- (1.) THIS appeal by the plaintiff Hetram and his minor brother Sahabram is directed against the judgment and decree of the Additional District Judge, Ganga-nagar, dated 31-5-71 dismissing the suit for declaration, possession and mesne profits
(2.) THE dispute relates to agricultural land measuring 16 bighas 2 biswas which is a part of Khasra No. 167 measuring 32 bighas 6 biswas in village Dulmana, Tehsil Suratgarh, district Ganganagar. By a deed of sale dated 9 9-59 which was registered on 10-9-59, Gangaram alias Nandram, the father of the plaintiffs, sold the disputed land measuring 16 bighas 2 biswas to the defendant-respondent Bhadaram for Rs, 10304/ -. On 25-10-68 the plaintiffs brought the present suit alleging that the entire khasra No. 167 belonged to their grand-father Arjanram and on the death of Arjanram it devolved upon their father Gangaram. THEy further alleged that the sale-deed dated 9. 9. 1959 executed by their father was entirely without consideration and no amount whatsoever was paid for the land. It was further alleged that the land being undivided ancestral property, their father Gangaram had no power to sell it. THEy also pleaded that their father had no debts to repay and consequently, the sale was without any legal necessity or for the benefit of the estate. It was also mentioned in the plaint that both the plaintiffs Hetram and Sahabram were minors at the date of the sale transaction. On these allegations, the plaintiffs prayed that the sale-deed in question be cancelled and a decree for possession of the suit land as also for mesne profits at the rate of Rs 1000/-per annum from the date of the suit to the date of delivery of possession be granted in their favour. Gangaram, the father of the plaintiffs who was impleaded as defendant No. 2 in the suit allowed the suit to proceed exparte against him. Defendant No. I Bhadarram alone contested the suit and denied all material allegations made in the plaint. He denied that the suit land was the ancestral property in the hands of Gangaram. According to him, it was self acquired property of Gangaram and he had full authority to sell it. He further denied that the plaintiff Hetram w?s a minor on the date of the sale-transaction. He asserted that Hetram was major on 9 9-59. He contended that the suit land was sold by Gangaram for consideration and the entire sale-price amounting to Rs. 10304/- was paid to Gangaram. He further contended that Gangaram sold the land as he was in urgent need of money and, he on the next day, that is, 10-9-59, he purchased from Ratiram for Rs. 6000/- land measuring 23 bighas 16 biswas (correct figure in 28 bighas 13 biswas), that is, in excess of the land sold by him He pleaded that from the sale transaction the family of Gangaram reaped dual benefit. Firstly, there was enlargement of the family estate inasmuch as the land almost double in size was purchased out of the sale-price and secondly there was a clear saving of Rs. 4304/-to the family. He further contended that the amount saved out of the sale price was also subsequently utilized by Gangaram by purchasing 8 bighas of land from Mst. Tulchi on 2. 3. 64 in the name of Hetram plaintiff. On the above allegations, it was pleaded that the sale-transaction was clearly for the benefit of the estate. It was also pleaded by the defendant that the suit had been brought as a result of collusion between the plaintiffs and their father as the prices of lands had considerably increased since the date of the sale-transaction. Several other pleas were also raised but they need not be mentioned here as no arguments in respect thereof were addressed before me. The trial court on the pleadings of the parties framed certain issues which were later on amended. Finally, the following issues survived for considerations: - " (1) Whether the land in dispute was ancestral and undivided property of Joint Hindu Family and defendant No. 2 was in possession of the said land in his capacity as manager and karta of the Joint Hindu Family and was cultivating as such? (2) Whether defendant No. 2 sold the land in dispute for legal necessity and for the benefit of the family estate and of the family? (3) Whether the plaintiffs were minors on 9-9-59? If so, what is its effect on the suit? (4) Whether the plaintiffs are entitled to mesne profits, if so, to what extent? (5) Whether the suit is bad for misjoinder of parties? (6) Whether the court-fee paid by the plaintiffs is insufficient? (7) Whether the plaintiffs' suit is barred by time under Art. 113, Limitation Act? (8) Whether the defendant No. 1 is entitled to compensatory costs under sec. 35a of the Civil Procedure Code. If so to what extent? (9) Relief? (10) Whether defendant No. 1 incurred Rs. 25,000/- for the improvement of the land in dispute. If so, what is its effect on the suit?" Issues Nos. 3, 5, 6 and 7 were not traversed at the time of the arguments in the lower court by the learned counsel for the defendant. They were therefore decided against him. The learned trial Judge held that the land in question was ancestral property in the hands of Gangaram. He further held that the sale-deed was executed by Ganga Ram for consideration. While dealing with issue No. 2 the learned trial Judge held that though there was no legal necessity to sell the suit land, the sale in favour of defendant No. 1 Bhadarram was for the benefit of the family and its estate. He accordingly held the sale of the suit land to be binding on the plaintiff and dismissed the suit. Aggrieved by the aforesaid judgement and decree, the plaintiffs have come up in appeal to this Court. I have heard Mr. H. C. Jain, Advocate, on behalf of the appellant, while Mr. B. L. Purohit addressed me on behalf of the contesting defendant-respondent Bhadar Ram. The main controversy in this appeal has centred round the issue relating to the sale of the disputed land for the benefit of the estate. Mr. Jain has frankly conceded that the trial court's finding that the sale was for consideration is correct. Before dealing with the question as to the sale-being for the benefit of the estate, it will be convenient at this stage to dispose of the respondent's criticism on the finding