judgement:
ax Reference Case No. 15 of 1975.
Tax Reference under Section 257 of the Income Tax Act, 1961 made by the Income Tax Appellate Tribunal Delhi Bench R.A. No. 508 of 1971 72 arising out of I.T.A. No. 3410 of 70 71 for assessment year 1964 65.
section L. Aneja and K. L. Taneja for the Appellant.
section C. Manchanda, G. A. Shah and Miss A. Subhashini for the Respondent.
The Judgment of the Court was delivered by PATHAK, J.
Is an assessee, who has concealed the particulars of his income, liable to penalty under clause (iii) of sub section (1) of section 271 of the Income Tax Act, 1961 as it stood on the date of the concealment or as it stand during the assessment year relevant to the previous year in which the income was earned ? That is the question in this reference made by the Income Tax Appellate Tribunal under section 257 of the Income Tax Act.
The assessee is a partner in two firms, Messrs. Hindustan Pottery Agency and Messrs. New Crockery House.
He filed a return of his total income for the assessment year 1964 65 on April 201 24, 1968.
He disclosed an income of Rs. 460/ from his share in the profits of Messrs. Hindustan Pottery Agency.
He did not disclose the income from his share in Messrs. New Crockery House.
In the course of the assessment proceedings, the Income Tax officer found that the assessee had received income from Messrs. New Crockery House also.
Because of non compliance by the assessee with a notice issued under section 143 (2) of the Act, the Income Tax officer made a best judgment assessment under Section 144 of the Act on a total income of Rs. 12,118/ .
This included a share income of Rs. 1,462/ from Messrs. Hindustan Pottery Agency and a share income of Rs. 3,456/ from Messrs. New Crockery House.
Certain other items of income were also included.
On appeal by the assessee, the Appellate Assistant Commissioner reduced the income from Messrs. New Crockery House to Rs. 2,955/ and taking into account certain other items determined the figure of concealed income at Rs. 7,357.
The Income Tax officer instituted penalty proceedings, and applied clause (iii) of sub section (1) of section 271 of the Act, as it stand after amendment by the Finance Act, 1968.
Having regard to the minimum penalty which, in his opinion, was leviable, he referred the case to the Inspecting Assistant Commissioner.
The Inspecting Assistant Commissioner examined the matter, and on the basis that the concealed income was Rs. 7,357/ he imposed a 13 penalty in the like sum, in view of the amended clause (iii) of subsection (1) of section 271 of the Act.
The assessee appealed to the Income Tax Appellate Tribunal, and contended that the amended provision could not be invoked and what came into operation was the law as it stood in the assessment year 1964 65.
The Tribunal rejected the contention.
But it reduced the penalty to Rs. 2,955/ taking the view that the assessee was guilty of concealing the share income from Messrs. New Crockery House only.
The assessee then applied for a reference.
The Tribunal saw a conflict of opinion on the point raised by the assessee between the Kerala High Court in Hajee K. Asseinar vs Commissioner of Income Tax, Kerala and the Punjab and Haryana High Court in Income Tax Reference No. 45 of 1971 (decided on April, 26, 1972) which had followed Saeed Ahmed vs Inspecting Assistant Commissioner of Income tax, Range ll, Lucknow(2) decided by the Allahabad High Court .
In the circumstances, it made the present reference directly to this Court on the following question of law: 202 "Whether the Tribunal was, in law, right in sustaining the penalty of Rs. 2,955/ by applying the provisions of section 271(1)(c) (iii) of the Income Tax Act, 1961 as amended with effect from 1 4 1968 ?" Section 271 of the Income Tax Act provides for penalties in certain cases.
Clause (c) of sub section (1) of section 271 speaks of a case where the Income Tax officer is satisfied that a person has concealed the particulars of his income or furnished inaccurate particulars of such income.
The measure of the penalty is specified in clause (iii) of the sub section.
During the assessment year 1964 65, clause (iii) read "(iii) in the cases referred to in clause (c), in addition to any tax payable by him, a sum which shall not be less than twenty per cent but which shall not exceed one and a half times the amount of the tax, if any, which would have been avoided if the income as returned by such person had been accepted as the correct income." That clause was substituted with effect from April 1, 1968 by the Finance Act, 1968 by the following: "(iii) in the cases referred to in clause (c), in addition to any tax payable by him, a sum which shall not be less than, but which shall not exceed twice, the amount of the income in respect of which the particulars have been concealed or inaccurate particulars have been furnished. ' It is evident that the quantum of tax which is levied under the substituted clause (iii) can be greater than that imposable in terms of the original clause (iii).
The case of the assessee is that an assessment proceeding for the determination of the total income and the computation of the tax liability must ordinarily be made on the basis of the law prevailing during the assessment year, and inasmuch as concealment of income is concerned with the income relevant for assessment during the assessment year any penalty imposed in respect of concealment of such income must also be governed by the law pertaining to that assessment year.
We are unable to accept the contention.
In our opinion, the assessment of the total income and the computation of tax liability is a proceeding which for that purpose, is governed by entirely different considerations from a proceeding for penalty imposed for concealment of income And this is so notwithstanding that the income concealed is the income assessed to tax.
203 In the case of the assessment of income and the determination of the consequent tax liability, the relevant law is the law which rules during the assessment year in respect of which the total income is assessed and the tax liability determined.
The rate of tax is determined by the relevant Finance Act.
In the case of a penalty, however, we must remember that a penalty is imposed on account of the commission of a wrongful act, and plainly it is the law operating on the date on which the wrongful act is committed which determines the penalty.
Where penalty is imposed for concealment of particulars of income, it is the law ruling on the date when the act of concealment takes place which is relevant.
It is wholly immaterial that the income concealed was to be assessed in relation to an assessment year in the past.
We do not think that the cases to which the Tribunal has referred can be said to differ on this.
The concealment of the particulars of his income was effected by the assessee when he filed a return of total income on April 24, 196$,.
Accordingly, it is the substituted clause (iii), brought in by the Finance Act.
1968, which governs the case.
That clause came into effect from April 1, 1968.
Another contention raised by the assessee may be noticed.
It is urged that under section 139 of the Income Tax Act, as it stood during the assessment year 1964 65 the return of income should have been filed by the end of September, 1964 and inasmuch as the return, although filed as late as April 24, 1968, was accepted by the Income Tax officer it should be deemed that the return was treated as filed within time or, in other words, that the return had been filed by September 3(), 1964.
In that event, the submission continues, the concealment of the particulars of income must be deemed to have taken place when the original clause (iii) of section (1) of section 271 of the Act was in operation.
This contention is also without force.
Under section 139 of the Act, although the statute itself prescribes the date by which a return of income must be filed, power has been conferred on the Income Tax officer to extend the date of furnishing the return.
A return filed within the extended period is a good return in the sense that the Income Tax officer is bound to take it into consideration.
But nowhere does section 13 declare that where a return is filed within the extended period it will be deemed to have been filed within the period originally prescribed by the statute.
On the contrary, the section contains a provision for payment of interest where the return is filed beyond the 204 prescribed date even though within the extended period.
That is evidence of the fact that the return filed during the extended period is not regarded by the statute as filed within the time originally prescribed.
Accordingly, we are of opinion that clause (iii) substituted in sub section (1) of section 271 of the Income Tax Act, 1961 by the Finance Act, 1968, governs the case before us and, therefore, the penalty imposed on the assessee in the instant case is covered by that provision.
We answer the question in the affirmative, in favour of the Revenue and against the assessee.
The Revenue is entitled to its costs of this Reference.

summary/full:
Section 271(1)(c)(iii) provided that where the Income Tax officer had reason to believe that the assessee had concealed particulars of his income or furnished inaccurate particulars of such income he may impose a penalty of a sum in addition to any tax payable by the assessee which shall not be less than twenty per cent but which shall not exceed one and a half times the amount of the tax.
The Finance Act 1968, which came into effect from April 1, 1968, enhanced the penalty to a sum which shall not be less than 7 but which shall not exceed twice.
the amount of income in respect of which the particulars have been concealed or inaccurate particulars have been furnished.
The assessee filed a return of his total income for the assessment year 1964 65 on 24th April, 1968.
In the course of assessment proceedings, the Income Tax officer found that the assessee had concealed the income earned from one of his two firms.
Having regard to the minimum penalty which he considered was leviable, he referred the case to the Inspecting Assistant Commissioner.
The Inspecting Assistant Commissioner imposed a penalty in respect of the concealed income in accordance with section 271 (1) (c) (iii) as amended by the Finance Act 1968.
It was argued on behalf of the assessee that (i) assessment proceeding for the determination of total income and computation of tax liability must ordinarily he made on the basis of the law prevailing during the assessment year, and inasmuch an concealment of income is concerned with the income relevant for assessment during the assessment year any penalty Imposed in respect of concealment of such income must also be governed by the law pertaining to that assessment year, (ii) under section 139 of the Act as it stood during the assessment year 1964 65, the return of income should have been filed by the end of September 1964 and as the return although filed on April 24, 1968 was accepted by the Income Tax officer and therefore should be deemed to have been filed within time i.e. by September 30, 1964 the penalty would be governed by the section as it originally stood then.
^ HELD: 1.
Clause (iii) substituted in sub section (1) of section 271 of the Income Tax Act, 1961 by the Finance Act, 1968, governs the case.
Therefore, the penalty imposed on the assessee in the instant case is covered by that provision [204B] 2.
The assessment of the total income and the computation of tax liability is a proceeding which for that purpose, is governed by entirely different considerations from a proceeding for penalty imposed for concealment of income.
And this is so notwithstanding that the income concealed is the income assessed 200 to tax.
In the case of the assessment of income and the determination of the consequent tax liability, the relevant law is the law which rules during the 1 assessment year in respect of which the total income is assessed and the tax liability determined.
