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2002 DIGILAW 260 (RAJ)

Shantilal v. Mahendra Kumar

2002-01-31

N.N.MATHUR, O.P.BISHNOI

body2002
Honble MATHUR, J.–These two appeals, which arise from the same suit between the parties, are disposed-of by common judgment. D.B. Civil Special Appeal No. 9A/1998 is directed against the judgment of the learned Single Judge dated 19.11.1987 confirming the preliminary decree dated 25.4.1973 in a partition suit passed by the Civil Judge, Udaipur with the modification that the entire property mentioned at item Nos. 1 to 7 in Schedule `Ka annexed with the plaint is liable to be partitioned instead of only property mentioned at item Nos. 1, 2, 3 and 4 of the Schedule. Another Appeal being S.B. Civil First Appeal No. 126/1990 is against the second preliminary decree dated 11.7.1990 passed by the Additional District Judge, Udaipur in Civil Suit No. 28/1966. (2). In order to understand and relationship of the contesting parties, it would be apposite to give pedigree of the family, which is given below: Hamirji Bhimraj Chunilal Handawat (died on 25.12.65) Anoplal (died on 26.12.87) (D-1) Smt. Sushila Devi (Suit) (D-3) (Uncontested) Shantilal (by first wife) D Mahendra Kumar (by second wife) plaintiff Chunilal with his son Anoplal carried-on his joint family business at Udaipur in the name & style of M/s Hamirji Bhimraj. Plaintiff Mahendra Kumar is the younger son from the second wife of first defendant Anoplal. The second defendant Shantilal is the plaintiffs elder brother being son of Anoplal from the first wife. Third defendant Smt. Sushila Devi in Anoplals married sister. She has not contested the suit. Chunilal is the grand father of plaintiff Mahendra Kumar. It is alleged that late Chunilal and his son Anoplal with his sons Shantilal and Mahendra Kumar constituted a joint Hindu Family and its business was carried-on in the name of M/s Hamirji Bhimrajji. This joint Hindu Family not only owned joint family business but also certain properties which are mentioned in Schedule `Ka annexed with the plaint. It is also alleged that for the sake of convenience and to avoid tax liabilities, the joint family concern was converted into a partnership Firm in January, 1962 with equal shares of Chunilal, Anoplal and Shantilal. The Firm was converted into a partnership Firm from the capital and assets as also stock in trade of the old family business and all the contracts which the joint family Firm entered-into, were transferred to the partnership Firm. The Firm was converted into a partnership Firm from the capital and assets as also stock in trade of the old family business and all the contracts which the joint family Firm entered-into, were transferred to the partnership Firm. The plaintiff Mahendra Kumar, who was minor at that time, was not allowed benefit of the partnership Firm. This partnership Firm stood dissolved on 25th Dec., 1965 on the death of Chunilal. The case of the plaintiff is that this apportionment of shares in the Firm was prejudicial and injurious to his interest. In these circumstances, he has claimed 1/3rd share in the joint family business and the entire properties as mentioned in Schedule `Ka. The first and second defendants are duty bound to render accounts of the Firm. The suit was filed by the plaintiff Mahendra Kumar through his natural guardian on 20th Sept. 1966 seeking a decree for partition of the joint family business and all the properties mentioned in Schedule `Ka by metes and bounds. (3). The first defendant Anoplal almost admitted the plaint allegations and asserted that all the accounts are in possession of Shantilal, therefore, he alone is answerable to render the accounts. He also alleged that Shantilal tried to grab the entire property. He also asserted that the joint family business was transformed in the partnership Firm only for the purpose of income tax otherwise for all good reasons, it was a joint family business. (4). The suit was resisted by the second defendant Shantilal. He pleaded that his relations with father Anoplal were not cordial. His father Anoplal alongwith his second wife and son Mahendra Kumar used to live separately. He used to live with his wife and grand father Chunnilal. The business of the joint family was looked after by him for last ten years. It is alleged that on 1.1.1962, the accounts of the joint family were settled and a partnership firm was formed. On 14.6.64, the accounts of the partnership firm were also settled and his father Anoplal separated the business under the name and style of `Kamal Kirana Merchants. The accounts of the partnership firm were settled with the intervention of one Khemraj and Chandraraj. It is also alleged that on 14.6.65, Chunnilal