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Judgment
Baxi, J.—The Appellants have preferred this appeal lust the dare of the Civil Judge, Senior ''Division, Junagadh dismissing their suit for partition of moveable and Immovable properties left by their deceased father Jadavji Rupee.
Jadavji held in Eombay in about January of 1938. He left a widow Mankunver. The Appellants are his sons by Mankunver. The Respondent 1 is his son by a predeceased wife. Both Appellants were of tender ago at the time of Jadavji s death. Jadav is properties comprised of a house in Una, certain outstanding and ornaments.
Shortly after Jadavji''s death the parties returned to unamand were staying in the residential house. Mankunver was suffering from T. B. and a certificate dated 30-8-38 signed by the Medical Officer, Sanakhada Dispensary, shows that she was under his treatment for two months and was bed ridden and in no condition to be moved from bed. She died in a Bombay hospital on 17-10-38 and since then the minors have lived with their maternal uncle Chunilal at Sanakhada.
The Appellants claim by this suit a two-third share in the properties left by Jadavji audi for accounts. Their case is that the properties left by Jadavji have been undivided. They also alleged in para 4 of the plaint that in answer to the air claim for partition, an alleged partition in writing between him and Mankunver was being set up by Respondent 1. They alleged that when Mankunver was made to execute this document she was in very miserable and helpless condition and her consent to it was obtained by undue influence and therefore it was not binding on them. They farther alleged that they were not bound by the partition as it was prejudicial to their in West''s.
Appellant 1 came of age some time before the institution of the suit, while Appellant 2 was and is still a minor. Respondents 2 and 3 are the mortgagees of the house from Respondent 1. Respondent 3 has obtained a decree in respect of this mortgage and has applied for execution of ills decree by the sale of the mortgaged house.
Respondent 1 denied the Appellant''s right to claim partition alleging that a partition had been already effected by u written agreement between him and Mankunver acting as the guardian of her minor sons. The agreement is signed by Respondent 1 and by Mankunver''s brother Chunilal on her behalf. It is attested by Jadavji''s brother Kalidas Rupjee, Gandhi Karamchand Jagu-bhai, Shah Purshottam Juthbhai and Dayal, son of Kalidas.
All the attesting witnesses except Dayal are dead. Respondent 1 denied all allegations of undue influence and alleged that the partition was made after taking into account the value of the property and the minor''s share was delivered to Mankunver in pursuance of her wishes and arrangements were made for proper administration of their share in accordance with the advice of elder�s on the family and Mankunver''s brOrs. . The terms of the partition have thus been duly carried out, a fact which Sbp, Appellants have denied by the plaint. He also pleaded that the suit was barred by limitation and adverse possession Respondents 2 and 3 urged that their mortgages were binding on the Appellants. Respondent 2 alleged that he had made reasonable enquiries as to Respondent l''s title before advancing money to him on the house. He further alleged that he advanced money to Respondent 1, who was the ostensible owner of the house, and on this ground also the Appellants were bound by Ids mortgages, Respondent 3 urged that the Appellants were bound by his decree.
The learned Civil Judge held that the alleged partition was proved and duly carried out and the parties were in possession and enjoyment of their respective shares. He held that Mankunver had the right to consent to the partition in her capacity as the natural guardian of her minor sons so as to bind them and rejected the Appellants'' plea of undue influence. But on the question of limitation and adverse possession he held in their favour. The Appellants have preferred this appeal against the learned Civil Judge''s decree.
The agreement was produced by Respondent 1 after the Appellants'' evidence was recorded and it is at Ex. 51 in the papers of the suit. As it was Opt produced while Chenille was being examined on behalf of the Appellants, he was recalled by the Court and he admitted that he had signed the agreement under Mankunver''s instructions. The genuineness of the agreement is therefore established.
It is however, necessary to notice certain features of the trial and also the circumstances under which the agreement was produced by Respondent 1. The suit properties were admittedly ancestral properties and the Appellants have prima facie a we thru share therein.
