MT KUSMI Vs. SADASI MAHTO

JUDGEMENT

(1.) This second appeal is by the heirs of one Sheikh Kurban who on 26 July 1929, advanced a sum of money to one Aklu Mahto on the security of a mortgage on 1 bigha, 17 kathas and 3 dhurs of land which he assumed, belonged to a joint family of which Aklu Mahto was the karta. A suit was brought on the basis of this mortgage bond and in it were impleaded, besides Aklu Mahto, his three sons. The two younger sons, Bhadai Mahto and Sadasiva Matho, set up the plea that some time prior to the execution of the mortgage, they had separated from their father and elder brother. According to them, in or about 1922, there bad been a quarrel between their parents and eventually their mother had made an application for maintenance to the criminal Court under Section 488, Criminal P.C. In this they had taken the side of their mother while their elder brother, Lachhmi Mahto, had supported their father. The proceeding in the criminal Court ended in a compromise brought about by certain punches or arbitrators. The sum and substance of the compromise was that 15 kathas out of the land which was later mortgaged was to be assigned to Bhadai Mahto and Sadasiva Mahto and their mbther for their maintenance. This arrangement was to be subject to revision, if and when both the parents died, when the whole of the joint family property was to be divided among the three brothers. The Court which tried the mortgage suit dismissed it as against Bhadai Mahto and Sadasiva Mahto on the ground that they were not necessary parties. It expressly left open the question whether or not there had been a partition between them and their father and brother and whether or not; at the time when the mortgage deed was executed, they had an independent interest in the mortgage property. The mortgage suit was decreed as against Aklu Mahto and Lachmi Mahto and eventually in execution of the decree the mortgaged property was sold and was purchased by the mortgagee, Sheikh Kurban. When, subsequently, he took out a writ for delivery of possession, Bhadai Mahto and Sadasiva Mahto made an application under Order 21, Rule 100, Civil P.C. This application was dismissed and thereupon they instituted the suit out of which this second appeal arises.

(2.) The punches or arbitrators who effected the compromise in the proceedings in the criminal Court in 1922, made an award in writing. The trial Court declined to admit this in Evidence and in view of the decision in Badri Chaudhuri V/s. Mt. Champa Chaudhurain this would appear to have been correct.

(3.) Mr. Yasin Yunus for the appellants contends that as the award was not admissible in evidence, oral evidence to show that there had been a separation in the joint family ought to have been excluded. The provisions contained in Section 91, Evidence Act are not, however, applicable in this way. It is true that, in so far as the award created a charge in favour of the mother of the plaintiffs on a portion of the mortgaged property, oral evidence to sbow that such a charge ever existed was inadmissible; but oral evidence to show that at or about the time the charge was created there had been a disruption in the joint family of which Aklu Mahto was the fl head, was quite clearly relevant. The matter would, no doubt, have been otherwise if it had been shown that the award operated not merely to create a charge but as a deed of partition. In that case the decision in Kachubhai V. Krishnabai ( 77-78) 2 Bom. 635 on which Mr. Yasin Yunus relied, would have been in point; but it was not the case of either party that there had been formal partition by metes and bounds of the property of the joint family in or about 1922. The case of the defendant was that the family was still joint. The case of the plaintiffs was that although, in 1922, Aklu Mahto and one of his sons had separated from his other two sons it had been agreed between them that the property should not be finally partitioned until both Aklu Mahto and his wife were dead. It is true that the plaintiffs asked that on partition this 15 katbas should be allotted to them; but this was an alternative to their other prayer that land corresponding to their eight annas interest in the whole of the joint family property should be given to them and would seem to have been made as they would have been content to take this 15 kathas, even if they were found to be actually entitled to a somewhat larger area.