http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 1 of 24  

PETITIONER: MST.  RUKHMABAI

       Vs.

RESPONDENT: LALA LAXMINARAYAN AND OTHERS

DATE OF JUDGMENT: 17/11/1959

BENCH: SUBBARAO, K. BENCH: SUBBARAO, K. GAJENDRAGADKAR, P.B. SHAH, J.C.

CITATION:  1960 AIR  335            1960 SCR  (2) 253  CITATOR INFO :  R          1966 SC 470  (13)  RF         1967 SC  96  (26)

ACT: Hindu   Law-joint  family-Partition-Admissions  of   members accepting Partition, value of-New point-When can be  allowed to be raised-Suit for declaration of deed as sham- -Right to sue,  when accrues-Limitation-Specific Relief Act, 1877,  (1 of  1877),  s. 42-Indian Limitation Act,1908 (IX  of  1908), Sch. 1, art. 120.

HEADNOTE: A  joint  Hindu  family which  was  heavily  indebted  owned extensive properties and business.  In 1915 certain  members of   the  family  including  one  Govindprasad  executed   a registered  deed  of  relinquishment in  favour  of  another member.  The deed recited that the members of the family had become  separated in 1898 by a deed of relinquishment  which was  not  registered and so a fresh one was  being  executed confirming  the earlier arrangement.  On February 17,  1916, Govindprasad executed a trust deed in favour of two  minors, Chandanlal,  a son of one of his brothers and  Rukhmabai,  a daughter of another brother.  The trust was created in a sum of  Rs.  15,000 for constructing a building or  buying  land therewith  and  paying  the net income from it  to  the  two beneficiaries in equal shares.  With a part of this money  a site  was purchased and a building was constructed  thereon. On  October  25,  1929,  Rukhmabai  filed  a  suit   against Chandanlal for partition of the said property and obtained a decree.   When the Commissioner appointed by the Court  went to   effect  the  partition  on  February  13,   1937,   the respondent, who is a brother of Chandanlal, obstructed  him, and,  on October 8, 1940, he filed a suit for a  declaration that  the  trust deed executed by Govindprasad  was  a  sham document  and that the property was joint  family  property. Apart  from  oral  and documentary  evidence  the  appellant relied  also upon certain admissions made by members of  the family  accepting  the partition.  The Court  dismissed  the suit holding that Govindprasad had become separated in 1898, that the trust deed was genuine and that the trust money was his  self-acquired property.  In the appeal before the  High

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 2 of 24  

Court by the respondent the appellant raised two new  pleas, namely, (i) that the suit for a mere declaration was  barred by  s. 42 of the Specific Relief Act and (ii) that the  suit was barred by limitation under art. 12 of the Limitation Act as it was not filed within six years of the knowledge of the respondent  of  the fraudulent nature  of  the  transactions which  he  had  in  1917, or at  least  in  1929,  when  the appellant  filed  her suit for partition.   The  High  Court rejected  both these contentions, held that the  two  relin- quishment  deeds and the deed of trust were  sham  documents and set aside the decree of the trial court and decreed the 33 254 respondent’s suit.  The appellant obtained a certificate and appealed. Held,  that the documents in question were  sham  documents, that the property in suit was joint family property and that the suit had been rightly decreed. The admissions made by one or other members of the family to meet  particular contingencies or to get an  advantage  were not  of much value in determining the question whether  some of  the  members of the joint Hindu  family  had  separated. Persons   sometimes  made  statements  which  served   their purpose, or proceeded upon ignorance of the true position  ; and  it was not their statements but their  relations,  with the  estate,  which should be taken  into  consideration  in determining the issue. Alluri Venkatapathi Raju v. Dantuluri Venkatanarasimha Raju, (1935-36) L.R. 63 I.A. 397, relied on. The  new  point raised by the appellant that  the  suit  was barred  by  s- 42 of the Specific Relief Act  could  not  be allowed  to  be  raised as it was not raised  in  the  trial Court.   If the point had been raised at the earliest  stage the respondent could have asked for the necessary  amendment to  comply  with  the provisions of S. 42-  It  was  a  well settled rule of practice not to dismiss suits  automatically but  to allow the plaintiff to make the necessary  amendment if  he  sought to do so.  But the new  point  of  limitation could  be allowed to be raised in appeal as even if  it  had been  raised at the earliest stage the respondent could  not have pleaded or proved any new facts to meet the point. The  suit  was not barred by limitation.  The right  to  sue under  art.  120  of the Limitation  Act  accrued  when  the defendant  clearly and unequivocally threatened to  infringe the right asserted by the plaintiff.  Every threat to such a right  was not a clear and unequivocal threat as  to  compel the  plaintiff to file a suit.  The execution of  the  Trust deed  in  1916  and the construction of the  house  did  not constitute  any  invasion of the respondent’s right  as  the deed  was  a sham document executed for the benefit  of  the family.   Till  1926 the respondent’s father  lived  in  the house and since 1936 the respondent had been residing in the house.  The decree in the suit filed by Rukhmabai could  not bind  him  or  affect  his possession  of  the  house.   The respondent’s  right was not effectively threatened till  the commissioner came to partition the property on February  17, 1937,  and  the suit was filed within six  years  from  that date. Bolo  v.  Koklan,  (1929-30) L.R.  57  I.A.  325,  Annamalai Chettiar v. A.M.K.C.T. Muthukaruppan Chettiar, (1930) I.L.R. 8 Rang. 645, Govinda Narayan Singh v. Sham Lal Singh, (1930- 31)  L.R. 58 I.A. 125 and Pothukutchi Appa Rao v.  Secretary of State, A.I.R. 1938 Mad. 193, relied on.

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 3 of 24  

JUDGMENT: CIVIL APPELLATE JURISDICTIoN: Civil Appeal No, 173 of 1955, 255 Appeal from the judgment and decree dated September 9, 1949, of  the former Nagpur High Court, in first appeal No. 45  of 1944, arising out of the judgment and decree dated April 24, 1944,  of  the First Additional District Judge,  Nagpur,  in Civil Suit No. 12A of 1940. W.   S. Barlingay, Shankar Anand and A. G. Ratna parkhi, for the appellant. A.   V.  Viswanatha Sastri, R. K. Monohar, S. N. Andley,  J. B. Dadachanji and Rameshwar Nath, for the respondents. 1959.  November 17.  The Judgment of the Court was delivered by SUBBA RAO J.-This appeal by certificate is directed  against the  decree  and  judgment  of the  High  Court  at  Nagpur, reversing  those  of the First  Additional  District  Judge, Nagpur,  in  Civil  Suit  No. 12-A of  1940.   It  would  be convenient  at  the outset to give the  following  genealogy which  would  help  to understood  the  contentions  of  the parties. (The geneology is given on the next page). 256                              Ramesahai                              (d. 1897)                                  |                            Ganesh Parsad                               (d. 1928)                                  |                            Daughter  Mst.                               Rukhmahai                                  ==                            Lala Sheoshankar                             (defendant 1)                              Ramesahai                              (d. 1897)                                  |                            Ajodhya parsad                               (d. 1912)                         Adopted son Chandanlal                             (d. 31-1-1940)                                  ==                              Window Mst.                             Annapurnabai                             (defandant 2)                               Ramasahai                                (d.1897)                                   |                              Janki parsad                                (d. 1923)                                   |   ---------------------------------------------------------        |                          |                  |   Ramprasad                   daughter         Ganga prasad   (defendant 1)               Saroobai        (defandant 5)                                 ==                            Lala Sunderlal                               Ramasahai                               (d. 1897)                                  |                            Govind prasad                               (d. 1923)                         adopted son Kisanlal                             (defendant 8)

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 4 of 24  

                             Ramasahai                               (d. 1897)                                   |                               Ratanlal                               (d. 1926)                                   |  ----------------------------------------------------------       |                           |                     |  LAXMINARAYAN                Chandanlal            Kisanlal  (plaintiff)       (adopted to Ajodhya prasad)  (adopted to                                              Govind prasad)                               Ramasahai                               (d. 1897)                                   |                             Mangal prasad                               (d. 1914)                                   |                                Ghasiram                                (d. 1917)                               Ramasahai                               (d. 1897)                                   |                              Sarjoo prasad                                (d. 1903)                                   |                          adopted son Tulsiram                             (defendant 3)                                Ramasahai                                (d. 1897)                                   |                                Ramchand                             (d. 5-10-1950)                                   |  ----------------------------------------------------------      |              |             |                |  Tulsiram       Sheonarayan    Harnarayan     Kamal Narayan  (adopted to   (defendant 6)  (defendant 7)      (d. 1924)  Sarjoo prasad                               Ramasahai                               (d. 1897)                                   |                            Daughter Tarabai                                  ==                            Lala Chhotelal 257 During the life time of Ramasahai, he and his eight sons and one  cousin,  namely,  Sitaram, constituted  a  joint  Hindu family  with  Ramasahai  as its managers  The  joint  family carried on its ancestral family business of excise contracts in several districts in the former C. P. & Berar  provinces. On January 24, 1897, Ramasahai died and, at the time of  his death,  the family, though heavily indebted,  had  extensive properties  distributed  at  various  places  like   Nagpur, Kamptee  Rajnandgaon,  Raipur, Jabalpur  etc.   Sarjooprasad died in 1903, Ajodhya prasad in 1912, Mangalprasad in  1914, Jankiprasad in 1923, Ratanlal in 1926, Ganeshprasad in 1928, Govindprasad in 1934, and Ramchand in 1940.  On February 27, 1915, Ganeshprasad, Jankiprasad, Govindprasad, Ratanlal  and Ramchand, the surviving brothers executed a registered  deed of  relinquishment  in  favour  of  Jankiprasad.   In   that document  it  was  recited  that  the  brothers  had  become separated  on January 24, 1898, by a deed of  relinquishment of  that  date  and  that, as  the  said  document  was  not registered,  they were executing a fresh one confirming  the earlier  arrangement.   On February 17,  1916,  Govindprasad

