JUDGMENT
Ram Nandan Prasad, J.
1. All the five parties in this appeal (and in the suit) are brothers being the sons of late Shankar Sahu of village Ara, P.S. and P.O. Burmu, Dist. Ranchi. The appellant Harijiwan Sahu was defendant 1 in the suit while his three brothers respondents 1, 2 and 3, Jairam Sahu, Laxman Sahu and Ram Sewak Sahu were the plaintiffs. Jagdish Sahu, respondent 4 here was defendant 2 in the suit.
2. The three brothers respondents 1 to 3 brought this suit for realisation of a
sum of Rs. 12000/- (Rs. 4000/- being the share of each of them) on the basis of a ekrarnama deed (Ext. 2) dated 1-11-1964 which has been executed by the appellant. Admittedly the lands of Khata No. 14 of ullage Barey. P.S. Burmu which had been auction purchased as far back as 1937 in the name of Harijiwan Sahu, had been sold by registered sale deed dated 31-10-64 executed by him (Harijiwan Sahu) and all his brothers in favour of Bhuvneshwar Sahu and the consideration money received was Rs. 20,000/-.
3. The plaintiff’s case is that as the lands of khata No. 14 were the joint family property, all the five brothers had equal share in the consideration money and it agreed that this money will be invested to purchase a bus to be managed by defendant 1 and out of the profits, the instalments due towards the price of the bus should be paid up and thereafter each of the brothers should be paid their share Rs. 4000/- (four thounsand) by the defendant 1 and after this was done the bus would belong solely to Harijiwan Sahu. To this effect, the ekrarnama deed is said to have been executed by Harijiwan Sahu. According to the plaintitffs this sum of Rs. 20,000/- was utilized by Harijiwan Sahu to purchase Bus No. BRN 9318 and he had been plying the same and earning profits but even after all the instalment dues were paid up, Harijiwan Sahu neither paid Rs. 12,000/- (Rs. 4000/- share of each plaintiff) nor rendered any accounts of the profits of the bus hence they were compelled to file the suit. In the suit the plaintiffs (respondents 1 to 3) prayed that a decree for a sum of Rs. 12,000/- be passed against defendant 1 or in the alternative joint possession of the bus be made available to them and that a decree for rendition of accounts be also passed against defendant 1.
4. There is no dispute between the parties that the five sons of Shankar Sahu constituted a joint family along with their father and that the latter was the Karta of the joint family. It further appears that lands of Khata No. 14 of village Barey had been held by Shankar Sahu along with some of his nephews i.e. son of his brother who were his co-sharers in respect of this property but as the co-sharers of Shankar
Sahu neglected to contribute their shares in paying the rent of the lands of Khata No. 14, those lands were ultimately sold in execution of rent decree in which the Khata was purchased in 1937 in the name of Harijiwan Sahu who was a junior member of the joint family constituted by his father and mother himself, and his four brothers. According to the plaintiffs case although the auction purchase was in the name of defendant 1, actually the purchase had been made by joint family funds and the properly acquired in the auction sale i.e. lands of Khata No. 14 became the joint family property of Shankar Sahu and all his sons and was jointly managed by them. According to the plaintiffs their father died in February, 1946 but the five brothers continued to remain joint even thereafter but later there was separation among them and the joint status was terminated.
5. The suit was contested by defendant 1 that is the appellant Harijiwan Sahu. The other member Jagdish Sahu defendant 2 in the court below and respondent 4 in this appeal did not put any contest but filed written statement merely stating therein that he has been unnecessarily made a party in the suit and that so far as he is concerned the suit should be dismissed against him.
