Fazl Ali, J.:— These appeals arise out of two suits which were tried together by the Subordinate Judge of Manbhum and which were instituted under circumstances which will presently appear.
One Bechan Ojha had two sons, Baijnath Ojha and Biswanath Ojha. Baijnath Ojha died leaving behind a widow Musammat Rashooni and a son Ramlal Ojha and Biswanath died leaving a son Nandlal. It is common ground that Nandlal and Ramlal remained joint till the year 1295 Bs. or 1888. It is further fully established that the two cousins not only separated in mess in the year 1888 but also divided their moveables as well as nij-jote lands which they began to cultivate separately. The only properties which were not divided were those in mauzas Tilai and Sirkabad. Between 1895 and 1900 a fresh property which is referred to in Schedule 4 of the plaint filed in Suit no. 3 and which may be called the Jerka property was acquired in Ramlal's name by three separate deeds, one of which was virtually a kebala or a sale deed and the other two leases. In Baisak, 1314, or April, 1907, Ramlal died leaving behind him two widows Umamayi and Purnima and a daughter by Umamayi named Amodbala and it is hardly necessary to say that under the Hindu Law, if Ramlal died in state of jointness with Nandlal, the latter became entitled to the entire property by the rule of survivorship; but on the other hand, if he had separated from Nandlal before his death, his two widows were entitled to succeed to his property. In September, 1908, Umamayi settled Ramlal's share in Manirambad lands in village Sirkabad with one Kartik Mahto who executed a registered kabuliyat in her favour and the boundaries given in the documents show that the lands of Nandlal in this chak were quite separate from those of Ramlal. In November, 1908, Umamayi and her co-widow Purnima describing themselves as the heirs of Ramlal Ojha brought a suit against Manga Bhumij and Amar Singh Sardar for the possession of certain lands in village Jerka and the suit was compromised. It may be mentioned here that Amar Sardar, one of the defendants in this suit, was no other person than the proprietor of Jerka from whom Ramlal had acquired the Jerka property. In February, 1909, Umamayi and Purnima brought a Small Cause Court suit against Nandlal Ojha for the recovery of a certain sum of money on the allegation that he had realised not only his share but their share of the rent also from certain tenants in village Tilai. The suit was contested by Nandlal on various grounds, one of which was that he was entitled to the entire property left by Ramlal as survivor. The matter was referred to the arbitration of three pleaders of Purulia and by their award they upheld the claim of the widow and overruled the plea that Ramlal was joint with Nandlal and the latter was entitled to the property by way of survivorship. This award being accepted by the Court a decree was passed accordingly. In execution of the decree Umamayi proceeded to attach Nandlal's share in village Tilai but Nandlal paid the decretal amount and a petition of satisfaction was filed. From 1909 onwards up to her death which took place in the year 1916 Umamayi continued to possess and deal with the properties as if she and her co-widow were the heir of Ramlal and no step appears to have been taken by Nandlal either to question her rights or to get an adjudication as to his claim of survivorship. In August, 1909, Amar Singh Sardar who had granted the previous leases to her husband gave to her and not to Nandlal a fresh patta in respect of certain lands in village Jerka which she had purchased from one Kuna Laya and thereby recognised her as a tenant in respect of those lands. In 1913 she and her co-widow Purnima applied for and obtained a succession certificate from the District Judge of Manbhum-Sambalpur. In June, 1914, she granted a lease to Kartik Mahto in respect of Manirambad lands for a further period of five years. In 1915 Amar Singh Sardar, the proprietor of Jerka, sued her and obtained a decree against her for arrears of cess in respect of village Jerka. The documentary evidence filed by Nandlal also supports the case that Umamayi was in undisturbed possession of at least Tilai and Jerka so long as she, was alive and in fact he attempts to explain her possession by setting up a story that she was allowed to remain in possession in lieu of maintenance. It is impossible, however, to accept this explanation in view of the fact that Umamayi had been asserting throughout that she was holding the property as an heir of Ramlal and also because no such case as is now set up by Nandlal was set up either in his plaint in suit no. 3 nor in his written statement in suit no. 50. It is true that Nandlal did contend, though unsuccessfully, before the Settlement Court in the year 1921 that Umamayi was in possession of Jerka in lieu of maintenance; but what was contended before us was that she was in possession of not only Jerka but also of Tilai in the aforesaid capacity. Again, if Umamayi was allowed by Nandlal to be in possession in lieu of maintenance, there seems to be no good reason for his not showing similar indulgence to Purnima, who was equally entitled to maintenance. On the other hand, what we find is that soon after Umamayi's death Nandlal attempted once more to secure for himself the entire property.
It appears that when Umamayi died Purnima was still quite young, for even according to the estimate of her age given by Nagendra Nath Chakravarty, a witness for Nandlal, she must have been about 14 or 15 years of age at the time, while according to the other witnesses she was still younger (vide P.W 3). The settlement operations were also to commence shortly in the district and in fact they actually commenced about the year 1920. Thus we find that in January, 1918, Nandlal obtained two kabuliyats in his favour in respect of certain lands in Sirkabad (Exts. 11 and 20). Again on the 31st January, 1918, he got an ekrarnama from one Dharup Singh Sardar by which the latter was given the right to fish in a tank appertaining to Jerka for a period of four months. We also find that in the same year he obtained certain rent receipts in respect of village Jerka, Exhibits 14(c), (d), (e) and (f), though it is to be noted that he has not filed any receipts in respect of this village of a date prior to the year 1325 or 1918 and the other receipts which he has filed relate to the year 1332. There were also two rent suits brought against him in respect of lands in village Sirkabad and both the suits were allowed to be decreed ex parte though curiously enough the period for which the two suits were brought to some extent overlapped each other. Meanwhile about the year 1920 settlement operations began and once more it was asserted by Nandlal that Ramlal had died in a state of jointness with him and so he was entitled to the entire property of the family by survivorship. Thus a dispute arose before the Settlement Officers in charge of Khanapuri and attestation work as to whether the name of Nandlal or that of Purnima and Amodebala Debya, the daughter of Ramlal, should be entered in respect of village Jerka and Randal's share in village Tilai and Sirkabad. Nandlal wholiy failed with regard to Tilai and Jerka and ultimately khewats were prepared in the name of Purnima in respect of these villages [D(1), D(2), Z, 31]. With regard to Sirkabad, however, Nandlal was partially successful and on the 30th July, 1921, he preferred an objection under section 83, clause (1), and section 111, clause (1), of the Chota Nagpur Tenancy Act praying that
“after striking off the name of Sreemati Pumimamai Debya the khatian may be amended by preparing the 16-annas khewata in the name of Nandlal Ojha.”