The rate of tax is determined by the relevant Finance Act.
In the case of a penalty, however, it is imposed on account of the commission of a wrongful act.
It is the law operating on the date on which the wrongful act is committed which determines the penalty.
Where penalty is imposed for concealment of particulars of income, it is the law ruling on the date when the act of concealment takes place which is relevant.
It is wholly immaterial that the income concealed was to be assessed in relation to an assessment Year in the past.
[202G H, 203A C] 3.
Under section 139 of the Act, although the statute itself prescribes the date by which a return of income must be filed, power has been conferred on the Income Tax Officer to extend the date of furnishing the return.
A return filed within the extended period is a good return in the sense that the Income Tax officer is bound to take it into consideration.
But nowhere does section 139 declare that where a return is filed within the extended period it will be deemed to have been filed within the period originally prescribed by the statute.
On the contrary, the section contains a provision for payment of interest where the return filed beyond the prescribed date even though within the extended period.
That is evidence of the fact that the return filed during the extended period is not regarded by the statute as filed within the time originally prescribed.
[203 F H, 204A]


judgement:
N: Criminal Appeal No. 155 of 1973.
Appeal by Special Leave from the Judgment and order dated 9 11 1972 of the Kerala High Court in Criminal Revision Petition No. 393/72.
N. Sudhkaran for the Appellant.
K. R. Nambiar for the Respondent.
The Judgment by the Court was delivered by SARKARIA, J. Appellant before us was tried by the Sessions Judge, Palghat on a charge under Section 302, Indian Penal Code, for shooting dead with his 12 bore licensed gun, one Bhaskaran alias Vasu on April 1, 1971.
On the same day after the occurrence, the appellant surrendered at Police Station Koyalmannam, along with his licensed gun which he had used in shooting the deceased At the trial, accused Madhavan set up a plea of self defence.
In the light of the evidence brought on record, the Sessions Judge accepted this plea and held that the accused was entitled to the protection of Section 96, Penal Code, and had therefore committed no offence.
At the same time, without assigning any reason, he directed that "M.O.1.
gun shall be confiscated to the Government".
Against this direction of confiscation of the gun, Madhavan filed Criminal Revision No. 392 of 1972 in the High Court.
The Revision was dismissed by a learned Single Judge with these observations: 230 "Although the direction is not accompanied by sufficient grounds for doing so, I do not think it proper to interfere with the order passed by the learned Sessions Judge. . in an order under Section 517, Cr.
P.C. the principle is that it should be returned to the person from whose custody it was seized.
That of course is the general rule.
I am aware that there is no other claimant for the gun in this case and the gun naturally belongs to the petitioner.
But the order of confiscation is made by way of sufficient safeguard against its use again by the petitioner.
I do not think it necessary to interfere with the order of the Court below.
" Aggrieved by this order, dated November 9, 1972, of the High Court of Kerala, Madhavan has come in appeal by special leave under Article 136 of the Constitution.
The short question for decision in this case is, whether in the circumstances of the case, the Courts below were right in confiscating this licensed gun instead of restoring it to the appellant.
Mr. Sudhakaran, learned counsel for the appellant submits that the impugned order of confiscation of the gun was illegal because it has been made arbitrarily without assigning any reason.
It is emphasised that in exercising its power under Section S 17, Criminal Procedure Code, 1898, the Court has to act judicially in accordance with well settled principles, the most fundamental of which is that at the conclusion of the trial, resulting in acquittal of the accused, the property seized from his possession must be restored to him, particularly when the property undisputedly belongs to the accused.
In support of this contention, reference has been made to Pushkar Singh vs State of Madhya Bharat and Lalluram Mohanlal vs State of Gujarat.
As against this, Mr. Nambiar, appearing for the State, maintains that there is no hard and fast rule, that the property seized from the accused, must on his acquittal be returned to him.
The Section, it is emphasised, gives the Court a very wide discretion to choose as one of the modes of disposal mentioned in the section, irrespective of whether the trial results in acquittal or conviction of the accused.
In the instant case, it is argued, the Court in the exercise of that discretion decided to confiscate the gun, which is one of the modes re 231 cognised by the Section.
The impugned order therefore, could not be said to be without jurisdiction which would warrant interference by a revisional or appellate Court.
In this connection, counsel cited Arjun Padhy and Ors.
vs State of Orissa & Anr The material part of Section 517 of the Code of Criminal Procedure, 1898 (which has been re enacted as Section 452(1) in the Code of 1973), reads as follows: "When an inquiry or trial in any Criminal Court is concluded, the Court may make such order as it thinks fit for the disposal.
by destruction, confiscation or delivery to any person clamming to be entitled to possession thereof or otherwise, of any property or document produced before it or in its custody, or regarding which any offence appears to have been committed, or which has been used for the commission of any offence.
" An analysis of this provision would show that it refers to property or document (a) which is produced before the Court, or (b) which is in the custody of the Court, or (c) regarding which any offence appears to have been committed, or (d) which has been used for the commission of any offence.
Then, at the conclusion of the enquiry or trial, the disposal of any class of the property listed above, may be made by (i) destruction, (ii) confiscation, or (iii) delivery to any person entitled to be possession thereof.
In the case before us, the gun in question does not fall "either under class (c) or class (d) because it is neither property" regarding which any offence appears to have been committed, "nor, which has been used for the commission of any offence.
" The acquittal of the accused on the ground that this gun was used in causing the fatal injury to the deceased, only in self defence necessarily involved a finding that the gun was not used in the commission of any offence for which the accused was tried.
The gun was obviously property falling under class (b).
The words "may make such order as it thinks fit" in the Section, vest the Court with a discretion to dispose of the property in any of the three modes specified in the Section.
But the exercise of such discretion is inherently a judicial function.
The choice of the mode or manner of disposal is not to be made arbitrarily, but judicially in accordance with sound principles founded on reason and justice 232 keeping in view the class and nature of the property and the material 'before it.
One of such well recognised principles is that when after an inquiry or trial the accused is discharged or acquitted, the Court should normally restore the property of class (a) or (b) to the person from whose custody it was taken.
Departure from this salutary Rule of practice is not to be lightly made, when there is no dispute or doubt as in the instant case that the property in question was seized from the custody of such accused and belonged to him.
Let us now test the impugned order in the light of these principles.
Can it be said to be an order made judicially? The answer is unhesitatingly 'No '.
The Sessions Judge did not give any reason, whatever, for directing confiscation of this licensed gun admittedly belonging to the appellant accused.
Nor was there any material before him indicating the special circumstances which would warrant a departure from the general rule aforesaid.
Nor is there anything on the record to show that the Sessions Judge had, before passing the Order of confiscation, given an opportunity of being heard to the accused, specifically with regard to this matter.
The order of confiscation of the gun was manifestly arbitrary.
The High Court also, if we may say so with respect while noting that the order of confiscation of the gun passed by the Sessions Judge was "not accompanied by sufficient grounds," endorsed that order in a capricious and cavalier manner, "by way of" as it fancifully says "sufficient safeguard against its use again by the petitioner".
There was absolutely no material before the High Court to show that in the past twenty years during which the appellant had been in lawful possession of this gun under a license, he had ever Fused or attempted to use this gun for commission of any offence, from which, in the event of the gun being restored to him, a likelihood of his misusing the gun "again" could be reasonably predicated, or even suspected.
For all the foregoing reasons, we are of opinion that the impugned order of confiscation of gun being arbitrary and unjust, cannot be sustained.
We therefore, allow this appeal, set aside the impugned order and direct that possession of this gun (M.O.1) be restored to the appellant.

dataset_name: IN-Abs

summary/full:
Accepting the plea of self defence, the Sessions Judge held that the accused was entitled to the protection of Section 96 Penal Code and had therefore committed no offence.
However the ordered confiscation to Government of M.O. 1, the licensed gun surrendered by the accused.
A revision petition filed against the said direction having failed before the Kerala High Court, the appellant obtained special leave from this Court.
Allowing the appeal, the Court ^ HELD: 1.
The impugned order of confiscation of the gun being arbitrary and unjust, cannot be sustained.
(a) The Sessions Judge did not give any reason, whatever, for directing confiscation of this licensed gun admittedly belonging to the appellant accused.
There was no material before him indicating the special circumstances which would warrant a departure from the general rule.
There was nothing on the record to show that the Sessions Judge had, before passing the order of confiscation, given an opportunity of being heard to the accused specifically with regard to this matter; (b) there was absolutely no material before the High Court to show that in the past twenty years during which the appellant had been in lawful possession of this gun under a licence, he had ever used or attempted to use this gun for commission of any offence from which, in the event of the gun being restored to the appellant, a likelihood of his misusing the gun "again" could be reasonably predicated or even suspected.
[232B D & E F] Pushkar Singh vs State of Madhya Bharat, A.I.R. 1953 SC 508, followed.
Lalluram Mohanlal vs State of Gujarat, A.I.R. 1967 Guj.
268, approved.
An analysis of the provision in Section 517 of the Code of Criminal Procedure, 1898 would show that it refers to property or document (a) which is produced before the Court, or (b! which is in the custody of the Court, or (c) regarding which any offence appears to have been committed, or (d) which has been used for the commission of any offence.
Then, at the conclusion of the enquiry or trial, the disposal of any] class of the property listed above, may be made by (i) destruction, (ii) confiscation, or (iii) delivery to any person entitled to be possession thereof.
[231D E] In the instant case, the gun in question does not fall either under class (c) or class (d) because it is neither property "regarding which any offence appears to have been committed", nor "which has been used for the commission of any 229 offence".
The acquittal of the accused on the ground that this gun was used in causing the fatal injury to the deceased, only in self defence, necessarily involved a finding that the gun was not used in the commission of any offence for which the accused was tried.
