Patna High Court
Tribeni Mishra And Ors. vs Rampujan Mishra And Ors. on 26 February, 1969
Equivalent citations: AIR1970PAT13, AIR 1970 PATNA 13
JUDGMENT Dutta, J.
1. Both these appeals have been taken up together for hearing as these arise out of the judgment and decree in one and the same suit, namely, Partition Suit No. 95/20 of 1961-63 of the Court of the Additional Subordinate Judge,. Chapra.
2. This suit for partition was instituted by original Respondent No. 1 Ramdeyal-Mishra, who has since expired and has been substituted by his heirs, namely, his sons and daughters. The parties are descendants of a common ancestor. According to the admitted genealogy Ram-deyal Mishra's father Ratan Mishra had one brother Hikayat Mishra. Defdts 1 to 3 Rambilas Mishra, Brahma Mishra and Anesa Mishra are sons of Hikayat Mishra. Ratan Mishra had four sons, two of whom are dead and the remaining two are defendants 4 & 5 Tribeni Mishra and Kaule--shwar Mishra. Defendants 6, 7 & 8, Gopi-Mishra, Gautam Mishra and Mosst. Raj-pati Kuer are the two sons and widow of Bishun Dayal Mishra, one of the deceased brothers of Ramdeyal Mishra, while defendants 9, 10 and 11 are the sons and widow of the other deceased brother Kishuni Mishra. It appears that there was a previous partition suit between the parties namely Partition Suit No. 31 of 1958 in which a compromise petition was filed and the suit was decreed in terms thereof. According to the terms of the compromise, some of the lands of the family were left joint between all the members of the family, that is, the descendants of both Ratan Mishra and Hikayat Mishra, while some other lands. were left joint as between the descendants of Ratan Mishra alone, that is, plaintiffs Ramdeyal Mishra and his brothers and brothers' sons. The present suit for partition was instituted for partition of the properties alleged to have been left joint in the previous title suit.
3. The suit was contested by defendants 1 to 3, that is, the sons of Hikayat Mishra, who filed written statement jointly and by defendants 4, 6 and 7, that is, Tribeni Mishra (who, as already mentioned is one of the brothers of plaintiff Ramdeyal Mishra), Gopi Mishra and Gautam Mishra the two of the sons of the plaintiff's deceased brother Bishura Dayal Mishra. These defendants have also filed a joint written statement. Defendants 5, 9 and 10, that is, the remaining brother of Ramdeyal Mishra and the sons of the remaining deceased brother Kishuni Mishra, filed a joint written statement supporting the plaintiff. The case of both sets of the contesting defendants, that is, defendants 1 to 3 and defendants 4, 6 and 7, was that the suit was bad for non-inclusion of some of the joint lands of the family namely an area of 5 bighas 19 kathas and 8 dhurs, situated in Moham-mad Patti, which originally belonged to one Kesho Misra and which was alleged to have been acquired out of the joint family funds. According to the case of defendants 1 to 3, these lands are still joint as between the parties and they are in joint possession thereof while the case of defendants 4, 6 and 7 was that there has been a partition of these lands as between the plaintiff and other descendants of Ratan Mishra through a Panchayati and, according to the award of the Panches, which was accepted by the parties, 2 bighas out of this area were allotted to the plaintiff and the remaining area was allotted to the two surviving brothers of the plaintiff, and the sons of the two deceased brothers. Further, according to the case of both sets of the contesting defendants, in the compromise petition which had been filed in the previous title suit, the plaintiff, who according to them, was looking after the family affairs and the litigations of the family, had fraudulently inserted a recital to the effect that the lands of Mohammad Patti belonged exclusively to the plaintiff. Defendants 1 to 3's version in connection with the compromise petition was that although they had signed the compromise petition, they had done so without going through the contents thereof and they were accordingly not aware of the incor-Doration of this recital in the compromise petition. On the other hand, the case of the defendants 4, 6 and 7 was that the plaintiff had taken their signatures on a blank paper at their village home and he had thereafter gone to Chapra and got the compromise petition scribed out there and had filed the same thereafter and, as such, they Had no knowledge of the incorporation of the above recital in the compromise petition.
