Raghunandan Prasad vs Mahabir Mahton and Another and Musammat Sakli Kuer and Another

Dawson Miller, C.J.—This is an appeal on bet half of Raghunandan Prasad, the defend ant No. 2 in the suit, from a decision of the Additional District Judge of Patna affirming a decree of the Munsif.

The suit was instituted in May, 1920, by Mahabir Mahton and his son to set aside a deed of sale executed by his deceased brother''s widow, Sakli Kuer, in favour of the appellant Raghunandan. The property which was transferred by the widow, to Raghunandan consisted of about 17 bighas of land which she claimed to have inherited from her husband Bishun Mahton the brother of the plaintiff. The plaintiff, on the other hand, contends that he and his brother Bishun were joint in estate and remained joint up to the time of the latter''s death in the year 1918.

Both the trial Court and the lower Appellate Court have found that the two brothers were joint aid that the widow of Bishun had no interest in the property which she could transfer to the appellant Raghunandan.

From that decision the appellant has preferred a second appeal to this Court. The only question for determination in this appeal is whether the two brothers were-or were not joint in estate at the date of Bishun''s death in 1918. The question is essentially one of fact. Both the Courts below have considered the evidence in the case and have drawn inferences from that evidence and both have arrived at the conclusion that the brothers were joint and, in my opinion, they have not committed any error of law in arriving at that conclusion and their findings are binding upon this Court in second appeal.

The appellant, however, has laid great stress upon the fact that in Paragraph 4 of the plaint there is an allegation which he contends amounts to an admission of a separation of the two brothers. It appears that in the year 1911 a Record of Rights was finally published in which the property owned by the two brothers was entered in the Survey Khatian showing about 22 bighas held by Bishun Mahton and about 10 or 11 bighas held by the plaintiff Mahabir. In 1914 some question arose as to the correctness of the entry in the Record of Rights. Apparently one if mot both of the brothers were contending that the entry did not show that the property was held by them separately in the proportions which would appear from the Record of Rights. It is not very clear whether at that time the deceased brother Bishun acquiesced in the position taken up by the plaintiff, but however that, may be, the matter was referred, to a panchayat and the result of their decision is stated in Paragraph 4 of the plaint in these terms:

Thereafter, owing to the bad temper of defendant No. 1, a dispute arose between plaintiff No, 1 and the said Bishun Chand Mahto deceased and the entire kasht land was divided by the panchayat between plaintiff No. 1 and the said Bishun Chand Mahton under an ekrarnama dated the 17th-Pus 1321. But the said deed never came into force. Although the above measures were adopted, yet only defendant No, 1 (that is the wife of Bishun Chand Mahton) "continued to have a separate mess of her own, whereas plaintiffs and Bishun Chand Mahton plaintiff No. 1''s full brother continned to live jointly and on friendly terms all along.

It is contended that the allegations there made are an admission by the plaintiffs of a separation, that the matter was referred to the panchayat and the panchayat gave a decision on the question and that the parties having expressed an intention to have the property divided, that intention was finally carried out by the decision of the panchayat. A great deal of evidence was given at the trial and it appears from the decision of the learned Munsif that it was the plaintiffs'' case, that what the Panches really settled was that the entry in the Survey Khatian was wrong and that it would not affect the right of either brother in the joint family property and that they merely declared that the shares of each brother had been ascertained, each being entitled, if he should wish to separate, to a moiety. It can hardly be contended that the mere fact that the shares which co-parceners would be entitled to in the event of partition had been ascertained necessarily amounts to a partition of the property. It does not necessarily amount to any intention to separate. In order to effect a partition, although it is not necessary that the property should actually be divided by metes and bounds, still it is necessary that there should be a clear and unequivocal expression of intention on the part of one or more of the co-parceners to separate from the rest of the joint family and to hold his or their share or shares separately. Even the fact that a suit has been brought for a partition, if the suit is subsequently withdrawn is not in itself conclusive evidence that there ever was an effective partition by the party who instituted the suit. This would appear from the decision of their Lordships of the Judicial Committee in the case of AIR 1925 49 (Privy Council) , affirming the decision of the Madras High Court. It seems to me that in each of these cases the question is purely one of fact and of the proper inferences to be drawn from the facts proved in the case, and although Paragraph 4 of the plaint is worded in such a way that it might perhaps at first sight appear to indicate a state of separation still it is qualified by the succeeding words, which show that the deed never came into force and it is further qualified by the evidence given at the trial, which was to the effect that what the Parishes really had to deal with was the question whether the Record of flights rightly recorded the position of the two brothers with regard to the property which belonged to them. The Panches merely decided, if the evidence of: the plaintiffs is accepted and it was accepted by both the trial Court and the lower Appellate Court, that there never really was any express intention to partition the property between them but merely that the brothers really were joint and being only two of them they were each entitled on, partition, if that event should in. the future take place, to a moiety of the property. It seems to me that the lower Courts were perfectly entitled to take into consideration not merely the statement in the plaint, which might be of ambiguous import, but also the evidence given by the parties, in the case, and the lower Appellate Court was the ultimate tribunal for deciding the facts. In these circumstances it seems to me that this appeal on that part of the case must fail.

