JUDGMENT Asthana, J.
1. This is an appeal by the defendants from the judgment and decree of the learned Civil Judge of Agra decreeing the plaintiff-respondents' suit for partition of their half share in a shop situate in Kumari Bazar, Agra, fully described at the foot of the plaint.
2. A reference to the following pedigree would be convenient for understanding the controversy between the parties:--
MANGAL SEN |
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grandson, respectively, of Babu Lal come to the court with the allegation that the shop in dispute was the joint ancestral property of Babulal and his elder brother Har Narain, it having devolved upon them on the death of Smt. Reoti Devi, their mother. It was further alleged that the shop in question was joint property of Smt. Reoti Devi's father Debi Das and her uncle Angan Lal, It was also alleged by the plaintiffs that the elder brother Har Narain, was a very clever person, while Babula! was a simple and easy going person and it was Har Narain, who cleverly manipulated transactions in order to claim the whole of the shop for himself by first fabricating a sale deed dated 1876-1916 as having been executed by Smt. Reoti Devi, conveying half share in shop in dispute, and then a will allegedly executed by Smt. Reoti Devi on 2-5-1927 bequeathing the other half of the shop to him. The plaintiffs definitely alleged in the plaint that Smt. Reoti Devi did not execute either of these two documents and even if she executed them, she having no right or authority for conveying the property in dispute, which was ancestral and joint property of the parties, neither the sale deed nor the will affected the rights of the plaintiffs. The plaintiffs then alleged that at first Har-narain was managing the properties in dispute and realising rent and after his death his son Ram Swarup managed the properties but Babulal was being paid his share of profits by them. It was further alleged that after the death of Ram Swarup his widow Smt. Atar Devi and her sons Om Prakash, Prahlad and Lalla, who were the defendants, refused to pay the share of profits to the plaintiffs and refused to recognize that the latter were co-sharers and having right in the shop in dispute and on a demand having been made by the plaintiffs for rendering accounts and for partitioning the shop they refused, hence the suit for partition of their moiety share in the shop in dispute and for rendition of accounts.
4. The defendants resisted the suit on the pleas that the shop in dispute was the self-acquired property of Angan Lal, who gifted it to his niece Smt Reoti Devi by executing a deed of gift' dated 10-3-1912 and thus Smt. Reoti Devi became absolute owner of the shop in dispute and she had every right to transfer it as she wished; that on 18-6-1916 Smt. Reoti Devi executed a sale deed in respect of half share of the shop in favour of Harnarain who got his name mutated in the Municipal records and started realising rente. Then by a will dated 2-5-
1927 Smt. Reoti Devi bequeathed the other half share in the shop to Harnarain, thus Harnarain became full owner of the shop in dispute and the plaintiffs had no share in it; that it was Harnarain and Ram Swarup and after their death Smt. Atar Devi the widow of Ram Swarup, who always remained in possession of the shop in dispute to the exclusion of the, plaintiffs and realised all the rent from the tenants in the shop without sharing the income with the plaintiffs; that Harnarain in 1943 executed a registered Tamliqnama in favour of Smt. Atar Devi, his daughter-in-law, conveying absolutely the shop in dispute to her; that the plaintiffs had no right for asking for account of profits from the defendants and that in any view of the matter the defendants by their adverse possession extinguished the right and title of the plaintiffs, if any, in the shop in dispute.
5. Above then, briefly, are the main pleadings of the parties. The learned Civil Judge, trying the suit, framed as many as ten issues on the pleadings of the parties. The main issue was issue No. 5 to the effect "whether Mst. Reoti Devi was the absolute owner of the property in suit and after her death Harnarain became absolute owner of the property in suit? If so, its effect?" The other important issue was issue No. 3 to the effect "Whether the suit was barred by Articles 142 and 144 of the Limitation Act'"' The third material issue was "whether the plaintiff's claim for rendition of accounts was not maintainable?" It is not necessary to mention the other incidental issues which arose inasmuch as all the evidence, documentary and oral on record, was considered by the learned Civil Judge in resolving the three main issues mentioned above. It may, however, be mentioned here that two definite issues Nos. 9 and 10 were framed on the question of the due execution of the will dated 2-5-1927 and on the question whether the sale deed dated 18-6-1916 was a forged document and was not executed by Smt. Reoti Devi. These issues stood resolved on the consideration and scrutiny of the evidence in the decision of issue No. 5.
