Rajmal Mishrimal v. Kajmal Khemchand — 1954 DIGILAW 17 (MP)

JUDGEMENT : DIXIT, J. These two appeals under S.23 of the High Court Act are directed against a decision of our learned brother Mehta J., whereby he modified the judgment and decree of the Court of District Judge, Ratlam, in a suit for partition of joint family property. 2. The suit was instituted by Rajmal s/o Khemchand against his brother Mishrimal, his mother Sudibai and the purchasers of a house from Mishrimal, which the plaintiff alleged to be a joint family property. Plaintiff claimed the partition of his one-third share in the house sold by Mishrimal and in other house property belonging to the joint family. The District Judge of Ratlam rejected the plaintiff's claim for one-third share in the house sold by Mishrimal to the purchasers Babulal and Rajmal. He however, gave to the plaintiff a decree for partition of one-third share in the other house property belonging to the joint family. The plaintiff then appealed to the High Court of the former Ratlam State. At the time of the establishment of this Court, the appeal was pending, in Ratlam High Court and consequently it was transferred to this Court. The learned Single Judge of this Court who heard the appeal came to the conclusion that the house sold by Mishrimal to the purchasers was a part of the joint family property and the plaintiff was entitled to one-third share in that property also. Accordingly he modified the judgment and decree of the Court of District Judge, Ratlam. Both the plaintiff Rajmal and the defendant Mishrimal have now appealed against the decision of the learned Single Judge. Mishrimal's claim in the appeal is that the house property sold by him to Jitmal and Rajmal was his self-acquired property. The plaintiff Rajmal's appeal is for being given costs of the trial Court and of the appellate Court. 3. In this appeal there is no dispute as to the extent of the share of the parties in the joint family property or as to the property other than the one sold by Mishrimal s/o Khemchand and known as "Gugliawala house" being joint family property. The controversy centres round the question whether the "Gugliawala house" was the separate property of the appellant Mishrimal or a part of the assets of the joint family. This question is no doubt a question of fact, but Mr. The controversy centres round the question whether the "Gugliawala house" was the separate property of the appellant Mishrimal or a part of the assets of the joint family. This question is no doubt a question of fact, but Mr. Chitale learned Counsel for the appellant Mishrimal has with considerable force argued that in coming to the conclusion that this house was a part of the joint family property, the learned Single Judge has taken a mistaken view both of the burden of proof and the evidence on record. The general principle as regards burden of proof is now well-settled. As pointed out by the Privy Council in - 'Appalaswami v. Suryanarayanamurti' AIR 1947 PC 189 (A) (page 192). "proof of existence of a joint family does not lead to the presumption that property held by any member of the family is joint, and the burden rests upon anyone asserting that any item of property is joint to establish the fact. But where it is established that the family possessed some joint property which from its nature and relative value may have formed the nucleus from which the property in question may have been acquired, the burden shifts to the party alleging self-acquisition to establish affirmatively that the property was acquired without the aid of the joint family property". 4. The point to be decided is, therefore, whether the respondent Rajmal son of Khemchand has been able to show that there was a nucleus of joint family property or funds sufficient for the acquisition of the disputed property. 4. The point to be decided is, therefore, whether the respondent Rajmal son of Khemchand has been able to show that there was a nucleus of joint family property or funds sufficient for the acquisition of the disputed property. The plaintiff's case was that when his father Khemchand died on 26-1-1930, he left two houses and a sum of Rs.500/- due on a hundi from one Gopalji Fatechand; that he left no other property; that a few months after Khemchand's death, Mishrimal as manager of the joint family instituted Civil Suit No.252 of 1930 in the Court of Sub-Judge, Ratlam against Kaluram and others for pre-emption of a piece of land together with a dilapidated structure standing thereon, i.e., the land on which the house in question has been now built; that in this suit a decree for pre-emption in respect of the land for Rs.311/-was passed; and this amount was paid by Mishrimal out of the funds of the joint family in deposit with Gopalji Fatechand and that later on when Mishrimal put up a house on this land the plaintiff also contributed to the cost of construction. The learned Single Judge has held that it was out of the sum due from Gopalji Fatechand that the property in dispute was acquired. If that finding stands, the appellant Mishrimal's case must fail. But it appears to me that the finding is contrary to the evidence on record. The evidence of Fatechand is to the effect that the sum of Rs.500/- which