Jharkhand High Court
Smt. Manka Bala Dasip Alias Manika Bala vs Smt. Sabur Bala Devi on 19 January, 2023
Author: Sanjay Kumar Dwivedi
Bench: Sanjay Kumar Dwivedi
1 Second Appeal No.32 of 1992(R)
IN THE HIGH COURT OF JHARKHAND, RANCHI
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Second Appeal No.32 of 1992(R)
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1.Smt. Manka Bala Dasip alias Manika Bala, widow of late Gopal Chandra Rakshit - Deleted vide order dated 19.09.2008
2.Biswanath Rakshit - Died and substituted vide order dt. 01.11.2021
3.Alakh Nath Rakshit alias Alok Rakshit - Deleted, expunged v/o 1.12.16
4.Bhola Nath Rakshit alias Bhola Rakshit
5.Subodh Nath Rakshit alias Subal Rakshit Nos.2 to 5-all sons of late Gopal Chandra Rakshit.
All resident of Village Hazari, Mohalla Okni, P.O., P.S., and District- Hazaribagh ..... Plaintiff-Respondent-Appellants.
-- Versus --
1.Smt. Sabur Bala Devi, widow of late Ram Kumal Rakshit
2.Sadhan Kumar Rakshit
3.Ranjan Kumar Rakshit .... Sons of late Ramkamal Rakshit
4.Smt. Meera Rakshit, d/o late Ram Kamal Rakshit, wife of Satyanarain Modak Pintu at and P.O. Janpur, District-Purulia (West Bengal)
5.Smt. Kalpana Dey, d/o late Ram Kamal Rakshit, w/o Ashok Chandra Dey, resident of Netajee Subhash Road, Asansol, P.O. and P.S. Asansol, District Burdwan (West Bengal)
6.Smt. Sapna Rakshit, s/o late Ram Kumar Rakshit
7.Smt. Jyotsana Rakshit, d/o late Ram Kamal Rakshit
8.Smt. Mahura Rakshit, d/o Rama Kamal Rakshit, wife of Bhagirath Singaat resident of village Utrathi, P.S. and P.O. Tandwa, District Hazaribagh ...... Nos.1 to 3, 6 to 7-all residents of village Hazari, Mohalla Okni, P.O., P.S and District Hazaribagh ..... Defendant-Appellant-Respondents
9.Smt. Mukti Rakshit, d/o late Gopal Chandra Rakshit, resident of Village Hazari, Mohalla Okni, PS and District Hazaribagh- Expunged vide order no.7 dt. 17.05.94, her heir is already on record as appellant no.1.
..... Plaintiff-Respondent-Respondent
10.Anupurna Modak, wife of Mathur Chandra Modak at and P.O. Bagda, P.S. Kasmar, District Giridih
11.Basanti @ Basant Modak, wife of Dil Gobind Dutt at and P.O. Chirkund, P.S. Chirkunda, District-Dhanbad
12.Purnima Modak, wife of Arjun Kumar Dey, at P.O. and P.S. Jharia, Mohalla Fauldan Paru, District Dhanbad ...... Defendant-Respondent-Respondents.
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CORAM: HON'BLE MR. JUSTICE SANJAY KUMAR DWIVEDI
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For the Appellants :- Mr. Ayush Aditya, Advocate For the Respondents :- Mr. A.K. Sahani, Advocate
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30/19.01.2023 Heard Mr. Ayush Aditya, the learned counsel appearing on 2 Second Appeal No.32 of 1992(R) behalf of the appellants and Mr. A.K. Sahani, the learned counsel appearing on behalf of the respondents.
The present Second Appeal has been filed being aggrieved and dissatisfied with the judgment dated 02.04.1992 and the decree following thereupon singed on 21.04.1992 by the learned First Additional District Judge, Hazaribagh in Title Appeal No.38/88 allowing the appeal and reversing the judgment dated 25.3.1988 and the decree signed on 11.4.1986 passed in Title Suit No.135 of 83/ 56 of 88 passed by learned Sub-Judge, IIIrd, Hazaribagh decreeing the plaintiff suit.