4. The learned Subordinate Judge rejected the version of the contesting defendants about the aforesaid recital in the compromise petition having been fraudulently inserted therein by the plaintiff without any knowledge of these defendants and held that there was no fraud whatsoever in connection with the corn-promise and the defendants had signed the compromise petition with the knowledge of its contents. He further held that the contesting defendants had failed to prove that there was any such nucleus of joint family from the income of which the aforesaid lands could have been acquired. He also held that the plaintiff had produced satisfactory evidence to prove that he had some money with his wife with which he could purchase the aforesaid lands and the joint family had no common fund for the purchase of the same. The version of defendants 4, 6 and 7 about partition of Mohammad Patti lands between the plaintiff No. 1 and his brothers and brother's sons through Panchauati was rejected. On these find ings, the contention about the suit being bad for partial partition on account of non-inclusion of Mohammad Patti lands was rejected and a preliminary decree for partition with respect to the lands, as embodied in the plaint, was passed. The present appeals out of which F. A. 379 has been preferred by the aforesaid defendants 4, 6 and 7 and F. A. 380 by defendants 1 to 3, arise out of this deci sion.
5. It may, however, be mentioned that at the time of hearing of these appeals, the learned Advocate for the appellants in F. A. 379 did not press the plea of these appellants about the alleged partition of Mohammad Patti lands as between the plaintiff and these defendants and the remaining descendants of Ratan Mishra and he adopted the arguments advanced on behalf of the appellants in the other appeal as to the Mohammad Patti lands being still joint lands of the parties and about the suit being not maintainable unless these lands are also included as the subject-matter of partition.
6. The only point for determination which arises in these appeals is, therefore, whether Mohammad Patti lands, namely, the area of 5 bighas 19 kathas and 8 dhurs originally belonging to. Kesho Mishra, are the joint lands of the parties and if the suit is bad for non-inclusion of these lands as the subject-matter of partition.
7. According to the admitted case of the parties, all the descendants of Ratan Mishra and Hikayat Mishra were members of a joint Hindu family till the time of the institution of the previous title suit, namely, T. S. 31 of 1958 which as shown by the ordersheet (Ext. 15) was instituted on 12-3-1958. In this connection reference may also be made to the evidence of plaintiff Ramdeyal Mishra (P. W. 3) who stated as follows during his cross-examination :
"Till before the previous suit, we were all joint."
So far as Mohammad Patti lands are concerned, as already stated, the admitted case of the parties is that these lands belonged originally to one Kesho Mishra and, as shown by the sale Certificate (Ext. 7), these lands were sold in Court sale in execution of a decree obtained by Lt. Kumar Madhawe Surendra Sahi and others as against Kesho Mishra and others, this Court sale having taken place on 8-10-31 for a sum of Rs. 255 and the purchase therein was made by Ramdeyal Mishra, that is, the plaintiff of the suit out of which these appeals, have arisen. As this purchase was made in the year 1931, there cannot be the slightest doubt that the purchase was made at a time when all the parties were members of a joint Hindu family. It is well settled that even in case of members of a joint Hindu family, there is no bar to the acquisition of separate properties by individual members. But in such a case if it is found that the ioint family had a sufficient nucleus which left sufficient surplus income from which subsequent acquisitions could be made, there would be a presumption that the subsequently acquired properties are also joint family properties and the onus would shift on the member claiming any such acquisition as his separate property to prove that it is so.
In this connection, it may be mentioned that as held by the Supreme Court in the case of Shrinivas Kishna Rao v. Narayan, 1955-1 SCR 1 = (AIR 1954 SC 379) and as also pointed out in the Mulla's Principles of Hindu Law at Page 261 (13th Edition), the mere existence of some nucleus is not the sole criterion to impress subsequent acquisition a family character and what is to be shown is that the family had as a result of nucleus, sufficient income from which the subsequent acquisition could be made. It appears that in the present case, there is nothing either in the pleadings or in the oral evidence, as adduced by the parties, to show what was the extent of the joint family property or the income thereof or what was the extent of the surplus out of the income of the joint family at the time when the acquisition in question took place in the year 1931. The only material on the record to which our attention was drawn try learned counsel for the appellants in F. A. 380 are certain statements as made in the plaint of the previous partition suit, namely, partition Suit No. 31 of 1958 (Ext. A-1) instituted by the present plaintiff.
