Man Bhari v. Naunidh

Stuart, C.J and Spankie, J.:— The plaintiff sued to obtain possession by division of ⅓ of a house and certain shops and of an interest in the business concern of the firm belonging to Sarni Mal, father of the parties, deceased. The plaintiff, Man Bhari, rested her claim on a deed of gift by her father Sarni Mal, dated 23rd September, 1874, and by which deed of gift he divided his entire property among three persons, Naunidh his adopted son, and his two daughters Gaura and Man Bhari, in equal shares of one-third each. The father died the next day, that is on the 24th September, 1874, and the plaintiff asserts that on his death she had possession of a portion of the property for two or three years; for the last two years defendants have held possession. The defendant Naunidh contended that the deed of gift was invalid, for the donor was no party to its registration which was effected after the death, on the evidence of witnesses the registration was illegal the plaintiff too never had possession under if he (Naunidh) was the adopted son of deceased and daughters could have no claim as against him under any circumstances, the plaintiff had no claim to any interest in the business of the firm. Gaura admitted the plaintiffs claim.

The first Court found that the deed of gift shows, by endorsement, that it was presented for registration by petition on the part of Sarni Mal, filed through his adopted son Naunidh, Rs. 10 being paid into Court as the cost of a commission, the donor being unable to attend in person by reason of sickness. A commissioner was appointed to examine him. It was found that the donor was deed. But under instructions from the Registrar the commissioner made inquiries as to the execution of the deed from the subscribing witnesses, who were pointed out to him by Naunidh, the adopted son. On his submitting a report, the witnesses acknowledged before the Registrar the fact that Sarni Mal had executed the deed, whilst in possession of his senses, and had signed it with his own hand. There was nothing irregular in this registration, which was effected under management of Naunidh, the adopted, son and an assign of the deceased. The first Court also held that Naunidh, defendant had recognised the interest possessed by the plaintiff under the deed, for since his father's death he had paid Rs. 40 or 50 yearly to the plaintiff. But the Subordinate Judge did not admit that plaintiff was entitled to any share in the firm by the terms of the deed of gift. Both plaintiff and defendant appealed to the Judge. The defendant contended that the registration was not made on his admission: the duties under s. 35 could not be performed by a registry muharrir: the proceedings in registration were illegal and the claim should have been dismissed: the payment of money to the plaintiff, his (defendant's) sister, out of affection, is no proof of possession of the property. The plaintiff urged that the deed included moveable property in the firm: the account-books showed that she had received money out of the profits of the firm. The Judge holds that there is no proof that the provisions of the law, in respect to registration were carried out, and also that it was not shown that the deed of gift had been carried out or possession given. He observes that the representative of the executant did not appear before the Registrar to admit the execution. The document was filed and a request made for a commissioner to verify the deed, as executant was in a state of great weakness. When the commissioner reached the executant's house, the latter was dead, and the Sub-Registrar took evidence as to execution and ordered the registration. But the representative did not admit the execution. As to the money paid by defendant to plaintiff, the Judge accepts the former's statement and considers that it is a proof that plaintiff did not obtain possession. He finds “the gift too week and incumplate to support the award” (decree), which he accordingly reverses.

The plaintiff-appellant urges that the proceedings before the Registrar were valid: immediate possession was not necessary under the Hindu law. She further urges that the payment of money to her was proof of her possession, and that the first Court had misapprehended the deed in relation to the interest in the firm. We failed to find that there was any illegal procedure on the part of the registering officer. He was satisfied that, owing to bodily infirmity the executant could not appear, and at the instance of the son, who presented his father's petition and prayed for a commission, he granted that prayer. S. 38 of the Registration Act would cover this proceeding. It further appears that, when the commissioner went to the executant's house, which he did without delay, that is to say, on the next day, it was found that he had died, though he was a alive when the petition, for registration was presented to the Sub-Registrar. The Judge states that the representative did not admit the execution. But the Subordinate Judge's statement as to the endorsements on the deed of gift have never been denied, and the conduct of Naunidh from the time he presented the deed for registration, also during the time when the commissioner was at the executant's house, and was making inquiries as to the execution, and subsequently before the Sub-Registrar, shows that the endorsement was true, and that the execution of the, deed was admitted, by Naunidh. If the actual words of admission, have not been recorded; still there cannot be a doubt that in good faith Registrar understood him to admit the execution, and therefore any irregularity, if there was any, would not invalidate the procedure (s. 85, Registration Act). The registration, not being invalid, is a fact, and admits the deed of gift as evidence. The deed of gift, however, would not have been necessarily null and void, because it was not registered, though plaintiff could not have made use of it in the suit for want of registration.

As to possession, the finding of the lower appellate Court appears to be apposed to all the evidence in, and circumstances of, the case: all that the donor could do, he did. To show what he intended by the deed, which he himself signed, to divest himself of the property, he gave it over to the adopted son, who took one-third of the property included in the deed, for the purpose of having it registered. He desired to be examined by commission, in order that he might publicly avow and verify it. The parties interested in the deed were his adopted son and daughters, and so far as he could does the donor relinquished the property, and vested it in the donees, and its registration shows that the donees accepted their shares of the property,—See Ganendra Mohen Togore v. Upendra Mohan Tagore (1) and Tara Chand v. Gulab Gir (2). The lower appellate Court has assigned no reason for disbelieving the evidence of the witnesses, and its argument, that the payment annually of Rs. 40 or Rs. 50 by Naunidh to the plaintiff is a proof that the deed of gift was not carried out, is manifestly opposed to all the facts of the case which cannot be disputed. As long as the plaintiff understood from the defendant's acts that he recognised her right and title under the deed of gift, she would be satisfied. When he ceased to acknowledge her right and interest in the property, she came into Court and did so within the time allowed by law. Now as to the appeal in regard to the business of the firm. It is urged that the first Court misconstrued the deed and that its terms do include this portion of the property. But we agree with the first Court that it does not do so. There was good reason why the father should make a provision for the women, though it does not follow that he should give them an interested in the firm, which he had carried on jointly with Ramkaran Das and Ram Prasad. The deed, we think, if it had intended to give them a share in the firm, would have expressed the intention as clearly as it refers to other property. We think, it unnecessary to remand to case to the lower appellate Court for any farther inquiry on this point. No advantage could be expected from our doing so, and appellant has asked us to construe the document, which we had done, with a result that is unfavourable to her and affirms the Subordinate Judge's view of it. We decree the appeal and reverse the decree of the lower appellate Court, so far as to restore the decree of Subordinate Judge, with’ costs in proportion to decree and dismissal.

Appeal allowe.