SHINGHAL, J. - (1.) THE appeal and the cross-objection in this case arise out of the appellate judgment and decree of District Judge, Alwar, dated January 24, 1961 in circumstances to be stated presently. Smt. Kalawati, the defendant, died during the pendency of the first appeal and her legal representatives were brought on the record in time.
(2.) SMT. Kalawati became a widow at a very early age. She owned some movable and immovable properties in Alwar and Agra, including a residential house in Alwar. Plaintiff Mohanlal belonged to her caste and 'gotra". He shifted to her house with his family sometime in 1928 when she was in her early twenties. The plaintiff claimed that he did so for the purpose of providing maintenance and protection to her and that he amply fulfilled this requirement so that out of love and affection SMT. Kalawati executed a registered will (Ex. 1) on November 5, 1934, bequeathing her residential house in Alwar to him along with the plot of land attached to it. The plaintiff claimed further that in 1933-39 he constructed a • building, hereinafter referred to as the suit house, consisting of 5 shops and 2 godowns on the ground floor and a residential portion on the first and second floors, on the aforesaid open land, with the permission and consent of the defendant, after obtaining the sanction of the Municipal Board in his own name. The construction was completed in 1939. According to the plaintiff, the suit house remained in his possession since then and he let it out as its owner. The wife of the plaintiff died sometime thereafter and he began to live with his children in another house built by him in the mean-time. But, according to the plaintiff, he made a provision that the defendant shall maintain herself out of the income arising from the rental of the shops and the godowns of the suit house. For this purpose, according to the plaintiff, he transferred the rent-notes of the shops and the godowns in favour of the defendant and she began to collect the rents under that arrangement. The two other floors of the property, which formed one composite flat, however remained in the plaintiff's possession and one Kishori Sharan ( P. W. 1 ) was his tenant there up to October 2, 1949. It so happened, however, that a misunderstanding arose between the parties and the plaintiff claimed further that after the vacation of the residential portions of the property on the first and the second floors by Kishori Sharan, the defendant took them in her possession in May, 1950. At first she used them for religious meeting and the plaintiff did not raise any objection. But when she let out a portion of those premises and refused to vacate them on demand by the plaintiff, the relations between them became strained. The plaintiff learnt that the defendant was intending to mortgage, sell or otherwise transfer the suit property by gift or dedication for a religious or charitable purpose and he therefore instituted the present suit on January 8, 1955 with the above mentioned allegations, on the specific ground that the possession of the defendant on the first and the second floors of the suit property was illegal and unauthorised. He therefore prayed for possession, but he did not want to disturb the arrangement which he had made for the maintenance of the defendant, during her life time, out of the income of the shops and godowns on the ground floor and merely asked for a permanent injunction restraining her from mortgaging, selling, gifting or dedicating that property in any manner. This is how the plaintiff set out his claim in the suit. Soon after its institution, the defendant revoked her will Ex. 1 on January 10, 1955, under notice Ex. 151 dated January 12, 1955. The defendant admitted that she was a widow, but denied that she was without a competence. She pleaded that she had sufficient immovable property, money and ornaments for a long period of time and had received considerable property from her mother. She denied that she had any love or affection for the plaintiff and pleaded that she executed the aforesaid will in his favour because he promised to serve her throughout his life. She revoked it thereafter. The defendant further pleaded that the plaintiff came to live with her, with his family, in the capacity of a tenant, because he was very poor and indebted, and that she established him in business with her own money and repayed his debts. The defendant also pleaded that she was an uneducated and unintelligent woman under the influence of the plaintiff and that was why she executed the will in his favour. As regards the suit house, sue stated that it was she who got it constructed with her own money and the plaintiff was not its owner at all. Further, she pleaded that as she was a widow, and was unfamiliar with legal matters and did not go to the offices, courts or market in those days, she asked the plaintiff to obtain for her the permission of the Municipal Board for the construction of the suit house. She pleaded that the suit house or the land on which it stood could not become the property of the plaintiff simply because he obtained the permission for the construction, from the Municipality, in his own name. She admitted the building was constructed by June 1939, but pleaded that the plaintiff was never in possession and was not its owner, whereas she herself let it out and realised the rents. She denied that any part of the property was assigned for the purpose of her maintenance. On the other hand, she claimed that she appointed the plaintiff as her "gumashta" or "muneem" because of her