6. The case of Harijiwan Sahu in his written statement is that the auction purchase of Khata No. 14 was his separate and exclusive purchase by his own personal funds and as such other members of the joint family had nothing to do with the same and so the plaintiffs or the other member Jagdish Sahu cannot claim any share in the sale proceeds of the lands of Khata No. 14. He also denied that he had executed any ekrarnama deed dated 1-11 -1964. His case in this regard is that differences had cropped among the family members and there was talk of partition of the joint family property by appointing a Punch and in this connection while he was hurriedly leaving Ranchi for some urgent work he gave his signature on a blank stamp paper on the understanding that it was meant for appointment of Ranch. By practicing fraud this was converted into the alleged ekrarnama deed behind his back and that he
had never agreed to the terms mentioned therein. His further case in the written statement is that no bus was ever purchased by him nor he carried on any such business and that the bus described in the schedule of the plaint was purchased by Agarwal Bus Transport, whose proprietors are Radha Kant Agarwal, son of Lakhan Lal Agarwal and Agarwal Yugal Kishore Prasad and the bus belongs to them and he (Harijiwan Sahu) is merely an employee of these persons and looking after the bus business. Harijiwan Sahu further took the plea that even if the sale proceeds of Khata No. 14 be regarded as jointly belonging to the five brothers, then it should be treated as part of the joint family assets and as such the proper course for the plaintiffs is to file a general suit for partition of all the joint family properties including this sum of Rs. 20,000/-and that the present suit for the division of Rs. 20,000/- only is in effect a suit for partial partition and hence not maintainable.
7. The court below found that all the five brothers were entitled to equal share in the sale proceeds amounts to Rs. 20,000/- and it also found that the ekrarnama deed was a valid document and had been executed by defendant 1. It however found that no bus appears to have been purchased by Harijiwari Sahu with the money in question and it accepted the defendant’s case that the bus in question (BRN 9318) belonged to Agarwal Bus Transport, and therefore, it negatived the claim of the plaintiffs regarding rendition of accounts/The suit was decreed in favour of the plaintiffs against Harijiwan Sahu for Rs. 12,000/-. Hence this appeal by Harijiwan Sahu.
8. As regards the father Shankar Sahu, the plaintiff’s case is that he died in 1946 but according to Harijiwan Sahu he died some time in 1943-44. However, this difference in time is not at all material for the present case. It may also be noted that it is the admitted case of the parties that Shankar Sahu had two wives arid Jai Ram Sahu and Lakshman Sahu plaintiffs 1 and 2 were born through one wife and plaintiffs 3 & the two defendants Harijiwan & Jagdish were born from the other wife.
9. Before proceeding to discuss the merits of the appeal, it is necessary to mention that the plaintiffs have claimed that along with the plaint they had filed the original ekrarnarna deed but the same got lost from the custody of the court and when it was not traced out they filed a petition for leading secondary evidence which was allowed and thereupon they filed a true copy of the said Ekrarnama deed which was taken by the court as secondary evidence and marked as Ext. 2.
10. The points which have been raised on behalf of the appellant at the time of hearing the appeal are the following : —
(i) It has not been satisfactorily established that the plaintiffs had actually filed the original Ekrarnama deed along with the plaint and that the deed was lost from the custody of the court and in absence of the same the taking of secondary evidence was illegal and unjustified and the bar of Section 91 of the Evidence Act will operate.
(ii) The original Ekrarnama deed was either unstamped or not properly stamped and in view of Section 35 of the Stamp Act such a document would not be acceptable. If the original deed was not admissible under Section 35 of the Stamp Act, its copy cannot be taken as secondary evidence.
(iii) The preconditions for taking of secondary evidence as laid down under Sections 63, 65 and 67 of the Evidence Act have not been fulfilled and therefore, the document Ext. 2 has been illegally admitted as secondary evidence.
(iv) The auction purchase of Khata No. 14 was made by Harijiwan with his personal fund and was his exclusive property. However, even if it be accepted that the sum of Rs. 20,000/- obtained by sale of the lands of Khata No. 14 was the joint property of all the five brothers, it was part of the hotchpot of the coparcenary and therefore the present suit must be regarded as suit for partial partition and not maintainable on that ground.
11. The stipulation in the ekrarnama deed (Ext. 2) is that any suit for recovery of
the share of the plaintiffs has to be filed within three years of the date of execution namely within three years of 1-11-1964. The present suit was filed on 9-11-1967. It was therefore contended that the suit was barred by limitation. The learned lawyer for the appellant however conceded this point at the time 6f hearing of this appeal when he was shown the calendar for the year 1967. This Calendar shows that Puja vacation of the Civil Court was from 2nd October to 8th November, and that 9th November was the first working day. On the reopening of the courts after the vacation, the suit was filed on the reopening day, so obviously there could be no question of any limitation in respect of the same and the learned lawyer of the appellant did not press this point.