The alleged partition is set up by Respondent 1, and the burden of provinqg it lay upon him and therefore it was for him begin and lead his evidence to prove the agreement before the Appellants could be called upon to lead their evidence to prove it: invalidity. The following issues were framed on the pleadings:
1.Does Defendant 1 prove that the suit property partition of joint family property as alleged Laic
Do Plaintiffs prove that the properties in question are still joint family properties?
3.Do the Plaintiffs prove the facts stated it plaint 4 (ullepUout) of undue influence of the terms of the Petitioner having been earn educe). If so, what is its effect on the suit?
The issues were thus correctly framed, and the burden of proving the agreement of partition in the first instance was thrown upon Respondent 1 arc) 11'' was the duty of Respondent 1 to lead evidence to prove it. It was also his duty to produce the agreement with his written statement or at least produce at the first hearing a list of documents on which he relied and include the agreement in the list, But he did none of these things. He was not even called upon to begin and the trial opened by the Appellants leading their evidence. The result was that before the agreement was proved or even shown to the Appellants or to the maternal uncle Chunilal, who had signed it, they, were called upon, to prove its invalidity and Respondent 1 was thereby enabled to withhold the agreement from them and from the Court till the last. This was haply unfair to the Appellants and we do not exonerate) either the Appellants'' pleader or the learned Civil. Judge for unjustifiably committing the Appellants to a particular position in advance before the agreement was first proved.
Another notable feature of the trial was that Respondent 1 being a party witness, it was his duty to go into the box first and produce the agreement at least at that stage and before examining his other witnesses. Instead of doing so, he was allowed to examine all his witnesses first and examine himself last and the normal procedure was thus reversed. This practice is Universally condemned and the Civil Judge should not have allowed it.
It was at this stage i.e. practically at the close of the trial that Respondent l produced the agreement and strangely enough the learned Civil Judge allowed him to do so. Respondent l''s excuse for not producing it earlier was that it was lying with ''Vakil Jamnadas, who had drafted it and who was evidently advising Respondent 1. We do not for a moment believe that the agreement could not be produced earlier because it was with Jamanadas.
One of the terms of the agreement was that it was to be carried out within a month and the then Jamanadas was to retain it on behalf of the parties. Now Respondent l''s own case in his written statement was that the terms of the agreement were fully carried out by delivery of the minor share to Mankunver.
The case which he made out in the course of the trial was that ornaments and cash, which formed the bulk and the most valuable portion of the minors'' share were made over to Jamnadas on 2-8-38 while household articles were delivered to Mankunver. The agreement had thus been completely carried out according to Respondent 1, and Jamnadrs must have returned the document to him. He would not otherwise part with the minors'' share to Jamaadas but insist upon its return as a safeguard ugalnsi a possible claim by The minors in future. At any rate when the suit was filed and. It we came necessary for Respondent 1 to rely upon agreement, he would have obtained the agreement if Jamanadas before filing his written statement. Iincr Respondent 1 is contradicted by Dayal Kalias, Ex. 33, who says that it was lying with him at home, though he had not brought it in Court. Respondent 1 did not examine Jamnadas to prove that the agreement had remained with him during all these years.
A witness summons was no doubt issued to Jamnadas but it was sent to a Rajkot address, though Jamnadas was in Bombay at the time. Whether the summons was intentionally sent to a wrong address or not it is not possible to say, but the fact that Jamnadas did not come because the sum ones was not served on him and the Respondent did not bring him in Court.
Therefore we have only the bare word of Respondent 1 that the document was in Jamnadas''s possession which cannot be accepted and it appears that the document was intentionally not produced at the first hearing and shown to Chunilai. However, Chunilal having admitted execution of the document its genuineness cannot be questioned and we accordingly hold that the agreement of partition is proved.
The next question is whether the terms of the agreement were carried out as alleged by the Respondent 1 and if so what is its effect on the juit Respondent l''s case in the written statement was that the minors'' share was handed over to Mankunver according to the terms of the agreement, tint Makunver was lying seriously ill in SankhacSa. The inuixal eeitilicate shows that she must be in bed since about the end of June and the allegation that the ornaments and cash were handed over to her cannot for a moment hold water.