The gun was obviously property falling under class (b).
[231 E G] 3.
The words "may make such order as it thinks fit" in the section, vest the Court with a discretion to dispose of the property in any of the three modes specified in the Section.
But the exercise of such discretion is inherently judicial function.
The choice of the mode or manner of disposal is not to be made arbitrarily, but judicially in accordance with sound principles founded on reason and justice, keeping in view the class and nature of the property and the material before the Court.
One of such well recognised principles is that when after an inquiry or trial the accused is discharged or acquitted, the Court should normally restore the property of class (a) or (b) to the person from whose custody it was taken.
Departure from this salutary rule of practice is not to be lightly made when there is no dispute or doubt as in the instant case that the property in question was seized from the custody of such accused and belonged to him.
[231G H, 232 A B] Arjun Padhy and Ors.
vs State of Orissa & Anr.
A.I.R. 1965 Orissa 198; disapproved.


judgement:
Civil Appeal No. 2371 of 1969.
From the Judgment and order dated 23 5 1968 of the Allahabad High Court in Special Appeal No. 247/66.
G. L. Sanghi, Mrs. section Bagga for the Appellant.
G. N. Dikshit and O. P. Rana for Respondents 1 5.
section K. Bagga for Respondent No. 6 The Judgment of the Court was delivered by 181 SEN J.
This appeal, by certificate, is directed against a judgment of the Allahabad High Court dated May 23, 1968, whereby it upheld a judgment of a Single Judge of that Court dated March 16, 1966, dismissing the applicants writ petition to quash recovery proceedings initiated by the Collector, Azamgarh for realisation of the sum remaining due on account of a taccavi loan under s.7 (1) of the .
The facts leading to this appeal, in brief, are as follows: The appellant and his brother Shashi Bhushan Gupta the sixth respondent, constituted a joint Hindu family owning extensive zamindari properties, over several districts in United Provinces including Azamgarh zamindari comprising of 34 villages.
They owned an agricultural farm known as Mukundpur Farm situated in Azamgarh zamindari.
It is alleged that by virtue of a family settlement in 1940, the appellant even though younger in age, became the karta of the joint family.
By his application dated February 25, 1947 the appellant applied for a taccavi loan of Rs. 1,22,000 in the prescribed form for improvement of Mukundpur Farm, to the Director of Agriculture, United Provinces through the Collector, Azamgarh.
The property offered as security for advance of the loan was the zamindari rights in Azamgarh zamindari comprising of the aforesaid 34 villages bearing a land revenue of Rs. 11,000/ .
During the verification proceedings, the appellant by his application dated February 22, 1948, offered a security of his half share in Azamgarh zamindari, which on enquiry by the Collector for the grant of sanction for the loan, was evaluated at Rs. 1,43,869.66p.
The taccavi loan was duly sanctioned by the Government on September 23, 1948.
The appellant having defaulted in payment of the loan, the Collector, Azamgarh by his order dated March 24, 1952 directed that the entire ilaqa lying in Tahsil Sagri, district Azamgarh forming part of the hypothecated property be attached under section 150 of the U.P. Land Revenue Act, 1901.
It, however, seems that no attachment of any land situated in Tahsil Sagri forming part of the hypothecated property had, in fact ', been effected either under s.150 of the U.P. Land Revenue Act or section 289 (1) of the U.P. Zamindari Abolition and Land Reforms Act, 1950.
It appears that some plots at the Mukundpur Farm lying in two villages, Mahnajpur and Ghaibipur, were later taken under the management of the Collector under section 290 of that Act and half share 'hereof let out to tenants, and the proceeds were adjusted towards the 182 outstanding taccavi dues.
It also appears that a sum of Rs. 38,951.8P representing the appellant 's half share of the compensation money due ,, and payable to him were adjusted under s.6 (e) of the Act towards the loan.
It is the appellant 's case that there was a partition between the appellant and his brother, the sixth respondent in 1951, and the hypothecated property was allocated to the share of the sixth respondent.
This resulted in a compromise decree between the appellant and his brother, the sixth respondent, in Civil Suit No. 72 of 1952 under the terms of which, the sixth respondent undertook upon himself the liability to discharge the loan as the property offered in security had fallen to his share.
In compliance thereof, the sixth respondent actually paid Rs. 16,012.50P.
The Government was admittedly not impleaded as a party to, the suit.
On July 15, 1952, the sixth respondent resiled from the terms of compromise and objected to the recovery proceedings being taken against him on the ground that the loan in question had not been taken by him nor had the appellant borrowed it in the capacity as karta of the joint family.
He, indeed, denied the factum of partition.
These objections were, however, over ruled by the Sales officer, Azamgarh on October 22, 1952.
On May 15, 1953, the appellant applied to the State Government for expunging his name from the debtor sheet.
The application was forwarded by the Government to the Collector, Azamgarh for enquiry and report.
The appellant raised an objection alleging inter alia that the loan had been incurred by him in his capacity as karta of the joint Hindu family and that since the hypothecated property had fallen to .
to the share of the sixth respondent, he was not personally liable to repay the loan.
The Collector by his order dated January 18, 1955, after holding an enquiry held that the appellant had taken the taccavi loan in his individual capacity and not as karta of the joint family and accordingly he was personally liable to repay the loan.
He, however, directed the Sales officer that the recovery be made, in the first . instance, from the hypothecated property before proceeding against the appellant personally.
The action taken by the Collector was duly endorsed by the Land Reforms Commissioner by his letter dated April 7, 1955, and approved of the State Government by its order dated July 22, 1955.
The recovery proceedings were accordingly initiated against the appellant.
lt appears that the appellant was a Member of the Legislative Assembly and apparently wielded considerable influence.
He appears 183 to have addressed a representation to the Chief Minister on April 1(), A 1956.
The State Government referred the matter to the Commissioner, Gorakhpur Division, Gorakhpur who by his letter dated October 19, 1956 stated that he was fully in agreement with the Collector that the appellant must be treated as having taken the loan in his individual capacity and proceedings for its recovery had to be taken against the hypothecated property as well as against him personally.
The latter also mentioned that the Collector had been asked, if necessary, to explain the case personally to the Chief Minister.
Evidently, the State Government after reviewing the matter at all levels, by its order dated August 13, 1957 directed that the realisation of the taccavi dues outstanding against the appellant should be made from the hypothecated property as well as from his person immediately.
It further directed that 'all the modes for recovery legally permissible should be adopted against him simultaneously and pursued vigorously '.
Despite all this, the appellant has not paid a pie towards the outstanding debt except through coercive process.
On December 17, 1) 1957, the appellant addressed a representation to the Board of Revenue although under the taccavi rules no appeal or revision lay to the Board.
It is somewhat strange that the Addl.
Land Reforms Commissioner, contrary to the Government 's orders in that behalf, submitted a report, on his own, upholding the appellant 's contention that he had borrowed the loan in his capacity as karta of the joint family, and recommending that the loan in question should be recovered from the hypothecated property.
The state Government naturally did not act upon this gratuitous advice.
On June 19, 1959, the appellant has informed of the Government 's decision.
Thereafter, the Collector started proceedings for realisation of Rs. 72,152.50P as principal and Rs. 23,689.81P as interest.
Thereupon, the appellant on August 4, 1959 moved the Allahabad High Court under article 226.
The appellant 's writ petition was dismissed by a learned Single Judge.
It appears that the contention that the loan was incurred by him as karta of the joint Hindu family was not raised before the learned Single Judge, as he observes "It appears that recovery proceedings were taken against the Mukundpur Farm, which, it is not disputed, belongs exclusively to the petitioner".
He negatived the contention that the Collector had let out a part of the Mukundpur Farm in 1952 and therefore, after expiry of a period often years, the Government was precluded by reason of s.291 (3) of the U.P. Zamindari Abolition and Land Reforms Act from further continuing the recovery proceedings.
He held that this involved a 13 475 SCI/79 184 disputed question of fact as according to the Government certain plots of Munkundpur Farm were first let out in 1959 60 and not in 1952, and therefore, the bar of s.291 (3) was not applicable.
As regards the contention based on s.6 (e) of the Act that the Government had no power to make the recovery except from out of the compensation amount, he held that the provision did not debar the Government from proceeding otherwise.
On the question of accounting he held that the submission calls for an accounting of the amount received by such letting out and there was no material upon which the decision of the Court could rest.
On appeal, the appellant for the first time raised an objection as to his personal liability alleging that the loan in question was incurred by him in the capacity of karta, and, therefore, recoverable from the hypothecated property alone.
There was a difference of opinion on the question between the learned Judges constituting the Bench as to whether he had taken the loan as karta of the joint family or in his individual capacity, but nonetheless the appeal failed because they repelled all other contentions.
Four questions arise in this appeal: 1.
Whether the taccavi loan was incurred by the appellant as a karta of the joint Hindu family and not in his individual capacity and, therefore, the loan in question has to be recovered from the sixth respondent, inasmuch as the hypothecated property had fallen to his share in a family partition ? 2.
Is the Collector precluded from taking resort to any one or other modes prescribed by s.7 (1) of the , for recovery of the sum remaining unrealised towards the taccavi loan, by reason of s.289 (2) or s.291 (3) of the U.P. Zamindari Abolition and Land Reforms Act, 1950? 3.
Have the Government no right to recover the outstanding amount due except from the compensation amount in terms of s.6 (e) thereof? 4.
Was the Government bound to render an account of the rents and profits derived from letting out of the plots of Mukundpur Farm? Section 7 (1) of the , reads as follows: "7 (1) Subject to such rules as may be made under section ten, all loans granted under this Act, all interest (if any) chargeable thereon, and costs (if any) incurred in making the same, shall, when they become due, be recoverable by the Collector in all or any of the following modes, namely: (a) from the borrower as if they were arrears of land revenue due by him; 185 (b) from his surety (if any) as if they were arrears of land A revenue due by him; (c) (c) out of the land for the benefit of which the loan has been granted as if they were arrears of land revenue due in respect of that land; (d) out of the property comprised in the collateral security (if any) according to the procedure for the realization of land revenue by the sale of immovable property other than the land on which that revenue is due.
