Patna High Court
Ghuia Devi And Ors. vs Shyamlal Mandal And Ors. on 11 July, 1973
Equivalent citations: AIR1974PAT68, AIR 1974 PATNA 68
JUDGMENT S. Anwar Ahmad, J.
1. First Appeal 457 of 1964 and First Appeal 551 of 1964 have been heard together.
First Appeal 457 of 1964.
2. This appeal has been preferred by the plaintiff. It arises out of a suit for partition of her share to the extent of eight annas in the properties described in Schedules A to C and four annas share in Schedule D attached to the plaint as well as a decree for accounts against the defendants first party.
3. The case of the plaintiff-appellant, shortly put. is that one Gokul Mandal was the common ancestor of the parties. He had two sons. Gobardhan and Ghoghan. Gobardhan had also two sons. Shvamlal (defendant No. 1) and Kisan. the husband of the plaintiff. Ghuia Devi. Ghoghan. had also a son. Suchit Naravan (defendant No. 9). The descendants of Ghoghan were made defendants second party to the suit and those of Shvamlal defendants first partv. The genealogy given in the plaint is not denied, and it is the admitted case of the parties that the husband of the plaintiff, the defendants first party and the defendants second partv formed a ioint Hindu family. The further case of the appellants is that during his lifetime Gokul managed the properties and on his death Gobardhan. his eldest son, became the karta of the family. During the lifetime of Gobardhan. Shvamlal (defendant No. 1) used to help his father in the management of the joint family properties and. on the death of his father he himself became the Kanta of the ioint family. Some of the properties were ancestral and others were acquired by the ioint Family. In 1951 there was a partition between the two branches, namely the branch of Shvamlal and that of Ghoghan. After the partition, Shvamlal. began to act as the Karta of the joint familv consisting of the members of Gobardhan's branch. Thereafter, some properties were purchased by Shvamlal, and they also formed part of the ioint family properties. The appellant is a pardanashin lady. Shvamlal. taking advantage of her position, misappropriated the familv property and its income. Hence, the suit giving rise to this appeal was filed.
4. The suit was contested by the defendants first partv who were defendants 1 to 7 on the grounds. (1) that the husband of the plaintiff died long before 16-3-1940 (that is to sav. prior to coming into force of the Hindu Women's Rights to Property Act. 1937) and. therefore. she had no share in the properties left by her husband; (2) that thp allegation of the plaintiff that respondent no. 1 mismanaged and misappropriated the ioint familv properties was absolutely false: (3) that Schedule D properties were acquired bv respondent No. 1 from his personal fund and were his exclusive properties: and (4) that the plaintiff, on the death of her husband, married Suchit Mandal and, on account of the remarriage, lost all rights in the properties. The other pleas are not material for the decision of these appeals.
5. The learned Additional Subordinate Judge, bv his judgment decreed the suit of the plaintiff holding. (1) that Kisan Mandal died on 16-3-1940 and not earlier: (2) that the plaintiff did not marry Suchit Mandal after the death of her husband. Kisan Mandal: and (3) that the properties mentioned in Schedule D were the exclusive properties of defendant No. 1 and as such could not be partitioned.
6. Learned counsel for the appellants, Mr. S. C. Sinha. stressed the only point that his clients were entitled to a decree for accounts, as defendant No, 1 was guilty of mismanagement and maladministration of thp familv properties. There is no substance in the submission of learned counsel, because in the plaint it was not stated that respondent No. 1 had committed act of misappropriation. It is no doubt true that a fixed court-fee on the relief for rendition of accounts was paid, but no evidence was adduced on behalf of the appellant that defendant No. 1 was guilty of mismanagement and misappropriation of the joint family Properties. None of the witnesses on behalf of the appellants stated that in the capacity of the Karta of the familv. Shvamlal was guilty of misappropriating the joint family properties and their usufruct. Issues on behalf of the appellants were filed on 5-12-1960, but no issue was praved for on behalf of the appellants with regard to the decree being passed for accounts against respondent No. 1, The law on the point is well settled. In suits for partition of a joint Hindu family property the manager or the Karta can only be made liable for rendition of account if there is proof of misappropriation or fraudulent and improper conversion of the Ioint family assets or properties. In the absence of such a proof a coparcener seeking Partition is not entitled to reauire the manager to account for his past dealings with the joint family property (vide Section 238 of Mulla's Hindu Law, 13th Edition). As already stated, there being no evidence adduced on behalf of the plaintiff appellant that defendant No. 1 was guilty of misappropriating or mismanaging the joint family properties, the learned Judge was fully justified in not granting a decree for accounts to the olaintiff as against respondent No 1. The refusal of the court to grant a decree with regard to the Schedule D properties was not challenged before us.
