Murlimanohar Prasad Singh and Others vs Ramlakhan Singh and Another

Reuben, J.—This is an appeal by the defendants against a decree of the Subordinate Judge, Third Court, Patna, in a suit for declaration of title and recovery of possession. The following genealogical table will explain the relationship of the parties:

KANHAI PANDE _____________________|_____________________ | | Sheoshankar Singh Deorani Kuer (widow, Biso Kuer, | 3rd wife. Died 1922) | _______|____________________________ | | | | Tapo Kuer Binda Prasad | (By first wife) (By second wife | died about | 1900. Widow | Phuleswar Kuer died | 13-8-1940) | | | Raja Ram | (Deceased) | _________________________________________| | | Hari Prasad Singh Thakur Prasad Singh Deft. 4 | Ambica Prasad Singh Deft. 3 ___________________________________|______ | | Murli Manohar Prasad Krishna Manohar Singh Deft. Prasad Singh Deft. 2.

According to the plaintiffs, the property in suit is the ancestral property of Binda Prasad together with accretions acquired from the income thereof. It is claimed by plaintiff 1, Ramlakhan Singh, as son of Binda Prasad''s sister, Tapo Kuer, and by plaintiff 2, as transferee of a share in the property under a sale deed, executed on 14-7-1041, by plaintiff 1. Before his death, Binda Prasad executed two deeds in respect of all his properties. One was a deed of gift dated 12-6-1889, purporting to transfer a portion of the property to his step-mother Biso Kuer. The other was a deed of partition dated 12-10-1889, purporting to divide the remaining property between Binda himself, his son Raja Ram, his wife Phuleswar Kuer and his step-mother Biso Kuer. According to the plaintiffs, these deeds were merely sham transactions intended to protect the estate from creditors, and the property continued to be vested in Binda Prasad. Binda''s son, Raja Ram, predeceased him. According to the plaintiffs, Phuleswar Kuer succeeded Binda Prasad and was herself succeeded by plaintiff 1 on her death in 1940 but in 1941, plaintiff 1 was dispossessed by defendants 1 and 2, claiming the property under certain deeds executed in their favour by Mt. Phuleswar Kuer and Hari Prasad Singh defendant 4 on 25-7-1940. The plaintiffs challenge the execution of these deeds by Phuleswar.

The suit was contested by defendants 1, 2 and 4. Defendant 2 has since died and his mother has been substituted in his place. The contesting, defendants deny the alleged relationship between plaintiff 1 and Binda Prasad. According to them, plaintiff 1 is merely the step-son of Tapo Kuer and has no connection whatever with the family of Binda Prasad. They assert that the two deeds of 1889 represent real transactions and that under these deeds, Biso and Phuleswar took an absolute interest in the property assigned to them after the respective deaths of Raja Ram and Biso, their property passed to Phuleswar, who on 26-7-1940, executed a deed of gift in favour of defendants 1 and 2 in respect of properties over which she had acquired an absolute title; as regards the portion of the property in which she only got limited interest, she made an oral surrender of it in favour of the next heir, defendant 4, who gave these properties to defendants 1 and 2 by the second deed of gift, in the execution of which Phuleswar also joined as an executant. According to the defendants, these deeds are valid and effective and passed the title to defendants 1 and 2. The Subordinate Judge accepted the plaintiffs'' story that plaintiff 1 is the son of Tapo Kuer. He found that the deeds of 1889 were sham transactions and were not given effect to. In consequence, he held that plaintiff 1, as Binda Prasad''s heir, is entitled to succeed to the property after the death of Phuleswar. He found the deeds of 1940 to have been executed by Phuleswar but was inclined to think that she had no independent advice and did not understand the nature of the transactions; in view of his other findings, it was not necessary for him to record a definite finding on this point. In the result Subordinate Judge decreed the suit and directed that mesne profits be ascertained in a separate proceeding.

