Barman, J.@mdashThis is an appeal from a decision of the 2nd. additional Subordinate Judge, Cuttack, dismissing the Plaintiffs suit against the Defendant No. 1 on contest and ex parte against the Defendant No. 2.
2. The Plaintiff is the Appellant. The Defendant No. 1 is alleged to be the adoptive father of the Plaintiff. The Defendant No. 2, who was a purchaser from the Defendant No. 1 in respect of certain properties did not contest the suit. The Defendant No. 1 alone fought this litigation against the alleged claim of the Plaintiff, his alleged adopted son. The suit was one for partition filed by the Plaintiff for division of the properties in equal share. The properties which were the subject-matter of the suit were ''Ka and ''Kha schedule properties Ka schedule properties being immovable properties and ''Kha schedule properties being movable properties. The Plaintiff claimed all the properties included in ''Ka and ''Kha schedules which all, according to him, belonged to the joint family consisting of himself and his adoptive father, Defendant No. 1. The Defendant No. 1 in the written statement denied the allegations in the plaint. The very status of the Plaintiff as the adopted son of the Defendant No. 1 was challenged. In course of the hearing of the suit, however, the status of the Plaintiff as the adopted son was conceded on behalf of the Defendant No. 1 and the trial proceeded on that basis.
3. The only point-with which the learned 2nd Additional Subordinate Judge had to deal at the trial-was whether or not the ''Ka and ''Kha schedule properties were self-acquired properties of the Defendant No. 1 alone and whether or not the said properties were the joint family properties of the Plaintiff and the Defendant No. 1.
4. In support of his contention the Plaintiff relied mainly on the evidence of P. Ws. 2, 3 and 4. The Plaintiff also relied on the evidence of the Defendants witness D. W. 3 which, according to the Plaintiff, supported his (Plaintiffs) version of the case. The Plaintiff also relied 011 certain documentary evidence including entries in a Rokar (ext. 9). that Daily Cash Book, of the year 1936 relating to the grocery shop. It was conceded on behalf of the Plaintiff that the business was initially the self-acquired business of his father, the Defendant No. 1 but subsequently became joint property of the Plaintiff and the Defendant No. 1
5. As regards oral evidence, P.W. 2, a shopkeeper of 72 years old at the time he deposed in February 1942 said that the Defendant No. 1 had a grocery shop. The gist of his evidence on which the Plaintiff mainly relied was that the Plaintiff wrote the accounts of the shop after he left the school. The witness further said that the father and the son had no separate account of their respective earnings.
The Defendant No. 1 was serving under the State as a Sarbarkar and subsequently the Plaintiff got himself appointed as the Sarbarkar. According to the evidence of this witness, the Sarbarkar gets commission at the rate of 10 per cent of the amount of rent collected by him in addition to 5 acres of Jagir lands. The yield of the Sarbarkari Jagir land was being kept along with the paddy of other land. The Plaintiff relied on his evidence in support of his contention that the earnings of the father and the son were blended, that is to say, thrown into the common stock; and assuming the business was initially self-acquired business of the father but by reason of the alleged blending, it lost its character as self-acquired business and became the joint family business of the father and the son. P.W. 3 who was a money-lender also gave evidence substantially on the same line as P.W. 2. P.W. 4 was the Plaintiff himself who, in his evidence claimed that there was one account for all the income and expenditure of himself and the Defendant No. 1. Furthermore, according to him, the paddy from the Jagir land as well as the paddy from other lands were kept together and the surplus stock was being sold after meeting the family consumption. In short, his evidence was that the properties in suit-both lands and movables-were the joint family properties of him ''elf and the Defendant No. 1. According to him, some lands were previously acquired by the Defendant No. 1 and, thereafter some lands were purchased with their joint income-Lot No. 1 in schedule ''Ka having been purchased with the joint earnings of himself and the Defendant No. 1; and Lot Nos. 2, 3 and 4 having been subsequently purchased out of the joint income. In further clarification of his alleged claim in respect of the different Lots included in the schedule, Lot No. 1 was purchased for Rs. 400/- and odd and Lot Nos. 2, 3 and 4 were acquired for Rs. 500/- or Rs. 600/-. In support of his alleged claim regarding Lot No. 1, the Plaintiff relied on ext. 5. In cross examination be had to admit that he could not say if there was any Kabala. He said that these lands stood recorded in the name of the Defendant No. 1 and that except the lands under Lot Nos. 1 to 4 in ''ka schedule, all other lands were ancestral lands of the Defendant No. 1. As regards devolution of title in respect of these Lots of land, the Plaintiff himself admitted that these lands were acquired by the father of Defendant No. 1 Shiba (sic). The Plaintiff, however. as he admitted in evidence, never applied for getting the suit lands recorded jointly in his name along with the name of the Defendant No. 1. Furthermore, it is also significant that the Plaintiff never claimed that the properties