Smt. Shanti and Others vs Smt. Keshar and Others

Bela M. Trivedi, J.—The present appeal filed u/s 96 of CPC arises out of the judgment and decree dated 23.11.1981 passed by the District Judge Jaipur, District Jaipur, in Civil Suit No. 6/1971. The appellants, who are the legal heirs of original plaintiff, late Shri Bheru lal Suroliya have filed the appeal, in so far as the findings recorded by the trial court on issue Nos. 4 and 5 are concerned, and so far as the appointment of Commissioner for ascertaining the properties of Late Shri Ganpatlal Ji, is concerned. Few facts necessary for the purpose of deciding the present appeal are that late Shri Bheru lal Suroliya, (original plaintiff and the father of the appellants No. 2 to 5 and the respondents No. 4 to 7) had filed the suit being No. 6/1971 (10/69) against Shri Ganpat lal Pujari, Shri Giriraj and Shri Ram Prasad (original defendants) before the trial court for seeking declaration to the effect that he (Shri Bheru Lal) was the legally adopted son of Shri Ganpatlal and his wife Smt. Keshar, and for the recovery of possession of immovable properties and movable properties consisting of cash and ornaments as detailed in paras 4 to 15 of the plaint. During the pendency of the suit, the original plaintiff Shri Bheru Lal expired and his legal heirs i.e. the appellants No. 2 to 5 and respondents No. 4 to 7 were substituted in his place. The original-defendant No. 1 Shri Ganpatlal Pujari also expired on 19.07.1971 during the pendency of the suit, and therefore his wife Smt. Keshar was substituted in his place. During the pendency of the appeal, the said Smt. Keshar and the original-defendant No. 3 Shri Ram Prasad also expired. The original-defendant No. 2 Giriraj being son of said Shri Ram Prasad, was already on record, and therefore the other legal heirs of Shri Ram Prasad were permitted to be brought on record.

The original respondent Nos. 1 to 3-the defendants had also filed a cross appeal being No. 21/1983 before this Court qua the issue Nos. 1, 2 and 3 recorded by the trial court in the impugned judgment and decree, however the said cross appeal was dismissed for default on 24.11.1990. Hence, the said findings recorded in favour of the appellants and against concerned respondents have attained finality. As stated hereinabove the present appeal is filed by the appellants only qua findings recorded by the trial court on the issue Nos. 4 and 5 and qua the appointment of Commissioner for ascertaining the properties of the deceased Ganpatlal Ji.

It was the case of the original-plaintiff Shri Bheru lal in the suit that he was the legally adopted son of the original-defendant No. 1 Shri Ganpatlal Ji and his wife Smt. Keshar, and therefore he was entitled to get the possession of the movable and immovable properties as described in the plaint, which belonged to the forefathers of the said Ganpatlal Ji. According to the plaintiff, the said Ganpatlal Ji had the family business of money lending, and that since he did not have any child, the plaintiff was adopted by him on 04.02.1945. After some time of the said adoption, certain disputes had arisen between the plaintiff Bheru lal and his adoptive father Ganpatlal Ji, which came to be amicably settled by way of family arrangement entered into between them on 23.02.1957. According to the said plaintiff, thereafter in the year 1969 he learnt that his adoptive father Shri Ganpatlal Ji was going to take another person i.e. Giriraj, (the original defendant No. 2) in adoption and therefore he apprehended that the properties would be given away by his adoptive father in disregard to the right of the plaintiff, and hence he filed the suit.

The said suit was resisted by the original defendants, including the defendant No. 1 Ganpat lal by filing the written statement wherein the allegations made in the plaint were denied. The trial court from the pleadings of the parties framed following issues:-

The plaintiff examined as many as 12 witnesses and the defendants also examined 12 witnesses in support of their respective cases. Both the parties also produced the documentary evidence. The trial court after appreciating the oral as well as the documentary evidence adduced by the parties, partly decreed the suit vide the impugned judgment and decree dated 23.11.1981, wherein the trial court decided the issue Nos. 1, 2 and 3 in favour of and issue Nos. 4 and 5 against the original plaintiff. The trial court in the said decree held that the original plaintiff Late Shri Bheru lal was the legally adopted son of late Shri Ganpat lal and Smt. Keshar and that they were not entitled to adopt the defendant No. 2 Giriraj as their son, and that the said plaintiff Late Shri Bheru lal was entitled to get the movable and immovable properties belonging to the HUF of Shri Ganpat lal. The trial court further appointed one Shri Pooran Mal Choudhary as the Commissioner for ascertaining the details of the movable and immovable properties of the said HUF, and directed the Commissioner to submit the report within six months of the decree.