This objection was decided in his favour on the 5th September, 1921, on the ground that one Sashi Bhusan Ojha, who was the agent and brother of Purnima had admitted the objector's claims and stated before the Settlement Officer that his sister-Purnima had got no share and that according to Mitakshara she was not entitled to any share. Relying upon this admission the Settlement Officer cancelled Purnima's khewat and recorded an order that the khewat should be prepared in the name of Nandlal. In connection with this entry it was pointed out in this Court on behalf, of Purnima that Exhibit 24 which purports to be a general power of attorney given by Purnima to Sashi Bhusan Ojha (who is not her brother but only a cousin) is not a registered document and that curiously enough the alleged signature of Purnima on this document purports to have been written by Sashi Bhusan Ojha himself. On the other hand it has been urged that Sashi Bhusan Ojha should have been examined on behalf of Purnima to deny that he had appeared before: the Settlement Officer and made the admission which is attributed to him. However that may be, it is clear that the admission in question was not made by Purnima directly but is said to have been made by her through another person and it has not been proved that this other person, whoever he may be, had really been authorised by Purnima to make any admission on her behalf. Besides, it appears that Nandlal had by this time succeeded in winning over Purnima to his side with the result that Purnima began to live in Nandlal's house and Amodebala, the daughter of Ramlal (whose husband Kali Kinker Misser had died while the survey operation was going on), was left alone to carry on the struggle with Nandlal. In this fight Nandlal was decidedly in a position of some advantage, because he could successfully urge, and on certain occasions did urge, that during the life-time of Purnima, Amodebala had no interest in the properties of Ramlal even on the assumption that Nandlal and Ramlal had separated. It appears, however, that Amodebala also had some influence over the tenants because we find that on 28th September, 1922, Nandlal was forced to bring a rent suit against certain tenants of Sirkabad—Alai Mahta and others for the recovery of Rs. 48 on the allegation that though the defendants had delivered to him his share of the paddy, they had removed the entire straw. The suit was contested by the first defendant who pleaded that he held the land under Umamayi and afterwards under her daughter Amodebala and he also contended that the suit could not proceed in the absence of Amodebala and Purnima. Both Amodebala and Purnima were accordingly made parties to the suit but the suit was contested mainly by Alai Mahta and Amodebala. The suit was finally dismissed on the ground that the kabuliyat of 1918 which had been executed in Nandlal's favour shortly after the death of Umamayi was a collusive (document. Nandlal appealed from this decision to the Deputy Commissioner of Manbhum, but his appeal also was dismissed on the 15th February, 1923. Meanwhile Nandlal brought a suit (Suit no. 48 of 1923) against Purnima for a declaration that Tilai and Jerka properties belonged to him, that the defendant had no right to the said properties and that the record of rights had been incorrectly prepared. This suit was instituted on the 13th. March, 1923, and was decreed on the 31st May, 1923. As the circumstances under which the decree was obtained have to be investigated in this appeal, it is sufficient to say that the decree purports to have been passed on the admission of Purnima as contained in her deposition which was recorded by a commissioner Babu Pashupati Mukherji. In the, same year Nandlal Ojha once more instituted a rent suit against Alai Mahta for the recovery of produce rent for the years 1328 and 1329 in respect of the land held by him in Sirkabad. Alai Mahta again challenged the title of Nandlal and pleaded having made a bona fide payment of rent to Amodebala, and the latter was, therefore, impleaded as a pro forma defendant. This suit also was dismissed with costs and the decision of the trial court was upheld on appeal by the Judicial Commissioner of Manbhum, the judgment of the appellate court being delivered on the 16th January, 1925. On 6th January, 1926, Nandlal instituted Suit no. 3 of 1926 (out of which appeal no. 142 arises). upon the allegation that Ramlal Ojha had died in a state of jointness with him; that neither his two widows nor Amodebala could, therefore, inherit his property and that defendants nos.: 2, 3 and 4 (against whom the two rent suits had been unsuccessfully brought by Nandlal) were liable to pay rent to him and not to any other person. The reliefs that he prayed for in his plaint were as follows:
“(a) That it may be declared that the plaintiff has got panchak brahmottar right, mentioned in the plaint to the land specified in Schedule no. 3 and that defendant no. 1 has no right whatever thereto.
(b) That after declaring plaintiffs' right to get bhag paddy from defendant no. 2 in respect of land in the possession of Alai Mahats within the land, covered by Schedule no. 3, a decree for khas possession thereof may be passed in favour, of the plaintiff.
(c) That if defendant no. 1 has realised bhag paddy for the year 1330, 1331 and 1332 B.S from defendant no. 2 in decree for Rs. 201 (two hundred one) on account of the price of the said paddy may be passed against her.
(d) And that costs in court and interest may also be awarded.”
Written statements were filed in this suit by all the defendants, defendants nos. 3 and 4 admitting the claims of the plaintiff and the other defendant contesting it. The main ground on which the suit was contested by Purnima and Amodebala was that Ramlal had separated during his life-time from Nandlal and that, therefore, Nandlal was not entitled to any property by way of survivorship. It was further contended that the matter was res judicata in view of the decision in the Small Cause Suit no. 215 of 1908 and there was also a plea of limitation raised. Alai. Mahta, defendant no. 2, alleged that the kabuliyat of 1918 was collusive, inoperative and invalid and had been obtained by Nandlal in order to create evidence on his behalf and that the decision in the previous suit as to the collusive nature of the kabuliyat was binding on the plaintiff. It was also alleged by him that he and his brothers formerly held their land under Ramlal Ojha and subsequently under Umamayi and then under defendant no. 1 Amodebala. In May, 1929, Purnima brought Suit no. 50 of 1926 (which is the subject-matter of appeal no. 142) for setting aside the decree obtained in Suit no. 48 of 1923 on the ground of fraud. Her main allegations have been set forth in paragraphs 8, 9 and 10 of the plaint and were in substance these: (1) that she had no knowledge of the suit; (2) that she had not appointed Babu Brajendra Nath Mazumdar (the pleader who acted for her in the suit) as her pleader; (3), that she never authorised him to ask for commission or to take the other steps which were taken in the suit; (4) that the deposition recorded by the commissioner did not represent her statement, nor had she made a voluntary statement before him; and that in fact she had been made to say “yes” or “no” to every question put to her; (5) that the defendant instead of disclosing the real facts before the Court had suppressed them and had obtained the decree by practising fraud upon the Court.
The defence of Nandlal on the other hand was that he had not practised any fraud upon the Court and that the decree obtained by him was binding upon Purnima. Upon these allegations a number of issues were framed in both suits and by consent of the parties the two suits were tried together.
Two main questions arose at the trial— (1) whether Ramlal had separated in estate from Nandlal during his life-time; and (2) whether the decree in Suit no. 48 of 1923 was vitiated by fraud. It need not be stated that the first issue was considered to be the most material issue so far as Suit no. 3 of 926 was concerned, while the second was the chief issue in Suit no. 50. The learned Subordinate Judge held that Nandlal was entitled to the declaration prayed for by him in his plaint as he was of opinion that Ramlal had died in a state of jointness with him. With regard to Jerka property, however, he found that it was the self-acquired property of Ramlal and, therefore, Nandlal had no valid claim to it. In Suit no. 50, he held that the decree obtained by Nandlal was vitiated by fraud; but, in view of his finding that Nandlal was entitled to all the properties excepting Jerka, he vacated the decree only with regard to Jerka.