6. The learned Civil Judge on a detailed scrutiny of the evidence on record and after a mature consideration of all the facts and circumstances and the law applicable came to the conclusion that Smt. Reoti Devi was the absolute owner of the shop in dispute haying acquired it by virtue of a deed of gift dated 10-3-1912 executed by Angan Lal, whose self-acquired property the shop in dispute was. But the learned Judge found that neither the sale deed dated 18-6-1916 nor the will dated 2-5-1927 was Droved to have been executed by Smt. Reoti Devi. He further found on a consideration of the material evidence on record that the defendants on whom was the onus to establish ouster of the plaintiffs, who were co-sharers, failed to discharge that onus and the plaintiffs' right and title to half share in the shop in dispute was not extinguished. The issue on the claim of rendition of accounts was decided against the plaintiffs, the learned Judge having found that there was no satisfactory evidence on record that it were the defendants who had always realised the rent in the face of the assertion of the plaintiffs themselves that they had received their share of rent sometimes and at other times they themselves realised it. The result was that the plaintiff's suit for partition by metes and bounds of half share in the shop in dispute stood decreed. The learned Judge did not grant any decree for rendition of accounts though in his order he has not said that the plaintiffs' suit for relief of rendition of accounts stood dismissed.
7. From the above decree of the learned Civil Judge, as said above, the defendants have filed this appeal, while the plaintiffs have filed a cross-objection in respect of the refusal of the relief for rendition of accounts. .
8. We have heard Sri Radha Krishna at some length in support of the appeal on behalf of the defendants-appellants. On a careful scrutiny of the material evidence on record, oral and documentary we have come to the conclusion that the findings recorded by the court below do not require any interference as the appellants failed to make out a case for review of those findings. We think that on the evidence on record the defendants failed to establish the ouster of the plaintiffs, who were co-sharers. Likewise the defendants failed to establish their substantive case that Smt. Reoti Devi executed the sale deed dated 18-6-1916 and the will dated 2-5-1927 in favour of Harnarain. Since we are in agreement with the findings recorded by the learned Judge of the court below on these crucial questions, which have been reiterated in the appeal, it is not necessary for us to embark upon a detailed scrutiny and appraisal of the evidence, but certainly we feel it our duty to briefly state our reasons for confirming those findings.
9. On the question of the due execution of the sale deed dated 18-6-1916 by Smt. Reoti Devi it is significant to notice that without proving the loss of the original sale deed the defendants produced in evidence a certified copy of the sale deed issued from the office of the Registrar. The certified copy shows that the original bears the thumb impression of the executant. Without going into the complexity of the legal question as to the admissibility of the certified copy without proof of the loss of the original, we find that there is hardly any credible evidence adduced on behalf of the defendants to prove its execution by Smt. Reoti Devi. Realising this weakness in the defendants-appellants' case their learned counsel fell back upon Section 90 of the Indian Evidence Act and contended that the document being more than 20 years old no proof of it was required and the Court should presume that the sale deed was duly executed by Smt. Reoti Devi. It was submitted that the burden shifted an the plaintiffs to prove by positive evidence that it was a forged document. We do not find any substance in this argument. The benefit of Section 90 of the Indian Evidence Act, as it stood unamended would not be available to the defendants-appellants as the original was not produced in evidence, but the learned ' counsel relied upon the amendment made to Section 90 by the U. P. Civil Laws (Amendment) Act, which permits a presumption to be drawn when a certified copy of a document, which has been registered under the Registration Act, is produced in evidence. However, the U. P. Civil Laws (Amendment) Act introduced Section 90-A also. Sub-section (2) of this new section lays down that the presumption shall not be made in respect of any document which is the basis of a suit or of a defence and is relied upon in the plaint or in the written statement. It is not disputed by the learned counsel for the defendants-appellants that the sale deed in question was the basis of the defence and was relied upon by the defendants in their written statement. Nothing therefore, in Section 90 or Section 90-A of the Evidence Act as amended by the U. P. Civil Laws (Amendment) Act, 1954 will come to the assistance of the defendants-appellants and the Court will not draw a legal presumption in favour of the defendants-appellants that it was executed by Smt. Reoti Devi.
