TMI Blog1959 (11) TMI 65X X X X Extracts X X X X X X X X Extracts X X X X ..... prasad in 1914, Jankiprasad in 1923, Ratanlal in 1926, Ganeshprasad in 1928, Govindprasad in 1934, and Ramchand in 1940. On February 27, 1915, Ganeshprasad, Jankiprasad, Govindprasad, Ratanlal, and Ramchand, the surviving brothers executed a registered deed of relinquishment in favour of Jankiprasad. In that document it was recited that the brothers had become separated on January 24, 1898, by a deed of relinquishment of that date and that, as the said document was not registered, they were executing a fresh one confirming the earlier arrangement. On February 17, 1916, Govindprasad executed a trust deed in favour of his nephew, Chandanlal, the son of his deceased brother Ajodhyaprasad, and his niece, Rukhmabai, the daughter of his brother Ganeshprasad, both of whom were minors at that time. In that deed Govindprasad, after asserting that he had become divided from his brothers under the aforesaid two deeds of relinquishment, created a trust in a sum of ₹ 15,000 for the benefit of the said minors, handed over the said money to the trustees appointed thereunder and directed them to construct a building or buy a land and pay the net income from the said property in equal shares ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... put up with the trust amount and additional amounts given by him. On those findings, the suit was dismissed. The respondent No. 1, (hereinafter called the respondent), preferred an appeal against that decree to the High Court at Nagpur. The High Court held that the two relinquishment deeds were sham documents brought into existence to shield the liquid assets of the family, which were for that purpose placed in the hands of Govindprasad, that the trust deed was also a sham one designed to achieve the same purpose and that the house was also constructed with the aid of the family funds. For the first time before the High Court the appellant raised a plea of limitation. The learned Judges of the High Court held that the suit was within time under Art. 120 of the Limitation Act. It was also for the first time contended that the respondent should be non-suited as he failed to claim a further relief within the meaning of the proviso to sub-s. (1) of s. 42 of the Specific Relief Act. The High Court negatived the said contentions. It is not necessary to notice the other points raised before the High Court as they are not pressed before us. In the result the decree of the District Judge w ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... farkatnama . The seven brothers, Ganeshprasad, Ajodhyaprasad, Jankiprasad, Ratanlal, Mangalprasad, Sarjooprasad and Ramchand, executed the said relinquishment deed in favour of Govindprasad. It is stated therein as follows : ... we are not pulling together well in affairs and you and we are not on good terms in family treatment. Ill-will between you and us all brothers is consequently growing more and more from day-to-day. Similarly, as (our) father himself involved all ancestral property into debt and the remaining movables were partitioned by all at that every time, no movable and immovable ancestral property has now remained. Consequently, we all have to undergo trouble and sustain loss in our business. We therefore, execute this pharkhatnama (deed of relinquishment) and hereby declare as follows :- Each brother should from this day enjoy his own self-acquired property and that he may acquire with his personal exertions-articles, grain, cash, movable and immovable property, so on and so forth. One has no connection with another, of family relation in property, transactions ... (torn), dealings and the like, of others. Each should enjoy his benefit and sustain h ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... eally intended to be a formal document effecting a division between the parties. 7. This document did not see the light of day till the year 1915, when Govindprasad, for the first time, made a reference to it in Ex.D. 32, a registered relinquishment deed executed by him. On September 7, 1912, Govindprasad executed a Will, Ex.P. 1, bequeathing some properties described by him as his self-acquisitions. In that Will he stated thus : This property shown above is all my acquisition, and the ancestral property is not included in this or received by me. I too have not retained my right over the ancestral property. ......... My father expired on 27-1-1897 A.D. From that time without taking any share in my father's property, I have acquired this property by solely doing business; business of relations are not included in this nor have I joined in their business. Hence, nobody has any right to this. If really there was in existence on that date a written relinquishment deed, Ex.D. 54, it is not likely that Govindprasad would not have mentioned that fact in the formal document he executed bequeathing his property. In contrast with this recital, in the Will Ex.P.2, exec ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nviction and is not corroborated by circumstances. The farkatnama was found to be genuine in the previous litigation. It may be noticed that the learned District Judge did not scrutinize the signatures with the help of the expert's, evidence and has not expressed any considered view thereon. But the High Court bestowed greater care on this aspect of the case, as it should, for, if this document was a forgery, it would go a long way to support the respondent's version. The learned Judges of the High Court considered the evidence of the expert, scrutinized the impugned signature of Ajodhyaprasad, compared it with his admitted signatures and agreed with the expert in holding that the disputed signature was not that of Ajodhyaprasad. So far as Mangalprasad's signature was concerned, the learned Judges were not able, on the evidence adduced, to hold that it