Patna High Court
Satyadeo Prasad vs Smt. Chanderjoti Debi And Ors. on 26 February, 1965
Equivalent citations: AIR1966PAT110, AIR 1966 PATNA 110
JUDGMENT Choudhary, J.
1. These two appeals arise out of the same judgment passed by the learned Additional Subordinate Judge of Chapra on the 22nd of January, 1957, in Title suit No. 52 of 1952, They have, therefore, been heard together and this judgment will govern them both.
2. One Jagarnath Ram, with his wife Shyama Devi, was living in a house constructed at Bhatpar Rani; and, as he had no issue through Shyama Devi, he married the plaintiff. According to the case of the plaintiff, he had vast business in rice mills etc. at different places, apart from agricultural lands in villages Kurthia, Shibpur, Pagra and Belwa in the district of Saran. He had also some parti lands in villages Sohanpur and Salempur. Admittedly, this Jagarnath Ram died in January, 1944, leaving his two widows, namely, the plaintiff and the aforesaid Shyama Devi, who, according to the case of the plaintiff, inherited the properties left by him and they were in joint possession thereof.
The case of the plaintiff is that Shyama Devi was an intelligent lady and, after the death of Jagarnath Ram, she was looking after the management of the estate inherited by them, with the help of her brother Hardeo Prasad (defendant No. 2). Her allegation is that she was not given any account of the income and expenditure of the estate of her husband by Shyama Devi and her brother, and subsequently she learnt that Shyama Devi, in collusion with her brother Hardeo Prasad, was executing several documents in respect of the properties belonging to the estate of her husband in favour of Hardeo Prasad and his sons, defendants 3 and 4. The plaintiff, therefore, demanded partition of her half share in the estate of her husband from Shyama Devi and, on her refusal to accede to her request, she filed a suit for partition of her half share in the same and for separate possession thereof.
3. Defendant No. 1 Shyama Devi and defendant No. 3 filed one joint written statement and defendants 2 and 4 filed another joint written statement. The defence taken in both the written statements is substantially identical. They have admitted that Jagarnath had some business and some landed properties as described in Schedule A of their written statements. They have grouped the properties mentioned in the schedule of the plaint in five schedules in their written statements. The properties mentioned in Schedule A of the written statements, as already stated, have been admitted to be that of Jagarnath. They contend that the properties mentioned in Schedule B of the written statements exclusively belonged to Shyama Devi, having been acquired by her with her own personal fund. According to them, the properties described in Schedule C of the written statements were the exclusive properties of defendants 2 and 4. With regard to the properties described in Schedules D and E of the written statements, their case is that they had no concern with the same. But with respect to the properties mentioned in Schedule E of the written statements their contention is that they too originally belonged to Jagarnath, but he had dedicated the same to Vishnu Bhagwan over which Pandit Tiha Ram Tewary, resident of Pagra, was put in possession and occupation.
They denied the existence of cash and movables, as alleged in the plaint. Their further contention is that Jagarnath wanted to adopt Satdeo (defendant No. 3) as his son in his life time, but he died before he could adopt him. He, therefore, instructed defendant No. 1 to adopt Satdeo as his son, and, in obedience to her husband's instructions, she adopted Satdeo as her son. It was further contended that she executed a deed of will on the 1st of April, 1950 in favour of defendant No. 3 in respect of her stridhan properties described in Schedule B of the written statements. They also contended that one of the items of the suit properties, namely, the business of commission agency at Calcutta, ceased to function after the death of Jagarnath and its final accounting had been done before the institution of the suit. They put forward a further plea that, even with respect to the properties described in Schedule A of the written statements, the plaintiff lost her right on account of her having remarried with one Kedarnath of village Bagaha in Sagai form after the marriage of her daughter Savitri.
4. During the pendency of the suit, defendant No. 1 Shyama Devi died. Thereafter, the plaintiff got the plaint amended, and the suit, out of which the present appeals arise, after the amendment of the plaint, is for declaration of her title to and possession over all the properties in suit. The plaintiff also added some more properties in her schedule of the plaint, and she alleged that her husband, Jagarnath, never had a desire to adopt Satdeo as his son and that he never gave any instructions to Shyama Devi to adopt him as her son. She also stated that Shyama Devi never adopted Satdeo and he is not her adopted son or the adopted son of her husband. It was further alleged by the plaintiff by the amendment of the plaint that Jagarnath acquired several properties in the benami name of Shyama Devi the consideration of which was paid not by Shyama Devi but by Jagarnath himself. It was also alleged that Shyama Devi had no means to pay the consideration and had no source of income either from her parents or from her husband. It was further alleged that, after the death of Jagarnath, some properties were acquired in the name of Shyama Devi with the money which their husband had left and which had been inherited by both of his widows. She denied to have ever remarried with anyone in Sagai form.
5. The learned Additional Subordinate Judge held:
(i) that the plaintiff never remarried in Sagai form with Kedarnath of Bagaha;
(ii) that Jagarnath never instructed Shyama Devi to take Saldeo in adoption and that the story of Satdeo having been adopted by Shyama Devi, in pursuance of the instructions given to her by her husband, was not proved;
(iii) that the properties acquired in the name of Shyama Devi were the properties of Jagarnath who acquired the name of her benami name; and
(iv) that some of the properties mentioned in the schedule of the plaint were not in existence and some of them belonged to defendant No. 2.
He accordingly, decreed the suit in part with proportionate costs.
6. Against the decree of the learned Additional Subordinate Judge, defendant No. 3, the alleged adopted son, has filed First Appeal No. 90 of 1957, and defendants 2 and 4 have filed First Appeal No. 139 of 1957. During the pendency of the appeals, defendant No. 2 also died and his heirs were substituted in his place.
7. One of the main grounds that was taken by the defendants for non suiting the plaintiff was that, after the death of her husband Jagarnath, she remarried in sagai form, and it was contended that, even if the properties belonged to Jagarnath, she lost her right of inheritance to the same and, therefore, she was not entitled to get a decree for possession with respect to any land of her deceased husband Jagarnath. The learned Additional Subordinate Judge has, as already observed, after considering the evidence adduced on behalf of both the parties, come to the conclusion that the plaintiff did not remarry in sagai form after the death of her husband. The correctness of this finding of the learned Additional Subordinate Judge has not been challenged by learned counsel for the appellants. It must, therefore, be held that the plaintiff is entitled to get a decree in her favour with respect to the properties which belonged to Jagarnath at the time of his death.
8. Another point taken by the defendants against the case of the plaintiff is that, before his death, Jagarnath instructed his senior wife, defendant No. 1 (since deceased), to take a son in adoption, and, according to that instruction, she adopted defendant No. 3 Satdeo, the son of her brother (defendant No. 2), as her son. The learned Additional Subordinate Judge has found against the defendants on this point and has held that Jagarnath did not give any such instruction to defendant No. 1 to adopt a son, nor was defendant No. 3 ever adopted by her. Counsel for the appellants have seriously challenged the above finding of the learned Additional Subordinate Judge. It has, therefore, to be seen if the finding of the learned Additional Subordinate Judge is correct on this point.
9. The case of the defendants is that defendant No. 3 was adopted by defendant No. 1 at Banaras near Assi Ghat and a photograph was taken at the time of the performance of the adoption ceremony. Their further case is that, after the adoption was completed at Banaras, the party came with the adopted son to Deoria where a deed of adoption (Ext. A) was executed and registered on the 28th of January, 1948. It is also their case that, on the 1st of April, 1950, defendant No. 1 executed a will (Ext. F) bequeathing all her properties to the said adopted son.
10. The deed of adoption (Ext. A) recites that Jagarnath, at the time of his death, instructed defendant No. 1 that, after thinking over the matter for some time, he had decided that, for the sake of pinda pani and well being in the next world and the fruitfulness of his property, he should adopt a son; but as he fell ill in the meantime and the disease proved serious, he became anxious and he said to her that, if fortunately he would survive, he would fulfil the work, but if he would die, she should adopt, according to the rites, one son of Hardeo Sah, son of Babu Mahadeo Sah, deceased, who was his partner in his business and was affectionate to him, so that he and his ancestors might get salvation. As for some time she remained sorrowful due to the death of her husband, defendant No. 1 could not make the adoption earlier and after some time, in consultation with Hardeo, the natural father of Satdeo (defendant No. 3), she, after observing the requisite ritual performances, took him in adoption at Banaras. It further recites that, after the completion of the ceremony in accordance with the law in force, it was considered advisable to reduce in writing the act of adoption and get the same registered. Accordingly, she executed the deed of adoption. In this document, the exact date of adoption is not given and the age of defendant No. 3 at the time of adoption is given to be 8 years. It has been contended on behalf of the plaintiff-respondent that this deed of adoption is a fake document and was purposely brought into existence on the 28th of January, 1948 to grab the properties inherited by her from her husband.
