9911796707
TMI Blog1969 (2) TMI 195X X X X Extracts X X X X X X X X Extracts X X X X ..... sons and daughters. The parties are descendants of a common ancestor. According to the admitted genealogy Ram-deyal Mishra's father Ratan Mishra had one brother Hikayat Mishra. Defdts 1 to 3 Rambilas Mishra, Brahma Mishra and Anesa Mishra are sons of Hikayat Mishra. Ratan Mishra had four sons, two of whom are dead and the remaining two are defendants 4 5 Tribeni Mishra and Kaule--shwar Mishra. Defendants 6, 7 8, Gopi-Mishra, Gautam Mishra and Mosst. Raj-pati Kuer are the two sons and widow of Bishun Dayal Mishra, one of the deceased brothers of Ramdeyal Mishra, while defendants 9, 10 and 11 are the sons and widow of the other deceased brother Kishuni Mishra. It appears that there was a previous partition suit between the parties namely Partition Suit No. 31 of 1958 in which a compromise petition was filed and the suit was decreed in terms thereof. According to the terms of the compromise, some of the lands of the family were left joint between all the members of the family, that is, the descendants of both Ratan Mishra and Hikayat Mishra, while some other lands. were left joint as between the descendants of Ratan Mishra alone, that is, plaintiffs Ramdeyal Mishra and his br ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... recital in the compromise petition. On the other hand, the case of the defendants 4, 6 and 7 was that the plaintiff had taken their signatures on a blank paper at their village home and he had thereafter gone to Chapra and got the compromise petition scribed out there and had filed the same thereafter and, as such, they Had no knowledge of the incorporation of the above recital in the compromise petition. 4. The learned Subordinate Judge rejected the version of the contesting defendants about the aforesaid recital in the compromise petition having been fraudulently inserted therein by the plaintiff without any knowledge of these defendants and held that there was no fraud whatsoever in connection with the corn-promise and the defendants had signed the compromise petition with the knowledge of its contents. He further held that the contesting defendants had failed to prove that there was any such nucleus of joint family from the income of which the aforesaid lands could have been acquired. He also held that the plaintiff had produced satisfactory evidence to prove that he had some money with his wife with which he could purchase the aforesaid lands and the joint family had no co ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... against Kesho Mishra and others, this Court sale having taken place on 8-10-31 for a sum of Rs. 255 and the purchase therein was made by Ramdeyal Mishra, that is, the plaintiff of the suit out of which these appeals, have arisen. As this purchase was made in the year 1931, there cannot be the slightest doubt that the purchase was made at a time when all the parties were members of a joint Hindu family. It is well settled that even in case of members of a joint Hindu family, there is no bar to the acquisition of separate properties by individual members. But in such a case if it is found that the joint family had a sufficient nucleus which left sufficient surplus income from which subsequent acquisitions could be made, there would be a presumption that the subsequently acquired properties are also joint family properties and the onus would shift on the member claiming any such acquisition as his separate property to prove that it is so. In this connection, it may be mentioned that as held by the Supreme Court in the case of Shrinivas Kishna Rao v. Narayan (AIR 1954 SC 379:1955-1 SCR 1) and as also pointed out in the Mulla's Principles of Hindu Law at Page 261 (13th Edition), ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e extent of the joint lands or the income thereof in or about 1931, when the acquisition in question took place, the aforesaid broad statement in the plaint of the previous suit to the effect that the family had sufficient properties from the income of which acquisitions were made in the names of different members is hardly sufficient for holding that at the time when the acquisition in question took place, in the year 1931, the joint family had a sufficient nucleus from the surplus income of which the acquisition in question could have taken place. In face of these facts, it is not possible to accept the contention of the appellants that it must be presumed in this case on the materials on record that the joint family had sufficient nucleus out of the surplus income of which the acquisition in question could have taken place and that, as such, there is a presumption that the property in question was a joint family property. Moreover, even if it is held that there is any such presumption, this presumption is after all a rebuttable one and it is for the Court to decide on consideration of all the materials on the record, whether the property in question is a joint family property ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed by the wife of the plaintiff Ramdeyal Mishra by virtue of the sale by her and it is manifest that this was her per-sonal money with which the members of the joint family had no concern. It is, no doubt, true that the acquisition of the disputed land in village Mohammad Patti took place more than 11 years after execution of the aforesaid sale-deed, but there is nothing to show that the amount which was realised by the wife of the plaintiff as a result of the execution of the sale-deed had been spent by her before the date of the acquisition of the property in question in the year 1931. As such, there