Calcutta High Court
Sri Ram Chandra Prosad Alias Jaiswal vs Sri Rajesh Kumar Jaiswal And Ors. on 11 May, 2001
Equivalent citations: (2001)2CALLT570(HC)
JUDGMENT G.C. De, J.
1. This appeal is directed against the judgment and decree dated 20.1.95 passed by the learned Judge of the third Bench of City Civil Court at Calcutta in Title Suit No. 1277 of 1984. By that judgment the plaintiffs suit was decreed and the reliefs sought for in the plaint were granted.
2. The plaintiff Rajesh Kumar Jaiswal instituted this suit praying for a declaration that he is one of the joint owners of the premises No. 33A, Ghosh Lane, Calcutta (hereinafter referred to as 'the suit premises' for brevity) that the said property was purchased out of the joint family fund belonging to the joint family consisting of the plaintiff and his father (defendant No. 1) and two brothers (defendants Nos. 2 and 3), for permanent injunction restraining the defendant No. 1 from proceeding further with the suit No. 1633 of 1982 and No. 325 of 1982 respectively pending before the learned Judge of the second Bench and the Chief Judge of the Court of Small Cause at Calcutta, and also for other reliefs. The plaintiffs case after amendment of the plaint on several occasions may be narrated as follows:
About 55 years back the suit premises was taken on tenancy by Sitaram Shaw, grandfather of the plaintiff as 'Karta' of the joint Hindu Mitakshara family and he used to carry on business therein. The tenancy was transferred in the name of the defendant No. 1 during the lifetime of Sitaram. Sitaram died in 1962 and thereafter, the family business was closed. But the joint family of the defendant No. 1 continued in the suit premises. In 1973 the suit premises was purchased in the name of the defendant No. 1 who was the 'Karta' of the joint Hindu Mitakshra family. As the defendant No. 1 had no income of his own, the plaintiff, the defendants Nos. 2 and 3 contributed towards the consideration money for purchase of the suit premises and thus, the plaintiff and the defendants became the joint owners. But the defendants filed two suits before the second Judge, Presidency Small Causes Court at Calcutta for ejectment of the plaintiff from the rooms in his occupation and both the suits were registered as Ejectment Suit No. 1633 of 1982 and Ejectment Suit No. 1325 of 1982. Due to the institution of those ejectment suits, a shadow was cast on the right of ownership of the plaintiff in respect of the suit premises and taking leave from the Court of Small Causes at Calcutta, the present suit has been instituted for declaration and injunction in the manner indicated herelnabove.
3. The defendant No. 1 Ramchandra Prosad @ Jaiswal who is the father of the plaintiff contested the suit after filing a written statement denying all the materials allegations made in the plaint. His specific case is that the he purchased the suit premises with his own money and became the sole owner of the same. It is also claimed that the plaintiff was occupying a portion of the suit premises as a licensee of the suit premises and that separate suits for eviction were filed against the plaintiff after revoking the licence in respect of those portions of the suit premises. Accordingly, prayer for dismissal of the suit was made.
4. The defendant No. 2. Rakesh Kumar Jaiswal also contested the suit after filing a written statement and he practically supported the case of the defendant No. 1. The defendant No. 1 categorically denied any contribution of money for the purchase of the suit premises. His case is that the defendant No. 1 purchased the suit premises by his own money for which he was the absolute owner of the suit premises.
5. The defendant No. 3, Shri Sukumar Jaiswal also filed a written statement by which he supported the claim of the plaintiff.
6. The defendant No. 4, Haridas Gupta was the father-in-law of the defendant No. 1 and after his death, the defendants Nos. 4A and 4B were substituted as his legal heirs. They also supported the case of the defendant No. 1 and denied that the plaintiff or the defendant Nos. 2 or 3 contributed any money for the purchase of the suit premises. They also claimed that the suit premises belonged to the defendant No. 1 and neither the plaintiff nor the defendant No. 3 had any right or claim or share therein.
7. On the basis of the respective pleadings the trial Court framed as many as ten issues.
8. The plaintiff deposed in this case as P.W.1. One Chinmoy Kumar Ghosh, Branch Manager of the Garpar Branch of the Punjab National Bank deposed as the P.W. 2 and one Kamala Kanta Ghosh, a practising advocate of the City Civil Court deposed as P.W.3. On the other hand, the contesting defendant's examined one Subal Prakash Bhagat, son-in-law of the defendant No. 1, who deposed as DW 1. The defendant No. 1 Ram Chandra Prasad himself deposed as D.W 2. The defendant No. 3 deposed as D.W. 3 and supported the case of the plaintiff. Documents were also produced by the parties. The defendants No. 4A and 4B however did not depose in this case. After considering the evidence adduced by the parties, the trial Court came to a conclusion that the suit property was a joint property of the plaintiff and the defendant Nos. 1, 2 and 3 and accordingly he decreed the suit on contest declaring that the plaintiff was one of the joint owners of the suit premises having one-fourth share therein and the defendant No. 1 was restrained permanently from proceeding with the Ejectment Suit No. 1633 of 1982 and Ejectment Suit No. 1325 of 1982 pending before the Presidency Small Causes Court at Calcutta.