The appellant/plaintiff instituted the Title Suit No.135 of 83/ 56 of 88 for declaration that two brothers namely Ram Komal Rakshit and Gopal Chandra Rakshit were the real owner of schedule-B land and Smt. Shankari Bala Dasi was simple a name lender and the plaintiffs, after the death of Gopal chandra Rakshit stopped into his shows inheriting half share and the plaintiffs are entitled to half share in the suit property as also entitled to have the renewal of lease jointly with the defendants with respect to schedule C property. The further relief was for declaration of half share of the plaintiff in schedule-C and partition of the suit house and finally decree be also awarded. The suit was decreed in favour of the appellant/plaintiff by the judgment dated 25.03.1988 and decree signed on 11.04.1986.
In the plaint it was alleged that the case of the appellant is that that in the year 1959 Gopal Chandra Rakshit died in the suit house state of jointness with Ram Komal Rakshit leaving behind his widow (plaintiff no.1) and four sons (plaintiff non. 2 to 5) and four daughters (plaintiff nos. 6 and 10 to 12). Ram Komal Rakshit died in the year 1966 in the name suit house leaving behind Shankari Bala Dasi, who-died in the year 1976, second wife defendant no.1 two sons (defendant no.2 and
3) and five daughters (defendant nos.4 to 9) Aforesaid defendants no.1 3 Second Appeal No.32 of 1992(R) to 3 became dishonest and in order to grab the suit property exclusively applied for renewal of the lease in the name of Shankari Bala Dasi and Sabur Bala, to the Khas Mahal authorities giving false statements. The plaintiffs appeared and filed their objections, which was inquired into and it was found that the plaintiffs had right and possession over the suit house. Inspite of the inquiry report in favour of the plaintiffs, they were advised to get their half title declared in the suit property and hence, the necessary for the suit. A relief was sought for declaration that two brothers, namely Ram Komal Rakshit and Gopal Chandra Rakshit were the real owners of the schedule B land and Smt. Shankari Bala Dasi was a Benamidar and the plaintiffs, after the death of Gopal Chandra Rakshit stopped into his shows inheriting half share. Relief for carving out half share of the plaintiff in the suit property by appointment of survey knowing pleader commissioner was also sought.
The case of the defendants is that the case of the Defendant-appellants, briefly stated that is that the plaintiff respondents has no cause of action. The suit was barred under the provisions of specific relief Act and the law of limitation. Ram Komal Rakshit migrated to Hazaribagh in or about the year 1928 and started to reside with his brother in law Nitai Sen. After some time, he started his sweetmeat shop of his own at Lepo Road, Hazaribagh and Gradually developed his business. In course of the time he started a second shop in the court compound at Hazaribagh, Much later, Gopal Chandra Rakshit came to Hazaribagh from Banaras and started living with his brother-in-law. After some time he was turned out from that place and then Ram Komal Rakshit gave him shelter in his tenanted house. It was denied that Gopal Chandra Rakshit and Ram Komal Rakshit ever set up any joint business. Gopal Chandra Rakshit was mentally retarded person and was not in a position to earn his own livelihood, owing to pity, sympathy an affection, 4 Second Appeal No.32 of 1992(R) Ram Komal gave him shelter. The business was set up exclusively by Ram Komal Rakshit with his hard earned money. It was falsely alleged Ram Komal Rakshit and Gopal Chandra Rakshit were managing the business as tenants in common and they had half share in the business, It was Ram Komal Rakshit, who had purchased the land in the name of his wife Shankari Bala Dasi and had constructed building upon it. The property was exclusively the self-acquired property of Ram Komal Rakshit. Gopal Chandra Rakshit had no right or authority over the same. Any reference to the alleged written statement by Ram Komal Rakshit indicate that the plaintiffs had fabricated and forged some documents with the idea of setting up a false claim. The alleged documents were forged and fabricated.
