Bombay High Court
Kishore Narsingh Alias Hiralal Shah & ... vs Prakash Narsingh Shah & Ors. on 20 October, 2000
Equivalent citations: 2001(2)BOMCR395, (2001)2BOMLR1, 2001 A I H C 777, 2001 BOM LR 2 1 (2001) 2 BOM CR 395, (2001) 2 BOM CR 395
Author: D. G. Deshpande
Bench: D.G. Deshpande
JUDGMENT D. G. Deshpande, J.
1. The Plaintiffs are the children of one Sushilabai and they have filed the suit for declaration that they are the members of Joint Hindu Undivided family of late Narsingh alias Hiralal Shah, who was their father and for share in his property and for other Incidental reliefs.
2. The case of the plaintiffs in short is that deceased Sushilabai Shah was the second wife of Narsingh Shah who was also known as alias Hiralal Shah, and the defendants are the children of the first wife of Narsingh Shah from the deceased Smt. Banubai. According to the plaintiffs after the death of Narsingh Shah they have become entitled to a share in his property being the legal heirs. Narsingh Shah died in 1953 but he was married to Sushilabai in 1935 and till his death Narsingh Shah was paying maintenance to Sushilabai and after Narsingh Shah Banubai paid the maintenance and after her death the defendants paid the maintenance but since the defendants suddenly stopped paying maintenance, they have constantly filed a suit for declaration and other reliefs.
3. Defendants have on the other hand totally and completely denied the case of the plaintiffs. They have denied that Sushilabai was the second wife of Narsingh Shah. They have denied that Narsingh Shah was known as Hiralal. They have denied that any maintenance was ever paid either by Narsingh Shah or by Banubai or by them and therefore ultimately denied that the plaintiffs are children of Sushilabai from Narsingh Shah and as a result according to the defendants plaintiffs have no right to claim any relief in respect of the property left by Narsingh Shah.
4. On the basis of the aforesaid pleadings, following issues were framed by me on 23.6.2000.
(1) Whether the suit is barred by Law of Limitation?
(2) Whether plaintiffs are sons and daughters of the deceased Narsingh?
(3) Whether Sushilabai was second wife of the deceased Narsingh as alleged in para 2 of the plaint?
(4) Whether there was joint family as alleged in para 4 of the plaint?
(5) Whether the deceased used to pay Rs. 500/- to Rs. 200/- per month as alleged in para 5 of the plaint?
(6) Whether there was any joint family on joint family business as alleged In paras 7 and 14 of the plaint?
(7) Whether Exhibit 'A' are the properties of Hindu Undivided family as alleged in para 14 of the plaint?
(8) Whether the plaintiffs are entitled to any reliefs, if so what?
My findings thereon are as under :
Issue No. 1 : No. Issue No. 2 : Yes.
Issue No. 3 : Yes.
Issue No. 4 : Yes.
Issue No. 5 : Yes.
Issue No. 6 : Yes.
Issue No. 7 : Yes.
Issue No. 8 : As per the final order.
5. Thereafter parties led their evidence, in which plaintiffs examined one Purshotam Bhaskar Khare as P.W. 1, Aruna Rajan Pancholi as P.W. 2 who is also plaintiff No. 2, Kishore Shah as P.W. 3 who is also plaintiff No. 1. Plaintiffs also examined one Sukhlal P. Kothari as P.W. 4 working with Narsingh Shah for quite a long time. On the other hand the defendants examined defendant No. 1 Prakash as D.W. 1. They have also examined other witnesses Umedlal Jawanmal Jain as D.W. 2, Badrinarayan Gulabdas Vaishnav as D.W. 3, Vimalchand Nihalchand Jain as D.W. 4, and Bhagwandas Mulchand Mehta as D.W. 5. All these witnesses from D.W. 2 to 5 were examined for the purpose of proving that to their knowledge Narsingh Shah never married Sushilabai, that no maintenance was paid by Narsingh Shah to the plaintiffs or to their mother Sushilabai and that the case of the plaintiffs is false.
6. After the evidence was over. I heard arguments of counsel for the plaintiffs and the defendants at length.
7. It was contended by the plaintiffs that plaintiffs have succeeded in proving their case i.e. the matrimonial relations of Sushilabai with Narsingh Shah, that Narsingh Shah was known as Hiralal and that plaintiffs are the children of Hiralal and they have right, title and interest in the properties from Narsingh Shah. On the other hand it was contended by counsel for the defendants that the plaintiffs have failed to prove any of the aforesaid facts and to the contrary from the evidence of the defendants and his witnesses, it was clear that Narsingh Shah never married Sushilabai. Counsel for the defendants also urged that plaintiffs have failed to prove that Narsingh Shah was known as Hiralal also. Further according to the counsel for the defendants plaintiffs had not been able to prove that the plaintiffs were the members of the Joint Hindu Undivided family and as such not entitled to a share in the estate and property owned by said Joint Hindu Undivided family. Counsel for the defendants also relied upon certain authorities, namely, Yendapalli Venkataraju (died) and another v. Yendapalli Yedukondalu alias Venkateswaru and others, in support of his contention regarding the existence of joint family and the plaintiffs being members thereof and also upon the Judgment of the Supreme Court in G. Narayana Raju (dead) by his legal representative v. Chamaraju and others, in the same regard. On the other hand counsel for the plaintiffs relied upon the Judgment delivered by me in the case Smt. Vasanti P. Shetty v. Nagaveni J. Shetty & others, to overcome the point of limitation raised by the defendants.
8. In view of these submissions the evidence of the parties will have to be scrutinised with reference to their arguments.
9. ISSUE No. 1 :- This issue is raised on the basis of the pleadings of the defendants because according to them the suit of the plaintiffs is barred by limitation. Counsel for the defendants contended that since Narsingh Shah died in 1953 and Banubai died in 1971 or so the right of the plaintiffs to claim share in the property of Narsingh Shah if any came to an end within 12 years of the death of Narsingh Shah or within 12 years from the death of Banubai. It was also alternatively argued that even if it is accepted for the sake of arguments that maintenance was being paid by the defendants, the suit is filed after 12 years of the stopping of payment of maintenance and therefore it is barred by limitation. Counsel for the defendants relied upon Articles 58, 65, 110 and 106 of the Limitation Act, which reads as under :
Description of suit Period of limitation Time from which period begins to run.