illiteracy, and that the plaintiff dishonestly got certain rent-notes executed in his own name. She denied that the plaintiff was ever in possession of the first or the second floors of the property. The relations between the parties became strained when she came to know of the plaintiff's dishonesty and she removed him from the office of "gumashta" "muneem". At the same time she took a decision to convert her old house and the suit house into a "dharamshala"and executed the necessary documents for that purpose. In the alternative, the defendant pleaded that she was in open and adverse possession of the suit property for more than 15 years, to the knowledge of the plaintiff, so that he was not entitled to succeed in his claim in the suit on any ground. The trial court framed issues on the points which were in controversy between the parties and dismissed the suit by its judgment dated October 30, 1956. The plaintiff preferred an appeal to the District Judge of Alwar who allowed it in part. By its impugned judgment, the lower appellate court decreed the claim of the plaintiff for possession of the first and the second floors of the suit house, but rejected the other claim for the issue of a perpetual injunction in respect of the property on the ground floor. Both the parties are dissatisfied with that judgment and the decree and have therefore preferred this second appeal and the cross-objection as aforesaid. The learned counsel for the parties are in agreement that the impugned judgment has been vitiated by substantial errors of law so that the matter requires reconsideration in second appeal. They are, however, in agreement on a number of points: It is admitted that the defendant lost her husband when she was very young. She inherited a house from her mother, alongwith the adjoining plot of land on which the suit house stands. It is also admitted that she was in her early twenties when the plaintiff, who was of her caste and "gotra," and was almost of the same age, shifted in 1926 to live with her in that house. Their relations were cordial for a long period of time, so much so that the defendant executed registered will Ex. 1 in his favour on November 5, 1934 making him the owner of the aforesaid house and the adjoining plot of land after her death, along with some other property. The plaintiff used to run a hardware shop in Alwar in the name of Mohanlal Surajmal before he shifted to the house of the plaintiff and continued that business. Besides, the parties carried on their money lending business over a long period of time. It is also not disputed now that the suit house was built in 1938 39 under the sanction of the Municipal Board (Ex, 4) dated February 5, 1938 in the name of the plaintiff. The house cost nearly Rs. 5,591/5/-, including the expenditure on the repairs of the old house. The courts below have taken the view that both the parties were in a financial position to spend that much money during the period November 21, 1938 to June 1939 and no adequate reason has been shown why this concurrent finding of the two courts should require reconsideration at my hands. It is also not disputed that the plaintiff did most of the writing work for defendant in respect of her money-lending and other business as evidenced by Exs. A36, A37, A38, A42, A44, A46 and A57. So also, it is not disputed that the work of building the suit bouse, on the plot of land belonging to the defendant and lying adjacent to her house, was commenced and completed at a time when the parties were living in the old house of the defendant. Besides, it is admitted that all this happened within the direct knowledge of the parties and without any objection by any body. On these admitted facts and circumstances it is quite easy to answer the two important points which arise for consideration. It has first to be considered whether the suit house was built by the plaintiff or the defendant and, if this point is decided in favour of the plaintiff, the other important question for consideration will be that relating to his rights in the suit property. The learned counsel for the parties are in agreement that the fate of the case will depend on the decision of these two points and they have confined their arguments to them. The trial court did not, however, frame a separate issue on the question whether money on the construction of the suit house was provided by the plaintiff or the defendant but considered it a part of issue No. 1 which related to the overall question whether the suit property belonged to the plaintiff. While deciding that issue, the trial court addressed itself to the question whether the plaintiff had paid all the bills and disbursed all wages for the construction of the suit house. If court decided the point against the plaintiff, but the court of first appeal reached a contrary conclusion and held that even though the land belonged to the defendant, atleast a major portion of the total sum of Rs. 5,591/5/- was spent by the plaintiff within knowledge and with the consent of the defendant. That court, however, held, in the latter part of its judgment, that while the defendant supplied the land, the construction was raised by the plaintiff and that they were joint owners thereof. I shall therefore first address myself to the question whether the plaintiff spent his money on the construction of the suit house? As has been stated, both the parties claim to have financed the construction. A perusal of the record shows, however, that none of them has been able to lead satisfactory evidence about the source of money. The