Mr. R.N. Suroliya, though a practising lawyer has appeared in person, for the appellants, he being the brother of original plaintiff Late Shri Bheru lal Suroliya. He has taken the Court to the voluminous record to submit that the decree passed by the trial court was in executable and the same was required to be amended. According to him, though the issue Nos. 1, 2 and 3 were decided in favour of the original plaintiff now in favour of the appellants, and though the movable and immovable properties were sufficiently described in the plaint, and for which sufficient evidence was also led by the plaintiff, there was no need for the trial court to appoint the Commissioner for ascertaining the properties of the deceased Ganpatlal Ji. He further submitted that though the Commissioner was appointed by the trial court, no steps whatsoever were taken by the said Commissioner nor the trial court had passed any further order in that regard pending the appeal and thus the impugned decree remained unexecuted till this date.

Mr. Suroliya further submitted that during the pendency of the suit, one Commissioner was appointed for seizing the account books of the deceased Ganpat lal, however the said account books were not traceable, and therefore the trial court allowed the plaintiff to lead secondary evidence in respect of the account books, as per the order dated 11.11.1972. He further submitted that since the defendants were in possession of the said account books of the deceased Ganpatlal Ji, and since they had failed to produce the same before the trial court, an adverse inference was required to be drawn against the defendants and in favour of the plaintiffs as regards the movable properties of the deceased Ganpatlal Ji. Relying upon the evidence of the witnesses examined on behalf of the plaintiff, Mr. Suroliya submitted that the plaintiff had duly proved the existence of movable and immovable properties as mentioned in the plaint, and that the trial court had committed an illegality in appointing the Commissioner, while partly decreeing the suit of the plaintiff. Pressing into service Section 152 of CPC, Mr. Suroliya submitted that the decree in question being defective was required to be corrected. He has also submitted that the present respondents who are the legal heirs of the original defendant No. 3-Ram Prasad, have enjoyed the possession of the movable and immovable properties of the deceased Ganpatlal Ji for 30 years during the pendency of the present appeal, and hence the appellants are required to be granted the mesne-profits under Order XX Rule 12 of CPC. Mr. Suroliya has relied upon plethora of judgments in support of his submissions which shall be dealt with hereinafter as and when necessary. Mr. Suroliya had also filed an application being No. 15580/2012 seeking amendment in the appeal memo, which was ordered to be decided alongwith the appeal, vide the order dated 25.10.2012. Accordingly the said application was also heard, for which separate order has been passed today.

Learned counsel Mr. Manish Sharma appearing for the respondent Nos. 1 to 4 as per the amended cause title, while conceding that the cross appeal filed by the respondents had already been dismissed for default, and therefore the findings recorded by the trial court qua issue Nos. 1, 2 and 3 had attained finality, he further submitted that there was no illegality committed by the trial court in appointing the Commissioner as the plaintiffs had failed to prove the movable properties and cash allegedly belonging to the HUF of Late Shri Ganpatlal Ji. According to him, even the said Ganpatlal Ji during his life time had filed the written statement in the suit denying the existence of such movable properties and cash as alleged by the original plaintiff in the plaint. He further submitted that admittedly the said Ganpatlal Ji was doing the money lending business and hence the movable properties or the ornaments or the cash lying in his house could not be said to be properties belonging to the HUF of Shri Ganpatlal Ji. According to him, neither the plaintiff nor his witnesses had stated specifically about the movable properties of Ganpatlal Ji. Mr. Sharma also submitted that in absence of any finding recorded by the trial court with regard to the movable properties of the deceased Ganpatlal Ji, and in absence of any action taken by the Commissioner appointed by the trial court, the said part of the decree could not be executed against the respondents after about 30 years of the decree. He fairly submitted that the respondents are in possession of the immovable properties namely the house and nohra as described in the plaint, and that the appellants could take possession of the same at any time.