In the will (Ext. F) that defendant No. 1 executed on the 1st of April, 1950 also identical recitals were made with respect to the instruction given to her by her husband to take a son in adoption and the act of defendant No. 3 being taken in adoption by her. In this document also the date of adoption is not given. In their written statements, however, it has been stated that the adoption was made on the 26th of January, 1948. A document (Ext. B), consisting of a few loose sheets of paper stitched together, has been filed to show the expenses incurred at the adoption ceremony. A photograph (Ext. N) has also been brought on the record to show the performance of the adoption ceremony. Oral evidence has been adduced on behalf of the appellants in support of the adoption of Satdeo (defendant No. 3) by Shyama Devi (defendant No. 1), and that consists of the testimonies of D. W. 1, Niranjan Ram, D. W. 2 Bishwanath Rai, D. W. 3 Sitaram Lal, D.W. 6 Neur Prasad, D. W. 8 Parsuram Pandey, D. W. 9 Ramchandra Sah, D. W. 11 Chani Hajam, D. W. 14 Balkishore Missir, D. W. 15 Ram Chandra Pandey, D. W. 19 Lal Mohammad, D. W. 21 Ramchandra Prasad, D. W. 22 Baijnath Sahu, D. W. 23 Ram Bharosa Prasad, D. W. 24 Anirudh Singh, D. W. 25 Parmanand Pandey, D. W. 26 Budhu Ram, D. W. 27 Utim Rai, D. W. 30 Sita Ram, D. W. 31 Satyadeo Prasad, D. W. 34 Hardeo Prasad and D. W. 37 Jai Singh. Out of these witnesses, D. Ws. 2, 6, 25, 26, 31 and 34 have spoken also about the instruction being given by Jagarnath Ram to Shyama Devi (defendant No. 1) for taking a son in adoption.
11-16. (After discussing the evidence their Lordships went on to hold:)
17. No other evidence, either oral or documentary, has been adduced to prove the instruction for adoption. The evidence given, as discussed above, being unreliable, it must be held that the appellants have failed to prove that Jagarnath Ram gave any instruction to his wife, Shyama Devi, to adopt Satdeo as her son, and the finding of the learned Subordinate Judge on this point is affirmed.
18. The case put forward on behalf of the defendants about the adoption is that, about four years after the alleged instruction was given by Jagarnath Ram to Shyama Devi for adopting Satdeo, she adopted him at Banaras after performing the requisite rites and ceremonies, and, after the adoption, the parties came from Banaras to Deoria where a registered deed of adoption was executed by her. The story of adoption, as stated above, has been sought to be supported by the various witnesses, as already mentioned above. (After discussing the evidence, till para 22, their Lordships went on to hold).
23. There are certain inherent improbabilities in the case of the defendants about adoption. The age of the boy at the time of adoption ranges between 8 to 17 years, from the documentary and oral evidence adduced on their behalf. Though the instruction for adoption is alleged to have been given some time in January, 1944, the actual adoption was postponed till 1948, and the only explanation for the delay in taking Satdeo in adoption is that Shyama Devi had no time to make the adoption. A partnership document (Ext. M-1) was executed in 1944 in which the interests of all the possible claimants, including the plaintiff and Shyama Devi, were mentioned with respect to the different items of properties belonging to Jagarnath Ram. There is no mention in that document that Shyama Devi had been instructed to take a son in adoption and that different arrangements were to be made with respect to the inheritance of Jagarnath after the adoption. Thus, it appears that till then there was no idea of any adoption in the mind of anyone. The names of the persons who had been taken to witness the adoption at Banaras were not mentioned either in the adoption deed or in the written statements filed by the defendants. All close relations were excluded from being invited to attend the adoption ceremony. AIR these circumstances considered in the light of the evidence discussed above clearly show that the story of adoption is a myth and Satdeo was never taken in adoption by Shyama Devi nor did she get any instruction from her husband to take a son in adoption. The finding of the learned Additional Subordinate Judge in this respect is, therefore, affirmed.
24. Then comes the question as to the ownership of the suit properties. As already stated, the properties mentioned in Schedule A of the written statements were admitted by the defendants, in their written statements, to have been of Jagarnath Ram and the claim of the plaintiff with respect to the same was admitted, and a decree in favour of the plaintiff was passed with respect to those properties on admission of the defendants. The claims of the plaintiff with respect to plot No. 177 of khata No. 73 and plot No. 161 of khata No. 100, which, along with some other plots, were included in the plaint by way of amendment, was also admitted by the defendants, and a decree for the same was passed in her favour. The defendants did not lay any claim over the properties mentioned in Schedule D of their written statements, and, on the evidence adduced on behalf of the plaintiff, a decree for the same was passed in her favour, and this portion of the decree has not been challenged by the appellants in these two appeals. The properties mentioned in Schedule E of the written statements were admitted in the written statements to have originally belonged to Jagarnath Ram, but it was alleged that the same were dedicated to Vishnu Bhagwan and were in possession of one Tiha Ram Tewari.
The learned Additional Subordinate Judge did not accept the case of dedication to those properties in favour of the plaintiff. The appellants have not challenged the finding of the court below on this point also. The properties mentioned in Schedule C of the written statements were claimed by defendants 2 and 4 as. being their exclusive properties. The learned Additional Subordinate Judge accepted the case of these defendants with respect to two items of the said schedule, namely, (i) the machine for grinding flour etc., grain and all other goods lying in the small house standing on plot No. 52/1 and (ii) Gola and Parti land in mauza Salempur-Ichouna, district Deoria, and the suit of the plaintiff was dismissed with respect to these two items. The plaintiff has not filed any cross-appeal or cross objection with respect to these two items. The result, therefore, is that the finding of the learned Additional Subordinate Judge with respect to the properties mentioned in Schedules A, D, E, Plot Nos. 177 and 161, and the above two items of Schedule C remains unchallenged and is affirmed.
25. The real dispute between the plaintiff and the appellant of First Appeal No. 90 of 1957 rests with respect to properties mentioned in Schedule B of his written statement and certain movable properties for which a decree has been passed in favour of the plaintiff. So far as the appellants of First Appeal No. 139 of 1957 are concerned, the dispute between the parties is only with respect to certain business articles for which also a decree has been passed in favour of the plaintiff. We have, therefore, to examine in these appeals the propriety of the claims of the appellants made with respect to the properties mentioned above.
26. The case of the plaintiff, which has been accepted by the learned Additional Subordinate Judge, is that all these properties were acquired by her husband, Jagarnath Ram, and, on his death, she, along with Shyama Devi (defendant No. 1), inherited the same and, on the death of Shyama Devi, she became entitled to all these properties in their entirety. The case of the defendants is that these properties were acquired by Shyama Devi herself out of her money and the same were her Stridhan properties to which the plaintiff could have no claim. These properties appear to have been acquired in the name of Shyama Devi, and the case of the plaintiff is that she was only the benamidar of Jagarnath Ram. It has, therefore, to be decided whether Jagarnath Ram acquired them in the benami name of his wife, Shyama Devi, or Shyama Devi herself acquired the same from her own money. Before, however, we proceed to examine the oral and documentary evidence on the point referred to above, it may, perhaps, be more fruitful to deal with the contention of the learned counsel for the appellants about the admissibility of two documents, namely, Exts. 6 and 6/a which have great bearing on the question at issue.
27. It appears that Mahadeo Sah, father of Shyama Devi, had two wives. By his first wife, he had three sons, (i) Sukhdeo, (ii) Hardeo and (iii) Bhagwat, and one daughter, Shyama Devi. By his second wife, he had only one son, Ramnarain. It is in evidence that Mahadeo took a second wife after the dealh of his first wife. A reference may be made in this connection to the evidence of D. W. 36 Tiha Ram Tewari, who has stated that Mahadeo's second marriage was performed after the death of his first wife. In the year 1940, Bhagwat, one of the sons of Mahadeo, filed a partition suit against the other members of his family with respect to the joint family properties, being partition suit No. 62 of 1940, in which Hardeo was defendant No. 1, Sukhdeo was defendant No. 2, Mahadeo was defendant No. 13 and Ramnarain was defendant No. 15. Jagarnath Ram was also made defendant No. 16 in that suit, because certain properties, which, according to Jagarnath Ram, belonged to him were claimed to be part of the joint family properties under partition.
In that suit, Hardeo filed a written statement (Ext. 6) and Jagarnath also filed a separate written statement (Ext. 6/a). These two written statements have been brought on the record on behalf of the plaintiff to prove her case of Shyama Devi being a benamidar of Jagarnath Ram, and the learned Subordinate Judge has placed reliance on them to hold in favour of the plaintiff. Learned Counsel for the two sets of appellants have submitted that these two documents are not admissible in evidence. In support of this contention, they have relied on two unreported decisions of this court, namely, (i) Janki Singh v. Mst. Bhagwano Kuar, First Appeals Nos. 30 and 40 of 1953, disposed of on the 31st of July, 1959 (Pat) and (ii) Ram Brichh Ram v. Ganesh Rai, First Appeal No. 188 of 1958, disposed of on the 29th March, 1962 (Pat), and on a decision of the Bombay High Court in Ramabai Shriniwas v. Government of Bombay, AIR 1941 Bom 144.