plaintiff has been blamed for withholding his books of account. All the same, I find no difficulty in arriving at a decision on this question of fact because the defendant has produced account book Ex. A75 claiming that it proves her claim that it was she who financed the entire construction. It is not in dispute that this account book is in the handwriting of they plaintiff, and he has in fact claimed that it contains the entire account of the money spent by him in the construction. The account book is therefore an admitted, document and a careful examination shows that it has much intrinsic evidentiary value. The account book is in a torn condition, without any cover or title page. It commences from page No. 28 and goes upto page No. 87. It contains a detailed account of the various items of expenditure in the construction of the suit house and, as I shall presently show, I have no doubt that it goes to prove that it was the plaintiff who spent the entire money. There is bill Ex. 121 dated January 11, 1939, of Messrs. Badri Pershad Gaya Pershad, Stone Met chants, Daresi No. 3, Agra, in favour of the plaintiff's firm Mohanlal Surajmal for the supply of building material ("gulambar" and "jalis") costing Rs. 41/ -. It records a payment of Rs. 15/- in cash, leaving a balance of Rs. 26/ -. This balance has been carried forward in bill Ex. 122 dated January 24, 1939 for Rs. 111/- in the name of the plaintiff's firm for the supply of other building material. A perusal of account book Ex, A. 75 shows that there is a cross-reference to it in the entry at page 81 dated January 30, 1939 to the following effect, - 25½ vnk;xh Hksth vkijs dkj. k dh cnjh izlkn th x;k izlkn th ds xqyecj /kks;s ugha esjs losz ds fy, nh;s 25½ The entry leaves no room for doubt that the defendant was sent to Agra to expedite the despatch of the building material and she was paid Rs. 25/- to cover her expenses. Letter Ex. 124 of M/s. Badri Pershad Gaya Parshad, to the plaintiff's firm Mohanlal Surajmal, dated 27-1-1939 proves that the building material was loaded in the presence of Mohanlalv "sister"on 24-1-1939. It further states that while Rs. 15/-were paid in cash by the plaintiff's firm, another Rs. 15/- were paid by his "sister" leaving a balance of Rs. 81/- to be recovered by V. P. P. Ex. 123 is that V. P. P. cover for Rs. 81 /- to the address of the plaintiff firm. It is not disputed that the sister" referred to in aforesaid document was none other than the defendant. This is in fact fully established by the mention of her name in the entry at page 81 of account book Ex. A, 75 extracted above. All this evidence leaves no room for doubt that it was the plaintiff who paid for the purchases in question while the defendant played the role of his messanger and brought the despatch of the goods under her personal supervision. The fact that she took the money from the plaintiff to meet her travelling and other expenses shows that she knew, beyond any doubt, that it was the plaintiff who was constructing the suit house with his own money. Then there is a significant entry at page 95 of account book Ex. A. 75 stating that there was an entry at page 95 regarding the articles supplied from "the shop" for the construction of the house. Surprisingly enough, page 95 no longer exists in the account book for, as has been stated, it runs up to page No. 87 only. Who then has tampered with the account book and why? The answer does not present any difficulty because the defendant has admitted that the account book, which was in the handwriting of the plaintiff, remained in her possession all through, and it was she who tendered it in evidence for the purpose of proving her contention that she financed the construction. It is therefore fair and reasonable to conclude that the defendant was responsible for the removal of page No. 95 and the obvious reason for doing so was to destroy any evidence that went to show that the plaintiff financed the construction of the suit house. There is also an entry at page 66 of Ex. A. 75 showing that there was an entry at page No. 93 thereof but, as has been stated, all pages after page No. 87 are missing. Similarly, there is an entry at page 86 showing that there were certain entries at page No. 103, which also is missing. It is therefore quite apparent that certain pages of evidentiary value were removed from account book Ex. A. 75 for the obvious purpose of withholding evidence which the defendant considered to be unhelpful or adverse to her defence Moreover, it appears from Ex. A. 75 that the plaintiff made payments of several bills for the construction of the suit house, in kind, by delivery of goods from his hard-ware shop. There is thus an entry at page 65 showing that one spade costing Rs, 18/- was delivered to Chuttanlal P. W. 6, the supplier of lime, in part payment of his bills. Similarly, pages Nos. 69, 71, 77, 79, 80, 85 and 86 show that certain articles like files, buckets, "takla tanki," lines, "martol", "sabli", spade etc. were delivered in kind in payment of certain bills or wages.
