Hareswar Das and Others vs Nareswari Dasya

C. Sanjeevarao Naidu, J.—This is Defendants'' appeal, they having lost in both the court below.

The Plaintiff brought a suit claiming lo be the widow of the paternal uncle of Defendants 1 to 3 and alleging that her husband Juju Ram and the father of Defendants 1 to 3 and husband of Defendant No. 4, were brothers and members of the joint family that she inherited her husband''s property and has ever since been In possession of the suit property paying rents thereof. As the Defendants were questioning her right to the property she brought the suit for declaration of her tenancy right over the suit land and for confirmation of possession or recovery of possession depending on the finding of the Court.

On trial and after consideration of the evidence adduced in the case, the learned Munsiff came to the conclusion that the Plaintiff was entitled to the suit property jointly with the Defendants; that she had been herself in possession of the property and living in the same homestead and that she was paying rents of the suit property and enjoying the same jointly with the Defendants Accordingly he declared the title of the Plaintiff in respect of the suit land and decreed joint possession therein along with the other Defendants On appeal the learned Subordinate Judge examined the evidence in the case and fully agreed with the conclusions of the learned Munsiff and confirmed the findings of the learned Munsiff, and dismissed the appeal. Hence the present second appeal.

As the concurrent findings reached by the courts below are all findings of fact they are binding on this Court sitting in second appeal, It must he assumed for the purpose of this appeal, therefore, that the Plaintiff''s husband was living jointly with the father of Defendants 1 to 3 and husband of Defendant No. 4, that he died while so being in possession, that his widow became entitled to the property, that his widow continued to live jointly with the Defendants 1 to 3 father and afterwards with the Defendants in the same homestead, that she had been paying the rent of the suit land and that she was enjoying the suit property.

The only point that Mr. Medhi, the learned Counsel for the Appellants, urged before me in this appeal is that the courts below did not consider the purport and effect of the documents - Exts. A, B and C - filed in the case. These documents according to the learned Munsiff purport to effect permanent settlement of the land by the land lord with Paharu Das, the father of Defendants 1 to 3. But as they were not registered the learned Munsiff felt that he could not look into them and attach any evidentiary value to these documents. It is argued that Section 117 of the Transfer of Property Act lays down that the provisions of the chapter dealing with leases, do not apply to leases for agricultural purposes except in so far as It is notified by the State Government in the Official Gazette. But Sections 106 and 107 of the Transfer of Property Act are specific provisions dealing with leases for agricultural purposes. Section 106 lays down that in the absence of a contract or local law or usage, a lease of immovable property for agricultural purposes shall be deemed to be a lease from year to year, and Section 107 lays down that a lease of immovable property from year to year can be made only by a registered instrument. When the two provisions like this appear in the same enactment dealing with the same subject matter, they are to he construed so as not to come into conflict with each other. Section 117 would have to be construed as covering the provisions of the Transfer of Property Act in the Chapter of Leases except those provisions in it which specifically deal with leases for agricultural purposes; which obviously have operation, otherwise it would amount to nullifying the provisions contained in Section 107. So that the construction of Section 117 has to be so made as to say that it applies only to those leases which are not specifically provided for in the provisions of the chapter.

That apart, a lease from year to year has to be registered u/s 17 of the Indian Registration Act and Section 49 precludes their being looked into if unregistered. Further if a permanent settlement of the lands is taken by the eldest member of a joint family, obviously the benefit would go to the member of the family. Even assuming therefore that Exts. A, B and C could be looked Into and full value given thereto, which, of course, Is doubtful, In view of the submissions made by Mr. Sharma, the learned Counsel for the Respondent, that they are not even signed by the landlord and they have not been proved, they do not advance the case of the Defendants any further, because under the law the property held by a member of a Joint Hindu family, particularly when he is the senior most member taking the position of a manager of the family, all the members of the family are entitled to the benefit of the property unless It can be shown that the property was acquired exclusively by the person concerned as his own self-acquired properly This presumption in the Hindu law has not been rebutted In this case. Hence, even assuming that Mr. Medhi''s argument should be given its full value. the documents Exts. A, B and C would not be of any assistance to him as they only confirm the position that the senior most member of the family was holding the property. This coupled with the findings of the courts below that the widow continued to live in the family for a number of years. Enjoyed the property and was paying rents thereof, fully supports the conclusion reached by the courts below that the Plaintiff is entitled to the declaration asked for and for joint possession In regard to the suit property.

In the result, this second appeal fails and is dismissed but in the circumstances. I make no order as to costs.