# MST. RUKHMABAI v. LALA LAXMINARAYAN AND OTHERS

- **Citation:** [1960] 2 S.C.R. 253
- **Court:** Supreme Court of India
- **Decided:** 1960
- **Case number:** Civil Appeal No. 173 of 1955
- **Bench:** P. B. Gajendragadkar, K. SuBBA RAO, J. c. SHAH
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/mst-rukhmabai-v-lala-laxminarayan-and-others-1859
- **Pages:** 37

## Headnote

253
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, r877, (I of r877), s. 42Indian Limitation Act, r908 (lX ofr908), Sch. I, art. rzo.
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 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. 120 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 ~uit for partition. The High
Court rejected both these contentions, held that the two relinquishment deeds and the deed of trust were sham documents
and set aside the decree of the trial court and decreed the
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November I7
254
SUPREME COURT REPORTS [1960(2)]
, 959
respondent's suit. The appellant obtained a certificate and
appealed.
Rukkmabai
Held, that the documents in question were sham documents,
v.
that the property in suit was joint family property and that the
Lala Laxminarayan suit had been rightly decreed.
·
•nd Others
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
in to consideration in determining the issue.
Alluri Venkatapathi Raju v. Dantulttri Venkatanarasimha
Raju, (r935-36) 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

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S.C.R.,
SUPREME COURT REPORTS
MST. RUKHMABAI
v.
.
LALA LAXMINARAYAN AND OTHERS
(P. B. GAJENDRAGADKAR, K. SuBBA RAO and
J. c. SHAH, JJ.)
253
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, r877, (I of r877), s. 42Indian Limitation Act, r908 (lX ofr908), Sch. I, art. rzo.
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 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. 120 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 ~uit for partition. The High
Court rejected both these contentions, held that the two relinquishment deeds and the deed of trust were sham documents
and set aside the decree of the trial court and decreed the
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November I7
254
SUPREME COURT REPORTS [1960(2)]
, 959
respondent's suit. The appellant obtained a certificate and
appealed.
Rukkmabai
Held, that the documents in question were sham documents,
v.
that the property in suit was joint family property and that the
Lala Laxminarayan suit had been rightly decreed.
·
•nd Others
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
in to consideration in determining the issue.
Alluri Venkatapathi Raju v. Dantulttri Venkatanarasimha
Raju, (r935-36) 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 19I6 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 Pothukujchi Appa Rao v. Secretary of State,
A.LR. 1938 Mad. 193. relied on.
CIVIL APPELLATE JURISDICTION: Civil Appeal No.
173 of 1955.
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S.C.:R.
SUPREME COUR'.r REPORtS
Appeal from the judgment and decree dated Septemz959
her 9, 1949, of the former Nagpur High Court, in first
R kh
b .
appeal No. 45of1944, arising out of th_e judgment and
u ;a a•
dec_ree dated April 24, 1944, of the First Additionahala LaxminaYaya11
District Judge, Nagpur, in Civil Suit No. 12A of 1940.
and Others
W. S. Barlingay, Shankar Anand and A. G. Ratna-
.;·
parkhi, for the appel1ant.
·
A. V. Viswanatha Sastri, R. K. Monohar, S. N.
Andley, J.B. Dadachanji and Rameshwar Nath, for
,
the respondents.
•
1959. November 17. The Judgme~t of the 'court
was delivered by
SuBBA RAO J.-This appeal by certificate ls directed
Subba Rao J.
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 geneology which would help to understood the
contentions of the parties.
(The geneology is given on the next page) .
•
•
I
Ganeshprasad
(d. 1928)
I
Daul":hter
Mst.
Rukhmabai
=
Lala
Sheoshankar
(defendant 1)
I
Ajodhyaprasad
(d. 1912)
I
Adopted son
Chandanlal
(d. 31-1-1940)
Widow Mst.
Annapurnabai
(defendant 2)
•
I .
Jank1prasad
(d. 1923)
I ----1
Ramprasad
daughter
I
Govindprasad
(d. 1034)
I
adopted
son Kisanlal
(defendant 8)
I
Ramasahai
(d. i897)
I
Ratanlal
(d. lg26)
I
(defendant4)
Saroobai
Gangaprasad
(defendant5)
=
Lala
Sunderlal
I
LAXMINARAYAN
(plaintiff)
I
Cbandanlal
(adopted to
Ajodhyaprasad)
I
Mangalprasad
(d i914)
I
Ghasiram
(d. 1917)
. I
· Saqooprasad
\d. 1903)
I
adopted son
Tulsiram
(defendant 3)
Ramchand
(d. 5-10-1950)
I
I
Daughter
Tarabai
Lala
Chhotelal
I
Kisanlal
(adopted to
Govindprasad)
__ I -
1----i--
I
Tulsiram
Sheonarayan
Harnarayae
(adopted to (defendant6) {defendant;).