of the lower court that the suit land was ancestral property in the hands of Gangaram. It is contended by Mr. Purohit that the most important document relating to the question whether the suit land was ancestral property or not is Ex. 2. It is a certified copy of the mutation entry in the revenue record. It mentions all lands which were owned by Arjanram, the father of Gangaram and which on the death of Arjanram were mutated in favour of Gangaram. A perusal of Ex 2 shows that Khasra No. 167 in Ex. 2 leads to an irresistible conclusion that Khasra No. 167 was not owned by Arjanram and it was not inherited by Gangaram. There is no doubt that an entry from the official record is relevant under sec. 35 of the Evidence Act. the difficulty arises because Mr. Purohit does not rely on the actual entries mentioned in Ex. 2 but on the absence of an entry in respect of khasra No. 167. Sec. 35 of the Evidence Act provides that an entry in any public or official book, register or record stating a fact in issue or relevant fact and made by a public servant in the discharge of his official duty or by any other person in performance of a duty specially enjoined by the law of the country in which such book, register or record is kept, is itself a relevant fact. It is thus clear that according to sec. 35 entries existing in the official record are relevant and admissible. This section says nothing about the non-existent entry in the official record. It is argued that the public servant who maintained the register would not have omitted to include any land which has to be entered in it and that the absence of an entry in respect of a particular land therefore becomes relevant under sec. 11 of the Evidence Act. Assuming that the absence of an entry is relevant under sec. 11 of the Evidence Act, its value will have to be determined in the light of other evidence. The reason being that the absence of an entry in the official record may be due to the fact that the public servant was not enjoined to enter every land or was negligent or had motive to omit some of the lands. Since no other evidence showing the correctness of the entries in Ex. 2 has been produced, much importance cannot be attached to the absence of the entry in Ex. 2 in respect of khasra No. 167. The next document in this connection is the sale-deed dated 9-9-59 (Ex. 1 ). It was admittedly executed by Gangaram in favour of the defendant Bhadarram. It contains the recital that the land in question was the ancestral property of the vendor. This recital, in my opinion, is of considerable importance as it appears in a deed inter-parties. Mr. Purohit contends that the recital cannot be received as an admission of the vendee Bhadarram as the deed was executed by the vendor Gangaram. That is true. But even then it is admissible under sec. 13 of the Evidence Act as assertion of the title to the land. Moreover, it is under this document that the defendant Bhadarram claims his title to the suit land. The probative value of this recital as against defendant Bhadarram is therefore very high. In any case, it forms cogent and strong evidence to prove that the suit land was ancestral property in the hands of Gangaram. I am fortified in my view by a decision of their lordships of the Supreme Court in Harihar Prasad Singh vs. Deonarain Prasad (l ). In that case, a question arose whether the lands in dispute were private lands, that is, 'sir lands'. Their lordships held that the description given in the mortgage-deed by the mortgagors of the lands mortgaged "as properties in our sir and khudkasht possession" may not be regarded as an admission by the mortgagees as the deed was executed by the mortgagors but it is admissible under sec. 13 of the Evidence Act as assertion of title and when it is under the mortgage-deed that the mortgagees claim, its probative value as against them and as against the lessees who claim against them is high.
(3.) BESIDES the sale-deed Ex. 1, the plaintiffs have produced oral evidence. PW 1 Hetram, PW 2 Jesaram and PW 4 Ganeshram have all deposed that the suit land was inherited by Gangaram from his father. The testimony of these witnesses in further corroborated by the defendant's own witness DW 6 Kalu. The latter has deposed that Gangaram inherited from his father 64 bighas of land and out of it Gangaram sold 16 bighas to Bhadarram defendant. The evidence of these witnesses clearly proves that the suit land was ancestral property in the hands of Gangaram. There is thus no force in the argument of Mr. Purohit that the suit land was not ancestral property of Gangaram. This brings me to the main question relating to the sale-being for the benefit of the estate. In this connection, the first contention of Mr. Jain is that the plaintiff Hetram was major on the date of the sale-transaction, that is, 9-9-59. He strongly relies on the written statement filed by the defendant where in the defendant specifically asserted that Hetram was major on 9 9-59. It is further contended that the sale-transaction cannot be deemed to be for the benefit of the estate, for admittedly the sale transaction was entered into by Gangaram without consulting his adult son Hetram. Reliance is placed on the decision of their lordships of the Supreme Court in Balmukand vs. Kamla Wati (2 ). The relevant Head Note runs as under: - "for a transaction to be regarded as of benefit to the family it need not be of defensive character so as to be binding on the family. In each case the court must be satisfied from the material before it that it was in fact such as conferred or was reasonably expected to confer benefit on the family at the time it was entered into. Where adult members are in existence the judgment is to be not that of the manager of the family alone but that of all the adult members of the family, including the manager. " On the other hand, it is argued by Mr. Purohit that the plaintiffs in their plaint specifically pleaded that both the plaintiffs Hetram and Sahabram were minors on the date of the sale-transaction. It is contended that in face of their own admission the plaintiffs cannot now be heard to say that Hetram was not a minor on the date of the sale-transaction. ;