Further case of the defendant-appellants is that application for renewal of the lease was made on behalf of Shankari Bala Dasi and the property was duly renewed in her name for the term of 30 years i.e. from 1.4.1948 to 31.3.1978 without any objection of or hindrance from any quarter. The allegation that Shankari Bala Dasi was a Benamidar was incorrect. It was totally incorrect to allege that the sales were affected by both the brothers through the said Benamidar whatever, the transactions were made till the year 1954, were affected solely and wholly by Ram Komal Rakshit and as the property stood in the name of his wife, the conveyance were executed and registered by his wife. It was further alleged that on 26.2.1954 Ram Komal Rakshit got executed a "Kath kewala" through his wife, in favour of one Panna Devi, wife of Balchand Seth, in order to secure funds for his declining business, in respect of the property including the land and building for Rs.20,000/- The period fixed in the Kath kewala for repayment was five years. As repayment could not be made by Ram Komal Rakshit, within the stipulated period, the kath kewala was confirmed after 5 years. later on, the situation improved in 5 Second Appeal No.32 of 1992(R) the family of Ram Komal Rakshit and as such, his two wives offered to utilize their personal resources including the ornaments, for the purpose of repurchasing the property on the condition that the property would be owned by them jointly and Rakshit would have no right to offer it and the agreement was arrived at in this connection with Panna Devi and the sale deed was executed and registration on 22.1.1968 on payment of the consideration money. As per the mutual agreement between two ladies, the sale deed was executed in the name of Shankari Bala Dasi, through the expenses were born by both of them jointly and equally. Thus, from 22.1.1962, the two wives of Ram Komal Rakshit because absolute owner of the property. From 1962 the property stood in the name of Shankari Bala Dasi. By mutual agreement it was decided to get the lease also renew in the name of Shankari Bala Dasi, Gopal Chandra Rakshit or his heirs never had any right, whatever, over any portion of the property in suit. The allegation that Gopal Chandra Rakshit died in state of jointness with Ram Komal Rakshit, was utterly false. The false claim and objections of the plaintiff-respondents was rightly rejected by the Khas Mahal Authorities, after necessary inquiry, prayer was made to dismiss the suit.
This second appeal was admitted by the order dated 17.02.1994 on the following substantial question of law:
(a) Whether the learned lower appellate court has committed a grave error of law by allowing the appeal and reversing the judgment and the decree of the leraned trial court without meeting and considering the reasonings of the learned trial court in support of its judgment?
(b) Whether the judgment and decree of the learned lower appellate court is vitiated inasmuch as the lower appellate court has approached the case with a wrong legal angle and has discarded Ext.1, 2 and 3 on wholly irrelevant, extraneous and illegal consideration.
On these law points, the learned counsel appearing for the appellants and respondents have addressed the Court and took the Court 6 Second Appeal No.32 of 1992(R) to the judgment of the learned trial court as well as the learned appellate court.
Mr. Ayush Aditya, the learned counsel appearing for the appellants submits that Gopal Chandra Rakshit and Ram Komal Rakshit were own brothers and they were living jointly in the house in question. He submits that still in the same house the legal heirs/successors of Gopal Chandra Rakshit and Ram Komal Rakshit are residing. He submits that the property in question was purchased as Benami in the name of first wife of Ram Komal Rakshit, namely, Shankari Bala Dasi on 25.09.1945. He submits that the entire business was joint and the out of the proceeds of the said business the said property was purchased. In the year 1959, Gopal Chandra Rakshit died and in the year 1966 Ram Komal Rakshit died and pursuant to that, the legal heirs/successors of Ram Gopal Rakshit have filed the title suit. He further submits that in paragraph no.10 and 11 of the written statement filed by the defendants they have admitted that Ram Komal Rakshit has purchased the property in question in the name of Shankari Bala Dasi. He further submits that the learned trial court has considered the Exhibits-1,2 and 3 in the suit and has rightly interpreted those exhibits and thereafter it has been pleased to decree the suit in favour of the plaintiffs. He submits that exhibit-1 is sada agreement deed said to have been executed by Ram Komal Rakshit just a few days before the acquisition of the impugned property i.e. on 10.05.1946 in which he has independently acknowledged the acquisition of the said property on behalf of both the brothers. Exhibit-2 is the affidavit sworn by Nando Rakshit, the present lease holder and defendant no.8 in the court of the Executive Magistrate on 05.06.1984 wherein he has admitted that her father Ram