In the instant case, though there is voluminous record and though the learned counsels for the parties had argued at length, the point involved in the appeal moves in a very narrow compass. It may be noted that Mr. Suroliya learned counsel for the appellants had strenuously argued and submitted elaborate note of submissions, relying upon the plethora of judgments for challenging the decree, which was passed practically in favour of the appellants. The trial court while recording the findings qua issue nos. 1, 2 & 3 has held inter alia that the deceased plaintiff Shri Bheru lal was the adopted son of late Shri Ganpatlal Ji, who was the defendant No. 1 in the suit and that the said plaintiff was the only heir and owner of the movable and immovable properties of the deceased Shri Ganpatlal Ji. The trial court also held that the deceased Shri Ganpatlal Ji and his wife Smt. Keshar Bai could not have taken the defendant No. 2 Giriraj Ji in adoption, when they had legally adopted the plaintiff Shri Bheru lal Ji as their son. As stated hereinabove, being aggrieved by the said findings in respect of issue Nos. 1, 2 & 3, the respondents-defendants had preferred an appeal which was dismissed by this Court for default. Hence the findings as regards the issue Nos. 1, 2 & 3 have already attained the finality. The trial court had also recorded the finding of issue No. 4 partly in favour of the deceased plaintiff by holding that the house and the nohra described in para 15 of the plaint were the ancestral properties, however the trial court further held that the movable properties mentioned in para 15 were not proved to be in existence at the time of the death of Shri Ganpatlal Ji, as Shri Ganpatlal Ji was doing the business of money lending on the basis of the ornaments pledged with him by the borrowers.

In view of the above state of affairs, the only issues required to be examined by this Court are, as to whether the plaintiff had proved the existence of the movable properties as mentioned in para 15 of the plaint as belonging to the deceased defendant No. 1 Shri Ganpatlal Ji, and as to whether the plaintiff was entitled to receive the accounts in respect of the cash, jewelleries and other movable properties mentioned in para 15 of the plaint.

The appellants, who are the legal heirs of the original plaintiff Shri Bheru lal Ji, have preferred the appeal, being aggrieved by the findings recorded on the said two issues and being aggrieved by the appointment of Commissioner for ascertaining the movable and immovable properties of late Shri Ganpatlal Ji. It is indeed very unfortunate that the present appeal remained pending for about 30 years and the appellants did not make any effort to get that part of the decree executed, which was in their favour. Indisputably there was no order passed by this Court staying the execution of the decree in question pending this appeal. Hence the appellants could have got the said part of the decree executed so far as the possession of immovable properties was concerned. According to Mr. Suroliya, the said part of the decree was not got executed because the trial court in the operative portion of the decree, had appointed the Commissioner, and the appellants were aggrieved by the said appointment of Commissioner also. He also submitted that the original plaintiff Shri Bheru lal Ji having been declared as the legally adopted son of late Shri Ganpatlal Ji and Smt. Keshar Bai and was also held to be entitled to get the possession of the immovable properties of late Shri Ganpatlal Ji, which were described in para 15 of the plaint, there was no necessity for the trial court to appoint the Commissioner for ascertaining the immovable properties of late Shri Ganpatlal Ji. Though there is some substance in the said submission of Mr. Suroliya, the Court does not agree with submission that the decree was not executable. There was no attempt made on the part of the appellants to get the possession of the immovable properties in question. Merely because the appeal was pending before this Court, that itself did not prevent the appellants from executing the decree, more particularly when there was no stay order granted by this Court. The appellants either could have moved the executing court seeking direction against the Commissioner to proceed further with the compliance of the decree in question or could have sought clarification from this Court itself at the initial stage of appeal. There was no reason for the appellants to sit idle, doing nothing for 30 years and then to agitate the issue that the trial court should not have appointed Commissioner for ascertaining the immovable properties of late Shri Ganpatlal Ji. Though it is true that as per the Order XX Rule 9, where the subject matter of the suit is immovable property, the decree has to contain the description of such property sufficient to identify the same, and where such property can be identified by boundaries or by numbers in a record of settlement or survey, the decree should specify such boundaries or numbers. In the instant case, since the house and nohra were sufficiently described in para 15 of the plaint, the trial court should have mentioned in the decree itself about the description of the said immovable properties, of which the plaintiff Shri Bheru lal was found to be entitled to get, and there was no need to appoint the Commissioner for ascertaining the immovable properties of the deceased Ganpatlal Ji. The decree passed by the trial court, to that extent was erroneous. However, it is not true to say that every erroneous decree would be in executable. If part of the decree, though erroneous had become final, there was no reason for the appellants to get the said part of the decree executed in accordance with law. If there was any error or mistake committed by the trial court in part of the decree, the same could have been got amended from the trial court as per the provisions applicable for getting the decree amended under the CPC, more particularly when as stated hereinabove, the cross appeal filed by respondents against the said issue Nos. 1, 2 & 3 pertaining the right of the plaintiff to get the possession of the immovable properties in question was dismissed by this Court, and when there was no order passed by this Court staying the execution of the said decree pending this appeal. That having not been done by the appellants, for 30 years pending this appeal, it could not be said that the respondents did not hand over possession of the immovable properties, or that they were in wrongful possession of the said properties, entitling the appellants to get the mesne profits. The appellants at the fag end of the appeal had filed an application seeking amendment in the appeal memo for incorporating various reliefs of declarations and mesne-profits. The Court has rejected the said application of amendment by a separate order.