In fact this case was abandoned during the trial and it was sought to be proved that the ornaments and cash were made over to Jamnadas. This is (deposed to by Respondent 1 and Dayal Kalidas. A receipt dated 2-8-1938 purporting to be signed by Jamnadas is also produced by Respondent 1. This recent was neither produced at the first hearing nor included in the list of documents on which Respondent 1 relied and it was not even put to Appellant ) and Chunilal, while they were in the box, that cash and ornaments were delivered to Jamnadas.
There was no excuse for Respondent 1 for withholding this receipt from the Court as admittedly it was in his possession and we have to rely upon his bare word for holding that the receipt is genuine. The receipt is made out in the name of Respondent 1 ''haute'' Kalidas Rupjee. The ornaments and cash must therefore have been delivered to Jamnadas by Kalidas and the receipt must have been given to him. But Kalidas is dead. Therefore the only person who could have proved the receipt was Jammidas. But he was not examined.
In the absence of Jamnadas, Respondent l''s allegation amounts to a mere admission in his favour. Dayal no doubt deposes that the minors'' share was delivered to Jamnadas, but he cannot be relied upon as we shall presently show. Therefore not possible to hold that any payment was he is to Jamnadas. But even if it is held proved that cash and ornaments were delivered to Jamnadas, there is no evidence that Mankunver had authorised him to receive them on her behalf. She Was ljIvg ill in Sanakhada, while the ornaments and cash were made over; to him In Una, Under the circumstances, delivery to Jamnadas did not have the effect of giving a legal discharge to Respondent 1 and Respondent 1 may pursue such remetles against Jamnadas which may be open to him.
Some household articles are alleged to have been delivered to Mankunver in pursuance of the agreement of partition. Dayal Kalidas deposes to it and even produced a list, Ex. 36, of the articles so delivered. The list is written on a stray piece of paper. Some of the items are written in ink and some items are written in pencil. The list bears the date Chaitra Vad 5 Tuesday but does not mention the year in which it was written.
Dayal is not able to explain-why the list was written partly in ink and partly in pencil nor is he able to remember the year in which he had written it. The list has therefore no evidentiary value. Dayal''s evidence cannot therefore be relied upon and in the absence of other cogent evidence Wecan-not hold that Mankunver received any household articles in pursuance of the partition. Respondent 1 and Dayal have deposed that several sums of money were paid to Appellant 1 on the strength of chits written by Kalidas Dayal has produced a statement Ex. 38, showing that a, total of Rs. 280/-was paid to him in several small sums.
We do not know from what material this statement was prepared. Appellant 1 Hiralal admits having received some payments from Jamnadas, but he says that they were paid by his uncle Kalidas by way of scholarship. Jamnadas is the only person who could have proved these payments, He would also have produced the alleged chits.
But as Jamnadas has not been examined, and the chits are not produced, we cannot hold that any payment was made to Appellant 1 towards his share. We hold therefore that the terms of the agreement of partition have not been carried out by the deli-, very to the minors of their share.
The third question is whether Mankunver had authority to enter into the agreement of partition on behalf of the minors. Now Mankunver, being the mother and natural guardian of the minors, had undoubtedly the authority to consent to the partition and the minors would be bound by it, but not if the partition is unfair and prejudicial to their interests. The principle has been stated in Mulla''s Hindu Iaw, Edn. 11, Section 308(2) p. 394, where; the learned author remarks that:
A partition by agreement, though entered into during the minority of a coparcener, is binding on the minor, unless it is unfair, or prejudicial to his, interest. If the partition is unfair or prejudicial! to the minor''s interest, the minor may, on attaining, majority, have it set aside by proper proceedings so far as regards himself.
The Appellants allege that the agreement was unfair. It will therefore be necessary to examine its terms. By the term of the agreement the property was to be divided into two shares, one share going co Respondent 1 and the other share to the minors and Mankunver between them. Now under the Hindu Law, Respondent 1 would have been entitled to only one-fourth share from Jadavj is property while the Appellants and their mOrs. were each entitled to l/4th share.
But the share to which Mankunver was entitled was given away to Respondent 1 for equalising his share. This is highly unfair to the minors for, they were deprived of their chance to inherit her-share as her reversionary. The house was allotted to Respondent 1, while the minors were to receive the outstanding and were made responsible for'' their collection.