under Lot Nos. 1 to 4 were jointly acquired in their names. One further significant aspect in his evidence was his statement that some twelve or thirteen years ago he had asked the Defendant No. 1 to execute a Will in his favour in respect of the ''Ka schedule properties. The implication of this statement will be discussed hereafter. The evidence of the two remaining witnesses for the Plaintiff P.W. 5 and P.W. 6 is not helpful either. P.W. 5 said in cross-examination that the cash of the shop was kept with the Defendant No. 1 who also used to keep the key and that the Defendant No. 1 had Mahajani business both in money and paddy. This witness rather supported the fathers version of the case. The Plaintiff ought to rely, on the evidence of the Defendants witness D. W. 3 who, according to the Plaintiff, gave evidence consistent with the Plaintiffs version. Our attention was drawn to the portion of the evidence of, D, W. 3 where he said that P.W. 2 was in the shop of Defendant No. 1 but he could not say; what he Was doing.
6. Then as regards documentary evidence, the Plaintiff sought to make a capital out of non-production of documents by the Defendant No. 1 who admittedly had the books of the business and other documents relating to the properties in his possession. In this context, the Plaintiff relied on the evidence of P.W. 1, the Commissioner, who deposed to say that he was directed by the Court under Order No. 55 dated January 23, 1952 in the suit to produce the Khatas in the possession of the Defendant No. 1. The Commissioner proceeded to the spot and served a notice on the Defendant No. 1 asking him to make over the Khatas to the Commissioner. The Defendant No. 1 refused to accept the notice and did not make over the Khatas to him and so he could not produce the same in Court as ordered. Subsequently, the Commissioner appears to have filed a petition (ext. 3) stating the circumstances in which the Defendant No. 1 refused to give possession of the account Khatas and on the statements as made by him in the petition, the Commissioner prayed for proper enquiry u/s 476 Code of Criminal Procedure and sanction for prosecution under Sections 188 and 353 Iridian Penal Code. It appears, however, that the Plaintiff made the best out of the situation and did not make any further attempt to get production of the books on which he so much relied. Apparently, the Plaintiff thought that it would be a wiser course to rely on non-production of the books by the Defendant No. 1 than on the books themselves which he presumably knew better than anybody else, that they would not help to support his contentions. In course of the hearing of the appeal, however, the Defendant-Respondent produced before us certain accounts said to have been seized by the Commissioner who went to make an inventory of the movable properties. These accounts were not produced at the time of the trial. The learned Counsel for the Appellant based a portion of his arguments on the account book of 1936 which was marked here as ext. 9/ and other books not relied upon were returned to the Defendant-Respondent. Some reliance was placed on behalf of the Plaintiff-Appellant on certain entries in the Rokar (Daily Cash Book) of the year 1936 (ext. 9) as aforesaid. This Court in course of the hearing of the appeal gave every opportunity to the Plaintiff-Appellant to refer to any entry in these accounts which might help to show the alleged joint family character of the business-in other words to show that he and his father Defendant No. 1 had both jointly thrown into the common stock their separate earnings towards joint family purposes. The Plaintiff Appellant referred to certain entries under dates 15-4-1936, 20-4-1936, 7-5-1936, 20-5-1936, 23-5-1936 and 67-1936 purporting to show that the Plaintiff had credited to the account of the business for joint family purposes certain earnings of his own on account of Khajana from Barhia ''Mouza in respect of which the Plaintiff-Appellant was the Sarbarkar. The entries show that very small sums were received on account of Gangdhar alleged to refer to the Plaintiff (vide entry under date 7-5-1936 ext. 9) or on account of Khajana from Barhia Mouza (vide other entries in ext. 9). The entries by themselves are not however at all clear so as to be conclusive as to support the Plaintiffs alleged contentions. The suggestion of the Plaintiff was that his separate earnings from his Sarbarakari, namely, the commission payable to him, were thrown into the joint family business. It appears to us however that these very small amounts-assuming they were the Plaintiff Gangadhars separate earnings thrown into the Defendant No. 1 grocery business-just passed through the said business accounts which the Plaintiff presumably drew out because after all the Plaintiff was being maintained by the Defendant No. 1 on whom the Plaintiff was dependent. No proof was offered that the amount were not repaid to the Plaintiff or otherwise accounted for. These unexplained stray entries in ext. 9 do not convince us that the business was a joint family business. What the position actually was that the son was helping the father in his business in writing the accounts. While so writing the accounts the Plaintiff possibly made certain credit entries on account of his little commission earnings from his Sarbarakari. This by itself is not conclusive. In any event, these documents were not relied upon at the trial and no opportunity was given to the Defendant No. 1 to explain these entries.