28. Before I deal with the above cases, I would like to reproduce the relevant statements made in Exts. 6 and 6/a. As already stated, Bhagwat, a brother of Hardeo (defendant No. 2), filed a partition suit against Hardeo and his other co-sharers, and, apart from the properties described in Schedule 1 as being the ancestral properties and Schedule 2 as being the self-acquired properties of the plaintiff and defendants 1 to 12 of that suit, he claimed partition of properties described in Schedules 3 and 4 of that plaint. By these two written statements, Jagarnath Ram, who was defendant No. 16 in that suit, and Hardeo Prasad, who was defendant No. 1 therein, challenged the claim of the plaintiff with respect to the properties described in Schedules 3 and 4. Paragraphs 10 to 17 of the written statement filed by Jagarnath Ram (Ext. 6/a) are as follows:
"10. That the statement contained in para 8 of the plaint is correct so far that this defendant is the husband of the sister of the plaintiff and defendants 1 and 2. It wag on account of this and also on account of his unemployment that this defendant appointed plaintiff in 1980 Sambat at his place of business at Dinajpur which is his exclusive Kirana shop since long time. Defendant No. 1 subsequently served this defendant from 1983 Sambat but he became partner of this defendant in a Kirana shop at Sitabgunj in 1985. Defendant No. 2 also later on came and entered into the service of this defendant and defendant No. 1 as a Munib in the year 1985 and remained so till Bhado 1996 Sambat at Sitabganj when he was removed for bad faith. Defendant No. 2 which he was in service started his own business at Sitabgunj in the name of his son Ramanand, defendant No. 5, and in connection of his own business defendant No. 2 also took settlement of some land and has built a house thereon at Sitabgunj.
11. That the plaintiff was for some time a servant of this defendant in Dinajpur shop. He did not prove to be honest in service and therefore his services were terminated. After some time, at the request of the plaintiff and defendant No. 1, this defendant took pity on the condition of the plaintiff and again kept him in service without pay for mere board and cloth at Sitabgunj and Bhatpar Kirana shops for some years and afterwards was appointed servant under defendant Nos. 1 and 16 in their grain and Kirana shops at Bhatpar from 1992 Sambat to 1993. In 1994 the plaintiff was transferred to Saidigri alias Karauni shop in the district of Saran till he was turned out in Aghan 1997 Sambat. While the plaintiff was at Karauni he was also put in charge of the construction work of the house of defendant No. 1.
12. That when this defendant became confident of business instinct in defendant No. 1, he made up his mind to extend his business and entered into an understanding to make defendant No. 1 a partner in future business. Accordingly we agreed to open a Kirana shop at Sitabgunj in which defendant No. 1 would be sharer to the extent of half and this defendant would be sharer of half.
13. That from the Income of the aforesaid shop at Dinajpur, this defendant and defendant No. 1 took settlement of land at Sitabgunj alias Bachagunj under the name and style of Jagarnath Ram Hardeo Prasad (defendants Nos. 1 and 16) in the year 1984 Sambat and built a house thereon and defendant No. 1 met half the cost of construction. This is the exclusive trade business of this defendant and that of defendant No. 1. The list of articles given in Schedule 3, serial No. 1 is wrong.
14. That the property mentioned in Schedule 3 and known as Jagarnath Rice Mill Sitabgunj has been purchased by this defendant in the name of his wife. The Mill, house, machinery and the land on which the Mill stands exclusively belongs to this defendant. Defendant No. 1 is a non-capitalist partner of the Rice Mill. Defendant No. 1 has got only -/5/3 share in the profit and loss of the business and outturn of the Mill on account of his management and supervision. The entire capital invested in the Mill is that of this defendant exclusively,
15. That Jagarnath Ram Hardeo Prasad Rice Mill at Sitabgunj mentioned in Schedule No. 4 of the plaint was started by defendant No. 1, defendant No. 16 and one Sukai Prasad, with the fund supplied by each of them. But later on Sukai Prasad dropped out, and defendant No. 1 and this defendant No. 16 only remained partners of the said Rice Mill and are sharers to the extent of half and half.
16. That the business at Bhatpar came later on. The house and land in which the business is conducted there belongs to this defendant No. 16 and is in the name of the wife of this defendant No. 16. But the business is joint with defendant No. 1 and this defendant No. 16, and the share of each is half and half. The capital invested therein that of this defendant and the defendant No. 1 has still to pay his own quota therein. This firm is known under the name and style of Jagarnath Rice Mill. The articles mentioned in the Schedule 4, serial No. 4 of the plaint are incorrect.
17. That in 1995 Sambat, the business at Saidigri was started in the premises and house belonging to defendant No. 1. The capital of the business employed therein has been supplied from the Firm Jagarnath Rice Mill at Bhatpar. This business is known under the name and style of Jagarnath Ram Hardeo Prasad and in this business the defendant No. 1 and this defendant No. 16 only have half share each. The said shop which is managed by defendant No. 2 as servant from Aghan Badi 8, 1997 Sambat, there are grains including rice and paddy worth Rs. 119-9-3, Kirana 2376-9-6, cash 207-4-6, iron balance worth Rs. 31-9-3 besides dues from debtors amounting to Rs. 1958-9-6, total Rs. 5683-10-6."
Paragraphs 15 to 20 of the written statement filed by Hardeo (Ext. 6) are as under:
"15. That plaintiff was servant of defendant No. 16 at Dinajpur, in his Kirana shop from 1980. This defendant was also servant of defendant No. 16 from 1983 Sambat and became partner of defendant No. 16 in Kirana business at Sitabganj in 1985 Sambat. Defendant No. 2 also served this defendant and defendant No. 16 as Munib in 1985 and continued as such till 1996 Sambat at Sitabganj Kirana shop when he was removed for his bad faith. Defendant No. 2 started grain and jute business in 1994 Sambat at Sitabganj in the name of his son Ramanand, defendant No. 5 which is going on as yet. Defendant No. 2 took settlement of some land at Sitabganj and has built a shop house thereon in which the said business is being carried on. Plaintiff was servant of this defendant and defendant No. 16 in their grain and Kirana shop at Bhatpar from 1992 to 1993. Plaintiff was then sent to Saidigree alias Karauni in 1994 to look after the construction wall of the house of this defendant and also to look after business there which was started in 1995 Sambat by this defendant and defendant No. 16. The plaintiff served till Aghan 1997 when he was turned out on account of the fact that a sum of Rs. 1700-6-6 remained unaccounted for under his charge. When defendant No. 2 was appointed by this defendant in Aghan Badi 8, 1997 Sambat to look after business at Saidigree in place of plaintiff and the defendant No. 2 wrote a sarkhat showing that goods placed in his charge at Saidigree shop is worth Rs. 5683-10-0 and all Bahis are with him.
16. That the Rice Mill mentioned in serial No. 1, Schedule No. 3 of the plaint and all properties in the shape of grains, jutes etc. belong exclusively to defendant No. 16. The mill house was built by defendant No. 16 after purchasing land in the name of his wife. This defendant is a non-capitalist partner to the extent of 0-5-3 pies in the profits and loss on account of his management and supervision. The entire capital has been invested by defendant No. 16 only. Plaintiff or other defendants have no concern with this business. The list of articles and the amount of cash as mentioned in serial No. 1 Schedule 3 are highly exaggerated and false. This defendant is a non-capitalist partner since 1988 Sambat.
17. That the land on which Sitabganj Kirana shop stands was taken by this defendant and defendant No. 16 and they built a shop house in 1984 and the business was started in 1985 Sambat. The share of this defendant is 8 as and that of defendant No. 16 is 8 as. The plaintiff and other defendants have no concern or share in this business. The claim for partition is nut tenable. The list of properties and cash given in serial No. 1 Schedule 4 of the plaint is wrong. The shop house is not worth 4 thousand rupees but is worth 1600.
18. That the Rice Mill at Sheoganj was started by this defendant, defendant No. 16 and Sukai Prasad jointly in 1991 Sambat but Sukai Prasad dropped out at the end of 1992 Sambat and since then this defendant and defendant No. 16 are partners of half and half. Plaintiff and other defendants have no concern. The list of properties given in serial No. 2 Schedule 4 is wrong. The valuation as staled in the plaint is highly exaggerated.
19. That the list of properties given in serial No. 3, Schedule 4, is wrong. The Bahis of Saidegree shop is with defendant No. 2 and it is not at Bhatpar.
20. That the Bhalpar business was started in 1990 Sambat. The house and the land on which the business is carried on belongs to defendant No. 16 which he purchased in the name of his wife. It is business in which this defendant and defendant No. 16 are partners of half and half. The capital invested is that of defendant No. 16 and this defendant has still to pay his quota therein. This shop is known by the name of Jagarnath Rice Mill. The articles mentioned in serial No. 4, Schedule 4 are incorrect. The plaintiff or other defendants except this defendant and defendant No. 16 have no share in the business."
The above statements show that Jagarnath had interest in the properties described in Schedules 3 and 4 of the plaint (Ext. 4) and that Shyama Devi was his benamidar. It also appears from the above statements that defendant No. 1 and his brothers were working as servants of Jagarnath Ram. A detailed discussion of these statements will be made later on at the proper place. For the present, it is enough to say that with respect to one of the properties in suit, namely, the land and the pucca house standing on the same, in which the grain business was being carried on, was acquired by Jagarnath Ram in the benami name of his wife, Shyama Devi. The plaintiff relies on these two written statements in support of her case of Shyama Devi being a benamidar of Jagarnath Ram. It has to be seen whether they, as contended by the learned counsel for the appellants, were inadmissible in evidence. The cases cited in support of this contention, in my opinion, are of no assistance to the appellants; rather, the decisions, read as a whole, lend support to the case of the plaintiff. In the unreported decision of this court in First Appeals Nos. 30 and 40 of 1953, which were disposed of by one judgment on the 31st of July, 1959 (Pat), the question to be determined was whether Ramyad Singh, the husband of the plaintiff Bhagwano Kuer, died in 1939, as alleged by her, or in 1936, before the passing of the Hindu Women's Rights to Properly Act, as alleged by the defendant-appellants Janki Singh, one of the defendants of that suit, had tiled Title suit No. 3 of 1948 for partition between the members of his family, and in paragraph 2 of that plaint it was stated that, as the said Ramyad Singh died in 1939, the defendant No. 8 (Bhagwano Kuer) also became entitled to life interest in the properties of the joint family and that defendant No. 8 surrendered her life estate to the plaintiffs and defendants 1 to 7 and she gave up her possession of the joint family properties. The above statement was relied upon on behalf of the plaintiff, Bhagwano Kuer, as an admission by Janki Singh about the year of death of Ramyad Singh.