executed a Will whereby he bequeathed his share in his (Shantilal) favour. The accounts of the partnership firm were settled with the intervention of one Khemraj and Chandraraj. It is also alleged that on 14.6.65, Chunnilal executed a Will whereby he bequeathed his share in his (Shantilal) favour. It was also pleaded that the ancestral house in which he was living, has already been partitioned and Anoplal and Mahendra Kumar have no interest therein. (5). On the basis of the pleadings of the parties, the trial Court framed seven issues. The plaintiff examined P.W.1 Laxmilal. The first defendant Anoplal entered in the witness box as D.W.1. Shantilal examined himself as D.W.2/1 and also examined Santosh Lal as D.W. 2/2. The trial Court found that after separation. Anoplal started another business in the name of M/s Kamla Kirana Merchants in his own name and in the name of Mahendra Kumar. It also found that Anoplal was protecting the interest of Mahendra Kumar and he, subsequently, started his business with his son. The trial Court further found that the partition was neither unfair nor prejudicial to the rights of the plaintiff Mahendra Kumar. Accordingly, issue No.1 was decided against the plaintiff and in favour of defendant No.2. Dealing with the second issue, the Court found that the partition of 1.1.62 was partial. The partition of the business and as a consequence, it cannot be said that the family disrupted. It remained joint for other property of the joint family. Accordingly, the learned Judge decided the issue No.2 as well against the plaintiff and in favour of second defendant. Regarding the issue No.3, it was admitted by the parties to the suit that all the property except the business was ancestral. In view of this admission at bar, the Court decided the issue in favour of defendant. Regarding the most crucial issue being issue No.4, the Court held that the second defendant Shantilal failed to establish that the Will dt. 16.8.65 was executed in his favour by Chunnilal. Thus, the issue No.4 was decided against the defendant and in favour of plaintiff. Issue No. 5 was decided in favour of the plaintiff having held that the defendants No.1 and 2 are liable to render account of the joint family which remained in common stock after partial partition. (6). 16.8.65 was executed in his favour by Chunnilal. Thus, the issue No.4 was decided against the defendant and in favour of plaintiff. Issue No. 5 was decided in favour of the plaintiff having held that the defendants No.1 and 2 are liable to render account of the joint family which remained in common stock after partial partition. (6). The sixth issue as to whether Anoplal had relinquished his share in the firm M/s Hamirji Bhimrajji on 14.6.64, was decided in favour of the plaintiff and against defendant No.2. The contention of the second defendant that on 14.6.64, Anoplal and Mahendra Kumar started separate business in the name of M/s Kamla Kirana Store, so he had no share in his partnership, was rejected. Reading Ex.A.5, the Court observed that it merely shows the list of property and there was no partition or distribution of share. The court also found that Ex.A.5 did not bear the signature of Anoplal. No amount was paid to Anoplal in terms of Ex.A.5, the fact which has been admitted by second defendant Shantilal. In view of the findings, the trial court partly decreed the suit and passed a preliminary decree for partition of the joint family property as mentioned at item Nos. 1, 2, 3 and 4 of the Schedule. The Court Commissioner was appointed to divide the property by metes and bounds. The Court directed that Mahendra Kumar, Anoplal and Shantilal each will have 1/3rd share in the property. (7). The learned Single Judge reversed the finding of the learned trial court on issue No.1 and held that partnership firm was constituted on 1.1.62 but infact, no partnership took place and no particular share was assigned to Shantilal. The learned Single Judge concluded that the document was executed only for the purpose of avoiding the income tax liability. It was further observed that the partnership firm was constituted with the same assets, same liabilities and same capital with the same shop but the plaintiff was never excluded from the benefit. (8). In order to appreciate the contention of Mr. Samdaria challenging the findings on issue No. 1 recorded by the learned Single Judge, we have pondered our consideration on Ex.1 dt. 19.5.65. It is an admitted document and it has been proved by P.W.1 Laxmilal. It is significant to notice that this document bears the signatures of all the three parties. In order to appreciate the contention of Mr. Samdaria challenging the findings on issue No. 1 recorded