9. In course of hearing of this appeal, the following points were agitated for consideration by this Court.
(i) Is the suit bad for non-Joinder and mis-Joinder of parties?
(ii) Did the trial Court err in law in placing reliance on the amended plaint without considering the provisions of Order 6 Rule 18 of the Civil Procedure Code?
(iii) Was the suit property purchased from the joint fund as alleged in the plaint?
(iv) Is the plaintiff a co-sharer in respect of the suit premises as alleged?
(v) Is the plaintiff entitled to get a declaration and permanent injunction as prayed for?
10. At the very outset it is to be noted that the title suit was filed on 9.7.84. Issues were framed on 1.8.90, an additional issue No. 10 was framed on 4.1.93. By an order dated 22.6.94, the plaintiffs application under order 6 Rule 17 of the Civil Procedure Code praying for certain amendment of the plaint was allowed. The defendant No. 1 in course of hearing of the said application for amendment of the plaint did not raise any objection and it was also submitted before the trial Court the he was not inclined to file any additional written statement following that proposed amendment. By the said order the Court directed the amendment of the plaint. It is needless to mention that the said amendment was allowed when the plaintiff was being examined as P. W 1 after the premptory hearing of the suit was started on 9.6.94.
11. By the said amendment, the old paragraph 14 of the plaint was deleted and in its place a new paragraph 14 in the plaint was substituted and after the prayer (a) in the plaint, another prayer (a) (i) was added. For proper appreciation of argument advanced by the learned counsel, we deem it proper to reproduce the paragraph 14 of the plaint as it was before the amendment as hereunder:
"That summoning up the aforesaid facts, it is crystal clear that the defendant No. 1 did not contribute a single farthing in the said consideration money and he was only a name lender and as such he cannot have any personal right over the ownership of the said premises No. 33A, Ghosh Lane, Calcutta, and the plaintiff the defendant No. 2 and the defendant No. 3 are the joint owners of the said premises No. 33A, Ghosh Lane in the town of Calcutta,"
12. The amended paragraph 14 is reproduced below:
" 14. That the plaintiff alongwith the defendant Nos. 1 to 3 constitute a joint family and they were the members of the joint family in all respects.
The defendant No. 1 was the Karta of the said joint family and was managing the said joint family with the assistance of the other members of the family. The property in suit was purchased by the contribution made by the members of the joint family, namely the plaintiff, the defendant Nos. 2 and 3 and by the sale proceeds of the ornaments belonging to the wife of the defendant No. 1 and the mother of the plaintiff and the defendant Nos. 2 and 3, in which the defendant No. 1 was also having an interest though it was kept with the defendant No. 4 and as such the said contribution was made out of the joint family fund, namely by the members of the joint family by which the said property was purchased. As the defendant No. 1 was the Karta and Manager of the joint family, the properly was purchased in his name as one of the members of the joint family, but it was all along treated as the joint family property."
13. Mr. Roychowdhury, appearing on behalf of the appellant/defendant No. 1 contended that initially the plaintiff claimed that the suit property was purchased in the benami of the defendant No. 1. But by inserting the amended paragraph 14 the plaintiff gave a go-by to the joint Hindu Mitakashara family concept. Mr. Roychowdhury pointed out, after scanning paragraph 2 of the plaint, that Sitaram Shaw was the Karta of the joint family and was carrying on the ancestral business under the name and style of "Bhojram Sitaram". The said Sitaram Shaw died on 23.12.1962 and thereafter the defendant No, 1 being the eldest member of the joint family became the Karta and Manager of the said joint Hindu family. It is also pointed out that the suit properly was taken in possession as a tenant by the said Sitaram as a Karta of the family and after his death, the defendant No. 1 continued to hold the said tenancy in the capacity of the joint Hindu Mitakshara family. It is also claimed in the plaint the though the joint Hindu family business "Bhojram Sitaram" was closed, the tenancy in the name of the joint family continued.