It appears that the plaint in Title Suit No. 3 of 1948 was filed on the 17th of January, 1948, and only two days thereafter the entire suit arising out of that plaint was compromised under a petition of compromise and therein, though it was conceded that the widow had the right of inheritance as given to her under the Hindu Women's Rights to Property Act, 1937, that right was said to have been subsequently surrendered by her. The question, therefore, that arose for consideration, as appears from the judgment of this court, was that, even conceding that the statement made in paragraph 2 of the aforesaid plaint amounted to an admission on the part of the plaintiffs of that suit, could it be said that in this case also it was available independent of the context in which that statement was made, namely, that, though she had acquired right, title and interest in the properties on the death of Ramyad Singh in the year 1939 as a result of the passing of the Hindu Women's Rights to Property Act, 1937, yet she had surrendered it thereafter? It was observed that it was a well established rule of law that an admission made by a person must be taken as a whole, and not in piecemeal; and, accordingly, it was held that the respondents could not rely upon the above statement independent of what was stated in the other paragraphs of the plaint.
The plaintiff in that suit, however, was not prepared to accept the other statements made in the plaint. It was, therefore, held that the statement referred to above could not be used as an admission in that case in favour of the respondents. Moreover, Janki Singh had given an explanation to the effect that this statement in the plaint had not been made by him at all but by the lawyer without his knowledge and this explanation was accepted by the court. In that view of the matter, this court did not attach any value to the above admission, This court, however, did not decide that the admission was not admissible at all, and the gist of the decision is that such an admission, considered in the context in which it was made, was not binding on Janki Singh. That case, therefore, is of no assistance to the appellants.
29. In the other unreported decision of this court in First appeal No. 188 of 1958, disposed of on the 29th of March, 1962 (Pat), the question at issue was whether the case put forward by Rambrichh Rai regarding partition by metes and bounds was correct or not. In a previous title suit this Rambrichh Rai and his sons had filed a written statement in which their case was that only the lands mentioned in the schedule of the plaint of that suit were joint and that it had been settled between Rambrichh and his sons, on one side, and Ganesh, Srigovind and other members of their branch, on the other, that the former would get half share and the latter would get the other half share of the entire properties. It was argued that, in view of the admission of Rambrichh and his sons in that written statement, their case of partition by metes and bounds in the present suit should be rejected. Rambrichh had, however, explained this admission by saying that Srigovind had taken his thumb impression on a black piece of paper and got the facts mentioned in that written statement without his knowledge. This explanation, however, was not accepted by the court. It was argued by the learned counsel for the appellant in that case that this admission in the pleading of a previous suit was not at all admissible.
Their Lordships observed that there was nothing in Sections 21 and 31 of the Evidence Act to support this argument and that under Section 21 an admission may be proved against a person who makes it and under Section 31 any admission is not conclusive proof of the matter, but it may operate as estoppel under certain circumstances. Their Lordships further observed that an admission may be explained or shown to be incorrect, but the sections do not make any distinction between an admission in the pleading of a previous action and an admission made otherwise on a previous occasion. The earlier unreported decision of this court was cited before their Lordships, and they observed that the observation made by Ahmed, J. in that case did not show that an admission on the pleading of a previous suit is always inadmissible. This case, therefore, does not hold that an admission in a pleading in a previous action is not at all admissible in law.
30. In Ramabali's case, AIR 1941 Bom 144, it was held that a party is not bound by an admission in his pleading except for the purposes of the suit in which the pleading is delivered. That decision, however, does not show that such an admission is not at all admissible. The question of the admissibility of a document is one thing and the question of the value to be attached to such admission is a different thing. In that case, it was contended that the Government were bound by an admission in their written statement filed in the) original suit of 1913 in which the costs were) incurred and that by that admission Government had acknowledged that the lands had been assigned as reward for services. It was held that the Government may have known much less about the possession in 1913 than they knew then. That means that an admission may be shown to be incorrect or inaccurate for want of knowledge, but that does not mean that it is not admissible in evidence.
31. Section 21 of the Evidence Act states that admissions are relevant and may be proved as against the persons who makes them, or his representative in interest; but they cannot be proved by or on behalf of the person who makes them or by his representative in interest, except in certain cases with which we are not concerned for the present. Section 31 lays down that admissions "are not conclusive proof of the matters admitted, but they may operate as estoppels under the provisions hereinafter contained." On a reading of the two sections together, the law on the point appears to be clear that an admission of a person is admissible in evidence as against him and though, under certain circumstances, it operates as estoppel against him, it is not conclusive proof of the matter admitted and it can be explained away by the maker thereof or the person against whom it is sought to be proved. For example, a person against whom it is sought to be used may prove that it was made without his knowledge or in ignorance of facts admitted, or under such other circumstances; but there is no doubt about its admissibility in evidence against the maker thereof. The above view gains support from a Single Judge decision of this court in Jairam Mahaton v. Lokenath Mahaton, AIR 1930 Pat 405, wherein it was held that, in a title suit the proceedings in a previous title suit between the present defendants and a third person were relevant under Section 19 and the pleadings of the defendants were admissible as admission of the defendants under Section 21 of the Evidence Act.
In S.T. Chendikamba v. K.I. Viswanathamayya, AIR 1939 Mad 446; it was pointed out that what a party himself admits to be true may reasonably be presumed to be so, but the party making the admission may give evidence to rebut this presumption, and unless and until that is satisfactorily done the fact admitted must be taken to be established. It was further pointed out that the same principle will apply to an admission in a signed pleading, and that, so far as Indian Law is concerned, there can be no doubt that under the provisions of the Evidence Act, an admission contained in a plaint or written statement or an affidavit or any sworn deposition given, by a party in a prior litigation will be regarded as an admission in a subsequent action, though it is capable of rebuttal. The statement of Hardeo (defendant No. 2) in his written statement in the previous partition suit (Ext. 6) is, therefore, admissible in evidence, and unless any evidence in rebuttal has been given by him, that will be a very valuable piece of evidence against his contention in the present suit.
Unfortunately, no explanation has been given by him with regard to the statements made in the above written statement, and all that he has said in his evidence is that he did not know the contents of that written statement, as it had been drafted at the instructions of Kamta Prasad. Kamla Prasad, who has been examined as P. W. 24, has, no doubt, admitted in his examination-in-chief that he had also come when Hardeo filed the written statement in that suit. But the stand taken by the defendants in cross-examining this witness is to the effect that the written statement was not written in his (Kamta's) presence. A suggestion had been put to him that the written statement was not written in his presence, and he staled that it is not a fact that the written statements of Hardeo and Jagarnath were not written in this presence. Thus, the explanation offered by Hardeo is not convincing and cannot be accepted. That being so, the admissions made in the above written statement are admissible against him.
32. The written statement filed by Jagarnath (Ext. 6/a) stands on a much stronger footing. Jagarnath died before the institution of the present suit. His above statements, therefore, would be admissible under Section 32(7) of the Evidence Act. Section 32(7) lays down that "Statements, written or verbal, of relevant facts made by a person who is dead, or who cannot be found, or who has become incapable of giving evidence, or whose attendance cannot be procured without an amount of delay or expense which, under the circumstances of the case, appears to the court unreasonable, are themselves relevant facts in the following cases:--......(7) When the statement is contained in any deed, will or other document which relates to any such transaction as is mentioned in Section 13, Clause (a)." Section 13(a) states that where the question is as to the existence of any right or custom, any transaction by which the right or custom in question was created, claimed, modified, recognised, asserted or denied, or which was inconsistent with its existence, is relevant. The question in the instant case is whether Jagarnath Ram was the owner of the pucca house at Bhatpar Rani and the business of the rice mill which was carried on in that house. The other question that arises in this case to be considered is as to whether he was the owner of certain other properties. Those properties were sought to be divided in the previous suit between Mahadeo and his sons, including Hardeo. In that case, by this written statement Jagarnath asserted that the pucca house as well as the business of the rice mill and the other property belonged to him and that his wife, Shyama Devi, was a benamidar for him. It is thus clear that Jagarnath, the husband of the plaintiff, asserted his right in his written statement, and that is relevant under Section 13(a) of the Evidence Act; and, Jagarnath being dead, it is relevant also under Section 32(7) of the Evidence Act. The above written statement is, therefore, legally admissible in evidence. The above view gains support from a Bench decision of this court in Chandra Choor Deo v. Bibhuti Bhushan, AIR 1945 Pat 211.