Gopal Rakshit and uncle late Gopal Chandra Rakshit out of the proceeds of their joint business had purchased the land and kutcha house (in the dilapidated 7 Second Appeal No.32 of 1992(R) condition) of holding no.121 in four plots with an area of 0.55 decimals and holding no.143, a 63 measuring 0.03 decimals at Hazaribagh in the Benami name of her mother Shankari Bala Dasi and they came in joint possession over the same. She has also admitted the joint possession of both the brothers and after then, their heirs and further she has admitted that Gopal Chandra Rakshit and heirs and herself are the real and actual owners of the said house. Exhibit-3 is a letter stated to have been in the signature of Nando Rakshit, but scribed by some one else addressing therein to her Jethi Ma (aunt), who is no one else than the plaintiff no.1, the wife of Gopal Chandra Rakshit. He submits that the leraned trial court interpreted these three exhibits, has rightly come to the conclusion that there is jointness in the family and has directed to partition the property in 50% share of each. He further submits that the learned appellate court has reversed the finding of the learned trial court on the ground that so far the exhibit-1 is concerned the same was described by the appellate court on the ground that at that time the wife of Gopal Chandra Rakshit was also available at the time of acquisition of the land, but her name was not involved in the sale deed and that is why which does not sound good. He submits that Exhibit-2 described by the learned appellate court on the ground that the Advocate identifying the contents of the affidavit but has not identified and Nando Rakshit has been examined as D.W.12 and she emphatically denied to have executed any affidavit on that ground this has not accepted. He submits that the learned trial court has rightly interpreted these documents and thereafter has passed the order and these two law points are required to be answered in favour of the appellants. By way of referring section 115 of the Evidence Act, 1872, he submits that in view of the admission made in paragraph no.10 and 11 of the written statement of the defendants as well as the two documents Exhibit-1 and Exhibit-2 the principle of 8 Second Appeal No.32 of 1992(R) estopple will apply in light of section 115 of the Evidence Act and to buttress his argument, he relied in the case of "B.L. Sreedhar v. K.M. Munireddy", reported in (2003) 2 SCC 355. Paragraph nos.12, 13, 14 and 15 of the said judgment are quoted herein below:
"12. It would be appropriate to deal with the concept of estoppel which appears to be the basic foundation of the High Court's conclusions in the background of the aforenoted factual conclusions.
13. Estoppel is a rule of evidence and the general rule is enacted in Section 115 of the Indian Evidence Act, 1872 (in short "the Evidence Act") which lays down that when one person has by his declaration, act or omission caused or permitted another person to believe a thing to be true and to act upon that belief, neither he nor his representative shall be allowed in any suit or proceeding between himself and such person or his representative to deny the truth of that thing. (See Sunderabai v. Devaji Shankar Deshpande [(1952) 2 SCC 92 : AIR 1954 SC 82] .)
14. "Estoppel is when one is concluded and forbidden in law to speak against his own act or deed, yea, though it be to say the truth" -- Co Litt 352(a), cited in Ashpitel v. Bryan [(1863) 3 B & S 474 : 122 ER 179 : 32 LJQB 91] B & S at p. 489; Simm v. Anglo American Telegraph Co. [(1879) 5 QBD 188 : 49 LJQB 392 : 42 LT 37 (CA)] , per Bramwell, L.J. at p. 202; Halsbury, Vol. 13, para
488. So there is said to be an estoppel where a party is not allowed to say that a certain statement of fact is untrue, whether in reality it be true or not. Estoppel, or conclusion, as it is frequently called by the older authorities, may therefore be defined as a disability whereby a party is precluded from alleging or proving in legal proceedings that a fact is otherwise than it has been made to appear by the matter giving rise to that disability. (Halsbury, Vol. 13, para 448) The rule on the subject is thus laid down by Lord Denman, in Pickard v. Sears [(1837) 6 Ad & El 469 : 112 ER 179] Ad & E at p. 474 : ER p. 181 "But the rule of law is clear, that, where one by his words or conduct wilfully causes another to believe the existence of a certain state of things, and induces him to act on that belief, so as to alter his own previous position, the former is concluded from averring against the latter a different state of things as existing at the same time;"
"The whole doctrine of estoppel of this kind, which 9 Second Appeal No.32 of 1992(R) is a fictitious statement treated as true, might have been founded in reason, but I am not sure that it was. There is another kind of estoppel -- estoppel by representation -- which is founded upon reason and it is founded upon decision also." Per Jessel, M.R. in General Finance & Co. v. Liberator [(1878) 10 Ch D 15 : (1874-80) All ER Rep Ext 1597 : 39 LT 600] , Ch D at p. 20.