14. Referring to paragraph 9 of the plaint, Mr. Roychowdhury further argued that the tenancy in the suit property, which was previously stood in the name of Sitaram Shaw, was subsequently transferred in the name of the defendant No. 1 as a Karta of the joint family, on the request of Sitaram Shaw as he became old and was unable to continue as such Karta and the Head of the said joint Hindu Mitakshara family of which the plaintiff and the defendant Nos. 1 to 3 were its members. Towards the year 1973 by unanimous decision of all the members of the said joint family the suit property was purchased at a price of Rs. 30,000/- and at that time, it was decided that the suit property would be purchased in the name of the defendant No. 1 though it shall always be used and occupied by the said joint Hindu family and its co-parceners. It is also indicated in the plaint that after the closure of the joint family business the defendant No. 1 had no income and the entire property was purchased on the basis of the contribution made by the other members of the joint family and also by the cash amount given to the plaintiff by the defendant No. 4. So in the original plaint it was claimed that the defendant No. 1 was merely a name lender in respect of the suit property and as such, he cannot have any personal right over the said properly.
15. After the amendment of paragraph 14 of the plaint the old joint family of Sitaram was not mentioned and in its place it was claimed that the plaintiff along with the defendant Nos. 1, 2, 3 constituted the joint family in all respects. It is also claimed in the amended paragraph 14 of the plaint that defendant No. 1 as the Karta of the joint family was managing the joint family with the assistance of other members of the said family and on the basis of the contributions made by the other members namely the plaintiff and the defendant Nos. 2 and 3 and also by collecting the sale proceeds of the ornaments belonging to the wife of the defendant No. 1, that is the mother of the plaintiff and the defendants Nos. 2 and 3, the suit property was purchased in the name of the defendant No. 1 as he was the Karta and Manager of the said joint family.
16. Mr. Roychowdhury argued that the other heirs of Sitaram are all necessary parties in this suit and as they are not made parties, the suit is bad for non-Joinder of parties. It is also argued that the amended paragraph 14 should not be looked into inasmuch as the amended plaint was not filed within the prescribed time-limit under the provisions of order 6 Rule 18 of the Civil Procedure Code. Consequently it is also argued that unless paragraph 14 is formerly included in the plaint, no evidence could be taken on that point and even if it is incorporated at this stage, question of framing of additional issue after filing of Additional written statement would arise.
17. In this connextion, Mr. Roychowdhury also placed reliance on section 6 of Hindu Succession Act 1956 in support of the contention that the other heirs of Sitaram are necessary parties in respect of the said joint family properly.
18. Mr. Roychowdhury argued that the plaintiff/respondent No. 1 has sought to correct the error by making an application during the hearing of this appeal for permitting him to comply with the provision of order 6 Rule 18. It is argued that if such leave is granted the appellant/defendant No. 1 should be permitted to file an additional written statement and specifically to lead evidence on the point as there was, in fact, no pleading for which a rebuttal evidence be given at the time of trial.
19. Mr. Sudhis Dasgupta, appearing on behalf of the plaintiff/respondent No. 1 pointed out that when the prayer for amendment of the plaint was filed before the trial Court, the defendant No. 1 had no objection to the proposed amendment and an endorsement was made on the said petition for amendment to this effect. In that endorsement prayer for cost was also made for such a beleted prayer for amendment On the basis of the submission of the learned lawyer for the defendant No. 1, the prayer for amendment was allowed by an order dated 22.6.94 subject to payment of a cost of Rs. 100/-. The plaintiff duly paid the said cost to the learned advocate for the defendant No. 1 who granted a receipt therefor. So it is argued that when the amendment was allowed on consent and on acceptance of cost awarded therein, there is no scope for raising any objection at this stage. It is further pointed out that the defendant No. 1 knowing fully well about the amendment led evidence in this case and hence, no prejudice was caused to him at any stage and as such, the objection raised during this appellate stage was not at all tenable. However, by way of precaution and to avoid all controversy the plaintiff/respondent No. 1 has filed an amended plaint in the appellate Court with an application for acceptance of the same after extension of time.
20. It appears that following the procedure prevailing in the trial Courts the amendment was allowed and the relevant petition for amendment was kept with the plaint. It has been seen that the system of further incorporation of the amended plaint was never insisted upon. The impugned order will indicate that the prayer for amendment was allowed and consequently an order for incorporation of the amendment was also made thereby indicating no further necessity of taking any steps under order 6 Rule 18. It is needless to mention that after the said order the parties proceeded after accepting the position that the plaint was amended accordingly. So we do not think that the amendment was not incorporated in the lower Court record. However to avoid such technicalities the amended plaint was filed before this appellate Court with a prayer for acceptance of the same. Keeping in view the conduct of the parties before the trial Court, specially keeping in view the fact that the defendant No. 1 denied to file any additional written statement after the prayer for amendment was allowed, we are of the view that the amended plaint be kept with the lower Court record after allowing the prayer made. On this score, reliance may be placed on a decision of a Division Bench of this Court in Radhanath Das v. Chittaranjan Das resported in ILR 1977 (2) Calcutta 425 in which their Lordships look the view.