was not his signature. The expert was examined as P.W. 3. He is practising as handwriting and finger-print expert in Nagpur since 1937, and he also keeps a branch office in Bombay. He has examined the impugned signature of Ajodhyaprasad with the latter's admitted signatures found in the mortgage deeds, Exs. P-7 d ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rmations are different; the strokes and the little curls at the end of vertical strokes are all wrong. There is also a spelling change. Whereas the writer usually wrote 'joo', in the disputed signature this has been changed to 'jo'. This detracts somewhat from the force of this argument but the document Exhibit P-81 is merely a copy of a copy and we were unable to compare the signatures as such. The fact however remains that barring this solitary instance, the admitted signatures contain the other spelling. Mudholkar, J., agreed with observations of Hidayatullah, J. We must also give due weight to the observations of the learned Judges. We have also compared the impugned signature with the admitted signatures with the help of the expert's evidence, and we are inclined to agree with the view of the expert and the learned Judges of the High Court. The learned Counsel for the appellant has not been able to place before us any material to compel us to take a view different from that of the High Court. We, therefore agree with the High Court that it has been established that the impugned signature of Ajodhyaprasad in Ex. D-54 is not his. This conclusion lends st ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t may be assumed that the mortgage deed was only a sham one brought into existence to defraud the creditors. On March 10, 1898, Ganeshprasad, Ajodhyaprasad, Jankiprasad and Ratanlal executed a mortgage deed, Ex. P-7, in favour of one Hemraj for a sum of ₹ 2,000. Under this document, properties not covered by Ex. P-81 were mortgaged. There is nothing on record to show what has happened to this mortgage and whether the alleged debt was discharged. This also appears to be another sham transaction. On February 14, 1902, Ganeshprasad executed a mortgage deed, Ex. P-75, in favour of Sheoprasad : though this document is dated February 14, 1902, the stamp for the document appears to have been purchased only on April 27, 1902. This document appears to have been ante-dated for some ulterior purpose. On November 2, 1902, six of the Lala brothers, i.e., all except Govindprasad and Mangalprasad, executed another mortgage deed, Ex. P-66, in favour of Narayanrao Govindrao Mahajan for a sum of ₹ 9,975 mortgaging thereunder the family immovable properties. For this mortgage deed a stamp paper purchased on June 25, 1898, was utilised. Again on February 26, 1903, the same executants execu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... paper purchased as early as January 31, 1903, and was registered on November 23, 1914. Before the registration of this document, the mortgagors obtained from the mortgagee a deed of agreement, Ex. P-38, dated October 6, 1914, admitting that the said mortgage was a nominal one. On June 18, 1915, Kasturchand Daga filed Civil Suit No. 1 of 1915 against the Lala brothers on the basis of the mortgage deed, Ex. P-76. Three days prior to the filing of this suit, i.e., on June 15, 1915, Ganeshprasad, Ratanlal. Jankiprasad and Ramchand executed the following three sale-deeds : (i) sale-deed, Ex. P-9 dated February 21, 1915 in favour of Baliram Hari Bokhare conveying the family properties situated at Jubbulpore and Kamptee for a consideration of ₹ 9,500; (ii) sale-deed dated February 21, 1915, Ex. P-71, executed in favour of the said Baliram Hari Bokhare for a consideration of ₹ 9,250 in respect of properties at Raipur and Kamptee : this document was executed on a stamp paper purchased on August 8, 1910; and (iii) sale-deed dated June 11, 1915, Ex. P-70, in favour of Narayanrao Govindrao Mahajan for a consideration of ₹ 10,000 conveying some property at Kamptee. The said t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ern was followed by the Lala brothers in the case of the two sale-deeds executed by them in favour of Baliram Hari Bokhare. It is said that the three sale-deeds exhausted the family's unencumbered immovable properties and there can hardly be any doubt that the three documents were executed to prevent the decree-holder in Civil Suit No. 1 of 1915, from proceeding against them after exhausting the mortgage properties. Both the District Judge and the High Court held that these documents were collusive; and, on the facts noticed, their finding is correct. 13. The contesting respondent's case is that the farkatnama of February 27, 1915, was also executed as part of the said scheme to preserve the cash and the movables of the family for itself. The nominal sale-deeds executed in favour of Narayanrao Govindrao Mahajan and Baliram Hari Bokhare might be used to screen the family's immovable properties from being proceeded against in execution of the decree obtained against them, but could not prevent the decree-holder from proceeding against the family's movables and cash. It is said that the said farkatnama was intended to plug this loophole in the scheme of fraud. This ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... a benami for the members of the family, and some of the members of the family executed a mortgage deed on May 26, 1908, for the sale price in favour of the said Daga. The said Daga filed Civil Suit No. 1 of 1915 against the family to enforce the mortgage, on June 18, 1915. Three days before the filing of this suit, i.e., on June 15, 1915, the brothers brought into existence three nominal sale-deeds - two in favour of Baliram Hari Bokhare and another in favour of Narayanrao Govindrao Mahajan - and a relinquishment deed in favour of Govindprasad; and all the documents were registered on the same day. Three of them were admittedly nominal documents and the fourth, viz., the relinquishment deed, has been proved to be another nominal document. The said facts disclose an integrated scheme of fraud and it is not possible in the circumstances to single out therefrom Ex. D-32 and hold that it is a bona fide transaction; on the other hand, the circumstances already narrated by us indicate beyond any reasonable doubt that the said document is also a part of that scheme and intended to protect the cash and movables of the family. 