In paragraph 4 of this plaint, there is a statement to the effect that the family of the parties had sufficient properties out of the income of which different properties were acquired in the names of different members of the family and all the family members were in joint possession thereof. There is a further recital in paragraph 5 that all ancestral and acquired properties and the 'dih basgit' land in ioint possession of the parties are mentioned in Schedule I of the plaint while the zarpeshgi properties are mentioned in Schedule 2. There is, however, no specification either in Schedule 1 or in any other part of the plaint as to which of the properties mentioned is Schedule 1 were the ancestral properties of the family and which were acquired subsequently nor is there any specification as to when or in which year those acquisitions took place.
The dates of the zarpeshgi deeds, referred to in Schedule 2, have been specified in that schedule, but it appears that only one of the zarpeshgi deeds, namely, a deed for Rs. 300 is of the year 1933 and the rest are of the years 1950 and 1957. As such, these deeds do not give us any help in determining whether the income of the joint family left any suplus from which the acquisition in question could have been made in the year 1931.
Further, in view of the absence of any material to show that the acquisition of any of the properties subsequently acquired took place prior to 1931 and the absence of any material to show the extent of the joint lands or the income thereof in or about 1931, when the acquisition in question took place, the aforesaid broad statement in the plaint of the previous suit to the effect that the family had sufficient properties from the income of which acquisitions were made in the names of different members is hardly sufficient for holding that at the time when the acquisition in question took place, in the year 1931, the joint family had a sufficient nucleus from the surplus income of which the acquisition in question could have taken place. In face of these facts, it is not possible to accept the contention of the appellants that it must be presumed in this case on the. materials on record that the joint family had sufficient nucleus out of the surplus income of which the acquisition in question could have taken place and that, as such, there is a presumption that the property in question was a joint family property.
Moreover, even if it is held that there is any such presumption, this presumption is after all a rebuttable one and it is for the Court to decide on consideration of all the materials on the record, whether the property in question is a joint family property or a separate property of the plaintiff in whose name the acquisition admittedly took place.
8. Turning now to the evidence adduced by the respective parties in support of their versions as to from what source the acquisition in question took place, it appears that the only evidence adduced on behalf of the defendant's on this point is the oral testimony of defendant No. 1 Ram Bilas Misra (D. W. 1) who has stated that his father that is Hikayat Mishra, had given Rs. 500 to the plaintiff and had asked him to offer a bid at the Court. He added that the acquisition was made for a sum of Rs. 255 only. During his cross-examination, this witness admitted that there is no witness to the effect that his father had given Rs. 500 to the plaintiff. Thus apart from the uncorroborated testimony of defendant No. 1, there is no other evidence to show that the acquisition had actually been made out of any joint family funds. The case of the plaintiff, on the other hand, was that this acquisition had been made by him out of some money belonging to his wife which she had obtained by sale of certain land belonging to her own father which she had inherited. The sale deed (Ext. 13) shows that Radhika Kuer, wife of Plaintiff Ramdeyal Mishra, had actually sold certain lands which she had inherited from her father for a consideration of Rs. 1300 on 25-8-1920. It transpires from the recitals in the document itself that out of the total consideration money of Rs. 1300, Rs. 691 was left with the vendee for prepayment of the dues of an earlier zarpeshgidar.
The document, no doubt, shows that certain amounts were due to the landlord on account of a decree for arrears of rent and also on account of subsequent arrears of rent, but the document itself recites that as the liability for payment of the rent was on the zarpeshgidar, the amounts due to the landlord on account of the decree for arrears of rent and the subsequent arrears of rent were to be set off by the vendee against zarpeshgi money while redeeming the zarpeshgi. The recitals in the document show that out of the balance of Rs. 609, that is, the balance which remained after setting off the zarpeshgi money, the executant had received Rs. 100 in cash earlier and Rs. 509 was paid to her in cash at the time of execution of the document. Thus, there cannot be any doubt that a cash amount of Rs. 609 had actually been received by the wife of the plaintiff Ramdeyal Mishra by virtue of the sale by her and it is manifest that this was her per-sonal money with which the members of the joint family had no concern. It is, no doubt, true that the acquisition of the disputed land in village Mohammad Patti took place more than 11 years after execution of the aforesaid sale-deed, but there is nothing to show that the amount which was realised bv the wife of the plaintiff as a result of the execution of the sale-deed had been spent by her before the date of the acquisition of the property in question in the year 1931. As such, there is nothing improbable in the version of the plaintiff that the acquisition of the disputed property which was made for a sum of Rs. 255 only had been made by him out of the money belonging to his wife which his wife had got as consideration money for the aforesaid sale-deed of 1920. It would thus follow that while there is no reliable evidence on the one hand to show that the acquisition was actually made out of any joint family funds, there is some reliable evidence which gives support to the case of the plaintiff that the acquisition had actually been made out of sum which belonged to his wife.