"..... in the circumstances, we think that the objection of the respondents based on the failure of the appellants to amend the plaint is not available. After this Court accepted the appearance of the appellants and no objection having been taken in that regard, it shall be taken that the previous defect stands removed. In our opinion, the Court should take a liberal view when objections founded on technical grounds are raised not at the proper time in the trial Court but for the first time at the time of argument before the appeal Court ....."
21. The law on this score is quite settled that the provisions of order 6 Rule 18 of the Code of Civil Procedure are procedureal in nature and the same can be rectified even at an appellate stage. In this case when the defendant No. 1 accepted the proposed amendment at the trial Court and led evidence thereon after framing of issues, it is not open for him to challenge the said amendment at this appellate stage on the ground of technicalities.
22. Accordingly, we direct that the amended plaint filed before this Court be kept with the lower Court record.
23. As regards the non-Joinder of parties namely the daughters of Sitaram Shaw, it is submitted by Mr. Dasgupta that Sitaram Shaw died in the year 1962 leaving behind him, two sons and four daughters. Section 6 and its proviso of the Hindu Succession Act run as follows:
"When a male Hindu dies after the commencement of this Act, having at the lime of his dealh an interest in a Mitakshara copercenary property, his interest in the property shall devolve by survivorship upon the surviving members of the copercenary and not in accordance with this Act. Provided that, if the deceased had left him surviving a female relative specified in Class 1 of the Schedule or a male relative specified in that class who claims through such female relative, the interest of the deceased in Mitakshara coparcenary peoperty shall devolve by testamentary or intestate succession, as the case may be, under this act and not by survivorship."
24. On the basis of these provisions, Mr. Dasgupta argued that the interest of the female heir comes only in the event a male Hindu having an interest in the Mitakshara family coparcenary properly died intestate leaving behind a female heir that is specified in Class I. So emphasis was given on the word 'property' for the consideration of the devolution of interest upon the female heirs. Admittedly Sitaram Shaw died in the year 1962 and the property in dispute was purchased long thereafter in the year 1973 and as such at the time of death of the said Sitaram Shaw, this property was not acquired, The provision of section 6 and its proviso of the Hindu Succession Act have practically no application in the instant case. So the plea of non-joinder of parties is not tenable in law.
25. In this connexion, it is to be mentioned that Sitaram Shaw was merely a tenant in respect of the suit property and during his lifetime the tenancy was transferred in the name of the respondent No. 1. The initial plea of continuance of joint family of Sltaram Shaw has been given a goby after the amendment of the plaint. On the other hand, the joint Hindu Mitakshara family of the defendant No. 1 came into existence and admittedly, the property was purchased in the year 1973. The final plea taken in the plaint is that the joint family of the defendant No. 1 consisting of the plaintiff and the defendants Nos. 2 and 3 took an unanimous decision to purchase the suit property in the name of its Karta namely Ramchandra Prosad, the defendant No. 1. It is also pleaded that the entire consideration money of Rs. 30,000/- required for the purchase of the suit property was contributed by the members of the said joint Hindu family.
26. In course of evidence adduced by the parties it was never claimed that the joint Hindu Mitakshara family of Sitaram Shaw was in existence. In the plaint it is specifically stated that the joint Hindu Mitakshara family of Ramchandra Prosad (defendant No. 1) was in existence and the said family purchased the suit property. On the other hand, the defence case is that Ramchandra Prosad alone purchased the suit property by his own money. The defence never came forward with a plea of continuance of the joint family of Sitaram Shaw. After a careful scrutiny of the evidence adduced by the parties and the materials on record, we hold and conclude that none of the parties has been able to establish the existence of any joint Hindu Mitakshara family of Sitaram Shaw at the time of purchase of the suit property in the year 1973. So the next important question comes for consideration is whether the suit property was purchased by the defendant No. 1 as his personal properly or it was purchased by him as the Karta of the joint Hindu Mitakshara family.