From this decision two appeals have been preferred, one by Amodebala and Purnima and another by Purnima alone. In Appeal no. 141, which arises out of Suit no. 50, the grievance of the appellant is that when the decree was found to have been vitiated by fraud, it should have been vacated in its entirety, whereas the main question raised in Appeal no. 142, which arises out of Suit no. 3, is that it should have been held that Ramlal had been separate from Nandlal and that the suit of Nandlal should have been dismissed on certain legal grounds. The cross-objection of Nandlal in Appeal no. 141 relates to the finding that the decree in Suit no. 48 had been procured by fraud, whereas his cross-objection in the other appeal relates to the finding as to Jerka being, the self-acquired property of Ramlal.
Both the appeals and the cross-objections have been argued at great length in this Court and the arguments were mainly directed to the two important questions in the case to which I have already referred.
I shall first take up the question as to whether Ramlal died in a state of jointness or separation with Nandlal because that was the first question argued before us although logically the second question, namely, whether the decree in Suit no. 48 was obtained by fraud, should have been dealt with first.
The learned Advocate for the appellant in discussing this question has referred us to a large number of documents but before dealing with them in detail, I would like; to dispose of two preliminary points raised in course of the argument. It was said in the first place that the decree in the Small Cause Court suit of 1908 in which the identical question had been raised by the parties and decided by the arbitrators operates as res judicata. It is conceded that the Small Cause Court which tried the previous suit was not competent to try the present suit and, therefore, one of the conditions laid down by section 11 of the Civil Procedure Code is not satisfied. It was, however, urged that what we have to look to is whether the arbitrators who gave the award were or were not competent to try the present suit and as there is no limit to the jurisdiction of the arbitrators, the award given by them would operate as a res judicata. In support of his argument the learned Advocate for the appellant relied upon Bhajahari Saha Banikya v. Behari Lal Basu and Krishna Prasad v. Balram Pande. Neither of these cases, however, appears to me to help the appellant. In Bhajahari's case. Mookerjee, J., simply pointed out that certain rights may be created under an award even though it has not been enforced either by an application under section 525 of the Civil Procedure Code or by a, regular suit. Similarly in the case decided by the Madras High Court although both parties having objected to the award, it had never been carried into effect, it was held in a subsequent suit for partition that such an award was equivalent to a final judgment and was binding on the parties in the absence of positive evidence, that both parties had agreed that the former state of things should be restored. It is not disputed here that the award was final so far as the claim in the Small. Cause Court suit is concerned; but it does not follow that the award by itself will have any greater value than the decree of the Court which is based upon the award. If, therefore, a decree passed on contest in the Small Cause Court suit could not operate as res judicata, I do not see how a decree based upon an award in the same suit or the; award itself, if it is possible to treat it as something apart from the decree, can operate to make any matters decided thereby res judicata.
The next point urged was that the decisions in the Small Cause Court suit as well as in certain other proceedings which followed it including the proceedings before the Settlement Officers, even though they might not operate as res judicata, should be treated as evidence in the case and some stress was laid on the fact that the learned Subordinate Judge had in the face of so many decisions, come to a finding that the two cousins were joint at the time of Ramlal's death. Here again, I am afraid the learned Advocate for the appellant is attempting to place his case too high. The question as to whether a certain judgment pronounced in another case is or is not relevant is to be governed by sections 40 to 42 of the Evidence Act. It is conceded that these judgments would not come under sections 40 to 42 and section 43 clearly provides that such judgments as are not relevant under these sections are irrelevant unless the existence of such judgment is a fact in issue or is relevant under some other provisions of this Act. The question as to whether there are any other provisions in the Act which would make such judgments relevant has been debated in a series of cases in this country. In Gujju Lal v. Fatteh Lal it was held by the Full Bench of the Calcutta High Court, Mitter, J. dissenting, that a former judgment which is not a judgment in rem, nor one relating to matters of public nature, is not admissible in evidence in a subsequent suit either as res judicata or as proof of the particular point which is decided, unless between the same parties or those claiming under them. A question arose in this case whether such a judgment was admissible under section 13 of the Evidence Act and Garth, C.J expressed an opinion that the former judgment was not a transaction and that the right claimed in the particular suit was not a right within the meaning of section 13. On the other hand, in Collector of Gorakhpur v. Palakdhari Singh a Full Bench of the Allahabad High Court came to a, different conclusion and held (Brodhurst, J. dissenting) that such judgments were in many cases admissible under section 13. The view that was put forward in this case was that the majority of the learned Judges of the Calcutta High Court had put too narrow a construction on the word “right” as used in section 13 and that the term ‘right’ includes not only incorporeal rights, but a right of ownership. It was further held that though the judgment itself was not a transaction, the suit or the litigation in which it was pronounced might be treated as a transaction or an instance in which a right may have been asserted, acknowledged or denied. The point has been considered so exhaustively in these two judgments that I do not think it is necessary for me to deal with it at any great length. It appears, however, that although in many cases the Judges have expressed the view that the decree if not conclusive evidence is not evidence at all—[See Mahendra Lal Khan v. Rosomoyi Dasi; Surendra Nath Pal: Chowdhry v. Brojo Nath Pal Chowdhry; Krishnasami Ayyangar v. Rajagopala Ayyangar; Ramasami v. Appavu; Subramanyan v. Paramaswaran. There are, on the other hand, a large number of cases where the Courts have shown their inclination towards the view propounded by Mitter, J. in Gujju Singh v. Fatteh Lall. In Abinash Chandra Chatter jee v. Paresh Nath Ghose Ghose, J. observed—
“I am disposed to hold that the Judicial Committee in Ram Ranjan Chakerbati v. Ram Narain Singh and Bitto Kuar v. Kesho Prashad Missir rather adopted the views expressed by Mitter, J. in Gujju Singh v. Fatteh Lall, wherein the learned Judge held that a judgment though not inter partes may be received in evidence under section 11 or section 13 of the Evidence Act.”
See also Tepu Khan v. Rajani Mohan Das; Lakshman Govind v. Amrit Gopal; Sri Ganesh Dharnidhar Dev v. Shri Dhundiraj Ganesh Dev; Mahamad Amin v. Hasan; Thama v. Kondan (here the judgment was held to be admissible to prove the result of an admission). It appears that in certain special circumstances the Judicial Committee also has not questioned the admissibility of such judgments. In Run Bahadur Singh v. Lucho Koer Sir R.P Collier observed—
“Although the judgment in the rent suit is not conclusive still their Lordships cannot help attaching some weight to the decision of the Munsif and the Subordinate Judge both natives, who heard the same case as that now before us, and a good deal of the same evidence. It may be added that the judgment in the certificate suit in which the plaintiff set up the same case was the same; it was the same, also, and the case and evidence much the same, in proceeding before a Magistrate requiring the plaintiff to enter into recognizance to keep the peace. All the native Judges who have heard the case—and it has been heard by them four times—have concurred in their judgment upon it”.