Sarjooprasad)
I
Kamal
Narayan
(d. 1924)
r
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s.C.R.
SUPREME COUR'r REPORTS
257
During the life time of Ramasahai, he and his eight
z959
sons and one cousin, pamely, Sitaram, constituted a
.
· · t H' d
.c · 'l
·t· h R
h ·
't
Rukhmabai
JOin
m u .tam1 y w1
amasa a1 as I s manager.
The joint family carried on its ancestral family busi- LalaLax:.inarayan
ness of excise contracts in several districts in the
and Others
former C. P. & Berar provinces. On January 24,
1897, Ramasahai died and, at the time of his death,
SubbaRa0!·
the family, though heavily indebted, had extensive
properties distributed at various places like Nagpur,
Kainptee Rajnandgaon, Raipur, Jabalpur etc. Sarjooprasad died in 1903', Ajodhyaprasad in 1912, Mangalprasad in 1914, Jankiprasad in 1923, Ratanlal in 1926,
Ganeshprasad in 1928, Govindprasad jn 1934, and 1
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 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 Ganesh-
. prasad, 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 t.wo 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
•
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SUPREME COURT REPORTS [1960 (2)]
r959
appeal against that decree and it was dismissed. After
Rukhmabai
the said decree, Chandanlal died on January 31, 1940.
v.
When the Commissioner appointed by the Court went
LalaLaxminarayan to the building to effect the partition by metes and
and Others
bounds, the respQildent, who was in the house,
obstructed the Commissioner," and thereafter on OctoSubba Rao f.
ber 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 Chand1mlal was a sham document.
The respondents' case, inter alia is that the first
relinquishment deed was brought into existence sometime before the second registered relinquishment deed
was executed and that the said deeds and the trust
deed were pai:_ts 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 Govindprasad had really separated himself from the other
members of the family, that he had his own busi-
'nesses, 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 fonds 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 docume1its and oral evidence adduced, that
Govindprasad became divided from the members of
the joint family in 1898, thalt thereafter he was carrying on the business of money lending, 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
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S.C.R.
SUPREME COURT REPORTS
259
an appeal against that decree to the Higl?- Court
r959
at Nagpur. The High Court held that the two
R kh
b .
· relinquishment deeds were sham documents brought
" v~a ai
into existence to shield the liquid assets of the Lala Laxmiiiarayan
family, which were for that purpose placed in the
mid Others
hands of Govindprasad, t~at the trust deed was also
a sham one designed to achieve the same purpose and
S 14bba Rao J.
that the'house was also con,structed with the aid· of
the family funds. ]'or the first time before the High
Court the appellant raised a plea of limitation. The
learned Judges of the !Iigh 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 oth~ 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 notic~d.
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 definement 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 n()ed not receive any share in the joint
estate· but m&y renoun<;e 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
SUPREME COURT REPORTS [1960(2)]
'959
in status can be effected by an unambiguous declaration to become divided from the others and that
Rukhmabai
v.
intention can be expressed by any process. Though
LalaLa•minarayanprimafacie a document cl.early expressing the intenand Others
tion to divide brings about a division in status, it is
open to a party to prove that the said document was
S1<bba Raa J.
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 np the
claim that it is his personlj,[ 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, ~arjooprasad
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. Ill-will between you and us all brot,hers
is consequently growing more and more from dayto-day. Similarly, as (our) father himself involved
all ancestral property into debt and the 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:
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S.C.R.
SUPREME COURT REPORTS
261
We, therefore, execute this pharkhatnama (deed of
z959
relinquishment) and hereby declare as follows:-
Rukkmabai
" Each brother should from this day enjoy his
v.
own self-acquired property and that he may acquireLalaLaxminarayan
with hia personal exertions-articles, grain, cash,
and Others
movable and immovable property, so on and so
Subba Rao J.
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. Ex facie 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
uponis that this docume1~t, 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
SUPREME COURT REPORTS [1960 (2)]
1959
alleged to be the intention of Govindprasad to free
.
himself from the family troubles caused by its involveRukhmabai
ment in heavy debts and to eke out his livelihood by
Lala Lax:inamyan carrying on a new business of his own. lt is not likely
and Othm
that he would not have insisted upon. a registered
document to achieve that purpose. There is therefore
Subba Rao].
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 Ramasahai 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 da)7 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 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
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S.C.R.
SUPREME COURT REPORTS
263
all the pi·operty in my possession on my earning it
r959
is acquired by me, and consequently, my brothers,
b .
Lala Ganeshprasad, Jankiprasad Ratanlal, RamRt</l~~a a•
chandra and all other brothers had executed a Lala La:rminarayan
pharkath-nama (deed of relinquishment) in my favour
and Others
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
]'ebruary 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
exist{'4lce before Ex. D. 32 was executed or, at any
rate, before Ex. P. 1 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 te> 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 1903and1904while
Subba Rao].
•
1959
Rukhmabai
v.
