entitled to the estate of Fouzdar by right of survivorship and for confirmation of possession and in the alternative for recovery of possession of three zamindari properties in respect of which Mt. Samunder Kuer''s name had been mutated. This suit was instituted in the year 1927.

During the pendency of the suit Mt. Samunder Kuer died and in her place Fouzdar''s three daughters, defendants 1 to 3, were substituted. Ultimately the suit was compromised by which the plaintiffs in the suit recognised absolute right of the daughters to their father''s interest in the properties. Rameswar Singh, plaintiff 1, was minor at the time and in the suit he was represented by his grand-uncle Jagatnarain Mahto who, it appears, was the eldest member of the family consisting of Lakpat Mahton''s descendants who are admittedly joint. Jagatnarain signed the compromise petition for himself as well as for Rameswar Singh, minor as his guardian. Kedarnath Singh, another plaintiff in the suit, did not sign the petition by his own pen and his signature was made per pen of Misri Singh. Plaintiffs 2 and 3, sons of Kedar were born after the said compromise. In the year 1938 Rameswar Singh and Kedar''s two sons, plaintiffs 1 to 3, instituted a suit for setting aside the compromise mainly on the ground that the provisions of Rule 7 of Order 82, Civil P.C., had not been complied with. Kedarnath Singh''s son also alleged that their father was not a party to the compromise. The principal defendants in the suit were daughters of Fouzdar Mahton and the adult members of the family in Lakpat''s branch who had entered into the compromise were impleaded as defendants second party. It may be mentioned here that Kedarnath Singh died sometime between the compromise of the suit and the institution of the suit of 1938. In that suit defendants second party did not enter appearance and the contest was between plaintiffs 1 to 3 on one side and defendants 1 to 3 on the other. The suit was decreed.

Thereafter on an application by the decree-holders in that suit the original suit which had been instituted in the year 1927 by the descendants of Lakh pat Mahton against Mt. Samunder Kuer was re-opened for hearing between the parties. The main issues in the suit framed by the trial Court were: (2) Was Fouzdar separate from the plaintiffs as alleged in the written statement? (3) Have the plaintiffs their alleged title to the properties in suit?

Both parties produced a large number of documents and examined witnesses in proof of their respective case of jointness or separation. The learned Subordinate Judge on a careful review of documentary and oral evidence came to the conclusion that Foujdar was separate from the plaintiffs. On this finding the trial Court dismissed the suit. An appeal against the said decree was heard by the Second Additional District Judge. This officer came to a different conclusion and reversed the decree passed by the trial Court, hence this second appeal. Before proceeding to consider the appeal on its merits, it seems necessary to consider in the first instance the contention raised by Mr. Sarju Prasad for the respondents that the question whether a Hindu family is joint or separate is generally a question of fact and the finding of the appellate Court below on the point is not open to re-consideration by the High Court in second appeal.

After hearing the arguments of the learned advocates of both sides and on examining the evidence which was referred to in the course of argument we have come to the conclusion that the learned Additional District Judge fell into an error in the proper appreciation of some of the material documentary evidence in the case as well as in regard to the legal effect of certain important pieces of evidence and proved facts. These are mixed questions of fact and law which are certainly open to reconsideration by the High Court in second appeal.

The main question for determination that arises in this appeal is whether Foujdar Mahton was separate from the family. It is not a case of partition by metes and bounds, nor there is any written instrument in proof of the alleged separation of Foujdar. In fact the evidence clearly shows that some of the properties are still held jointly. It is really a case of separation by cessation of joint interest indicating intention of the parties to separate. Such intention is to be inferred by acts and conduct of the parties. It is an undisputed fact in the case that Foujdar had a separate residential house and he was separate in mess from the members of Lakpat branch. Cessor of commensality is not a conclusive proof of partition, for a member may become separate in food and residence merely for his convenience. But it is an element which may well be considered along with other acts and transactions of the party concerned. It is also an undisputed fact in the case that in respect of revenue paying estate held by the descendants of Ujiar Mahton, Foujdar''s share in respect of each of them, or most of them, had been separately defined in the collectorate land registration records. It is also an admitted fact that in the survey record of rights, khewats and khatians, Foujdar''s share in the joint family properties has been separately specified. This by itself is not conclusive proof of separation but it is a relevant evidence which enters into consideration on the question at issue. The inference from such records may be weak or strong according to circumstances. In Nageshwar v. Ganesha AIR 1920 P.C. 46 Lord Shaw who delivered the judgment of the Board observed:

Records of that character take their place as part of the evidence in the case. They do no more. Their importance may vary with circumstances, and it is not any part of the law of India that they are by themselves conclusive evidence of the facts which they purport to record. It may turn out that they are in accord with the general bulk of the evidence in the case; they may supply gaps in it; and they may, in short, form a not unimportant part of the testimony as to fact which is available. But to give them any higher weight than that might open the way for much injustice, and afford temptation to the manipulation of records, or even of the materials for the first entry.

His Lordship also accorded approval of the Board to the pronouncement of Sir John Edge in Gajendar Singh v. Sardar Singh (96) 18 All. 176:

A definition of shares in revenue and village papers affords by itself but a very slight indication of an actual separation in a Hindu family.

If the evidence consisted merely of cessor of commensality in residence and food and definition of shares in revenue papers and record of rights in the case, I should have little hesitation in accepting the conclusion of the learned Additional District Judge, for the evidentiary value of such entries is very slight to establish separation. But it appears that the extent of Foujdar''s interest in the lands is not merely specified but in a number of record of rights he is recorded to be in separate possession over certain plots, while members of other branches are recorded to be in the possession of other plots in the holding. Description of boundaries also indicates separate possession over certain plots of members of different branches of the family. There are several such instances. The learned Subordinate Judge has referred to this class of evidence in his judgment in detail. I do not consider it necessary to refer to all such instances. It will be sufficient to refer to some of the instances which definitely indicate separate possession of Foujdar Mahto as also of the members of Lakpat''s branch. In Ex. B (18) which is a survey khatian of khata No. 123 the holding is recorded in the name of Lakpat Mahto, Lakpat''s father Ujiar Mahto and Foujdar Mahto, but the trees standing on this holding are all entered in the possession of Lakpat Mahto. This entry is wholly inconsistent with the theory of jointness of Poujdar with Lakpat Mahto and his descendants. Exhibit B (3) which relates to bakasht land bearing khata No. 893, possession of members of each of the three branches is recorded over different plots comprised within the holding. The plots in the holding bearing khata No. 920 are entered in the possession of Chanderdip''s two sons Ragho and Mithila and three other plots are entered in the possession of Foujdar Mahto and one in the possession of Lakpat Mahto. Exhibit B (5) shows that out of the bakasht bearing khata No. 241 two plots are entered in separate possession of Ragho and Mithila, four other plots in the possession of Foujdar Mahto, three other plots in the possession of Ramnarain Mahto, Lakpat''s son, and the remaining other plots are entered in the joint possession of all the descendants of Ujiar Mahto. There are several such entries and it seems unnecessary to multiply such instances. The learned Subordinate Judge has further shown that in the boundaries of certain plots in possession of Lakpat''s branch Foujdar''s name appears while in the boundaries of other plots in possession of Foujdar the names of Jagatnarain or other members of Lakpat''s branch appear. Residential houses are also recorded in the name of members of different branches separately. The plot number of the residential houses so recorded are specified in the judgment of the learned Subordinate Judge.

Therefore, here the entries in the record of rights are of considerable importance indicating separation in the sense of not only definition of shares but also separate possession. Mr. Sarju Prasad realising the weight of this evidence contended that different members of the family may be holding some lands separately for their convenience. But it is not the plaintiffs'' case that some lands had been allotted to members of different branches of the family to enable them to meet their expenses. The plaintiffs'' case in the pleadings as well as in the evidence has been that all the properties are held jointly by the descendants of the three sons of Ujiar Mahto. Separate possession over properties is a strong piece of evidence to rebut the ordinary presumption of jointness of a Hindu family governed by Mitakshara school of Hindu law.