" on the first point, we agree with one of the learned Judges (Uniyal J.).
The conclusion reached by the learned Judge that 'the taccavi loan was taken by the appellant in his individual capacity ' is the only conclusion possible.
The appellant maintained that the loan was incurred for family purposes i.e., for improvement of Munkundpur Farm by the appellant in his capacity as the karta and it having fallen to the share of the sixth respondent in the family partition, the recovery proceedings against the appellant under section 7 were not maintainable.
We fail to see how can the appellant escape liability on this account.
The Government was not a party to Civil Suit No. 72 of 1952 and was, therefore, not bound by the terms of the compromise decree.
Nor was the Government bound by the alleged partition effected between the appellant and the sixth respondent.
It matters little whether there was a partition or not in 1951; and if so, whether the hypothecated property had fallen to the share of the sixth respondent.
The appellant had bound himself by the terms of the taccavi bond to discharge the liability from his property The instrument is not on record.
The document was, however, before the High Court.
Uniyal J. in the course of his judgment, with regard to appellant 's personal liability, observes: "He pledged his half share in 34 villages of Tahsil Sagri.
After verification of the proprietary rights of the appellant in the hypothecated property, the Collector issued a certificate declaring that the same as sufficient to cover the amount of taccavi loan.
Thereupon a formal document in the nature of taccavi bond was executed by the appellant of the one part and the Collector of the other part evidencing the transaction of loan.
A list containing particulars of the immovable property was annexed to the bond, and it was stated therein that a half share of the appellant in the said zamindari property had been pledged by way of security." (Emphasis supplied) The correctness of this observation is not open to question.
The learned Judge then goes on to say: 186 "The naqsha maliyat attached to the taccavi bond clearly mentioned the details of the hypothecated property in tahsil Saygri consisting of one half share of the appellant.
" He then rightly concludes, saying: "It is of no consequence if the creditor proceeds against the share of the Karta alone in the joint family property hypothecated as security for the loan, or from his person, or both.
" We concur in the conclusion reached by the learned Judge that the loan in question was taken by the appellant in his individual capacity and not as a karta of the joint Hindu family.
Even assuming he took the loan as karta, still he would be personally and severally liable to repay it.
The remaining points are equally devoid of substance.
The contention based on section 289 (2) of the U.P. Zamindari Abolition and Land Reforms Act, 1950 does not arise.
No doubt, the Collector is em powered under section 7 (1) of the to recover all the taccavi dues from the defaulter as arrears of land revenue, and by reason of section 288, the provisions of section 289 are attracted.
By section 288 it is provided that the provisions of the Act with regard to the recovery of arrears of land revenue shall apply to all arrears of land revenue and ' 'sums of money recoverable as arrears of land revenue ' due at the commencement of the Act.
The Collector could, therefore, have taken resort to section 289 (1) for the recovery of the unrealised amount of the taccavi loan by attachment and sale of properties belonging to the appellant.
But, the ilaka of Tahsil Sagri was not, in fact, ever attached under section 289 (1).
In the instant case, no previous sanction of the Board of Revenue was obtained under section 272(2).
Consequently, the attachment could not be said to be one made under section 289 (1).
Further, section 289 applies only to those cases in which the provisions of section 243(1) have been made applicable by the Government under a notification issued under section 243 (2) .
It is nobody 's case that a notification contemplated by section 243 (2) was ever issued.
The question of section 289 (2) operating as a bar to the recovery proceedings after expiry of a period of three years, therefore, does not arise.
There is also a fallacy in the argument.
The provisions of section 289 run thus.
Attachment of village for arrears of land revenue. (1) At any time after an arrear of land revenue has accrued, the Collector may attach the village or any area therein 187 in respect of which the arrear is due and place it under his own A management or that of an agent appointed by him for that purpose for such period as he may consider necessary: Provided that the period for which any village or any area therein may be so attached, shall not exceed three years from the commencement of the agricultural year next following the date of attachment, and the attachment shall be cancelled if the arrears are sooner liquidated.
(2) Upon the expiry of the period of attachment, the village shall be restored free of any claim on the part of the Government for any arrear of land revenue due in respect thereof.
" When an arrear of land revenue has accrued, the Collector may under section 289(1) attach a village or any area therein in respect of which the arrear is due and place it under his own management or that of an agent appointed by him for that purpose.
The proviso to section 289 (1), however, interdicts that the period for which any village or any area therein may be so attached, shall not exceed three years from the commencement of the agricultural year next following the date of attachment, and the attachment shall be cancelled if the arrears are sooner liquidated.
If section 289 (2) is read in the context of sub section
(1), it will be clear that upon the expiry of the period of three years the village has to be restored free of any claim on the part of the Government for any arrear of land revenue due in respect thereof.
The consequence that ensues is that liability for payment of land revenue in respect of the village or any area therein in respect of which arrears are due stands discharged.
There is a distinction between arrears of land revenue and other government dues recoverable as if they were arrears of land Revenue.
In respect of other sums of money recoverable as arrears of land revenue, the debtor is not discharged of his liability for payment of such dues even after three years.
The next question is whether by virtue of section 291 (3), the appellant stood relieved of all liability for payment of arrears of taccavi due after the expiry of ten years.
We may here read section 291 (3).
It is in these terms: "291 (3) Upon the expiry of the period of lease the holding shall be restored to the tenure holder concerned free of any claim on the part of the State Government for any arrears in respect of such holding.
" 188 The High Court has relied upon the affidavit of the Chief Revenue Accountant, Collectorate stating that certain plots of Mukundpur Farm were for the first time let out in the year 1959 60.
It would, therefore, appear that the period of ten years had not expired when the recovery proceedings were initiated.
There remains the question whether the Government is bound to recover the unrealised sum of taccavi loan from the amount of compensation money and relying upon section 6 (e) of the U.P. Zamindari Abolition and Land Reforms Act it is urged that is the only remedy left.
The contention, we are afraid, proceeds on a misconception of the purport and effect of section 6 (e) of the Act, which reads: "6(e).
all amounts ordered to be paid by an intermediary to the State Government under Sections 27 and 28 of the U.P. Encumbered states Act, 1934, and all amounts due from him under the , or the Agricultural Loans Act, 1884, shall, notwithstanding anything contained in the said enactments, become due forthwith and may, without prejudice to any other mode of recovery provided therefor, be realized by deducting the amount from the compensation money payable to such intermediary under Chapter III.
" It is plain upon its terms, that the provisions of section 6(e) are not obligatory.
It is an enabling provision.
It provides that all amounts due under the , shall notwithstanding anything contained therein, become due 'forthwith ', upon the vesting of the zamindari rights.
It then lays down that such dues may, with out prejudice to any other mode of recovery provided therefor, be realised by deducting the amount from the compensation money payable to such intermediary.
It, therefore, provides an additional mode of recovery for realisation of the dues.
The word 'may ' in section 6(e) clearly indicates that the Government has the option to fall back upon the compensation amount.
It does not entail in the consequence that the mode indicated in section 6(e) is the one and the only mode available.
The High Court has observed that the entire amount of compensation money which fell to the appellant 's share amounting to Rs. 38,951.8P had been adjusted towards the loan, on the basis that the half share of the appellant in the zamindari property had been hypothecated as security for the loan.
The recovery proceedings now pending before the Collector is for the balance remaining after such adjustment together with interest.
It was faintly argued by learned counsel for the appellant that the Government was bound to render an account of the rents and profits 189 realised from the letting of plots of Mukundpur Farm, but he did not A pursue the argument any further and rightly so.
The High Court has observed that it had scrutinized the accounts maintained by the Government and the same have been maintained as required by the taccavi rules as per appendix 'A ' to Form VII.
It was certainly not open to the High Court to grant any such relief under article 226 of the Constitution particularly when it involved consideration of disputed question of fact.
The result, therefore, is that the appeal fails and is dismissed with costs.
P.B.R. Appeal dismissed.

summary/full:
The appellant and the sixth respondent, who were brothers, constituted a joint Hindu family.
Though younger in age than the sixth respondent, the appellant by virtue of a settlement, became Karta.
Of the joint family.
The family owned vast Zamindari properties.
One of which was a Farm known as Mukundpur Farm.
For the improvement of the Farm the appellant took taccavi loan by offering his half share in the joint family property as security.
On his failure to repay the loan the Collector of the District ordered attachment of the hypothecated property under section 150 of the U.P. Land Revenue Act, 1901.
The appellant alleged that as a result of the partition of properties between him and his brother the hypothecated property fell to the share of his brother, that under the compromise decree his brother undertook to discharge the loan and that therefore it was he who was responsible for repayment of the loan.
(The Government, however was not impleaded as a party to the suit in which compromise was arrived at between the brothers.) Sometime later the sixth respondent resiled from the compromise decree and stated that he was not liable to repay the loan because it was not taken by the appellant in his capacity as Karta of the joint family but that it was taken only in his (appellant 's) personal capacity and that, therefore, he alone was liable to repay it.
The Collector made enquiries and held that the loan was taken by the appellant in his individual capacity and not as Karta of the joint family and held that he was personally liable to repay the loan.
Eventually it was decided that the realisation of the dues should be made from the hypothecated property as well as from his person and accordingly proceedings for realisation of the principal and interest on the loan were started.
The High Court rejected the appellant 's writ petition.
In appeal the following three questions were raised.