In that case, in a previous suit, the father of the plaintiff claimed that his family was governed by the Banaras school, and not Mithila School. This was denied by the defendants to that suit, who alleged that the family was governed by the Mithila school. An issue was framed and the court held that the family was governed by the Banaras school. In a subsequent suit, the plaintiff claimed that his family was governed by the Banaras School, and not by the Mithila School. It was held that the allegations in the plains were sufficient to prove the assertion by the plaintiff's father that the family was governed by the Banaras School and the plaint was admissible under Section 13 of the Evidence Act. In Rangaswarai Pillai v. Vaidyalinga Mudaliar, 33 Ind Cas 446: (AIR 1917 Mad 807), a Bench of the Madras High Court held that a statement of a Hindu widow, in answer to a suit for partition brought against her and other members of her husband's family by one of them, as to how she treated a particular piece of property claimed to be partible, was relevant under Section 13 of the Evidence Act and was admissible in evidence. Sub-section (1) of Section 21 of the Evidence Act lays down that an admission may be proved by or on behalf of the person making it, when it is of such a nature that, if the person making it were dead, it would be relevant as between third persons under Section 32. In the present case, the plaintiff bases her case on inheritance from Jagarnath Ram, who had asserted under the previous written statement (Ext. 6/a) his rights over some of the properties under partition in that suit, including the pucca house in question. The plaintiff is, therefore, entitled to prove it in support of her case, and it is admissible in evidence. The objection raised on behalf of the appellants as to the admissibility of these two documents (Exts. 6 and 6/a) is, accordingly, overruled.
33. The onus to prove a transaction to be a benami one is on the person who alleges the same to be benami. The principle is too well established that the apparent state of affairs must be taken to be the real state of affairs unless the contrary is proved. In this case, therefore, the onus was apparently on the plaintiff to prove that Shyama Devi was a benamidar for Jagarnath Ram. It is also too well known that the system of acquiring and holding property and even of carrying on business in names other than those of the real owners, usually called the benami system, is and has been a common practice in India. If any authority is needed, reference may be made to the case of Gur Narayan v. Sheolal Singh, AIR 1918 PC 140. It has also been judicially recognised that, if the purchase is made in the name of wife or sons, the presumption of Hindu Law is in favour of its being a benami purchase and the burden of proof lies on the party in whose name it was purchased to prove that he was solely entitled to the legal and beneficial interest in such purchased estate (vide Gopee Krist Gosain v. Gunga Persaud Gosain, 6 Moo Ind App 53 (PC).
In Mt. Bilas Kunwar v. Desraj Ranjit Singh, AIR 1915 PC 90, it was held that, where a purchase is made in the name of wife, the natural inference is that the purchase is a benami transaction; a dealing common to Hindus and Muhammadans alike. It has been pointed out by the Supreme Court in Shib Kumari Devi v. Jagdish Prasad Singh, 1962 BLJR 314 (SC) that the burden of proof is to begin with on the party pleading that the transaction is benami. The burden, however, does not rest in one place, but shifts to the other side and it increases if the original parties to the transactions are dead. Suspicious circumstances are not sufficient to prove the benami character of a transaction; but if the evidence on the other side does not exist, even slight but forceful evidence on the part of the person alleging the benami nature of the transaction may be sufficient. The evidence in this case, therefore, has to be examined in the light of the above decisions to find out whether the benami character of the transactions has been proved or not.
34. As has been pointed out by the Supreme Court in the case of Shib Kumari Devi, 1962 BLJR 314, a variety of circumstances are relevant in examining the benami character of a transaction like the source of consideration for acquisition of the property, the possession of the property, the conduct of the parties or their predecessors in relation to it, the custody of the title deeds, and so on. The most important fact, however, is the source of money, but the other facts also play varying parts. The tests to be applied to find out a benami transaction are fully established by judicial decisions to be--(i) Motive for the benami transaction, (ii) relationship between the parties, (iii) possession of the properly in question. (iv) custody of the title deeds, and (v) which is most important, the payment of the consideration money. Motive for the benami transaction in the present case has been found by the learned Subordinate Judge to be non-existent. It is too well known that benami transactions are entered into in India without any motive or reason. In Sahdeo Karan Singh v. Usman Alikhan, AIR 1939 Pat 462, a Bench of this court has held that experience has shown that frequently benami transactions are entered into in this country for no apparent reason. Therefore, absence of motive cannot be taken to be a circumstance against the benami character of a transaction.
The facts and circumstances of the present case, however, do give an indication of a motive for benami transaction. Budhu Ram (D. W. 20) claims to be the elder brother of Jagarnath Ram, He also claims to have performed the Kanyadan ceremony of Savitri, daughter of the plaintiff. He has also stated in his cross examination that he remained joint with Jagarnath till his death. Jagarnath, therefore, may have a motive to acquire properties in the benami name of his wife, Shyama Devi, so that his brother, who lived joint with him, may not claim any share therein. Moreover, from the written statements (Exts. 6 and 6/a), it appears that Jaganath Ram had vast business at several places before he started the business in question at Bhatpar Rani, lie may have, therefore, a motive to have this business and the house in which the business was being carried on in the benami name of his wife, Shyama Devi, to escape the liability of income-lax. In my opinion, therefore, it cannot be said that there was no motive at all for Jagarnath Ram for entering into benami transaction in the name of his wife.
35. Relationship is undoubtedly there, Jagarnath being the husband of Shyama Devi. Due to the above relationship, Jagarnath must be said to have full confidence in his wife to choose her as his benamidar. Custody of title deeds in this case is not very material. After the death of Jagarnath, Shyama Devi got possession over all the properties left by Jagarnath and the documents relating thereto. The plaintiff was allowed to live there for a very short time, that is, till the marriage of her daughter, Savitri, and thereafter she had to leave the house and so stay with her daughter in her sasural. The documents, therefore, must have been in possession of Shyama Devi, and there is nothing strange if they were produced in court by her. Possession also, in this case, is not of great importance. Admittedly, as appears from the written statements in the present case, Shyama Devi was a purdanashin lady. No evidence has been adduced in this case to show that Shyama Devi had her own servants to look after the cultivation of agricultural lands or the business prior to the death of Jagarnath. The cultivation of the agricultural lands and the affairs of the business, therefore, must have been carried on by the servants of Jagarnath.
Whether Jagarnath Ram was the owner of the properties in question or Shyama Devi was the owner thereof, the hands of Jagarnath must have been visible in looking after the business and the cultivation of the agricultural lands through his servants. After the death of Jagarnath, undoubtedly Shyama Devi must have been in possession. It is, therefore, that I have said that the question of possession is not of any importance in this case. Moreover, I am not inclined to accept the case of the defendants that in the life time of Jagarnath, Shyama Devi had her separate establishments to look after the cultivation of agricultural lands and the affairs of the business. D. W. 36 Tiha Ram has no doubt stated that he had cultivated some lands about seven or eight years back, that is, about 1948-49. That evidence, however, is of no assistance to the defendants, because on the death of Jagarnath Ram, Shyama Devi must have been in possession of the properties.
36. The real and the more important question to he decided in the present case is as to the source of money from which the properties were acquired. As appears from the two written statements (Exts. 6 and 6/a), prior to 1933 Jagarnath was possessed of substantial means in the shape of various businesses in Shibganj, Sitabganj, Phulghat and other places. According to the defendants, he was originally a resident of village Basatpur in the district of Deoria. There is, however, no evidence worth the name to show that he had any house or land in village Basatpur and as to what became of the same if he had any such land or house. In the Patta (Ext. J) and the Ekrarnama (Ext. K), through which the land over which the pucca house is standing was taken in settlement, Shyama Devi is described to be a resident of Phulghat in the town of Dinajpur. It appears that Jagarnath, having no land, property or business in his native place, thought of settling somewhere there and Bhatpar Rani which was a business centre was chosen by him where he could build a house.
He had, therefore, to acquire some lands for the purpose of constructing a house and the lands were actually acquired in the name of Shyama Devi, measuring about 0.21 acre, by virtue of two pattas, namely, Exts. J and BB. The consideration that had to be paid for acquiring these lands is, however, not much; and if that factor alone had to be considered, there could be no question of the means of Shyama Devi or of Jagarnath. The land worth thirty thousands, as slated by D. W. 3, was constructed thereon. Soon thereafter, a business worth about ten to fifteen thousand rupees, named as Jagarnath Rice Mill, was started in that house. Thus, within a period of about one year a sum of rupees fifty thousands had to be spent over the acquisition of the land, construction of the pucca house and starting of the business. It has to be seen as to why this huge amount of money was advanced. According to the case of the defendants, it was Shyama Devi who spent the entire amount referred to above. A relevant question, therefore, arises whether Shyama Devi had any means to advance such a huge amount of money.
37. The source of income of Shyama Devi, according to the written statements of the defendants, was the money given to her by her parents and by her husband. On behalf of the plaintiff-respondent, it is contended that the parents of Shyama Devi were themselves poor and had no capacity to advance any money to her. On behalf of the appellants, however, it is contended that they were rich and she received substantial amount of money from them. On behalf of the plaintiff, P. Ws. 9, 14, 16 and 24 have spoken about the parents of Shyama Devi being poor and of tender means. The learned Subordinate Judge has recorded in the depositions of P. Ws. 9 and 16 about their demeanour as giving an indication of not making straightforward answers. On behalf of the defendants. D. Ws. 3, 4, 6, 7, 14, 25, 26 and 34 have spoken that the parents of Shyama Devi were rich. The witnesses of either side have not spoken of any materials from which they could say whether the parents of Shyama Devi were rich or poor and the evidence in this respect is based only on the impression of the witnesses about their means. There are, however, certain circumstances which give an impression that the parents of Shyama Devi were of very tender means and could not be in a position to advance any money to her. It has already been stated that Bhagwat Prasad, one of the sons of Mahadeo Shah, the father of Shyama Devi, filed a partition suit. No. 62 of 1940, the plaint of which is Ext. 4 in this case against Hardeo (defendant No. 2) and other members of his family, including Mahadeo Shah himself.
