Gopi Chand Arya And Others v. Sm. Bedamo Kuer And Others

G.N Prasad, J.:— Both these appeals arise out of a suit for partition instituted by the plaintiff-respondent on the allegation that the suit properties belonged to the joint family of which her husband Khaderan Sahu was a member at the time of his death. First Appeal No. 285 has been preferred by defendants 3 to 5 and First Appeal No. 294 has been preferred by defendants 1, 9, 10 and 11.

2. It appears from a genealogy attached to the plaint that the parties are members of the family of one Tilak Sao who left behind two sons, Bhattoo Sao and Karoo Sao. The branch of Karoo Sao is represented by his son Bhogal (defendant No. 2) and Bhogal's sons, defendants 12 to 14. Bhattoo had two sons, Horil and Bhalu; Bhalu being the father of Khaderan, the husband of the plaintiff. The daughter of the plaintiff, Mt. Parwati Devi alias Paro Devi, is an intervenor defendant in the suit. The remaining defendants, namely, defendants 1, 3 to 11 and 15 represent the branch of Horil. The case put forward by the plaintiff was that her husband died in the year 1939 and, therefore, after his death, she was entitled to ⅓rd share in the entire joint family properties asserted by her. The defence put forward by the contesting defendants was that Khaderan had died some time in 1933, and, therefore, the plaintiff was not entitled to any share in the joint family properties. Her right was only that of receiving maintenance out of the joint family properties. The further case put forward by the defendants was that there was a complete partition in the family of the defendants in the year 1956. So far as the plaintiff was concerned, it was said that in lieu of her claim for maintenance from the family, she had been paid a sum of Rs. 5,000 in lump sum, and out of the said money she had been doing money lending business and had also purchased a house for her occupation.

3. The court of first instance accepted the defendant's case that Khaderan, the husband of the plaintiff, had died sometime in 1933, and, therefore, under the provisions of the Hindu Law, the plaintiff would not be entitled to claim any share in the joint family properties.; but in view of the decision of a learned Single Judge of this Court in Lateshwar Jha v. Mt. Uma Ojhain, AIR 1958 Pat 502, the plaintiff would be entitled to the same interest which her husband had in the joint family properties, and, as such, the plaintiff was entitled to maintain a suit for partition. On the question of share, the court below held that half share in the joint family properties belonged to defendants 2, 12, 13 and 14, while in the other half share half interest belonged to the heirs of Horil and the remaining half share, that is to say, ¼th share in the entire joint family properties belonged to the plaintiff's husband. According to the Court below, therefore, both the plaintiff and her daughter, the intervenor defendant, were entitled to ¼th share of Khaderan and the same was divisible half and half between the plaintiff and the intervenor defendant. As regards the arrangement arrived at between the defendants in 1956, the Court below has held that it is not binding upon the plaintiff as she was not a party to the said transaction, though it might be a good transaction as between the parties thereto. The Court below also did not accept the defendants' case that a sum of Rs. 5,000 was given to the plaintiff in lieu of future maintenance. Upon these findings, the Court below has decreed the plaintiff's suit for partition in part and directed a preliminary decree to be drawn up in respect of ⅛th share in the joint family properties in favour of the plaintiff and in favour of the intervenor defendant respectively.

4. It is against this preliminary decree for partition that the two appeals have been preferred by the two sets of contesting defendants. In First Appeal No. 285, a cross-objection has also been preferred by the plaintiff claiming that the share to which she was entitled should have been 1/6th and not ⅛th as determined by the Court below.