12. I will now proceed to consider the poinsts raised on behalf of the appellant.
13. The fact that the plaintiff had filed the original ekrarnama deed along with the plaint and that the deed was lost from the custody of the court was challenged by merely giving a suggesation to the plaintiff Jairam Sahu who deposed as P.W.7. His specific evidence is that the orginal agreement was filed in the court of the Special Sub-Judge along with the plaint and that this original agreement has been lost from the custody of the court and when it could not be traced out in spite of search then the true copy (Ext. 2) of the ekrarnama deed was filed. It was suggested to this witness in course of cross-examination that the agreement was not filed in court and P.W. 7 denied the suggestion. The defendant Harijiwan Sahu deposed as D.W. 14. He has not given any specific evidence to the effect that the original ekrarnama had not been filed in court along with the plaint. Thus the mere giving of suggestion which has been denied is of no avail to the defendant appellant. Indeed in normal course he would not have been allowed to raise this point at the appellate stage; but it was urged on behalf of the appellant that unless the filing of the original document and its loss from the custody of the court is established by satisfactory evidence, the taking in of secondary evidence by way of its alleged true copy would be against law.
The materials on record however leave no room for doubt that this point raised by the appellant has no substance at all. It has already been indicated above that the plaintiff has given positive evidence that the original ekrarnama deed had been filed along with the plaint and that it got lost from custody of the court. There is no cogent evidence from the side of the defendant to meet this assertion. On the other hand the order sheet of the court below clearly supports the plaintiff’s assertion. The order sheet dated 20-2-1973 mentions that the plaintiff’s lawyer drew the attention of the court that the document bearing pages 2 to 4 was not with the record and the court then directed the office to search out the same at once. The original deed does not appear to have been traced out and as such the order sheet dated 14-6-1973 mentions that true copy being the exact of the original agreement is marked X for identification. The court below has also dealt with on this point and made the following observations in paragraph 18 of its judgment : —
“The original agreement deed could not be proved before this court because the same has been lost from the custody of the court. The record of the case shows that the document in question had been filed in the court of Spl. Sub-Judge, Ranchi but this could not be traced out. This is also the evidence of P.W. 7 and on a petition made by the plaintiff for the loss of the original, an opportunity has been given to the plaintiffs to adduce secondary evidence and by the secondary evidence Ext. 2 has been proved to have been executed by defendant 1 with full knowledge.”
In view of the above the appellant’s contention that filing of the original ekrarnama deed and its loss from the custody of the court has not been satisfactorily established, must be rejected. Since the original ekrarnama deed was lost from the custody of the court and for no fault of the plaintiff the taking of secondary evidence by the court below is fully covered by the Clause (c) of Section 65 of the Indian Evidence Act. There is, therefore, no merit in the contention of the appellant that the taking of
secondary evidence was unjustified and illegal. This contention, therefore must be
rejected.
14. It is significant to note that it was never the case of the defendant appellant that the document in question (original ekrarnama deed) was unstamped. In paragraph 5 of his written statement the plea is that the document is not properly stamped. In his evidence also the defendant has stated that he had signed on a stamped blank paper and made it over to the plaintiffs and his case is that this was converted into the alleged ekrarnama deed. As such, the plea taken here that the original ekrarnama deed was unstamped is contradicted by the defendant’s own case and evidence.
15. As regards insufficiency of the stamp, though the defendant took this plea in his written statement, but he does not appear to have taken a stand in this regard and press the point. Had he done so, it is natural to think that the court would have framed a specific issue on this point. No such issue was framed by the trial court. Moreover, if a document is found to be insufficiently stamped, and this is pointed out to the court, the normal procedure is to impound the document and ask the party concerned to pay the deficit stamp along with the penalty. So had the defendant really raised this point and drawn the attention of the court, the normal procedure would have been followed. Further, since the orginal ekrarnama deed, which was admittedly unstamped paper, is not before us due to its loss from the custody of the court, it will be totally unjustifed to assume that it was not properly stamped. On the other hand the fact that no issue on the point was raised and the defendant does not appear to have taken a positive stand in this regard which would have led the court below to impound the document, the presumption if any would be that the document in question did not appear to be improperly stamped, In this view of the matter, Section 35 of the Stampt Act has no application and there is no substance in the contention of the appellant that the original document suffered any legal disability under Section 35 of the Stamp Act or any
other provision of the same. It follows, therefore, that there was no impediment in the taking of secondary evidence as the condition laid in Clause (c) of Section 65 had been satisfied as indicated above.