9. Turning now to the allegation regarding fraud by the plaintiff in connection with the compromise petition, the only evidence adduced on behalf of defendants 4, 6 and 7 in support of their version that their signature had been obtained on blank papers and the compromise petition had been subsequently prepared on such papers, is the oral testi-money of defendants 4 and 6. Tribeni Mishra and Gopi Mishra (D. Ws. 9 and 10), both of whom have deposed that their signatures had been taken by the plaintiff at their house on blank papers. During his cross-examination, Tribeni Mishra stated that he put his left thumb impression on the compromise petition and his son had signed for him. The son of Trebeni Mishra has, however, not been examined, although as would appear from the further statements made by Tribeni Mishra in cross-examination, that his son bad come to Court on the day on which he was examined. Further, according to him his other brothers and nephews were also present when he put his thumb (sic) other persons signing on that paper, Defendants 1 to 3, according to him, were also present at that time and then he added that Anesa Mishra and Brahma Mishra (Defendants 3 and 2) put their signature in his presence and Brahma Mishra had put his thumb mark also. On the other hand, the version of Gopi Mishra in cross-examination was that nobody excepting him and the plaintiff was present when he put his signatures on the compromise petition, and he further stated that this had already been signed by Anesa Mishra, Bageshri Mishra, Tribeni Mishra, Kauleshar Mishra and Brahma Mishra (that is, Defendant 3. 9, 4, 5 and 2 respectively) before him.
As already mentioned, defendants 1 to 3 do not claim to have put their signatures on any blank paper, but their version is that they signed the petition without going through its contents and the only witness examined in support of this version is defendant No, 1 Rambilas Mishra (D. W. 1), who has stated that he had signed this petition in Court without reading its contents. According to him further, none of the other defendants was present when he put his signature. This statement as made by him does not give any support to the version about defendants 2 and 3 also having put their signatures without going through the document and these two defendants have not been examined to show that they had actually put their signatures without going through the contents of the documents and there is no other evidence also to that effect. On looking to the compromise petition itself, however, it would appear that it purports to have been signed by defendants No. 4 Tribeni Mishra through his son Lachhman Mishra as well as by defendants 6 and 7. Gopi Mishra and Gautam Mishra personally and so far as defendants 4 and 6 are concerned, there are endorsements above the signatures as follows "Executed compromise petition. It is correct. "Similarly, so far as defendants No : 1 is concerned, he has put his signature with the endorsement "Executed compromise petition". There are similar endorsements about the compromise petition having been executed and it being correct above the signatures of some other defendants as well. In face of the above endorsement as made above the signature it is difficult to accept the version of defendants 4 to 6 about their signatures having been put on blank papers. As for the allegation by defendant No; 1 that he had signed the compromise petition without reading its contents, it appears from his own statement in cross-examination that he took a copy of the compromise petition 4 or 5 months after the compromise and he further stated that he thereon came to know the details of the lands which were allotted to him and which were left ijmal. It is quite apparent that had he been unaware about the insertion of the recitals in the compromise petition to the effect that Mohammad Patti lands were the exclusive properties of the plaintiffs on account of his having signed the compromise petition without going through Us contents, he could not have failed to notice these recitals in the compromise petition after he took the certified copy of the document. His own statement is that at the time of the talk of compromise, he had demanded partition of Mohammad Patti lands also and he had been told by the plaintiff that the same would be left ijmal.