5. Mr. Thakur Prasad, appearing on behalf of the contesting defendants in First Appeal No. 294 of 1959, contended before us that upon the finding of the Court below to the effect that Khaderan died in 1933 and not in 1939, the plaintiff should have been non-suited inasmuch as she had no right to claim partition of the joint family properties under the Hindu law and that her right was only that of being maintained out of the income of the joint family property. In support of his contention, learned counsel drew our attention to a number of Bench decisions of this Court, such as, Ram Gulam Singh v. Palakdhari Singh, AIR 1961 Pat 60, Renuka Bala Chatterji v. Aswini Kumar Gupta, AIR 1961 Pat 498 and Nathuni Missir v. Ratna Kuer, 1963 BLJR 96 (notes). In Lateshwar Jha's case, AIR 1958 Pat 502, Raj Kishore Prasad, J. took the view that section 8 of the Hindu Succession Act, 1956, is retrospective and would apply to all cases where a male-Hindu dies intestate leaving behind his property, irrespective of the time of death, and that section would, therefore, apply to all cases of intestacy of a Hindu male, irrespective of the time of his death, with the result that the property of such a deceased male Hindu would devolve on his widow as his heir as mentioned in class I of the Schedule attached to the Hindu Succession Act. This decision was given by the learned Single Judge on the 28th March, 1958, and therefore, it held the field at the time when the learned Subordinate Judge gave his decision in the present case. But the subsequent decisions of this Court, to which Mr. Thakur Prasad has referred, make it absolutely clear that the view taken in Lateshwar Jha's case, (AIR 1958 Pat 502) was not correct. In fact, Raj Kishore Prasad J. himself said so in Ram Gulam Singh's case, AIR 1961 Pat 60, while sitting with U.N Sinha, J. The law is now well settled that S. 8 is not retrospective, and it cannot have the effect of divesting persons in whom the property has already vested, as full owners, in accordance with the rules of succession prevailing at the time of devolution of interest in the property of a deceased male Hindu. It is quite clear, therefore, that upon the state of authorities the view taken by the learned Subordinate Judge, that the plaintiff is entitled to a share in the joint family properties in spite of the fact that her husband died in 1933, cannot be sustained as correct. In my opinion, whatever justification the learned Subordinate Judge may have had in coming to the decision to which he did as regards the right of the plaintiff to claim a partition, by reason of the decision in Lateshwar Jha's case, (AIR 1958 Pat 502), there can be no doubt that the view taken by him is not correct in law and that upon the finding as to the date of death of the husband of the plaintiff, the conclusion must be that the plaintiff's suit for partition is not maintainable since she has no right to any share in the joint family property except of being maintained out of the joint' family income.

6. Mr. Gokulanandan Prasad, appearing on behalf of the plaintiff-respondent, was not in a position to controvert the legal position as indicated above. Mr. Prasad, however, contended that upon the materials on the record, it should be held that Khaderan had died after the passing of the Hindu Women's Rights to Property Act, 1937 that is to say, in 1939 as alleged by the plaintiff and not prior to that Act as alleged by the defendants.

7. On the question as to the date of Khaderan's death, both parties adduced oral and documentary evidence. The most important material on this question is the certified copy of death register (Ext. I) which has been relied upon by the Court below and which clearly shows that Khaderan had died on the 6th November, 1933. Being an entry made by a public servant in the ordinary course of his public duties, the entry in the death register, which is a public document, must undoubtedly have a presumption of correctness attached to it and, therefore, a heavy onus would undoubtedly lie upon the plaintiff to displace the presumption of correctness attached to the death register (Ext. 1). Mr. Gokulanandan Prasad tried to assail the value of the entry in the death register on various grounds. Learned Counsel pointed out that the heading of the document would suggest as if it was a document of the year 1902, and the entry bearing serial No. 11 could not possibly have borne the date of registration as the 9th November, 1933 in regard to a death said to have taken place on the 6th of November, 1933. This aspect of the matter has been taken note of by the Court below. It is pointed out that the ostensible year 1902 occuring in the certified copy of the death register may have been the result of misreading the original document which might have shown the year to be 1932. The view taken by the Court below cannot be said to be unreasonable. It may as well be that the serial number, namely, No. 11, may have related to the month of November in a register which started in 1932 and which continued up to November 1933 and possibly even later. In any case, we are not concerned so much with the headings as with the actual entry in the death register (Ext. I); and so far as the relevant entry is concerned, there is no room for ambiguity that it records the fact of Khaderan's death having taken place on the 6th November, 1933. As to how the discrepancy in the heading of a register crept up, there is absolutely no evidence, but as to the actual entry itself the presumption of correctness must attach having regard to the fact that the document is a certified copy of a public document.

8. Mr. Prasad then contended that the certified copy had been obtained sometime in August 1957 but had been filed in Court in March, 1959, and that must raise some suspicion as to the correctness of the certified copy. In this connection, learned Counsel relied upon Ext. 1 which is the destruction report and which shows that the original register had been destroyed sometime latest by March, 1959, there being no evidence of the actual date of destruction. The argument of Mr. Prasad has been that the reason for late filing of Ext. I in Court was to file it after the original had been destroyed so as to leave no scope for checking the correctness of the certified copy. In my opinion, it is not possible to entertain any suspicion against the correctness of the certified copy on either of the two grounds urged by learned Counsel. In the first place, as I have said, there is no evidence as to the actual date of destruction of the death register. The destruction note (Ext. 1) only shows that on the date of the destruction report, namely, the 13th March, 1959, the death register was not in existence having been destroyed under the rules. But the evidence as to whether it had been destroyed before Ext. I was filed in court or not is not conclusive. These were really matters which should have been brought on the record by putting the necessary questions to the plaintiff's own witness P.W 9 who had come to prove the destruction note (Ext. 1). But not having brought the full facts on the record as the plaintiff could have-easily done through P.W 9, it is not open to the plaintiff 10 maintain that the presumption of correctness of the certified copy of the death register (Ext. I) has been rebutted.