The only other question which was raised'' was that certain evidence was improperly shut out by the trial Court, and we are asked on that account, to remand the case'' in order that the evidence shut out should be taken and the whole of the questions considered again in the light of that evidence. What happened was that the defendants obtained a certified copy of an entry in the Chaukidari Register of the village in which this property is situated. That was filed on the 13th July, 1921. This document, however, the Court was apparently never asked to admit in evidence. On the 3rd August, 1921, the day before the case had been fixed for final hearing, the defendants applied to the Court to call for the original Chaukidari Register containing the entry, a copy of which had already been filed. They apparently asked that a messenger should be sent to the Collector to ask him to produce the book or send it to Court for the purpose of having it placed on the record. The Munsif said that it was too late to make an application of that sort then, and that he was not going to adjourn the trial for any such purpose. I should point out however, that it would not have been necessary to adjourn the trial, because the defendants merely asked that a messenger should be sent at their own risk and if the register was not produced in time, then, of course, it could not be put in evidence. The Court, however, refused the application and it is contended that thereby valuable evidence was shut out which the Court ought to have admitted. I think that there is some force in this contention as to the duty of the Court to have granted the application. By Order XVI, Rule 1 of the C.P.C. it is provided that. "At any time after the suit is instituted, the parties may obtain, on application to the Court or to such officer as it appoints in this behalf, summonses to persons whose attendance is required either to give evidence or to produce documents." It is true that the Court was not asked for a summons upon any person to produce a document in Court but the Court was asked to do something very like it, that is, send a Court peon with an order to the Collector either to send his servant with the book, or to deliver it over to the Court peon, and I see no reason why even at a late stage the application should not have been complied with. But even assuming that we should be of opinion that the trial Court failed in its duty in granting the application, still it seems to me that that is no reason in the present case why we should remand the case for a further hearing. We have seen the copy, which was filed with the record in this case and all that appears from that copy is that at one time shortly before Bishun Mahton''s death in 1918, both parties, that is to say, Bishun Mahton and the plaintiffs, were entered in the Chaukidari Register in respect to a separate Chaukidari Tax, one of them in respect of one portion of the property, and the other, in respect of the other. But the later Chaukidari receipts which have been put in evidence on behalf of the plaintiffs, show that after Bishun''s death the whole of the Chaukidari Tax was paid by the plaintiffs and not by the widow who claims to have succeeded to Bishun''s portion of the property after his death. There was a great deal of evidence, documentary and otherwise, produced on behalf of the plaintiffs to show that these two brothers were joint right up to the date of Bishun''s death and that the plaintiffs dealt with the property afterwards, that is to say, they paid taxes and carried out the duties that one would expect an owner to do. In these circumstances, therefore, it seems to me that it is a case clearly falling within the provisions of Section 167 of the Indian Evidence Act which provides that "The improper admission or rejection of evidence shall not be ground of itself for a new trial or reversal of any decision in any case, if it shall appear to the Court before which such objection is raised that, independently of the evidence objected to and admitted, there was sufficient evidence to justify the decision, or that, if the rejected evidence had been received, it ought not to have varied the decision." Having regard to the mass of evidence there was on the side of the plaintiffs, I cannot find that the admission of this Chaukidari Register, assuming it to show what appears in the copy, would have made the slightest difference to the decision either of the trial Court or of the District Judge on appeal.

For these reasons I think that this appeal must be dismissed with costs.

Foster, J.

I agree.