Munshi Ram and Others vs Thakar Dass and Others

Chopra, J.—This appeal is directed against an appellate decree of the Dist. J. Nabha, dismissing applts. suit for partition decreed by the trial Sub-Judge. The parties to the case are descendants of one Kaka Earn who had three sons Ram Parahad, Ralla Ram & Guli Mal. Rala Ram died during the life time of Kaka Ram leaving no direct descendant. Ram Parshad also died leaving his only son Chuhia Mal who with his sons Thakar Dass & Jawahar Lal, are marshalled as defts. in the suit brought by Guli Mal & his sons Sadhu Ram & Munshi Ram. The family originally belonged to village Samandgarh Chhanna in Patiala State. Some times before 1959 Kaka Ram shifted to Nabha with his grand-son Chuhia Mal & started residing there permanently. Kaka Ram died some where in the year 1962; Chuhia Mal & his sons carried on business in the name of firm Kaka Ram Chuhia Mal & acquired certain shops & other immovable property in Nabha. Guli Mal & his sons continued living in the village & remained in possession of the property there. Sometimes after they also shifted to Nabha & started living there in a house purchased by them. They started a firm known as Sadhu Rum Munshi Ram & carried on business in Nabha. On 21-8-2001 they instituted the present suit for partition of the immovable property in possession of Chuhia Mal & his sons in Nabha & also for rendition of accounts of the firm Kaka Mal Chuhia Mal, with the allegations that the parties formed a joint Hindu family, that the business carried on & the property possessed by the defts. belonged to this family, & that they had one half share in them. The defts. pleaded a disruption of the joint family in the year 1959 & alleged that since then the two families were living separately, carried on separate business. & acquired separate properties. A deed of relinquishment dated 30-12-1959 was relied upon to prove separation & to prove that Guli Mal pltf. relinquished his rights in Kaka Mal''s haveli in Nabha by accepting in its place the property in village Chhanna.

The trial Ct. raised several issues & finally decreed the suit. The pltfs. were found to be entitled to one-half share in the Haveli, the firm Kaka Ram Chuhia Mal, & also in the property acquired by that firm. A comr. was appointed to take accounts of the firm & to find out of which the properties were acquired out of its funds. It may here be mentioned that the pltfs. did not specify the properties they claimed to be joint, nor did they give them in any separate list. A close reading of the plaint, however, shows that their main ground was the haveli purchased by Kaka Mal though it was incidentally mentioned that they had also a share in all the subsequent acquisitions made by the defts. The Ct. failed in its duty not to call for a list of the property which the pltfs. claimed to be joint or to record their statements to specify it. They were required to pay ad valorem court fee on half of the market value of the haveli which the Ct. took as the only property in dispute. It should not have been left for the Comr. to enquire as to which of the properties were joint but the Ct. should have decided it before giving the preliminary decree.

The first appellate Ct. upset the findings of the trial Ct. & came to the conclusion that the family had disrupted & that the pltfs had no share in the Haveli or in the firm. This is pltfs. appeal.

The main question that falls for decision is whether the parties still form a joint family as alleged by the pltfs. Mr. Atmaram relying upon the general presumption of jointness of a Hindu family contends that it was for the defts. to prove that it had separated Reference has also been made to some oral evidence which is to the effect that the family was still joint. It is urged that separation had not been proved & that the facts relied upon by the Dist. J. were not sufficient to rebut the strong presumption of jointness. He supports the finding of the Dist. J. that the relinquishment dead could not be treated as legal evidence in the case.

The relationship between the parties is not disputed & it is correct that in a family like this the initial presumption is that it is joint. It has thus to be seen if that presumption has been properly rebutted, Mr. Kishori Lal for the reaps, vehemently contends that the Dist. J. did not act rightly in discarding Ex. DXX which by itself conclusively proves disruption, & further urges that even independently of the document the facts proved abundantly show that there was nothing common between the parties & that the family must have long separated.