( I ) whether the taccavi loan was taken by the appellant as Karta of the joint family, and, therefore, had to be recovered from the sixth respondent to whose share the hypothecated property had fallen in the partition of the property; (2) Whether the Collector was precluded from taking resort to any one of other modes prescribed by section 7(1) of the land Improvement Loans Act, 1883 for recovery of the sum remaining unrealised towards the taccavi loan; (3) Whether the Government had no right to recover the outstanding amount due except from the compensation amount in terms of section 6 (e ) thereof ? ^ HELD: 1.
The loan in question was taken by the appellant in his individual capacity and not as Karta of the joint family.
By the terms of the taccavi bond the appellant had bound himself to discharge the liability from his property.
Even 180 assuming that he took the loan as Karta, he was personally and severally liable to pay.
In the compromise suit the Government was not made a part and therefore, was not bound by the terms of the compromise decree; nor was the Government bound by the alleged partition effected between the.
appellant and the sixth respondent.
[185 D E; 186C] 2.(a) Section 7(1) of the Land Improvement Loans Act empowers the Collector to recover taccavi dues from the defaulter as arrears of land revenue and the Collector could have taken resort to s.289(1) of the U.P. Zamindari Abolition and Land Reforms Act, 1950, for the recovery of the unrealised amount of taccavi loan by attachment and sales of properties belonging to the appellant.
Section 289 applies only to those cases in which the provision of section 243(1) have been made applicable and it is nobody 's case that a notification contemplated by section 243(2) was ever issued.
The question of section 289(2) operating as a bar to the recovery proceedings upon expiry of period of three years, therefore, does not arise.
If section 289(2) is read in the context of sub section
(1) it will be clear that upon the expiry of the period of three years the village has to be restored free of claim on the part of the Government for any arrear of land revenue due in respect thereof.
The consequence that ensures is that liability for payment of land revenue in respect of the village or any area therein in respect of which arrears are due stands discharged.
But in regard to other Sums of money recoverable as arrears of land revenue the liability continues.
[186D; G, 187E F] (b) As section 291(3) contemplates that upon expiry of the period of lease, the holding shall be restored to the tenure holder concerned free of any claim on the part of the State Government for any arrears in respect of such holding.
In this case the period of the lease had not expired when the recovery proceedings were initiated.
[188A B] 3.
Section 6(c) provides that all amounts due under the Land Improvement Loans Act shall become due forthwith upon the vesting of the Zamindari right.
It also provides that such dues may, without prejudice to any other mode of recovery provided therefor, be realised by deducting the amount from the compensation money payable to such intermediary.
What it provides is an additional mode of recovery for realisation of the dues.
Under the scheme the Government has the option and the mode indicated in the section is not the one and the only mode available.
The recovery proceedings pending before the Collector were for the remainder of the loan after such adjustment together with interest.
[188F G]


judgement:
Civil Appeal No. 54 of 1969.
From the Judgment and Order dated 23 10 1968 of the Mysore High Court in R.F.A. No. 25/63.
B. D. Dal, section Bhandare, A. N. Karkhanis and Miss M. Palival for the Appellant.
V. section Desai and N. Nettar for the Respondent.
164 The Judgment of the Court was delivered by SARKARIA, J.
This appeal by the defendant, on certificate, is directed against a judgment, dated October 23, 1968, whereby in First Appeal, the High Court of Mysore set aside the judgment and decree passed by the joint Civil Judge, Senior Division, Belgaum.
The pedigree of the family given below will be helpful in understanding the facts leading to this appeal: Ravalojirao (died before 1900) | | | Narayanarao Ramachandrarao (died in 1924) (died on 20 1 1955) | | Tuljeramarao Krishnabai (died in 1944) (Defendant appellant) | | | | Appasaheb Nanasaheb (Pltf.1.) (Pltf.2.) Sou.
Vasundhararaje (Pltf. 3.) | | | | | | | Ashok Kumar Pushpendra Virendra Indrajit Ravalogirao | (Pltf.3) Singh Singh Singh (Pltf.9) | (pltf.6) (pltf.7) (pltf.9) Narayanarao (Pltf.10) By a registered document, dated July 25, 1902 (exhibit 39), executed by Narayanarao, six Desgat lands situated in villages Nanandi, Umarani and Nandikurli totalling about 120 acres, were received by Ramachandrarao, for separate living and maintenance of himself and his male lineal descendants.
Out of the lands covered by the said deed, three lands comprised in Survey Nos. 114 (26 acres 30 gunthas), 115 (9 acres 38 gunthas) and 116 (26 acres 34 gunthas), totalling about 63 acres and 22 gunthas, situate in the area of village Umarani, Taluka Chikodi, are the subject matter of the suit, out of which this appeal has arisen.
The respondents herein, who are the grand sons and great grandsons of Narayanarao, on July 24, 1960, instituted Suit No. 26/60 in the Court of Civil Judge, Belgaum against Smt.
Krishnabai, appellant, for possession of the said lands and for recovery of past and future mesne profits, with these allegations: (i) that the suit lands were Desgat Watan lands and were part of the Desgat Watan estate of Nanandi, (ii) that by virtue of an ancient and immemorial family and territorial custom, the Desgat estate of Nanandi was impartible and descended from generation to generation to the seniormost member by the rule of primogeniture, while the junior members of the family were only given some lands for their maintenance by the holder of the Desgat for the time being; (iii) that till his death, 165 the appellant 's father continued to be an undivided member of the Joint family consisting of himself and the plaintiffs; and (iv) that on July 31, 1956, a partition by metes and bounds has taken place between the plaintiffs inter se under a partition deed.
The suit was resisted by the defendant appellant.
She denied the alleged ancient, family and territorial custom of primogeniture.
She denied that the property formed part of the Desgat Watan estate of Nanandi.
She further denied that her father, Ramachandrarao, came into possession of the suit land for his maintenance.
She further pleaded that Ramachandrarao and his brother Narayanarao had separated during their life time and the suit lands and some other lands were given to Ramachandrarao in the partition between the two brothers towards a part of his share, and it was agreed that the share of Ramchandrarao in other family properties would be separated and settled at some future convenient time.
She further stated that since 1902, Ramachandrarao was in separate possession and enjoyment of the suit lands till his death on January 20, 1955, and that at the time of his death he was not an undivided member of the joint family of himself and the plaintiffs.
She further pleaded that on her father 's death she succeeded to the suit lands, which were his separate property.
She further relied on the Bombay Pargana and Kulkarni Wantans (Abolition) Act, 1950 (Bombay Act No. 60 of 1950), (for short, called the Act), and the re grant of the land made in favour of her father, under that Act.
The learned trial judge by his judgment, dated September 29, 1962, dismissed the respondents ' suit with these findings: (a) that the alleged custom of impartibility and devolution of property by the rule of primogeniture had not been proved; (b) that there was a severance of the joint family consisting of the two brothers, in 1902, when they had agreed to separate, that since then for about 53 years till his death in 1955, Ramachandrarao was living separately and enjoying the suit land as his separate property; (c) that the suit lands were originally Watan lands, but they were not so at the date of the suit because the Bombay Act 60 of 1950, which came into force on May 1, 1951, had abolished Watans and thereafter the suit lands were, on the application of its holder, Ramachandrarao, regranted in his favour; that the plaintiffs were aware of Ramachandrarao 's application for the regrant and they had tacitly assented to the regrant in his favour.
166 Aggrieved, the plaintiffs preferred an appeal in the High Court of Mysore.
The High Court affirmed the finding of the trial court, that the custom pleaded by the plaintiffs with regard to the impartibility of the property had not been established.
It observed that "the onus of proving partition is on the defendant, "but the only evidence in support of her case that Ramachandrarao was divided, is Exhibit No. 39".
The High Court construed the deed (exhibit 39) with the aid of its translations into English, one made by the trial judge and the other by the High Court Translator.
It then took note of these features in support of the 'theory of partition ': "(a) Permanency of the arrangement.
The deed provides that Ramachandrarao and his descendants in the male line shall enjoy the property from generation to generation without interference from the grantor.
(b) Cesser of commonsality.
The deed says that Ramachandrarao desired to live separately and therefore the lands were granted to him.
The evidence is that Ramachandrarao lived separate from 1902.
There is no evidence to the contrary.
" It then listed these features to negative the 'theory of partition ': "(a) The nomenclature of the deed.
It is styled as a deed of maintenance.
(b) It was executed by one of the parties only.
If it was intended to be a partition deed it would have been executed by both the parties each relinquishing his rights in the properties not allotted to him.
(c) The deed says that the lands were given to the grantee and his descendants in the male line for maintenance only and they should enjoy the lands continuously.
(d) The total extent of the Desgat lands was over eight thousand acres; if partition was intended, Ramachandrarao who was entitled to a one half share would not have been contented with 90 acres valued at Rs. 3,400/ .
" After cataloguing these pros and cons the High Court concluded: "In our judgment, Exhibit 39 considered along with the circumstances in which it was executed, does not establish the defendant 's case that Ramachandrarao was divided from Narayanarao in 1902 and that the suit lands, among others, were allotted to Ramachandrarao 's share.
We are of the view that on the erroneous but honest belief that Des 167 gat was an impartible estate, Narayanarao granted the lands to Ramachandrarao and his descendants in the male line in lieu of their maintenance.
When Ramachandrarao died without male issue, the interest granted ceased or the tenure came to an end.
The plaintiffs who are the surviving members of the family are entitled to resume the lands.
" Although no such plea was taken by the plaintiffs in the plaint, the High Court held that in view of Section 90 of the Indian Trust Act, the regrant made, after the abolition of Watans, under the Act in favour of Ramachandrarao must ensure for the benefit of the family of the Watandars including the plaintiffs, because Ramachandrarao at the time of his death was holding the suit land as an undivided member of the joint family, for his own benefit and that of the other members of the undivided family.