See also in Simm v. Anglo American Telegraph Co. [(1879) 5 QBD 188 : 49 LJQB 392 : 42 LT 37 (CA)] , QBD at p. 202 where Bramwell, L.J. said "An estoppel is said to exist where a person is compelled to admit that to be true which is not true, and to act upon a theory which is contrary to the truth."
15. On the whole, an estoppel seems to be when, in consequences of some previous act or statement to which he is either party or privy, a person is precluded from showing the existence of a particular state of facts. Estoppel is based on the maxim alleganscontraria non estaudiendus (a party is not to be heard to allege the contrary) and is that species of presumption juries et de jure (absolute or conclusive or irrebuttable presumption), where the fact presumed is taken to be true, not as against all the world, but against a particular party, and that only by reason of some act done, it is in truth a kind of argumentum ad hominem."
Relying on this judgment, he submits that once the facts are admitted in light of section 115 of the Indian Evidence Act, the defendants are liable to be stopped by taking such plea as has been held by in the case of "B.L. Sreedhar v. K.M. Munireddy"(supra). He submits that in the light of section 114 of the Indian Evidence Act, the Court can presume admission of certain facts. He further submits that it is the duty of the party to lead the best evidence to prove their case in the light of section 114(g) of the Indian Evidence Act and to buttress his such argument, he relied in the case of "Ahmed v. State of Assam", reported in (2009) 14 SCC 541. Paragraph no.11 of the said judgment is quoted hereinbelow:
"11. It is the duty of the party to lead the best evidence in its possession which could throw light on the issue in controversy and in case such material evidence is 10 Second Appeal No.32 of 1992(R) withheld, the court may draw adverse inference under Section 114 Illustration (g) of the Evidence Act, 1872 notwithstanding that the onus of proof did not lie on such party and it was not called upon to produce the said evidence (vide Gopal KrishnajiKetkar v. Mohd. Haji Latif [AIR 1968 SC 1413] )"
He submits that once the agreement is reduced to the form of a document, no evidence shall be given in proof of the terms of such contract in the light of section 91 of the Indian Evidence Act, 1872 and to buttress his such argument, he relied in the case of "V. Anantha Raju and Another vs T.M. Narasimhan and Others", reported in AIR 2021 SC 5342. Paragraph no.19 of the said judgment is quoted hereinbelow:
"19. At this stage, it will be relevant to refer to Sections 17, 91 and 92 of the Indian Evidence Act, 1872(hereinafter referred to as 'the Evidence Act'):
"17. Admission defined.--An admission is a statement, oral or documentary or contained in electronic form, which suggests any inference as to any fact in issue or relevant fact, and which is made by any of the persons, and under the circumstances, hereinafter mentioned.
91. Evidence of terms of contracts, grants and other dispositions of property reduced to form of document.-- When the terms of a contract, or of a grant, or of any other disposition of property, have been reduced to the form of a document, and 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 contract, grant or other disposition of property, or of such matter, except the document itself, or secondary evidence of its contents in cases in which secondary evidence is admissible under the provisions hereinbefore contained."
Relying on this judgment, he submits that Sections 91 and 92 of the Evidence Act would apply only when the document on the face of it contains or appears to contain all the terms of the contract and when section 92 is not required to be looked into and it comes into operation only after section 91 is fulfilled. On these points, he submits the learned trial court has rightly decreed the suit and interpreted the document in view of the legal principle and the learned appellate court 11 Second Appeal No.32 of 1992(R) has reversed the finding of the learned trial court, which is liable to be set aside.
