NANDU Vs. SURENDER KUMAR (MAJOR) AND OTHERS

JUDGEMENT

(1.) THIS judgment will dispose of R.S.A. Nos. 1765 of 1979, 1766 of 1979, 1767 of 1979, 1768 of 1979 1769 of 1979 and 2218 of 1979, as the questions involved are common in all these appeals. Moreover, even the lower appellate Court decided all these cases by a common judgment.

(2.) THE sales in all these cases were effected by Shankar Lal, the father of the Plaintiffs -Respondents. The case of the Plaintiffs is that they alongwith their father Shankar Lal formed a Joint Hindu Family and that the properties in dispute were Joint Hindu Family properties. Since the sales were effected by their father Shankar Lal without consideration and legal necessity, the same were not binding on them. The alienations in these appeals were made from 1949 to 1951. All these suits were filed in October and November, 1965. In the written statements the vendees pleaded that the impugned sales were for consideration and legal necessity and otherwise also it was an act of good management and for the benefit of the estate. Factum of the Plaintiffs being the sons of Shankar Lal and the family being a joint Hindu family and the nature of the property being ancesteral was categorically denied. A specific plea was taken that the suit was barred by time, as it was filed after three years of attaining majority by Plaintiff Surinder Kumar. The trial Court found that the suit was barred by time, under issue No. 7 as the Plaintiff Surinder Kumar had failed to prove that the suit was filed within 3 years' of his attaining the majority. According to the trial Court, the date of birth of Surinder Kumar was not proved by cogent evidence. It was further found under issue No. 5, that the sales in dispute were for consideration and for legal necessity, as well as an act of good management and for the benefit of the estate. In view of these findings all the suits filed by the Plaintiffs were dismissed. In appeal the learned Additional District Judge reversed the said two findings of the trial Court. According to the lower appellate Court, Surinder Kumar Plaintiff was born on 17th November, 1944, and from that date the suits had been filed within three years after attaining the majority. It was further found that though the sales were for consideration, but they were not for legal necessity. In view of these finding the Plaintiffs suits were decreed. Dissatisfied with the same the vendees have filed these second appeals in this Court. Learned Counsel for the vendee -Appellants submitted that there is no cogent evidence on the record to prove the date of birth of Surinder Kumar Plaintiff. The entries in the school register had no evidentiary value as such and, therefore, the finding of the lower appellate Court in this behalf is wrong and illegal. According to the learned Counsel the trial Court rightly came to the conclusion that the Plaintiff has failed to prove his date of birth by any cogent evidence. In support of his contention a reference was made to Brij Mohan Singh v. Priya Brat Narain Sinha : A I. R. 1965 S. C. 282. It was also contended that the Plaintiff did not produce the best evidence to prove his date of birth and, therefore, the presumption will be against the Plaintiffs that had the evidence been produced it would have gene against him.

(3.) AFTER hearing learned Counsel for the parties and going through the relevant evidence on the record, I find force in the contentions raised on behalf of the vendee -Appellants. The approach of the lower appellate Court in this behalf is wholly misconceived, wrong and illegal. There is no explanation as to why the birth entry of Surinder Kumar Plaintiff in Municipal record could not be produced. Not only that the Plaintiff produced his Purohit, who, stated that his date of birth was as entered in the 'Patra', but no such Patra was ever produced, nor the father of the Plaintiff Shankar Lal produced his diary, in order to show the date of birth of the Plaintiff The Plaintiff was satisfied with the entries in the school register made at the time of his admission. Even if the said entries were admissible per -se, their evidentiary value was very little in view of the authoritative pronouncement of the Supreme Court in Brij Mohan Singh's case (supra). It has been held therein that: -