15. The appellant relies upon the Wills executed by Govindpra ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he should have appointed five trustees for implementing the trust. Secondly, the trust deed itself refers to the earlier deeds of relinquishment and we have already held that the said two deeds were colourable transactions. The trustees appointed were the agents of the family. Ex. P-72 dated September 9, 1913, the General Power of Attorney, shows that two of the trustees, Kasheo Rao Laxman Rao and Davidin were the family agents of the Lala brothers. Ex. P-38 dated October 6, 1914, indicates that Kasheo Rao Laxman Rao, one of the trustees, attested the said document whereunder Narayanrao Govindrao Mahajan declared that the mortgage deed executed in his favour by the Lala brothers was a nominal transaction. This shows that Kasheo Rao Laxman Rao was one of the close associates of the members of the family in executing the fraudulent documents. Mahadeo is the brother-in-law of Babulal, a servant of Ganeshprasad, who is the father of Rukmabai, the appellant. The fact that most of the trustees were either the agents or the servants of the family is also a circumstance, though not conclusive, against the version of the appellant. Two minor members of the family were selected for the bequ ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ent shows that the property was taken back by Govindprasad and there is nothing on record to show that any benefit from the trust reached the hands of either Chandanlal or Rukhmabai. This conduct of Govindprasad also fits in with the general scheme of colourable transactions : and the property in fact continued to be the joint family property. 17. There is also positive evidence, both documentary and oral, to prove that the brothers, including Govindprasad, were living an members of a joint Hindu family. Ex. P-63-A is a letter written by Ganeshprasad to Chandanlal. This letter is not dated, but it appears to have been written in or about the year 1926. In this letter Ganeshprasad points out : I have so far helped all my brothers upto this day and have been helping them so far as possible in spite of experiencing such great miseries. What should I do ? Had I thought of passing my time by living separate, it could have been done in a good way; I would have not fallen in such difficulties. With all this you are seeing how memberji is causing different troubles. Whatever I have done, I have done with my earnings; I have given to my men-family. In unraveling a fraud committ ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... and his knowledge of the family, therefore, went back to that year. He asserts that the sons of Ramasahai were members of a joint family and their excise contracts were also joint, and that none of the brothers had separated trade or property. P.W. 14, Lala Sitaram's son was married to Ratanlal's daughter about 25 years before the date of his giving the evidence. He supports the evidence of P.Ws. 12 and 13. Nothing has been elicited in the course of cross-examination of any of these witnesses which would detract from the weight evidence. They are natural witnesses who could with authority speak to the affairs of the family. The oral evidence adducted the plaintiff also establishes that there was no partition among the members of the family. 19. We shall now briefly notice the admissions alleged to have been made by one or other members of the family accepting the partition. In this context, the observations of the Judicial Committee in Alluri Venkatapathi Raju v. Dantuluri Venkatanarasimha Raju I.L.R. (1935) IndAp 397 are apt and they read : It sometimes happens that persons make statements which serve their purpose, or proceed upon ignorance of the true position; ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Ex. D-56 is the deposition of Jankiprasad in Civil Suit No. 260 of 1931. Therein he stated that the defendants were all brothers but were divided. That was a suit filed by Kasturchand Daga against some of the brothers and, perhaps, Jankiprasad thought that it was necessary to assert separation so that some of the family properties, other than those mortgaged, might be salvaged. The same Jankiprasad, in Ex. P-80, asserted to the contrary. In that exhibit he stated that the farkatnama was cancelled by him by notice to Govindprasad and that he and Govindprasad continued to have common food. The claim of the creditor, Kasturchand Daga, who sought to attach the trust property along with other family properties, was settled and some of the family properties were sold to him under Ex. P-24 in discharge of his claim. On the sale-deed, Govindprasad made the following endorsement : As I have been living separate for a number of years from all the members of the family, I have no right to this property and no objection to its sale. This endorsement is entirely consistent with the case of the respondent that the properties in the hands of Govindprasad were intended to be preserved b ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r 1924 in the same suit in respect of Janajail Liquor Shop, Nagpur. It shows that the profit for the year 1919-20 was ₹ 1,486; for 1920-21 was ₹ 8,814; for 1921-22 was ₹ 1,779; and for 1922-23 was ₹ 3,837. Ex. P-77 is a security bond executed by the members of the family in favour of Kasturchand Daga. It