by the learned Single Judge, we have pondered our consideration on Ex.1 dt. 19.5.65. It is an admitted document and it has been proved by P.W.1 Laxmilal. It is significant to notice that this document bears the signatures of all the three parties. P.W.1 Laxmilal has stated on oath that he was appointed as Panch by Chunnilal and Anoplal alongwith Dhokal Chand and, advocate Doongar Singh. The list of the properties including ornaments were prepared but infact no such partition took place. It is stated by P.W. 1 Laxmilal that partition could not take place as Anoplal and Shantilal approached to them and informed that compromise was not possible and, therefore, the letter of authority may be returned. The Ex.1 has been extracted in the order of the learned Single Judge. In the said document, the property has been referred-to as the ancestral property. A bare reading of the document shows that the family of Chunnilal, Shantilal, Anoplal and Mahendra Kumar remained joint upto 19.5.65. This supports the plea of the plaintiff that the joint family business was converted into a partnership business on papers only in order to avoid income tax liability. Second defendant Shantilal has admitted in his statement that the partnership firm started on 1.1.62 with the same shop with the same capital and with the same assets and liabilities. It has also been admitted that no particular share was assigned to Shantilal. They utilised the same capital, liabilities and the same shop for continuing the business of the firm. The emphasis has been laid on the fact that Anoplal started the separate business in the name and style of Kamla Kirana Merchants. In our view, simply because Anoplal started separate business, he did not cease to have any interest in the business of the joint family. More particularly, when it has been admitted that Kamla Kirana Merchants was not started by taking money from the found of M/s. Hamirji Bhimrajji. Thus, the finding of the learned Single Judge does not call for interference. (9). The learned Single Judge reversed the finding of the trial court on the second issue as well. More particularly, when it has been admitted that Kamla Kirana Merchants was not started by taking money from the found of M/s. Hamirji Bhimrajji. Thus, the finding of the learned Single Judge does not call for interference. (9). The learned Single Judge reversed the finding of the trial court on the second issue as well. The learned Judge held that the properties mentioned at item No.S.1 to 5 of Schedule `Ka formed part of the joint family property, as they have already been acquired, purchased or mortgaged with the joint family prior to 19.6.65. On careful consideration of the matter, we are of the view that finding of the learned Single Judge on issue No.2 deserves to be confirmed. It may be noticed that the learned Single Judge while dealing with the issue No.1 clearly observed that the conversion of the joint family business into a partnership firm was only done for the purpose of avoiding tax liability, otherwise the family business was joint. It is alleged that the accounts of the joint family were settled by Khemraj and Chanderraj on 14.6.64 and they decided the share amount to be paid to Anoplal. It is significant to notice that when second defendant Shantilal was examined, he did not say a word about the family partition on 14.6.64. On the contrary, the case of Shantilal is that on 13.6.66, Khemraj and Chanderraj settled the accounts of old partnership firm and prepared the document Ex.A1. It is significant to notice that Shantilal has admitted that the said document does not bear the signatures of Khemraj and Chanderraj, in such state of affair, the finding of the learned Single Judge on issue No.2 is unassailable. The learned Judge has rightly held that the properties mentioned at item Nos. 1 to 5 to Schedule `Ka formed part of the joint family property as they have been acquired with the joint family prior to 19.5.65. Similar is the finding with respect to item No.6 of Schedule `Ka, which has not been seriously challenged by the learned counsel for the appellant. (10). The main thrust of the contention of Mr. K.C. Samdaria is that the trial court committed serious error in not giving the sufficient opportunity to lead evidence to prove the Will. Similar is the finding with respect to item No.6 of Schedule `Ka, which has not been seriously challenged by the learned counsel for the appellant. (10). The main thrust of the contention of Mr. K.C. Samdaria is that the trial court committed serious error in not giving the sufficient opportunity to lead evidence to prove the Will. The case of the second defendant Shantilal is that on 14.6.65, a Will was executed by his