Article
58. To obtain any other declaration.
Three years When the right to sue first accrues.
65. For possession of immovable property or any interest therein based on title.
Twelve years When the possession of the defendant becomes adverse to the plaintiff.
110. By a person excluded from a joint family property to enforce a right to Twelve years When the exclusion becomes known to the plaintiff.
106. For a legacy or for a share of a residue ......... the estate.
Twelve years When the legacy or share becomes payable or deliverable.
10. Out of these four Articles of Limitation Act, Article 106 docs not apply in the instant case or is not attracted because it is for a suit filed for the purpose of legacy or for a share of a residue bequeathed. It is not the case of either of the parties that Narsingh Shah left any legacy or made any Will or any residue after the bequeath. For considering other Articles of the Limitation Act, it is necessary to scrutinise the plaint. The suit is filed admittedly in 1986. As per the plaint Narsingh Shah died in 1953 and Banubai continued to pay the amount of Rs. 500/- per month till 1971 i.e. till the death of Banubai. After her death her eldest son Prakash - defendant No. 1 took the management of the family business and in 1975 he reduced the maintenance from Rs. 500/- to Rs. 200/- and from 1978 Prakash stopped paying maintenance altogether. According to the plaintiffs their mother Sushilabai sent repeated messages practically every month to the defendants as to why the payment was stopped. The defendants were giving some excuses like slackness in the business for their inability to pay the maintenance and the defendants also gave assurances that they would restart the maintenance as soon as the family business was revived. According to the plaintiffs this state of affairs continued for a long time but defendants gave similar excuses that their business was running into loss. Therefore, ultimately in 1985 the plaintiffs gave notice to the defendant No. 1 for particulars of the property left by Narsingh Shah and for their share and then they filed the suit in 1986.
11. According to the counsel for the defendants even on plain reading of the plaint the suit is barred by the limitation because plaintiffs have failed to prove the existence of Joint Hindu Undivided family of Narsingh Shah, secondly plaintiffs got a right to claim share in the property of Narsingh Shah on the death of Narsingh Shah in 1953 and therefore the suit should have been filed within 12 years thereof. Thirdly and in the alternative Banubai died in 1971 and if Banubai had paid maintenance upto 1971 then the suit should have been filed within 12 years thereof. Sushilabai had given notice to Nihalchand Tarachand Shah who was looking after the business of Narsingh Shah vide notice (Exhibit 'P-10' collectively) on 2.6.1958 and since there was denial and refusal to comply with this notice, the period of limitation will start from 2.6.1958 and therefore the suit should have been filed on or before 1970. Therefore, according to the defendants considered from any angle suit is barred by limitation.
12. As per Article 65 of the Limitation Act the suit for possession of immovable property or any interest therein based on title has to be filed within 12 years and the limitation begins to run when the possession of the defendants become adverse to the plaintiffs, and under Article 110 a suit by a person excluded from a joint family property to enforce a right to share therein has to be filed within 12 years from the time when the exclusion becomes known to the plaintiff. At this juncture, it is also necessary to consider provisions of Hindu Law prior to 1956 because Narsingh Shah according to the plaintiffs married Sushilabai in 1935.
13. Admittedly, the suit of the plaintiffs is in respect of the property of Narsingh Shah. It is not their case that property in the hands of Narsingh Shah or acquired by Narsingh Shah was the ancestral property of Narsingh Shah. Both the parties have not raised any such plea and both of them have proceeded on the basis that property of Narsingh Shah was a self acquired property i.e. acquired by him from his own hard work and labour and through his business of "Stylish & Company". Therefore, this is a suit in respect of the self acquired property of Narsingh Shah who died in 1953 and is therefore a simple suit for partition.
14. When these arguments were heard by me, none of the Advocates made any submissions regarding the provisions of Hindu Law applicable to the parties in 1953. Therefore on that limited point, I heard them again when it was contended by counsel for the plaintiffs that as per the provisions of Hindu Law then prevailing i.e. in 1953 both the widows of Sushilabai and Banubai would get one share and sons of Narsingh Shah from Sushilabai and from Banubal would get one share each separately and equally. He also submitted that the daughters either from Sushilabai or Banubai would not get any share in the property. As against this, counsel for the defendants contended that the question of giving any share to plaintiffs or to their mother Sushilabai does not arise at all because they have failed to prove their case and secondly because the suit is barred by limitation. The parties are governed by Mitakshara Hindu Law.
15. Counsel for the plaintiffs also contended in addition to his earlier submissions regarding facts that so far marriage between Sushilabai and Narsingh Shah is concerned, firstly it is proved by witness P. B. Khare - P.W. 1 and even if for the sake of arguments it is accepted that there is no direct evidence of marriage ceremonies being performed between Narsingh Shah and Sushilabai their staying together and being regarded as husband and wife for such a long period from 1935 to 1953 was sufficient enough to hold that they were married. Counsel for the plaintiffs also relted upon a Judgment of Supreme Court in Badri Prasad v. Deputy Director of Consolidation and others, wherein the Supreme Court has held that if a man and a woman lives as husband and wife for 50 years or more then they cannot be compelled to produce documents regarding ceremonies of marriage. As against this, counsel for the defendants contended that there is no proof in any form whatsoever that the society accepted Narsingh Shah and Sushilabai as husband and wife or that they were regarded as such.
16. Coming to the question in dispute, admittedly therefore this is a suit for partition of the property of Narsingh Shah and if the relationship of husband and wife is said to have been proved (which will be discussed subsequently) then on the death of Narsingh Shah in 1953 his property would devolve upon his two widows Sushilabai and Banubai and both of them will get one share and Narsingh Shah's sons i.e. two sons from Sushilabai will get one share each and defendant No. 1 will get one share, therefore in all there will be four shares in the property. However, when the suit is filed both Sushilabai and Banubai were dead and therefore their share which was a limited share as per then existing provisions of Hindu Law will revert to Narsingh Shah and it will be again divided into three sons and since both Sushilabai and Banubai died after coming into force of Hindu Succession Act, 1956, the daughters will also get share in the said property. Therefore, in any case all the plaintiffs and the defendants will be entitled to share in the property.