10. Coming to the actual evidence on record of its execution, it will be noticed, that the plaintiffs have definitely pleaded in their plaint that the sale deed in question was fabricated and was never executed by Smt. Reoti Devi. They, of course, took a plea that Smt. Reoti Devi was an old, simple and Pardanashin lady and was under the influence of her elder son Hamarain, who was a clever and cunning person. This plea was taken with a view to take the benefit of the presumption available to pardanashin ladies when executing deeds, a topic on which the learned Judge of the court below has devoted much time and attention, but we do not think it is necessary to base our judgment on that circumstance for there was some tenability and force in the argument of the learned counsel for the defendants-appellants that the court below has misappreciated the law on that topic. We would prefer to cursorily examine the actual evidence tendered by the parties about the execution of the document or how it came into existence. The defendants adduced their evidence first to prove the due execution of the sale deed by Smt. Reoti Devi. They produced one Gyanchand as a witness. He stated "I have knowledge of the sale deed. Rewa (Smt. Reoti Devi) executed the sale deed in my presence. Babulal was a marginal witness and is dead. Shiv Prasad was present and is dead. There were two others (after reading the document dated 19-6-1916 the witness said the contents of the document executed were the same)". It appears that though the document was executed on 18-6-1916 but it was registered on 19-6-1916 and in the record of the statement it is the latter date which has been mentioned. From the cross-examination it was elicited from this witness that he was closely related to Smt. Atar Devi, the mother of the defendants and that he reached there by chance when the sale deed was being executed, according to him, by Smt. Reoti Devi alias Rewa. It appears that this witness was called mainly for the purpose of proving a deed of relinquishment said to have been executed by Babulal in favour of Harnarain in regard to some other property. In regard to the execution of the deed of relinquishment this witness definitely asserted that he saw Babulal affixing his thumb impression on the document in his presence. But when he came to prove the execution of the sale deed in question though this witness stated that he was present but he did not say that he saw Smt. Reoti Devi alias Rewa affixing her thumb mark on the sale deed.
He contented himself by saving that he has the knowledge of the sale deed and to repeat his words "Benama mere samne kiya Rewa ne". The official Translator has translated it as 'Rewa executed the sale deed in my presence'. What the witness said in his own language appears to be very vague. Further, while stating that two of the marginal witnesses, Babulal and Shiv Prasad, were dead, this witness said that there were two others. What happened to them, he does not say. In fact we find that there were only three marginal witnesses, but according to the statement of this witness, there were four. This also shows this witness in a bad light as he was not sure how many marginal witnesses were there. There is no evidence on record that Jagan Prasad was dead and no explanation is forthcoming on behalf of the defendants why lagan Prasad was not produced. Considering the statement of this witness on its merits and finding that he is a close relation of the defendants and happened by chance at the place where the sale deed in question is said to have been executed, hardly any reliance can be placed on the statement of this witness.
11. The plaintiffs examined Madan Lal as their witness. Madan Lal was an old servant of Harnarain. This fact was not challenged in cross-examination of the witness. He stated that the sale deed in question was prepared in his presence by Harnarain, who procured a prostitute for impressing her thumb mark upon it. There is nothing in the cross-examination of this witness which could even remotely suggest that this witness was telling a lie in the witness box. In fact the statement of the witness that a prostitute or a woman of ill-fame was procured by Harnarain for that purpose was not challenged in cross-examination.
12. We agree, therefore, with the finding of the court below that the defendants have miserably failed to discharge their onus in establishing the due execution of the sale deed dated 18-6-1916 by Smt. Reoti Devi alias Rewa. On the other hand, there is sufficient evidence adduced on behalf of the plaintiffs-respondents that the said sale deed was got fabricated by Harnarain.