7. In the result. First Appeal No. 457 of 1964 is dismissed, but there will be no order for costs so far as this Court is concerned.
First Appeal No. 551 of 1964.
8. The defendants are appellants in this appeal Mr. R.S. Chatterji, learned counsel for the appellants strongly urged that the finding of the Court that Kisan Mandal died on 16-3-1940 was not sustainable on the state of evidence adduced in this case. It may be stated that in corning to this conclusion the learned Additional Subordinate Judge relied upon the documentary and oral evidence adduced on behalf of the parties. In support of her case, the respondent relied on the entry in the Death Register. Ext 3. This register was Droved bv P.W. 13. The relevant entry in that register is serial 81. It is stated therein that Kisan Mandal. son of Gogru Mandal of village Rampur. died on 16-3-1940 A similar entry was exhibited on behalf of defendant No. 1 also, and it was marked as Ext A-l. This entry was also proved by P W. 13.
9. After discussing evidence relating to both the documents In the judgment proceeded.
10. Mr. Chatterji also submitted that the entrv in the Death Register. Ext. 8. was not admissible in evidence. According to learned counsel, before an entry can be held to be admissible in evidence, it must be made by public servant in the discharge of his official duty. Reliance was placed on Sanatan Senapati v. Emperor (AIR 1945 Pat 489). In that case it was held that in the absence of reliable evidence as to who made the entrv as to the death of a Particular person in the hathchitta, the entry was not admissible, as it did not fulfil the requirements of Section 35 of the Indian Evidence Act Learned counsel also relied upon the cases of Brij Mohan Sinsh v. Priva Brat Narain Sinha (AIR 1965 SC 282) and Ram Prasad Sharma v. State of Bihar. (AIR 1970 SC 326). In all these cases the matter for consideration was as to whether an entrv in the hathchitta was admissible in absence of the evidence as to who made the entrv. In the present case, we are not concerned with an entry made in the hathchitta. Ext. 3 is not the hatbchitta of the chaukidar. But it is a Death Register. Death Registers are maintained in all police stations under Rule 126 (a) of the Bihar and Orissa Police Manual. Death Register, which is a public document, does not reauire proof as to how the entry was made. A Bench of this Court in Bishwanath Gosain v. Dulhin Lalmuni (AIR 1968 Pat 481 held that Birth and Death registers are public documents and entries made therein are admissible under Section 35 of the Evidence Act without, proof of the fact as to who made the entries and what was the source of his information. The register being a public document, presumption of correctness attaches to it and heavy onus lies on the party who wants to dispute the presumption. A similar view was expressed by an earlier Bench of this Court in Manikchand Sao v. Bhagwan Das (AIR 1964 Pat 353). To the same effect are the decisions in Ramalinga Reddi v. Srigiriraju Kotayya (AIR 1918 Mad 451). Tamizuddin Sarkar v. Tain (AIR 1919 Cal 7211 and Nihora Khan v. Mathura Khan. (ATR 1925 All 78). In view of all the decisions referred to above, it is not Possible to accept the submission of Mr. Chatterji that the entry in the Death Register. Ext. 3 was wrongly relied upon by the trial Judge.
11. In coming to the conclusion that Kisan Mandal died in 1940. the court below also took into consideration the evidence of P. Ws. 1, 2, 3 4, 5. 9 and 11 as well as the evidence of D. Ws. 3. 9. 12 and 14. The evidence of all these witnesses was placed before us and we are satisfied that the trial Judge was perfectly justified in preferring the evidence of the plaintiff's witnesses to that of the defendants'. The witnesses on behalf of the parties were examined in the year 1964. All the plaintiff's witnesses consistently deposed that Kisan Mandal died about 24 years prior to the date of their deposition. This brings the date of death of Kisan Mandal to sometimes in 1940. The evidence as adduced on behalf of the plaintiff gets strong corroboration from Ext. 3. The learned Judse was right in discarding the evidence of the defendants' witnesses, and we are not in a position to take a constrary view. Thus, the finding of the learned Judge that Kisan Mandal died on 16-3-1940. as was the case of the plaintiff is fully justified on the state of evidence on record. Mr. Chatterji with his usual fairness did not challenge the other findings arrived at bv the learned Judge, and they stand affirmed.
12. In the result, this appeal also jails and is dismissed but without costs.