It was sought to be submitted by the learned counsel Mr. Suroliya for the appellants that the court could have taken cognizance of the subsequent events and granted the relief of mesne-profits even without praying for the same, as the respondents were found to be in wrongful possession of the immovable properties. At this juncture, it is required to be noted that as per the definition clause contained in Section 2(12) of CPC, the mesne-profits of property means those profits which the person in wrongful possession of such property actually received or might with ordinary diligence have received therefrom, together with interest of such profits. In the instant case, apart from the fact that there was no prayer of mesne-profits sought for by the original plaintiff or by the present appellants who were substituted in place of original plaintiff in the suit, there was also no prayer made by the appellants in the present appeal for 30 years during which the appeal remained pending, nor the appellants had been able to show that the respondents were in wrongful possession and had received profits from the said properties. If the appellants had got up from their slumber after 30 years of the decree, if they did not take any action either to get the Commissioner appointed as per the decree passed by the trial court or to get the decree amended from the trial court or seek clarification in the present appeal itself at the initial stage, it could not be said that the possession of the said house and nohra with the respondents was wrongful, entitling the appellants to claim mesne-profits from them under Order XX Rule 12 of CPC.

The only issue which remains now for consideration by this Court is, whether the plaintiff had proved that the deceased Ganpatlal Ji and Smt. Keshar Bai had the movable properties i.e. cash, gold and silver ornaments as described in para 15 of the plaint on the date of filing of the suit. In this regard Mr. Suroliya has relied upon the oral as well as the documentary evidence led by the plaintiff in the suit. According to him, the plaintiff had examined 12 witnesses including plaintiff himself and they had deposed in their respective depositions that late Shri Ganpatlal Ji had the said movable properties with him. Mr. Suroliya has also relied upon the documentary evidence namely the search memo dated 07.08.1971 at Exhibit-10, memo of returning the seized articles to Smt. Keshar dated 06.09.1972 at Exhibit-11 and the inventory made by the court commissioner dated 27.03.1969 at Exhibit-12.