Per contra, the Mr. A.K. Sahani, the learned counsel appearing on behalf of the respondent nos.1,2,3 and 7 and rest of the respondents in spite of service and substitution has chosen not to appear in the second appeal, submits that the Exhibit-F is the registered deed of the year 1946 which has not been challenged by the appellants and all of a sudden, the partition suit has been filed in the year 1983 and on that ground itself the suit was fit to be dismissed. He draws the attention of the Court to the paragraph no.7 of the learned trial court judgment and submits that the defendants are denied the jointness of two brothers and only on the mercy by Ram Komal Rakshit has allowed Gopal Chandra Rakshit to remain in the house and on that ground the jointness is not proved. He submits that Exhibit-1 is sada agreement which is not a registered document and the learned appellate court has rightly interpreted Exhibit-2 which is an affidavit of D.W.12 and she has also denied her signature. He further submits that it is well settled that if the document is not registered under section 19 and is not admissible and to buttress his such argument he relied in the case of Shanti Sarup v. Radhaswami Satsang Sabha, Dayalbagh Agra and Ors, reported in AIR 1969 Allahbad 248 (SC) and relied in paragraph nos.24 and 28 of the said judgment, which are quoted hereinbelow:
"24. 24. Once the registration of a society has been proved, it can safely be assumed, relying on the presumption which can be raised under Section 114 of the Evidence Act, that the necessary formalities which were required to be observed before a society could be registered by the Registrar had prima facie been observed and at least on the face of it the memorandum of association purported to have been signed by seven different persons.
28. The case of Sunder Singh Mallah Singh Sanatan Dharam High School Trust, AIR 1938 PC 73, does not help 12 Second Appeal No.32 of 1992(R) the appellant's contention that even in cases where valid registration was not questioned in the pleadings and at the stage of evidence, it was incumbent on the plaintiff to file a certified copy of the memorandum of association. Inasmuch as the registration of the society was not specifically admitted, all that was required or the plaintiff was to file a copy of the certificate of registration. It is only a copy of the certificate of registration which could prove the registration (as distinguished from valid registration) of the society. In a case like the present one where the defendants are not even aware whether or not the memorandum of association had been signed by seven or more persons, it is not necessary to prove who the persons who had actually signed the memorandum of association. Nor was it necessary to file a copy of the memorandum of association."
On the same ground, relying on this he submits that once the document is not registered and is not admissible as has been held by the learned Allahabad High Court. He relied in the case of L.C. Hanumanthappa v. H.B. Shiv Kumar, reported in 2015 (4) JCR 208 (SC), paragraph nos.14 and 29 of the said judgment are quoted below:
"14. Given this statement of the law, it is clear that the present amendment of the plaint is indeed time-barred in that the right to sue for declaration of title first arose on 16-5-1990 when in the very first written statement the defendant had pleaded, in Para 13 in particular, that the suit for injunction simpliciter is not maintainable in that the plaintiff had failed to establish title with possession over the suit property. The only question that remains to be answered is in relation to the doctrine of relation back insofar as it applies to amendments made under Order 6 Rule 17 of the Code of Civil Procedure.
29. Applying the law thus laid down by this Court to the facts of this case, two things become clear. First, in the original written statement itself dated 16-5-1990, the defendant had clearly put the plaintiff on notice that it had denied the plaintiff's title to the suit property. A reading of an isolated paragraph in the written statement, namely, Para 2 by the trial court on the facts of this case has been correctly commented upon adversely by the High Court in the judgment under appeal. The original written statement read as a whole unmistakably indicates that the defendant had not accepted the plaintiff's title. Secondly, while allowing the amendment, the High Court in its earlier judgment dated 28-3-2002 [L.C. Hanumanthappa v. H.B. 13 Second Appeal No.32 of 1992(R) Shivakumar, RFA No. 415 of 1999, decided on 28-3-2002 (KAR)] had expressly remanded the matter to the trial court, allowing the defendant to raise the plea of limitation. There can be no doubt that on an application of Khatri Hotels (P) Ltd. [(2011) 9 SCC 126 : (2011) 4 SCC (Civ) 484] , the right to sue for declaration of title first arose on the facts of the present case on 16-5-1990 when the original written statement clearly denied the plaintiff's title. By 16-5-1993 therefore a suit based on declaration of title would have become time-barred. It is clear that the doctrine of relation back would not apply to the facts of this case for the reason that the court which allowed the amendment expressly allowed it subject to the plea of limitation, indicating thereby that there are no special or extraordinary circumstances in the present case to warrant the doctrine of relation back applying so that a legal right that had accrued in favour of the defendant should be taken away. This being so, we find no infirmity in the impugned judgment [H.B. Shivakumar v. L.C. Hanumanthappa, 2015 SCC OnLine Kar 3860] of the High Court. The present appeal is accordingly dismissed."