There is another important piece of document which definitely goes against the plain, tiffs'' case of jointness of the descendants of all the three sons of Ujiar Mahto. This is Ex. H. It appears that Eampati Mahto died leaving behind him his widow Mt. Sunderbaso Kuer and two sons Ragho Mahto and Mithila Mahto. Ragho and Mithila predeceased their mother. On their death Lakpat''s sons and grandsons and Foujdar Mahto applied for mutation of their names in respect of the share entered in the name of Ragho and Mithila in the land registration records of revenue paying estate. Mt. Sunderbaso Kuer objected and asked for mutation of her name in respect of her sons'' share in the estates. This was in the year 1919. Eventually the matter was settled by compromise and Mt. Sunderbaso Kuer''s name was entered in place of her sons'' in respect of touzi Nos. 5023 and 5174. The com. promise petition (Ex. H) is signed by each of the adult member of the family per his own pen. The statements contained in para. 1 of this petition are clear declaration of the fact that the petitioners and objector in the land registration proceedings were near agnates and had been living separate; and that Mt. Sunderbaso was in separate possession of her sons'' separate interest in the properties. The petition then proceeded to state that as Sunderbaso had no issue left, she agreed that she would not make any alienation or create encumbrance on the properties. The learned Additional District Judge appears to have attached rather undue weight to this part of the statement in the petition and has failed to appreciate the significance of the declaration regarding separation in the very first paragraph of the petition. In my opinion, this document clearly goes against the plaintiffs'' case that all the descendants of Ujiar Mahto were living joint.

It has already been stated that all the adult members of Lakpat''s branch by the compromise in the suit of 1927 clearly recognised the absolute right of Foujdar''s daughters to his estate. It seems hardly likely that Jagatnarain and other descendants of Lakpat should have agreed to such terms, particularly when by the compromise they got nothing out of the Foujdar''s estate, had Foujdar not been actually separate from the descendants of Lakpat Mahto. There are a number of documents of the period subsequent to the compromise which show clearly that the defendants in the suit, I mean Foujdar''s daughters, have been in separate possession of the properties, zamindari and kasht lands, of their father. There are also some documents which contain clear statement to the effect that Foujdar was separate from the members of Lakpat''s branch. The most important of such documents are Exs. N and N(1). Exhibit N is a deposition of Jagatnarain, the eldest member in Lakpat''s branch in a suit in which Foujdar''s daughters and Lakpat''s descendants were opposing parties. Jagatnarain stated: "My business was separate from his (Foujdar). I became the karta of my family after the death of Eamnarain (his brother). Foujdar Singh was karta of his family." Exhibit N(1) is deposition of Raja Prasad Singh who was defendant 5 in the suit and subsequently got himself transposed to the category of the plaintiffs in the present suit. In that deposition also Raja admitted that Foujdar was separate from them. There is another document Ex. G(1) which is a plaint of a suit instituted by Jagatnarain and other members of Lakpat''s branch against the defendants for contribution. In that suit also there is a clear statement to the effect that Foujdar was separate from them.

There is another document (Ex. O) which is written statement by Jagatnarain and other members of Lakpat''s branch in a suit for rent instituted by Foujdar''s daughters against them. This document also contains similar statement. The learned Additional District Judge seems to be of the view that the admissions contained in these documents were not of any importance as they were made subsequent to the said compromise and that the interest of the adult members who made such admissions were adverse to the minors who got the compromise set aside. There is absolutely nothing in the evidence to show that the interests of the adult members of the family in the joint family estate of Lakpat''s branch was in any way adverse to that of their sons and grand-sons. It is not disputed that they are all jointly interested in the subject-matter of the suit. The fact that by the compromise the adult members acknowledged the rights of the daughters to the property of Foujdar cannot, in my opinion, be regarded as an act of the adults adverse to the interest of the minor. It is to be noted that the adult members had instituted the suit in 1927 and it was only when the suit was about to be taken up for hearing that the compromise was effected in the year 1980, after three years. The adult members apparently compromised the suit because of the reality of the rights of the daughters and the compromise was a mere acknowledgment of the said rights. The compromise decree has been set aside not on the ground of fraud or of dishonesty of the adult members of the family in entering into the compromise but simply on the ground of omission of a certain legal formality. It is true that Kedar Singh himself did not sign the compromise petition but he never in his life time challenged his assent to the compromise.