Since there was no evidence as to the occupancy price paid by Ramachandrarao to obtain the regrant, the High Court, after allowing the appeal and setting aside the decree of the Trial Court, remanded the matter to the court below, with a direction that it should ascertain the amount of occupancy price paid by Ramachandrarao, and then pass a decree for possession in favour of the plaintiffs subject to the repayment of the said amount.
Hence this appeal by the defendant on the basis of a certificate granted by the High Court under Article 133(1)(e) and (c) of the Constitution.
Shri B. A. Bal, learned counsel for the appellant, has, in the course of his arguments, sought to make out two main points: 1.
(a) Sometime prior to the execution of the deed.
(exhibit 39) dated July 25, 1902, there was a severance of the joint Hindu family as a result of an intimation by Ramachandrarao of his intention to separate and Narayanarao 's acceptance of the same.
Such severance can he clearly inferred from: (i) the recitals in the deed (exhibit 39), the permanent allocation of the suit land along with some other land, to Ramachandrarao and his descendants, and (ii) the subsequent conduct of the members of the erstwhile joint family.
(b) Since the deed (exhibit 39) (it is argued) is more than 75 years old and Narayanarao, Ramachandrarao and others who might have given evidence with regard to the circumstances resulting in this transaction are all deed and gone, the recitals, in the deed coupled with the subsequent conduct of the parties, and supplemented by reasonable inferences, were more than sufficient to discharge the initial 168 onus, if any, on the defendant to show severance of the joint family since 1902 or thereabout and the same continued till Ramachandrarao 's death in 1955.
Reference in this connection has been made to Bhagwan Dayal vs Mst.
Reoti Devi.(1) (c) Since at the time of his death in 1955, Ramachandrarao was not a member of an undivided Hindu family and the suit land was his separate property, his daughter the defendant would, even according to traditional Hindu Law, inherit his estate to the exclusion of the plaintiff collaterals.
(2) Section 4 of the Bombay act 60 of 1950 abolished Watons with effect from May 1, 1951.
Section 5 of the same Act abrogated the rule of primogeniture and also every law or custom by virtue of which females were postponed to males in the matter of succession.
After the abolition of the Watons Ramachandrarao alone, to the knowledge of the plaintiff respondents, obtained a regrant of the suit land from the Government in his favour.
Similarly, the plaintiffs applied for regrant of the other Ex watan lands measuring about 8000 acres, to the exclusion of Ramachandrarao.
The regrant of the suit land in favour of Ramachandrarao created new rights exclusively in his favour.
Since on May 1, 1951 he was holding the suit land separately as a divided member of the family, the regrant did not ensure for benefit of the plaintiffs.
As against this, Shri V. section Desai submits that since it was the admitted case of the parties that sometime before the execution of the deed (exhibit 39) dated July 25, 1902.
Narayanarao and Ramachandrarao constituted a joint Hindu family governed by Mitakshra, and the presumption of jointness in case of brothers is stronger, the burden was on the defendant to prove by cogent and convincing evidence that the joint family had disrupted and Ramachandrarao had separated in 1902 and the suit land was his separate property which fell to his share in partition.
It is maintained that the recitals in the deed, exhibit 39, do not furnish any evidence that Ramachandrarao had communicated an unambiguous and clear intention to separate from his brother in estate and thenceforth hold it in defined shares.
It is urged that the transaction evidenced by the deed should be construed by the Court, not according to its own sense of right and wrong, but according to the notions and beliefs prevailing among orthodox Hindus in 1902, of a strata of society to which Narayanarao and Ramachandrarao belonged.
In 1902, proceeds the argument, to cause disruption of a joint Hindu family of Watandars 169 was considered to be a sin.
According to Shri Desai, if the document, exhibit 39, is considered from that view point it would appear that the arrangement devised thereby was consistent with the continuance and preservation of the jointness of the family and its estate, rather than its division and disruption.
It is pointed out that the area of Watan Land held by the joint Hindu family in 1902 was about eight thousand acres, and if the intention of the brothers was to sever the joint family status, there was no difficulty in declaring that thenceforth the two brothers would hold the entire estate in equal, defined shares.
It is emphasised, though Ramchandrarao, died in 1955, he never asked for partition and possession of his one half share in the remaining seven or eight thousand acres held by Narayanarao and his descendants, but remained contented with a mere 118 or 120 acres given to him for maintenance under exhibit 39 in 1902.
It is further submitted that the Court cannot construe the deed exhibit 39, as a deed of partition, but only as a deed of maintenance, as it, expressly purports to be, because in view of Section 92 of the Evidence Act no extrinsic evidence is admissible to contradict or vary its terms.
In support of his arguments Shri Desai has referred to Paragraph 448 of Mayne 's Hindu Law (1953 Edn.).
Learned counsel further submits that in view of the paucity of evidence produced by the defendant appellant to show division of the joint family, the High Court was right in holding that Ramchandrarao died as an undivided member of the joint Hindu family consisting of himself and the plaintiffs.
It is submitted, in that view of the matter, the second point urged by Shri Bal does not survive for decision.
Nevertheless, Shri Desai took us through the relevant provisions of the Bombay Act LX of 1950 and the Watan Act of 1874, to show that there is nothing in those provisions which militates against the finding of the High Court to the effect, that if Ramchandrarao died as an undivided member of the joint family, the regrant would enure for the benefit of all the members of the family.
We will take Point No. 1 canvassed by Shri Bal.
The primary question that falls to be considered is, whether in 1902 or shortly prior to it, there was a partition between the two brothers Narayanarao and Ramchandrarao in a manner known to law.
In this connection, it is necessary, at the outset, to notice the fundamental principles of Hindu Law bearing on the point.
The parties are admittedly governed by Mitakshra School of Hindu Law.
In an undivided Hindu family of Mitakshra concept, no member can say that he is 170 the owner of one half, one third or one fourth share in the family property, there being unity of ownership and commonsality of enjoyment while the family remains undivided.
Such unity and commonsality or the essential attributes of the concept of joint family status.
Cesser of this unity and commonsality means cesser or severance of the joint family status, or, which under Hindu Law is 'partition ' irrespective of whether it is accompanied or followed by a division of the properties by metes and bounds.
Disruption of joint status, itself, as Lord Westbury put it in Appovier vs Rama Subha Aivan.
,(1) in effect, "covers both a division of right and division of property.
" Reiterating the same position, in Giria Bai vs Sadashiv,(2) the Judicial Committee explained that division of the joint status, or partition implies " separation in interest and in right, although not immediately followed by a de facto actual division of the subject matter.
This may, at any time, be claimed by virtue of the separate right.
" The division of the joint status may be brought about by any adult member of the joint family by intimating, indicating or representing to the other members in clear and unambiguous terms, his intention to separate and enjoy his share in the family property, in severality.
Such intimation, indication or representation may take diverse forms.
Sometimes it is evidenced by an explicit declaration (written or oral); sometimes, it is manifested by conduct of the members of the family in dealing separately with the former family properties.
Service of notice or institution of a suit by one member/coparcener against the other members/coparceners for partition and separate possession may be sufficient to cause disruption of the joint status.
We will now deal with the first proposition propounded by Shri Bal, in the light of these principles.
The primary question that arises for consideration is, whether Ramchandrarao had brought about a division of the joint family status or partition by intimating to his brother in clear terms, sometime in 1902 or shortly prior thereto, his intention to separate and enjoy his share in severality.
Answer to this question depends on inferences which may, reasonably be drawn from the contents of the deed (exhibit 39) and the subsequent conduct of the parties.
The original deed, Ex.39 is in Marathi.
It was rendered into English by the trial judge himself, who concededly had adequate knowledge of Marathi.
According to him, the deed (Ex.39) speaks of a division of 171 the joint family status and separation of interests.
For this construction, the trial judge drew much on the word "Vibhaktarahave" which, according to him, connotes division of status.
The learned Judges of the High Court however, did not accept this interpretation.
They preferred to rely on the English translator of this deed made by the High Court Translator.
Since there is some variation between the two translations, it will be worthwhile to extract the same here for facility of comparison and reference.
The translation effected by the trial judge, reads as under: "You (Ramchandra Rao) are my younger brother.
We were living jointly till today.
Recently you have desired to take some property for maintenance (Nirwah Kurat) and live separate after division (Vibhaktarahave).
Since I have deemed it proper to give you some property for your maintenance as befits our Sansthan, I have given you the following properties for your maintenance.
(Then follows the description of the properties).
All these lands have been given to you along with the appurtenances for meeting the livelihood of you and your family members.
Hence, you and your successors i.e., your natural born male descendants should enjoy the properties from generation to generation and live happily.
The Sansthan will not interfere with the lands any longer.
Only you and your natural male descendants should enjoy the property.
You shall also pay the Joodi to the Government hereafter." (The disputed words have now been underlined).
The translation made by the High Court Translator reads as below: "You are my younger brother and you have been residing with me only in jointness up till now.
As you have been recently thinking of residing separately yourself by receiving some properties for your maintenance, I found it proper to give you some property for your maintenace as befits our Sansthan and have given you for your maintenance the 'Desgat ' lands of our Khata situate in the below mentioned villages in Taluka Chikodi Sub District, Belgaum District.
Particulars thereof are as under: Lands situate at Village Nanadi.
(1) Bagayat Land of No. bearing Survey No. 189 measuring 14 acres 23 guntas assessed at Rs. 20 0 0.
The land together with a well valued at Rs. 1000/ .
(2) The land 172 measuring 9 acres 30 guntas assessed at Rs. 41 8 0 out of Survey No. 187 is bounded on the east by a land in our possession out of the same No. on the west by the village limits, on the south by the land No. 196 and on the north by the land bearing Survey No. 198.