Hence in view of his own statement that on taking the copy of the compromise petition, he came to know the details of the lands which were allotted to him and which were left ijmal, he would not have failed to notice that the lands which had been left ijmal did not include the Mohammad Patti lands. It is very significant that although the Mohammad Patti lands had not been left ijmal, no objection was ever made by him in this connection prior to the institution of the present suit. It was contended before us on behalf of the appellants in F. A. 380, that is, defendants 1 to 3, that as the recitals in the compromise petition about Mohammad Patti lands being the exclusive properties of the plaintiff were made in the midst of a number of other recitals, these might have escaped the notice of the defendants when they put their signatures on the document. This contention is, however, quite unacceptable in view of the fact that these recitals as embodied in the earlier portion of the compromise petition are coupled with the fact that Mohammad Patti lands were not mentioned in the schedules of the compromise petition which fully described the lands which were left ijmal between all the cosharers and also the lands which were left ijmal as between the descendants of Ratan Mishra.
The very fact that these lands were not included in the schedules of the properties left joint clearly give ample support to the earlier recitals in the compromise petition about these lands being the exclusive properties of the plaintiff.
10. Some evidence was adduced by the plaintiff and two of his witnesses in support of the version that the compromise petition was signed by the parties after its contents had been duly read over. Our attention was drawn to the fact that there are some discrepancies in the statements of the witnesses on the point as to who prepared the draft of the compromise petition and who read out its contents.
11. The witnesses who have been examined on this point on behalf of the plaintiff or the plaintiff himself, who has been examined as P. W. 3, P. W. 1 Treta Prasad Singh, who is a Pleader's clerk and claimed to-have scribed the compromise petition and P. W. 2 Rajendra Kishore Mishra. As would appear from the evidence of these witnesses, Shri Inderdeo Singh was a pleader for the plaintiff in the aforesaid partition suit while the defendants were represented by his son Shri Dinanath Singh. The mere fact that the father and son represented the two parties is hardly of any importance in view of the fact that it is the admitted case of the parties that they had actually agreed to divide the properties amicably before the suit was filed and the object of filing the suit was merely to get the partition recorded through Court. That this was the actual position would also appear from the fact that as shown by the order sheet (Ext. B/1), the suit was filed on 12-3-1958 and the compromise petition was filed only two days later on 14-3-1958, P. W. 1 who claimed to be the clerk of Shri Dinanath Singh has stated that the compromise petition had been drafted by Shri Dinanath Singh and he (the witness) thereafter scribed it out and it was then signed by the parties in his presence and at that time Rambilash Mishra (defendant No. 1) read it loudly and the others heard its contents.
During his cross-examination, he admitted that the petition does not bear his signature but there was no suggestion that it bore the signature of anybody else as the scribe thereof. As such, the mere fact that the signature of this witness does not appear on the petition is no ground whatsoever for disbelieving his version about having scribed the petition in view of the fact that his statement that Shri Inderdeo Singh and Shri Dlinanath Singh were the two lawyers who were engaged by the two parties and that the witness was the clerk of Shri Dinanath Singh has not been challenged. It appears, however, that the next witness P. W. 2 stated that the draft of the petition had been prepared by Inderdeo Singh and Inderdeo Singh had read it over to the parties. The version of the plaintiff himself was that Inderdeo Singh had written the draft and then asked P. W. 1 to make the fair copy of it and further according to him the petition was read over to the parties by the two lawyers and also by defendant No. 1. As the two lawyers engaged in the case were father and son and were living in the same house, the aforesaid discrepancy in the evidence of the witness as to whether the father or the son prepared the draft of the compromise petition is hardly of any importance and such discrepancy might be merely due to the fact that both of them might have taken part in preparing the draft.
Similarly, the aforesaid discrepancy as to who read out the petition might be merely due to the fact that the petition might have been read out by both the lawyers after, the fair copy was prepared and it might have been read out by defendant No. 1 himself also before he put his signature. Such discrepancies are, therefore, no ground for disbelieving the version about the document having been duly signed by the parties after its contents had been read out. In this connection, it may also be mentioned that the aforesaid witnesses had deposed in the Court below after a lapse of more than five years and, as such, the discrepancies in their statements might be due merely to the lapse of memory on the part of one witness or the other.