7. This leads us to the consideration of the question whether the Plaintiff is entitled to a presumption in his favour for non-production of these account books at the trial. Mr. R.N. Sinha, the learned Counsel appearing for the Plaintiff-Appellant, relied on a decision of this Court in Messrs. Ridhikaran Ramadhin v. French Motor Car Company Ltd. 21 C.L.T. 332, where, it was held that if a party to a case does not produce a document which is the best evidence in support of his contention, an inference can be drawn that, if produced, it would be against his contention. It is only in the case of non-production of documents irrelevant to the case that such an inference cannot be drawn unless the party is asked to produce the document and he fails to do so. In this case my learned brother Rao, J., while delivering the judgment explained the facts and circumstances of that case on which such inference from non-production could be drawn. The document in question in that case was the contract of agency itself which had been entered into between the parties concerned on which the suit was instituted. It was thus a vitally relevant document on which the fate of the suit depended. The facts here, however, are different. In the present case before us the Rokar (Daily Cash Book) subsequently produced here in this Court in course of hearing of this appeal and marked as ext. 9 as aforesaid, was irrelevant to the case. In fact, these documents were not relied upon at the trial stage of the suit nor was there any attempt on the part of the Plaintiff now seeking to rely on them, to get production of these khatas at the time of trial of the suit. The Plaintiff did not avail himself of the procedure laid down in the CPC for compelling the Defendant No. 1 to produce the books at the time of trial of the suit. It does not now lie open to him to make use of the position arising out of non-production of the books.
8. The Plaintiff relied upon certain decisions in support of his contention that by reason of the alleged blending resulting in the abandonment by the Defendant No. 1 of his separate exclusive interest in the joint family properties, the properties, assuming they were self acquired properties of Defendant No. 1 alone, lost their character as such land became the joint family properties of the Plaintiff and the Defendant No. 1. In Suraj Narain v. Ratan Lal AIR 1917 P.C. 12, the litigation involved the separate earnings of the second of the four brothers constituting a Mitakshara Hindu joint family. He was a successful lawyer and had large income of his own from the legal profession. He had blended his separate earnings from the profession with joint family properties. The lawyer brother had an only daughter who was married. He had great affection for the only daughter and the son-in-law. The lawyer father made a gift in favour of his son-in-law in order to make provision for him as against his (lawyers) adopted son who would ultimately be the lawyers heir. The gift was challenged by the other members of the joint family who claimed the gifted property as joint family property because of the blending It appeared in the evidence that the unwary lawyer kept an account which their Lordships described as an ''omnibus account into which the lawyers professional fees were carried in common with other items and from these mingled sources a balance was struck day by day. This was the only account that he had kept. Their Lordship on the evidence, took the view that the books had blended the lawyers professional earnings with his receipts and payments on account of joint properties. This conclusion, however, did not determine the case. As regards the gift in favour of the son-in-law, their Lord ships took into consideration the lawyers many motives which prompted him to make abundant provision for his daughter and her husband. Remembering that the lawyer had full power to deal with his earnings as he thought fit, the fact that he blended those that were not otherwise used did not mean that every entry of purchase must be regarded as joint property. It was in this background of facts that their Lordships of the Privy Council decided that the gift in favour of the son-in-law might be regarded as established inspite of the blending of the separate earnings of the lawyers donor with joint family properties in the omnibus account book. This Privy Council case had certain special features on which it was decided. On general principles there is no dispute as to the legal position. Each case has to be decided on the facts and circumstances of that particular case.