9. It was then contended that the record as contained in the entry (Ext. I) is inconsistent with the evidence which the informant Rameshwar Gope (D.W 1) gave in Court. Ext. I, as already indicated, shows that the entry was made on the 9th November, 1933, that is to say, three days after the alleged date of Khaderan Sao's death. Our attention was drawn to the evidence of D.W 1 who, in course of his cross-examination, said that Khaderan had died on the Kartik Purnima day. The Kartik Purnima day in 1933 was on the 2nd November, 1933 and not on the 6th November, 1933. It is, however, impossible to attach too much importance to the alleged discrepancy. It is quite clear that, deposing several years after the event, D.W 1 did not correctly remember the exact date of death, and if there is any discrepancy on the point, then the contemporaneous document containing the fact must have precedence over the oral evidence of the witness. Such a discrepancy cannot have the effect of falsifying the correctness of the entry. It was also sought to be contended that according to the evidence of D.W 1 the entry in the death register was made on the very day on which Khaderan had died, but this fact is not borne out by the entry (Ext. I) itself. In my opinion, this argument proceeds upon a misreading of the evidence of D.W 1. I find nothing in his evidence to lend support to the contention of the learned Counsel that he had lodged the information which was incorporated in the death register on the very day on which Khaderan had died. On being: cross-examined for the plaintiff, D.W 1 said that he did not remember the exact hour though it was after 10 A.M when he had gone to the police station for getting the entry made. This obviously refers to the 9fh November, 1933. In the next sentence, D.W 1 said that Khaderan had died in the morning, and the witness had gone to the Ghat about one or two hours after sun-rise. This obviously refers to the incident of the date of death itself, namely, 6th of November, 1933. In the third sentence, the witness said that he had gone to the police station alone. Evidently, this again refers to the incident of the 9th of November, 1933. Learned Counsel would however, jumble up all the three sentences as referring to the two incidents on one and the same date. There is absolutely no justification for reading the evidence of D.W 1 in the above manner.

10. It was also contended by Mr. Prasad that under the rules the original death register should have been destroyed after ten years; and even if the entry had been made in 1938, the register could not have been available in August 1957 so as to enable the defendant to obtain the certified copy (Ext I).

11. No doubt, under the rules such registers have to be destroyed periodically after the expiry of stipulated number of years, but as to whether the rule in question was followed in this particular case there is absolutely no evidence. P.W 9, who proved the destruction report (Ext. 1), was not asked anything about it. It is possible that the register which began in 1932, as held by the learned Subordinate Judge, may have continued for several years so as to be available in August, 1957, when the certified copy (Ext. I) was obtained. Reading Exts. 1 and 1 together, the conclusion must reasonably be that the original death register was in existence up to sometime in August, 1957 but had been destroyed by March, 1959. No suspicion against the correctness of the entry (Ext. I) can, therefore, arise on the basis of the rules of destruction of the documents, upon which reliance was placed by the learned Counsel. In any opinion, none of the grounds for doubting the correctness of the entry in the death register (Ext. I) put forward by the learned Counsel has any substance. The learned Subordinate Judge was, therefore, amply justified in relying upon this document as an important record of the actual date of death of the plaintiff's husband. In this connection, the learned Subordinate Judge has rightly pointed out that the plaintiff has not been able to bring on the record any document of a similar kind of the year 1939. The conclusion of the learned Subordinate Judge, which is supported by Ext. I, therefore, appears to me to be correct.

12. The learned Subordinate Judge has also discussed the oral evidence on the point of the date of Khaderan's death and has preferred the evidence of the defendants' witnesses. The argument put forward on behalf of the plaintiff was that the oral evidence adduced on her behalf ought to be accepted in preference to the evidence adduced on behalf of the defendants. It is quite natural for the witnesses of the parties to support their respective cases, and in a matter like this a correct decision can best be arrived at with reference to the contemporaneous written document (Ext. I). However, the evidence of one of the plaintiff's own witness, namely, P.W 5, shows that Khaderan had died sometime in 1932 or 1933 as asserted on behalf of the defendants. The plaintiff is the phoophoo of P.W 5 who has deposed that he was aged about fifteen years at the time of the earthquake of 1934, and at that point of time the daughter of the plaintiff, namely, the intervener defendant, was aged about two years, which was also her age at the time of Khaderan's death; in other words, the intervener defendant was aged about two years in 1934, as also at the lime of Khaderan's death. This would make the time of Khaderan's death to he sometime in 1934 which is practically consistent with the case of the contesting defendants.