27. Mr. Roychowdhury argued that since the document of title in respect of the suit property stands in the name of the appellant/defendant No. 1, the Court should take the apparent state of things to be the real one unless the contrary is proved and hence he argued that the entire burden was upon the plaintiff to prove his case which is contrary to the tenor of the said deed of sale. On this score Mr. Roychowdhury placed reliance on a decision of the apex Court (Krishnanand Agnihotri v. State of M.P.). In support of the contention that the onus of establishing a transaction as benami is on the person who asserts it. The burden has to be discharged by adducing legal evidence of a definite character. Suspicion however strong cannot take the place of proof. Reliance was also placed in the decision of Pawan Kumar Gupta v. Rochiram Nagdeo reported in (1999) 4 Supreme Court Cases 243 (paragraphs 23 & 24) to strengthen the argument that the burden of proof cannot be cast upon the defendant No. 1 to prove that the transaction was consistent with the apparent tenor of the sale deed: Analysing the provision of sections 91 and 92 of the Evidence Act 1872, the apex Court in this decision clarified that in all cases in which any matter is required by law to be reduced to the form of a document, no evidence shall be given in proof of the terms of such matter except the document itself whereas section 92 forbids admission of any evidence for the purpose contradicting. varying, adding to, or substracting from the terms of such a document. However the only exception to the said rule is that any fact which would invalidate the instrument can be proved by adducing other evidence.
28. Mr. Roychowdhury clarified that the deed of sale in the name of the defendant No. 1 was produced from his custody and it was marked as Ext. 'A' in the suit and it is specifically stated in that deed that the property was purchased by the defendant No. 1 in his personal capacity and the entire consideration money of Rs. 30,000/- was paid by him. So. Mr. Roy chowdhury reiterated that the plaintiff having been failed to discharge the said onus by adducing legal evidence of a definite character it cannot be said that the suit property was the property of the joint Hindu Mitakshara family. It is further argued that the trial Court failed to appreciate this aspect and placing reliance on strong suspicion came to a conclusion that the property was purchased by the joint family and not by the defendant No. 1.
29. Mr. Dasgupta on this score reminded this Court that the parties in this suit are close relations--the defendant No. 1 being the father of the plaintiff and the defendants Nos. 2 and 3. In paragraph 9 of the plaint, it is specifically pleaded that the defendant No. 1 was the Karta of the joint family in respect of which they are members. In paragraph 5 of the plaint it is stated that the defendant No. 1 had no business or profession and was all through without any income. In paragraph 10 of the plaint it is further clarified that originally the defendant No. 1 Haridas Gupta, a practising lawyer of the City Civil Court at Calcutta, was the father-in-law of the defendant No. 1 and as the defendant No. 1 was without any income and his wife (that is the mother of the plaintiff and the defendants Nos. 2 and 3) was the only daughter of the said Haridas Gupta started residing with the said joint family with his wife on getting pity on the precarious financial condition of the said joint Hindu Mitakshara family. Said Haridas Gupta also sacrifised a part of his income for the benefit of the said joint Hindu family. In paragraph 11 of the plaint. It is indicated that all the members of the said joint family took the decision of purchasing the suit properly at a price of Rs. 30,000/- in the name of the defendant No. 1 after accumulating the contributions of the members towards the consideration money. In paragraph 12 of the plaint, the details of collecting the consideration money are indicated as hereunder:--
(a) Gift of Haridas Gupta to the plaintiff
-- Rs.
5000/-
(b) Loan to the plaintiff by Subal Prosed Bhagat (son-in-law of the defendant No. 1)
-- Rs.
10000/-
(c) Sale proceeds of the broken silver ornaments belonging to Haridas Gupta
-- Rs.
3000/-
(d) Income of the plaintiff
-- Rs.
2500/-
(e) Income of the defendant No. 2
-- Rs.
1500/-
(f) Savings of the plaintiff and the defendantsNos. 2 and 3 from their business or from their salary or otherwise for seven years.
-- Rs.
10300/-
Rs.
32300/-
It is clarified in paragraph 13 of the plaint that the said contributed money was deposited from time to lime in the bank account standing in the name of the proprietorship firm of the plaintiff. The entire consideration money was withdrawn on the day before of the transaction from the bank account of the plaintiff.
30. Mr. Dasgupta pointing out the evidence adduced on behalf of the plaintiff, first of all argued that the plaint case has been proved beyond any reasonable doubt. In this connexion pointing out the Ext. 1, Mr. Dasgupta argued that the contribution towards the consideration money was admitted by the defendant No. 1 Ramchandra Prosad himself after giving the details in a sheet of paper. The Ext. 1 was marked as Ext. 1 without any objection and the defendant No. 1 as D.W. 2 admitted that the signature appearing on the sheet was his own signature. In this sheet the amount indicated hereinabove are given in details with the heading "Detailed sheet showing sources of money for the purpose of building purchased in the name of Mr. Ramchandra Prosad of 33A, Ghosh Lane, Calcutta 6 as on 15.5.1973". In this paper, the accumulation of Rs. 32,300/- is shown and after deducting the cost of building, registration charges and general expenses totalling Rs. 31,850/- [Rs. 30,000/- + Rs. 1850/-). The cash in hand was shown as Rs. 450/-. Shri Ramchandra Prosad signed on this paper on 15.4.1976. Of course, the defendant No. 1 in his evidence stated that he signed the paper without knowing its contents. But the defendant No. 1 did not challenge the statement and/ or deposition of the plaintiff in this regard while deposing as D.W 2.