The main question that arises in this case is that of the alleged relationship of plaintiff 1 to Binda Prasad; if this is decided against the plaintiffs the further questions as to the genuineness and effect of the deeds in suit do not arise. The evidence on the point is entirely oral. The plaintiffs examined several witnesses in support of their case, of whom the Subordinate Judge has relied upon Dalbhajan Singh (P.W.3), Mathura Prasad Singh (P.W. 5), Kapildeo Singh (P.W. 6), Binod Bihari Singh (P.W. 7), Deo Kumar Singh (P.W. 12), Suraj Singh (P.W. 14) and Jograni Kuer (P.W. 22). (His Lordship then examined the evidence of witness and concluded as follows.) On the above grounds, I think that the finding of the Subordinate Judge that plaintiff Ram Lakhan is the son of Sheo Gopal by his wife Tapo Kuer is correct, and it becomes necessary to consider the nature and effect of the two deeds executed by Binda Prasad.

The Subordinate Judge has held that the two documents represent sham transactions merely to protect the property from Binda Prasad''s creditors. In his consideration of this point, he has made the basic error in placing the onus wrongly on the defendants to establish positively that the documents represent real transactions. That the Musammats got their names mutated in respect of the property is admitted by plaintiff''s witness Binod Bihari Singh (P.W. 7), and large number of documents have been brought on the record to show that these ladies acted as owners in possession of the property. It is not necessary to give details of these documents because they have been set out fully in the judgment of the Subordinate Judge. He has attached no weight to them on the ground that, the intention being to defraud creditors, the pretence that the transactions were real transactions had to be kept up in subsequent transactions affecting the property. Another ground relied on by the Subordinate Judge for holding these to be sham transactions is the absence of certain papers, such as, collection papers and account books. These papers, if produced, could have been ignored on the very same ground which was used in the case of the papers produced. In order to establish that the deeds in question were not really what they seemed, positive evidence pointing definitely to that conclusion was necessary, and in the absence of such evidence this finding of the Subordinate Judge cannot be upheld. I shall, therefore take up the consideration of the effect of these deeds.

The deed of gift Ex. 4 was executed on 12-6-1889, a few months after Binda Prasad attained majority. It begins with a recital that after the death of his father and of his own mother, Binda Prasad was looked after by Mt. Biso Kuer, who "protected and saved my properties" and "so managed the affairs that she augmented the properties left by my father." It expresses anxiety that Biso Kuer should not be put to difficulty owing to irregularity in the payment to her of money necessary for her maintenance. Hence, the deed recites, the gift is given to her "in lieu of her maintenance and support." Certain zarpeshgi interests are transferred to Biso Kuer along with three bighas kariyar land and certain raiyatkhana lands occupied by tenants. The same words of gift cover the zarpeshgi interest and the other property, and it has been argued by Mr. Das that, since the absolute nature of the interest given to Biso Kuer over the zarpeshgi is not contested, the deed should be deemed to have the same effect as regards the other property. The words are qualified, however, by the passage that follows:

I make declaration and give out in writing that the aforesaid Musammat should maintain herself and her dependents from the income and produce of the aforesaid properties and perform pilgrimage and barats. The aforesaid Musammat has also got the right to realise by proper means Rs. 13,844 the amount of peshgi mentioned in the deed dated 24-7-1887 due by Sayed Habibur Rahman aforesaid within the period or after the expiry thereof and to bring the same into her possession and appropriation under this deed of gift. Mt. Biso Kuer aforesaid has got and shall have the right to realise all the zarpeshgis as per stipulations mentioned in the said zarpeshgi deeds. In short under this deed of gift the said Musammat has got the right of possession over the zarpeshgi interest as also the right of realisation of the zarpeshgi mentioned in the deed dated on 24-7-1887 and she has also got the right to appropriate the produce of the other aforesaid properties mentioned below.