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 5 of 24  

executed  a trust deed in favour of his nephew,  Chandanlal, the  son  of  his deceased brother  Ajodhyaprasad,  and  his niece, Rukhmabai, the daughter of his brother  Ganeshprasad, both  of  whom  were  minors at that  time.   In  that  deed Govindprasad,  after  asserting that he had  become  divided from   his  brothers  under  the  aforesaid  two  deeds   of relinquishment,  created a trust in a sum of Rs. 15,000  for the  benefit of the said minors, handed over the said  money to  the trustees appointed thereunder and. directed them  to construct  a building or buy a land and pay the  net  income from  the  said property in equal shares to  the  two  minor beneficiaries.   With  a  part of that  amount  a  site  was purchased  in Cotton Market, Nagpur, and between  the  years 1916  and  1921 a building was constructed thereon.   On  or about  October  25,  1929, Rukhmabai filed  a  suit  against Chandanlal for partition of the said property and obtained a decree  against  him on January 5, 1934, for  partition  and mesne profits.  Chandanlal filed an 258 appeal against that decree and it was dismissed.  After  the said  decree, Chandanlal died on January 31, 1940. When  the Commissioner appointed by the Court went to the building  to effect the partition by metes and  bounds,  the  respondent, who  was  in  the house, obstructed  the  Commissioner,  and thereafter  on October 8, 1940, filed a suit, out  of  which the  present appeal arises, for a declaration that the  said trust  deed  executed  by  Govindprasad  in  favour  of  the appellant   and   Chandanlal  was  a  sham   document. The   respondents’  case,  inter  alia  is  that  the  first relinquishment  deed was brought into existence  some-  time before   the  second  registered  relinquishment  deed   was executed  and  that the said deeds and the trust  deed  were parts of a same scheme of fraud conceived by the members  of the  family to defraud the creditors. The appellant, on  the other hand, alleges that Govind-prasad had really  separated himself  from the other members of the family, that  he  had his  own businesses, that from out of his  self-acquisitions he  created the trust deed to benefit his minor  nephew  and niece  for  whom he had great love and affection,  and  that subsequently  the  trustees purchased a land and  built  the house  thereon with additional funds supplied by  him.   She also alleges that the first respondent, after having set  up by  his natural brother, Chandanlal, to to resist her  claim to  the building and having failed in that attempt,  started the  present litigation to deprive her of the fruits of  her decree. On the pleadings the learned District Judge framed as   many as 12 issues.  He held, on a consideration of the  documents and oral evidence adduced, that Govindprasad became  divided from  the  members  of  the  joint  family  in  1898,   that thereafter he was carrying on the business of  moneylending, was  dealing in gold and silver, and also was taking  liquor contracts, that out of his self-acquisitions he created  the trust  in  respect  of Rs. 15,000, and  that  the  land  was purchased  and the suit building was put up with  the  trust amount  and  additional  amounts given  by  him.   On  those findings,  the  suit was dismissed.  The respondent  No.  1, (hereinafter called the respondent), preferred                             259 an  appeal against that decree to the High Court at  Nagpur. The  High Court held that the two relinquishment deeds  were sham documents brought into ’existence to shield the  liquid assets of the family, which were for that purpose placed  in the  hands of Govindprasad, that the trust deed was  also  a sham  one designed to achieve the same purpose and that  the

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 6 of 24  

house was also constructed with the aid of the family funds. For  the  first  time before the High  Court  the  appellant raised a plea of limitation.  The learned Judges of the High Court  held that the suit was within time under Art. 120  of the  Limitation  Act.   It  was  also  for  the  first  time contended  that  the respondent should be non-suited  as  he failed  to claim a further relief within the meaning of  the proviso  to sub-s. (1) of s. 42 of the Specific Relief  Act. The  High Court negatived the said contentions.  It  is  not necessary to notice the other points raised before the  High Court as they are not pressed before us.  In the result  the decree  of  the  District  Judge  was  set  aside  and   the respondent’s suit was decreed.  Hence this appeal. The main point that arises for consideration is whether  the plaint-schedule house is the property of the joint family or whether  it  was  built  out  of  the  self-acquisitions  of Govindprasad in respect whereof he executed the trust  deed. At  the outset the relevant and well-settled  principles  of Hindu Law may be briefly noticed. There is a presumption in Hindu Law that a family is  joint. There  can  be a division in status among the members  of  a joint  Hindu  family  by  refinement  of  shares  which   is technically  called  "division  in  status",  or  an  actual division  among  them by allotment of specific  property  to each  one of them which is described as "division  by  metes and  bounds".  A member need. not receive any share  in  the joint  estate  but may renounce his  interest  therein,  his renunciation merely extinguishes his interest in the  estate but does not affect the status of the remaining members vis- a-vis the family property, A division 260 in  status can be effected by an unambiguous declaration  to become divided from the others and that intention   can   be expressed  by  any process.  Though  primafacie  a  document clearly  expressing the intention to divide brings  about  a division in status, it is open to a party to prove that  the said document was a sham or a nominal one not intended to be acted  upon but was conceived and executed for  an  ulterior purpose.   But  there is no presumption that  any  property, whether  movable or immovable, held by a member of, a  joint Hindu  family,  is joint family property.  The  burden  lies upon  the person who asserts that a particular  property  is joint  family property. to establish that fact.  But  if  he proves  that there was sufficient joint family nucleus  from and out of which the said property could have been acquired, the burden shifts to the member of the family setting up the claim that it is his personal property to establish that the said property has been acquired without any assistance  from the joint family property. Bearing  the  aforesaid  principles in view,  we  shall  now proceed  to  consider  the main issue in  the  appeal.   The appellant  naturally  relies upon the document of  1898,  in support of her case that Govindprasad renounced his interest in  the  joint  family  property in  the  year  1898.   That document  is  Ex.  D. 54-A, dated January 24, 1898,  and  is described   as   "  farkatnama  ".   The   seven   brothers, Ganeshprasad,    Ajodhyaprasad,    Jankiprasad,    Ratanlal, Mangalprasad,  Sarjooprasad and Ramchand, executed the  said relinquishment deed in favour of Govindprasad.  It is stated therein as follows: "  ... we are not pulling together well in affairs  and  you and we are not on good terms in family treatment.   III-will between you and us all brothers is consequently growing more and  more  from  day to-day.   Similarly,  as  (our)  father himself  involved all ancestral property into debt  and  the

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 7 of 24  

remaining  movables  were partitioned by all  at  that  very time,  no movable and immovable ancestral property  has  now remained.  Consequently, we all have to undergo trouble  and sustain., loss in our business.                             261 We,   therefore,   execute  this   pharkhatnama   (deed   of relinquishment)  and hereby declare as follows: Each  brother   should  from this day enjoy  his  own  self- acquired property and that he may acquire with his  personal exertions-articles,  grain,  cash,  movable  and   immovable property,  so on and so forth.  One has no  connection  with another,  of family relation in property,  transactions  ... (torn), dealings and the like, of others.  Each should enjoy his benefit and sustain his loss ... (torn) unless (we) give voluntarily (some ’property) to your children and (you) give voluntarily  (some property) to our children,  (they)  shall have no manner of right against each other "." This  document  purports to have been signed  by  the  seven brothers.   If this deed is not a sham document, it  clearly brings about a division of status between all the members of the  family.   It  also proves that  movables  were  divided between  the  brothers  at the time of the  death  of  their father,  and  -that the joint  family  property,  presumably because it was heavily involved in debts, was not divided in metes   and  bounds.   Exfacie  it  does  not  support   the appellant’s  version that Govindprasad alone separated  from the  joint family taking his share of movable properties  at the  time  of  his  father’s  death  and  relinquishing  his interest in all the immovable properties of the family.  The first respondent attacks this document mainly on the  ground that  this was a sham one brought into existence  after  the year  1912 as a part of a scheme to defraud  the  creditors. The  first circumstance relied upon is that  this  document, though it purports to bring about a division in status among the  members of the family and, according to the  appellant, amounts  to a relinquishment of Govindprasad’s  interest  in the  extensive  joint family property, was  not  registered. Doubtless an unregistered document can affect separation  in status;  but  Ramasahai  and  his  sons  were  carrying   on extensive  businesses,  purchased  properties  in  different places  and  in  the  course of  their  business  they  were executing registered mortgage deeds.  The ostensible purpose of the execution of the document is 34 262 alleged to be the intention of Govindprasad to free  himself from the family troubles caused by its involvement in  heavy debts    and    to    eke    out    his    livelihood     by carrying  on  a new business of his own.  It is  not  likely that  he would not have insisted upon a registered  document to   achieve   that  purpose.   There  is   therefore   Some justification  for this comment.  Secondly, if there  was  a partition  of the movable properties either at the  time  of the execution of the document or even earlier-a rich  family like  that  of  Raniasabai must have  had  large  extent  of movables-the  details of that partition should have found  a place  in  the  document.  The absence of  such  details  is indicative  of  the fact that the document  was  not  really intended  to  be  a formal  document  effecting  a  division between the parties. This  document  did not see the light of day till  the  year 1915,  when  Govindprasad,  for  the  first  time,  made   a reference  to it in Ex.  D. 32, a registered  relinquishment deed  executed by him.  On September 7,  1912,  Govindprasad executed  a  Will, Ex.  P. 1,  bequeathing  some  properties