One of the defenses in the written statement of Respondent 1 was that the minors'' emulator partition was not competent without first setting aside the agreement of partition and as their suit, for chat relief was barred by limitation, their present suit for partition could not be maintained.
We do not agree, for the minors are entitled to treat the agreement as nullity and need not get it formally set aside before suing for partition. We might mention here that the learned Advocate for the Appellants urged that the partition not having been registered, its terms could not be proved by Respondent 1 so as to affect the Immovable property.
This argument is not sound for the so called partition is merely an agreement to partition Jadnvji''s property in future and did not effect a present separation of shares by metes and bounds. It was, therefore, not necessary to get the agreement registered and Respondent 1 is entitled to produce it and show that its terms had been carried out.
The next question is whether the Appellants prove that Mankunver''s consent to the agreement was induced by undue influence. Chunilal having admitted execution of the agreement in answer to -the Court''s question and as he did not allege that consent of Mankunver was induced by undue influence the learned Civil Judge held that the allegations of undue influence were not proved.
The learned Civil Judge is wrong in coming to this conclusion. It is not fair to expect him to depose to the exercise of undue influence on Mankunver before the document was shown to him. It was shown to him at the close of the trial after being recalled and questioned by Court as to its execution. It was, therefore, the duty of the Civil Judge to put him specific question as to the circumstances under which the agreement was executed by Mankunver.
Not having questioned him on this point, it was mot fair to draw any adverse inference against the Appellants. But apart from that the circumstances under which Mankunver is proved to have signed the agreement raise a presumption of undue influence and the burden lay heavily upon the Respondent and the caste had actually met to investigate into his complaint. He however says that Mankunver had given a categorical assurance to the caste that she was not ill-treated by him or other members of his family.
Both Respondent 1 and Dayal are interested in denying the allegation of ill-treatment and wrongful confinement, Respondent 1, because he would fail if he did not deny the allegation, and Dayal, because having attested the agreement, he must uphold it and deny the allegation. We, therefore, attach no importance to their denial. Respondent 1 has a tod very unfairly during the trial by not producing the agreement of partition and the receipt parted-1'' Janmadus at the first hearing, and in view of tie circumstances we accept Chenille''s statement that Mankunver was confined in the house and she was not allowed to see her own brother.
The other circumstances, that by the end of June Mankunver was completely bed-ridden and ultimately died, of T. B. Evidence is not clear when her illness began, but it is safe to assume that she had contracted the disease in April when she signed the agreement. Therefore besides being subjected to restraint, she was ill when she signed the agreement. She had also no independent advice as, the following facts will show.
Jadavji''s brother Kalidas and Jamnadas appear to have taken a prominent part, in bringing next the agreement and Respondent 1, who was a boy of about 22, at the time, was evidently guided by team. But Kalidas sacrified the minors'' interests and did not advise Mankunver properly as to her rights.
Jamnadas must have been hired by Kalidas, for it is unthinkable that Mankunver was consulted in the selection of Jamnadas and it is only natural that Jamnadas was not interested in correctly advising her. He had evidently benefited vastly by the agreement, because according to the terms of the receipt he is in possession of the minors'' share and had not even to pay interest on it as it was lying in deposit with him without interest till Mankunver gave a pucca receipt. Thus, Mankunver had no independent advice.
The Appellants'' allegation in the plaint that she was ill-treated by Respondent 1 and she was made to execute the document while she was in a miser, able and helpless state are amply justified by the above circumstances, and it must be taken that her will was impaired by illness, isolation and the restraint to which she was being subjected. These circumstances further show that Respondent and his advisers were in a position to dominate her will.
The transaction was undoubtedly unfair to the minors and it must be presumed that Mankunver''s consent to the agreement was induced by undue influence and the burden of rebutting the presumption lay on Respondent 1. This burden he has not discharged and in the result the agreement cannot bind the minors. In Abdur Rauff v. Mt Aymona Bibi, 1937 Cal 492 (AIR v. 24) (A) in which certain gifts were challenged on the ground of undue influence, the Court laid down the following tests in dealing with such cases of undue influence viz.