It is common ground between the parties that if Ex. DXX is admitted in evidence & is further proved to have acted upon, it would, by itself be sufficient to prove that the family had separate. I would, therefore, first examine the evidentiary value & the admissibility of Ex DXX. This is a deed of relinquishment alleged to be, executed by Guli Mal on 30-12-1969. It purports to be written by one Hari Ram petn.-writer on a Rs. 8-0-0 stamp on the said date, & to be attested by two witnesses namely, Bansi Lal son of Beshambar Dayal Mahajan of Ghanauri & Parbhu Mal son of Hira Mal Mahajan of Nabha. Both the marginal witnesses & the scribe are alleged to be dead. It was executed on behalf of Guli Mal & purports to bear his signature in Devnagri at its close. Before it was placed on the record, Chuhia Mal as his own witness referred to its contents & stated that a deed of relinquishment had been executed by Guli Mal in his favour. On an objection being taken by the opposite party, the document was allowed to be brought on record on 7-6-2002 & Parshotam Das son of the petn. writer was thereafter put in the witness-box to prove it. The pltfs. took objection to its admissibility on the ground that it required registration. The Ct. accepting the objection rejected the document as inadmissible by its order dated 6-7-2002. The defts went up in revision to the erstwhile H.C. Nabha which was dismissed on 3-1-1946 on the only ground that the interlocutory order was not open to revision. After the case had gone on in the trial Ct. for some time, & had become ripe for arguments the defts. prayed for being allowed to prove the document for collateral purposes. The Ct. after hearing the parties on the plaint allowed the prayer, subject to payment Rs. 10 as costs by its order dated 12-10-2003. A revn. to the H.C. against this order also met with the same fate. The defts. thereafter started proving the execution of the document which was then marked as Ex. DXX. It was first put to Guli Mal himself, who expressed his inability to identify his signature because his eye sight had become too weak at the time; otherwise he was definite that no such document WHS executed by him. Thakkar Dass deft. as his own witness, came forward to state that he recognised the signature of Guli Mal because he was well acquainted with his hand writing. The reasons given were that he had been receiving letters written by Guli Mal & had his signatures in his books as well. He further deposed that both the attesting witnesses had died & Chuhia Mal his father, had grown too old & infirm to appear in Ct. One Shadi Ram was produced to state that he identified the signature of Parbhu Mal as an attesting witness to the deed, who had died 15/16 years ago. The pltfs. in rebuttal only examined one Panna Lal who averred that is was not signed by Parbhu Mal or Bansi Lal the attesting witnesses whom he admitted to be dead since long The trial Sub Judge was not impressed by this evidence & held that the execution of the document was not proved. He did not feel inclined to raise a presumption of its genuineness u/s 90, Evidence Act, because the defts. had made an attempt to prove its execution & had not depended merely upon the presumption. The learned Dist. J., without devoting his mind to the points involved, discarded the document for the simple reason that the trial Ct. could not have allowed it to be proved after it had once rejected it he was of the opinion that the previous order dated 6-7-2002 was binding on the trial Ct. unless it was sat aside by "any other competent Ct." Even if that was correct he could have very well examined the legality of the order in appeal from the final decree in the suit; but that be did not do Without discussing or even referring to the evidence & without giving any reasons, he further expressed his opinion that the trial Ct. was right in holding that execution of the document had not been proved & that no presumption u/s 90 Evidence Act, could be raised I cannot possible subscribe to the view taken by the Cts. below. It is true that the documents which extinguished the right of the executant in immovable property worth more than Rs. 100 was compulsorily registrable Mr. Kishori Lal on behalf of the resp tried to argue that the document was only a memorandum of an already completed partition & therefore, did not require to be registered. But the recitals in the deed indubitably show that the intention of the executant was to relinquish his rights in the property at Nabha & it was, therefore, compulsorily registerable.

It has then to be seen if it could be used for collateral purposes, e.g., to prove the nature of the deft.''s possession or a distribution of the joint family. It cannot be denied that these are purposes collateral to the real transaction for which the document was executed & for these the document need not be registered. There is abundant authority in support of the view that a document effecting partition though inadmissible in evidence for want of registration, can be used for the collateral purpose of explaining nature & character of possession thenceforth held by the parties. The document, therefore, can be used to prove that the defts. are in possession of the Haveli since 1959 as their exclusive property & also that the pltfs. are so holding the property in the village. Similarly, a document connected with partition in the absence of registration, may not be admissible in evidence to prove actual partition & to prove what was allowed to any person by that partition, yet it is admissible to establish the status of the parties to the document & to prove a more disruption of the joint family. In Kishen Chand v. Dina Nath AIR 1933 Lah. 574 : 141 I.C. 487 on a question of the admissibility Of an unregistered partition deed Bhide J. made the following observation:

An unregistered document relating to partition may be admissible to prove mere separation in status, but not to prove that a particular item bad ceased to be joint & had fallen to a particular share.

I am in respectful agreement with the view adopted in this as well as such as Rudragouda Venkangouda Patil Vs. Basangouda Danappagouda Patil, Firm I.D. Lachhmi Narain v. Ram Chand 109 I.C. 533 : 29 P.L.R. 413 , Nalam Ramayya and Others Vs. Nalam Achamma, and AIR 1933 270 (Nagpur) , and in a number of other cases; & that appears to me to be the correct & the generally accepted view.

It cannot be disputed that the Dist. J. in the appeal before him & this Ct. in these proceedings can set aside the trial Ct''s order dated 6-7-2002, if found to be illegal. The document having been subsequently admitted & the parties having had time to produce evidence it would now suffice simply to set that order aside. I need hardly decide whether the trial Sub-Judge was competent or not to modify his predecessor''s order; yet I would say that he was justified & competent to rectify the error. I would, for all these reasons, conclude that the document has rightly been admitted in evidence.