Similarly in Bitto Kuer v. Kesho Prasad Missir it was held that a prior judgment was admissible though not conclusive evidence in the case. In one case [Midnapur Zamindary Company, Limited v. Naresh Narayan Roy] it was observed that a previous decision was entitled to some weight as the facts of the case were nearer to the ken of the Court which decided it. See also Ram Ranjan Chakerbati v. Ram Narain Singh; Dinomoni Chowdhrani v. Brojo Mohini Chowdhrani.
In some cases again a distinction has been made between a judgment which is inter partes and one which is not so, a distinction which has not been lost sight of even in Gujju Singh v. Fateh Lal and sometimes it has also been emphasised that although a judgment given in a different case will not be generally admisible under the English Law, it should not be supposed that Indian Evidence Act is a mere servile copy of the English Law. Apart, however, from the case-law on the subject, it appears to me that the Evidence Act itself does not draw a distinction between a judgment which is not inter partes and a judgment which is inter partes except where the judgment is clearly res judicata. The logical view, therefore, seems to me to be that unless a judgment is relevant, under sections 40 to 42 of the Evidence Act, it is not evidence at all so far as regards the matter which it decides. It is true that section 43 provides that a judgment other than that mentioned in sections 40 to 42 though otherwise inadmissible may be admissible, if it is relevant under some other provisions of this Act. Also in view of the numerous decisions of the various High Courts in this country as well as the decision of the Privy Council in Dinomi Chowdhrani v. Brojo Mohini Chowdhrani it is now, in my opinion, too late to say that a litigation or a suit is not a transaction and that the word “right” as used in section 13 must be interpreted in the somewhat narrow sense in which it was construed in Gujju Singh v. Fateh Lal. Taking this view as I do, I am inclined to think that a judgment other than a judgment referred to in sections 40 to 42 may be admissible to prove that a right was asserted or denied under section 13 of the Evidence Act or to explain or introduce facts in issues or, to explain the history of the case. In some cases it has also been held that it may be used to prove an admission made by the ancestor of one of the parties (though the decisions on this point are not unanimous) or to show how certain property was dealt with in the past. I must confess, however, that I have not been able to discover any provision in the Evidence Act which would warrant the view that the actual decision or the findings arrived at in a previous judgment can be used as evidence to decide the points which are in issue in a particular case. Such a decision may by virtue of specific provisions operate as res judicata or be relevant a pronouncement on matters of public nature, but otherwise it is not better than a mere opinion expressed on the issues involved in a particular case and the Evidence Act is clear that “opinion” will be relevant in those cases only which are specifically referred to in the Act and in no others. I am of opinion, therefore, that although, as observed by Sargent, C.J in Ranchhoddas Krishnadas v. Bapu Narhar one might have wished that the door had been opened somewhat wider for this class of evidence yet under the law as it stands the actual decision or the findings arrived at in a judgment pronounced in a different case are inadmissible except in cases referred to under sections 40 to 42 of the Evidence Act and except perhaps in the special type of cases which have been referred to by the Judicial Committee. This being my view, although I would not go so far as to hold that the judgments which are on the record of the present case were inadmissible, I would proceed to decide this case not upon the findings which have been arrived at in favour of the appellant in, those judgments, but upon the other evidence adduced in the case.
Now, the most important evidence in this case is an old document, Exhibit M of Baisak, 1295, corresponding to April, 1888. It purports to be a receipt given by Nandlal Ojha to Ramlal Ojha and runs thus—
“This receipt is executed to the following effect. That your father late Biswanath Ojha and my father late Shrinath Ojha were two brothers, of whom you are the son of the eldest, and I am the son of the youngest. I lost my mother while I was a child. Your mother has brought up both the brothers. We both the brothers having proposed to separate from each other in mess, we appointed Raghumani Adhikari, Mukhtear of Purulia Court, and Fachu Malla of Raghunathdih, pargana Kansaipur and Muchiram Mahata of Keraya and Goor Dutta of Ghatbera and sixteen annas tenants of the village, as panchayet; and we having agreed to the partition and division made by them, we receive in our respective shares movables and immovables articles, etc., as per schedule herein below. Hence, after having received all (?) the things detailed in the schedule, I execute this receipt in your favour for the purpose of a memorandum.”
Then follows a Schedule in which a list of properties allotted to the two cousins, is given and then appear the signatures of certain persons. We have examined this document carefully and in my opinion there can be no question as to its genuineness. It has been proved to be in the hand-writing of one Raghumani Mukhtar who, even Nandlal admits, used to act as his mukhtar in the old days and who has been long dead. It appears to have been filed in the suit of 1908 and the admission made in the plaint of Nandlal that he separated in mess and began to cultivate some lands separately in the year 1295 also goes to support its genuineness. The question, however, is whether this document proves that there was an effective severance of joint estate in the year 1295. The learned. Advocate for the respondent tries to show that there was only a separation in mess then and the only reason for the separation was that Nandlal was asked to cook food even after Ramlal had married a wife. It is urged by him that a mere separation in mess which was induced by an ordinary quarrel like this could not be regarded as sufficient to cause a disruption of the joint family. Stress is also laid upon the words “we both the brothers having proposed to separate from each other in mess” and it is argued that this clearly indicates that the intention was to separate in mess only. The learned Advocate for the appellant on the other hand contends that the document should be read as a whole and that the Bengali expression which has been translated as meaning “separation in mess” does not really carry that meaning but means in ordinary parlance an effective partition. As this view is not accepted on behalf of the respondent I shall proceed on the assumption that the document has been correctly translated, though I agree with, the learned Counsel for the appellant that it will be most unsafe to isolate any particular passage in the document from its context for the purpose of discovering what the intention of the parties was when this document was written. We must also bear in mind that this document does not claim or purport to be a complete and self-contained formal agreement entered into between parties but merely evidences to some extent what actually happened and should, therefore, be considered along with the evidence as to the surrounding circumstances and other matters. We have, therefore, to examine not only the language of this document but also the Schedule which is an integral part of it and also consider the extent and kind of properties partitioned and those left undivided. As to the recital in the document itself, it is true that it is said in one place that the cousins had proposed to separate in mess, yet in the very next sentence it is made clear that they had also agreed to the partition and division made by the panches. It is significant that the writer had not only used the words partition and division here, but also referred to “their respective shares in movable and immovable articles as given in the schedule.” It is needless to emphasise that a mere agreement to hold separate properties for the sake of convenience is quite different from getting one's share in the joint property by means of a division or partition; and that the latter was the case is fully confirmed by a careful perusal of the schedule attached to this document. It is fully established by evidence that the parties divided on this occasion all their movables and nij-jote lands and on this point there has been no serious controversy. It is also apparent from the schedule that in many cases and where it was possible the division was made in equal or half shares. What is most significant is that each party got an equal number of ploughs and bullocks as well as buffaloes and cows. As to the extent of this division though the learned Advocate for the respondent has tried to belittle it, it is enough to point out that although Nandlal was not yet married and had to support no other member of the family excepting himself, yet he was given half the number of cattle possessed by the family, namely, eight buffaloes, eight bullocks and 13 cows. This matter has an important bearing upon the contention of the respondent that Ramlal got more land on this occasion than he himself, a contention which seems to have been favoured by the learned Subordinate Judge. It appears to me that the actual evidence in the case does not necessarily lead to that conclusion. The learned Subordinate Judge has laid some stress on an admission made by Lochan Mahto D.W 2 that Ramlal cultivated with 12 ploughs and Nandlal with 5 or 6 ploughs. This statement, however, must be taken along with the statement made by the witness that this was because Nandlal was alone and that there were several members in Ramlal's family and it is clear that merely because Nandlal chose to cultivate a lesser area of land, it does not follow that the two cousins had received unequal quantities at the partition. I have already stated that they had received an equal number of bullocks and ploughs by the partition and it was open to them either to cultivate the entire lands themselves or to cultivate only a part of the land and make some arrangement regarding the rest. One cannot in this connection altogether ignore that Nandlal himself stated that he began to plough with 5 ploughs and Ramlal with eight ploughs and that his witness P.W (Jaichand Rajwar) made the following statement—
“Nandlal and Ramlal cultivated separately and they took food separately. For 16 to 20 years they are in separate cultivation. “I am seeing them cultivating them in equal shares?”
