SUBBA RAO, - (1.) THE following judgment of the court was delivered by :
(2.) THIS appeal by certificate is directed against the decree and judgment of the High court at Nagpur, reversing those of the First Additional District Judge, Nagpur, in Civil Suit No. 12-A of 1940. It would be convenient at the outset to give the following genealogy which would help to understood the contentions of the parties. (The geneology is given on the next page). Ramesahai (d. 1897) Ganesh Parsad (d. 1928) Daughter Mst. Rukhmahai == Lala Sheoshankar (defendant 1) Ramesahai (d. 1897) Ajodhya parsad (d. 1912) Adopted son Chandanlal (d. 31/1/1940) == Window Mst. Annapurnabai (defandant 2) JUDGEMENT_335_AIR(SC)_1960Image1.jpg During the life time of Ramasahai, he and his eight sons and one cousin, namely, Sitaram, constituted a joint Hindu family with Ramasahai as its managers The joint family carried on its ancestral family business of excise contracts in several districts in the former C. P. & Berar provinces. On January 24, 1897, Ramasahai died and, at the time of his death, the family, though heavily indebted, had extensive properties distributed at various places like Nagpur, Kamptee Rajnandgaon, Raipur, Jabalpur etc. Sarjooprasad died in 1903, Ajodhya prasad in 1912, Mangalprasad in 1914, Jankiprasad in 1923, Ratanlal in 1926, Ganeshprasad in 1928, Govindprasad in 1934, and Ramchand in 1940. On 27/02/1915, 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 17/02/1916, 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 Rs. 15,000.00 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 to the two minor beneficiaries. With a part of that amount a site was purchased in Cotton Market, Nagpur, and between the years 1916 and 1921 a building was constructed thereon. On or about 25/10/1929, Rukhmabai filed a suitagainst Chandanlal for partition of the said property and obtained a decree against him on 5/01/1934, for partition and mesne profits. Chandanlal filed an appeal against that decree and it was dismissed. After the said decree, Chandanlal died on 31/01/1940. When the Commissioner appointed by the court went to the building to effect the partition by metes and bounds, the respondent, who was in the house, obstructed the Commissioner, and thereafter on 8/10/1940, filed a suit, out of which the present appeal arises, for a declaration that the said trust deed executed by Govindprasad in favour of the appellant and Chandanlal was a sham document. The respondents' case, inter alia is that the first relinquishment deed was brought into existence sometime before the second registered relinquishment deed was executed and that the said deeds and the trust deed were parts of a same scheme of fraud conceived by the members of the family to defraud the creditors. The appellant, on the other hand, alleges that Govind-prasad had really separated himself from the other members of the family, that he had his own businesses, that from out of his self-acquisitions he created the trust deed to benefit his minor nephew and niece for whom he had great love and affection, and that subsequently the trustees purchased a land and built the house thereon with additional funds supplied by him. She also alleges that the first respondent, after having set up by his natural brother, Chandanlal, to to resist her claim to the building and having failed in that attempt, started the present litigation to deprive her of the fruits of her decree. On the pleadings the learned District Judge framed as many as 12 issues. He held, on a consideration of the documents and oral evidence adduced, that Govindprasad became divided from the members of the joint family in 1898, that thereafter he was carrying on the business of moneylending, was dealing in gold and silver, and also was taking liquor contracts, that out of his self-acquisitions he created the trust in respect of Rs. 15,000.00, and that the land was purchased and the suit building was 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 was set aside and the respondent's suit was decreed. Hence this appeal. The main point that arises for consideration is whether the plaint-schedule house is the property of the joint family or whether it was built out of the self-acquisitions of Govindprasad in respect whereof he executed the trust deed. At the outset the relevant and well-settled principles of Hindu Law may be briefly noticed. There is a presumption in Hindu Law that a family is joint. There can be a division in status among the members of a joint Hindu family by refinement of shares which is technically called `division in status`, or an actual division among them by allotment of specific property to each one of them which is described as `division by metes and bounds`. A member need. not receive any share in the joint estate but may renounce his interest therein, his renunciation merely extinguishes his interest in the estate but does not affect the status of the remaining members vis- a-vis the family property, A division in status can be effected by an unambiguous declaration to become divided from the others and that intention can be expressed by any process. Though primafacie a document clearly expressing the intention to divide brings about a division in status, it is open to a party to prove that the said document was a sham or a nominal one not intended to be acted upon but was conceived and executed for an ulterior purpose. But there is no presumption that any property, whether movable or immovable, held by a member of, a joint Hindu family, is joint family property. The burden lies upon the person who asserts that a particular property is joint family property. to establish that fact. But if he proves that there was sufficient joint family nucleus from and out of which the said property could have been acquired, the burden shifts to the member of the family setting up the claim that it is his personal property to establish that the said property has been acquired without any assistance from the joint family property.
