Patna High Court
Raja Durga Prosad Sinha vs Thakur Prankrishna Sinha And Ors. on 22 February, 1917
Equivalent citations: 39IND. CAS.530, AIR 1917 PATNA 361
JUDGMENT
1. This second appeal arises out of a suit brought by Raja Durga Prasad Singh of Jharia for resumption of a half share in Mauza Poras Banya. The Subordinate Judge decreed the suit but the Additional District Judge dismissed it in p Article Hence the present second appeal by the plaintiff.
2. The plaintiff's case is that Raja Sangram Singh purchased the whole village in execution of a rent-decree in 1838, that he gave a khorposh of half to his son Nandkishore by his wife Tara Kumari, and the other half to his son Brij Bihari by his first wife Gobinda Kumari, and that on the death of Brij Bihari his khorposh was resumed by Sangram Singh's successor Raja Udit Narain and re-granted to Kunj Behari, the son of Brij Behari.
3. The defendant No. 5, who alone contests the suit before us, claims as the widow of one Haradhon who was purchaser in execution of a mortgage-decree against Kunj Behari. The learned Subordinate Judge finds that the property was originally a mokarari and that Sangram Singh brought the property to sale in execution of a money-decree at which his wives Gobinda Kumari and Tara Kumari with their own money purchased each a moiety share and that upon the death of Tara Kumari Nandkishore inherited half while Gobinda Kumari's share has now devolved upon Kunj Behari.
4. The learned Additional District Judge further finds that Kunj Behari's father Brij Behari was liable to pay only half the rent reserved upon the mokarari, namely, Rs. 167-15-10 and that Sangram Singh granted as a khorposh allowance this reserved rent to Brij Behari.
5. One of the questions for determination before the learned Additional District Judge was whether the purchase of Sangram Singh was made in his own behalf in the names of his two wives or whether his two wives were independent purchasers. He has answered this question in favour of his wives. On the other hand Mr. Pugh on behalf of the appellant argues before us that the learned Additional District Judge has arrived at his finding merely upon inferences which do not follow from the facts established.
6. The learned Additional District Judge has gone in great detail into the evidence before him and come to the finding that the purchase was not benami. On the other hand, Mr. Pugh contends that in India where a property is bought apparently by a wife and where neither party has given evidence to show who paid the purchase-money, the presumption arises that the purchase was made by the husband in the name of the wife. He relies for this proposition on Bai Motivahoo v. Purshotam Dayal 29 B. 306 at p. 314 ; 6 Bom. L.R. 975 but in that case there was a clear finding that the husband notwithstanding the apparent purchase by the wife had continued in possession of the property.
7. Mr. Pugh next relies upon the judgment of their Lordships of the Privy Council in Parbati Dasi v. Baikuntha Nath Das 22 Ind. Cas. 51 ; 15 M.L.T. 66 ; (1914) M.W.N. 42 ; 19 C.L.J. 129 ; 12 A.L.J. 79 ; 18 C.W.N. 428 ; 16 Bom. L.R. 101 ; 26 M.L.J. 248 (P.C.). In that case the purchase was in the name of a son and both the lower Courts in India found that there was no evidence that the son had any separate funds, and their Lordships held that in these circumstances in the absence of such evidence the presumption was clear and decisive that the property was acquired by the father in the name of the son. That case, however, has no application here. That case apparently proceeded upon the presumption which attaches to all joint families in which a son is a co-parcener with his father.
8. In the case before us the wives were not necessarily the co-parceners of their husband and there was no presumption that every property standing in the name of the wife was joint property in which in the absence of other evidence the husband would have a share. Moreover, the learned Additional District Judge is of opinion that the wives had separate property. In these circumstances the onus which rested upon the plaintiff to show that the wives were not the real purchasers of the property has, in our opinion, not been discharged.
9. Mr. Pugh's next argument is that if the wives had purchased in their own right Kunj Behari would have got one-fourth of the mokarari and not one half. This point does not seem to have been litigated in any of the Courts below and we are only able to conjecture how Kunj Behari came in fact to be in possession of the other quarter. Possibly he may have got it by grant from Udit Narain or by adverse possession, but in the absence of evidence it is not competent for us to make any conjecture. All we can say is that Kunj Behari was in possession of a half share in the mouza and that he derives that possession and title from the purchase of his grandmother Gobinda Kumari. If, therefore, it is once admitted that Kunj Behari got a title to the half share of Gobinda Kumari, then obviously the Raja had no right to grant anything more than the rent reserved upon that mokarari by way of khorposh to Brij Behari and, therefore, the learned Additional District Judge's finding that the khorposh embraced only half of the rent reserved upon the mokarari of the whole village appears to be correct. The learned Additional District Judge has also referred to many documents in support of his inference as to Kunj Behari's interest. Sitting in second appeal we can only interfere with his judgment if it is shown affirmatively that the construction put by him upon these documents could not possibly have been correct. It was open to him to take the construction in favour of the defendants rather than that in favour of the plaintiff and if upon reading all the evidence either construction was legitimate, it is not open to us in second appeal to say that he was wrong. The expression "late khorida khorposh" does not, in our opinion, necessarily mean a khorposh consisting of auction-purchased lands. In our opinion it has not been shown that it does not mean a khorposh interest in the rent reserved as distinguished from the mokarari interest which had been purchased by the Ranis. Indeed the evidence shows that the mokarari interest was in the Raja's book kept perfectly distinct and separate from the khorposh interest and that it never merged in the proprietary interest of the Raja. Having regard to the manner in which the findings of fact have been stated and the evidence upon which those findings have been arrived at we are unable to say that the lower Court is wrong. We accordingly dismiss the appeal with costs.
10 The learned Vakil for the appellant submits at this point that upon the decree of the Additional District Judge he is entitled to mesne profits for two years to the amount of the annual rent reserved but having regard to the manner in which the plaint was framed and to the absence therein of any details for calculating mesne profits, we think that the learned Judge in the Court below was quite right in refusing the prayer. The decree of the lower Court entitling the plaintiff to half the mokarari rent reserved on the mouza will be affirmed.