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 8 of 24  

described by him as his self-acquisitions.  In that Will  he stated thus: This  property  shown above is all my acquisition,  and  the ancestral  property is not included in this or  received  by me.   I  too have not retained my right over  the  ancestral property. "My father expired on 27-1-1897 A.D. From that time  without taking  any share in my father’s property, I  have  acquired this   property  by  solely  doing  business;  business   of relations  are  not included in this nor have  I  joined  in their business.  Hence, nobody has any right to this.  " If  really  there was in existence on that  date  a  written relinquishment  deed,  Ex.   D. 54, it is  not  likely  that Govindprasad  would  not  have mentioned that  fact  in  the formal  document he executed bequeathing his  property.   In contrast  with this recital, in the Will Ex. P. 2,  executed by him on May 1, 1919, the following recital is found: "...  I  have  taken  no share at all  in  the  movable  and immovable property left by him, and 263 all  the  property  in my possession on my  earning  it.  is acquired   by  me,  and  consequently,  my  brothers,   Lala Ganeshprasad,  Jankiprasad  Ratanlal,  Ramchandra  and  -all other  brothers  had  executed  a  pharkath-nama  (deed   of relinquishment) in my favour on 24-1-1898 A.D. . . . " What  could be the reason for Govindprasad not referring  to the  deed of relinquishment of the year 1898 in his Will  of 1912,  but  thought fit to do so in his Will of 1919  ?  The only  possible  explanation  is that in  between  these  two documents, another relinquishment deed, Ex.  D. 32, executed by  him on February 27, 1915, came into existence.  We  will have to say more about this document at a later stage of our judgment.   This document, for the first time,  affirms  the recitals of the earlier alleged relinquishment deed of  1898 and  is  also  registered.  It is  therefore  a  permissible inference  that Ex.  D. 54 might not have been in  existence before  Ex.  D. 32 was executed or, at any rate, before  Ex. P. I was executed by Govindprasad. Reliance  is  also placed by the respondent on  the  alleged discrepancies between the particulars of partition given  in Ex.   D-54 and Ex.  D-32.  But we do not find much force  in this contention, as the argument cuts both ways.  If Ex.  D- 54  was  forged to support Ex.  D-32, there could  not  have been any room for introducing discrepancies between the  two documents.   We  find no such  irreconcilable  discrepancies between the two documents and in substance the recitals  are similar. The  respondent  attacks  the genuineness of  Ex.   D-54  by attempting to establish that the signatures of Ajodhyaprasad and Mangalprasad were forged after their death.  If this was proved,  this document might have come into  existence  only after  1914, i.e., after Mangalprasad had passed  away.   On the other hand, if Mangalprasad’s signature was genuine, but Ajodhyaprasad’s  signature was a forged one,  this  document could  have come into existence after 1912 but before  1914. The learned District Judge, disposed of this contention with the following remarks: "  The expert examined the admitted signatures  on  document executed in the years 1903 and 1904 while 264 the  disputed document was executed in the year  1898.   The opinion  of the expert does not carry conviction and is  not corroborated by circumstances.  The farkatnama was found  to be genuine in the previous litigation." It  may be noticed that the learned District Judge  did  not

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 9 of 24  

scrutinize  the  signatures with the help  of  the  expert’s evidence, and has not expressed any considered view thereon. But  the High Court bestowed greater care on this aspect  of the  case,  as  it  should, for,  if  this  document  was  a forgery., it would go a long way to support the respondent’s version.   The learned Judges of the High  Court  considered the  evidence  of  the  expert,  scrutinized  the   impugned signature  of Ajodhyaprasad, compared it with  his  admitted signatures  and agreed with the expert in holding  that  the disputed signature was not that of Ajodhyaprasad.  So far as Mangalprasad’s  signature was concerned, the learned  Judges were not able, on the evidence adduced, to hold that it  was not his signature.  The expert was examined as P.W. 3. He is practising as handwriting and finger-print expert in  Nagpur since 1937, and he also keeps a branch office in Bombay.  He has  examined the impugned signature of  Ajodhyaprasad  with the  latter’s  admitted  signatures found  in  the  mortgage deeds,  Exs.  P-7 dated March 10, 1898, P-66 dated  November 2,  1902, and P-6 dated June 25, 1904.  He has examined  the disputed signatures synthetically and analytically and found differences   in  the  pictorial  aspect  of  the   admitted signatures  and  the  disputed signature in  that  that  the admitted signatures are fluently scribed with no  hesitation and  with a flourish, whereas both the fluency and  flourish are  lacking  in  the  disputed  signature.   Examining  the signatures analytically, he gives the following  differences between the impugned signature and the admitted signatures: (i) in the disputed signature the down strokes end  bluntly, whereas   in   the  admitted  signatures,  they   end   in’& flourishing  manner  with ticks to the right;  (ii)  in  the disputed  signature,  the down strokes have  a  tendency  to curve in the centre quite differently from the down  strokes in the admitted signatures; (iii) in                             265 the disputed signature there are dots after the letter "dha" in  "dhasthur"  instead  of the usual dashes  found  in  the admitted  signatures;  (iv)  in the  admitted  signature  in spelling  the  name " Ajodhyaprasad " the  letters  "  Joo " have  been  used, whereas in the  disputed  signatures,  the letters ’Jo " have been used; (v) in the disputed  signature there is uneven pen-pressure which is   not  found  in   the admitted signatures; (vi) there    are over-writings in  the disputed signature; and (vii) there  is a marked  difference in  the  formation  of letters between those  found  in  the admitted   signatures  and  those  found  in  the   disputed signature.   The  credentials of this expert have  not  been questioned in the cross-examination.  Except suggesting some irrelevant  theories,  no  real attempt  has  been  made  to discredit this witness or demolish his factual  observations or  his conclusions.  The appellant has not thought  fit  to examine  another  expert to contradict this  witness  or  to prove  her  case.   In the circumstances,  we  derive  great assistance  from  the expert’s evidence in  our  attempt  to compare  for  ourselves  the  disputed  signature  with  the admitted  signatures.  The learned Judges of the High  Court also  compared  the signatures with the help of  a  powerful magnifying  glass.  Hidayatullah, J., as he then was,  gives the results of his observation thus: "  To  begin  with  the pictorial  aspect  differs  in  many respects   and   even  to  a  person  not  versed   in   the identification  of  handwritings  they would  appear  to  be dissimilar.   The  letter  formations  are  different;   the strokes and the little curls at the end of vertical  strokes are  all wrong.  There is also a spelling  change.   Whereas the  writer usually wrote ’ joo’, in the disputed  signature