16. Since the original ekrarnama deed was lost from the custody of the court, the plaintiffs filed Ext. 2 claiming that it was a true and exact copy of the original. Section 65 of the Evidence Act enumerates the conditions under which secondary evidence relating to documents may be given. 1 have already indicated above that the loss of the original from the custody of the court for which the plaintiffs could not be faulted, fulfills the requirement of Clause (c) of Section 63 of the Evidence Act, as such the permission to adduce secondary evidence was rightly and validly given by the court below to the plaintiffs. It was then argued that even though the precondition for taking of secondary evidence may be held to be fulfilled under Clause (c) of Section 65 of the Evidence Act, still the court below had to see whether the requirements laid down under Section 63 and Section 67 of the Evidence Act were fulfilled or not before admitting Ext. 2 as secondary evidence. The plaintiff’s case is that Ext. 2 was copied out from the original and is its exact copy and as such it is valid and proper secondary evidence under Clause (3) of Section 63 of the Evidence Act.
17. We may now look to the evidence to see how far the plaintiff’s contention has been substantiated. The plaintiff Jairam Sahu deposing as P.W. 7 has stated that the sum of Rs. 20,000/- (obtained from selling the Barey lands) was given to Harijiwan Sahu for purchase of a bus and Harijiwan Sahu executed an agreement in favour of the four brothers regarding this amount. He has further said that the original agreement deed was scribed in his presence by one Ramchandra Munshi on the say of Harijiwan and the agreement was read over and explained to Harijiwan Sahu who acknowledge the same as being correct and put his signature over it in presence of the plaintiff (P.W. 7). The witness has further stated that Birbal Sah. Bahnoi of Harijiwan Sahu had attested the original document as a
witness and that the plaintiff had summoned the said Birbal Sah who at first agreed to come to court to give evidence but subsequently he has refused to do so. This evidence of P.W. 7 is sufficient to prove the scribing of the original ekrarnama deed and its execution by the defendant Harijiwan Sahu. His evidence gets full support from P.W. 5, Gokula Nand Sahay who is a resident of Ranchi. His clear evidence is that in his presence the original agreement was scribed and executed at the house of Ramchandra Munshi. He has stated that Ramchandra Munshi scribed the original document on the say (statement) of Harijiwan Sahu and the document had been read over and explained to him and he put his signature on the document in his (P.W. 5) presence. Thus the legal requirement for proving the scribing and execution of the original document is fulfilled by the evidence of P.Ws. 5 and 7. It was urged that Ram Chandra Munshi though alive has not been examined. Of course, if Ramchandra Munshi had been brought to the witness box it would have been much better but if it has not been done it does not mean that the evidence of P.Ws. 5 and 7 lose their credibility or become insufficient to prove the scribing and execution.