Then says—
“Nandlal had cultivation of 4 or 5 ploughs and Ramlal of 8 or 10.”
The nij-jote lands which Ramlal and Nandlal possessed separately since 1295 Fasli have been recorded separately in survey papers and if Nandjal seriously contended that he had got an unequal share in these, lands it was easy enough for him to prove this. In my opinion it is difficult to hold on the evidence as it stands that Ramlal got more land than Nandlal by the partition of 1295 or whatever we may choose to call it.
Turning now to the properties which were left undivided we find that they were only those lands in village Tilai and Sirkabad for which the family was entitled to receive rent from tenants. There appears to be no special significance in the fact that these lands were left undivided because all that had to be done was to realise rent from the tenants and it is not uncommon to find even members of different families holding such properties; in common. Another fact which is to be borne in mind is that according to evidence the income of Tilai was only about Rs. 150 and although we have no evidence as to the income of Sirkabad yet under the original sanad of 1864 by which it wast granted, a moquli rent of Rs. 4 only was payable in respect of this property and the kabuliyats relied on by Nandlal show an income of Rs. 300 a, year whereas the khewat exhibit 6 records only an area of 35.23 acres. On the other hand, each share, of the lands actually divided yielded according to the evidence on the records annually 300 to 600 or 700 maunds of paddy. It is again in evidence that both Ramlal and Nandlal used to live in separate houses and used to pay their chaukidari taxes separately (vide Exhibit Q series). Even as regards the property which was left undivided, the thokas of village Tilai (Exhibits N to N7) some of which have been proved to be in the hand-writing of Ramlal who died in the year 1907 show that he was realising only his half shares in this mauza. The learned Subordinate Judge has without assigning any reason whatsoever dismissed these documents on the ground that he is not satisfied with their genuineness, but I regret I cannot agree with him in this finding. These documents were produced in Court as long ago as in 1908 and were used in various litigations against Nandlal. I have already stated that some of them have been proved to be in the handwriting of Ramlal and as this evidence stands unrebutted their genuineness' is established beyond doubt for they could not have been manufactured after the death of Ramlal. In my opinion the thokas written by Ramlal are admissible under section 32(2) of the Evidence Act and it is clearly noted in one of these papers that they related only for a half share in the mauza; There is also internal evidence to support this statement because we find that the rent realized from Sarban Mahatra was exactly half of what had been fixed by the patta Exhibit 9(a) executed jointly by Nandlal and Ramlal in his favour during the lifetime of Ramlal: It is also to be noted that after 1895 the Jerka property was acquired in the name of Ramlal alone and even the learned Subordinate Judge had to hold on the evidence before him that this was the self-acquired property of Ramlal. I have already stated that this property was acquired during the life-time of Ramlal by three documents and Nandlal states that he was present on all the occasions on which the consideration was paid to the former proprietor of Jerka. It is curious, however, that although in every other document, which related to the property which was admittedly common, both Ramlal and Nandlal joined, the Jerka properties were allowed to be acquired only in the name of Ramlal. It is true that such a transaction is possible even in a joint family and where the family is joint, the mere fact that a certain property has been acquired in the name of one of the, members only, does not necessarily make it the sole property of that particular member. In this particular case, however, it has been proved by D.W 1, and his statement, is supported by Exhibit D-1, that about the year 1304 Fasli or 1897 there was a criminal case between Ramlal and Nandlal in which the complaint was that one of these persons had encroached upon the land of the other. It is, therefore, a matter to be considered as to whether in such circumstances Nandlal who was older than Ramlal would allow the acquisition to be made in the name of Ramlal only. Again what we find is that in 1909 the very proprietor of Jerka who had executed the three previous documents in favour of Ramlal executed a fourth document in favour of Umamayi, the widow of Ramlal, and not Nandlal. I do not suggest that any of these matters taken by itself is conclusive; but one will have to take into consideration the cumulative effect of all these transactions. The criminal case to which I have referred has not only an important bearing on the question as to whether, the Jerka property was acquired by Ramlal for himself alone or for himself and Nandlal but also on the general question as to Whether Ramlal and Nandlal were joint at the time when this case was instituted. It is needless to say that it is not usual to find one member of a joint family bringing a case of trespass against another in respect of property which is still in law joint but which is held in separate possession only for the convenience of enjoyment by individual members of the joint family.
A joint Hindu family again has certain peculiar features of its own; but the evidence in this case, so far as it goes, discloses that those features are singularly wanting in this case. Generally one would expect a karta or a manager in the family, and some sort of a joint fund or family chest or till as it is sometimes called, which is drawn upon on such occasions as the marriage of a daughter or a member of the joint family or the sradh of a deceased member. In this particular case Nandlal was admittedly the older member and it is stated in paragraph 1 of his written statement in Suit no. 50 of 1925 that
“When the defendant and Ramlal Ojha were members of one family and joint in mess they all lived under the care of Rashmoin Ojhain, mother of Ramlal. The property described in schedule 3 of the plaint was acquired at that time out of the income of the joint property and the defendant formerly as karta of the joint family and thereafter alone is in possession thereof.”
Here there is a clear suggestion that Nandlal was the karta of the family after the death of Rashmoin and was the sole owner of Jerka after the death of Ramlal. The case about Nandlal being a karta, seems to have been abandoned at the trial and in evidence an attempt was made to suggest that Ramlal being the more intelligent of the two cousins was entrusted with the collection of the joint property though it is not expressly stated as to who was the karta. However that be, there is nothing in the whole of the evidence before us to show that Nandlal took any part in marrying the daughter of Ramlal or that Ramlal took any part in Nandla's domestic affairs. On the other hand, in his own plaint Nandlal accuses Ramlal Ojha of having married his daughter in saprabara sagotra and adds that for that reason he (Ramlal) gave up connection with the said daughter and
“for fear of being outcasted, he never brought her in his own house.”