grand father Chunnilal whereby he bequeathed the property of his share in his favour. Issue No. 4 pertains to execution of the Will. The trial Court decided the issue No.4 against the contesting second defendant on the ground that he failed to prove the Will in the manner provided by Section 68 of the Evidence Act, inasmuch as no attesting witness of the Will was examined. It is submitted by Mr. Samdaria that on 14.03.1973, when the attesting witness viz; Hariroop Chandani was present in the court, he ought to have been examined by the trial Court. The learned Judge committed error in refusing to examine him simply on the ground that his name did not appear in the list of witnesses. A perusal of the minutes of the proceedings of the trial Court shows that the case was first listed for defence witnesses on 8.9.72. On that day, it was adjourned on the request of the learned counsel for the second defendant to 3rd of Oct., 1972. It was again adjourned on the request of the counsel for the defendant. On 30th Oct. 1972, an application was moved to add certain names in the list of witnesses. This application was allowed and the witnesses were summoned. On 5.12.1972, the defendant Shantilal examine himself alongwith D.W. 2/2 Santoshlal. It further appears from the ordersheet that the second defendant Shantilal closed the evidence on 14.03.1973. The application under Order 16 Rule 1 CPC was filed to summon one witness Hariroop Chandani. As the name of the witness did not appear in the list of witnesses and further he was not the attesting witness of the Will, the application filed by the defendant was rejected. (11). In this context, the learned counsel has heavily placed reliance on a decision of the Division Bench of this Court in Mst. Tulsi Bai vs. Chunilal (1). (11). In this context, the learned counsel has heavily placed reliance on a decision of the Division Bench of this Court in Mst. Tulsi Bai vs. Chunilal (1). In the said case, the Division Bench was considering the import and effect of the Rajasthan Amendment in Order 16 Rule 1 CPC, which came into force from 23.05.1961. The rule prescribed that after the issues have been settled and not later than 30 days thereof, each party must present in court a list of witnesses whom he wishes to produce at the trial in support of his case. The rule further provides that no party shall obtain process to enforce the attendance of the witnesses or produce them in court, if the names of such witnesses have not been mentioned in the list. However, as an exception in a case, that where party shows good cause for omission to mention the name of the witness in the list and seeks permission of the court to produce such witness, even though his name was not so mentioned, the court may grant such permission recording the reasons for doing so. (12). It appears that the said rule has been introduced with a view to ensure a speedy and efficient trial. Another purpose appears to be eliminate opportunities for production of cooked up witnesses. While considering the amendment, the Court observed that in a given case, it may be open to the parties to examine themselves in the evidence, notwithstanding the fact that their names may not have been mentioned in the list of witnesses filed in the court. Therefore, this refers not to the other witnesses but only the parties to the suit. The Division Bench has gone to the extent of observing that if for certain reasons, the party or its counsel neglects to read the rule or comply with it, the fault will be entirely its own and such person should be left to suffer the consequences eminating therefrom. The Court emphasized that they are not entitled to any sympathy from the court. The Court emphasized that they are not entitled to any sympathy from the court. In the ultimate conclusion, the identical contention was rejected having observed thus: ``.............in other words, the exercise of such discretion should not be arbitrary, vague or fanciful, not according to the mere private opinion held by a particular presiding officer but it must be regulated by the justice of the case; it must be according to reason and not according to humour. In this view of the law. We hold that the trial court was under the circumstances fully justified in refusing to allow the appellant to produce her witnesses at the trial and we overrule this contention. (13). Learned counsel in support of the contention has also relied upon a decision of the Apex Court in Mange Ram vs. Brij Mohan (2), wherein the Apex Court dealing with the situation where the party wants assistance to procure the presence of a witness on being summoned through the court and where the party produces its witnesses without the party produces