17. At this juncture, the objection regarding limitation, as stated above, and as raised by the defendants requires consideration. According to the counsel for the defendants the prayer in the plaint is for a declaration that plaintiffs are the members of Joint Hindu Undivided family of late Narsingh Shah and as such they are entitled to share in alt the assets and properties of the said Hindu Undivided Joint family. Counsel for the defendants emphatically contended that the plaintiffs have failed to prove the existence of Hindu Undivided family of Narsingh Shah because according to him even if the plaint allegations are accepted as they are Sushilabai was living separately and so also Banubai their children were living separately, the estate of Narsingh Shah was not being enjoyed either by Sushilabai or her children and therefore at no point of time Sushilabai, Banubai, Narsingh Shah and all their children were joint in estate, means and residence and therefore there was no joint family.
18. It is true that even though the prayer of the plaint is for a declaration about the existence of a joint family the plaintiffs have not been able to prove that there was any joint family of Narsingh Shah. However, in my opinion that will not come in the way of the plaintiffs because what the Court has to decide is to whether under the provisions of the Hindu Law then existing plaintiffs are entitled to a share in the property or not. The prayer in the plaint even if wrongly worded cannot deprive the plaintiffs of their share in the property if the allegations in the plaint are sufficient to constitute the claim of the plaintiffs in respect of the property of Narsingh Shah. In other words, the prayer in the plaint cannot be isolated and it has to be read in conjunction with the allegations in the plaint. So far as point of limitation is concerned, counsel for the defendants gave the following particulars :
Narsingh Shah died in 1953;
Banubai died in 1971;
Plaintiff No. 1 was 3 years of age in 1953 and became major in 1968;
Plaintiff No. 2 was 6 years of age in 1953 and became major in 1965;
Plaintiff No. 3 was 4 years of age in 1953 and became major in 1967;
and therefore Plaintiff No. 1 could have filed a suit in 1971, Plaintiff No. 2 could have filed a suit in 1968 and Plaintiff No. 3 could have filed a suit in 1970.
19. According to the counsel for the defendants limitation to file the suit expired for Sushilabai in 1965 because she did not file the suit within 12 years of the death of Narsingh Shah even if cause of action arose for Sushilabai in 1958 when her right was disputed, limitation expired in 1970, and so far as plaintiffs are concerned in any case their right to file the suit came to an end at any rate by 1980. Therefore, according to him the suit is barred by limitation whatever is starting point of limitation in respect of Sushilabai or any or either of plaintiffs.
20. Since I have already come to the conclusion that the question whether plaintiffs are members of Joint Undivided Hindu family of Narsingh Shah does not arise and/or even if it is held that plaintiffs have proof to prove such an existence, the suit is purely and simply a suit for claiming share in the property of Narsingh Shah and therefore the question would be whether limitation would start running against the plaintiffs as contended by the defendants or it would continue till plaintiffs demand partition of the property of Narsingh Shah and there is refusal or denial to partition the property by the defendants.
21. Counsel for the plaintiffs also relied upon my own Judgment in Smt. Vasanti P. Shetty v. Nagaveni J. Shetty & Ors., wherein the property was a self acquired property of the father. The father died intestate after coming into force of Hindu Succession Act then heirs in Class - 1 of Schedule of Hindu Succession Act would be entitled to inherit his property and plaintiffs in that case being the daughter was also entitled. However, the plaintiffs did not file a suit until after 23 years and therefore the defendants raised similar plea of limitation. Counsel for the defendants in that suit relied upon Article 110 of the Limitation Act and contended that since the suit was not filed within 12 years of the exclusion of the plaintiffs from the joint family property, she had lost her right to file the suit, it was held by me in that case that once there is right to inherit the property upon a person, then burden of proving of exclusion from enjoyment as contemplated in Article 110 of the Limitation Act heavily rested upon the defendants. Mere non exercise of right by the plaintiff from the date of her marriage was no indication on the part of the plaintiff that she had given up her rights in the suit property or that she was excluded from the defendants from the joint family property. Further it was held by me that exclusion of the plaintiff could only be proved if there was a clear and unequivocal demand of partition or share in the property by the plaintiff and it was denied and opposed by the person in possession. Since there was nothing on record to prove that anytime between 12 years of institution of the suit, the plaintiff had demanded her share in the property and the same was denied by the defendants, objection regarding limitation could not be accepted. It was also held by me that principle of estoppel did not apply against the plaintiffs and mere non exercise of any right by the plaintiff did not amount to waiver because waiver was an intentional relinquishment of her own right.
22. In my opinion, the aforesaid judgment aptly applies to the facts of the present case. There is nothing on record to show that the demand for partition of the property of Narsingh Shah was openly, clearly and specifically made by the plaintiffs 12 years before the filing of the suit and that such a demand was denied, rejected and turned down by the defendants expressly and openly. If that had been the case then the period of limitation would have started against the plaintiffs from the date of their demand and refusal by the defendants. Since in the instant case there is no specific demand by the plaintiffs of partition of their share in the property of Narsingh Shah and since there is no refusal or denial by the defendants, the period of limitation would not start against the plaintiffs under any of the provisions of Limitation Act as contended by counsel for the defendants. Mere non-assertion of right in the property by the plaintiffs will not amount to their exclusion. Because admittedly Narsingh Shah was living with Banubai and her children separately and Sushilabai was living separately. Narsingh Shah was providing maintenance as alleged by the plaintiffs and this maintenance was continued by Banubai after the death of Narsingh Shah and the other defendants after the death of Banubai. Therefore, no question arose for the plaintiffs to claim any partition because they were satisfied with the maintenance granted and provided to them. They therefore never demanded any share in the property of Narsingh Shah and consequently period of limitation so far as this suit is concerned never started to run against the plaintiffs. It is true that Sushilabai had given a notice to Nihalchand on 2.6.1958. This notice and its reply by Nihalchand is at Exhibit P-10 collectively. In this notice there is no demand for partition of the property. What is demanded by Sushilabai that they should be paid monthly maintenance as was being done by NarsJngh Shah. Therefore, period of limitation against plaintiffs cannot start from this notice of 1958. It was also contended by counsel for the defendants that from notice Exhibit P-11 given by the plaintiffs it is clear that the defendants had not paid maintenance from 1971 and therefore period of limitation would start from 1971 and consequently the suit filed in 1986 i.e. after 15 years will be barred by limitation. Even this submission is without any legal basis, firstly, because the right which the plaintiffs and in the property of Narsingh Shah by reason of their birth and by reason of Narsingh Shah having died intestate cannot come to an end merely by efflux of time. It can only come loan end after plaintiffs make specific demand for partition of their father's property and such a demand is dented and rejected by the defendants and thereafter the plaintiffs failed to file a suit within 12 years thereof. It is clear from the evidence that has come on record and particularly from Exhibit P-11 that it was the claim for partition and for accounts was made by the plaintiffs for the first time 1n 1985 by the said notice. Stopping of maintenance by the defendants in 1971 cannot be a starting point of limitation against the plaintiffs. If Sushilabai had in her earlier notice Exhibit P-10 dated 2.6.1958 demanded the separate share or separation of Narsingh Shah's property and the same was denied by the defendants then the limitation would have started running against the plaintiffs. But in the said notice Exhibit P-10 there is no demand by Sushilabai of separation of her share or shares of her son in the property of Narsingh Shah.