is nothing improbable in the version of the plaintiff that the acquisition of the disputed property which was made for a sum of Rs. 255 only had been made by him out of the money belonging to his wife which his wife had got as consideration money for the aforesaid sale-deed of 1920. It would thus follow that while there is no reliable evidence on the one hand to show that the acquisition was actually made out of any joint family funds, there is some reliable evidence which gives support to the case of the plaintiff that the acquisition had actually been made out of sum which belonged ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ut their signatures without going through the contents of the documents and there is no other evidence also to that effect. On looking to the compromise petition itself, however, it would appear that it purports to have been signed by defendants No. 4 Tribeni Mishra through his son Lachhman Mishra as well as by defendants 6 and 7. Gopi Mishra and Gautam Mishra personally and so far as defendants 4 and 6 are concerned, there are endorsements above the signatures as follows Executed compromise petition. It is correct. Similarly, so far as defendants No : 1 is concerned, he has put his signature with the endorsement Executed compromise petition . There are similar endorsements about the compromise petition having been executed and it being correct above the signatures of some other defendants as well. In face of the above endorsement as made above the signature it is difficult to accept the version of defendants 4 to 6 about their signatures having been put on blank papers. As for the allegation by defendant No; 1 that he had signed the compromise petition without reading its contents, it appears from his own statement in cross-examination that he took a copy of the compromise peti ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t of the version that the compromise petition was signed by the parties after its contents had been duly read over. Our attention was drawn to the fact that there are some discrepancies in the statements of the witnesses on the point as to who prepared the draft of the compromise petition and who read out its contents. 11. The witnesses who have been examined on this point on behalf of the plaintiff or the plaintiff himself, who has been examined as P. W. 3, P. W. 1 Treta Prasad Singh, who is a Pleader's clerk and claimed to-have scribed the compromise petition and P. W. 2 Rajendra Kishore Mishra. As would appear from the evidence of these witnesses, Shri Inderdeo Singh was a pleader for the plaintiff in the aforesaid partition suit while the defendants were represented by his son Shri Dinanath Singh. The mere fact that the father and son represented the two parties is hardly of any importance in view of the fact that it is the admitted case of the parties that they had actually agreed to divide the properties amicably before the suit was filed and the object of filing the suit was merely to get the partition recorded through Court. That this was the actual position would al ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... may also be mentioned that the aforesaid witnesses had deposed in the Court below after a lapse of more than five years and, as such, the discrepancies in their statements might be due merely to the lapse of memory on the part of one witness or the other. 12. It would appear on consideration of all the above aspects that the version that the recital in the compromise petition to the effect that the Mohammad Patti belonged exclusively to the plaintiff had been made fraudulently by the plaintiff without the knowledge of the defendants is quite unacceptable and I accordingly fully agree with the finding of the learned Subordinate Judge that there was no fraud whatsoever in connection with the compromise. The above recitals in the document thus give further support to the plaintiff's case about the Mohammad Patti lands being the exclusive property of the plaintiff and, as already, the omission of these lands in the schedules wherein the lands left joint between the different co-sharers were specifically mentioned, also gives support to the plaintiff's case. On consideration of all the materials, there cannot be the least doubt that these lands are not the joint lands of the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... be impeached on the ground of fraud or collusion in an active proceeding for rescission by way of suit. The defrauded party may also apply for review of the judgment to the Court which pronounced it. But the judgment may also be impeached in a collateral proceeding in which fraud may be set up as a defence to an action on the judgment or as an answer to a plea of estoppel or res judicata found upon the judgment. It was further held in this case that the provision relating to limitation as provided in Article 95 of the Limitation Act has no bearing in relation to Section 44 of the Evidence Act. As would appear from the terms of Section 44 of the Evidence Act, already quoted above, this section lays down that any party to a suit or other proceeding may show that a judgment, order or decree referred to in the section, which has been proved by the adverse party, was delivered by a Court not competent to deliver it or was obtained by fraud or collusion. The right as given by this section has not been fettered by any limitation whatsoever and it is manifest that such a right is quite independent of the right to get a judgment or decree etc. set aside by bringing regular suit for th ..... X X X X Extracts X X X X X X X X Extracts X X X X
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