Lala Laxmimirayan
and Oth~rs
Subba Rao].
•
264
SUPREME COURT REPORTS [1960(2))
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 tho previous litigation."
It may be noticed that the learned District Judge did
not 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
,J uclges 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 ad+luced,
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 wiLh 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 11.re lacking in
the disputed signature. Ex11.mining 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 a 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
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265
the disputed signature there are dots after the letter
r959 ·
"dha" in "dhasthur" instead of the usual dashes found
.
.
Rukhmabai
in the admitted signatures; (iv) in the admitted
signature in speiling the name "Ajodhyaprasad" the LalaLax:.inarayan
letters "Joo" have been used, whereas in the disputed
and Otlters
signatures, the letters "Jo" have been used; (v) in
the disputed signature there is uneven pen-pressure
Subba Rao J.
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. Hidayatulhih, J., as he then was, gives the results of his
observation thus:
"To begin with the pictorial aspect differs in
many respects a.nd 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 this has been changed to
'jo'. 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 ofHidayatullah, J. We must also give due weight to the
266
SUPREME COURT REPORTS [1960(2)]
'959
observations of the learned Judges. We have also
compared the impugned si0<Ynature with the admitted
Rukhmabai
v.
signatures with the help of tlie expert's evidence, and
LalaLaxminarayan we are inclined to agree with the view of the expert
and Others
and the learned Judges of the High Court. The learned Counsel for the appellant has not been able to pla f'fl
Subba Rao J.
before us any material to compel us to take a view
different from that of the High Court..
We, therefore,
agree with the Hjgh 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
<hted February 27, 1915, and purports to be a relinquishment deed executed by Ganeshprasad, J ankiprasad, Itatanlal and Hamchand 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 attaoked
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 Ajodhyapra.sad undermines to
some extent the reality of the transaction.
That
apart, we shall furt,her 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
rnte, 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.
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267
We have already noticed that at the time of the
r959
death of Ramasahai the family was heavily indebted.
Rukhmabai
On June 12, 1895, Ramasahai, Sitaram, Ganeshprasad
v.
and Mangalprasad had executed a mortgage deed in Lala La:rminarayan
favour of one Buty. On March 2, 1898, the said Buty
and Others
filed Civil Suit No. 5 of 1898 against the members of
the joint family for recovery of the amount due under
Subba Rao f.
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 ofBaliram 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 circumstances it
may be
assumed that the mart.gage
deed was only a sham one brought into existence to
defraud the creditors.
On March 10, 1898, Ganeshprasad, 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 .14, 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
SUPREME COURT REPORTS [1960(2)]
1959
purchased on August 4, 1902. Both the Exs. P-66
R1lkhmabai
and P-74 were presented for registration on Februv.
ary 26, 1903 but they were registered on March 4, 1903.
Lala Laxminarnyan This delay in the registration is presumably for the
and Others
reason that the Lala brothers waited till the mortgagee
executed an agreement, Ex. P-7, dated March 3, 1903,
S1<bba Raa .f.
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
thatthe said two mortgages in favour of Narayanrao
Govindrao Mahajan were colourable and sham transactions. On June 25, 1904, five out of the six executants,
Sarjooprasad 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 alreadv 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, l~atanlal 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 thereunder 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. lt 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 executed 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
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269
the amount alleged to be due by the family under two
z959
registered documents dated February 26, 1903. This
.
mortgage was engrossed on a stamp paper purchased
Rukhmabai
as early as January 31, 1903, and w.as r~gistered o.n Lala Lax:inarayan
November 23, 1914. Before the reg1strat1on of this
and Others
document, the mortgagors obtained from the mort-
. gagee a deed of agreement, Ex. P-38, dated October 6,
Subba Rao J.
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, Rata.nlal. J ankiprasad 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 Narayanrao
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 -prn-perty and would execute a. deed of reconvey-.
a.nee and that, as they have paid him a total amount
35 .
270
SUPREME COURT REPORTS [1960(2)]
1959
of Rs. 11,200, he would execute the reconveyance in
their favour.
Ex. P-36 of the same date is a Will
Rukhmabai
v.
executed by the said Narayanrao Govindrao Mahajan
Lala Laxminarayan directing his heirs to convey the property to the Lala
and Others
brothers in case he died without executing the· said
document. It is not disputed that the grand-son of
5"bba Rao].
Narayanrao Govindrao Mahajan did execute a saledeed 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. 19,4'.l5, 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. 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.
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271
The contesting respondent's case is that the
z959
farkatnama of February 27, 1915, was also executed
k
b •
f h
'd
h
h
h
d
Ru hma a•
as part o t e sa1
sc en;e to p1:eserve t e cas
~n
v.
the movables of the family for itself. The nommaharaLaxminarayem
sale-deeds executed in favour of Narayanrao Govindand Others
rao Mahajan and Baliram Hari Bokhitre might be
-
used to screen the family's immovable properties
Subba Rao].
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.