He further submits that all the D.Ws have supported the case of the respondent/defendants and the learned appellate court has rightly reversed the findings at paragraph nos.21 to 25 of the learned trial court judgment. On the point of benami transaction, he relied in the case of "Fair Communication & Consultants v. Surendra Kerdile", reported in AIR 2020 SC 146 and relied on paragraph nos.21 and 22 of the said judgment which are quoted below:
"21. In the present case, the appellants did not prove that the transaction (to which they were not parties) was benami; on the contrary, the appellant's argument was merely that the transaction could not be said to be for a consideration in excess of Rs 1,30,000: in the context of a defence in a suit for money decree. The appellant- defendants never said that the plaintiff or someone other than the purchaser was the real owner; nor was the interest in the property, the subject-matter of the recovery suit. Therefore, in the opinion of this Court, the conclusions and the findings in the impugned judgment [Surendra v. Fair Communication & Consultants First Appeal No. 280 of 1995, order dated 13-3-2008 (MP)] are justified.14 Second Appeal No.32 of 1992(R)
22. For the foregoing reasons, this Court is of the opinion that there is no merit in the appeal; it is accordingly dismissed, without order on costs."
He further submits that jointness has not been proved in the case in hand and that is why the learned appellate court has rightly reversed the findings of the learned trial court and to buttress his such argument, he relied in the case of "Makhan Singh (D) by LRs v. Kulwant Singh", reported in AIR 2007 SC 1808 and relied on paragraph no.9 of the said judgment which is quoted as below:
"9. The High Court has also rightly observed that there was no presumption that the property owned by the members of the joint Hindu family could a fortiori be deemed to be of the same character and to prove such a status it had to be established by the propounder that a nucleus of joint Hindu family income was available and that the said property had been purchased from the said nucleus and that the burden to prove such a situation lay on the party, who so asserted it. The ratio of K.V. Narayanaswami Iyer case [AIR 1965 SC 289 : (1964) 7 SCR 490] is thus clearly applicable to the facts of the case. We are therefore in full agreement with the High Court on this aspect as well. From the above, it would be evident that the High Court has not made a simpliciter reappraisal of the evidence to arrive at conclusions different from those of the courts below, but has corrected an error as to the onus of proof on the existence or otherwise of a joint Hindu family property."
On these grounds, he submits that there is no illegality in the learned appellate court judgment and the learned appellate court considering the Exhibit nos.1, 2 and 3 has rightly reversed the findings of the learned trial court.