23. There is nothing on record nor is brought in the cross-examination of the witnesses of the plaintiffs that the plaintiffs have demanded partition any time before 12 years of filing of the suit and that their demand was refuted or denied by the defendants. As per the allegations in the plaint maintenance was being paid by Banubai till she was alive and after her death Prakash - defendant No. 1 reduced maintenance from Rs. 500/- to Rs. 200/- and paid it upto 1978 and stopped paying the maintenance thereafter. Even from the evidence of the witnesses of the plaintiffs it is clear that maintenance was being paid up to 1978 and therefore if payment of maintenance can be considered to be an act of the defendants in recognition of the right of the plaintiffs then period of limitation would start from 1978 and the suit would be within limitation.
24. It was contended by counsel for the defendants, in addition, that relief of declaration made by the plaintiffs to prayer (a) of the plaint is also barred by limitation because as per Article 58 of the Limitation Act the period of limitation is 3 years as for residuary declaration. I am not in agreement with the submissions of counsel for the defendants because a declaration is merely the assertion of a right and getting a judgment from the Court regarding certain and particular right. If the substantial right existed then whether the relief of declaration is barred or not will not affect the reliefs claimed by the plaintiffs and since the substantial right of the plaintiffs to claim partition and separate possession of Narsingh Shah's property is not affected by efflux of time nor barred by the provisions of Limitation Act. The relief of declaration even if time barred will not effect the claims of the plaintiffs because in the suit for partition no declaratory relief is necessary and Court can decide the rights of the parties with reference to the main relief of partition.
25. Considering therefore all these provisions of law, I hold that when the suit is not barred by limitation as alleged and contended by the plaintiffs therefore findings of issue No. 1 is in the negative.
26. ISSUE NOS. 2 AND 3 :- Other crucial questions are covered by issue Nos. 2 and 3 and therefore they are required to be considered together. Issue No. 3 is about matrimonial status of Sushllabai with Narsingh Shah and Issue No. 2 is about the plaintiffs being the children of Narsingh Shah.
27. For proving the relationship of Narsingh Shah with Sushilabai the plaintiffs mainly relied on the evidence of P.W. 1 P. B. Khare who was 82 years of age when he gave evidence and he has stated that his father was knowing Narsingh Shah and he attended marriage of Narsingh Shah with Sushilabai along with his father at Hubli, Karnataka. However, so far as the aspect of actual marriage ceremonies is concerned, plaintiffs have not examined any other witness other than P.W. 1 P. B. Khare and this witness did not state anything about the marriage ceremony that Narsingh Shah and Sushilabai went through. Therefore, so far as actual marriage ceremony is concerned, there is no evidence forthcoming from the plaintiffs. However, that cannot be a ground for rejecting the claim and contentions of the plaintiffs because as rightly argued by counsel for the plaintiffs proof of marriage ceremony is not mode of proving marriage relationship and the same can be established by evidence of the fact that a man and woman were accepted and recognised by the society and all concerned as husband and wife and they lived together as husband and wife.
28. However, in this regard it was contended by counsel for the defendants that plaintiffs have not adduced any evidence to show that Narsingh Shah and Sushilabai were accepted and were treated as husband and wife by the society. The evidence of P. B. Khare according to the counsel for the defendants was scanty and without any particulars and therefore could not be believed or relied upon.
29. It is true that plaintiffs apart from P.W. 1 P. B. Khare did not examine any other witness to prove the matrimonial relations of Narsingh Shah with Sushilabai. However, it does not the quantity that matters but quality of evidence which is required to be considered by the Court and there is no provision of law which requires that for proving the particular fact a particular number of witnesses should be examined. Therefore, the evidence of P.W. 1 P. B. Khare has to be tested to find out whether worthy of credence and whether his evidence and attending circumstances prove the matrimonial relationship of Sushilabai with Narsingh Shah.
30. The first thing that is clear from the evidence of P.W. 1 P. B. Khare is that the total independent unrebuttal and disinterested witness, there is absolutely nothing in his cross-examination to cast suspicion about his integrity, nothing is brought on record that he had any grudge against the defendants or he is favouring the plaintiffs for some oblique motives.
Defendants have not been able to shake the credit of the witness in the least. Nothing is brought on record as to why a man of 82 years of age having no fiscal or contractual relationship with Narsingh Shah no concern with the business of Narsingh Shah would give false evidence only to help the plaintiffs.
31. Therefore, independent status of P.W. 1 Khare, his age and his non attachment with the plaintiffs or absence of hostilities with the defendants give strong credibility to him.
32. P.W. 1 Kharc in his evidence has stated that firstly he has gone to Hubli to attend the marriage and Narsingh Shah, his father and marriage party came back and Sushilabai came to Bombay after a week or so. Thereafter, Narsingh Shah used to frequently visit her. Narsingh Shah used to ask this witness P.W. 1 P. B. Khare to go to Sushilabai, that Narsingh Shah used to frequently stay with Sushilabai and they were behaving as husband and wife. He has also stated that all the plaintiffs are the children of Sushilabai from Narsingh Shah and there was one more brother of plaintiffs. This witness has made affidavit in support of caveat at interlocutory stage. He was cross-examined at length by the defendants but nothing could be brought on record to create suspicions or doubt his testimony or about his integrity nor any contradictions were brought on record in his evidence. As such the evidence of this witness has to be accepted and relied upon completely and totally, net result would be therefore that even though the plaintiffs had examined only one witness in the form of P.W. 1 Khare they have succeeded in proving that Narsingh Shah and Sushilabai were married and they lived as husband and wife together for about 18 years before the death of Narsingh Shah.