18. The defendant Harijiwan Sahu accepts that he had put his signature on a stamped paper but his plea is that as there was talk of partition a document of Panchayati was to be prepared and it is only for this purpose that he put his signature on a blank stamp paper as he had to leave Ranchi in hurry for going to see his ailing daughter. The plaintiff has of course denied that there was any talk of Panchayati. The defendant has examined some witnesses to support his plea that he had signed on blank stamped paper. The learned trial court has dealt with the evidence on this point in detail and there is no need to make repetition of the name. There is nothing to show that there was any compelling circumstantce for the defendant to put his signature on a blank paper even if it was to be used for preparing a Panchanama. Even accepting that there was urgency for him to go to see his ailing daughter, he need not have put his signature on a blank paper
and he could have signed the document after coming back from his daughter’s place and after seeing the contents of the document. Further the defendant D.W. 14 himself admitted that no Panchnama documment was prepared. He has also stated that after he returned from his daughter’s place he asked from his brothers about the stamped paper but they did not give him any reply in respect of the same. Had it been so, the defendant was not expected to keep silent and not question about the paper on which he claims to have put his signature. The defendant according to his own assertion had been doing business of various kinds and was thus an experienced man in worldly affairs, under such circumstance it is not possible to believe that he had put his signature on blank paper and thereafter become totally unmindful of the same and not effectively tried to know what had happened with such paper. The court below has, therefore, rightly come to the conclusion that the defendants story of having put his signature on blank paper is not worthy of belief. I am in full agreement with the learned trial court on this point. In this context, it is significant to note that Harijiwan Sahu’s own brothers are not supporting his case. His brother Jagdish Sahu who has figured as defendant along with him, did not deny the plaintiff’s case that Harijiwan Sahu had been given the consideration money of Rs. 20,000/- (obtained from sale to Bhuvneshwar) and that Harijiwan Sahu executed the ekrarnama deed in respect of ‘the same. Jagdish Sahu in his written statement thus impliedly accepted the plaintiff’s case but merely stated that he had been unnecessarily made a party because the relief claimed by the plaintiffs was only against defendant 1 likewise Harijiwan Sahu’s own brother Ramsewak Sahu joined in the suit with his step brother plaintiffs 1 and 2 and he too has demanded his share to the extent of Rs. 4000/- out of the sale proceed of Rs. 20,000/-. It is not the case of Harijiwan Sahu that he has any dispute with his own brothers or that they have any motive to side with the plaintiff. This is a strong circumstance which supports the plaintiff’s case that the ekrarnama deed is a valid document and had been duly executed by
Harijiwan Sahu. It thus follows that there is no doubt, that the original deed of ekrarnama had been duly executed by the defendant Harijiwan Sahu with full knowledge and. I hold accordingly.
19. On the basis of the evidence it has been established that the original document was a genuine and legally valid document hence the only point is to be examined here is whether Ext. 2 is a true copy of the original so as to satisfy the criteria of being proper secondary evidence of the orginal.
20. The plaintiff P.W. 7 has stated that at the time of filing of the suit one Deoki Munshi prepared the copy from the orginal agreement and this copy was a true copy of the original which he had personally read. Since the plaintiffs were to file the original along with the plaint, it was only natural for them to get a copy of the same prepared for being kept with them for reference. P.W. 7 has further stated that Deoki Babu prepared the copy from the original agreement in presence of the three plaintiffs. Thus P.W. 7 was an eye witness of the preparation of the copy from the original deed which he had himself read. I have already referred earlier to the evidence of P.W. 5. He does not seem to have any special connection with either party so as to have any motive for giving false evidence. He appears to be an independant witness. He says that he had worked with Deoki Munshi for about 15 years and got many documents scribed by him and in this connection he often used to go to his house. He has stated specifically that the true copy (X for identification which was subsequently marked Ext. 2) was scribed out from the original in his presence, and he has identified the writing of Deoki Munshi on Ext. 2. He has asserted that the copy which was prepared was a true copy of the original. Obviously when a copy is being prepared the only normal thing would be to prepare a true copy. This is also the evidence. This witness on being cross-examined stated that after seeing the document filed in court he was able to identify that it is in the writing of Deoki Babu and this was prepared from the original. On being further cross-examined P.W. 5 stated that he could not say if any
thing had been added or left out in the copy from the original. Obviously, this witness, or any other witness or any person, is not expected to remember each and every word or sentence of the original and it is in this context that the witness made the above statement in cross-examination. This statement therefore does not in any way deminish the credibility of his evidence which is to the effect that in his presence the copy was prepared by Deoki Babu from the original and that it is a true copy. P.W. 6 has also stated that the document Ext. 2 is in the writing of Deoki Babu and it was prepared in his presence. The evidence shows that Deoki Babu is dead and this has not been challenged.