13. Now we come to the will dated 2-5-1927 set up by the defendants for claiming an absolute right to the other half share in the shop in dispute. This will is said to have been executed by Smt. Reoti Devi alias Rewa on 2-5-1927. It is admitted that Reoti Devi died on 13-5-1927. There is conflicting evidence on record as to her state of health about a month before her death. On behalf of the plaintiffs it has been asserted in evidence that she was completely bed-ridden and was not in a sound state of mind at all to perform any intelligent act. On behalf of the defendants it has been asserted that though she was old and infirm but was well enough to have executed the will on 2-5-1927. Whether Smt. Reoti Devi was in a sound state of mind and was in good physical condition to have executed a will on 2-5-1927 is a question which need not detain us as we find other features in the evidence on record which would show that this document can hardly be acted upon as a will disposing of property and having been duly executed. It is significant to note in this connection that this will was got registered on 5-1-1943, that is about 16 years later. As late as that it for the first time saw the light of the day. Hamarain got it registered and immediately thereafter he executed the Tamliqnama in favour of Smt. Atar Devi on 13-1-1943, whereby he purported to convey the usufruct of the shop in dispute to her. This creates a doubt in our mind and the registration of this document appears to have been sought by Harnarain as a document executed by Smt. Reoti Devi for the purpose of supporting the Tamliknama by laying a claim to the whole of the shop, the usufruct of which was gifted to Atar Devi. Be that as it may, it is clear from this document, the so-called will, that the beneficiary was Harnarain. It has come in the evidence of Brijmohan a witness for the defendants, that Harnarain actively participated in the execution of the alleged will. He took Brijmohan with him to attest the will that would itself be a suspicious circumstance. Before the defendants could successfully propound this will, they were under a duty to dispel all the suspicious circumstances. Brijmohan was produced as an attesting witness to prove the execution of the will. His evidence appears to us to be most unconvincing. The will Ext. A-3 on record does not show that Brijmohan was an attesting witness. Four names have been mentioned by the scribe as attesting witnesses, namely. Ramchandra, Kishan Lal, Babulal and Shiam Lal. We find that below their names the first three have subscribed their signatures as attesting-witnesses. There is a cross mark below the name of Shiam Lal, the fourth person named by the scribe as an attesting witness. Then there is signature below this cross-mark in Mudiya of Brijmohan. It was the case of Brijmohan himself that he was called by Harnarain to sign as a witness to the will. If that were true, the scribe would have mentioned the name of Brrjmohan as one of the attesting witnesses. The claim of Brijmohan that he was called as an attesting witness thus becomes doubtful. It has come in the evidence on record that Babulal, one of the attesting witnesses, is dead, but nothing is known about the other two attesting witnesses-- Ramchandra and Kishan Lal. Mohammad Nazir Khan, who was the scribe, has also not been produced. It is not said that he was dead and thus not available. In these circumstances it is not possible to hold that the due execution of the will was satisfactorily proved.
14. Even assuming for a moment that this document was executed by Smt. Reoti Devi alias Rewa, as alleged by the defendants, on the tenor and contents we find it difficult to hold that it amounts to a testamentary disposition of half share in the shop in dispute. It appears to us that the author of the document made an arrangement in present and then merely expressed a wish that after her death Harnarain will preserve the property and continue to pay maintenance of Rs. 15 per mensum of Smt. Prag Devi, wife of Babulal, which maintenance was being paid by the author herself in her lifetime. There is no express clause in this document bequeathing half share in the shop in favour of Harnarain and vesting it in him on the death of the author. Much was tried to be made out by the learned counsel for the defendants-appellants on the recitals in this document that after the author's death Babulal would have no connection or concern with the shop in dispute, read with the earlier recital that the other half had already stood transferred by a sale deed to Harnarain, as amounting to a disposition of the half share in the shop to Harnarain. We have already held above that Smt. Reoti Devi did not execute any sale deed of the half share of the shop in 1916. A recital in this document of such a transaction by itself creates a suspicion that it could be the handy work of Smt. Reoti Devi. Once it be held that half share in the shop had not been sold to Harnarain then the construction sought to be placed by the learned counsel for the defendants-appellants on the recitals as amounting to a disposition of the property falls to the ground. It is well settled that a mere recital in a document alleged to be a will that a certain heir will not get any share in the property of the testator does not amount to any testamentary disposition. Nothing, therefore, will turn upon the recitals in this document that Babulal will have nothing to do with the shop in dispute. This discussion is sufficient to show that this document Ext. A-3 fails in its object as a testamentary disposition in favour of Harnarain. We think the court below rightly rejected it from consideration as conveying title to the defendants of half share in the shop in dispute.
