Nirmal Kumar Nawlakha vs Sant Lal Mahto and Others

Manohar Lall, J.—The plaintiff respondent instituted the suit giving rise to this appeal on 1st August 1930, for partition of five annas four pies share in the property mentioned as lota 1 to 17 in Schedule A and lots 1 to 4 in Schedule B and 1 bigha out of lot No. 5 in Schedule B, There were a number of defendants to this action but we are here concerned with defendant 16, Nirmal Kumar Nawlakha who resisted the claim for partition so far as the properties with which he was concerned as purchaser from two ladies of the family of Bansing Mahto, the remote ancestor of their husbands. The learned Subordinate Judge has given a decree to the plaintiff as claimed and defendant 16 alone has appealed.

The following facts are necessary in order to understand the nature of the controversy and the points that arise for our decision. Bansing Mahto, the remote ancestor already named, had four sons: Bhagwan, Hardayal, Makhan and Madan. Bhagwan had two sons, Kishun, the father of Kamala and Lachmi, and Rajbahadur who was the husband of Mt. Sampato. (It is not necessary to state that Bhagwan had another son Chandi but the evidence is not clear on this point and therefore he is ignored for the purpose of this decision.) Hardayal had a son, Shib Prasad, who left a widow, Mt. Saro. Makhan had two grandsons, Jagat and Bhukhan, and the last son, Madan, had two sons, Gopal, father of Mewa, and Tilak, father of Khantar and Ajodhya. The remoter descendants of these persons named above are not being mentioned in this statement. The plaintiff took a mortgage on 9th September 1920 with respect to five annas four pies share of Soh. A properties mentioned above from Kamla and Lachmi, who, according to the plaintiff, were entitled to this share on the death of Raj Bahadur who died in a state of jointness with Kishun and his sons. The plaintiff also alleges that Hardayal and Shib Prasad having died in a state of jointness with the brothers of Hardayal, the joint family property came to be owned by three branches, namely Bhagwan, Makhan and Madan''s branch and they continued as such till 1914 when he alleges that the partition took place between these surviving branches with the result that each branch came to own an ascertained share of five annas four pies in the joint family property. The plaintiff obtained a mortgage decree which was made final on 5th November 1927 and he purchased the properties which were mortgaged to him in execution of his decree on 22nd December 1928. The plaintiff also purchased on 17th November 1927 some of the properties in suit by sale deed from the same Kamla and Lachmi. The plaintiff therefore bases his title upon these transactions and claims to be entitled to be placed in possession of the five annas four pies share of his vendors. So far as this appeal is concerned, it is only necessary to state that this action was also resisted by defendant 16 who asserted his title in the following circumstances: His case is that the joint family of Ban sing effected a separation by ascertainment of shares in or about the year 1894 with the result that each of the four brothers named above were entitled to a four annas share in the family properties. Therefore Hardayal was entitled to four annas and on his death his son Shib Prasad became entitled to that four annas which became the inheritance of his widow Mt. Saro. Similarly Bhagwan having died, his share descended to his sons Kishun and Rajbahadur in equal two annas share each. Rajbahadur having died, his share descended to his widow Mt. Sampato and Kishun''s two annas descended to his two sons Kamla and Lachmi by survivorship. Therefore defendant 16 contends that the plaintiff is entitled to only two annas share of his mortgagors and not five annas four pies as erroneously asserted by him.