(3.) BEARING the aforesaid principles in view, we shall now proceed to consider the main issue in the appeal. The appellant naturally relies upon the document of 1898, in support of her case that Govindprasad renounced his interest in the joint family property in the year 1898. That document is Ex. D. 54-A, dated January 24, 1898, and is described as ` 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. III-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 very 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 his loss ... (torn) unless (we) give voluntarily (some 'property) to your children and (you) give voluntarily (some property) to our children, (they) shall have no manner of right against each other `.` This document purports to have been signed by the seven brothers. If this deed is not a sham document, it clearly brings about a division of status between all the members of the family. It also proves that movables were divided between the brothers at the time of the death of their father, and -that the joint family property, presumably because it was heavily involved in debts, was not divided in metes and bounds. Exfacie it does not support the appellant's version that Govindprasad alone separated from the joint family taking his share of movable properties at the time of his father's death and relinquishing his interest in all the immovable properties of the family. The first respondent attacks this document mainly on the ground that this was a sham one brought into existence after the year 1912 as a part of a scheme to defraud the creditors. The first circumstance relied upon is that this document, though it purports to bring about a division in status among the members of the family and, according to the appellant, amounts to a relinquishment of Govindprasad's interest in the extensive joint family property, was not registered. Doubtless an unregistered document can affect separation in status; but Ramasahai and his sons were carrying on extensive businesses, purchased properties in different places and in the course of their business they were executing registered mortgage deeds. The ostensible purpose of the execution of the document is alleged to be the intention of Govindprasad to free himself from the family troubles caused by its involvement in heavy debts and to eke out his livelihood by carrying on a new business of his own. It is not likely that he would not have insisted upon a registered document to achieve that purpose. There is therefore Some justification for this comment. Secondly, if there was a partition of the movable properties either at the time of the execution of the document or even earlier-a rich family like that of Raniasabai must have had large extent of movables-the details of that partition should have found a place in the document. The absence of such details is indicative of the fact that the document was not really intended to be a formal document effecting a division between the parties. 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 7/09/1912, 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, executed by him on May 1, 1919, the following recital is found: `... I have taken no share at all in the movable and immovable property left by him, and all the property in my possession on my earning it. is acquired by me, and consequently, my brothers, Lala Ganeshprasad, Jankiprasad Ratanlal, Ramchandra and -all other brothers had executed a pharkath-nama (deed of relinquishment) in my favour on 24-1-1898 A.D. . . . ` What could be the reason for Govindprasad not referring to the deed of relinquishment of the year 1898 in his Will of 1912, but thought fit to do so in his Will of 1919 ? The only possible explanation is that in between these two documents, another relinquishment deed, Ex. D. 32, executed by him on 27/02/1915, came into existence. We will have to say more about this document at a later stage of our judgment. This document, for the first time, affirms the recitals of the earlier alleged relinquishment deed of 1898 and is also registered. It is therefore a permissible inference that Ex. D. 54 might not have been in existence before Ex. D. 32 was executed or, at any rate, before Ex. P. I was executed by Govindprasad. Reliance is also placed by the respondent on the alleged discrepancies between the particulars of partition given in Ex. D-54 and Ex. D-32. But we do not find much force in this contention, as the argument cuts both ways. If Ex. D- 54 was forged to support Ex. D-32, there could not have been any room for introducing discrepancies between the two documents. We find no such irreconcilable discrepancies between the two documents and in substance the recitals are similar. ;