15. We having found above that the defendants failed to establish that by any sale deed executed by Smt. Reoti Devi in 1916 half share in the shop in dispute was first conveyed to Harnarain and the defendants further having failed to establish that the remaining half share was conveyed to Harnarain by will dated 2-5-1927, the very foundation of the defendants' claim is knocked out. Though a suggestion was made by the plaintiffs that the shop in dispute was joint ancestral property and was not the absolute property of Angan Lal so as to have been gifted away to Smt. Reoti Devi, we need not for the purpose of deciding this appeal go into that question as it is not disputed that even if the shop in dispute was an absolute property or 'Istridhan' of Smt. Reoti Devi, after her death in 1927 her two sons-- Harnarain and Babulal, would inherit the said shop in equal shares, there being no daughter or daughters surviving Smt. Reoti Devi. Half share in the shop devolved on Babulal and the plaintiffs as his son and grandson would be entitled to claim half share in the shop, the defendants having failed to establish that Smt. Reoti Devi had conveyed the shop by transfer or by will to Harnarain to the exclusion of Babulal.
16. Since we have found above that no sale deed dated 18-6-1916 was executed by Smt. Reoti Devi, the contention put forward by the learned counsel for the defendants-appellants that Smt. Reoti Devi herself in her lifetime not having challenged the sale deed and having made no attempt to have it cancelled, it was not open to the plaintiffs to challenge it, will hardly have any effect or bearing on the case. Likewise the further argument that the plaintiffs should have at least asked for a relief in this plaint for cancellation of the sale deed has no relevance when we have found that the sale deed itself was not executed by Smt. Reoti Devi.
17. The more important question which requires our consideration is whether there has been ouster of the plaintiffs as co-sharers and the defendants by their adverse possession have prescribed a title in themselves to the whole of the shop in dispute. The learned counsel for the defendants-appellants laid great emphasis on the fact that the name of Harnarain was mutated in the Municipal papers and after his death that of his son Ram Swarup and then that of Smt. Atar Devi and submitted that these long standing continuous entries in the Municipal papers clearly show that Babulal and Ms branch was completely excluded. The learned counsel reinforced this submission of his by relying upon a number of rent notes executed by the tenants of the shop in dispute in the name of Harnarain. It was also submitted by the learned counsel for the defendants-appellants that for all these years it was Harnarain or his branch who realised the rent from the tenants of the shop in dispute, the latter having attorned to them and not to Babulal or the members of his branch. The circumstances of the registration of the sale deed dated 18-6-1916 under the Indian Registration Act was also pressed into service operating as constructive notice to Babulal and his heirs of the assertion of title by Harnarain and his heirs to the exclusive ownership of the shop in dispute. It was contended that the evidence furnished by the conduct of the parties for a long number of years corroborated by documentary evidence comprising mutation of names in Municipal registers, execution of rent notes and realisation and payment of rent well amount to ouster of Babulal and his branch assuming that they were co-sharers. Much case law was also cited before us by the learned counsel for the respective parties on this question. We need not encumber this judgment by noticing all the cases cited before us as it appears to us the law now is well settled and crystallized by the pronouncements of the Supreme Court The latest case which was brought to our notice is the case of Shambhu Prasad Singh v. Mst. Phool Kumari, (AIR 1971 SC 1337) The learned Judges of the Supreme Court in para 17 of the reported judgment at page 1345 have, summarised the law. They observed:--
"On the question of adverse possession by a co-sharer against another co-sharer, the law is fairly well settled. As between co-sharers, the possession of one co-sharer is in law the possession of all co-sharers. Therefore to constitute adverse possession, ouster of the non-possessing co-sharer has to be made out. As between them therefore there must be evidence of open assertion of a hostile title coupled with, exclusive possession and enjoyment by one of them to the knowledge of the other."
18. In another decision in the case of P. Laxmi Reddy v. L. Laxmi Reddy, (AIR 1957 SC 314) the Supreme Court held that :
"It was well settled that in order to establish adverse possession of one coheir as against another it is not enough to show that one out of them is in sole possession and enjoyment of the profits of the properties. Ouster of the non-possessing co-heir by the co-heir in possession who claims his possesssion to be adverse, should be made out. The possession of one co-heir is considered, in law as possession of all the co-heirs. When one co-heir is found to be in possession of the properties it is presumed to be on the basis of joint title. The co-heir in possession cannot render Ms possession adverse to the other co-heir, not in possession merely by any secret hostile animus on his own part in derogation of the other co-hears' title. It is a settled rule of law that as between co-heirs there must be evidence of open assertion of hostile title coupled with exclusive possession and enjoyment by one of them to the knowledge of the other so as to constitute ouster."