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 10 of 24  

this has been changed to ’Joo’.  This detracts somewhat from the force of this argument but the document Exhibit P-81  is merely  a copy of a copy and we were unable to  compare  the signatures  as such.  The fact however remains that  barring this solitary instance, the admitted signatures contain the’ other spelling." Mudholkar, J., agreed with the observations of Hidayatullah, J. We must also give due weight to the 266 observations  of the learned Judges.  We have also  compared the impugned signature with the admitted signatures with the help  of  the expert’s evidence, and    we are  inclined  to agree with the view of the expert and the learned Judges  of the  High Court.  The learned Counsel for the appellant  has not  been able to place before us any material to compel  us to  take a view different from that of the High Court.   We, therefore,  agree  with  the High Court  that  it  has  been established that the impugned signature of Ajodhyaprasad  in Ex.  D-54 is not his.  This conclusion lends strong  support to  the respondent’s version that Ex.  D-54 must  have  been brought  into existence at a later stage when  Ajodhyaprasad was no more. It  leads us to the consideration of Ex-D-32.  It  is  dated February 27, 1915, and purports to be a relinquishment  deed executed   by   Ganeshprasad,  Jankiprasad,   Ratanlal   and Ramchaild  in  favour of Govindprasad.   In  this  document, referring  to Ex.D-54 it is stated that the brothers  became separated on that date and that as the earlier document  was not   registered,  they  executed  a  fresh   document   and registered the same.  A recital is also made, persumably  to explain  the  conduct  of some of  the  brothers  in  living together  and  having  a common mess, that  by  such  common living  they  should  not  be deemed  to  be  united.   This document,  as we have already indicated, is attacked on  the ground that it was part of a scheme of fraud and that it was executed  only nominally to achieve the purpose of the  said scheme.  Our finding that the document of January 24,  1898, was  subsequently  got up after the death  of  Ajodhyaprasad undermines  to some extent the reality of  the  transaction. That apart, we shall further scrutinize with great care  the surrounding circumstances to unravel, if possible, the  true purpose  of  this  document.  It is  common  case  that  the members  of the family had been executing nominal  documents such as mortgage deeds, sale deeds etc. in favour of  family friends to defeat or, at any rate, delay the creditors.  Our attempt,  therefore, will be to draw a real picture  of  the attempted  scheme of fraud and to see whether this  document will fit into that picture.                             267 We  have  already noticed that at the time of the  death  of Ramasahai  the  family was heavily indebted.   On  June  12, 1895, Ramasahai, Sitaram, Ganeshprasad and Mangalprasad  had executed  a mortgage deed in  favour of one Buty.   On March 2,  1898,  the  said Buty filed Civil Suit  No.  5  of  1898 against the members of the joint family for recovery of  the amount due under the mortgage and obtained a decree on  June 16,  1900.  On August 25, 1897, Ajodhyaprasad, Ratanlal  and Govindprasad  executed a mortgage deed, Ex.  P-81 in  favour of  Baliram  Hari Bokhare for a sum of Rs.2,400  alleged  to have been borrowed from him on the said date.  This document was  executed six months before Buty filed his suit  on  his mortgage,  Nothing further was heard of this  mortgage.   In the circunistances it may be assumed that the mortgage, deed was  only a sham one brought into existence to  defraud  the creditors.     On   March   10,   1898,   Ganesh,    prasad,

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 11 of 24  

Ajodhyaprasad, Jankiprasad and Ratanlal executed a  mortgage deed,  Ex.   P-7, in favour of one Hemraj for a sum  of  Rs’ 2,000.   Under this document, properties not covered by  Ex. P-81  were  mortgaged.  There is nothing on record  to  show what  has happened to this mortgage and whether the  alleged debt  was discharged.  This also appears to be another  sham transaction.  On February t4, 1902, Ganeshprasad executed  a mortgage  deed, Ex.  P-75, in favour of  Sheoprasad:  though this document is dated February 14, 1902, the stamp for  the document  appears  to  have been  purchased  only  on  April 27,1902.  This document appears to have been ante-dated  for some ulterior purpose.  On November 2, 1902, six of the Lala brothers,  i.e., all except Govindprasad  and  Mangalprasad, executed  another  mortgage deed, Ex.  P-66,  in  favour  of Narayanrao  Govindrao  Mahajan  for  a  sum  of  Rs.   9,975 mortgaging thereunder the family immovable properties.   For this mortgage deed a stamp paper purchased on June 25, 1898, was  utilised.   Again  on  February  26,  1903,  the   same executants  executed  another mortgage deed,  Ex.  p-74,  in favour  of the said Narayanrao Govindrao Mahajan for a.  sum of Rs. 10,000.  The stamp for this document was 268 purchased  on August 4, 1902.  Both the Exs.  P-66 and  P-74 were  presented  for registration on February 26,  1903  but they  were  registered on March 4, 1903. This delay  in  the registration  is  presumably for the reason  that  the  Lala brothers  waited till the mortgagee executed  an  agreement, Ex.  P-7, dated March 3, 1903, in their favour.  Under  this agreement,  the mortgagee admitted that the  said  mortgages had been paid up and he also undertook to execute a  written "  mortgage deed " and get the same registered at  any  time when  the mortgagors paid the full expenses in that  regard. This  agreement  proves beyond any doubt that the  said  two mortgages  in  favour of Narayanrao Govindrao  Mahajan  were colourable  and sham transactions.  On June 25,  1904,  five out  of  the  six  executants,  Sariooprasad  having,   died meanwhile, executed a mortgage deed, Ex.  P-6, in favour  of Awasarilal for a sum of Rs. 2,000 for payment to Hemraj.  It has already been noticed that there is no evidence on record to show that Hemraj paid any amount and the record does  not disclose any further details in regard to this mortgage.  On May  26,  1908,  Ganeshprasad,  Jankiprasad,  Ratanlal   and Ramchand  executed a mortgage deed, Ex.  P-76, in favour  of one Kasturchand Daga for a sum of Rs. 20,000.  The  document discloses  that  all the family properties  mortgaged  there under  were  purchased  in  execution in  the  name  of  the mortgagee  with the funds provided by him and that,  as  the said  amount  was paid to him, the property was put  in  the possession of the mortgagors.  It may be reasonably inferred from this recital that the properties purchased in the  name of  the  said  Daga were mortgaged to him  for  the  amounts advanced   by  him.   This  document  also  recognized   the existence of other mortgage debts due by the family to Daga. It may be mentioned that there is no dispute that the family was  borrowing  moneys  from Daga.  This  document  was  not execut.  ed by Ajodhyaprasad, but he attested it.   On  July 31,   1914,  Ganeshprasad  and  Ratanlal  executed   another mortgage deed, Ex.  P-73, in favour of Narayanrao  Govindrao Mahajan for a sum of Rs. 18,925, being                             269 the  amount  alleged  to  be due by  the  family  under  two registered documents dated February 26, 1903.  This mortgage was engrossed on a stamp paper purchased as early as January 31,  1903, and was registered on November 23, 1914.   Before the registration of this document, the inortgagors  obtained

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 12 of 24  

from  the  mortgagee a deed of agreement, Ex.   P-38,  dated October  6,  1914, admitting that the said  mortgage  was  a nominal one.  On June 18, 1915, Kasturchand Daga filed Civil Suit No. 1 of 1915 against the Lala brothers on the basis of the  mortgage  deed,  Ex.  P-76.  Three days  prior  to  the filing  of this suit i.e., on June 15,  1915,  Ganeshprasad, Ratanlal.   Jankiprasad and Ramchand executed the  following three sale-deeds: (i) sale-deed, Ex. P-9 dated February  21, 1915 in favour of Baliram Hari Bokhare conveying the  family properties   situated  at  Jubbulpore  and  Kamptee  for   a consideration  of Rs. 9,500; (ii) sale-deed  dated  February 21, 1915, Ex.  P-71, executed in favour of the said  Baliram Hari Bokhare for a consideration of Rs. 9,250 in respect  of properties at Raipur and Kamptee: this document was executed on  a  stamp paper purchased on August 8,  1910;  and  (iii) sale-deed  dated  June  11, 1915, Ex.  P-70,  in  favour  of Narayanrao  Govindrao  Mahajan for a  consideration  of  Rs. 10,000  conveying some property at Kamptee.  The said  three documents were registered on June 15, 1915, though they were all purported to have been executed on different dates.   On June  20, 1915, Narayanrao Govindrao Mahajan executed  three documents,  Exs.   P-10,  P-35 and P-36.   Ex.  P-10  is  an agreement executed by Naravanrao Govindrao Mahajan in favour of  the  Lala  brothers,  whereunder  Narayanrao   Govindrao Mahajan  agreed  to reconvey the property conveyed  to  him. Ex.  P-35 is a receipt given by Narayanrao Govindrao Mahajan to Lala brothers, wherein it is mentioned that it was agreed between  them at the time of the execution of the  sale-deed that  whenever the Lala brothers paid  Narayanrao  Govindrao Mahajan  the, amount of the sale-deed and interest  thereon, the latter would return the said property and would  execute a  deed  of reconveyance and that, as they have paid  him  a total amount 35 270 of  Rs. 11,200, he would execute the reconveyance  in  their favour.   Ex.  P 36 of the same date is a Will  executed  by the       said      Narayanrao       Govindrao       Mahajan directing  his  heirs  to convey the property  to  the  Lala brothers  in  case  he  died  without  executing  the   said document.   It  is  not  disputed  that  the  grand-son   of Narayanrao  Govindrao  Mahajan did execute a  sale  deed  in favour  of two members of the Lala brother’s family and  the same was given to Kasturchand Daga in discharge of his debt. The  learned District Judge, and, on appeal, the High  Court held  that the said saledeeds were nominal transactions  and the   appellant  did  not,  and  could  not,  question   the correctness of the facts found by them. The  two  sale-deeds   executed in favour  of  Baliram  Hari Bokhare  for  a total sum of Rs. 19,425, alleged to  be  the amount  due under earlier mortgages executed in  his  favour are  also  colourable transactions; for, on  July  1,  1915, Baliram        Hari Bokhare executed Exs.  P-11, P-33 and P- 34-under  Ex.   P-11 he agreed to  reconvey  the  properties covered  by  the sale deeds if the said amount was  paid  to him;.  Ex.  P-33 is a receipt given by Baliram Hari  Bokhare to  the Lala brothers acknowledging the receipt of the  said amount and there is a recital in the document that he  would reconvey the said property to the Lala brothers; and Ex.  P- 34 is a Will executed by Baliram Hari Bokhare directing  his heirs to transfer the said property to the Lala brothers  in case  lie  died  before transferring the same  to  the  said brothers.  It is, therefore, seen that the same pattern  was followed  by the Lala brothers in the case of the two  sale- deeds  executed by them in favour of Baliram  Hari  Bokhare.