Now, so far as the oral evidence led by the plaintiff in the suit is concerned, the plaintiff himself was examined as PW-2. He has stated in his evidence interalia that late Shri Mangi lal was the elder brother of Ganpatlal Ji and said Mangi lal was doing the business of money lending. He further stated that the said Mangi lal died within 1 or 2 months of his adoption by Ganpatlal Ji, and that after the death of Mangi lal Ji, he (plaintiff) and his father had taken over the possession of all the properties of Mangi lal Ji, because the said Mangi lal Ji did not have any child. According to him, the said properties of Shri Mangi lal Ji comprised of cash amount of Rs. 30,000/-, gold ornaments weighing about 150 tolas and silver ornaments weighing about 300 tolas, and the immovable properties namely one house and one Nohra. He had also described the nature of ornaments in his evidence and further stated that after the death of Mangi lal Ji, his business of money lending was continued by him and his father and the accounts were being maintained in the names of Ganpat lal Bheru lal. In the cross examination by the learned counsel for the defendants, the said plaintiff Bheru lal had categorically admitted that he had stated about the movable properties and jewelleries, on the basis of his memory. He had further admitted that the weight of the ornaments was mentioned in one ''bahi'', which he had seen and he remembered the weight of ornaments mentioned in the said ''bahi''. From the said evidence of the plaintiff himself, it clearly emerges that the gold and silver ornaments mentioned in para 15 of the plaint originally belonged to late Shri Mangi lal Ji, elder brother of Ganpatlal Ji, who was doing the business of money lending, and that the plaintiff had allegedly seen the said ornaments when the said Mangi lal Ji died, and when Shri Ganpatlal Ji allegedly got the possession of the said ornaments. According to the plaintiff, the said Mangi lal Ji had died within 1 and 2 months of his adoption, which had taken place in February 1945. Therefore, even as per his own version, the said ornaments were seen by him after the death of Mangi lal Ji when Ganpatlal Ji got the possession thereof some where in March or April 1945. It is pertinent to note that the plaintiff had filed the suit in the year 1969. Hence, it is difficult to believe his version before the court that he remembered the weight and style of ornaments which he had seen in 1945. There is nothing on record to suggest that the said gold and silver ornaments left by Mangi lal Ji were possessed by Ganpatlal Ji as his own properties when the plaintiff filed the suit in 1969. As rightly observed by the trial court since Mangi lal Ji and after his death, Ganpatlal Ji were doing the business of money lending on the basis of the ornaments pledged by the borrowers, it could not be said that the said ornaments belonged to the said Ganpatlal Ji or that they were in existence when the suit was filed.

Though learned counsel Mr. Suroliya for the appellants has relied upon the statements of other witnesses examined by the plaintiff to contend that some of the ornaments mentioned in the plaint were seen by the said witnesses when the same were worn by the ladies of the family of Ganpatlal Ji. The Court does not find any substance in the said submission. The Court has minutely gone through the evidence of the said witnesses and found that none of the witnesses had any personal knowledge about any of the ornaments mentioned in the plaint, much less about the cash allegedly held by Shri Ganpatlal Ji as claimed in the suit. The entire oral evidence led by the plaintiff in the suit suffered from vagueness and inaccuracy, and therefore could not be relied upon.

So far as the documentary evidence relied upon by the learned counsel Mr. Suroliya for the appellants is concerned, Exhibit-12 pertains to the inventory memo dated 27.03.1969 prepared by the court Commissioner appointed by the court in the suit. In the said inventory, it appears that the Commissioner had mentioned about few account books produced before him. The plaintiff thereafter appears to have called for the said account books from the defendants in the suit by filing the application and the court also appears to have directed the defendants to produce the same, however all the account books having not been produced by the defendants on the ground that they were not traceable, the court had granted permission to the plaintiff to lead secondary evidence in that regard. Mr. Suroliya relying upon the decisions of the Apex Court in case of Gopal Krishnaji Ketkar Vs. Mahomed Haji Latif and Others, ; in case of Atyam Veerraju and Others Vs. Pechetti Venkanna and Others, , submitted that if a party in possession of the best evidence which would through light on the issue in controversy, withholds the said evidence, an adverse inference is required to be drawn against it u/s 114(g) of the Evidence Act. According to him the defendants having not produced the account books, the case of the plaintiff was required to be believed by the trial court so far as the movable properties of Shri Ganpatlal Ji were concerned. The Court does not find any substance in the said submission of Mr. Suroliya, in as much as from the record it transpires that the defendants having not produced all the account books as asked for by the plaintiff, on the ground that they were not traceable, the trial court had permitted the plaintiff to lead secondary evidence with regard to the said account books, but the plaintiff had not produced any secondary evidence whatsoever in this regard. If the account books were not produced by the defendants, it could not be held that the deceased Ganpatlal Ji had the movable properties of gold and silver ornaments and cash as alleged by the plaintiff, when the suit was filed by him. It is needless to say that the plaintiff has to prove his case by leading cogent and reliable evidence and cannot succeed on the weaknesses of the defendants.