In this decision of the Privy Council their Lordships also observed that in the Hindu joint family the law is that, while it is possible that a member of the joint family should make separate acquisition, and keep moneys and property so acquired as his separate property, yet the question whether he has done so is to be judged from all the circumstances of the case. In this view of the matter, no particular decision can or should be blindly followed except the principles underlying the same as to which there is no dispute. In a later decision of the Privy Council in
I was the father Defendant-Appellant. I was the son of Plaintiff-Respondent who in the suit claimed that the family was a joint Hindu family and prayed for partition of a cycle business carried on, as he alleged, as a joint family business. It was common ground that the cycle business was originally financed from the accumulated profits of a cloth, tailoring and drapery business with which the son N claims to have been associated from its very commencement. Furthermore, the circumstance that the cycle business was assessed to income tax as a joint Hindu family business also weighed with their Lordships in finding that it was a joint family concern. Besides, co-existence of two adjacent shops bearing names suggestive of their having formed part of a single joint family business and the proof of certain specific instances of collection and appropriation by the father P of sums due under decrees to the firms bearing the names of both the father under the son-P and N-strengthened the conclusion in favour of the son Plaintiff-Respondent N that it was joint family business. In course of the trial it trampers that there were certain significant entries in the Hindu books of account in a particular period. There were regular monthly payments to the son Respondent some of which were entered after the words ''cash paid in full settlement for the month'' or equivalent words. A number of these entries were in the Respondents handwriting. There were also entries expressly debiting these payments to ''salary account, but those entries were at a date later than any entry made in the Respondents handwriting. While these entries were suggestive of payments in the nature of salary, they were also, as the High Court held, consistent with pavements in the nature of an allowance made to him as a member of the joint family. These and other special features of the case, as discussed ill the judgment by their Lordships, were sufficient grounds for a finding in favour of the son Respondents claim that the cycle business was a joint family business. That, however, is not the case before us. The present case, to a certain extent, was made easier for our decision by reason of the learned Counsel for the Plaintiff-Appellant having conceded that the business was a fathers self-acquired business but by reason of subsequent blending it lost its character as a self-acquired business of the father and formed part of the joint family property.
9. Mr. G.K. Misra, the learned Counsel for the Defendant-Respondent, contended that the Plaintiff made inconsistent cases at different stages. At first the Plaintiff started with the case that there was a nucleus of the joint family property and therefore the subsequent acquisitions to the nucleus also became the joint family properties. That case of nucleus was however subsequently abandoned by the Plaintiff. The Plaintiff instead relied on a case of alleged blending. Then he further made an alternative case that it was a case of joint acquisition, Mr. G.K. Misra relied on two decisions in support of the contesting Defendants contentions. In A.L. P.R. Periakaruppan v. R.M. A.R. Arunachalam A.I.R 1927 Mad. 676, the Appellant-Plaintiff was the father and the Respondent-Defendant No. 2 was the adopted son of the Plaintiff. Defendant No. 1 was an attaching creditor of the Defendant No. 2. The Plaintiffs case was that the property being a building which he had constructed long before adoption of the Defendant No. 2 was his self acquisition and that the adopted son Defendant 2 had no interest. The Plaintiff father filed a claim which was disallowed and hence the suit out of which the appeal before the Madras High Court arose. It was held that where amongst Hindus an adult son usually lives with his father even when there is no joint family property it cannot be said that a father whose property is self-acquired intends to make it joint family property simply because he does not turn out his son as he is of age and can earn his own living. The fact that after adoption the adopted son lived with his adoptive father in the house would not affect the question as amongst Hindus an adult son usually lives with his father even when there is no joint family property. In the Madras case cited above the rash decided was the intention of the father who was claiming the property as his self-acquisition-whether he intended the house he built to become the joint family property to enure for the benefit of the coparceners who may come into existence in future. As Mayne observed (on which observations the Madras High Court relied), the question whether a, person has by his acts made property which was originally his self-acquisition, joint property is entirely one of fact to be decided in the light of all the circumstances of the case; but a clear intention to waive his separate rights must be established and will not be inferred from facts which may have been done merely from kindness or affection. It was by this test of intention that the Madras High Court came to the finding that there was 110 evidence that the father Plaintiff by any act or declaration evidenced an intention of treating the property as joint family property. In the present case before us the fathers merely allowing his adopted son to help him casually in the grocery shop e.g., in writing accounts etc., was no evidence of such intention to make his self-acquired business, joint property.