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 13 of 24  

It is said that the three sale-deeds exhausted the  family’s unencumbered  immovable properties and there can  hardly  be any doubt that the three documents were executed to  prevent the  decree-holder  in  Civil  Suit  No.  1  of  1915,  from proceeding  against  them  after  exhausting  the   mortgage properties.  Both the District Judge and the High Court held that  these  documents  were collusive; and,  on  the  facts noticed, their finding is correct.                             271 The  contesting respondent’s case is that the farkatnama  of February  27,  1915, was also executed as part of  the  said scheme  to preserve the cash and the movables of the  family for  itself.  The nominal sale-deeds executed in  favour  of Narayanrao Govindrao Mahajan and Baliram Hari Bokhare  might be  used  to screen the family’s immovable  properties  from being proceeded against in execution of the decree  obtained against  them, but could not prevent the decree-holder  from proceeding  against the family’s movables and cash.   It  is said  that  the said farkatnama was intended  to  plug  this loophole  in  the scheme of fraud.  This document  also  was registered  on  the  date  when  the  other  documents  were registered.  There is no acceptable reason why this document should  have been executed and registered on the  same  date when  admittedly colourable documents were executed  by  the family,  if it was not intended to support the same  design. The appellant suggests that the coincidence in dates was not decisive  of  the question raised; for, it might  well  have been  that Govindprasad realising the danger which  prompted his  brothers to resort to fraudulent transactions  insisted upon  them to reaffirm the earlier transaction to avert  the same  danger  to  his  self-acquisitions.   This  may  be  a plausible  contention,  but  in  the  context  of  the  then existing  circumstances  it  does not  appeal  to  us.   The creditors’ possible threat to proceed against Govindprasad’s alleged self-acquisitions on the ground that they were  part of  the joint family property had always been  there.   What had  happened  was  that instead of Buty,  Daga  become  the creditor.  There is, therefore, no reason why the  tell-tale date was fixed for the execution of Ex.  D-32, if it was not intended  to  be  a  prop to the  common  design  of  fraud. Further,  it  became necessary to put back the date  of  the alleged division in status to 1898, i.e., to a date prior to the  filing  of the suit by the creditor  Buty  against  the family on March 2, 1898, to meet the possible argument  that the claim could be traced back to that of Buty and therefore the  alleged partition could not affect the claim  of  Daga. Ex.  D-32 purports to be a 272 confirmation  of the farkatnama dated January 24, 1898.   We have  already held that the said document was an  ante-dated one  and  that  the signature of  Ajodhyaprasad  was  forged therein.  If so, it follows that Ex.  D-32 is another-  link in the chain of fraud perpetrated by the family. To  summarize: the family had joint business  and  extensive properties  as well as heavy debts at the time of the  death of Ramasahai on January 24, 1897.  After Ramasahai’s  death, the family creditor, Buty, filed a suit against the  members of  the family to enforce his mortgage.  In the  year  1898, the  members  of the family executed  nominal  mortgages  in favour of Hemraj, Narayanrao Govindrao Mahajan and Chunnilal Sonar,  and when some of the family properties were  brought to  sale in execution of the decree obtained by  Buty,  they were purchased by Kasturchand Daga benami for the members of the family, and some of the members of the family executed a mortgage deed on May 26, 1908, for the sale price in  favour

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 14 of 24  

of  the said Daga.  The said Daga filed Civil Suit No. 1  of 1915 against the family to enforce the mortgage, on June 18, 1915.   Three days before the filing of this suit, i.e.,  on June  15, 1915,. the brothers brought into  existence  three nominal sale-deeds-two in favour of Baliram Hari Bokhare and another  in  favour of Narayanrao  Govindrao  Mahajan-and  a relinquishment  deed in favour of Govindprasad; and all  the documents  were registered on the same day.  Three  of  them were admittedly nominal documents and the fourth, viz.,  the relinquishment  deed, has been proved to be another  nominal document.   The said facts disclose an integrated scheme  of fraud and it is not possible in the circumstances to  single out  therefrom  Ex.  D-32 and hold that it is  a  bona  fide transaction;  on the other hand, the  circumstances  already narrated by us indicate beyond any reasonable doubt that the said document is also a part of that scheme and intended  to protect the cash and movables of the family. The appellant relies upon the Wills executed by Govindprasad in 1912, 1919, 1920, 1926 and 1930 to establish that he  was divided from the family, and                             273 that   he  was  treating  some  properties  as   his   self- acquisitions.   If, as we have held, neither Ex.   D-54  nor Ex-D-32 effected a severance of Govindprasad from the  joint family,  the  said  documents would  not  carry  the  matter further;  for the Wills were based upon the assertions  made by  Govindprasad  that he was separated from his  family  in 1898  and  that the properties he was bequeathing  were  his self-acquistions.   As  we  have  held  that  there  was  no severance  of  the joint family, the  evidentiary  value  of these  documents  must be rejected on the ground  that  they were  further attempts on the part of the family to keep  up the appearance consistent with the alleged partition. We now come to the consideration of the main document in the case, namely, the trust deed dated February 17, 1916.  It is marked  as  Ex.  D-12.  It purports to be a  deed  of  trust executed by Govindprasad in favour of his nephew Chandanlal, the  natural son of his brother Ratanlal and adopted son  of his another brother Ajodhyaprasad, and his niece, Rukhmabai, the daughter of his eldest brother Ganeshprasad.  Under this document  Rs. 15,000 was set up for the said  beneficiaries, who  were  minors  at  that time.   Kasheo  Rao  Laxman  Rao Aurangabadkar,  Gujalal, Davidin, Mahadeo, and  Govindprasad were  appointed  trustees.  The document directed  that  the trustees  should carry on the management of the trust  money and  that they should make over the money to the  minors  on their  attaining  majority.   They  were  also  directed  to construct a building or buy a land which might bring in good rent  and to reserve one-fourth for themselves for  expenses of  the  building or the land, as the case may  be,  and  to distribute  the the remaining three-fourths in equal  shares to  the  two beneficiaries.  Alternatively, they  were  also directed  to carry on a business with the said,  amount  and distribute  the  income therefrom to  the  beneficiaries  in equal shares.  The first question that occurs to one is, why did  Govindprasad execute the trust, deed if  his  intention was  to  give a sum of Rs. 15,000 to his nephew  and  niece; for, he could have easily achieved, 274 that  purpose by executing a Will or a  settlement  deed,and during his life time by giving them the income therefrom  in equal     shares.      The    amount    set     apart     is comparatively  small and is surprising that he  should  have appointed   five  trustees  for  implementing   the   trust. Secondly, the trust deed itself refers to the earlier  deeds

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 15 of 24  

of relinquishment and we have already held that the said two deeds were colourable transactions.  The trustees  appointed were the agents of the family.  Ex.  P-72 dated September 9, 1913,  the General Power of Attorney, shows that two of  the trustees, Kasheo Rao Laxman Rao and Davidin were the  family agents  of  the Lala brothers.  Ex.  P-38 dated  October  6, 1914,  indicates  that  Kasheo Rao Laxman Rao,  one  of  the trustees,  attested the said document whereunder  Narayanrao Govindrao Mahajan declared that the, mortgage deed  executed in   his  favour  by  the  Lala  brothers  was   a   nominal transaction.  This shows that Kasheo Rao Laxman Rao was  one of  the  close associates of the members of  the  family  in executing the fraudulent documents.  Mahadeo is the brother- in-law  of  Babulal, a servant of Ganeshprasad, who  is  the father  of Rukhmabai, the appellant.  The fact that most  of the  trustees were either the agents or the servants of  the family  is  also  a circumstance,  though  not.  conclusive, against the version of the appellant.  Two minor members  of the family were selected for the bequest; though  ordinarily it   may  not  have  any  significance,  in   the   peculiar circumstances  of the case, this fits in the general  scheme of fraud perpetrated by the family.  What is more, the trust comes  to  an  abrupt end.  Ex.  D-3 is  the  deposition  of Govindprasad  in  Civil Suit No. 204 of 1931.   Therein  he- describes how the trust deed was implemented and how it came to  an  end.  He says that for building the house  the  site opposite Cotton Market at Nagpur was acquired from  Babulal, and Rs. 10,000 out of the sum of Rs. 15,000 was utilised for building the house and Rs. 5,000 was given to Babulal by the trustees  as  loan.  The -trustees demanded Rs.  5,000  more from him, but he gave them only Rs. 2,500 and another sum of Rs. 2,500 was given to them by Sheoshankar, the                             275 husband  of the appellant.  The trust was dissolved in  1921 and  after that he commenced to construct the second  storey and  completed  it  with  a sum of  Rs.  6,000  returned  by Babulal.  This evidence proves that the trust was put to  an end  even  before  the  completion  of  the  building,   and Govindprasad  completed  the  construction.   This   conduct indicates  that  no distinction was made between  the  trust property and his own property, and that, though a registered document had been executed, he was able to put to an end  to the trust when he chose to do so.  Ex.  D-30 is the copy  of the  proceedings  from  the Proceeding  Book  filed  by  the trustees in Civil Suit No. 55 of 1929.  Therein Govindprasad says that Chandanlal and Rukmabai became majors and,  though he  wanted to make over the building to them, they  did  not like to take it and agreed to have it left with him so  long as he was alive and that, as Davidin left the place, Gajulal passed  away,  Mahadeo had gone to another  district  for  a service  and  Kasheo  Rao  was  unwilling  to  take  further responsibility, he had taken over the building according  to the   wishes  of  his  nephew  and  niece.   This   laboured explanation  also  demonstrates the nominal  nature  of  the trust deed.  Ex.  D-35 is a Power of Attorney dated  January 26, 1921, executed by Rukhmabai and Chandanlal in favour  of Govindprasad.  In that document both of them, who had become majors declared that they could not manage the property  and therefore  they  appointed Govindprasad as their  agent  and authorized  him to manage the property and act for  them  in the courts.  Whatever might be the reason, the said document shows  that the property was taken back by Govindprasad  and there is nothing on record to show that any benefit from the trust  reached the hands of either Chandanlal or  Rukhmabai. This  conduct of Govindprasad also fits in with the  general