Again in his evidence he referred to his own concubine and the daughter begotten by her and adds that
“Ramlal was alive when Nagendra was married…………… Ramlal did not participate in the marriage.”
It is true that merely because a member of the family did not participate in the marriage of a natural daughter, it does not follow that he was not a member of the joint family; but this passage as well as the passage in the plaint to which I have referred would give some indication of the relations between the two cousins as well as the condition of the so-called joint family.
I have already given a brief history of the family and shown that beyond the abortive attempt of Nandlal to put forward a hostile claim in the Small Cause Court suit of 1909 he did nothing so long as Umamayi was alive to seriously question or contest the right of the widows of Ramlal to succeed to those properties which they claimed to have inherited from him. I have referred to the succession certificate taken by Umamayi as well as the pattas executed in her favour Besides these, thokas of Tilai and Jerka have been filed to show that collections were made on behalf of the widows during the life-time of Umamayi. I have also referred to the unsatisfactory explanation of Nandlal that Umamayi was in possession of Tilai and Jerka in lieu of maintenance. If, therefore, it is possible to draw any inference from the conduct of the parties as to the true import of an incident which took place as long ago as in 1295 Fasli, and regarding which much direct evidence cannot be now easily available, I think that inference must be in favour of the case of the appellants that there was a complete disruption, of the joint estate in that year. I think that it will be legitimate to say that the parties themselves could understand better than any one else whether there was a real separation in 1295 Fasli or not and if they acted for some considerable time in such a way as to show that the fact of separation was not seriously challenged, that fact cannot be wholly excluded from consideration, even though it may not be conclusive and may have to be considered along with such explanation as may be furnished by the acquiescing party for the attitude adopted by him.
The documentary evidence adduced on behalf of Nandlal is, to say the least, entirely inconclusive and by no means inconsistent with the case of the appellant. Exhibits 9, 9(a) and 9(a) are three kabuliyats executed by Ramlal and Nandlal jointly in, respect of certain lands in Tilai in 1893 and are easily explained by the fact that Tilai is one of the villages which had not been divided in 1295 Fasli. Exhibit 5 and 5(a) are two ex parte rent decree obtained by Ambica Charan Manjhi the superior landlord of Sirkabad against Nandlal after the death of Umamayi and it is to be noted that while on the one hand the periods for which the two suits were brought overlap each other, on the other hand that very proprietor obtained a decree against Amodebala in 1921 and subsequently gave a receipt to her for the amount decreed in that suit (Exhibits B1 and S4). Exhibits 11 and 12 were two kabuliyats executed in favour of Nandlal in respect of Sirkabad properties shortly after the death of Umamayi; but some of the very tenants who executed the kabuliyats turned against Nandlal and the bonafides of these kabuliyats were seriously brought into question in the two rent suits of 1921 and 1923 which, compelled Nadlal to bring the present suit. Between 1918 and 1920, that is to say, after Umamayi's death and just before the survey operation, Nandlal got two ekrar-namas and one kabuliyat (Exhibits 22, 23, and 21) relating to the properties in Jerka executed in his favour. By one of these one Dharup Sardar was allowed to fish in a tank for a period of four months and by the other two certain plots were let out to one Baidnath Rai for the purpose of rearing lac. These documents are no less suspicious than the kabuliyats relating to Sirkabad and were not given effect to by the Survey authorities. The most important documents filed by Nandlal are the thokas Exhibits 16 series, certain counterfoils of rent receipts, chalans and rent receipts (Exhibits 17, 8 and 12 series). The thokas are for a period extending from 1919 to 1926 and apart from the fact that the statements made in these documents cannot be used by Nandlal in his own favour, as there are clear indications that he was creating evidence for the purpose of advancing his claim before the Survey authorities, the statements made in the thokas in support of his claim are entitled to very little value. Besides, these documents, do not necessarily prove that Nandlal was in exclusive possession of the properties. The same remarks apply to the counterfoils of rent receipts Exhibits. 17 series and the rent receipts Exhibits 12 series as printed in the paper-book are of very little use because we do not know to which particular year they relate. The learned Advocate for the respondent gave us certain notes about the receipts of Jerka and Sirkabad and we are told that so far as the receipts of Jerka are concerned they are for the years 1325 and 1332 only whereas those of Sirkabad relate to the years 1312, 1315, 1316, 1318 and 1332. It is clear that the few stray receipts of Jerka which have been filed far from supporting Nandlal's case confirm the suspicion that he was creating evidence, while the receipts of Sirkabad also do not show that he was in exclusive possession of the properties throughout. Exhibit 8 series are the chalans of Tilai and although they go further than any other evidence produced by Nandlal, yet they can be explained by the fact that this mauza being admittedly common property, Nandlal was as much entitled to pay rent as any one else. On the other hand, some of the receipts which were granted in the life-time of Ramlal show that Nandlal while depositing the rent described Ramlal as his co-sharer [vide 8×(1) and 8×(2)] an expression which is certainly not a very happy one and is not generally used to describe a person who is still a member, of the joint family.
It was urged by the learned Advocate for the appellant that Nandlal has a better case with regard to Sirkabad property; but I am unable to accept this contention. There are no documents before us of the period when Ramlal was alive and, as I have already said, soon after Ramlal's death Umamayi settled some of the Sirka bad lands by kabuliyats, Exhibits R and R(1): I have already referred to the two ex parte decrees obtained by Ambica Charan Manjhi against Nandlal after Umamayi's death as well as the decree obtained by the same person against Amodebala in 1924. I have also commented on the thokas filed by Nandlal for the years 1919 to 1926. It is moreover to be remembered that the two rent suits of 1921 and 1923 related to certain lands in Sirkabad and in both of them the tenants sucessfully pleaded payment to Amodebala instead of Nandlal. The sheet anchor of Nandlal's case is the entry in the record-of-rights. But that entry is wholly in conflict with the record-of-rights prepared in respect of villages Tilai and Jerka and was based solely on an admission said to have been made by a person who has not been proved to have been authorised by Purnima and whose authority was based on an unregistered document the execution of which is denied by her. Besides if, as I am inclined to hold, the evidence adduced in this case is sufficient to prove that Ramlal and Nandlal had separated during the life-time of Ramlal and that Nandlal was never in exclusive possession of Sirkabad, it is also sufficient to rebut the survey entry in respect of Sirkabad. I may mention here that while some of the witnesses examined by the appellants definitely prove the possession of Umamayi and Amodebala with regard to Sirkabad property, not a single witness has been examined on behalf of Nandlal who belongs to Sirkabad and it is only some of the Tilai witnesses who have also casually made statements regarding Sirkabad. The evidence in the case, in my opinion, does not show by any means that Nandlal was either joint with Ramlal or was ever in exclusive possession of the properties in Tilai, Jerka and Sirkabad or any of them in its entirety after the death of Ramlal.