He thus makes it clear that he gives to Biso Kuer the right to present possession of the zarpeshgi interest as well as to realise and appropriate the amount due on it and that, as regards the other property, she will have merely the right to appropriate the produce. Mr. Das also stresses the covenant (in the document by which the executant binds himself and his heirs and representatives, and says that neither he nor they "have nor shall have on any account any right to take possession of the aforesaid properties and to relise the aforesaid zarpeshgi." These words have to be read with the document as a whole, and do not necessarily indicate the intention to give an absolute interest. They may be intended to bind the heirs and representatives of Binda Prasad in the event of Binda Prasad''s death during the life-time of Biso Kuer. Hence, this covenant is consistent with an intention to give merely a life interest. That such was the intention of Binda Prasad appears from the differing provisions made by him with reference to the zarpeshgi property and the other property covered by the deed. It also appears from his declaration that the "aforesaid Musammat should maintain herself and her dependents from the income and produce of the aforesaid properties." Had he intended the gift, to extend beyond the life time of the Musammat, we would have expected a reference to the heirs and representatives of the Musammat.

Finally, Mr. Das relies on the fact that in the subsequent deed of partition, which divided into four equal shares the property of Binda Prasad, the property covered by this deed of gift was left out of account with the remark that Binda now had no concern with it. He argues that this shows that Binda Prasad regarded the gifted property as having passed to Biso Kuer absolutely. The propriety of using the deed of partition for interpreting the deed of gift is doubtful: Lalit Mohan Singh v. Chukkun Lal (97) 24 I.A. 76. Even taking it as admissible for this purpose, the opinion of Binda Prasad expressed in this deed would not outweigh the positive indications in the deed of gift that the interest which was being given was a life Interest. The next point that arises is the course of the succession to the property on the death of Biso. Binda Prasad showed his consciousness that the property was joint family property by his statement at the commencement of the deed that the property had come from his father and had been augmented by Mt. Biso Kuer, acting as his guardian. The gift was made to her for her maintenance. It is reasonable to infer that his intention was that when the necessity for her maintenance ceased, the property should revert to the joint family: Debi Mangal Prasad Singh v. Mahadeo Prasad Singh (12) 39 I.A. 121. At the death of Mt. Biso, Rajaram was dead, therefore, the property would revert to Phuleswar as the representative of Binda''s estate, and on her death plaintiff 1 would be entitled to it as heir of the last male holder Binda,

We come to the deed of partition, Ex. 3. It begins with a recital that Babu Sheo Shanker Singh, father of Binda Prasad, had money lending business and other properties which Mt. Biso, during her guardianship of Binda Prasad improved and expanded and by good management increased to a considerable extent, and describes the property, which was being divided, as ancestral. It states that after attainment of his majority on 16-3-1889, the executant got into bad ways and, in consequence, Mt. Biso Kuer, as guardian of his minor son Raja Ram, intended to file a suit for partition, and, in consequence of the advice of well wishers of the family, the executant decided to partition the property. The deed divides the property into four equal shares which are allotted respectively to Binda Prasad, his son Raja Ram, and the two ladies. The relevant portions of the deed are as follows:

I...divided all the movable and immovable properties, business and the debts due to the family by others.....in this way that I kept the properties mentioned in Schedule 2, specified below for myself...Mt. Biso Kuar my mother, Mt. Phulesar Kuar, my wife and Rajaram Singh, my minor son have got absolutely no concern therewith. I partitioned and gave the properties mentioned in Schedule 3 into exclusive share of Mt. Biso Kuar and the properties mentioned in Schedule 4 to my minor son, Rajaram Singh, through Mt. Biso Kuar; Mt. Biso Kuar has got full right to act on obtaining certificate under Act 40 of 1858. I gave over the properties mentioned in Sch, 5 to Mt. Phulesar Kuar. I, the executant have got no concern whatsoever with the milkiat, right of possession and realisation of those properties. All the three persons, i.e. Mt. Biso Kuar for herself and as suardian and Mt. Phulesar Kuar for herself having taken possession of all properties as maliks shall appropriate the income thereof. After Mt. Biso Kuer and Mt. Phulesar Kuar all those rights Shall belong to my minor son Rajaram Singh and also to other children of me, the executant born afterwards. I, the exeoutant, have got no concern therewith. The right to realise the debts mentioned in each of the schedules shall belong to the person to whose particular share the said particular debts have been allotted, one has got no concern whatever with the other in respect of the properties allotted to the share of that person.... Neither any party nor his or her heirs and representatives have got any right to denounce or to put forth objection directly or indirectly in respect thereof.