had been deposited with Gopalji Fatechand by Khemchand was withdrawn by Khemchand himself nearly a year and a half before the house in dispute was pre-empted. Clearly, therefore, this amount could not have been used by Mishrilal several years after for the purchase of the land on which the house in dispute now stands. Mr. Sanghi learned Counsel for the respondent did not contest the fact that the evidence on record showed that the sum alleged to have been deposited with Gopalji Fatechand was withdrawn by Khemchand long before the suit for pre-emption was filed. Mr. Sanghi learned Counsel for the respondent did not contest the fact that the evidence on record showed that the sum alleged to have been deposited with Gopalji Fatechand was withdrawn by Khemchand long before the suit for pre-emption was filed. He, however, contended that from the evidence which the respondent Rajmal was allowed to produce in this Court, it was clear that Khemchand had to recover on a Hundi an amount of Rs.700/- from Rakhabdas Chhogalal; that this amount was collected by Mishrimal about the time when the decree for pre-emption was passed; and that it was with the aid of this fund that the pre-empted land was purchased. On this point the evidence of Mishrimal is that the amount which was deposited by his father Khemchand with Rakhabdas Chhogalal really belonged to Gulabbai, a sister of the witness and that he collected this amount at the suggestion of Gulabbai in his capacity as her Mukhtyar-Am. Gulabbai also deposed that after her husband's death, her father Khemchand used to invest moneys on her behalf in Hundis and that Mishrimal was her Mukhtyar-Am. On behalf of the appellant Mishrimal, Mr. Chitale objected that this evidence must be excluded from consideration as it was taken contrary to the direction dated 8-6-1948 of the Ratlam High Court in the appeal from the decree of the District Judge. In order to appreciate this objection it is necessary to state that in the appeal filed by the plaintiff Rajmal in the High Court of the former Ratlam State, an order was passed on 8-6-1948 by the Chief Justice of Ratlam High Court directing the trial Court to examine as Court witnesses the persons concerned in connection with the plea of Mishrimal that the amount of Rs.311/- which he paid for preempting the property was obtained by him from Keshrimal and Bherulal who were indebted to the firm of Harnath Surajmal, where Mishrimal was employed. The Ratlam High Court also gave leave to the plaintiff Rajmal to produce documentary evidence to support his plea that Mishrimal actually received the amount due on a Hundi from Gopalji Fatechand. When the case went, back to the District Judge, Ratlam, no witness was examined, because, of the witnesses named by the parties many resided outside the jurisdiction of the Court and those who were served did not appear. When the case went, back to the District Judge, Ratlam, no witness was examined, because, of the witnesses named by the parties many resided outside the jurisdiction of the Court and those who were served did not appear. The learned District Judge accordingly made a report to this Court. Thereupon the parties prayed to this Court that the evidence of the witnesses be recorded here and by this Court. This prayer was granted. Accordingly the plaintiff Rajmal availed himself of this opportunity and tendered in evidence Punamchand to prove the fact that about the time when the decree for pre-emption was passed Mishrimal collected Rs.700/- due on a Hundi from the firm of Rakhabdas Chhogalal and that this amount had been deposited by Khemchand the father of the plaintiff with Rakhabdas Chhogalal. The objection of Mr. Chitale is that the Ratlam High Court was not justified in giving an opportunity to the parties to adduce additional evidence when the conditions for the application of O.41, R.27 did not exist, and that in any case the plaintiff could not lead any additional evidence to prove the collection of any amount by Mishrimal from the firm of Rakhabdas Chhogalal, when the Ratlam High Court had given him opportunity to produce additional documentary evidence only for proving that Mishrimal received some amount due on a Hundi from Gopalji Fatechand. On the authority of the decision of the Supreme Court in - 'Arjan Singh v. Kartarsingh', AIR 1951 SC 193 (B), Mr. Chitale contended that the additional evidence recorded contrary to the principles governing the reception of such evidence under O.41, R.27 and contrary to the express direction of the Ratlam High Court must be ignored. This objection is, in my view, well-founded. It is not clear from the order dated 8-6-1948 of the Ratlam High Court, how that appellate Court was not able to pronounce judgment on the material before it without calling upon the parties to produce additional evidence to support their pleas about the source from which the amount of Rs.311/- for pre-empting the land was obtained by them. It is not clear from the order dated 8-6-1948 of the Ratlam High Court, how that appellate Court was not able to pronounce judgment on the material before it without calling upon the parties to produce additional evidence to support their pleas about the source from which the amount of Rs.311/- for