In the land enclosed within the aforesaid boundary there is a well.
This well has two "Veravantas" i.e. one on the Eastern side and another on the Southern side.
It has 10 'motes '.
Out of the 'motes ' of that well we are to get water with 3 'motes ' and you are to get water with 2 'motes '.
Repairs to the said well also are to be carried in that portion only and the expenses required to remove the mud etc., are also to be borne in the same proportion itself.
Value Rs. 1000/ Lands situate at the Village Umarani.
Rs. No. Acres Assessment 3 99 26 30 14 0 0 The said 3 4 100 9 38 9 0 0 lands are 5 101 26 34 17 0 0 entire No. and are valueed at Rs. 1000/ together with the appurte nant thereof.
Land situate at Majere Kenpatte in the Village Nandikurli.
6 120 24 18 9 0 0 This land of entire No. together with the appurtenances thereof is valued at Rs.400/ .
The lands as mentioned above are given to you for your maintenance and the maintenance of your dependants.
Hence, you and your descendants, i.e., natural male descendants should enjoy the said lands continuously and live happily.
In respect of the said lands given to you, you will not be put to any trouble from the state (Sansthan) in any manner but, the said lands are to be continued with you and your natural male descendants.
You should go on paying the joodi payable by you to the Government in respect of the said lands in our possession are given to your possession today.
To the above effect the deed of maintenance is duly executed.
" A comparative study of the above extracts would show that except for the English rendering of the word "Vibhaktarahave" by the learned trial judge, there is no substantial difference between the two translations.
The Marathi word "Vibhaktarahave", according to my learned Brother on this Bench, who has working knowledge of Marathi, is a compound of two words, namely, "Vibhakta" and "Rahave".
"Vibhakta" appears to have its root in the Sanskrit word "Vibhaga".
"In the Mitakshra, Vijnanesvara defines the word 173 "Vibhaga" which is usually rendered into English by the word "partition" as the adjustment of diverse rights regarding the whole, by distributing them in particular portions of the aggregate." (See Para 448 of Mayne 's Hindu Law, 11th Edition.) 'Rahave ' means "living".
In view of this etymological analysis, it cannot be said that the learned trial judge 's interpretation of the word "Vibhaktarahave" as equivalent to "live separately after division" was literally wrong.
Even the learned Judges of the High Court (who did not claim to know Marathi), have not held in categoric terms that this translation of "Vibhaktarahave" made by the trial judge is grammatically wrong.
What the learned Judges appear to say is that the context in which the word "Vibhaktarahave" has been used, gives it a meaning different from its grammatical sense, so that it cannot be understood as signifying an intention to divide, but connotes only a desire to live separately.
The learned Judges have sorted out four features from the context of the deed, exhibit 39, which, according to them, militate against the literal interpretation of the word "Vibhaktarahave" and negative the theory of division of status.
Those features it will bear repetition are: (i) The deed is styled as one for maintenance, (ii) It was executed by Narayanarao only, (iii) The lands under the deed were given to Ramchandrarao and his descendants in the male line for maintenance only, (iv) The total extent of 'Desgat ' lands was over 8000 acres.
Ramchandrarao should have claimed half of the entire 'Desgat ' area and not remained contented with about 90 acres given to him under the deed exhibit 39).
In our opinion, none of these features, if appreciated in the right perspective, detracts from the conclusion that there was a division of joint family status as a result of an intimation to Narayanarao by Ramchandrarao, of his intention to separate, followed by allotment to Ramchandrarao in furtherance of that division, the lands mentioned in exhibit 39.
The four features listed above rested on erroneous assumptions.
Even according to the High Court, both the brothers were, at the time of execution of the document exhibit 39, labouring under an erroneous belief that the 'Desgat ' lands were impartible and held by the eldest member of the family in the male line, while the junior members were entitled only to maintenance.
The High Court has expressly upheld the finding of the trial Court that no custom was established according to which, the 'Desgat ' lands of the family were impartible and vested only in the eldest male member of the family to the exclusion of the junior members.
The High Court has further not disagreed with the trial courts finding that no custom of primogeniture in this family has been established.
174 Once it is held that this two fold assumption or belief about the impartibility of the estate and its devolution in the male line by rule of primogeniture was fallacious, the said four features stemming therefrom, lose their significance.
These features which purport to give the transaction (exhibit 39) the colour of a mere maintenance arrangement as distinguished from an absolute transfer or allotment, have to be credited with no more substance than phantoms conjured out of phantasy, probably by the sole executant of the deed with a self serving motive.
In any case, they are words of vain show or form lacking reality.
We have therefore, to peal aside this jejune and illusory cover, to reach at the kernel and concentrate on the crucial features of the document exhibit 39.
We are unable to accept Shri Desai 's argument that the process adopted by us would involve contravention of Section 92 of the Evidence Act.
Firstly, in this process, which is essentially one of construction of the deed, exhibit 39, no question of contradicting, varying, adding to or subtracting any term of the disposition is involved.
The deed, exhibit 39, falls into two distinct parts: The first of them comprises the preamble or the preliminary recital of a past fact.
This part does not contain any term of disposition of property.
Such terms are confined only to the second part.
Section 92 prohibits only the varying of terms of the documents, not the memoranda or recitals of facts, bereft of dispositive terms, particularly when the correctness of the whole or any part of the recital is in question.
We are primarily concerned with this preliminary recital which does not fall under the dispositive or operative portion of the document.
The question is, whether or not this recital of a past oral intimation by Ramchandrarao to Narayanarao had caused severance of joint family status.
It is settled law that a clear intimation by a coparcener to the other coparcener of his intention to sever the joint status need not be in writing.
For these two fold reasons, the bar in section 92 against the admissibility of extrinsic evidence for the purpose of showing that the insertion of the words "for your maintenance" in the recital is wrong, unreal, unmeaning and the coinage of the executant 's own brain, is not attracted.
Secondly, there is ample authority for the proposition that when there is a dispute in regard to the true character of a writing evidence de hors the document can be led to show that the writing was not the real nature of the transaction, but was only an illusory, fictitious and colourable device which cloaked something else, and that the appa 175 rent state of affairs was not the real state of affairs.
[See Chandi Prasad Singh vs Piari Bedi C.A. No. 75 of 1964, decided on 16 3 1966, and Bhagwan Dayal vs Mst.
Reoti Devi (supra) ].
This preliminary recital in the deed, exhibit 39 (as translated by the learned trial judge), with due emphasis on the words 'recently ' and 'Vibhaktarahave ', coupled with the surrounding circumstances and natural probabilities of the case, definitely raises the inference that sometime in the recent past, prior to the date of the deed, exhibit 39, Ramchandrarao had clearly and persistently intimated to his coparcener, Narayanarao, his intention to sever the joint family status and to hold and enjoy his share of the joint family property in severalty.
The immediate and inexorable consequence of this intimation was disruption or division of the joint status, which, in the eye of Hindu Law, amounted to 'partition '.
From that date onwards, which preceded the date of the deed, exhibit 39 Narayanarao and Ramchandrarao ceased to be coparceners and held the former coparcenary property as tenants in common.
Thus, at the time of execution of the deed exhibit 39, the joint family status did not exist; it had already been put an end to by Ramchandrarao 's intimation to Narayanarao, of his intention to divide and separate.
If that be the true position, it was not open even to Ramchandrarao, much less to Narayanarao, to nullify the effect of the communication of the former 's intention which had resulted in severance of the joint status, by revoking or withdrawing that communication.
Ramchandrarao could not get back to the old position by mere revocation of the intention.
A coparcenary is purely a creature of Hindu Law; it cannot be created, or recreated after disruption, by the act of par ties, save in so far that by adoption a stranger may be introduced as a member thereof or in the case of reunion.
[See paragraphs 214 and 325 of Mulla 's Hindu Law and this Court 's decision in Puttorangama vs Ranganna; Bhagwan Dayal vs Mst.
Reoti Devi (supra).] There is hot evidence that after the severance of the joint family status, there was a reunion.
As before the High Court, here also, an argument was raised that the preliminary recital in the deed, exhibit 39, being qualified, furnishes little or no evidence for a finding that Ramchandrarao had declared and intimated in clear and unambiguous terms his intention to sever the joint family status.
176 We are unable to accept this argument.
It has to be borne in mind that this document has been let in evidence more than 70 years after its execution.
Narayanarao and Ramchandrarao and all others who might have given evidence with regard to the circumstances of this recital in particular, and the deed in general, are long deed and gone.
There is no dearth of authority for the proposition that in such a situation, it is permissible to draw reasonable inferences to fill the gaps or details obliterated by time.
[See Chintamanibhatia Vankat Reddy vs Rani of Wadhavan; Sree Sree Iswar Gopal Jien Thakur vs Pratapmal Bagaria.
The preliminary recital in the deed, therefore, assumes importance.
Read in the light of the surrounding circumstances and in the perspective that the 'Desgat ' land was partible coparcenary property of the two brothers, each of whom had an equal interest therein and an equal right to get his share divided and thereafter enjoy it in severalty, this recital establishes with a preponderance of probability, that sometime before the execution of the deed, exhibit 39, Ramachandrarao had communicated to his brother, in clear, unmistakable terms his intention not only to separate in residence and user and put an end to commonsality, but also to sever the unity of ownership and enjoy his share in severalty.
The result was division of the joint status.
Once it is found that the division of the joint status preceded the execution of the deed, exhibit 39, then the disposition made thereunder could only be a step towards the implementation of that division and in recognition of Ramchandrarao 's right to have his share, wholly or partly demarcated and specified for separate enjoyment as an absolute and exclusive owner thereof.
While giving the land measuring 118 or 120 acres to Ramchandrarao in recognition of the latter 's equal right in the Desgat, Narayanarao had no power to impose the futile condition that the land was being given to Ramchandrarao and his male lineal descendants for maintenance.