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 16 of 24  

scheme of colourable transactions: and the property in  fact continued to be the joint family property. There is also positive evidence, both documentary and  oral, to  prove  that the brothers, including  Govindprasad,  were living an members of a joint Hindu 276 family.  Ex.  P-63-A is a letter written by Ganesh prasad to Chandanlal.   This  letter is not dated, but it  appears  to have been written in or about the year 1926. In this  letter Ganeshprasad points out: " I have so far helped all my brothers upto this  day    and have  been  helping  them so far as  possible  in  spite  of experiencing such great miseries.  What should I do ? Had  I thought of passing my time by living separate, it could have been  done  in a good way; I would have not fallen  in  such difficulties.  With all this you are seeing how memberji  is causing  different troubles.  Whatever I have done,  I  have done with my earnings; I have given to my men family." In unravelling a fraud committed jointly by the members of a family, only such letters that passed inter se between  them can  give  the clue to the truth.  This  letter  shows  that notwithstanding the assertions of the family to the contrary to  suit  a  particular occasion, they  were  really  living together  as  members  of  a  joint  family  and  the  whole responsibility  of the conduct of the affairs of the  family was  taken  by  the eldest member of it.  Ex.   P-  5  dated January  21,  1922,  is a public notice  given  by  all  the members of the family and published in " The Maharastra " on January  25,  1922.  Therein they asserted  that  in  Nagpur ’City  they  owned an ancestral property,  consisting  of  a house, vacant land and a pacca well, constructed with stones for  drinking water for the public, and that Mt. Deoka  Bai, W/O  Sitaram Lala Kalar had no right to sell the  same.   If Govindprasad had separated himself from the family, as it is now  contended, he would not have joined in the  issuing  of this public notice, for, in that event he would not have had any interest in the ancestral property.  Ex.  P-59 is a copy of the application made by Govindprasad to the Secretary  of State  for  India  on May 19,  1922.   In  that  application Govindprasad states: "  I  have now to mention that for the long  standing  three years, i.e., 1920-21, 1921-22, and the remaining nine months of 1922, 1 have undergone and                             277 have  to  undergo  a serious loss  of  about  rupees  twenty thousand   which  is  heavy  and  unbearable  to  meet   the Government   Revenue  and  to  maintain  my   large   family consisting of twenty-five (25) members." Govindprasad alone could not have lost so much amount in his individual  business.  What is more, he had no children  and so  his  family of twenty five members must  have  reference only to the members of the joint family. There is also the evidence of P.Ws. 12,/ 13 and 14, who  are the  common  relatives  of  both  the  parties.   P.W.   12, Bhagwandas, is the brother of Lala Chotelal, the husband  of Tarabai, daughter of Ramasahai.  He has been acquainted with the  affairs of the family for about 30 years,  i.e.,  since the  time  his  brother  was married to  Tara  Bai.   He  is positive that Govindprasad used to live either at Kamptee or Nagpur  in the family house and that all the  brothers  were keeping  account books jointly.  P.W. 13, Lala Sadanand,  is the brother of Mangalprasad’s wife.  He says that his sister married  Mangalprasad in 1896 or 1897 and his  knowledge  of the  family, therefore, went back to that year.  He  asserts that  the  sons of Ramasahai were members of a  joint  Hindu

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 17 of 24  

family and that their excise contracts were also joint,  and that  none of the brothers had separate trade  or  property. P.W.  14,  Lala  Sitaram’s son  was  married  to  Ratanlal’s daughter  about 25 years before the date of his  giving  the evidence.   He  supports the evidence of P. Ws. 12  and  13. Nothing has been elicited in the course of cross-examination of  any  of  these witnesses which would  detract  from  the weight  of their evidence.  They are natural  witnesses  who could  with  authority speak to the affairs of  the  family. The oral evidence adduced by the plaintiff also  establishes that there was no partition among the members of the family. We, shall now briefly notice the admissions alleged to  have been  made by one or other members of the  family  accepting the  partition.   In this context, the observations  of  the Judicial Committee in Alluri Venkatapathi 36 278 Raju v. Dantuluri Venkatanarasimha Raju (1) are apt and they read:  It  sometimes happens that  persons  make  statements which serve their purpose, or proceed upon ignorance of  the true  position;  and it is not their statements,  but  their relations  with  the  estate, which  should  be  taken  into consideration in determinining the issue." The  issue in that case, as it is in the present  case,  was whether one of the members of a joint Hindu family separated himself  from the others by renouncing his interest  in  the joint family property. Exhibit  49 is the rejoinder filed by Lala  Laxminarayan  in Civil  Suit No. 260 of 1931 filed against  Sheoshankar,  the husband  of  the  appellant.  Therein  he  stated  that  the members of the family separated from time to time -and  that the last but one group that remained joint was the one ’With four  brothers  and  the very last was  with  two  brothers, Ganeshprasad  and Ratanlal and that after the death  of  the two  brothers he (Lala Laxminarayan) was the only  survivor. It is obvious that the said statement was made to serve  his purpose in that suit and support his claim therein.  Ex.  D- 11  is an application dated November 10, 1938, made by  Lala Laxminarayan   to  the  Deputy  Commissioner,  Nagpur,   for exemption from furnishing security at Excise Sales.  Therein he alleged that Lala Ratanlal owned and possessed  immovable and movable properties worth about a lakli of rupees,  which on  his  death devolved on his son, the  applicant  therein, that  all the said properties were held by the applicant  in his  own right as the sole owner thereof and that he was  in uninterrupted possession of the same since the death of  his father.  He also alleged that the business was inherited  by the members of the family in 1890 and that he had been doing the  business  of his forefathers since the year  1927.   In this  document  Laxminarayan  did not set  up  any  case  of partition  in  1898; but it is pointed out that he  did  not include the trust property in the schedule attached to  that application.   The  object of that application was  to  show that he owned (1)  (1935-36) L.R. 63 I.A. 397, 406.                             279 large extent of properties, and the fact that he had omitted some  items  of property would not establish that  the  said items  were not joint family properties.  That question  has to  be  considered on other evidence. Lala La  But  what  is important in Ex.  D- 1 1 is his assertion that there was  no partition  in the family.  If we do not place much  reliance on Ex.  D-11, we should also, for the same reason, not place much value on the assertions made in Ex.  D-49.  Exs.   D-49 and D- 11 show that the plaintiff was making -assertions  to