31. Mr. Dasgupta argued that since the admissibility of the said document (Ext. 1) was not challenged during the trial stage, it is not open to the appellant to challenge the same in the appellate stage. On this score the decision of the Privy Council reported in 47 CWN 607 (Gopal Das v. Shri Thakurji) was relied upon. In the case the view was taken that where the objection is not that the document is itself inadmissible but that the mode of proof put forward is illegal or insufficient, it is essential that the objection should be taken at the trial before the document is marked as an exhibit and admitted to the record. A party cannot lie by until the case comes before a Court of Appeal and then complain for the first time of the mode of proof. Accordingly, Mr. Dasgupta argued that the said document has been accepted as a whole and the appellant cannot challenge the numbering of the same document as Ext. 1.
32. In this connexion Mr. Dasgupta also placed reliance on another decision of the Privy Council reported in AIR 1938 Privy Council 103 (Martin Cashin v. Peter J. Cashin) in support of the contention that in a case where the person executing the deed is neither blind nor illiterate, where no fraudulent misrepresentation is made to him, where he has ample opportunity of reading the deed and such knowledge of its purport that the plea of non est factum is not open to him, it is quite immaterial whether he reads the deed or not. He is bound by the deed because it operates as a conclusive bar against him not because he has read it or understands it, but because he has chosen to execute it. This is equally true (apart from fraud) in equity as at law, except in those special cases where there is as equitable ground for setting aside or rectifying the deed.
33. Reference was also made to a Full Bench decision of the Andhra Pradesh High Court (The Land Acquisition Officer, Vijayawada Thermal Station v. Nutalapati Venkata Rao) in support of the contention that if secondary evidence is allowed to be marked for one party without objection at the trial, no objection can be permitted to be raised by the opposite parly at any later stage in the same Court or in appeal that conditions for adducing secondary evidence have not been made out initially.
34. Mr. Dasgupta also placed reliance on a Division Bench judgment of this Court in Durgapada Jana v. Nemal Chanran Jana in support of the contention that after the document is admitted in evidence upon formal proof is dispensed with and without any objection by the appellant, the appellant is debarred from challenging before the lower appellate Court the admission of the document into evidence.
35. Mr. Dasgupta also placed reliance on Ext. 7 which is a bank statement showing entries of deposit of moneys from time to time in the name of the proprietory firm of the plaintiff. In this statement, it is also indicated that one day prior to the date of execution and registration of the sale deed (Ext. 'A') Rs. 30000/- was withdrawn from the said account. It is to be noted that the P.W. 2, an employee of the bank, duly proved the document and also produced the documents duly authenticated by the bank. It appears from the said statement (Ext. 7) that the Gift of Rs. 5000/- given by Haridas Gupta, maternal grandfather of the plaintiff by account payee cheque to the plaintiff was duly credited in the said account of the plaintiff and a Rs. 10,000/- in cash given by Subal Chandra Bhagat (son-in-law of the defendant No. 1), was also deposited in that account. The other entries in the Ext. 7 further indicate the deposit of the sale proceeds of the broken silver ornaments and the savings made by the plaintiff and the defendant No. 2. The sale deed (Ext. 'A') exhibited and registered on 15th May 1973 and the some of Rs. 30,000/- was withdrawn from the said account of the plaintiff on 14th May 1973.
36. The defendant No. 1 on the score of the evidence adduced by the plaintiff simply stated that the suit property was purchased by him by his own money but did not try to show actually wherefrom the entire amount of Rs. 30000/- was collected. He even did not deny the plaintiffs claim that the consideration money was paid after withdrawing from the bank account of the plaintiff. The D.W. 1 (son-in-law of the defendant No. 1) denied the factum of lending a sum of Rs. 10,000/- to the plaintiff for the purpose of acquisition of the suit property. But in his cross-examination when he was confronted with a receipt (Ext. 'C') he admitted the same to be his own handwriting. The Ext. 'C' indicates that the said D.W. 1 Subal Prosad Bhagat gave a loan of Rs. 10000/- to his father-in-law, Ramchandra Prosad for purchasing the house. The receipt is signed by Subal Prosad Bhagat on 12.4.1976, and the bank account (Ext. 7) indicates that it was deposited on 18.4.1976. So this part of evidence is sufficient for coming to a conclusion that D.W 1 lent sum of Rs. 10,000/- for the purpose of acquisition of the suit property.