21. The evidence of P.Ws. 5, 6 and 7 as discussed above, clearly establishes that Ext. 2 was copied out from the original deed of ekrarnama and that it is a true copy of the same. That being so, Ext. 2 clearly satisfies the criteria laid down in Clause (3) of Section 63 of the Evidence Act. Section 63 states that secondary evidence means and includes : —
(i) — (ii)…..
(iii) Copies made from or compared with the original.
(iv) — (v) …..
It was urged on behalf of the appellant that although the plaintiffs witnesses have stated that Ext. 2 was copied out from the original, none of them has specifically said that it was compared with the original and as such the criteria laid down in Sub-section (3) of Section 63 is not fulfilled. It was also urged that the writings and signatures of Ext. 2 was not properly proved and as such the requirement of Section 67 had not been fulfilled. Since Ext. 2 is a copy of the original, there can be no question of proving any signatures because the signatures appearing on the orginal deed have also been copied out in Ext. 2. What was required to be proved in respect of Ext. 2 is as to in whose writing it is, and this has been fully and satisfactorily done by the evidence of the plaintiffs as already indicated above. In my opinion, therefore, there is no substance in the contention of the appellant that the document Ext. 2 has not been properly
proved to satisfy the requirement of Section 63 and Section 67 of the Evidence Act. Sub-section (3) of Section 63 prescribes two alternatives. First that it may be a copy made from the original and, or second that it must be a copy compared with the original. If either of these two. requirements had been satisfied then the: document would be a proper and valid secondary evidence. Sub-section (3) of Section 63 does not require that it must be proved that the copies were made from the original as well as compared with the original. Since the evidence on record, as discussed above, clearly shows that Ext. 2 was made from the original and the witnesses have also stated that it is a true copy, the legal requirement has been fulfilled and though evidence about comparison is lacking this will not affect the legal validity of Ext. 2 as secondary evidence of the original ekrarnama deed.
22. The appellant placed reliance on the case reported in AIR 1950 All 696 and has urged that for a document to be regarded as secondary evidence it has to be proved that the copy was prepared by a uniform process (such as a carbon process) or it was compared with the original by some witness. That observation was made by their Lordships in the context of the facts of that case. The document taken as secondary evidence in that case was Ext. 26 which was a typed letter. It was the office copy of the original typed letter which had been sent to the persons concerned. It appears that there were some endorsements on this letter in the handwriting of some person and it also showed that some enclosures were sent along with the original. Since the original letter was not forthcoming, its office copy Ext. 26 had been produced by way of secondary evidence. The only evidence put forward before the court was that the letter Ext. 26 bore signature of us sender (i.e. one Mr. Bhairo Prasad). No further evidence was forthcoming in regard to this document. Their Lordships observed that “the enclosures are not proved nor there is anything to show that (Ext. 26 is the office copy of the original letter)”. Under this circumstance their Lordships made the observation that the evidence adduced falls far short of proving the contents of the
original of Ext. 26 and mere proof of the signature of Mr. Bhairo Prasad cannot amount to proof of the contents of the original. Since Ext. 26 was a typed letter, their Eordships in the context of this fact and the circumstances of the case observed as follows : —
“There is nothing to show that Ext. 26 was the result of a uniform process, namely, typing with the aid of the carbon paper and there is certainly no evidence to show that it was compared with the original. After all. Ext. 26 is no more than secondary evidence of the contents of the original and in order to show that it is an exact copy of the original, it is necessary to prove that either it was prepared by a uniform process or it is compared with the original by some witness. who can give evidence to that effect”.
The position in the present case is quite different. Ext. 2 is not a typed document and as such the question of being prepared in the same process does not arise. As already indicated above there is clear and positive evidence of the witnesses to show that Ext. 2 was copied out from the original by Deoki Munshi in their presence and they have also asserted that it is true copy. This evidence, therefore, is sufficient to show that the document Ext. 2 was a true copy of the original. In conclusion, therefore, 1 find that the requirement of Sections 63, 65 and 67 relating to secondary evidence has been fulfilled in respect of Ext. 2. I, therefore, hold that Ext. 2 has been legally and validly admitted as secondary evidence and must be treated as such.