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 18 of 24  

suit   his  purpose.   Ex.   D-56  is  the   deposition   of Jankiprasad  in  Civil  Suit No. 260 of  1931.   Therein  he stated  that  the  defendants were  all  brothers  but  were divided.  That was a suit filed by Kasturchand Daga  against some of the brothers and, perhaps, Jankiprasad thought  that it  was necessary to assert separation so that some of  the, family  properties,  other than those  mortgaged,  might  be salvaged.   The same Jankiprasad, in Ex. P-80,  asserted  to the contrary.  In that exhibit he stated that the farkatnama was  cancelled by him by notice to Govindprasad and that  he and  Govindprasad continued to have common food.  The  claim of the creditor, Kasturchand Daga, who sought to attach  the trust  property  along  with other  family  properties,  was settled  and some of the family properties were sold to  him under  Ex.   P-24 in discharge of his claim.  On  the  sale- deed, Govindprasad made the following endorsement: " As I have been living separate for a number of years  from all  the  members  of the family, I have no  right  to  this property and no objection to its sale." This endorsement  is entirely consistent with the case of the respondent that the properties in the hands of Govindprasad were intended to  be preserved by this compromise.  That statement must have been made  to  strengthen  the case of the  family.   These  con- tradictory  statements were made by one or other members  of the  family  to meet a particular contingency or to  get  an advantage, and, therefore, these cannot be of much value and the case really falls to be decided not on such  statements, but  on- the basis of the relations of the  various  parties with the estate. 280 From the aforesaid evidence, we must hold that there was  no severance  in  the  joint family of Govind  prasad  and  his brothers     and     that    they    continued     to     be joint,  doing joint business, that all of  them  collusively brought    into   existence   documents,    including    the relinquishment   deeds,   to   tide   over   the   financial difficulties in which they were involved. On  the  basis  of the finding  that  Govindprasad  did  not relinquish  his share in the joint family, but continued  to be  its member, the next question is whether the sum of  Rs. 15,000,  in respect whereof the trust deed was -executed  by Govindprasad and the moneys spent to put up the suit  house, came  out  of the selfacquisitions  of  Govindprasad.   This question  we must approach on the basis of our finding  that Govindprasad  continued  to be a member of the  joint  Hindu family  until his death.  The initial burden is no doubt  on the  contesting respondent to prove that the trust  property is  part  of  the  joint family  property;  but  if  it  was established  that there was sufficient nucleus from or  with the aid of which the property could have been acquired,  the burden  shifts  to  the  appellant.   The  first   question, therefore,  is  whether  the  joint  family  had  sufficient property or income out of which Govindprasad could have  put aside  Rs. 15,000, under the trust deed and also could  have advanced  other amounts for constructing the  building.   We have  already  noticed at an earlier stage of  the  Judgment that  the family owned extensive properties  distributed  at different  places.   Ex. 9-D-8 is a copy  of  the  Valuation Register for 1923 in Civil Suit No. 260 of 1931.  There  the annual income from one of the liquor shops, Lala Bada Liquor Shop, from the year 1919 to 1923 is given.  The licence  was for  Rs. 15,000.  The profit for 1919-20 was Rs.  1329;  for 1920  21 was Rs. 14,152; for 1921-22 was Rs. 185;  for  1922 was Rs. 7,650; and for 1923 was Rs. 5,140.  Ex. 9-D-7 is the copy of the Valuation Register for 1924 in the same suit  in

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 19 of 24  

respect of Janajail Liquor Shop, Nagpur.  It shows that  the profit  for the year 1919-20 was Rs. 1,486; for 1920-21  was Rs.  8,814; for 1921-22 was Rs. 1,779; and for  1922-23  was Rs. 3,837.  Ex.  P-77 is a security bond                             281 executed  by  the  members  of  the  family  in  favour   of Kasturchand  Daga.   It  shows that security  was  given  in connection with the contract taken by the family in the name of  Lala Ratanlal for retail dealing in liquor in  different shops at Karnptee and Nagpur during the years 1906 and 1907. In  that connection Ratanlal deposited a sum of Rs.  54,700. These  three  documents  show  the  extensive  business  the members  of  the family were doing-in liquor.   Indeed,  the learned Counsel for the appellant does not dispute the  fact that  the family was in a position to give Govindprasad  the amount covered by the trust deed and that spent for the con- struction  of the building.  If so, the question is  whether the  appellant  has proved that Govindprasad paid  the  said amounts   from  and  out  of  his   self-acquisitions.    If Govindprasad  had  a business of his own, he must  have  had accounts,  but no such accounts were  forthcoming.   Summons was served on Tuljabai, the wife of Ganeshprasad and  mother of  Rukhmabai, for producing the account books of  the  Lala brothers  from the year 1897 to 1928, but no  accounts  were produced  except  Ex.  D-22, which is an  extract  from  the accounts of Ganeshprasad covering a period of only one month of the year 1927.  This extract does not help either  party. It  may, therefore, be held that the accounts,  which  could have thrown some light on the sources from which Rs. 15,000, was  drawn  by  Govindprasad and  the  further  amounts  for building the house were supplied, were not filed. D.W.  I is one Jainarayan, who was a member  of  Legislative Council  of  the State from 1930 to 1936.   He  states  that Govindprasad  was  doing  business in  shares  and  also  in moneylending, that he had his own account books; that before going  to Jabalpore he took away all his account books,  and that  he  (the witness) may still have one  or  two  account books  of  Govindprasad  with him.   This  witness  did  not produce  any  account  books.  Rukhmabai also  says  in  her evidence  that the account books of Govindprasad  were  with him but she could not say whether they were at Nagpur or  at Kamptee.  But Govindprasad in his deposition made on October 23, 1932, in Civil 282 Suit  No. 204 of 1931 stated that he had no regular  account books  showing his income or expenditure, but he had only  a sort  of note book and that was not in his possession  then. If Govindprasad was doing business on a large scale, as  the appellant  asked  us to believe, he must  have  had  account books.   If we accept the statement of Govindprasad that  he had  no account books, it shows that he could not  have  had any extensive business; on the other hand, if we accept  the evidence of D. W. 1 and Rukhmabai that he had account books, it  was not explained why they were not produced. The  only  direct  evidence in regard  to  Rs.  15,000,  the subject-matter  of the trust deed, and the moneys spent  for building  the house, is that of Govindprasad in the  earlier suit,  viz.,  Civil Suit No. 204 of 1931, and  it  has  been marked as Ex.  D-3.  He has stated therein that he had  some deposits in banks and that out of affection he set apart Rs. 15,000 for his nephew and niece and executed a trust deed in respect of that sum. He adds that out of the said sum of Rs. 15,000,  Rs.  10,000 was spent in purchasing the  site  from Babulal  and  for  constructing a part  of  the  suit  house thereon,  and the balance of Rs. 5,000 was given to  Babulal

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 20 of 24  

as loan.  He further stated that the trust was dissolved  in 1921  and that thereafter he spent another sum of Rs.  6,000 out  of his own pocket in addition to the sum of  Rs.  6,000 returned  by  Babulal for completing the building  and  that Sheoshankar, the husband of the appellant spent Rs. 2,500 in connection  with the building; but in the  cross-examination he admitted that he bad no shop for gold and silver and that lie  used to do business in a small scale.  He gave  evasive answers  when he was asked whether the first  defendant  was managing  the  liquor  shop in dispute ;  he  did  not  know whether  the  defendant  was managing  the  liquor  shop  in dispute, he did not remember the year in which the shop  was opened in the suit building; he could not say when the  shop was  discontinued;  he,  admitted that  he  had  no  regular account books showing his income or expenditure.  Though  he said  that he had a sort of note book, he said that  he  was not in                             283 possession  of  it  then.  Though  he  said  in  examination in-chief  that he spent Rs. 6,000 for the building,  had  to admit  in the cross-examination that the said money was  not withdrawn  from  any  bank.   He  also  admitted  that   the materials were bought by Ganeshprasad and Ratanlal and  that he  did not know when they purchased them.  The evidence  of Govindprasad clearly establishes that he was merely  lending his name for the family and that the amounts were spent from the  family coffer,-, under the supervision of one or  other members of the family.  Ex.  P-62-A is a copy of the  letter written by Ganeshprasad to Babulal in the year  1922-Babulal was   acting   as  the  agent  of   Ganeshprasad.    Therein Ganeshprasad complaints that large amounts had already  been spent but the upper portion of the building had not yet been constructed.   Though it is suggested that Ganeshprasad  was constructing some other building,in the year 1922, there is- nothing  on  record  to support that  theory.   Babulal  was certainly connected with the suit building and the reference in  the  said document must be to the suit  building.   This letter also shows that Ganeshprasad, presumably on behalf of the  family, was giving moneys for the construction  of  the building.   Ex.   P-60-1-A  is  another  letter  written  by Ganeshprasad to Babulal.  Therein Ganeshprasad gave specific direction  in  regard to the construction of  the  building. The  building  referred to in this letter also must  be  the suit building. Exs.   D-63  to  D-96  are  the  receipts  for  the  amounts disbursed  in connection with the construction of  the  suit building.   Govindprasad states in Ex.  D-3 that he used  to hand over the money to his brother Ganeshprasad or  Ratanlal for disbursement.  This lame explanation cannot explain away the  fact that the moneys were spent and receipts  taken  by the  other members of the family in regard to the  construc- tion of the house’ Then remains the oral evidence of P.Ws. 4, 5, 9 and 13,  who were some of the contractors connected with the construction of  the  house  and they say  that  either  Ganeshprasad  or Ratanlal asked them to do the work and paid them the amounts clue to them.  Their 284 evidence   is  consistent  with  the  evidence   of   Govind prasad  in Ex.  D-3.  They are disinterested  witnesses  and their  evidence can safely be accepted.  There is  also  the evidence that the family liquor shop was     located in  the suit  building and that must be so because it was  built  by the family. The  foregoing  discussion of the evidence  brings  out  the