Much stress has been laid in the argument before us on the words constituting the Musammats as maliks of the property allotted to them. The connotation of this term has been considered by their Lordships of the Privy Council in a large number of cases which were cited before us, Mt. Surajmani v. Rabinath Oza (08) 35 I.A. 17, Fatehchand v. Rupchand AIR 1916 P.C. 20; Bhai Das Shiv Das v. Bai Gulab AIR 1922 P.C. 193, Sasiman Choudharain v. Shib Narain AIR 1922 P.C. 63; Narasinga Rao v. Mahalakshmibai AIR 1928 P.C. 156 ; AIR 1931 179 (Privy Council) ; and AIR 1933 67 (Privy Council) . The effect of these decisions may be summed up in the words of Sir John Edge:

The term "malik", when used in a will or other document as descriptive of the position which a devisee or donee is intended to hold, has been held apt to describe an owner possessed of full proprietary rights, including a full right of alienation, unless there is something in the context or in the surrounding circumstances to indicate that such full proprietary rights were not intended to be conferred, but the meaning of every word in an Indian will must always depend upon the setting in which it is placed, the subject to which it is related, and the locality of the testator: from which it may receive its true shade of meaning.": Sasiman Choudharain v. Shib Narain AIR 1922 P.C. 63.

In the present case this word has to be considered along with another fact, namely that the persons to whom the shares were allotted were women. In Mahomad Shumstool v. Sewakram (75) 2 I.A. 7, which was concerned with a testamentary document executed by a Hindu, their Lordships held that it was not improper to take into consideration what are known to be the ordinary notions and wishes of Hindus with respect to the devolution of property, and that it may be assumed that a Hindu generally desires that an estate, specially an ancestral estate, shall be retained in his family, and that he knows that, as a general rule, at all events, women do not take absolute estates of inheritance which they are enabled to alienate. Applying this principle to the case before them their Lordships held that a bequest to the testator''s daughter, stating that "none other is nor shall be my heir and malik", might be fairly construed as meaning that she should take a life interest. The principle laid down in this case was also applied in Radha Prasad v. Ranimoni Dassi (08) 35 I.A. 118. There is another relevant consideration, namely that this was not a deed of transfer executed by a person exercising absolute powers of disposal; it was a case of a father in a joint Hindu family exercising his power to divide the family property between himself and his sons and such females as are entitled to a share on partition. No authority has been shown to us that this power extends to the creation of absolute rights in favour of a woman. We must assume that this limitation to his powers was known to Binda Prasad, and in the absence of the words that compel us to come to that conclusion, we should not assume that this was his intention. On the contrary, his describing the property as ancestral property indicates that he intended to act within his legal powers.

Mr. Das urges that the deed makes no distinction between the share allotted to Raja Ram and the shares allotted to the women, and, therefore, since the interest taken by Raja Ram was absolute, the interest taken by the two women should also be held to be absolute. The principle, which I have just enunciated, would apply to this argument. Binda Prasad must be taken to have understood the limitation to his powers and in the absence of express words to the contrary, he must be taken to have intended that the male and female shares should take the rights which they would ordinarily get under a partition. It is, however, not correct that there is no distinction in respect of the shares of Raja Ram and of the two women; for, in respect of the latter, Binda Prasad provides that after these women, their rights shall go to Raja Ram and to other children of Binda Prasad, if any--a clear indication that the interest given to the women was intended to be a life interest. Regarding this provision about the succession to the Bhares of the two Musammats, Mr. Das had argued that the words are merely an attempt by Binda Prasad to lay down the rule of succession so far as he understood it, and that they should be held to limit the absolute interest, which is ordinarily conveyed by the use of the term ''malik''. On the contrary, it seems clear to me that these words were intended by Binda Prasad to be effective words, affecting the succession so as to prevent the property from coming back to Binda Prasad and becoming liable for his debts. They show his intention of giving only a limited interest to the two women and the knowledge that, in ordinary course, the property would come back to the male members of ''the family.