23. The learned trial court has discussed at length the evidence on the point whether the lands of Khata No. 14 were joint family property of Shankar Sahu and his five sons or whether it was a personal acquisition of Harijiwan Sahu and it has come to the conclusion that the defendants ease of personal acquisition is not correct. At the time of hearing of this appeal, this question was faintly raised but when the learned counsel for the appellant was confronted with overwhelming evidence and the circumstances on which the finding of the trial court are based, he concentrated his
argument on the point that even if the sum of Rs. 20,000/- be regarded as joint family property, the present suit should be held to be one for partial partition and hence not maintainable. There is sufficient and satisfactory evidence from the side of the plaintiffs to show that the acquisition of the lands of Khata No. 14 of village Barey in the auction purchase, though in the name of Harijiwan Sahu was actually made with joint family fund and was the property of the joint family consisting of Shankar Sah and his five brothers. We have the evidence of P.Ws. 3, 4 and 7 on this point. P.W. 3 is Sarhu of Jairam who is P.W. 7. Bhikhan Sah P.VV. 4 has said that he on behalf of the joint family used to go to village Barey to get the produce of the lands harvested and brought the same to village Arra where Shankar Sah and his sons have been living. He has said that the paddy and the produce used to be divided in equal shares in his presence among the five brothers. He has given the details of the lands of Shankar Sah and his sons in the different villages and has also staled that he used to Work for the family. His clear and positive evidence is that on the requests of the sons of Shankar Sah he used to go to Barey for getting the paddy harvested and they used to meet the expenses of his stay there. He has also given the names of the servant whom he employed for harvesting the crop. The defendant has not challenged the claim of P.W. 4 that the had been employed by Shankar Sah and his sons who go and get the produce of the lands of Khata No. 14 in the village Barey managed and harvested. There is, therefore, no reason for not accepting the evidence of P.W. 4. The defendant D.W. 14 and some of the witnesses namely D.Ws. 3, 5, 6, 7, 8 and 10 have come to say that the Barey lands belonged only to the defendant Harijiwan Sahu. They however, could not withstand the test of cross-examination. D.W. 5 is a resident of village Chakma and he admits that he had no lands in village Barey. When he was asked whether he knew about any other land of Barey he answered in the negative and thus clearly exposed himself that he has come to give tutored evidence. D.W. 6 admitted in cross-examination that so long Shankar Sah was alive he used to get
the lands of Barey cultivated and similar is the evidence of D.W. 7. He has said that he has seen the father of Harijiwan Sahu at Barey and he used to get the suit land cultivated. Thus both of them discredit the defendant’s case that he held the land separately as his exclusive property. Similar is the position of D.W. 10. In his examination in chief he like a tutored witness asserted that barey lands belonged to Harijiwan Sahu who had been doing his personal business since the last forty years. But in cross-examination he has slated that he was unable to say if the properties of Harijiwan Sahu were separate from his father. The claim of Harijiwan Sahu that he had separate business at the lime of auction purchase in 1937 lacks substance on the very face of it he has admitted that at the time of the auction purchase he was aged about 16 years or 18 years. He, however, claims that he used to do personal business by purchasing grains from Hatia and selling them to Goldar. His own evidence as well as the evidence of plaintiff and other witness goes to show that Shankar Sah had Zamindari in several villages and also enough cultivation which indicates that it was a well-to-do family. Under these circumstances it is difficult to believe that a young boy of 16 or 18 years of the family will be doing business of purchasing grains in the Hatia and selling them to Goldar’s. The trial court has rightly observed that no paper of whatsoever of such business was produced and further no said Goldar was brought to the witness box to support the defendant’s case. On the contrary the defendant’s own case is, and that is also his evidence, that all the ancestral properties are still joint. In that context, it is difficult to believe that the joint family would auction purchase the land of Khata No. 14 in 1937 as a separate property of Harijiwan Sahu. The evidence shows that it was purchased from joint family funds and was under joint cultivation. The most important circumstance to show that the land of Khata No. 14 was jointly owned by all the five brothers, is the fact that the purchase Bhuvnesh war Sahu who is the own Samdhi of defendant Harijiwan Sahu, got the sale deed executed by all the five brothers. Had it been the separate and exclusive property of
Harijiwan Sahu alone what was the necessity for the other four brothers to also execute the sale deed ? I, therefore, have no difficulty in holding that the learned trial court has rightly come to the conculsion that the lands of Khata No. 14 acquired in by the auction purchase were the lands of the joint family and not the separate and exclusive property of Harijiwan Sahu.