Whether the transaction is a righteous transaction i.e. whether it is a thing which a right minded person might be expected to do;
Whether it was improvident, that is to say, whether it shows so much improvidence as to suggest the idea that the donor was not master of himself and not in a state of mind to weigh what he was doing.
Whether it was a matter which required legal advice, and 4. Whether the intention of making the trans for originated with the transferor.
The impugned agreement of partition answers nil these tests, except that the proposal for partition does not appear to have emanated from Respondent 1. Considering that he was also about 22 years of age on the date of the agreement; the proposal must have emanated from his uncle Kalidas. But whether this was so or not, it does not affect the main fact that Mankunver''s consent to the agreement was obtained by undue influence.
The Respondent''s learned Advocate next argued that the Respondent''s title had become perfected by adverse possession against the Appellants. Now the Respondent''s adverse possession commenced on 16-4-38. The Appellants'' suit for possession would therefore be barred after twelve years i.e. on 15-4-50. The Appellants however were minors when the adverse possession commenced. There is no evidence of the actual dates of their birth.
Respondent 1 states that when their father died Appellant 1 was about 10 years of age, which may mean that he was either running his 10th year or red completed 10 years in January. 1938. Chemical however states that Appellant 1 was at that time between 4 and 5 years of age and we prefer to accept his word against the word "of Respondent 1. If he was of 5 years of age in January, 1938, be would attain majority in January 1950 or in 1951 according as to whether he had completed 5 years in January, 1938 or he was running his 5th year on that date.
In either case, he would be entitled to a further extension of 3 years after attaining majority u/s 6, Indian Limitation Act and he would, therefore, be entitled to bring his suit in January, 1953, at the earliest. The suit was actually instituted in September, 1951, and the Respondent had not fully corn-Petitioner the period of 12 years of adverse possession mi that date. Appellant 2 was admittedly a minor an the date of the suit and no question of adverse possession arises in his case. Respondent l''s Plea of limitation and adverse possession must therefore be dismissed.
The defence of Respondents 2 and 3 that the Appellants were bound by Respondent l''s mortgage is without any substance. There is no question of ostensible ownership or inquiry into Respondent l''s title. The property was indisputably ancestral property of the parties and the minors can-not be bound by any representation made by Respondent 1. Mankunver had died in 1938 and Appellant I did not attain majority till some time in 1950 or 1951.
All the mortgages were affected after Mankunver''s death and before the Appellants attained majority. There is therefore no question, that the mort gees were induced to advance money to resubmit 1 by anything done or omitted to be done by Mankunver or the minors. There is also no question of Respondent 1 being allowed by Mankunver or tire minors to Amid himself out as an ostensible owner of the heinies, Toil Appellants'' sham cannot therefore be bound by the mortgages created in favour of Respondents 2 and 3.
We regret to say that the learned Civil Judge (Mr. D.L. Master) did not apply his mind to lie substance of the dispute and did not control the proceedings. He even reversed the proper procedure of the trial, which has resulted in substantial prejudice to the minors. He did not care to analyses the terms of the agreement and the handing over of minor''s property to an unauthorised person was or no moment to him.
The whole trial and the manner in which various costing are dealt with by him show a per-footway approach to the case. The learned Civil Judge was dealing with minors'' claims and did hot Show that regard for their interests. Which every, Court is under an obligation to pay.
The decree of the teamed Civil Judge, is for reasons stated above, set aside and preliminary decree for partition is passed. The Appellants are declared entitled to a two-third share in the property left by Jarvis and Respondent 1 is ordered to pay, their share to them free from all encumbrances Created by him. The Appellants'' share is declared free from the mortgages created in favor of Respondents 2 and 3.
Respondent 1 should render account of any rents collected by him. Respondent 1 is further ordered to pay the Appellants'' costs throughout and he is also ordered to pay the court-fees in the suit as well as in the appeal to the Government. Respondents 2 and 3 are ordered to bear their own costs. A copy of the decree should be sent to the Collector.
Shah, C.J.
I agree.