37. It is partinent to mention that the defendant No. 1 has not adduced any evidence in support of collecting the entire consideration money including the registration cost. He did not disclose any source of his income. He simply claimed that by selling iron scraps he gave marriage of his daughter, but no account paper was produced in support of such sale transactions or expenditure.
38. On the other hand, evidence has been adduced on behalf of the plaintiff in support of the claim that during their childhood days, the plaintiff and the defendant No. 2 had been working with Bharat Wire Industries and from their salary income a sum of Rs. 4000/- was contributed towards the consideration money. Evidence are also adduced to show that from the savings of the family income a sum of Rs. 10,300/- were also collected and deposited on various dates in the bank account of the plaintiff.
39. In this connection it is also to be noted from Ext. 9 which is the translation of the Ext. 6 that it was an account maintained by the defendant No. 1 in Hindi language. This account shows day-to-day expenses incurred by the defendant No. 1 for the joint family. The defendant No. 1 admitted the writings of this accounts by his own hand. The said document is marked as Exhibit without any objection. On the other hand, the defendant No. 1 admitted that he wrote the said document and the entries made therein are his own handwriting. It appears from the said document that all the members of the joint family used to contribute for meeting out day-to-day expenses and the defendant No. 1 being the father and Karta of the said joint Hindu family used to manage and look after its members, This document is sufficient to show the existence of joint mess and more particularly, jointness in mess in all respects. This document further indicates that the defendant No. 1 had no contribution in respect of the expenses incurred for the joint family.
40. Of course, Mr. Roychowdhury argued at length pointing out the improbability in the evidence adduced on behalf of the plaintiff specially the alleged savings for the seven years as shown in Ext. 1. The argument is that the plaintiff was born in 1951 and seven years saving indicates contribution of the plaintiff from the year 1966 when he was merely a boy of 14-15 years. Similarly the defendant No. 2 was also 12-13 years. It is doubled as to whether any saving could be made from any income of these boys of very tender age when they were students. But the evidence on record are sufficient to indicate that the defendant No. 1 had no income and for the purpose of overcoming the financial constraint, he had to bring his father-in -law, Haridas Gupta and his wife in his family. The evidence is also there that at a very tender age both the plaintiff and the defendant No. 2 had to join the service of Bharat Wire Industries. It is rightly argued by Mr. Dasgupta that the children of a poor family like the defendant No. 1 had to earn some amount by giving child labour and in this way, the income of these children was also accumulated in the joint family fund.
41. Mr. Roychowdhury further tried to argue that the amount deposited after selling the ornaments belonging to Haridas Gupta was the income of the defendant No. 1. The defendant No. 1 being half-literate allowed his money to be kept in the account of his son (plaintiff) and as such, the amount shown in the account was being held by the plaintiff as the trustee of the defendant No. 1. It is also argued that mere advancing of money by the plaintiff and the defendant No. 2 cannot make the acquisition of the suit property a joint family property. On the other hand, the amount if any, advanced by the plaintiff and the defendant No. 2 are to be treated as mere loan to their father. Finally it is urged that cause of action of the plaintiff arose in 1976 when the father stopped the plaintiffs business that was carried on from the suit premises.
42. Mr. Dasgupta rightly pointed out referring to the evidence adduced by the defendant No. 1 that he was not aware of maintenance of any account by the plaintiff. So he contended that keeping of money in the account of plaintiff cannot be construed as keeping of money in trust with the plaintiff, On the other hand, by scanning the evidence of both sides, pointed out how the entire money was kept in the bank account of the plaintiff and how it was withdrawn only a day before the transaction for payment of the consideration money. In fact, there is nothing on the record to show that the amount so withdrawn from the bank account of the plaintiff was not utilised for the consideration money. The specific evidence of the plaintiff is that the money was withdrawn and handed over to the plaintiff in terms of the agreement after the discussion between the members of the joint family for the acquisition of the suit property in the name of the defendant No. 1. It is also to be noted that the defendant No. 1 never claimed that he took any loan from his sons for the purchase of the suit property. So the argument of giving of loan to the defendant No. 1 is not substantiated and hence, it cannot be said that the plaintiff and the defendant No. 2 gave any loan to their father for the acquisition of his property.