I can see no circumstance to give any indication that the adult members in entering into the compromise had in any way acted adversely to the interest of the only minor Rameswar Singh, existing at the time. Rameswar''s own father Misri Singh himself signed the petition of compromise for himself as well as for Kedar and so did the other adult members of the family. The principle is that when several persons are jointly interested in the subject-matter of the suit, an admission of any one of these persons is receivable not only against himself but also against the other defendants, whether they be all jointly suing or sued, provided that the admission relates to the subject-matter in dispute and be made by the defendant in his character of a person jointly interested with the party against whom the evidence is tendered. The requirement of the identity in legal interest between the joint owners is of fundamental importance: Amhar Ali v. Lutfeali AIR 1918 Cal. 971. I have already observed above that Jagatnarain, Raja, Subedar were all jointly interested in the properties in suit along with their sons and grandsons. In fact Raja and Subedar have been transposed to the category of the plaintiffs in the suit along with their sons or grandsons.

In my opinion, the admissions in the document referred to and several other documents referred to in detail in the judgment of the learned Subordinate Judge are clear acknowledgment of the fact of Foujdar''s separation from the descendants of Lakpat. The admissions are without any qualification. The statement of Jagatnarain, which I have quoted above, is a clear admission of the fact that Foujdar had been living separate from the members of Lakpat''s branch who constituted a joint family.

The sale-deed (Ex. 1-D) dated 18th June 1921, shows that certain properties were purchased by Misri and Foujdar and in that deed it was stated that each had moiety (sic) interest in the property. It is said that this purchase was made in their names because Jagatnarain was involved in certain litigation of financial liability. That may be an explanation for the transaction in the name of other members of the family than Jagatnarain. But the specification of share of Foujdar and Misri half and half is inconsistent with its being a joint family transaction. The learned Subordinate Judge has referred to a number of mortgage bonds and usufructuary bonds of the period 1911 to 1927. Some of these bonds are in favour of members of Lakpat''s branch and some in favour of Foujdar Mahto. The bonds in favour of Foujdar are attested by one or more members of Lakpat''s branch, while those in favour of members of Lakpat''s branch are attested by Foujdar. Separate bonds so attested in the names of members of two branches of the family give indication of separate monetary dealings of the members of each branch of the family. This, by itself, is not a strong evidence of separation, for different members of the joint Hindu family may have separate monetary dealings, but it certainly indicates that Foujdar had a separate fund. It seems unnecessary to refer to any further evidence in proof of Foujdar''s separation. A number of documents have been referred to in some detail in the lengthy judgment of both the trial and the appellate Courts. The learned Additional District Judge appears to have examined the evidence from the point of partition of the joint family properties by metes and bounds. He went to the length of preparing a schedule of all the lands entered in separate possession of the members of the different branches in the record of rights and in view of inequality in areas in the possession of the members of each branch he seems to have inferred that they could not have separated. I am afraid the learned Additional District Judge fell into an error in his decision as he approached the case from a wrong point of view.

The learned Subordinate Judge, on the other hand, appears to have approached the question of separation from the point of cessation of joint interest with intention to separate. This, in my opinion, was the right approach to the case, for it is not a case of partition by metes and bounds.

On a careful examination of the documentary and oral evidence the learned Subordinate Judge arrived at the conclusion that Foujdar was separate in residence and mess from the plaintiffs, he had his separate transactions, had been in possession of some fields exclusively and had separate funds from the plaintiffs. The above findings are, in my opinion, amply supported by the evidence on the record. These findings reasonably lead to the inference of cessation of joint interest of Foujdar in the joint family estate.

I would, therefore, allow the appeal and set aside the decree of the appellate Court and restore the decree of the original Court. Respondents 1 to 3 shall get their costs of the appeal.

Fazl Ali, C.J.

I agree. This Court cannot interfere with findings of fact in a second appeal unless they are vitiated by an error of law. In this case the crucial finding arrived at by the Court below does, in my opinion, appear to be vitiated by errors of law. One of these consists in not considering the true effect of Exs. N and N(1) on the ground that these documents came into existence after the compromise in the suit of 1927 and also in not taking into consideration the conduct of the adult male members in entering into the compromise. The question which we had therefore to consider was whether this case should be remanded or this Court should arrive at its own findings upon the materials on the record. As this litigation has been continuing for a long time, we came to the conclusion that it would be subjecting the parties to unnecessary harassment by remanding the case to the appellate Court for re-consideration of the evidence and in this light we have examined the evidence and I have no hesitation in agreeing with the conclusions arrived at by my learned brother.