pre-empting the land was obtained by them. It appears to me that the Ratlam High Court passed the order with regard to reception of additional evidence before examination of the evidence on record and before coming to a decision that the evidence as it stood lacked in some particulars which required to be filled up so as to enable the appellate Court to pronounce its judgment. The plaintiff Rajmal could not also bring on record additional evidence to establish a new story when he was permitted to confine his additional evidence only to the fact of the collection by Mishrimal of an amount due under a Hundi from Gopalji Fatechand. In the case cited by Mr. Chitale the Supreme Court has clearly laid down that if additional evidence is allowed to be adduced contrary to the principles governing the reception of such evidence, it will be a case of improper exercise of discretion and the additional evidence so brought on record must be ignored and the case decided as if it is non-existent. I think, the rule laid down by the Supreme Court applies to the present case and the additional evidence which the parties produced must be discarded from consideration, If that evidence is rejected there is nothing whatever to suggest that any joint family fund formed the nucleus for the acquisition of the land on which the house in question stands. Even if the evidence is looked into as explaining that about the time of the passing of the pre-emption decree Mishrimal obtained Rs.700/-from Rakhabdas Chhogalal, that evidence, in my opinion, falls far short of establishing that the money which was deposited by Khemchand with Rakhabdas Chhogalal was a part of the joint family assets, and was in addition to the amount he had deposited with Gopalji Fatechand, or, as the learned Counsel for the plaintiff Rajmal suggested, that the amount which Khemchand had withdrawn from Gopalji Fatechand was deposited by him with Rakhabdas Chhogalal. Having regard to the fact that the plaintiff Rajmal had at several places in his deposition made a categorical statement that Khemchand left only two houses and the amount due on a Hundi from Gopalji Fatechand and that it was cut of this amount due from Gopalji Patechand that Mishrimal paid the requisite amount for pre-empting the land, as also to the statement of Sudibai that she herself obtained money from Fattu Porwad and gave to Mishrimal for preempting the property, and regard being had to the evidence of Gulabbai that her father Khemchand used to invest her moneys in Hundis on his behalf and in his own name, I am unable to accept the story of the plaintiff, which is now being put forward, that it was with the aid of the money realised from Rakhabdas Chhogalal that Mishrimal paid the requisite amount for pre-empting the land. The statement of Punamchand of the firm of Rakhabdas Chhogalal is that Rajmal himself had approached him about an year and a half before the date of his deposition for making a search of certain documents in his possession. This shows that Rajmal was aware of certain transactions between the firm Rakhabdas Chhogalal and Khemchand. If, therefore, Rajmal had really believed that the moneys deposited by Khemchand with Rakhabdas Chhogalal belonged to the joint family and that it was out of this amount that Mishrimal paid Rs.311/- for purchasing the land in the pre-emption suit, then it is improbable that Rajmal would not have taken this plea at the very outset. Rajmal has given no explanation whatsoever as to why it was not possible for him to say at the very beginning that the amount in deposit with Rakhabdas Chhogalal was a part of the joint family assets and that it provided a nucleus for purchasing the pre-empted property. In the above circumstances the conclusion that the plaintiff Rajmal has not been truthful about the moneys obtained from Gopalji Fatechand or Rakhabdas Chhogalal forming the nucleus for the purchase of the property is irresistible. 5. Mr. Sanghi learned counsel for the plaintiff Rajmal suggested that it was out of the rent and profits of the joint family property that Mishrimal paid the said consideration of Rs.311/-. 5. Mr. Sanghi learned counsel for the plaintiff Rajmal suggested that it was out of the rent and profits of the joint family property that Mishrimal paid the said consideration of Rs.311/-. Apart from the fact that this suggestion is quite contrary to what Rajmal himself had specifically said as to the origin of Rs.311/-, the amount for the acquisition of the property, there is no evidence to prove that the joint family property yielded any profit to Mishrimal and that with the aid of that profit he could have acquired the property in dispute. In fact according to Rajmal, Sudibai used to receive rent from one of the tenants. In order to shift the burden of proving that the disputed property is a separate property on the person alleging it to be so, it is not sufficient to show merely that some ancestral property existed; it is, however, necessary to prove that the nucleus was of such a character as taking into consideration the surrounding circumstances could have led to the subsequent acquisition with its help. In the present case there is no evidence on record to prove that the joint family property in possession