43. After a careful scrutiny of the evidence adduced by the parties, we hold and conclude that the existences of the joint family of the defendant No. 1 has been established beyond any reasonable doubt. It is also established that defendant No. 1 had no income and he had to take the entire consideration amount from the joint family fund kept in the account of the plaintiff. It is proved that the family was living in joint mess, saved money and the properly was acquired from the joint family fund. The acquisition of property by a joint family was taken into consideration in Soshi Kumar Sarkhet v. Chandra Kumar Samaddar Chaudhuri in 35 Calcutta Law Journal 348. In Ram Chander Dubey v. The Deputy Director of Consolidation, Deoria took into consideration the fact that even if the sale deed stands tn the name of one, it would not disentitle other members of the joint family.
44. Mr. Roychowdhury, however, placed reliance on a Division Bench judgment of this Court in Tapan Dass v. Sosti Dass (90 CWN 1018) in support of the contention that the evidence adduced on behalf of the plaintiff would not discharge the onus shifted to him regards the deed of sale that stood in the name of the defendant No. 1. But Mr. Dasgupta analysing the said decision pointed out that the argument advanced by Mr. Roychowdhury would have been accepted if the family was governed by the Dayabhaga School of Hindu Law. He further pointed out that in a Mitakshara coparcenary even a property standing in the name of an individual coparcener may be presumed to be a co-parcenary property if the coparcenary is shown at the relevant time to have been possessed of sufficient source to acquire such property and the apparent state of things may be presumed not to be the real state of things. We deem it proper to reproduce the relevant portion of the judgment of Their Lordships at paragraph 4 of the judgment:
"The parties are admittedly governed by the Dayabhaga School of Hindu Law. There is an important and significant distinction between the Mitakshara School and the Dayabhaga School as to the presumption in respect of properties standing in the name of an individual coparcener. In a Mitakshara coparcenary, even a property standing in the name of an individual coparcener may be presumed to be a coparcenary property, if the coparcenary is shown at the relevant lime to have been possessed of sufficient source to acquire such properties and the apparent state of thing may be presumed not to be the real state of thing. But in the Dayabhaga, it is the other way round, the apparent state of thing is to be presumed to be the real state of thing until the contrary is proved and a property standing in the name of an individual coparcener must be proved to be coparcenary property by the party asserting it to be so. Therefore, the fact of the Tempo Van standing in the name of the defendant No. 3 only should have led to the presumption of its being his separate property in the absence of any reliable evidence to the contrary."
45. In this connexion, Mr. Dasgupta also placed reliance on Article 298 of Mayne's Treatise on Hindu Law & Usage, 14th Edition (page 632) to show how property is jointly acquired though the document stands in the name of one in the joint family. For making such joint acquisition as joint property only and not as joint family property, satisfactory evidence is required to be given to that effect. But the presumption is in favour of its being recorded as joint family property. In Articles 220, 227 and 228 of Mulla's Principle of Hindu Law, 16th Edition from pages 245 onwards, the incidents of joint family and coparcenary property are indicated. It is indicated that if the properly so acquired without the aid of joint family property, the presumption is that it is the joint property of the joint acquires, but this presumption may be rebutted by proof that the persons constituting the joint family acquired the property not as members of the joint family but members of an ordinary trade partnership resting on contract, in which case the property will be deemed to be partnership property. In the absence of any proof of partnership properly jointly acquired by the members of a joint family without the aid of joint family property, is to be presumed to be joint. But the settled legal position is that such acquisition must be presumed to be joint family property.
46. In Bandhu Ram v. Chintaman Singh (26 CWN 406) the Privy Council viewed that a bond held in the name of the joint Mitakshara Hindu family is to be presumed to be joint properly and it is for those who assert the contrary to make good their case. It was also viewed that while the evidence on both sides were somewhat meagre, the presumption in favour of joint ownership was not displaced.
47. After a careful scrutiny of the evidence on record, the circumstances explained and the legal position, we hold and conclude that the plaintiff has been able to prove his own case that the suit property was purchased in the name of the defendant No. 1 with the joint family fund, that the suit property was a joint family property and that he has one-fourth share in it. We also hold and conclude that the suit is liable to be decreed in the manner as prayed for and we find no reason to interfere with the findings of the trial Court.
48. The appeal is accordingly dismissed on contest. The judgment and decree of the trial Court are hereby affirmed. Considering the facts and circumstances of this case, the parties do hear their own cost of this appeal.
Urgent certified xerox copy of this judgment and order, if applied for, be granted as expeditiously as possible.
S. Banerjeea, J.
49. I agree.
50. Appeal dismissed