In view of the above submission of the learned counsels appearing on behalf of the parties, the Court is required to answer the two law points on which this second appeal has been admitted which are quoted hereinabove. Since both the law points are inter-linked and that is why both these law points are considered together. 15 Second Appeal No.32 of 1992(R)
Admittedly, Ram Komal Rakshit and Gopal Chandra Rakshit were full brothers amongst themselves. It is an admitted fact that still the legal heirs and successors of Ram Komal Rakshit and Gopal Chandra Rakshit are residing in the same house. In paragraph nos.10 and 11 of the written statement filed by the defendants it has been admitted that Ram Komal Rakshit has purchased the property in question in the name of Shankari Bala Dasi. It is also not in dispute that the plaintiff/defendants are the legal heirs/successors of Gopal Chandra Rakshit and the defendants are the legal heirs and successors of Ram Komal Rakshit. Gopal Chandra Rakshit died in the year 1959 and Ram Komal Rakshit died in the year 1966. Exhibit-1 is the sada agreement deed executed by Ram Komal Rakshit just a few days before the acquisition of the property on 10.05.1946 in which he has independently acknowledged the acquisition of the suit property on behalf of both the brothers which itself suggest that only to throw away the plaintiff the agreement was executed a few days before the acquisition of the impugned property. Exhibit-2 is the affidavit of Nando Rakshit and she has admitted that her father and Ram Komal Rakshit and uncle Gopal Chandra Rakshit out of the proceeds of their joint business purchased the land and kutcha house (in the dilapidated condition) of holding no.121 in four plots with an area of 0.55 decimals and holding no.143, a 63 measuring 0.03 decimals at Hazaribagh in the Benami name of her mother Shankari Bala Dasi and they came in joint possession over the property. D.W.8 who has sworn the affidavit before the Executive Magistrate has also admitted the jointness of both the brothers and further admitted that Gopal Chandra Rakshit and his heirs and herself are the actual owner of the suit property. Looking into the Exhibit-2 it transpires that the learned Advocate has certified the signature of the D.W.12 on that affidavit. Thus, on these ground that the Advocate has 16 Second Appeal No.32 of 1992(R) not certified the signature and non-examination of the Advocate describing the Exhibit-2 is by the learned appellate court erroneous. The Advocate has certified the signature of the D.W.8. In paragraph no.8 of the plaint, filed by the plaintiff it has been stated that schedule-B is the property which has been sold by both the brothers jointly and both have paid for rest of the property mentioned in schedule-C of the plaint. So far as the Exhibit-2 is concerned, it can be safely said that it is not relinquishment of impugned deed and for that affidavit which is acknowledgement of jointness and purchasing the property out of the proceeds of joint business of the brothers. Thus, the argument of the learned counsel as well as the reasoning provided by the appellate court is not accepted by this Court. In 1946 deed admittedly was purchased in the name of Shankari Bala Dasi and jointness are there and there was no occasion of the plaintiff to challenge the said deed and the dispute arises after the death of both the brothers of partition and thereafter the suit has been filed and on that ground law point argued by the learned counsel for the respondent/defendant does not sound good. On the point of section 17 of the Registration Act that is not in dispute. It is well settled. In the judgment relied by Mr. Sahani, the learned counsel for the respondent are on the facts and circumstances of those cases. In the case in hand, there was no occasion to challenge the 1946 deed and that is why those two judgments are not helping the respondent/defendants. In the case relied by Mr. Sahani, the learned counsel in the case of Makhan Singh (D) by L.Rs. V. Kulwant Singh, AIR 2007 SC 1808 (supra) jointness has not been proved and in that view of the matter, the Hon‟ble Supreme Court has passed that judgment. In the case in hand, the jointness has been admitted by D.W.8 herself and in paragraph nos.10 and 11 of the written statement of the defendants purchase of the property in the name of Shankari Bala Dasi by Ram Komal Rakshit is 17 Second Appeal No.32 of 1992(R) admitted and in that view of the matter the judgment relied by Mr. Sahani, the learned counsel appearing for the respondents in the case of „Makhan Singh(supra) is not helping the respondents. Moreover, in view of the Exhibit-1 and 2 as well as Exhibit-3 it is crystal clear that there were jointness between the family and it is admitted that still the family are residing in the same house and only to oust the legal heirs/successors of the plaintiff the plea was taken that on mercy the brother was allowed to live in that house which cannot be accepted when the relationship as full brothers amongst Ram Komal Rakshit and Gopal Chandra Rakshit has been established.
In view of the above facts, reasons and analysis, the law points are answered accordingly.
The judgment and decree passed by the learned appellate court in Title Appeal No.38/88 allowing the appeal and reversing the judgment dated 25.3.1988 and the decree signed on 11.4.1986 passed in Title Suit No.135 of 83/ 56 of 88 is set aside.
The judgment and decree passed by the learned trial court in Title Suit No.135 of 83/ 56 of 88 is restored.
Second Appeal No.32 of 1992(R) is allowed in the above terms and disposed of.
Pending petition if any also stands disposed of.
( Sanjay Kumar Dwivedi, J.) SI/;