of Mishrimal yielded any profit to him and that with the aid of the profit he could have acquired the money in pre-emption suit. 6. Mr. Sanghi laid some stress on the circumstances that Rajmal and Mishrimal were joint at the time of the passing of the pre-emption decree; that the possession of the pre-empted property from the vendee was given to Rajmal and that he also received costs awarded to Mishrimal in that suit; and that Mishrimal treated the property in dispute as a part of the joint family property when he attempted to sell that property along with other property to one Jitmal in 1935. When the plaintiff has not been able to show that the sale consideration was paid from the coffer of the joint family, the above circumstances can be of very little assistance to the plaintiff Rajmal. The bare fact that the brothers were undivided at the time of the pre-emption decree cannot lead to the inference that the purchase of the land was a joint purchase and enured to the advantage of the joint family. The bare fact that the brothers were undivided at the time of the pre-emption decree cannot lead to the inference that the purchase of the land was a joint purchase and enured to the advantage of the joint family. As to the plaintiff Rajmal obtaining possession of the pre-empted land and receiving the amount of costs awarded to Mishrimal in the pre-emption suit, it is clear from the evidence of Kushal singh and Ramkaran that the possession of the house and the amount of costs were given to Ramkaran the pleader for Mishrimal and that Ramkaran in his turn handed over the possession and the amount of costs to Rajmal as at that time Mishrimal was absent. The fact that Rajmal received the possession and the amount of costs is in no way proof of the important fact that the consideration amount was paid out of the joint family funds. Mishrimal and Sudibai no doubt attempted to sell to Jitmal a joint family house situated in Moholla Chomukhi Pul, Ratlam. The sale however did not materialize. Prom Ex. P/2 the agreement to sell and Patta Ex. P/1 it is by no means conclusively established that the property which Sudibai and Mishrimal intended to sell to Jitmal included the preempted land together with the structure put up by Mishrimal after the purchase of the land. The boundaries of the property intended to be sold as given in Ex. P/2 do not seem to me to tally with the boundaries of the property specified in the sale-deed by which Mishrimal sold the property in dispute as his separate property to the respondents Babulal and Rajmal s/o Mishrimal. In my opinion the plaintiff Rajmal has failed to discharge the burden that rested on him of showing first that Mishrimal was in possession of some joint property and that with the aid of that property the pre-empted land was acquired by Mishrimal. It is quite true that Mishrimal has not been able to show wherefrom he obtained Rs.311/- which he paid as the consideration money for pre-empting the land. But from this it does not follow that the amount of Rs.311/-must have been paid out of any joint family assets. The learned Single Judge was, therefore, not right in holding that the house known as Gugliawala house was a joint family property and the plaintiff Rajmal had one-third share in it. 7. Mr. But from this it does not follow that the amount of Rs.311/-must have been paid out of any joint family assets. The learned Single Judge was, therefore, not right in holding that the house known as Gugliawala house was a joint family property and the plaintiff Rajmal had one-third share in it. 7. Mr. Sanghi further contended that the position of Mishrimal who was the Karta of the joint family was like that of a trustee and of the members of the family like that of cestui que trust and if Mishrimal pre-empted any property on the basis of some item of joint family property, then all the members of the family are entitled to share in the pre-empted property. In support of this contention' Mr. Sanghi relied on - 'Babani Soiroo v. Dulba Govind', AIR 1932 Bom 240 (C) and - 'Ramchandra Lalbhai v. Chinubhai Lalbhai', AIR 1944 Bom 76 (D). I am unable to see how this argument helps plaintiff Rajmal, when he has not succeeded in showing that in the acquisition of the pre-empted property joint family funds were used by Mishrimal. The decision of the Bombay High Court in AIR 1944 Bom 76 (D) itself makes it clear that the Karta is only a quasi-trustee for any benefits which he might receive in a business or a transaction if in that business or transaction joint family funds have been used. A perusal of the decision in AIR 1932 Bom 240 (C) shows that the principle laid down by Tyabji, J. in that case is not applicable to the case of a purchase by a member of the joint Hindu family, with consideration which did not form a part of the joint family fund. Tyabji, J. himself has made this very clear in his judgment. It is impossible to maintain that the mere exercise of a right of pre-emption by the Karta is a benefit acquired by the Karta as a trustee for the other members of the family. The right of pre-emption based on the ownership of a joint Hindu family is available and can be exercised not only by the manager but by any junior member of the family. The right