The only property which was sought to be partitioned as being the ancestral properly, in which Mahadeo had one-fifth share, consisted of about 4 bighas, 18 kathas and 15 dhurs of land and a brick-built two-storyed house, together with land and courtyard and verandah, as mentioned in schedule No. 1 of that plaint. The other properties in the plaint were alleged to be self-acquired properties of the four sons of Mahadeo, and not of Mahadeo himself. According to the evidence adduced on behalf of the plaintiff, Mahadeo was serving as a Munib at Raxaul. Suggestions were made lathe several witnesses for the defendants about Mahadeo serving at Raxaul, but they denied to have any knowledge of the same. The plaint (Ext. 4), however, recites that defendant No. 13, namely, Mahadeo, separated from his sons and began to live at Raxaul. From the written statements (Exts. 6 and 6/a), it appears that all the sons of Mahadeo were working as Munibs or as weighmen of Jagarnath Ram. It also appears that Bhagwat, one of the sons of Mahadeo, had to serve Jagarnath for some lime only on food. Such things would not have prevailed if Mahadeo had been a man of substantial means. The share of Mahadeo in the family properly comes to a little less than one bigha of land. Thus, it is clear that Mahadeo must not have been a man of substantial means. The evidence of the plaintiff's witnesses who have spoken about the means of Mahadeo and stated that he was a poor man, being supported by the circumstances and the documents referred to above, appears to be preferable to the evidence adduced on behalf of the defendants. I, therefore, agree with the finding of the learned Subordinate Judge that Mahadeo had no means to make any advance to Shyama Devi.
38. Assuming that Mahadeo did give some money to Shyama Devi, the evidence does not show that either Mahadeo or his wife gave any money to her in about the year 1933-34 for spending a sum of rupees fifty thousand within a year in acquiring the land, constructing the pucca house at Bhatpar Rani and starting the business therein. P. Ws. 9, 14, 16 and 24 have given negative evidence that the parents of Shyama Devi did not advance any money to her. On behalf of the defendants, D. Ws. 2, 4, 6, 7, 26, and 34 have spoken of Shyama Devi getting money from her parents. (After discussing the evidence till para 39 their Lordships went on).
It, therefore, cannot be held that Shyama Devi had received such a huge amount from her husband for acquiring the land, constructing the pucca house and starting the business referred to above. It must, therefore, be held that Shyama Devi had no means to make the above acquisition.
40. The first and most important and valuable property in dispute is the land, the pucca house standing thereon and the business of grains carried on in the name of Jagarnath Rice Mill in that building. I have already stated that a sum of about Rs. 50,000 had to foe spent in the course of one year in acquiring the land, constructing the house and starting the business. I have also held that Jagarnath Ram was a man of substantial means before 1933 when the pucca house in question was constructed and the business was started. I have further held that Shyama Devi had no means to advance such huge amount for the above purpose. Both the parties have adduced oral evidence with respect to the above matter. The evidence on behalf of the plaintiff consists of the testimonies of P. Ws. 6, 7, 9, 18, 22, 24 and 27, whereas the evidence on behalf of the defendants consists of the testimonies of D. Ws. 1, 2, 3, 6, 8, 10, 12, 13, 14, 16, 18, 22, 25 and 34. (After discussing the evidence till para 41 their Lordships went on). Moreover as I will presently show, the evidence of the plaintiff's witnesses gels full corroboration from certain documentary evidence. Their evidence is, therefore, preferable to the evidence adduced on behalf of the defendants.
42. In the year 1941, when there was no controversy about this property, Jagarnath Ram asserted and Hardeo admitted, by their written statements (Exts. 6 and 6/a) filed in the Partition suit brought by Bhagwat Prasad, that Shyama Devi was a benamidar for Jagarnath Ram with respect to the said property. In paragraph 16 of the written statement filed by Jagarnath Ram (Ext. 6/a), it is staled as follows:
"16. That the business at Bhatpar came later on. The house and land in which the business is conducted there belongs to this defendant No. 16 and is in the name of the wife of this defendant No. 16. Rut the business is joint with defendant No. 1 and this defendant No. 16 and (he share of each is half and half. The Capital invested therein is that of this defendant and the defendant No. 1 has still to pay his own quota therein. This firm is known under the name and style of Jagarnath Rice Mill....."
Similarly, in paragraph 20 of the written statement filed by Hardeo (Ext. 6), it is stated as under:
"20. That the Bhatpar business was started in 1990 Sambat. The house and the land in which the business is carried on belongs to defendant No. 16 which he purchased in the name of his wife."
From the above statements it is abundantly clear that Shyama Devi was a mere name-lender and benamidar for Jagarnath Ram with respect to the two-storeyed pucca house, the business carried on therein and the land on which the house stood.
43. On behalf of the appellants, reliance has been placed on an unregistered deed of partnership, dated the 25th of July, 1941 (Ext. M/1), in paragraph 4 of which the following statements were made by Jagarnath Ram and Hardeo Prasad:
"4. That the business in several kinds of spices etc. and shellac is now being carried on and shall thereafter be carried on at post office and village Bhatpar Rani in the District of Gorakhpore in the United Provinces of Agra and Oudh under the name and style of "Jagarnath Rice Mill" in co-partnership between the parties hereto of the First and Second parts in the share herein below mentioned:
(a) That the properties in land, shop premises, structures, furniture etc. as also the goods, stocks in trade and capital are solely absolutely belonging to, and in the name, "Shama Debi' wife of Jagarnath Ram and the Parties of the first and second Parts have no right, title or interest in the same.
(b) That each of the Parties hereto of the First and Second Parts is now getting and shall respectively get -/8/- (Eight annas) share in the net profit of the said business at Bhatpar Rani and each of them shall in like share pay, bear and contribute all losses and expenses of the said business."
It is submitted on behalf of the appellants that the above statements clearly show that Jagarnath admitted the ownership of Shyama Devi with respect to the two-storeyed house, the business carried therein and the land on which it stood. The learned Subordinate Judge has, however, held that this document is not a genuine document and is a forged one. He based his decision on the comparison of the signature of Jagarnath Ram on this document with his signature on the written statement (Ext. 6/a). No attempt has been made on behalf of the appellants before us to show that the signature on this document is that of Jagarnath Ram and the finding of the learned Subordinate Judge on this point is wrong. Assuming, however, the document to be genuine, in my opinion, it supports the plaintiff's case of benami transaction and is of no assistance to the appellants. According to the above statements, though the properties in land, shop premises, structures, furniture, stocks-in-trade and capital belonged to Shyama Devi, she was never entitled to gel any net profit from the said business and the entire benefit was to go to Jagarnath Ram and Hardeo Prasad in equal shares. It is absurd to think that, if Shyama Devi was the real owner, she would not have any share in the profits arising from the, business and the entire thing would go to Jagarnath and Hardeo. The above statements themselves, therefore, show that Shyama Devi was a benamidar.
44. On behalf of the appellants, reference has been made to another partnership deed entered into between Shyama Devi and the plaintiff, on the one hand, and Hardeo Prasad, on the other. The relevant portion of paragraph 3 of that document (Ext. M) is in the following terms:
"(3) That the business in several kinds of spices etc. and shellac and grain etc. is now being carried on and shall hereinafter be carried on at Bhatpar Rani, district Gorakhpur under the name and style of 'Jagarnath Rice Mill' in co-partnership between Musammat Shyama Devi, widow of Jagarnath Ram, one of the parties hereto of the first and 2nd parts in the shares herein mentioned below.
(a) That the properties in land, shop premises, structures, furniture etc. as also the goods, stock in trade and capital are solely and absolutely belonging to and in the name of Musammat Shyama Devi, widow of Jagarnath Ram and Musammat Chanderjoti Devi, another co-widow of Jagarnath Ram and Hardeo Prasad have no right, title and interest in the same.
(b) That Musammat Shyama Devi, only one widow of Jagarnath Ram and the 2nd party i.e. Hardeo Prasad shall respectively get -/8/- (eight annas) share in the net profits of the said business at Bhatpar Rani and Musammat Shyama Devi and Hardeo Prasad shall in like share pay, bear and contribute all losses and expenses of the said business."
It is contended that by that document the plaintiff admitted the ownership of Shyama Devi with respect to the land, the house standing thereon and the business carried therein at Bhatpar Rani, and she cannot now be permitted to say that Shyama Devi was only a benamidar in respect of the same. The learned Subordinate Judge has dealt with this document fully and has come to the conclusion that the plaintiff had no knowledge of the contents of this document and it was executed without giving any opportunity to her to understand the contents thereof. The plaintiff, in her evidence, has stated that Hardeo fraudulently obtained her signature on this deed saying that a Mokhtarnama was to be executed. The circumstances in which this document was executed and registered make her case on this point acceptable. It was admitted in the written statement that the plaintiff ceased to be a purdanasnin lady after her alleged sagai which took place in the year 1949. According to the evidence of Hardeo (D. W. 34), the fair copy of the partnership deed was typed at the civil court at Gorakhpur at 10 a.m. and he filed the typed copy of that deed in the Registration Office before the Peshkar. He has further stated that Shyama Devi and the plaintiff reached the Registration Office at 11 a.m. and both of them, along with this witness, appeared before the Registrar, who asked him whether he was to register the partnership deed and he replied in the affirmative.