33. Apart form the evidence of P.W. 2 there is other documentary evidence on record which shows that Narsingh Shah was accepted as husband of Sushilabai. This evidence was actually produced for the purpose of proving that Narsingh Shah was also known as Hiralal. However, it also helps the plaintiffs in proving that Sushilabai and Narsingh Shah were regarded and accepted as husband and wife.
34. The most important piece of evidence in that regard is the evidence of P.W. 4 Sukhlal P. Kothari, he was examined by the plaintiffs. The said Sukhlal Kothari had worked with Narsingh Shah for a considerable time in the furniture business (Stylish and Company) of Narsingh Shah. The witness was 85 years of age when his evidence was recorded. However, it appeared when the witness was put in witness box that he is not going to support the plaintiffs for the reasons best known to him because his presence was procured by issuance of bailable warrant. The witness tried to plead ignorance about the relationship of Sushilabai and Narsingh Shah. He was examined mainly by the plaintiffs because the plaintiffs had relied upon a receipt issued by this witness to Sushilabai regarding payment of insurance money to her in respect of insurance policy of Narsingh Shah to which Sushilabai was a nominee. P.W. 4 Sukhlal Kothari initially tried to contend that he has not made any payment to Sushilabai nor any cheque was given by him in respect of insurance of Narsingh Shah. However, he could not continue to plead ignorance because of his affidavit which he had sworn on 3.10.1985 before the Notary Public for the purpose of supporting the case of the plaintiffs and therefore when he was found to be reluctant to his stand taken in the said affidavit (Exhibit P-16) he was confronted with the same and he had to admit the contents of the said affidavit.
35. In the said affidavit (Exhibit P-16) this witness Sukhlal Kothari has stated that he was serving with Narsingh Shah as Munim and was looking after the furniture business under the name and style of Stylish & Co. He has stated that Banubai was staying at Khar and Sushilabai was staying at Mahim since before his joining the services of Narsingh Shah in 1937. In 1940-41 he came in contact with Sushilabai when he was required by Narsingh Shah to give her monthly maintenance for her separate establishment at Mahim and he might have given maintenance amount to Sushilabai on 3/4 occasions. Sukhlal Kothari in his affidavit further stated that Narsingh Shah has taken life policy in his name and in two of those policies Sushilabai was a nominee. Therefore after the death of Narsingh Shah, amount due under the said two policies where Sushilabai was a nominee was personally handed over by him to Sushilabai at Mahim and this amount was less than Rs. 10,000/-. He has also stated that Kishore, Aruna, Lata are the children of Sushilabai and they were staying at Mahim. He has further stated that Narsingh Shah was maintaining both the families, one at Khar and one at Mahim and was looking after the children in the best possible way as he was doing good business.
36. Since the witness Sukhlal Kothari was confronted with this affidavit and it proved on record and is also a part of record having been filed earlier at interlocutory stages the evidence of Sukhlal Kothari (P.W. 4) has to be read in conjunction with the said affidavit. He had to admit the contents of the affidavit though he tried to explain In the cross-examination that he does not know English.
37. Evidence of Sukhlal Kothari was challenged by the counsel for the defendants on the ground that testimony of witness could not be relied upon, firstly, because he was not fully supporting the plaintiffs and secondly because he was removed from services by Narsingh Shah because Narsingh Shah had lost faith in him he was diverting the customers of Narsingh Shah to his own furniture business, which was resulting in huge loss to Narsingh Shah.
38. All these suggestions were denied by the witness P.W. 4 Sukhlal Kothari and apart from the suggestions there is nothing on record to show that the witness is giving false evidence in favour of the plaintiffs. The evidence of P.W. 4 coupled with the fact that he swore affidavit in favour of the plaintiffs as early as in 1985 goes a long way In proving the claim and contentions of the plaintiffs that Sushilabai was the wife of Narsingh Shah, that she was being regarded and accepted by the society as such, that she was a nominee of Narsingh Shah in respect of two policies as his wife or widow, she received the amount of those two policies from Sukhlal Kothari (P.W. 4). Receipt in that regard was proved by this witness P.W. 4 because he had himself signed the said receipt and he has also stated that after the amount of policies was handed over to Sushilabai he helped her in opening an account in her name. Therefore, so far as relationship of husband and wife between Sushilabai and Narsingh Shah is concerned, evidence of P.W. 4 Sukhlal Kothari and P.W. 1 P. B. Khare is more than sufficient apart from other evidence on record. Evidence of P.W. 4 also proves the contentions of the plaintiffs that Narsingh Shah was paying them maintenance separately is true.
39. The parties were at dispute as to whether Narsingh Shah was also known as Hiralal. It is true that there is no issue on that point but in view of the importance of this particular aspect it has to be eonsidered separately. Plaintiffs have been contending right from the beginning that Narsingh Shah was known as alias Hiralal Shah. Defendants on the other hand totally denied this contention. However, in order to prove this fact, plaintiffs have produced a number of documents on record through P.W. 1 and 2. They are Exhibits P-3, P-4, P-5, P-G, P-7, P-8, P-9. P-12, P-13, P-15, P-16, X-3 and X-6 for identification.
40. Exhibit P-3 is a letter written by the New Asiatic Insurance Co. Ltd. dated 1.6.1953 and addressed to Smt. Sushilabai w/o. N. D. Shah in respect of claim of Policy No. A-38667- N. D. Shah (Deceased). Exhibit P-4 is the letter written by Life Insurance Corporation of India addressed to Smt. Sushilabai w/o N. D. Shah, it is in respect of claim under policy of N. D. Shah. Exhibit P-5 is a death certificate dated 4.8.1982 of Sushilabai issued by Municipal Corporation of Greater Bombay wherein Sushilabai's name is shown as Sushlla Hiralal Shah. Exhibit P-6 is the certificate dated 3.10.1963 issued by Gurunanak S. K. Industries to Ranjitsingh Hiralal Shah - brother of plaintiffs and it is a Certificate of Character - Exhibit P-7 is the letter written by Mahanagar Telephone Nigam Ltd. to Kishore H. Shah about installation of new telephone. Exhibit P-8 is driving licence of Kishore Hiralal Shah issued by the R.T.O. in 1986. Exhibit P-9 is the Ration Card issued by Food and Supply Department to Kishore Hiralal Shah. Exhibit P-12 is a receipt given by P.W. 4 Sukhlal Kothari to Sushilabai on 31.8.1955 about payment of insurance monies to her. Exhibit P-13 is the leaving Certificate of Kishore Hiralal Shah issued by Suswagatam Night High School dated 3.1.1977. Exhibit P-15 is the xerox copy of passport issued to Kishore Narsingh Shah dated 7.3.1986.