12. It would appear on consideration of all the above aspects that the version that the recital in the compromise petition to the effect that the Mohammad Patti belonged exclusively to the plaintiff had been made fraudulently by the plaintiff without the knowledge of the defendants is quite unacceptable and I accordingly fully agree with the finding of the learned Subordinate Judge that there was no fraud whatsoever in connection with the compromise. The above recitals in the document thus give further support to the plaintiff's case about the Mohammad Patti lands being the exclusive property of the plaintiff and, as already, the omission of these lands in the schedules wherein the lands left joint between the different co-sharers were specifically mentioned, also gives support to the plaintiff's case. On consideration of all the materials, there cannot be the least doubt that these lands are not the joint lands of the parties and, as such the suit for partition was not defective for non-inclusion of the same as the subject-matter of partition.
13. It may be mentioned here that Shri Kailash Roy, appearing for the defendant-respondents, has contended that the question as to whether there was any fraud in connection with the compromise could not be gone into in the present litigation in view of the fact that the previous suit had been decreed on basis of the compromise and the defendants had not brought any suit for setting aside the decree within the prescribed time limit under Article 95 of the Limitation Act, 1908. the prescribed period of time limit for institution of a suit for setting aside a decree obtained by fraud or for other relief on the ground of fraud was three years from the date when the fraud became known to the party and the same period of limitation has been prescribed under Article 59 of the new Limitation Act also. Hence, there cannot be any doubt that a suit by the defendants for setting aside the decree on basis of the compromise on the ground of fraud would have been barred by limitation unless filed within the prescribed time limit of three years from the date of knowledge of the fraud. Section 44 of the Evidence Act, however, provides as follows :
"Any party to a suit or other proceeding may show that any judgment, order or decree, which is relevant under Section 40, 41 or 42 and which has been proved by adverse party, was delivered by a Court not competent to deliver it, or was obtained by fraud or collusion."
The question as to whether in view of these provisions, a decree or order can be challenged on the ground of fraud in a collateral proceeding without any suit for setting aside the decree came up for consideration before a Division Bench of this Court in the case of Bishnunath Tewari v. Mst. Mirchi, AIR 1955 Pat 66. In this case, there was a divergence of opinion between the two Judges of this Court, namely, Lakshmikanata Jha, C. J. and Reuben, J. who initially heard the case, on which there was a reference to a third Judge, namely, Ramaswami, J. fas he then was) and the latter agreed with the views expressed by Lakshmikanta Jha, C. J. and observed as follows :--
"It is important to remember that fraud does not make a judicial act or transaction void but only voidable at the instance of the party defrauded. The judicial act may be impeached on the ground of fraud or collusion in an active proceeding for rescission by way of suit. The defrauded party may also apply for review of the judgment to the Court which pronounced it. But the judgment may also be impeached in a collateral proceeding in which fraud may be set up as a defence to an action on the judgment or as an answer to a plea of estoppel or res judi-cata found upon the judgment."
It was further held in this case that the provision relating to limitation as provided in Article 95 of the Limitation Act has no bearing in relation to Section 44 of the Evidence Act. As would appear from the terms of Section 44 of the Evidence Act, already quoted above, this section lays down that any party to a suit or other proceeding may show that a judgment, order or decree referred to in the section, which has been proved by the adverse party, was delivered by a Court not competent to deliver it or was obtained by fraud or collusion. The right as given by this section has not been fettered by any limitation whatsoever and it is manifest that such a right is quite independent of the right to get a judgment or decree etc. set aside by bringing regular suit for the purpose. I, therefore, fully agree with the views expressed in the earlier decision of this Court referred to above and hold that such a plea can be raised under Section 44 of the Evidence Act in a collateral proceeding irrespective of the time when the judgment was delivered or decree or order was passed. The aforesaid contention of Shri Kailash Roy is accordingly rejected as being quite untenable. This, however, makes no difference so far as the result of this appeal is concerned in view of the findings above that there was no fraud in connection with the compromise in question.
14. In the result, both the appeals are dismissed with costs in favour of the contesting Respondents 1 (a) and 1 (b), but there will be one set of hearing fee to be paid half and half by the appellants in each of the two appeals, and the judgment and decree of the Court below are hereby affirmed.
T. Nath, J.
15. I agree.