It is said that then the Registrar read over the Partnership deed to all of them and thereafter all of them signed the partnership deed. He has made it perfectly clear that they had not signed the partnership deed prior to that. It is absurd to think that the peshkar would, accept the document for registration without the signatures of the executants having been put thereon. It is also absurd to think that the Registrar would himself read over the contents of the document to the executants. Even if it be accepted that the Registrar read over the document to the executants, there is no evidence that the terms of the document, which were in English, were explained to the plaintiff. D. W. 35, who happened to be present at the house of the lawyer who drafted the partnership deed, however, has stated that he read over the same to all the three executants at about 9 or 10 a.m. The name of that lawyer is Sri Kailash Bajpai, but he has not been examined. Again, if the evidence of this witness is accepted, there is no evidence that the contents of the document were explained to the plaintiff. This witness had called on Shyama Devi for the first time when she had gone in connection with the execution of the partnership deed. He had gone to the lawyer for his own business, and from his evidence it appears that he had no concern with the family of Jagarnath Ram or Hardeo Prasad, prior to the date of the execution of this document.
Village Bhatpar Rani falls within the jurisdiction of two Registration offices, namely, Deoria and Gorakhpur. Deoria is at a distance of about 18 miles from Bhatpar Rani, whereas Gorakhpur is at a distance of 40 miles. It is not known why the deed of partnership, instead of being presented for registration at Deoria Registration office, was presented before the Registrar of Gorakhpur. From all these facts, I agree with the finding of the learned Subordinate Judge that the partnership deed was executed without explaining the contents thereof to the plaintiff. It is too well established principle of law that those who want to lake advantage of a document executed by a purdanashin lady must prove that she knew its contents and executed it with full knowledge of its effects and consequences, and that she had independent advice in the matter. In such a case the burden is always, in the first instance, on the person founding on that document to show that the grantor intelligently understood the deed, and if they fail to establish that point, then the document is not binding on the executant or anyone else and is void ab initio. If any authority is needed, reference may be made to the decisions in Sabitri Thakurain v. Mrs. F.A. Savi, AIR 1933 Pat 306 at p. 326; Hirday Narain v. Babu Ram, AIR 1941 Oudh 172 and Bank of Khulna Ltd. v. Jyoti Prakash Mitra, AIR 1940 PC 147. In my opinion, therefore, the statements referred to above made in Ext. M are not binding on the plaintiff.
45. On a consideration of the evidence, the facts and circumstances of the case, as discussed above, I fully agree with the findings of the learned Subordinate Judge that the land in Bhatpar Rani in plot No. 57/3. No. 56, and No. 54, the two-storeyed pucca house constructed thereon and the business of Jagarnath Rice Mill carried therein belonged to Jagarnath Ram, and Shyama Devi was a mere benamidar for him.
46. The next item of property in dispute is a small house standing on plot No. 52/1, measuring 0.05 acre. The above land is claimed to have been acquired under an unregistered patta (Ext. J/2) executed by Giriraj Prasad Kumari in the name of Shyama Devi. D. W who claims to have been an eye-witness to the execution of the patta, however, states that Maharani Chandrika Prasad Kumari executed the above patta in his presence, which is, on the face of it, untrue. Moreover, it is an admitted fact in this case that no salami was paid for the acquisition of this land. According to the evidence of both parties, the house on this land was constructed after the death of Jagarnath Ram. The evidence of the defendants' witnesses that it was constructed by Shyama Devi is, therefore, of no consequence, because, on the death of Jagarnath Ram, it was Shyama Devi, who, along with the plaintiff, was in possession of his inheritance and she was the managing member of the family. The learned Subordinate Judge has held that, in view of the fact that Shyama Devi had no money of her own, the house must have been constructed with the money left by Jagarnath Ram. He has, therefore, held that the plaintiff has acquired title over the same. No serious argument has been made to interfere with this finding of the learned Subordinate Judge; and, taking into consideration the circumstances of the case, I agree with him that the plaintiff has title to the land and the small house standing thereon.
47. The next item of dispute between the parties is with respect to some agricultural lands which were acquired under two pattas (Ext. BB/1) dated the 23rd of October, 1942 and Ext. J/3, dated the 26th of November, 1942, and ten sale deeds (Exts. G to G/9) taken in between March and June, 1943. The learned Subordinate Judge has held that all these agricultural lands were acquired by Jagarnath Ram in the benami name of Shyama Devi. The contention raised on behalf of the appellants is that they were acquired from the personal money of Shyama Devi, and Jagarnath Ram had nothing to do with the acquisition of the same. The total consideration for the acquisition of these lands comes to about Rs. 6,000. I have already agreed with the finding of the learned Subordinate Judge that Shyama Devi had no personal fund, and, in my opinion, she had no means to spend a sum of Rs. 6,000 for acquisition of these lands. It is the admitted case of the parties that the negotiations for the acquisition of these lands were made by Tiharam Tewari and the consideration of the same was paid through him. The case of the plaintiff is that the consideration money was paid by Jagarnath Ram to Tiharam Tewari through his admitted Munib Jamuna Prasad (P. W. 9) for payment to the vendors and their creditors. The case of the defendants, however, is that the money was paid to Tiharam Tewari for payment of the price of these lands by Shyama Devi herself. (After discussing the evidence their Lordships went on.) The evidence of the above vendors and settlor is not acceptable as true.
48. It has been urged on behalf of the defendants that the plaintiff has not examined any vendor or settlor or a creditor of the vendors to prove that the money was paid by Jagarnath Ram. It is true that no such evidence has been adduced on her behalf. But, as already observed, the unfortunate plight in which she had been placed so as to leave her husband's house and to go to live with her daughter in her Sasural, and the influence of Hardeo in the locality of Bhatpar Rani, due to his having long association with Jagarnath Ram and having been practically his right hand, may be the reason as to why the plaintiff could not procure such witnesses, Be that as it may, taking into consideration the lack of means in Shyama Devi, the non-production of the redeemed bonds and the evidence of her above witnesses, specially of Tiharam Tewari, who admittedly paid the considerations of the sale deeds, I fell inclined to accept the finding of the trial court that all these acquisitions were made by Jagarnath Ram and consequently the plaintiff is entitled to them.
49. There are certain movable properties which were found in the two storeyed pucca house of Jagarnath Ram by the pleader-commissioner as per report Ext. 5. The learned Subordinate Judge has held that, they having been found in the house of Jagarnath Ram and no evidence having been adduced as to the ownership of Shyama Devi over them, they must be presumed to have belonged to Jagarnath Ram, and the plaintiff must be entitled to get them. No serious argument has been pressed with respect to these items on behalf of the appellant of First appeal No. 90 of 1957, except suggesting that the properties found in that house may have belonged to Shyama Devi as her personal properties. Learned counsel, however, could not place any material on the record before us to differ from the view taken by the learned Subordinate Judge. On behalf of the appellants of First appeal No. 139 of 1957, however, it has been contended that the last item of the movable properties, namely, the business articles were articles appertaining to the business which Hardeo was carrying on in that house. The evidence of D. W. 2 with respect to that business, however, is that the grain business on the ground floor of the two storeyed house belonged to Shyama Devi and that afterwards she gave up having the grain shop and let out the ground floor to Hardeo. According to Hardeo, he was carrying on the grain shop in that house, and it must be held that the grain shop was on the ground floor of the house. The business articles in question were, however, found on the upper storey of that house, which was admittedly used for residential purposes by Jagarnath Ram and his two wives. Our attention has not been drawn to any evidence on the record to prove that these articles belonged to Hardeo, and they, having been found on the upper floor of the house in which Jagarnath lived, must be held to be of Jagarnath. The plaintiff has, therefore, been rightly held by the court below to be entitled to the same.
50. A point was raised on behalf of the appellants, with respect to the benami character of all these disputed properties, that, Jagarnath Ram having two wives, it is not understandable why he would acquire all the properties in the benami name of Shyama Devi only, and nothing in the name of the plaintiff. Hardeo (D. W. 34) has stated in his evidence that the plaintiff was brought in the double-storeyed pucca house from her father's place and her marriage with Jagarnath was performed in that house. It is thus clear that the land over which the two-storeyed pucca house was constructed could not be taken in the name of the plaintiff as she was not in existence in the family of Jagarnath at that time in the year 1933. The other acquisitions that were made in the name of Shyama Devi were made, as already stated, between October, 1942 and June, 1943, within about one year before the death of Jagarnath Ram. It is in the evidence of the defendants' witnesses that Jagarnath Ram was ailing from two years before his death and his entire business was being carried on by Hardeo. There is nothing strange if Hardeo, who must be expected to have taken active part in the acquisition of these properties, may have taken them only in the name of his sister, Shyama Devi, with some ulterior motive, even without the knowledge of Jagarnath Ram who may have intended to take the sale deeds in the name of the plaintiff also. The facts, circumstances and the evidence discussed above clearly prove all these transactions to have been entered into by Jagarnath Ram in the benami name of his wife, Shyama Devi. The fact that no property was acquired in the name of the plaintiff cannot go to disprove the benami transactions.