It has next to be seen how far the document stands proved. It purports to be executed on 30-12-1969, & it is not disputed that it was produced from proper custody. There is nothing to doubt the date of its execution, particularly because it is written on a stamp paper & its scribe & the attesting witnesses are admitted to he long dead. I do not share the view of the trial Ct. that it is very ea9y to procure an old stamp. The legal presumptions that may be drawn under the circumstances are the following: (1) That the signature & every other part of it which purports to be in the handwriting of any particular person is in that person''s hand-writing; (2) That it was executed by the person by whom it purports to have been executed; (3) That it was attested by the persons by whom ill purports to be attested. A look at the document reveals that it purports-to be written by Hira Lal petn.-writer, & bears the number of his register & his signature as a scribe. It also purports to be executed on behalf of Guli Mal & bears his signature at its end. It further purports to be attested by Bansi Lal & Parbhu Mal. Nothing else would be required to prove the execution of the document if these facts can be presumed under the law. Abdul Ghani v. Fiqir Muhammad AIR 1929 Lah. 78 cited by Mr. Atma Ram and also relied upon by the trial Court, does not appear to help the Appellants as the facts of that case were totally different The plaintiffs in that case had called for the records of some other case, not between the parties, under Order 13, Rule 10, Code of Civil Procedure, for inspection of the Ct. They relied upon a plan placed on that record without proving or bringing it on the record of the case in question. It was a document between strangers to the suit placed on the record of Anr. case, which did not become evidence merely because it had been sent for under Order 13, Rule 10, CPC It was under these circumstances that the document was not accepted without formal proof of its execution & contents. It is urged, and urged rightly, that the Ct. is not bound to raise all or any of the presumptions with respect to every document that is said to be more than 30 years old. They Ct. may refuse to raise a presumption if it has reason to believe the document to be a fabrication, or where a grave suspicion attaches to it. The suspicion may be due to erasures or over-writings in the document itself, or to circumstances which tend to raise doubts as to its authenticity. On the other hand, if no suspicious circumstances exist & the document is also found to be acted upon there is a strong presumption of the genuineness of an old document. I am not unmindful of the fact that it is only a matter of discretion to raise the presumption. While, on the one hand, great care is required in applying the presumption, on the other hand, it is clear that grave injustice may be perpetrated if an old document coming from proper custody is rejected by a Ct. capriciously & for inadequate reasons. On a careful consideration of all the circumstances of the case & evidence on record, I have no hesitation to say that there is no ground to suspect the genuineness of Ex. DXX which is also proved to have been acted upon & that the discretion was refused to be exercised on insufficient grounds.

It is abundantly proved that since 1969 the parties have been living separately, have acquired separate property, & have carried on separate business. Even in Nabha they admittedly own separate houses in which they have their residence & are running two separate firms. The one has nothing to do with the other. The defts. have had no share in the profits or in the management of the property in the village. Similarly the pltfs. have had nothing to do with the Haveli in Nabha & also in the property subsequently acquired by the defts. It is in evidence that the defts. made additions & alterations in the old house in Nabha & even added to it a plot purchased by them. The parties are carrying on business in separate houses. The pltfs. work in the name of Sadhu Ram Muashi Ram while the defts. firm is known as Kaka Ram, Chuhia Mal, & the two are carrying on business side by side in the same town. It is significant that the pltfs. have not included in the suit the immovable property in their possession in Nabha or even in the village, nor the business that they are carrying. They do not say that the defts. have a share in them as members of the joint family. The only inference that can be drawn is that they claim these to be their separate property. It is proved from the registered sale deeds produced by the defts. that Chuhia Mal acquired considerable immovable property in Nabha in his own name between the years 1981 & 1997. The initial presumption of jointness, in my judgment, stands sufficiently rebutted by all these facts taken together. Even independently of EX. DXX, they would suffice to prove a disruption of the joint family. They are all in consonance with the relinquishment deed & abundantly prove that the same was & has been acted upon.

Before concluding I would like to refer to one more objection of the applts. counsel, which found favour with the trial Ct. also. It is argued that the resps. chose to produce evidence to prove the dead, the Cts. had no discretion to apply the provisions of Section 90, Evidence Act, & presume the document to be genuine. I am, however, of the opinion that a Ct. is not debarred from raising the presumption simply because evidence has been called in support of its execution, which it finds insufficient. A party leading evidence to prove its execution may still rely upon the presumption. I do not find anything in law that prevents a Ct. from presuming a deed to be genuine, even though it is not satisfied with the evidence tendered to prove its execution. Thakar Dass, one of the defts. stated on oath that he was acquainted with the signatures of Guli Mal who was his real uncle, & with whom he was in correspondence. Guli Mal was also alleged to have signed in his books on several occasions, He identified the signature of Guli Mal on the document. I can concede that the evidence of Shadi Ram who identified the signature of one of the attesting witnesses, carries little weight because it does not disclose that he had sufficient means to be conversant with the handwriting of the witness. The statement of Panna Lal, a witness of the pltf. who deposed that the signatures of Bansi Lal & Parbhu Mal the two attesting witnesses to the deed, did not appear to be genuine, is equally worthless. I, however, see no valid ground to disbelieve Thakar Das. The evidence of identification of handwriting may be of a lower type, but taken along with the presumption that arises out of the circumstances of the case, & the absence of a clear denial of Guli Mal himself, it can safely be said to prove execution of the document.

For all the reasons stated above, I am of the considered opinion that the family of the parties was no longer joint & that the pltfs. had no share in the business of the defts. or the property in their possession including the Haveli, I, therefore, see no ground to interfere with the conclusion arrived at by the Dist. J. The appeal is consequently dismissed with costs.