The next relevant event which is necessary to state is that the two Mts. Sampato and Saro instituted partition suits in 1925 in the Court of the Subordinate Judge of Purnea in which they made all the members of the joint family defendants. Kamla and Lachmi (who are defendants 33 and 34 in this action) resisted the claim on the ground that the ladies had no right to claim partition but were entitled to maintenance only and these defendants also asserted in that suit that they were entitled to five annas four pies of the properties and that the Musummats were entitled to no share. But the learned Subordinate Judge in his judgment dated 8th July 1925 (Ex. M) decreed the suit of the two ladies holding that he was satisfied that the share of those ladies was as asserted by them and he was also satisfied that the partition in the family took place in 1894. This was followed by actual partition effected by a commissioner appointed by the Court at the instance of the plaintiff Musummats. Defendant 16 has taken two conveyances dated 9th August 1928 from these two ladies, with respect to six items of property from Mt. Saro (defendant 19) for Rs. 4,000 and for eight items of property from Mt. Sampato (defendant 20) for Rs. 2,000. This defendant says that he is a bona fide purchaser for value from these two ladies whose title was determined in judgment (Ex. M.) He also relies upon the survey of 1905 which supports the case of partition before the survey. He accordingly resists the claim of the plaintiff to partition and he contends that the plaintiff being the simple mortgagee is bound by the result of the partition action unless it is held to be fraudulent and that the plaintiff can not question the title and possession of this defendant 16. The plaintiff is fully alive to the difficulty in his way and accordingly he alleged in his plaint that the partition action was instituted with the object of defrauding him of his just claim and that the same was collusive and fraudulent.

It will be noticed that the critical points which will determine this appeal are whether the partition took place in this family in 1894 or in 1914 and also whether the partition decree of 8th July 1925 is collusive and fraudulent. The learned Subordinate Judge has written a most painstaking judgment and has held that the oral evidence adduced by both parties does not establish beyond all doubt the partition as alleged by them; that is to say in his opinion the plaintiff has failed to prove the partition in 1914 and the defendants have failed to prove the partition as alleged by them in 1894 by the oral evidence in the case. Neither party in their elaborate arguments before us challenged this finding of fact of the learned Subordinate Judge based upon his appreciation of the oral evidence adduced and we also are satisfied that this estimate of the learned Subordinate Judge is perfectly correct.

What then is the evidence of reliable character adduced by the plaintiff which will go to establish the partition in 1914 or which will go to establish that the family was joint in 1905? The plaintiff has two difficulties in his way, first the survey Record of Eights prepared and finally published in 1905 which goes to support that there was a partition in this family before that date. It is a matter of common experience that the survey Records of Bights are prepared with the utmost care and with full publication of the orders which are passed in the khanapuri and attestation stages and that the parties are as a rule fully alive to the great value of these records. It is also to be remembered that it takes about three years or more to complete a survey. Therefore it may safely be assumed that a partition must have taken place in this family about the year 1901 or 1902, if not earlier. The entries in the survey record as printed in this paper book are inconsistent with any other hypothesis. The plaintiff has another difficulty in his way and that is the partition decree of 8th July 1925 which again in that year affirmed that the survey entry was correct upon the evidence adduced by the parties.

Mr. Bankim Chandra De, in presenting the case on behalf of the respondents, most strenuously argued that even if his client has not been able to show satisfactorily the date of the alleged partition in 1914, the defendants'' case also is wholly false and therefore he asked us to draw some kind of presumption or inference in favour of the plaintiff. With great respect, Mr. De wants to completely misplace the onus of proof. In my opinion the onus is upon the plaintiff and nonetheless so, even when he has adduced some kind of evidence. The onus will shift on to the defendant only if the evidence adduced by the plaintiff is held to be sufficient to establish a prima facie case. The true test of onus in such a case has been well put by Lord Hanworth, M.R. in Stoney v. Eastbourne Rural District Council (1927) 1 Ch 867 in the following words:

It appears to me that there can only be sufficient evidence to shift the onus from one side to the other if the evidence is sufficient prima facie to establish the case of the party on whom the onus lies. It is not merely a question of weighing feathers on one side or the other, and of saying that if there were two feathers on one side and one on the other, that would be sufficient to shift the onus. What is meant is, that in the first instance the party on whom the onus lies must prove his case sufficiently to justify a judgment in his favour if there is no other evidence given.