Once the facts are fully ascertained there cannot be much difficulty in my opinion in applying the law. The learned Subordinate Judge has reviewed a series of authorities in his judgment and a number of cases have also been cited in the course of the elaborate arguments advanced in this Court. It appears to me, however, that the learned Subordinate Judge was too much obsessed with the case law on the subject and that he has not correctly appreciated the facts of the case. There is no doubt that the summary of the law given in his judgment cannot be found fault with, but the case law cannot provide us with a ready made formula and each case has to be judged on its own facts. It may well be that certain circumstances when taken individually do not furnish conclusive evidence of separation, yet they may point to a different conclusion when taken collectively or with reference to the particular facts of any individual case. It is to be remembered that separation in status is not quite the same thing as “partition” as used in common parlance. It is possible for the members of a joint family to sever themselves in estate without there being a formal partition or an actual division of the properties by metes and bounds. In law a severance of the joint estate is effected as soon as an intentionto this effect has been clearly and unequivocally expressed. It is also to be remembered that although it has been emphasised in many cases that a declaration of the intention to separate must be made in definite and unambiguous terms, it does not follow that where there is no evidence of an express declaration of intention, separation cannot be proved. The question is really one of intention and all that the law requires is that the intention should be clearly and unequivocally expressed whether it be by explicit declaration or by conduct—[See Makund Dharman Bhoir v. Balkrishna Padmanji. Thus in the absence of an explicit declaration, the evidence of conduct as well as of the surrounding circumstances is material for the purpose of judging whether the members intended to separate or not. In this connection the Courts have always pointed out that mere cease of commensality or separate enjoyment of distinct portions of the properties or separate definement of shares in revenue or survey paper or mere proof of separate transactions entered into by the coparceners with strangers will not be conclusive to prove separation in estate. It does not, however, necessarily follow that even though all these elements may be present in a case and no matter what special significance any of these various circumstances may have having regard to the facts of a particular case, they can under no circumstances be sufficient to prove separation. Even as to the cesser of commensality the Privy Council has pointed out that though it may not be conclusive, yet it may properly be considered in determining the question whether there was a partition of the joint family or not—[See Anandi v. Khedu Lal and Ganesh Dutt v. Jewach Thakurain]. Similarly any one or more of the other circumstances referred to above may have a special significance or bearing on the intention of the parties and, therefore, decisive in a particular case having regard to its peculiar circumstances though the same, circumstances or set of circumstances may not be quite conclusive in another case. In the present case my view is that the separation of 1295 must have caused a serious breach in the union and it was by no means such a trivial or ordinary incident as to have left the joint family wholly unaffected. What is significant is that the parties did not take for themselves only so much of the properties as would have been sufficient for their maintenance but they divided everything which could be conveniently divided and received their “share” of such properties by what they called “partition and division” brought about through the intervention of certain punches. In Vaidyanatha Aiyar v. Aiuasamy Aiyar it was held that when a partial partition is proved or admitted to have taken place, the presumption is that there has been an entire partition both with reference to rights, and properties and this view was re-affirmed in Sundaramma v. Kamakotiah and in Subha Hiddi v. Alagammal. I have already discussed the matter at some length before and all I need say here is that even apart from this presumption the conclusion which I have arrived at on a consideration of the oral as well as the documentary evidence adduced in the case is that Ramlal and Nandlal separated in estate in the year 1295 and that Nandlal was not, therefore, entitled to succeed to any of the properties in dispute. The learned Subordinate Judge relying on an isolated passage in the evidence, of defence witness no. 2 has held that so long as Rashmoni Debi lived she managed the properties and her orders were carried out; but when I refer to this passage in the evidence of this witness I do not find anything in it to show that the witness was referring to the common property of Nandlal and Ramlal and not to the separate property of Ramlal, having already said in the examination-in-chief that the two cousins had separated.
I shall now pass on to consider the next important point in the case, that is to say, whether the decree in Suit no. 48 of 1923 was obtained by fraud. The circumstances under which this suit was brought were no doubt peculiar. It is not disputed that at the time when the suit was brought Purnima was living with Nandlal and that there was no quarrel or friction whatsoever between her and the latter. It appears strange, therefore, that it should have been considered necessary to bring a suit against her in the absence of any dispute. This matter by itself would not perhaps have had much significance if it had stood alone; but there are many other suspicious features in the case. One of these is that the pleader by whom Purnima is said to have been represented was one who had certainly acted for Nandlal on previous occasions and who curiously enough appeared as a pleader for him both in Suits nos. 3 and 50 of 1926. The story as to how he obtained the vakalatnama from Purnima is an extraordinary one. According to Nandlal this pleader was approached by Sashi Bhushan, a cousin of the lady in the first instance, but he did not accept the vakalatnama. This story appears to have been finally abandoned and has not been supported by any other evidence. The story that has been definitely put forward is that one Rajwar went to the pleader with a vakalatnama but as a matter of precaution, the latter deputed his clerk one Ajodhya Nath Ghosh to go and obtain the thumb impression of Purnima on the document. Ajodhya Nath accordingly went to Purnima's house and took the thumb impression and so the vakalatnama was accepted. Ajodhya Nath says in his evidence that Nagen (P.W 2), a son-in-law of Nandlal, is his friend and he calls Nandlal his father-in-law as he calls Nagen his brother. On this point Ajodhya Nath is supported both by Nagen and Nandlal who says that Ajodhya Nath is like a son to him. It is admitted that Purnima is a pardah-nashin lady and Ajodhya Nath himself states in his cross-examination that Purnima did not talk to him and yet his case is that he went to Purnima, talked to her and obtained her thumb impression. The most astonishing part of the case is that although Purnima's father was alive and it is said that Purnima's cousin Sashi Bhushan held a general power-of-attorney for her, neither of them took any part in the appointment of the pleader. The pleader, having thus been appointed, appeared and applied to the Court on 12th April, 1923, for her examination on commission and stated—we do not know on what authority—that her evidence so given would take the place of the written statement. Purnima definitely states that she never authorised this step and her evidence stands almost wholly unrebutted. On that very day the Court ordered the plaintiff to deposit Rs. 15 as the cost of the commission but curiously enough it was Brajendra Babu, the pleader for the defendant who deposited this money and no explanation has been given why the defendant should have deposited this sum although the plaintiff had been called upon to do so. It is suggested by the appellant that as Brajendra Babu was in fact acting for Nandlal though ostensibly he appeared for Purnima, he was anxious to conceal that he was handling any money which had been really supplied by Nandlal and so he made this blunder in depositing the sum of Rs. 15 on behalf of Purnima when the money should have been deposited on behalf of the plaintiff. This is mere speculation, but it is certainly curious that having deposited the money, the pleader allowed that very amount to be charged in the decree as part of the cost awarded against his client, although it is said that the money had been deposited on behalf of the defendant (See Exhibit 3). The, learned Advocate for the appellant has laid some stress on the fact that it was rather unusual for the pleader to say that no written statement was necessary and to apply for evidence commission at once. There is nothing to show that evidence by commission was absolutely necessary because in the present suit Purnima herself appeared in Court to give her evidence. As to her examination by the commission there is no doubt that this took place when Purnima was living under the roof of Nandlal and, as the learned Subordinate Judge has pointed out, the statement of Purnima that she merely said “yes” or “no” to certain leading questions put to her receives support from the statement of the plaintiff's own Witness Nagendra Nath Chakravarty. The commissioner also is not in a position to deny that leading questions were put to her and she merely answered “yes” or “no” to them. Besides, as the learned Subordinate Judge has pointed out, neither Purnima's father nor her cousin was present at the time of the examination because it appears that she was identified before the commissioner by men who were complete strangers to the family and in fact apart from Purnima's evidence, we do not know how she was situated behind the pardah and to what extent she understood the question put to her. All this lends support to her testimony that the statement recorded by the commissioner did not truly represent her statements. It is true that the commissioner says that the statement was read over to her but as she was a pardah-nashin lady and did not appear before the commissioner, it is contended that it cannot be said with certainty how much of the evidence she actually heard when it was read out or whether it was actually read out within her hearing. There is again evidence to the effect that the summons in the case was not served upon her personally but that a copy of it was merely stuck up at the house of Nandlal where she lived. Nandlal says in his evidence that he was present at the time of the service of the summons but he also says that he did not inform Purnima of the suit he had brought against her. In this connection I cannot refrain from observing that the pleader Brajendra Babu would have been a most material witness in the case because there are so many things which could be explained by him alone, but curiously enough he accepted the brief for Nandlal in both these suits even though Purnima had clearly stated in her plaint that he had no authority to appear for her in the previous suit and the decree in that suit had been obtained by fraud.