its witnesses without the assistance of the court, the court on consideration of Order 16 Rr. 1 and 1-A held that where a party wants assistance from the court to procure the presence of a witness on being summoned through the court, it is obligatory on the party to file the list with the gist of evidence of witness in the court. But in a case where the party is in a position to produce its witness without assistance of the court, it can do so under Rule 1-A of Order 16 irrespective of the fact whether the name of such witness is mentioned in the list or not. The said case renders in the list or not. The said case renders no assistance to the appellant, as in the instant case, the appellant produced the witness after he himself closed the evidence. Once the party has closed the evidence, the question of examining the witness present in the court does not arise. Such an inference can be deduced from the observations of the Apex Court thus: ``Save this the Court has no jurisdiction to decline to examine the witnesses produced by the party and kept present when the evidence of the party is being recorded and is not closed.... (14). Such an inference can be deduced from the observations of the Apex Court thus: ``Save this the Court has no jurisdiction to decline to examine the witnesses produced by the party and kept present when the evidence of the party is being recorded and is not closed.... (14). This view has also been taken by a learned Single Judge of this Court in Brij Narain vs. Kanchan Singh (3). In the said case, on 6.1.90, the plaintiff recorded his evidence and thereafter opportunity was granted to defendant on 19.3.90, 20.3.90, 2.6.90 and 20.8.90. On 20.8.90, the defendants evidence was closed and the case was fixed for final arguments on 7.9.90. On 7.9.90, arguments could not take place and on the next date of hearing i.e. on 11.11.90, the defendant moved an application for permitting him to examine a handwriting expert for the purpose of proving certain signatures on documents mentioned at Ex.A/9 and A/10 under O.16 R.1 CPC. The trial Court after referring to the entire proceedings, concluded that the application of the defendant did not appear to be bonafide. It, therefore, rejected the application. The learned Single Judge upheld the order of the trial Court on the ground that such an application was made after closure of the evidence and the case had been fixed for final arguments. In the instant case, the learned trial Judge has rejected the application by a detailed order dated 14.3.73. The learned trial Judge recorded that the plaintiff closed the evidence on 7.7.72 and the case was posted for defence evidence. On 8.9.72, the case was adjourned to 3.10.72. On that day, the case was adjourned to 30.10.72 on the request of the defendant. On 30.10.72, a list of witnesses was filed and adjournment was sought. In the list filed by the defendant, the name of witness namely Hariroop Chandani did not appear. The defendant did not produce the witness. However, the case was adjourned to 15.12.72. On that day, two witnesses were examined and the evidence was closed by the defendant. The case was posted for final arguments on 29.1.73 and then on 27.2.73. On 14.3.73, the said application was rejected by a detailed order. As second defendant had closed the evidence himself on 15.l2.72, there was no question of permitting a witness to be examined on the date of hearing for final arguments. The case was posted for final arguments on 29.1.73 and then on 27.2.73. On 14.3.73, the said application was rejected by a detailed order. As second defendant had closed the evidence himself on 15.l2.72, there was no question of permitting a witness to be examined on the date of hearing for final arguments. The learned Single Judge has also examined this aspect in great detail. We do not find any infirmity in the order of the learned Single Judge rejecting the contention of the appellant with respect to non examination of the witness Hariroop Chandani in the court. Accordingly, the contention raised by Mr. Samdaria is rejected. (15). The appellant has also moved an application under Order 41 Rule 27 CPC before this court seeking permission to place on record the affidavits of Shri Hariroop Chandani and Basanti Lal as additional evidence. It is averred that a registered sale deed was executed by the defendant Chunnilal on 16.10.85 in the presence of Hariroop Chandani and Bansantilal. The will was attested by them. On 15.12.72, the defendants evidence was closed and the case was kept for arguments. It is also averred that the said witnesses could not be produced earlier as the defendants son Sunil got fractured and remained hospitalised for a long time. It is submitted