(3.) I have therefore no hesitation in holding that far from proving the defence that the money on the construction of the suit house was spent by Smt. Kalawati, account book Ex. A. 75 goes to prove that the construction was financed exclusively by the plaintiff. There is other satisfactory evidence to prove that this was so. There were several agreements for the supply of building material in favour of the plaintiff and the bills were also issued in his name. Thus Ex. 125 dated December 12, 1938, is an agreement executed by one Nandram for the delivery of certain pillars to the plaintiff. Bill Ex. 117 dated December 15, 1938 is also in the name of the plaintiff for the supply of building material and the plaintiff paid a substantial part of it by delivery of hard-ware in part payment and paid the rest in cash. As has been stated, bills Exs. 121 and 122 of Messes Badri Pershad Gaya Pershad of Agra were in the name of the plaintiff and were paid by him. Similarly bills Exs. 75 to 85 of building material supplied by M/s Durga Pershad Narain Dass were issued in the name of the plaintiff and it has been proved by the statement of Damodar Pershad D. W. 21 that they were paid by the plaintiff from his shop. There is therefore direct evidence of a large number of bills for the supply of building material which were paid by the plaintiff. A number of other bills have been tendered in evidence and there is a cross-reference to them in account book Ex A. 75. I may in this connection make a reference to Exs. 56, 57, 58, 59, 60, 67, 70, 72, 73, 75, 76, 77, 79, 81, 82, 83, 84, 86, 87, 88, 89, 92, 100, 107, 114 etc. , The fact that the bills were issued to and paid by the plaintiff negatives the contrary claim of the defendant. Moreover the plaintiff examined Ramnath P. W. 5 for the purpose of proving the payment of vouchers Exs. 98 and 142 for the supply of building material to him. Chuttanlal P. W. 6 also proved that it was the plaintiff who paid him for the supply of lime. Nandram P. W. 7 similarly stated about the supply of pillars to the plaintiff and the execution of receipt Ex. 125 in his favour on payment of the price by him. Baxiram P. W. 9 supplied some wooden articles and he proved receipts Exs. 100 to 105 in favour of the plaintiff. Vidhya Shanker P. W. 12 supplied bricks to the plaintiff and he stated that it was the plaintiff who made the payment of vouchers Exs, 86 to 89 to him. There is also receipt Ex. 90 in favour of the plaintiff in this connection. Kedarnath P. W. 14 supplied stone to the plaintiff and proved receipts Exs. 106, 107, 108, 109, 110, 113, 116, 117, 118 and 119 in favour of the plaintiff. Similarly Harnath P. W. 15 supplied stone slabs to the plaintiff against receipts Exs. 144 and 145. Even Bhonreylal D. W. 10 stated that he supplied bricks and was paid by the plaintiff. The plaintiff also examined some of the labourers for the purpose of proving that it was he who built the suit house. The names of these labourers are to be found in document Ex. A. 74 produced by the defendant so that there can be no doubt that they worked in the construction of the suit house. Budharam P. W. 8 was the most important of them all because it was he who was in over-all charge of the construction as the "mistri". He and labourers Bhudar P. W. 10, Nanagram P. W. 11, Laxmi Narain P. W. 13, and Harphool P. W. 19 have stated that they were employed by the plaintiff and were paid by him. The post-construction conduct of the parties reinforces the conclusion that the suit house was built by the plaintiff. As has been stated, it is not disputed that the construction was completed in June 1939. Rent notes Exs. 7, 8, 14 and 6 are for the period June 1, 1939 to January 26, 1940, during which there was amity and good will between the parties. All of them show that the shops and the godowns were let out by the plaintiff soon after their construction and the rent notes were executed exclusively in his favour. This would not have been so if the construction had been financed by Smt. Kalawati or by the parties jointly, for in that case she would not have compromised her proprietory interest by agreeing to the execution of the rent notes exclusively in favour of the plaintiff. Reference may also be made to one other important fact which has been well established 6n the record. The buildings on the first and the second floors of the suit house were let out to Harswaroop P. W. 25, the local post master, for his residence. He has stated that he took them on a rent of Rs. 9/- per mensem, from the plaintiff, and paid the rent to him during the entire period July 1939 to October 1941 when he stayed there. He has also stated that when he left the premises, he delivered possession thereof to the plaintiff. It is not disputed that after vacation by Harswaroop those premises were let out to Kishori Sharan P. W. 1 on February 8, 1943. He executed rent note Ex. 5 in favour of the plaintiff from whom he took the house on rent and to whom he paid the rent. The witness has produced the receipts of payment for the period of his tenancy. His statement therefore shows that it was the plaintiff who exercised proprietary rights over the first and the second floors of the suit house for a long period of time. But what the witness has stated in cross-examination is all the more important. He has stated that he started negotiations with the defendant for taking the premises on rent, she showed the premises to him and settled the rent. But when the witness asked her about the execution of the rent note, she took him to the shop of the plaintiff and asked him (Kishori Sharan) to execute the rent note (Ex 5) in his favour. It will be remembered that, according to the defendant, the relations between the parties had become strained by that time so much so that he had started living separately from 1942 onwards. The fact that in 1943 the defendant still took the witness to the shop of the plaintiff and got the rent note executed in his favour, shows that the defendant considered the plaintiff to be the owner and voluntarily led the tenant to believe that this was so. ;