13. As against these items of evidence, an attempt was made by Mr. Prasad to ascertain the date of Khaderan's death with reference to the evidence of the plaintiff herself with regard to the years of her birth, marriage and gauna. But even with reference to these dates as given by the plaintiff herself, it is not possible to come to the conclusion that Khaderan had survived beyond 1936. It must be remembered that the number of years as deposed to by the plaintiff cannot be mathematically accurate, and, as such, they are wholly insufficient to establish her case that Khaderan had died after the passing of the Hindu Women's Rights to Property Act.

14. Mr. Gokulanandan Prasad drew our attention to the evidence of D.W 1, who is the Munib of the firm of the defendants. His evidence shows that the expenses of Khaderan's treatment and shradh were mentioned in certain account books. Since those account books have not been brought on the record, it has been contended by the learned counsel that an adverse inference should be drawn against the case of the defendants that Khaderan had died in the year 1933. The evidence of D.W 1 however, shows that he was responsible for maintaining the account books of the firm of the defendants. His evidence is not clear to the effect that the alleged entries of expenses relating to the treatment and shradh of Khaderan were entered in the firm's account books. In the normal course, these entries are not likely to be made in the account books of the firm. Be that as it may, it was not suggested to D.W 1 or even to defendant No. 3 the then karta of the family, who deposed as D.W 17, that the alleged entries of the expenses of treatment and shradh of Khaderan were to be found in the account books for the year 1939 instead of in the account books for the year 1933. In the circumstances, no adverse inference can reasonably be drawn against the case of the defendants on account of the non-production of the account books referred to by the Munib (D.W 1).

15. Lastly, Mr. Gokulanandan Prasad referred to the evidence of defendant No. 3 (D.W 17) who said in course of his cross-examination that he had correctly mentioned 1939 as the year of Khaderan's death in his written statement.

16. So far as D.W 17 is concerned, no reliance can be placed on this wit ness, because his attitude in the witness box was in contradiction of his case in the written statement. Deposing in Court, D.W 17 sup ported the case of the contesting defendants by saying that Khaderan had died in 1933. Several of the other witnesses examined on behalf of the contesting defendants have main tained that Khaderan had died in 1933; and Mr. Prasad was not able to show why the evidence of these witnesses, who were relied upon by the trial Court, should not be accepted as correct. Upon a review of the materials on the record, I am of the opinion that the trial Court was right in holding that Khaderan had died in 1933. This finding is sufficient to nonsuit the plaintiff so far as her claim to a share fin the joint family properties is concerned. Under the law, the plaintiff was only entitled to a right of maintenance out of the income of the joint family properties and she was not competent to ask for a partition of the said properties.

17. So far as the decree relating to the plaintiff's share is concerned, it has been pointed out by the learned Counsel for the appellants that it is manifestly wrong, because during the life-time of the plaintiff, her daughter, the intervenor defendant, could not claim any share in the joint family properties. It appears that in determining the share of the heirs of Khaderan, the trial Court applied section 8 of the Hindu Succession Act, 1956, according to the provisions of which both the daughter and the widow of Khaderan would be deemed to be the heirs of the first class as mentioned in the schedule appended to the Act and entitled to succeed simultaneously by virtue of Section 9 of the Act.

18. In view, however, of my conclusion that S. 8 is not retrospective, it must follow that neither the plaintiff nor the intervenor defendant is entitled to any share in the joint family properties, specially when it has been found that Khaderan died before the Hindu Women's Rights to Property Act, 1937, came into force. In this view of the matter, there is no merit whatsoever in the cross-objection preferred by the plaintiff in First Appeal No. 285 of 1959.

19. The result, therefore, is that both the appeals are allowed, the plaintiff's suit for partition is dismissed and the cross-objection preferred by the plaintiff is also dismissed. The decree for partition passed by the court below is set aside. The appellants will be entitled to their costs throughout. There will however, be one set of hearing fee which will be divided equally between the two sets of appellants in this Court.

20. Mahapatra, J.:— I agree.

KI/AGT/R.G.D

21. Appeals allowed and cross-objection dismissed.