shows that security was given in connection with the contract taken by the family in the name of Lala Ratanlal for retail dealing in liquor in different shops at Kamptee and Nagpur during the years 1906 and 1907. In that connection Ratanlal deposited a sum of ₹ 54,700. These three documents show the extensive business the members of the family were doing in liquor. Indeed, the learned Counsel for the appellant does not dispute the fact that the family was in a position to give Govindprasad the amount covered by the trust deed and that spent for the construction of the building. If so, the question is whether the appellant has proved that Govindprasad paid the said amounts from and out of his self-acquisitions. If Govindprasad had a business of his own, he must have had accounts, but no such accounts were forthcoming. Summons was served on Tuljabai, the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nd the balance of ₹ 5,000 was given to Babulal as loan. He further stated that the trust was dissolved in 1921 and that thereafter he spent another sum of ₹ 6,000 out of his own pocket in addition to the sum of ₹ 6,000 returned by Babulal for completing the building and that Sheoshankar, the husband of the appellant spent ₹ 2,500 in connection with the building; but in the cross-examination he admitted that he had no shop for gold and silver and that he used to do business in a small scale. He gave evasive answers when he was asked whether the first defendant was managing the liquor shop in dispute; he did not know whether the defendant was managing the liquor shop in dispute, he did not remember the year in which the shop was opened in the suit building; he could not say when the shop was discontinued, he admitted that he had no regular account books showing his income or expenditure. Though he said that he had a sort of note book, he said that he was not in the possession of it then. Though he said in examination-in-chief that he spent ₹ 6,000 for the building, he had to admit in the cross-examination that the said money was not withdrawn from any ba ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... land and build the suit house; (ii) there is no reliable evidence to show that Govindprasad had separate income from which he could have set apart ₹ 15,000 and paid an additional sum of ₹ 6,000 for building the house; (iii) there is evidence that Ganeshprasad and Ratanlal supervised the construction of the building, paid the contractors and had taken receipts from them; and (iv) though the trustees under the trust deed pretended to function thereunder, they were the agents of the family and the trust was abruptly put an end to in 1921. On the said facts it must be held that the appellant has failed to prove that Govindprasad had self-acquisitions and the suit site was purchased and the building put up thereon with the private funds of Govindprasad. 28. Before we close this aspect of the case, the conduct of the respondent in not questioning the trust deed from 1916 to 1940, when he filed the suit, requires some explanation. The contesting respondent was a minor. Even after he become a major, he could not have any grievance because the trust deed was executed for the benefit of the family. It is in evidence that Ratanlal, his father, was living in the house till his ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... have asked for a permanent injunction restraining the appellant from interfering with his possession. The appellant did not take this plea in the written statement; nor was there any issue in respect thereof, though as many as 12 issues were raised on the pleadings; nor does the judgment of the learned District Judge disclose that the appellant raised any such plea. For the first time the plea based on s. 42 of the Specific Relief Act was raised before the High Court, and even then the argument advanced was that the consequential relief should have been one for partition : the High Court rejected the contention on the ground that the plaintiff, being in possession of the joint family property, was not bound to ask for partition if he did not have the intention to separate himself from the other members of the family. It is not necessary in this case to express our opinion on the question whether the consequential relief should have been asked for; for, this question should have been raised at the earliest point of time, in which event the plaintiff could have asked for necessary amendment to comply with the provisions of s. 42 of the Specific Relief Act. In the circumstance, we are ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... K. C. T. Muthukaruppan Chettiar I.L.R. (1930) Rang. 645 and in Gobinda Narayan Singh v. Sham Lal Singh I.L.R. (1930) IndAp 125. The further question is, if there are successive invasions or denials of a right, when it can be held that a person's right has been clearly and unequivocally threatened so as to compel him to institute a suit to establish that right. In Pothukutchi Appa Rao v. Secretary of State A.I.R. 1938 Mad. 193, a Division Bench of the Madras High Court had to consider the said question. In that case, Venkatasubba Rao J., after considering the relevant decisions, expressed his view thus : There is nothing in law which says that the moment a person's right is denied, he is bound at his peril to bring a suit declaration. The Government beyond passing the order did nothing to disturb the plaintiff's possession. It would be most unreasonable to hold that a bare repudiation of a person's title, without even an overt act, would make it incumbent on him to bring the declaratory suit . He adds at p. 199 : It is a more difficult question, what is the extent of the injury or infringement that gives rise to, what may be termed, a compulsory cause o ..... X X X X Extracts X X X X X X X X Extracts X X X X
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