So far as the documents at Exhibits 10 & 11 are concerned, it may be stated that as transpiring from the record, after the death of his adoptive father Shri Ganpatlal Ji on 19.07.1971, the plaintiff had filed a criminal complaint against his adoptive mother Smt. Keshar (who was substituted in place of original defendant No. 1 Shri Ganpatlal Ji after his death in the suit), for the offence under Sections 380 and 381 of IPC. The said case was registered as being No. 61/71. During the course of investigation of the said criminal case, a search memo dated 07.08.1971 Exhibit-10 was prepared by the police. As per the said search memo Exhibit-10, some ornaments and papers were seized by the police. It further appears that the said seized articles were returned by the Investigating Officer to Smt. Keshar on 06.09.1972 as per Exhibit-11. Therefore, from the said documents, at the most it could be said that Smt. Keshar, wife of late Shri Ganpatlal Ji was in possession of the articles mentioned in the search memo Exhibit-10 and the receipt memo Exhibit-11. As per the search memo Exhibit-10, some cash of Rs. 2194, and some small silver and gold ornaments and other papers like ''bahi'', note of account, etc. were found. As per Exhibit-11, Smt. Keshar had given the receipt in token of having received one sealed packet from the police. Thus, on the overall consideration of the evidence on record, it could be held that the plaintiff had proved the existence of the gold/silver articles and cash found from the house of Smt. Keshar as per the search memo Exhibit-10 only, and that the plaintiff or the appellants who were his heirs, would be entitled to recover the same from the defendants i.e. the present respondents. Since there was no clarity on the said evidence led by the plaintiff with regard to the movable properties, the trial court appears to have appointed Commissioner to ascertain the movable properties of the said Ganpatlal Ji, the original defendant No. 1 in the suit, while passing the decree. It cannot be gainsaid that as per the provision contained in Order XX Rule 10 of CPC, where the suit is for movable property, and the decree is for the delivery of such property, the decree should state the amount of money to be paid as an alternative, if delivery cannot be had. As rightly submitted by Mr. Manish Sharma learned counsel for the respondents, at the most the appellants would be entitled to get back the ornaments and cash amount mentioned in Exhibit-10 with interest or in the alternative the equivalent value of the said ornaments.

As discussed hereinabove, the cash and the ornaments mentioned in para 15 of the plaint were taken over by Shri Ganpatlal Ji after the death of Shri Mangi lal Ji in the year 1945 and there was no evidence to show that the said ornaments remained with Ganpatlal Ji, who was also doing the business of money lending, when the suit was filed by the plaintiff in 1969. Thus, what the plaintiff or the appellants could not prove by leading cogent evidence in the suit, could not have been ascertained by the Commissioner after the decree in the suit, and therefore the appointment of Commissioner by the trial court for the purpose of ascertaining the movable properties of late Shri Ganpatlal Ji was clearly erroneous and not legal and proper. The trial court on the overall appreciation of the evidence was required to come to a definite conclusion as to whether the plaintiff had proved the existence of the movable properties of late Shri Ganpatlal Ji or not, and if yes, which of the movable properties mentioned in para 15 of the plaint, and whether the plaintiff or his heirs i.e. the appellants, were entitled to recover the said properties or not, and if not what would have been the value of the said properties on the date of decree. In the instant case, except the search memo Exhibit-10, there was no cogent and reliable evidence adduced by the plaintiff to show that the deceased Ganpatlal Ji had the ornaments and the cash as mentioned in para 15 of the plaint, and therefore it is required to be held that the appellants would be entitled to recover the movable properties i.e. the cash and the ornaments as mentioned in the said Exhibit-10. However, in this regard it is also required to be noted that the said search memo Exhibit-10 was prepared on 07.08.1971, to which about 40 years have expired, and therefore it is difficult to hold that the respondents would be possessing the said ornaments as on today. Under the circumstances the only alternative left with the Court is to hold that the appellants would be entitled to receive from the respondents the ornaments mentioned in Exhibit-10 or the amount equivalent to the market value of the said ornaments as on today, and further the amount of Rs. 2194/- with interest at the rate of 9% per annum thereon. In view of the above, it is directed that the respondents shall hand over possession of the immovable properties i.e. the house and the nohra as described in the plaint to the appellants. They shall also deliver the possession of the ornaments mentioned in the search memo Exhibit-10, or in the alternative pay the amount equivalent to the prevailing market value of said ornaments as on today, and further pay the cash amount of Rs. 2194/- with interest at the rate of 9% per annum thereon from the date of suit till realisation. The decree dated 23.11.1981 passed by the trial court in civil suit No. 6/1971 stands modified accordingly. The appeal stands partly allowed accordingly.