Mr. Das next argues that the women were given an absolute interest in the debts assigned to them under this deed and should be held to have a similar interest in the movable property. There is a separate reference to these debts, however, and it is stated that "the right to realise the debts mentioned in each of the schedules shall belong to the person to whose particular share the said particular debts have-been allotted". Hence, this is not a necessary inference. Finally, Mr. Das relies on the covenant binding the heirs and representatives of the parties. As I have indicated above, this inference is not a necessary one, because the provision may be merely intended to prevent the heirs and representatives of one party from interfering with the share of another party during the lifetime of the latter party. Reading the document as a whole, I have no doubt that there was no intention to create absolute rights in the two women; he was merely exercising his right under the Hindu law of partitioning the property. The further provision regarding the shares of the two women was intended to protect the property by preventing it from coming back to himself. It was an attempt to exercise a power, which he did not possess, and it would be of no effect. The two women, therefore, would get an ordinary widow''s estate in the shares allotted to them. Debi Mangal Prasad Singh v. Mahadeo Prasad Singh (12) 39 I.A. 121 On the death of Biso, therefore, her share would revert to Phuleswar and on the death of Phuleswar that share along with the share of Phuleswar herself would come to plaintiff 1. Raja Ram predeceased Binda Prasad; hence, the share of Binda Prasad on his death-would come to Phuleswar and through her to plaintiff 1.

There is a difference as regards the share of Raja Ram. He died separate from his father. So his share properly went to his mother, and on her death, the property would go to the heir of Raja Ram. But in the present case, plaintiff 1 has not claimed in that capacity. Mr. Banerji has urged that this is a Court of justice and not a Court of discipline, and that plaintiffs ought not to be penalised on technical grounds for what is merely an error in the pleading. He urges that all the facts necessary to establish that Ram Lakhan is the heir of Raja Ram have been established by the pleadings and the evidence, and that the legal consequences should follow. I cannot agree that the difficulty in the way of the plaintiffs in respect of Raja Ram''s share is only a technical one. It is true that, on the facts as they appear from the record, Ram Lakhan would appear to be the heir of Raja Ram. The point, however, was never put in issue, and the defendants were not called on to plead to or to adduce evidence on the point. It would, therefore, be unfair to them to allow the plaintiffs to proceed on a claim which is outside their pleadings.

Finally, it is urged on behalf of the appellants that the plaintiffs cannot succeed in respect of certain properties acquired by Musammats Biso and Phuleswar subsequent to the deed of partition and the deed of gift. These properties are covered by Exs. A-(12), A-(13), A-(14), R and 6, and are set out in the schedules to the written statements. From the record it would appear that this point was not pressed before the Subordinate Judge. In the issues, as originally framed on 5-2-1942, the point was included under issue 2, but it was omitted from the issues as recast on the opening date of the trial. The amendment of the issues was made with the consent of the parties (vide order-sheet No. 39, dated 30-3-1943), and it does not appear that at any stage of the proceeding before the Subordinate Judge any objection was raised by the defendants. I have held above that the interest acquired by the ladies in the property, which they acquired under the gift and the partition, was a widow''s estate. In the absence of anything to show that they intended to keep their acquisitions separate from the family-estate, such acquisitions would be regarded as accretions thereto: Sheolochan Singh v. Babu Sahib Singh (87) 14 I.A. 63. This position seems to have been accepted by the defendants by their conduct before the Subordinate Judge, and they cannot be permitted now to agitate the matter.

In the result, I would uphold the decree of the Subordinate Judge except with regard to the property which fell in the share of the deceased Raja Ram in the partition of 1889, i.e. the property set out in Schedule 4 to the partition deed Ex. 3. With respect to this property the claim fails and should be dismissed. With this modification, the decree of the Subordinate Judge will stand and I would, accordingly, allow the appeal in part. Parties will get costs in both Courts proportional to their success, which will be taken to be three-fourths to the plaintiffs and one-fourth to the defendants-appellants.

Sinha, J.

I agree.