41. So far as all these documents are concerned, counsel for the defendants had taken objection regarding their being exhibited. However, these objections were decided then and there at the time of evidence and documents were exhibited excepting passbook. It was marked X-3 for identification and the certificate produced by the witness which was marked X-2. However, counsel for the defendants had contended that so far as letters from Insurance Company are concerned, the contents are required to be proved independently even though the documents are more than 30 years old i.e. Exhibits P-3 and P-4 are concerned they are more than 30 years old. This objection was to be decided at the time of final hearing of the matter and therefore they are required to be dealt with now. Exhibit P-3 is a letter written by the New Asiatic Insurance Co. Ltd. on 1.6.1953. It is addressed to Smt. Sushilabai w/o N. D. Shah. In this letter the Insurance Company informed Sushilabai that they have accepted her claim regarding the policy of Narsingh D. Shah. She was asked to return the enclosed voucher for Rs. 3,105/- duly signed by her on a revenue stamp and duly attested by the Magistrate or J. P. The question is whether the plaintiffs prove the contents of those documents, namely, that Sushilabai's husband Narsingh Shah had taken policy from the said Company, that Sushilabai made a claim in respect of policy after the death of Narsingh Shah and that Board accepted her claim and were ready to make payment to her and that Sushilabai sent the voucher duly stamped and sealed.
42. Exhibit P-4 also a written letter by L.I.C. on 22.7.1958 it is addressed to Sushilabai w/o. N. D. Shah, it is from Claim Department in respect of claim under policy of N. D. Shah. The letter states that L.I.C. received her letter dated 7th instant and same has been passed on to the Head Office, Delhi, for necessary action and she will be informed in due course. To prove the contents of this letter, plaintiffs will have to prove that N. D. Shah had taken insurance policy and after his death Sushilabai had written same letter to the L.I.C. and it was forwarded by L.I.C. to their Head Office at Delhi. So far as this letter, in particular. Exhibit P-4 is concerned, it is an acknowledgment by L.I.C. about receiving a letter from Sushilabai. Sushiiabai referred to in that" letter and addressed as "Smt. Sushilabai w/o N. D. Shah". The fact that L.I.C. wrote this letter to Sushilabai and in that letter she is referred to as above cannot be disputed even if the contents are not true. Because this is letter sent by post it is coming from the custody of Sushilabai's heirs therefore there is presumption that letter was addressed to Sushilabai and it was written by L.I.C. No objection is taken by the defendants that this is a forged and fabricated document. Therefore, for limited purpose this letter could be looked into.
43. So far as Exhibit P-3 is concerned, the plaintiffs have to prove about the policy taken by N. D. Shah and other aspects referred to by him in the earlier paragraph. It is true that for proving the contents of this letter and on this particular and specific facts plaintiffs did not examine anybody or any Officer from The New Asiatic Insurance Company Ltd. The letter is of 1.953 the evidence was recorded in 2000 and therefore in that case any witness coming to the Court to prove the contents must be or would have been required to be above 70 years of age. However, it is not that, that the contents of the letter Exhibit P-3 can be proved only by examining Officer from the New Asiatic Insurance Company Limited. Those contents can be proved by other circumstances also and there are other strong circumstances to prove the contents of the letter in the form of evidence of P.W. 4 Sukhlal Kothari and a receipt got proved from him which is Exhibit P-12, This receipt is issued by P.W. 4 Sukhlal Kothari and it is in respect of payment of Rs. 3,300/- by him which he credited to her account by means of two insurance policies, one of The New Asiatic and second of Industrial Provincial Insurance Co. Ltd. It is pertinent to note that Exhibit P-3 is written by New Asiatic Insurance Co. Ltd. and it refers to an amount of Rs. 3,105/- and this letter Exhibit P-12 refers to an amount of Rs. 3,300/- and there is also mention of New Asiatic Insurance Co. Ltd. This evidence is therefore sufficient to prove that Insurance Company had written letter to Sushilabai and had acknowledged her right to claim amount in the letter in respect of policy of Narsingh Shah. Coupled with this document Exhibit P-12 there is evidence of P.W. 4 and his affidavit Exhibit P-16. I therefore hold that so far as Exhibit P-3 is concerned, the plaintiffs have succeeded in proving the contents by other evidence though the plaintiffs have not examined any Officer of the said Insurance Company. Out of the remaining documents, Exhibit P-7 is a letter issued by M.T.N.L. to Kishore HIralal Shah in 1988. This was produced for the limited purpose for showing that father of Kishore and also known as H. Shah i.e. Hiralal Shah. Exhibit P-6 is a certificate Issued by Gurunanak S. K. Industries to Ranjitsingh Hiralal Shah. It is a certificate of character issued on 3.10.1963 and it is also for limited purpose of proving that Ranjitral was the son of Hiralal Shah. Exhibit P-8 is the driving licence issued to Kishore as son of Hiralal Shah. Exhibit P-15 is a xerox copy of passport dated 7.3.1986 where Kishore is shown as son of Narsingh Shah. Exhibit P-9 is the ration card wherein Kishore is shown as son of Hiralal Shah. Exhibit P-5 is the death certificate of Sushilabai issued by Municipal Corporation of Greater Bombay shows Sushila wife of Hiralal Shah. All these documents which are duly proved and admitted on record go to show that Narsingh Shah was known as Hiralal Shah also and that Insurance Policy Office has accepted Sushilabai as wife of Narsingh Shah or the Public Officer who are authors of those documents were also treating plaintiffs as children of Narsingh @ Hiralal Shah. Therefore all these documents produced by the plaintiff No. 2 proves that Narsingh Shah was also known as Hiralal Shah and that Sushilabai was regarded as the wife or widow of Narsingh Shah.
44. This piece of evidence therefore helps the plaintiffs in establishing their case that Sushilabai was married to and was accepted by the society as wife of Narsingh Shah and that plaintiffs are the children of Narsingh Shah.