As already discussed, this insertion by the executant from an ulterior self serving motive was devoid of substance; it could not be attached any greater importance and realty than the phantasmic assumption, from which it was conjured up: a fortiori, when in the deed, exhibit 39, there is no stipulation that in the event of Ramchandrarao 's male line becoming extinct, the land would revert to the 'Desgat ', and Narayanarao or his descendants would have a right of re entry.
177 We are in agreement with the trial court that the expressions "Potgi" (maintenance) or "Nirwahkrit" in the deed cannot be construed as conferring an estate with restricted rights of 'ownership ', limited to the lifetime of Ramchandrarao and his linear male descendants.
The deed evidence a permanent transfer or allotment of about 118 or 120 acres of land to Ramchandrarao to be enjoyed from generation to generation to the entire exclusion of Narayanarao and his descendants.
In terms, Narayanarao did not reserve any right of reversion in favour of himself and his branch in any circumstances.
Irrigation rights also with regard to the land transferred or allotted under this deed, were divided.
It was further provided that from the date of the deed, payment of Joodi to the Government in respect of this land, shall also be the exclusive liability of Ramchandrarao and his descendants.
The inference that this land, measuring about 118 acres was given to Ramchandrarao in partial implementation of division of joint family status or partition, receives further confirmation from the following circumstances: (a) From the date of the deed, exhibit 39, till Ramchandrarao 's death in 1955, for a period of about 53 years, the lands disposed of by the deed, throughout remained in the full, exclusive and uninterrupted enjoyment of Ramchandrarao.
The relevant entries in the revenue records during this period, also, stand exclusively in his name as owner in possession thereof.
(b) After the abolition of Watans in 1951, Ramchandrarao alone applied for regrant of this land in his favour, under the Watan Abolition Act.
The plaintiffs were at all material times, admittedly aware that Ramchandrarao had applied for the regrant of this land exclusively in his favour, but they never objected, and tacitly assented to the same.
On the other hand, the plaintiffs applied and obtained regrant of the 'Desgat ' lands (other than those which were the subject of the deed, exhibit 39), in their favour to the exclusion of Ramchandrarao.
In the light of the above discussion, we are of opinion (i) that there was partition or division of the joint family status sometime prior to the execution of deed, exhibit 39, and (ii) that the disposition of about 118 or 120 acres made under that deed was, in substance an absolute allotment of that land to Ramchandrarao, towards implementation of that division or partition in recognition of the latter 's right to have his share demarcated by metes and bounds to be enjoyed exclusively in severalty.
Point No. 1 is thus found in favour of the appellant.
In view of the above finding that the suit property was the separate, divided 178 property of Ramchandrarao at the date of his death, and under the traditional Hindu Law, would go by succession to his daughter, the appellant herein, to the exclusion of the plaintiff collaterals, it is not necessary to decide Point No. 2 canvassed by the appellant.
In the result, for all the reasons aforesaid, we allow this appeal and dismiss the plaintiffs suit with costs throughout.
P.B.R. Appeal allowed.

summary/full:
The grandfather and great grand father of the respondents and the father of the appellant were brothers.
By a registered deed (Ext. 39) the elder brother purportedly gave the younger brother (appellant 's father) some lands for separate living and maintenance of himself, and his male lineal descendants for ever.
The lands in dispute were a part of the lands covered by the deed.
In their suit, the plaintiffs alleged that the suit lands were part of Desgat Watan estate which, by virtue of an immemorial family and territorial custom, was impartible and the junior members were given lands only for their maintenance, and that till his death, the appellant 's father continued, to be an undivided member of the joint family consisting of himself and the plaintiffs, and that on the death of the appellant 's father the lands should go to them.
The trial court held: (1) that the impartibility of the estate and the rule of primogeniture had not been proved; (2) that there was severance of the joint family in 1902 since when the brothers were living separately; (3) that on the abolition of Watans by Bombay Act 60 of 1950, the suit lands which originally were Watan lands, were re granted in favour of the appellant 's father and that the plaintiffs tacitly assented to the regrant of the lands exclusively in his favour.
On appeal, the High Court affirmed the view of the trial court that the estate was not impartible and that the onus of proving partition was on the defendant (appellant herein).
It was held that Ext.
39 did not establish that the brothers were divided in 1902 and that the suit lands were allotted to the appellant 's father; that on the erroneous but honest belief that Desgat lands were impartible, the elder brother granted the lands to his brother and his descendants in the male line in lieu of their maintenance and that the younger brother having died without male issue, the tenure came to an end whereupon the plaintiffs who were the surviving male members of the family, were entitled to resume the lands.
The High Court remitted the matter to the trial court with certain directions.
In appeal to this Court, the appellant contended: (i) that her father prior to the execution of Ext.
39, had clearly intimated to his brother his intention to divide the estate and to live separately after division, resulted in a severance of the joint family status, and that such severance was evident from the recitals in Ext.
39 and the subsequent conduct of the members of the erstwhile family.
162 Since the appellant 's father after such division was holding, the suit lands as his separate property, the same were inherited by the appellant to the exclusion of the plaintiffs.
(ii) Since the regrant of the suit lands to the appellant 's father created new rights exclusively in his favour, the regrant did not enure for the benefit of the plaintiffs.
Allowing the appeal and dismissing the plaintiff 's suit ^ HELD: 1.
Unity of ownership and commonsality of enjoyment are the essential attributes of an undivided Hindu family of Mitakshra concept.
So long as the family remains undivided no member can predicate a definite share to himself.
Cesser of this unity and commonsality means cesser or severance of the joint family status, which in Hindu Law amounts to partition, irrespective of whether it is accompanied or followed by a division of the properties by metes and bounds.
Disruption of joint status covers both division of right and division of property.
Division of joint status may be brought about by any adult member of the joint family by intimating the others his intention to separate and enjoy his share in the family property in severalty.
Such intimation may be an explicit declaration (written or oral) or manifested by conduct of the members of the family.
[170A B] (i) In the instant case, Ext.
39 speaks of a division of the joint family status and separation of interests.
The trial judge translated the term "Vibhaktarahave" in Marathi, as connoting division of status.
But the High Court did not agree with the translation made by the trial judge, and preferred to rely on the translation by the High Court translator.
Except for the English translation of the word "Vibhaktarahave" there is no substantial difference between the two translations.
[171 A B] The word "Vibhaktarahave" is a compound of two words viz., "Vibhakta" and "Rahave".
"Vibhakta" appears to have its roots in the Sanskrit word "Vibhaga".
"In the Mitakshra, Vijnanesvara, defines the word 'Vibhaga ', which is usually rendered into English by the word 'partition ' as the adjustment of diverse rights regarding the whole by distributing them in particular portions of the aggregate".
"Rahave" means "living".
Understood in its etymological sense the word "Vibhaktarahave" means living separately after division.[172H] (ii) None of the four features which, according to the High Court, militate against the literal interpretation of the word "Vibhaktarahave", viz., that the deed was one for maintenance, that it was executed by the elder brother, that the lands were given to the appellant 's father and his descendants in the male line and that the appellant 's father would not have remained contended with only a small portion instead of claiming entire half share detracts from the conclusion that in substance and reality the document evidence a division of joint family status as a result of an intimation by the appellant 's father to his brother of his intention to live separately after division.
[173D] 2.
Section 92 of the Evidence Act prohibits only the varying of terms of a document, not the memorandum or recitals of facts, bereft of dispositive terms, particularly when the correctness of the whole or any part of the recital is in question.
[174E] 163 In the instant case the preliminary recital does not fall under the dispositive or operative portion of the document.
The bar under section 92 against the admissibility of extrinsic evidence for the purposes of showing that the insertion of the words 'for your maintenance ' in the recital is wrong, is not attracted.
[174G] 3.
(a) When there is a dispute in regard to the true character of a writing evidence de hors the document can be led to show that the writing was not the real nature of the transaction but was only illusory which cloaked something else and that the apparent state of affairs was not the real state of affairs.
[174H] Chandi Prasad Singh vs Piari Bidi, CA No. 75 of 1964, decided on 16 3 1966, Bhagwan Dayal vs Reoti Devi, ; ; referred to.
(b) The preliminary recital in Ext.
39 raises an inference that sometime prior to the date of the deed the younger brother had clearly intimated to his coparcener of his intention to sever the joint family status and to enjoy the joint family property in severalty.
Disruption of the joint family status ensued.
From that date onwards the brothers ceased to be coparceners.
That is, at the time of the execution of the deed, joint family status did not exist.
There is no evidence that after the severance of the joint family status there was a re union.
[175 E F] (c) It cannot be said that the preliminary recital furnished little or no evidence that the younger brother intimated in clear terms his intention to sever the joint family status.
The document had been let in evidence more than 70 years after its execution.
All those who might have given evidence were dead.
In such a situation it is permissible to draw reasonable inferences to fill the gap of details obliterated by time.
[175H; 176A] Chintamanibhatla Vankat Reddy vs Rani of Wadhawan; 47 I.A. 6 at p. 10; Sree Sree Iswar Gopal Jien Thakur vs Pratapmal Begaria, ; referred to.
(d) Once it is found that the division of joint status preceded the execution of the deed, the elder brother had no power to impose a condition that the land was being given to his younger brother and male lineal descendants for their maintenance.
[176 E F] (e) The expression 'Potgi ' (maintenance) or 'Nirwahkrit ' used in the deed could not be construed as conferring an estate with restricted rights of ownership to the younger brother and his descendants.
The deed evidences a permanent transfer of land to be enjoyed from generation to generation.
Moreover the younger brother remained in full ownership of the land till his death.
After the abolition of Watans he alone applied for re grant of this land in his favour.
The plaintiffs were aware of this position.
[177A B]