19. The law as we understand, as enunciated by the Supreme Court, is that merely exclusive possession by one co-sharer even though he enjoys all the profits will not amount to an ouster of the other co-sharer not in possession unless there was evidence to establish that the co-sharer in possession had asserted open hostile title and based his exclusive possession thereon. We have, therefore, to find out from the evidence on record in the instant case whether Harnarain had at any stage or his heirs at any stage had made any open assertion of hostile title and claimed on that basis that they were in exclusive possession of the shop in dispute. It should be borne in mind in this connection that Harnarain was the elder brother. Babulal, it Is the common case of the parties, was a sort of gentleman at large and an easy going fellow, who did not care about the affairs of management of the family property. If in this circumstance Harnarain actually managed the family properties, got his name mutated in the Municipal records realised rents having procured rent notes in his favour from the tenants, it would not have created an impression on the mind of Babulal and the members of his branch that Harnarain was in exclusive possession, and enjoyed the profits on the basis of any hostile title or on the assertion of any hostile title. It is not unusual to find in Hindu joint families the name of the elder member being entered in official records and third persons dealing with him as the owner of the property. Such a conduct on the part of the eldest member of the family has never been regarded by the junior members of the family as assertion of any hostile title to the exclusion of all other members of the family. It has come in evidence in the instant case that some time even rent was realised by Shri Bhagwan, one of the plaintiffs. The own witness of the defendants Brijmohan in his statement said that Harnarain used to make monthly payment to Babulal. Mo explanation whatsoever is forthcoming on behalf of the defendants as to in what connection the payments were being made. A suggestion was made by their learned counsel that regular monthly payments were made to Babulal under the arrangement evidenced by the will Ext. A-3. This explanation appears to us devoid of all force. The arrangement evidenced by Ext. A-3 the will, is for payment of maintenance of Rs. 15 to Babulal's wife Smt. Prag Devi and that arrangement was to come in force obviously after the death of Babulal who died comparatively at a younger age. Brijmohan defendants' witness, definitely asserted that the regular payments were made to Babulal. It is thus clear that those payments must have been nothing but the payments of the share of profits or the rental income from the family properties including the shop in dispute. Shanker Lal, a tenant in the shop in dispute, was produced as a witness by the plaintiffs. He stated that he paid rent some time to Shri Bhagwan son of Babulal also. Nothing has been elicited in his cross-examination to discredit hie testimony. The plaintiff Shri Bhagwan, who appeared as a witness, also asserted that he used to receive his share of profits from Harnarain. This statement of his has not been challenged in cross-examination. We think, what we have mentioned above, without anything more in evidence, is sufficient to demonstrate that the finding recorded by the learned Judge of the court below on the issue of adverse possession and ouster is a good finding not liable to be interfered in this appeal
20. Now there remains to consider the cross-objection filed by the plaintiffs-respondents questioning the validity of that part of the judgment of the learned Judge of the court below by which he refused to grant a decree for rendition of accounts. We have heard the learned counsel for the plaintiffs-respondents and we find no force in the cross-objection, In the face of the own admission of the plaintiffs that they used to receive their share of profits and in the light of the other evidence which has come on the record that Babulal when he was alive was receiving his share of the profits and the plaintiffs themselves some times realised the rent, no question of rendition of any accounts arises, The court below rightly, while deciding issue No. 4, rejected the claim of the plaintiffs calling for an account from the defendants. The cross-objection is, therefore, liable to be dismissed.
21. Before we part with this case, we make it clear that the decree as framed by the court below is only a preliminary decree for partition and, if necessary, further inquiry would be made before giving separate possession of half of the shop in dispute to the plaintiffs as envisaged by Sub-rule (2) of Rule 18 of Order 20 of the Civil Procedure Code.
22. The result is that the appeal as well as the cross-objection stand dismissed with costs.