45. At this juncture it is necessary to refer to the oral evidence produced by the defendants which included the evidence of Prakash - defendant No. 1 and his other witnesses. D.W. 2 Umedmal Jawanmal Jain, D.W. 3 Badrlnarayan Gulabdas Vaishnav. D.W. 4 Vimalchand Nihalchand Jain. D.W. 5 Bhagwandas Mulchand Mehta. All these four witnesses of the defendants, apart from D.W. 1 have stated that even though they were closely connected, concerned or related with Narsingh Shah and they knew about his life they never came to know or they were never told either by Narsingh Shah or Banubai that Narsingh Shah had married any other woman much less Sushilabai the mother of the plaintiffs. This evidence is in the negative form and negative in the nature. No doubt this witness have given their testimony on oath. However, merely because evidence is given on oath it does not disprove the case of the plaintiffs because the plaintiffs have come with strong circumstantial and documentary evidence, as discussed above, that Narsingh Shah was maintaining Sushilabai and her children at Mahim and Banubai and her children at Khar so that there is no conflict between two families and no controversy arise out of that relationship. It is also likely that this independent witness had therefore no knowledge, or Narsingh Shah was not bound to confess, nor required to confess, nor was at any lime compelled to confess his personal life to these witnesses. Therefore negative evidence of these witnesses is of not much help to the defendants so far as D.W. 1 is concerned obviously he has denied claim of the plaintiffs and he is not supposed to admit any relationship of Sushilabai with Narsingh Shah or of the plaintiffs with Narsingh Shah. Therefore, this negative evidence about non-existence of any relationship of Narsingh Shah with Sushilabai or that Narsingh Shah was not known as Hiralal is of no use and at any rate it does not disprove the case of the plaintiffs. Therefore, so far as Issue Nos. 2 and 3 are concerned, it has to be held that Sushilabai was the second wife of Narsingh Shah and plaintiffs are the son and daughters of Narsingh Shah. It has also to be held incidentally and side by side that Narsingh Shah was known as Hiralal Shah.
46. ISSUE NOS. 4 and 6 : As per this issue plaintiffs have to prove that there was a Joint family as alleged in paragraph 4 of the plaint. What is alleged in paragraph 4 is as under :
"The Plaintiffs state that after the death of their father on 1st May, 1953, the senior widow, namely Banubai, the mother of the Defendants herein started managing the affairs of the Joint family business and the estate of the deceased described in Exhibit "A" in particular."
In fact what is alleged in paragraph 4 cannot at all be challenged by the defendants because it has not been specifically denied. Paragraph 9 of the written statement is with reference to paragraph 4 of the plaint and instead of specifically denying all those contentions, defendants have given the entire history as to what happened after the death of Narsingh Shah, how, Banubai went to Rajasthan etc. There is no denial that after the death of Narsingh Shah Banubai started looking after the affairs of the joint family business. It is altogether different whether business was running into loss or that Narsingh Shah was heavily indebted but there cannot be any denial whatever property was left by Narsingh Shah at the time of his death was looked after by Banubai. Since issue No. 4 is drawn with reference to paragraph 4 of the plaint only and nothing more I am constrained, to hold that there was a joint family as alleged in paragraph 4 of the plaint. However, it is necessary to clarify at this juncture because of the objections raised by counsel for the defendants with reference to prayer (a) of the plaint that plaintiffs right to the suit property or to the property of Narsingh Shah does not depend upon any proof of the existence of joint family and therefore even though the finding in respect of issue No. 4 is in the affirmative. It is clarified that even if the plaintiffs failed to prove that they were joined in estates, means and residue with deceased Narsingh Shah, their right to his property cannot be taken away.
47. ISSUE NO. 5 : It has been consistently the case of the plaintiffs right from the time Sushilabal gave notice to Nihalchand, as referred to above, that Narsingh Shah was providing monthly maintenance to Sushilabai when he was alive. Banubai was also paying the same amount, but after her death Prakash - defendant No. 1 reduced that amount to Rs. 200/-. P.W. 1 Khare has stated that he has personal knowledge about such payments being made by Narsingh Shah. P.W. 2 Aruna (Plaintiff No. 2) has stated that maintenance was being paid and their family survived only out of the maintenance. Apart from this evidence there is evidence of P.W. 4 Sukhlal Kothari coupled with his affidavit Exhibit P-16 wherein the witness has admitted that on 3/4 occasions he has paid maintenance to Sushilabai at the instance of Narsingh Shah. In all these letters and correspondence and notices from the plaintiffs side to the defendants there is assertion of payment of maintenance by the defendants. As against this, the evidence of defendants is of negative nature and time. But the case of the plaintiffs in that regard is required to be accepted and believed because of evidence of P.W. 4 Sukhlal Kothari and his affidavit Exhibit P-16. P.W. 4 has worked with Narsingh Shah as Munim for quite a long time and therefore he had personal knowledge about the relationship, about the payment of maintenance and apart from that he has also paid the insurance amount of the policies of Narsingh Shah to Sushilabai and had helped her in opening bank account. Evidence of this witness which could not be shaken in the cross-examination has to be accepted and therefore I hold that plaintiffs have succeeded in proving that they were getting maintenance from Rs. 500/-to Rs. 200/- as per the allegations in the plaint. Finding on issue No. 5 is therefore in the affirmative.
48. ISSUE NO. 7 :- The next issue is whether properly described in the plaint Exhibit 'A' is property of Hindu Undivided Family. I have already clarified the legal position in this regard and that is why it is not necessary for the plaintiffs to allege plead and prove that there was Joint family consisting of Narsingh Shah, Sushilabai, Sushilabai's children, Banubai and Banubai's children. What is necessary for the plaintiffs to prove that Narsingh Shah was their father, that he left certain properties and that there was no partition of the property. Nor there was any demand by them within 12 years of the filing of the suit nor any refusal for partition, therefore, it is not necessary to decide whether the property described in Exhibit A to the plaint is joint family but admittedly it is a property of Narsingh Shah and there is no partition of the same. Therefore it has to be the property of Hindu Undivided Family.
49. ISSUE NO. 8 :- Whether the plaintiffs are entitled to any reliefs, if so what :
During his submissions, counsel for the defendants relied upon certain authorities in support of his contention that failure of the plaintiffs to prove that they are the members of Hindu Joint Undivided Family of late Narsingh Shah must result in dismissal of the suit. Reliance was placed upon certain authorities, namely :- (1) Yendappali Venkataraju (died) and another v. Yendappali Yedukondalu alias Venkateswarlu and others, (2) G. Narayan Raju v. G. Chamaraju and others, (3) Yellappa Ramappa Naik and others v. Tippanna, (4) Lingangouda Gurangouda v. Sangangouda Bapugouda,.