51. Counsel for the appellants have, however, urged that, even if the money required for the acquisition of these properties was of Jagarnath Ram, taking into consideration the relationship of Jagarnath with Shyama Devi as that of husband and wife, it should be held that the acquisitions were made to benefit Shyama Devi. In other words, the principle akin to the law of advancement has been urged. It is, however, too well established by now that the English Law of advancement is not applicable in India. In AIR 1915 PC 96, it was held that the exception in English law by way of advancement in favour of wife or child does not apply in India, but the relationship is a circumstance which is taken into consideration in India in determining whether the transaction is benami or not, and that the criterion in these cases in India is to consider from what source the money comes with which the purchase money is paid. In Guran Ditta v. Ram Ditta, 55 Ind App 235: (AIR 1928 PC 172), a Hindu deposited his own money in a bank in the joint names of himself and wife on the term that it is to be payable to either or the survivor. It was held that such a deposit does not, on the death of that Hindu, constitute a gift by him to his wife, and that there is a resulting trust in his favour in the absence of proof of a contrary intention, there being in India no presumption of an intended advancement in favour of a wife. A Bench of this court, in AIR 1939 Pat 462, relying on the above decision and certain other decisions, made the following observation:
"It has been frequently held by their Lord ships of the Privy Council that there is no rule in India corresponding with the presumption of advancement which is in existence in England as in India. If A purchases property and takes a conveyance or transfer in the name of B, B is not a beneficial owner of the property but holds it in trust for A. There is what has been described as a resulting trust in favour of the person who provided the consideration. In England, however, if the conveyance or transfer is made not to a stranger but to the wife or child of the person who provided the consideration, then no resulting trust arises. If the transaction is wholly unexplained, the law in England presumes an intention to benefit the wife or child. In India no such rule exists....... These cases lay down that if A provides the consideration and the conveyance or transfer is made in favour of B, prima facie A is the beneficial owner of the property and B is merely a benamidar. If B alleges that it was the intention of the parties that he should be the owner of the property by reason of the transaction then the onus rests on him to establish that such is the case."
52. Counsel for the appellants has, however relied, in support of his contention, on Section 82 of the Indian Trusts Act, 1882 (Act 2 of 1882). That section lays down that where property is transferred to one person for a consideration paid or provided by another person, and it appears that such other person did not intend to pay or provide such consideration for the benefit of the interference, the transferee must hold the property for the benefit of the person paying or providing the consideration. Learned counsel has urged that, in order that the transferee be held to be holding the property for the benefit of the person providing the consideration, it must appear that that person did not intend to pay or provide such consideration for the benefit of the transferee; and, consequently, it was for the plaintiff to provide that Jagarnath Ram did not intend to provide the consideration money for the benefit of his wife, Shyama Devi. In support of the above contention, he has relied on the decisions in Thulasi Ammal v. Official Receiver, Coimbatore, AIR 1934 Mad 671; C. Sitamma v. S. Sitapatirao, AIR 1938 Mad 8 and Hazaribagh Mica Mining Co. Ltd. v. Mrs. Ashalata Kapoor, AIR 1952 Pat 61.
In the case reported in AIR 1934 Mad 671, what happened was that the plaintiff No. 1, who was aged about 45 years, married the defendant, a young girl of the age of 8, as his fourth wife. About seven or eight years after the marriage, the transactions in question came into existence. According to the plaintiff's own admission, his reason for taking the deeds in the name of the defendant was his hostility to his third wife and her son, at whose instance he apprehended suits for maintenance and partition. The acquisitions were made in the name of the fourth wife. It was held that there was a clear intention to acquire the properties in the name of the fourth wife in order to deprive Ms third wife and her son from getting the same. Therefore, it was held that the acquisitions were made for the benefit of the fourth wife. It was, however, pointed out in that case that the meaning of Section 82 of the Indian Trusts Act is that, "if nothing more is shown than that the transferor paid the consideration, there is a resulting trust in his favour; hut as evidence of intention several circumstances may be proved; for, after all, the question is one of intention". According to this case, therefore, if there is nothing to show a different intention, a purchase in the name of wife simpliciter results in the wife being a trustee for the husband. In other words, the onus lies on the person who claims the transaction having been entered into for his benefit.
The case reported in AIR 1938 Mad 8 was that one Jagannadha Rao acquired certain properties in the name of his wife, Seetha Bai Ammal. Jagannadha Rao had adopted a son who died in 1914, leaving his widow and his adoptive mother, Seetha Bai Ammal. Seetha Bai Animal executed a deed of gift with respect to the properties standing in her name in favour of a grandson of her brother. The donee, not getting a peaceful possession, instituted a suit claiming that the donor was the owner of the property and he acquired title under the deed of gift. The widow of the adopted sort contested the suit and claimed the property in question to have been acquired by Jagannadha Rao in the benami name of his wife. In her written statement it was stated that Jagannadha Rao acquired the property in the benami name of his wife as he liked in order to avoid, among other things, the possibility of the adopted son quarrelling with him and squandering the properties and in order to ensure the obedient conduct of the adopted son to his dictates and to avoid the possibility of the members of his natural family instigating the adopted son to act adversely to the interests of the adoptive father. In the course of the evidence it was further suggested that Jagannadha Rao desired to keep apart some property for the benefit of any aurasa son that he still expected might be born to him and to ensure that the adopted son would behave respectfully towards Seetha Bai Animal by making it appear that she was the owner of those properties. On these facts, it was held in that case that there was a clear intention on the part of Jagannadha Rao to make the acquisitions for the benefit of his wife in whose name the properties were acquired.
53. In the Patna case, AIR 1952 Pat 61, the facts were these. The plaintiff had obtained a decree against one Mr. G. C. Kapoor, and in execution of that decree he attached two properties (i) a house and land appurtenant thereto and (ii) a plot of garden and having an area of 1.70 acres. Mrs. Ashalata Kapoor, wife of Mr. G. C. Kapoor, objected to the attachment on the ground that half share in the house belonged to her and the garden land belonged to her minor son, Motichand Kapoor. The executing court allowed the objection and set aside the attachment. The plaintiff filed a suit under the provisions of Order XXI, Rule 63 of the Code of Civil Procedure asking for a declaration that the properties belonged to the defendant, Mr. G. C. Kapoor, and were liable to be sold in execution of the decree passed against him. The trial Court held that Mr. G. C. Kapoor had only half share in the house and the other half belonged to his wife and the garden land belonged to his son. The plaintiff appealed to the High Court. Their Lordships stated, as a court of first appeal, that there were circumstances which indicated that the acquisitions made in the names of the wife and the son were intended to be for their benefit and, therefore, they could not be held to be benami transactions. In course of the judgment their Lordships observed:
"The general principle of equity, applicable both in England and in India, is that in the case of a voluntary conveyance of property by a grantor, without any declaration of trust, there is presumption of a resulting trust in favour of the grantor, unless it can be proved that an actual gift was intended. But the presumption may be rebutted by another presumption of equity, a presumption arising from special relationship as of husband and wife, or father and child--that the transaction was intended as a gift 'by way of advancement'. For instance, in English law. a gift to a wife is presumed where money belonging to the husband is deposited at a bank in the name of a wife, or where a deposit is made in the joint names of both husband and wife. In India, the English law as to presumption of advancement has not been adopted (vide Gopeekrist v. Ganga Prasad, 6 Moo Ind App 53 (PC), and Uzur AH v. Bebee Ulfat Fatima, 13 Moo Ind App 232 (PC) ). In the second place, the presumption of resulting trust may also be rebutted by parol OF other evidence that the purchaser really wished to benefit those in whose names the conveyance of the legal estate was taken."
The above observation in this case as well as the decisions in the two Madras cases referred to above, in my opinion, do not support the contention of the counsel for the appellants, that in such a case the onus is on the plaintiff to prove that the intention was not to acquire the properties for the benefit of the wife in whose name they were acquired; rather, they clearly indicate that, unless there is any evidence to show the intention of the acquirer to acquire the properties for the benefit of the wife, the acquisitions in the name of the wife are for the benefit of the acquirer.
54. In the present case, the defendants did not take any plea in their written statements that Jagarnath Ram acquired these properties in the name of Shyama Devi for her benefit. There is no issue on the point and no evidence has been adduced either way by either party. In absence of any evidence on behalf of the defendants that the intention of Jagarnath Ram was to acquire the properties for the benefit of Shyama Devi, it cannot but be held that the purchase was made by Jagarnath Ram who paid the consideration moneys for his own benefit.
55. It appears that Shyama Devi executed a will bequeathing all the properties claimed by her in the suit to be her exclusive properties in favour of Saldeo (defendant No. 3). At the trial, the probate of the will had not been granted, and so it was held not to be of any effect for the purposes of this case. During the pendency of the appeal in this court, the will was probated and the probate with a copy of the will annexed has been marked as an exhibit in this court by way of additional evidence under order XLI, Rule 27, of the Code of Civil Procedure. The genuineness of the will has not been challenged by the counsel for the plaintiff-respondent. Counsel for the appellants, however, have conceded that, if the bequeathed properties are held not to be the Stridhan of Shyama Devi, but the properties of Jagarnath Ram acquired in her benami name, defendant No. 3 cannot acquire any title under the will. Since, however, I have already held that Shyama Devi was merely a benamidar for these properties and the real owner was Jagarnath Ram, the will is of no assistance to the defendant No. 3.
56. The result, therefore, is that there is no merit in either of the two appeals and both of them are dismissed with costs payable to the plaintiff-respondent.
S.P. Singh, J.
57. I agree.