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 21 of 24  

following  facts: (i) the family had extensive business  and was  in a position to purchase the land and build  the  suit house;  (ii)  there  is no reliable evidence  to  show  that Govindprasad  had separate income from which he  could  have set apart Rs. 15,000 and paid an additional sum of Rs. 6,000 for  building  the  house;  (iii)  there  is  evidence  that Ganeshprasad and Ratanlal supervised the construction of the building,  paid the contractors and had taken receipts  from them;  and  (iv) though the trustees under  the  trust  deed pretended  to function thereunder, they were the  agents  of the family and the trust was abruptly put an end to in 1921. On  the  said facts it must be held that the  appellant  has failed to prove that Govindprasad had self-acquisitions  and the suit site was purchased and the building put up  thereon with the private funds of Govindprasad. Before we close this aspect of the case, the conduct of  the respondent  in not questioning the trust deed from  1916  to 1940,  when  he filed the suit, requires  some  explanation. The contesting respondent was a minor.  Even after he become a  major,  he could not have had any grievance  because  the trust  deed was executed for the benefit of the family.   It is in evidence that Ratanlal, his father, was living in  the house  till  his  death in the year 1926.   It  is  also  in evidence  that  he was residing in the house from  the  year 1936.    It  is  true  that  when  the  litigation   between Rukhinabai  and  Chandanlal was being conducted he  did  not intervene;  that may be because Chandanlal was  his  natural brother  and  he might not have thought fit to  set  up  any claim  against his brother.  His conduct, therefore, is  not such  as to give rise to any inference that the  trust  deed was  executed  in  regard  to  Govindprasad’s  self-acquired income,                             285 To summarize: There was no separation of the members of  the family: all the members of the family continued to be  joint and the family was doing business in different places.  They had  extensive  properties and a fairly large  income:  they were  also  heavily indebted.  The family  was  involved  in debts in Ramasahai’s life time and even after his death  the position  continued to be the same.  Various  attempts  were made  to  salvage the properties of the family and  to  keep both the movable and immovable properties not mortgaged from the  reach  of  the creditors.   The  relinquishment  deeds, innumerable  mortgages, sale deeds and the trust  deed  were all  executed as parts of the same scheme.   We,  therefore, hold  that the suit property was the joint  family  property and  the  respondent is entitled to the declaration  he  has asked  for,  namely, that the trust deed dated  January  17, 1916, was a colourable and fictitious document and could not affect  the respondent’s right to ownership of the  property in the suit. The  next  question raised by the learned  Counsel  for  the appellant  is  that the suit should have been  dismissed  in limine as the plaintiff asked for a bare declaration  though he  was in a position to ask for further relief  within  the meaning of s. 42 of the Specific Relief Act.  The proviso to s. 42 of the said Act enacts that " no Court shall make  any such  declaration  when the plaintiff, being  able  to  seek further relief than a mere declaration of title, omits to do so."  It is a well-settled rule of practice not  to  dismiss suits  automatically  but  to allow the  plaintiff  to  make necessary  amendment  if  he seeks to do  so.   The  learned Counsel  for the appellant contends that in the  plaint  the cause  of action for the relief of declaration was given  as the   execution   of  the  partition  decree   through   the

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 22 of 24  

Commissioner  appointed  by the Court  and,  therefore,  the plaintiff  should  have  asked for  a  permanent  injunction restraining   the  appellant  from  interfering   with   his possession.   The  appellant did not take this plea  in  the written  statement;  nor  was there  any  issue  in  respect thereof,  though  as many as 12 issues were  raised  on  the pleadings; nor does 37 286 the judgment of the learned District Judge disclose that the appellant raised any such plea.  For the first    time   the plea based on s. 42 of the Specific Relief   Act  was raised before  the High Court, and even then the argument  advanced was  that the consequential relief should have been one  for partition  : the High Court rejected the contention  on  the ground that the plaintiff, being in possession of the  joint family  property, was not bound to ask for partition  if  he did  not  have the intention to separate  himself  from  the other  members of the family.  It is not necessary  in  this case  to  express our opinion on the  question  whether  the consequential  relief should have been asked for; for,  this question  should have been raised at the earliest  point  of time,  in  which event the plaintiff could  have  asked  for necessary  amendment to comply with the provisions of s.  42 of the Specific Relief Act.  In the circumstance, we are not justified in allowing the appellant to raise the plea before us. This  leaves  us with the only surviving  question,  namely, whether  the suit was barred by limitation.  This point  was raised  for  the first time in the High Court and  the  High Court  allowed  the  same to be  raised  but  negatived  the contention.  The learned Counsel for the respondent contends that, for the reasons mentioned in regard to the plea  based upon  s. 42 of the Specific Relief Act, we should  also  not allow  the appellant to raise this contention  either.   But there   is   an  essential  distinction  between   the   two contentions; while in the former case, if the contention was allowed  to be raised, the, respondent would be  prejudiced, in  the  latter  case, even if this plea was  taken  at  the earliest point of time, the contesting respondent would  not have adduced better evidence or put before the Court further evidence.  When the Court asked the learned Counsel to state what  further facts he would have proved in respect of  this plea  if this contention was taken earlier, he was not  able to  suggest any.  In the circumstances, when  the  appellate Court allowed the appellant to raise the plea of limitation, we  do not think we are justified at this stage to say  that the  High  Court  should not have allowed  the  plea  to  be raised.                             287 The argument on the question of limitation is put thus:  The plaintiff,   respondent   herein,  had  knowledge   of   the fraudulent character of the trust deed as early as 1917  or, at  any  rate,  during the pendency of  the  partition  suit between  Rukhmabai  and Chandanlal instituted  in  the  year 1929, and the suit filed in 1940, admittedly after six years of the said knowledge, would be barred under Art. 120 of the Limition Act.  Article 120 of the Limitation Act reads:                          Period         Time from which Description of suit      of             period begins                          limitation.    to run. --------------------------------------------------------- 120. Suit for which no period of limitation is   Six years     When the right provided elsewhere in                   to sue accrues.

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 23 of 24  

this Schedule. This  Article was subject to judicial scrutiny both  by  the Judicial  Committee as well as by the High Court of  various States.  The leading decision on the subject is that of  the Judicial  Committee  in Bolo v. Koklan  (1).   Therein,  Sir Benod Mitter, observed: "There can be no ’right to sue’ until there is an accrual of the  right asserted in the suit and its infringement, or  at least a clear and unequivocal threat to infringe that right, by the defendant against whom the suit is instituted." The said principle was restated and followed by the Judicial Committee  in Annamalai Chattiar v. A.M.K.C.T  Muthukaruppan Chettiar  (2  ) and in Gobinda Narayan Singh  v.  Shain  Lal Singh (3).  The further question is, if there are successive invasions or denials of a right, when it can be held that, a person’s right has been clearly and unequivocally threatened so  as to compel him to institute a suit to  establish  that right.  In Pothukutchi Appa Rao v. Secretary of State (4), a Division Bench of the Madras High Court had to consider  the said  question.  In that case, Venkatasiibba Rao, J.,  after considering the relevant decisions, expressed his view thus: "  There  is  nothing in law which says that  the  moment  a person’s right is denied, he is bound at (1)  (1929-30) L.R. 57 I.A, 325, 331. (2)  (1930) I.L.R. 8 Rang. 645. (3)  (1930-31) L.R. 58 I.A. 125. (4)  A.I.R. 1938 Mad. 193, 198, 288 his  peril to bring a suit for declaration.  The  Government beyond  passing  the  order  did  nothing  to  disturb   the plaintiff’s  possession.  It would be most  unreasonable  to hold that a bare repudiation of a       person’s      title, without even an overt act, would make it incumbent on him to bring a declaratory suit ". He adds at p. 199: " It is a more difficult question, what is the extent of the injury  or  infringement  that gives rise to,  what  may  be termed, a compulsory cause of action ? " The legal position may be briefly stated thus: The right  to sue  under Art. 120 of the Limitation Act accrues  when  the defendant  has  clearly  and  unequivocally  threatened   to infringe  the right asserted by the plaintiff in  the  suit. Every threat by a party to such a right, however ineffective and innocuous it may be, cannot be considered to be a  clear and  unequivocal threat so as to compel him to file a  suit. Whether a particular threat gives rise to a compulsory cause of  action  depends upon the question  whether  that  threat effectively invades or jeopardizes the said right. The  facts  relevant to the question of  limitation  in  the present  case  may be briefly restated: The trust  deed  was executed in 1916.         The suit house was constructed  in 1920.   If, as we have held, the trust deed as well  as  the construction  of  the building were for the benefit  of  the family,  its execution could not constitute any invasion  of the  plaintiff’s right.  Till 1926, the plaintiff’s  father, Ratanlal,  was  residing in that house.  In 1928  when  Daga challenged the trust deed, the family compromised the matter and salvaged the house.  From 1936 onwards the plaintiff has been residing in the suit house.  It is conceded that he had knowledge of the litigation between Rukhmabai and Chandanlal claiming  the property under the trust deed; but,  for  that suit he was not a party and the decision in that  litigation did not in any way bind him or affect his possession of  the house.   But  in execution of the decree,  the  Commissioner appointed by the Court came to the premises on February  13,

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 24 of 24  

1937, to take 289 measurements  of  the house for effecting partition  of  the property,   when   the  plaintiff  raised   objection,   and thereafter  in  1940, filed the suit.   From  the  aforesaid facts,  it  is manifest that the plaintiff’s  right  to  the property  was  not effectively threatened by  the  appellant till  the Commissioner came to divide the property.  It  was only then there was an effectual threat to his right to  the suit  property  and  the suit was  filed  within  six  years thereafter.   We, therefore, hold that the suit  was  within time. In the result, the appeal fails and is dismissed with costs.                               Appeal dismissed.