Now the main question in this case is whether Purnima has established a case of fraud. It is said that although there may be suspicious features about the case, yet that is not enough so long as definite particulars of fraud are not set forth and they are not established beyond doubt. As to the particulars of fraud I have already said that the case of Purnima in substance was that the decree had been obtained by keeping her in ignorance of the suit, by representing to the Court that Babu Brajendra Nath was her pleader, although as a matter of fact he was not, by taking various steps in the suit on her behalf although she had never authorised those steps to be taken and by using before the Court a deposition which did not contain her full and free statement. All these allegations are fully supported by her in her evidence and the question is whether her evidence should be taken to be sufficient in this case. The learned Subordinate Judge before whom she gave her evidence has apparently believed her and in my opinion he has rightly done so. The circumstances of the case to which I have referred fully lend support to her statements and there seems to be no reason why they should be rejected. It is true that her statements are to be taken with caution and in one or two instances for example where she says that her thumb impression had been obtained not on the record of deposition but on a blank piece of paper it may not be safe to accept her statement; but the statements in other respects, specially where they are fully supported by the probabilities and the circumstances of the case, seem to have been accepted by the learned Subordinate Judge and I see no reason to differ from his conclusions. I cannot disbelieve her evidence that Brajendra Babu was never appointed by her; that she never authorised him to say to the Court that no written statement was necessary or that she was to be examined on commission. This fact by itself would be a serious fraud upon the Court, because if it is believed it means that the decree was obtained by setting up a person as a pleader for the party where as a matter of fact he had no authority to act as such. I am also of opinion that her statement as to her being wholly ignorant of the suit and as to the manner in which the deposition had been recorded cannot also be easily discarded. These facts in my opinion are quite sufficient for the purpose of upholding the decree of the lower Court independently of the agrument advanced on behalf of the appellant on the score of her being a pardah-nashin lady and not having had any free and independent advice at any stage of the suit. In my opinion this question could directly arise only if there was a contract or an agreement entered into by the lady which was sought to be impugned or if the decree passed in this case had been a compromise decree. The learned Advocate for the appellant, however, refers to the evidence of Nandlal in which he speaks of the decree as if it was one based on a compromise. He says
“After the compromise Purnima went to her father's house”.
and then again—
“He (Brajendra Babu) appeared for me in my case with Urma and Debi………………….’ I cannot say whether it was before or after the compromise in Suit no. 48.”
The learned Advocate for the appellant thus refers us to the case of Nistarini Dassi v. Nundolal Bose where Mr. Justice Stanley after referring to the fact that the plaintiff there was a pardah-nashin lady living with the defendant Nundolal Bose who has exercised considerable influence over her and that while she was living under his care, he had induced her to put her name to documents which were not explained to her, referred to the following passage of Phear, J. in Kanailal Jawhari v. Kamini Debi—
“I may remark that I have more than once felt myself obliged to hold that a Hindu pardah-nashin is entitled to receive in this Court that protection which the Court of Chancery in England always extends to the weak, ignorant and infirm, and to those who, for any other reason, are specially likely to be imposed upon by the exertion of undue influence over them. The undue influence is presumed to have been exerted unless the contrary be shown. It is therefore in all dealings with those persons who are so situated, always incumbent on the person who is interested in upholding the transactions to show that its terms are fair and equitable. The most usual mode of discharging this onus is to show that the lady had good and independent advice in the matter, and acted therein altogether at arm's length from the other contracting party”.
As I have however already indicated, although the youth of the lady and her being a pardah-nashin Hindu widow and her living with Nandlal at the time the decree was obtained may be circumstances tending to show that she could be easily imposed upon, I do not think that the principle laid down in the decision relied on by the learned Advocate exactly applies to this case because this is not a case in which Purnima was strictly speaking a contracting party and a case of undue influence is not quite the same as a case of fraud. In my opinion, however, the case of fraud has been fully established and her suit has been rightly decreed.
The only thing which I cannot understand is why the learned Subordinate Judge having found that the decree had been obtained by fraud should have partially decreed the suit only with regard to Jerka property. In my opinion Appeal no. 141 should be allowed with costs and Suit no. 50 of 1926 should be decreed. As to Suit no. 3 as I have held that Ramlal had separated from Nandlal during his life-time, the plaintiff has failed to establish his title upon which his suit is based and, therefore, his suit must necessarily fail.
It may be mentioned that it, was urged on behalf of the respondent that Suit no. 3 was purely one under section 177 of the Chota Nagpur Tenancy Act and the question as to whether. Ramlal and Nandlal were joint or separate need not be gone into. On the other hand it was urged on behalf of the respondent that if the plaintiff's suit was one under section 177 it was barred by limitation because it was brought more than one year after the decision of the Rent Suit no. 1400 of 1921–1922. In my opinion, however, on the plaint as framed it cannot be held either that the question of title cannot be gone into or that the suit is wholly barred by limitation.
The result is that Suit no. 3 of 1926 must be dismissed and Appeals nos. 141 and 142 must be allowed with costs throughout. The cross-objections in both the cases will be dismissed.
Wort, J.:— I agree.
Appeals allowed.
Cross-objections dismissed.section 11 or section 13
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