Applying this test to the present case, it is clear to my mind that the onus which was originally on the plaintiff and which was shifting from time to time during the course of the evidence adduced, lay on the plaintiff the moment the learned Subordinate Judge held that oral evidence adduced by him as to the date of partition was not satisfactory. It then was incumbent upon the plaintiff to prove how he claimed his title to five annas four pies against the defendant who was in possession with an apparent title. Mr. De with great vigour suggested that there are a series of transactions evidenced by registered sale deeds, mortgages and leases between 1894 and 1925 which were executed either by the members of the family in favour of strangers or by strangers in favour of members of this family or by members of the family inter se which contain recitals of an unequivocal character from which the only reasonable inference that can be drawn is that the partition took place in this family in 1914 as alleged by him. (His Lordship considered some of the documents and proceeded.) It is enough to say that the documents beginning from the 28th September 1915 right up to 1925 contain recitals in many of them to the effect that the members of this family effected a partition in or about the year 1914; and as the learned Subordinate Judge has pointed out, these documents may be taken to amount to dealings with the property of the family by defendants 1, 7, 8, 13, 33 and 34, as their own property to the exclusion of defendants 19 and 20 (vendors of defendant 16) by making purchases and transferring the properties not only to third persons but also among themselves with an allegation of partition of the lending business and the specification of shares in the manner alleged by the plaintiff. No doubt this is a circumstance of a somewhat reliable character in favour of the plaintiff and ordinarily if there was nothing else in the case I would be inclined to attach great importance to these recitals by competent members of this family as to the state in which the family properties were being held and as to the shares asserted by each branch to the knowledge of the other. The only explanation which Mr. Mullick appearing for the appellant offered as to the recitals mentioned in these documents was that for some reason or other the male members from 1915 onwards began to enter into these transactions with a view to enlarge their shares and to deprive the ladies of their rights in the family property of their husbands. I am not satisfied that this explanation is quite correct and it would be simply acting upon mere suspicion if effect is given to this contention of Mr. Mullick.

It is necessary to examine now whether the plaintiff has succeeded in showing that the partition decree of 1925 was fraudulent or collusive. (After discussing the evidence his Lordship proceeded.) I have looked into all the surrounding and attendant circumstances and am constrained to disagree with the reasonings and the finding of the learned Subordinate Judge in the present case that the partition suit of Mts. Saro and Sampato was fraudulent. The learned Subordinate Judge appears to have based his conclusion upon mere suspicion and did not base his conclusion upon legal evidence admissible in the case.

Mr. De next contends that even if the partition suit and the decree of 1925 were not fraudulent, he is not bound by that decision inasmuch as he was no party to that action and his previous title derived from the mortgage of 1920 which was earlier than the partition suit stood unaffected by the decision to which he was no party. This contention is met by the decisions of their Lordships of the Privy Council in Byjnath Lall v. Ramoodeen Chowdry (1873) 1 IA 106 and in Mohammad Afzal Khan v. Abdul Rahman AIR 1932 PC 285. Mr. De sought to place reliance upon the case in Obhoy Churn Sircar v. Huri Nath Roy (1882) 8 Cal 72. In my opinion this case has no application to the facts of the present case which are fully covered by the authorities of the Privy Council referred to above. To sum up, it is the admitted case of both parties that at the date of the suit this family had actually separated. Each party sought to set up a case of partition on different dates. The evidence oral and documentary is insufficient to prove the case of partition as set up by the plaintiff. The survey Record of Bights prepared in 1905, which must be presumed to be correct, unless it is established on the evidence that it is incorrect, is consistent with the case of the defendant that the partition took place some time before 1905. This survey Record of Rights was again accepted as correct by the Subordinate Judge in 1925 upon oral evidence. The partition decree passed by the Subordinate Judge in that year is not proved to be fraudulent or collusive and therefore binds the plaintiff mortgagee who took a mortgage of an undivided share from his mortgagors and he is entitled to seize only that property which after the partition has fallen to the share of his mortgagor. The onus lies upon the plaintiff to prove his case and also the extent of his title and I hold that he has been unable to prove that his title can prevail against defendant 16, the appellant before us. It is unnecessary to consider whether defendant 16 is a bona fide transferee for value.

The result is that the appeal succeeds. The case of the plaintiff is dismissed so far as he seeks to partition the properties which fell to the share of the two Mts. and which were transferred to the appellant by the sale deed dated 9th August 1929. In view of the fact that the suit of the plaintiff was not wholly without prima facie reasonable foundation, I would direct that as between the appellant and the plaintiff there will be no order for costs here and in the Court below.

Courtney-Terrell, C.J.

I agree.