of pre-emption based on the ownership of a joint Hindu family is available and can be exercised not only by the manager but by any junior member of the family. I am, therefore, unable to 'accede to the contention that even though it is not proved that Rs.311/- were paid out of any joint family funds, the property in dispute would still be a joint family property because it was acquired by the Karta whose position is akin to that of a trustee in relation to other members of the family. To accept the contention would be really to hold that the principle of Hindu Law with regard to burden of proof of a certain item of property being joint family property or a self-acquired property is not applicable where the property in dispute has been acquired by the manager. In my view Mishrimal's appeal about the Gugliawala house being his self-acquired property must be allowed. 8. In regard to the appeal filed by Rajmal for being given costs, I think it must be rejected. The Courts below have ordered that parties shall bear their own costs. There can be no reason for interfering with this direction when the main contest in the suit centred round the Gugliawala house being a joint or self-acquired property and when the plaintiff has failed in his claim that the property was joint family property. 9. Before concluding I must notice a preliminary objection taken by Mr. Sanghi as to the competency of these appeals. On the authority of a Pull Bench decision of this Court in - 'Rajkumar Mills Ltd. v. Pratapsingh', Second Appeal No.24 of 1950 (M.B.) (Indore Bench) (E) it was argued that inasmuch as the appellants had at the time of the institution of the suit no right of appeal from the decision of a Single Bench of this Court, the appellants could not take advantage of the right of appeal subsequently conferred under S.23 of the High Court Act. If the decision in 'Rajkumar Mills Ltd. v. Pratapsingh (E)' is followed, then these appeals must be held to be incompetent. But in my opinion after the decision of the Supreme Court in - 'National Sewing Thread Co. Ltd. v. James Chadwick and Bros. If the decision in 'Rajkumar Mills Ltd. v. Pratapsingh (E)' is followed, then these appeals must be held to be incompetent. But in my opinion after the decision of the Supreme Court in - 'National Sewing Thread Co. Ltd. v. James Chadwick and Bros. Ltd.', AIR 1953 SC 357 (F), it must be held that the decision in 'Rajkumar Mills v. Pratapsingh (E)' does not lay down the correct law so far as the question of the applicability of the principle of the right of appeal being a vested right, to appeals within the High Court itself, is concerned. In the case of - 'National Sewing Thread Co. (P)', the question for consideration was whether the decision of a Single Judge in an appeal from a decision of the Registrar under the Trade Marks Act of 1940, was appealable under Cl.15 of the Letters Patent of the Bombay High Court. The Trade Marks Act of 1940 did not make any provision with regard to the procedure to be followed by the High Court in the appeal or as to whether the order of the High Court was appealable. Their Lordships of the Supreme Court held that after the appeal had reached the High Court it had to be determined according to the rules of practice and procedure of that Court and in accordance with the provision of the charter under which the Court was constituted and which conferred on it power in respect of the method and the manner of exercising that jurisdiction. That being so, the High Court had to exercise its appellate jurisdiction under S.76, Trade Marks Act, in the same manner as it exercised, and when such jurisdiction was exercised by a Single Judge, his judgment was appealable under Cl.15 of the Letters Patent. This decision of the Supreme Court makes it very clear that a party's right of appeal within the High Court itself is founded on the provisions relating to the jurisdiction and powers of the High Court and not on an extension of the vested right already existing. In regard to the case of - 'Raj Kumar Mills Ltd. (E)', I had expressed some doubt about its correctness in the last para of my judgment in - 'Gokuldas v. Mohan Kunwar Bai', AIR 1953 Madh-B 217 (FB) (G). In regard to the case of - 'Raj Kumar Mills Ltd. (E)', I had expressed some doubt about its correctness in the last para of my judgment in - 'Gokuldas v. Mohan Kunwar Bai', AIR 1953 Madh-B 217 (FB) (G). That doubt seems to me to have been resolved now by the decision of the Supreme Court in the case of - 'National Sewing Thread Co. Ltd. (F)'. In fact Mr. Sanghi did not press his objection as to the competency of these appeals when his attention was drawn to the decision of the Supreme Court referred to above. 10. For the above reasons I would accept the defendant Mishrimal's appeal (Civil Second Appeal No.244 of 1950) and modify the judgment and decree of the learned Single Judge by holding that the house known as the Gugliawala house is a separate property of Mishrimal and the plaintiff Rajmal is not entitled to any share in it. The plaintiff Rajmal's appeal as regards costs must, in my opinion, be dismissed. In both the appeals parties shall bear their own costs. 11. SHINDE, C.J.: I agree and have nothing to add. Order accordingly.