24. When the lands of Khata No. 14 were sold to Bhuvneshwar Sahu. obviously all the five brothers had equal share in the sale price. This was definitely acknowledged by executing the ekrarnama deed which, as held above, was a valid document. There can be no basis, therefore, for Harijiwan Sahu to resist the claim of the plaintiffs in getting their own share of Rs. 4000/- each. To this end the suit has been filed. The appellant’s contention that since the brothers had remained joint, the sale price of Rs. 20,000/-received as consideration money became part of the joint family property and hence a suit for distribution of this sum alone must be regarded as a suit for partial partition, is untenable. The defendant has himself admitted that as regards the property of the joint family a partition suit was filed soon after the present suit and that partition suit is still pending. The present suit is not a suit for partition of the joint family property but is a suit based on contract amongst the five brothers as evidenced by the ekrarnama deed Ext. 2.
25. There is nothing in Hindu Law which prevents the members of joint family from entering into an agreement in respect of certain assets and provide that it should be distributed amongst the co-sharers in a specified manner. As such a contract is not prohibited by law and is, therefore a valid contract. In such a position, if there is breach of contract by any of the parties, the others have valid and legal right to enforce the terms of the contract through the legal process, Such is the position in the present case.
26. In the present case the sum of Rs. 20,000/- was obtained as sale price of the joint family land of Khata No. 14. Even if this
sum of money be regarded as joint family
fund included in the hotch-pot, still it is open to the members of the joint family to enter into an agreement to make a division and severance of interest in respect of this part of the joint family fund. This principle was laid down more than a century ago in (1866) 11 Moo Ind App 75 (PC), Appovier v. Rama Subba lyer and it was again reiterated and reaffirmed in the case reported in AIR 1922 PC 201, Ramalinga Annavi v. Marayana Annavi. In that case the members of the joint family had been carrying on a money lending business. It was found that in 1895 a large sum of money being outstanding dues to the family from the money lending business had been distributed amongst the different co-sharers. Whether such a distribution was valid or not was one of the points for consideration before the Privy Council While dealing with this point Their Lordships of the Privy Council first referred to the observations made in (1866) 11 Moo Ind App 75 and quoted the following passage therefrom : —
“But when members of an undivided family agree among themselves with regard to particular property, that it shall thenceforth be the subject of ownership, in certain defined shares, then the character of undivided property and joint enjoyment is taken away from the subject-matter so agreed to be dealt with; and in the estate each agreed member has thenceforth a definite and certain share, which he may claim the right to receive and to enjoy in severally, although the property itself has not been actually severed and divided”.
After quoting the above passage from the earlier decision, Their Lordships themselves made the following observation : —
“It will be thus seen that, under the Hindu Law, it is open to the member of a joint family to make a division and severence of interest in respect of a part of the joint estate whilst retaining their status as a joint family and holding the rest as the properties of a joint undivided family”.
Thus in the light of the above decision of the Privy Council, the point raised by the appellant obviously lacks substance. Even
regarding the sum of Rs. 20,000/- as part of the joint family fund, the parties were fully entitled to enter into an agreement to divide this part of the joint family asset while leaving the remaining assets joint. If any party put hurdle in enforcing the agreement there is no reason ‘why the other’ affected brothers cannot enforce their right under the agreement by means of a suit. There is therefore, no merit in the submission of the appellant that the present suit should be held as not maintainable on the ground that it is a suit for partial partition.
27. In view of the above discussion none of the points raised op behalf of the appellant
is sustainable.
28. In conclusion, I find that the suit has been rightly decreed by the trial court. It is really surprising why it did not award any interest or any costs. As I find no merit in this appeal the same is dismissed with costs throughout. In order to stop the appellant from adopting further dilatory tactics, I also allow interest on the decreetal amount @6% per annum from the date of the appellate decree.