by Mr. Shishodia that this application deserves to be rejected on the short ground that no evidence can be taken in a suit by way of affidavit. The application on the face of it, is wholly misconceived. Learned counsel has placed reliance on a decision of the Apex Court in Jaipur Development Authority vs. Smt. Kailashwati Devi (4). In the said case, the suit was decreed exparte. In appeal, the appellant wanted to produce two documents to show that the possession was taken over from the plaintiff long back. The application was rejected by the High Court on the ground that the appellant defendant did not adduce any evidence in the trial court. The Apex Court held that for adducing additional evidence in the appeal, it is not one of the conditions that a party seeking to adduce additional evidence, must have also led some evidence in the trial court. This case does not advance the case of the appellant. The Apex Court held that for adducing additional evidence in the appeal, it is not one of the conditions that a party seeking to adduce additional evidence, must have also led some evidence in the trial court. This case does not advance the case of the appellant. In the said case, the Apex Court has referred to Order 41 Rule 27 (1) (aa) which mentions the condition to be complied with by a party producing the additional evidence viz; notwithstanding the exercise of due diligence, such evidence was not within his knowledge or could not, after the exercise of due diligence, be produced by him in the trial court. In the instant case, even if it is assumed that the two affidavits filed by the appellant fall in the category of evidence, then also there is nothing on record to satisfy the condition under sub clause (aa) referred to above. Learned counsel has also referred to a decision of the Apex Court in Mahavir Singh vs. Naresh Chandra (5). In the said case, the court observed that Section 107 CPC enables an appellate court to take the additional evidence or to require such other evidence to be taken subject to such conditions and limitations as are prescribed under Order XLI Rule 27 CPC. The Court further observed that party seeking to produce additional evidence, is required to establish that notwithstanding the exercise of due diligence, such evidence was not within his knowledge or could not, after the exercise of due diligence, be produced by him at the time when the decree appealed against was passed. The appellant has failed to satisfy the conditions provided under Order 41 Rule 27 CPC for taking the additional evidence. Thus, we find no merit in the application filed by the appellant for taking the additional evidence and, accordingly, the same is rejected. (16). Reverting to the issue with respect to execution of the Will, in absence of any of the two attesting witnesses, the execution cannot be said to have been proved in view of the provisions of Section 68 of the Evidence Act. Reference may be made to a decision of the Apex Court in Thakkar Vrajlal Bhimjee vs. Thakkar Jamnadas Valjee (6), Thus, the contention in this regard advanced by the appellant is rejected. S.B. Civil First Appeal 126/1990 : (17). Reference may be made to a decision of the Apex Court in Thakkar Vrajlal Bhimjee vs. Thakkar Jamnadas Valjee (6), Thus, the contention in this regard advanced by the appellant is rejected. S.B. Civil First Appeal 126/1990 : (17). After the judgment of the learned Single dated 19.11.87 and pendency of the Special appeal, first defendant Anoplal died on 26.11.87, therefore, the proceedings before the trial Court for final decree were pending. An application was filed by the plaintiff Mahendra Kumar for modification of the preliminary decree on 2.6.1988. It was prayed that the widow of Anoplal viz; Smt. Kamla Bai, being successor, was also entitled to a share in the family property. It is settled position of law that in a partition suit, there is no prohibition in passing more than one preliminary decree, if circumstances justify the same and that may be necessary to do so, particularly in the partition suit when after the preliminary decree, some party dies. Thus, the trial Court rightly modified the decree by distributing 1/3rd share of the property to each of the parties in accordance with the decree passed by this Court. Both the sons have been given 1/9th share and Smt. Kamla Bai 1/9th share in the property. We do not find any infirmity in the preparation of the second preliminary decree. Learned counsel has filed to point out any illegality in the order of the trial Court dt. 11.7.1990. (18). In view of the aforesaid, we do not find any merit in both the appeals, referred-to above and the same are dismissed. There shall be no order as to costs.