50. Authority of AIR 1958 A.P. 147 and the Supreme Court AIR 1968 or of Privy Council are relating to the concept of Joint family. Joint family estate, self acquisitions and/or Joint family business. I have already and repeatedly clarified that both the plaintiffs and the defendants are labouring under a mistaken belief that plaintiffs can succeed or fail or defendants can succeed or fail only if they establish existence of Hindu Undivided Joint Family. It is nobody's case that Narsingh Shah inherited some property from his father or forefathers. It is nobody's case that Narsingh Shah owned some property along with his brothers. It is nobody's case that Narsingh Shah had some Joint family property in his hands wherein his brothers had any share. The admitted fact is that whatever property is there it is of Narsingh Shah's singly and his self acquired property. The question of a Joint family or a right of birth in the property would arise if Narsingh Shah has some ancestral property in his hand. Plaintiffs claim is based on their being sons of Narsingh Shah and gel right to succeed to his property upon death of Narsingh Shah both under the old Hindu law as sons. Therefore the question is very limited in the instant case and there is no question involved of deciding this Court about the existence of a joint family or undivided family. In Andhra Pradesh case son filed a suit against his father and other brothers contending that property in the hands of his father was not a self acquired property but it was the properly of his grand father and therefore he had a share in the property. Father's contention was that the property exclusively belonged to him and in this background Andhra Pradesh High Court held that it was not sufficient to show that the family possessed some joint property. The case was therefore decided in that background. In this case there is no dispute nor any question is raised as to whether property owned by Narsingh Shah was his self acquired or was ancestral in his hands, therefore this judgment will be of no help to the defendants.
51. Second judgment of Supreme Court plaintiffs filed a suit for partition and separate possessions against his own brother. Plaintiffs contention was that he was along with the first defendant and the husband of second defendant were sons of Gopalaraju and were in possession of joint family. Gopalaraju died in 1931 and after his death the plaintiff and his brothers continued to be members of the Joint family. The Joint status of the family was severed by issue of registered notice by the first defendant to the plaintiff in 1951. An ancestral house in Nazarbad was acquired by the improvement trust for which compensation was paid and it was supplemented by the members of the family. Gopalaraju also produced some items supplemented by the earnings of the members of the Joint family and therefore in that background plaintiffs filed a suit claiming share in the entire property. This case on its facts is not applicable to the present case, for the reasons stated above.
52. Next Judgment relied upon by defendants reported in AIR 1929 P.C.8 in that case plaintiff who was the respondent before the Privy Council had brought a suit for half share in the property possessed by appellants. There the Court was concerned with the status of the family with reference to 3-4 earlier generations between the rights of various branches of a family and the properly possessed by the original ancestor. Therefore, on facts itself this case has to be distinguished from the present case and has to be recorded as not applicable.
53. Counsel for the defendants also relied upon the judgment reported in AIR 1933 Bom. 386 in support of his contention that long and exclusive possession of property by one coparcener is evidence of exclusion of another and the man who is out has to make out a prima facie title and establish either an agreement or some jural relation to account for the exclusive possession of his opponent. If he fails to establish that a suit by him for partition of such property is liable to fail. In that case plaintiffs suit for partition and possession of half of the share in the property alleged to be Joint property was dismissed and the appeal was preferred to the Bombay High Court. The defendants in that case denied the relationship with the plaintiffs but entire dispute centered around the property of Venkanagawda who was the common ancestor and defendants were children of his first wife and the plaintiffs the children of second wife. The property was Kulkarni Vatan and that the property was from the time of grandfather. Defendants had claimed that their forefather divided from the main branch about 140 to 150 years before the suit was filed and therefore there was exclusion of the plaintiffs from the common enjoyment or status of the family as joint. This case also for the same reasons is liable to be distinguished from the facts of the present case and therefore not applicable. My attention was however specifically drawn by counsel for defendants to paragraph on page 393. This paragraph forms part of the observations made by Justice Rangnekar who was one of the members of the Division Bench. While holding that plaintiff has failed to prove that he was a coparcener of the Joint family consisting of himself and the defendants and property in possession of defendant was Joint ancestral property in which the plaintiff had a share. Justice Rangnekar in that case has concurred with the findings and reasonings of Justice Broomfield wherein it is held that the separation in the family branch and the property took place about 140-150 years before the suit was filed and therefore in that background it was held long and exclusive possession by one person is evidence of the exclusion of the other and therefore question of limitation would be attracted and finding was given against the plaintiff in that suit. That Judgment is mainly concerned with the status of the plaintiff as a member of coparcenary and the properties in the hands of defendant being Joint ancestral property. It is pertinent to note that nowhere in the plaint of the present suit plaintiffs have alleged that Narsingh Shah was the owner of any ancestral property or that he was a member of coparcenary. The ruling therefore does not help the defendants, it is true that suit property in the present suit continued to be in possession of the defendants, but mere continuous possession cannot result in plaintiff loosing their right in the property. Therefore objections regarding limitation raised by the defendants are required to be rejected. For all the reasons stated above and considering position of law and authorities relied upon by the parties, I hold that the plaintiffs are entitled to the reliefs claimed, suit of the plaintiffs will have to be decreed. Hence, the order :
ORDER (1) It is declared that the plaintiffs are the son and daughters of Sushilabai from deceased Narsingh @ Hiralal Shah, who is also the father of the defendants and as such they are entitled to all the assets and properties etc. of Narsingh @ Hiralal Shah or his Joint family.
(2) There shall be a declaration in respect of prayer (b).
(3) Relief granted to the plaintiffs in respect of prayers (c) and (d).
(4) Claim of the plaintiffs is also decreed in terms of prayers (e) and (f). In addition till the property is partitioned by metes and bounds or as per prayer (f) there shall be a permanent injunction against the defendants restraining them from disposing of, parting with or alienating the immovable property or creating third party rights in respect thereof.
(5) Defendants will bear their costs and pay the costs of the plaintiffs.
After this order was pronounced, counsel for the defendants prayed for operation of the order. Upon prayer of counsel for the defendants, operation of this order is stayed for a period of eight weeks from today but not in respect of the injunction granted.
54. Certified copy expedited.