10. Mr. G.K. Misra, the learned Counsel for the Defendant, then relied upon a decision of the Privy Council in Nutbehari Das v. Nanilal Das A.I.R 1927 Mad. 676. The litigation arose out of a contest between uncle and nephews. The suit was one for partition filed by one of the nephews against the uncle Defendant No. 2 (Applicant) and his two other brothers Defendant Nos. 2 and 3 who sided with the Plaintiff. The Defendant-Appellant A was the uncle (fathers brother) of B, one of the Respondents. A number of properties were purchased in the name of the uncle and a small number in the name of the nephew. In the judgment, particulars of the items of such properties have been stated in details. The nephew B along with his brothers all claimed that all the properties were joint. The uncle however took the defence that he owned the properties which stood in his name and those which stood in the name of his nephew B were Bs. The evidence of B at the trial was that all purchases had been made by A and that he (B) was not even aware of any of these purchases effected in his name. In evidence it appeared that there were certain books of account which purported to show that during a particular year over Rs. 15,000/- of Bs money, received by him for work done, was paid into uncle As hands and some Rs. 12,000/- paid back to B, leaving a balance due to him of Rs. 2,000/- and odd. A in his evidence declared that no such books were kept in his firm. This seemeo their Lordships to be untrue and though the entries relied upon before their Lordships were open to considerable criticism according to one of the learned Judges of the High Court, the Privy Council assumed that the books were genuine and proved the facts of payments and re-payments. Their Lordships of the Privy Council took the view that the effect of these payments and repayments was that uncle As evidence like that of his nephew B was unreliable and that in the third year of the new business B very sensibly let his uncle, who financed him, act as his banker or cashier. Their Lordships on these materials came to a finding that there was no evidence of ''blending. So far as it went, it was evidence the other way. Even in the case of a Karta mixing his own monies with family monies, the mere fact of a common till, or a common bank account, need of itself effect no blending so long as accounts are kept. No proof was offered that a single piece of the out-standing balance was not repaid or accounted for. Their Lordships also expressed the view that there were no books of the nephew B to show that he did or that he did not provide the price in any single instance of purchase of land nor did the Jabda or Khatian show that Bs money was going towards general expenses of the family. So far therefore as account books were concerned, it was not made out that uncle and nephew blended their funds; still less that they presented the blend to the joint family. This, in our opinion, is a clear authority indicating the principles on which we can decide the appeal before us. On the authority of this decision we come to the conclusion that assuming the entries in the Rokar of 1936 (ext. 9) which were pointed out to us in course of the hearing of this appeal, were genuine entries, they do not go beyond proving that some of the Plaintiffs separate earnings were mixed up with the business of the Defendant whom the Plaintiff used as a ''banker or cashier'' in the language of their Lordships of the Privy Council in the decision cited above while dealing with uncle As accounts which were used by the nephew B in the manner aforesaid.
11. The learned Counsel for the Defendant-Respondent also drew our attention to a portion of the evidence of the Plaintiff himself (P. W. 4)(referred to above) where the Plaintiff said that he asked the Defendant No. 1 Some 12 or 13 years ago from the time he deposed in February 19, that is to say, in about 1940, to execute a Will in his favour in respect of ''Ka schedule properties, as life was uncertain and that the Defendant No. 1 promised to do so. This, in our opinion, completely destroyed the whole structure of the Plaintiffs case which he sought to build up. If, in fact, there was a nucleus of the joint family or blending or joint acquisition of the Plaintiff and the Defendant No. 1. then there would not have been indeed any necessity or occasion for the Plaintiff requesting the Defendant No. 1 for execution of a Will in his favour this shows that the Plaintiff knew fully well that in the absence of a Will he would have no claim to the properties of the Defendant No. 1 which all were his (Defendant No. 1) self-acquired properties.
12. The Defendant-Respondent then relied on ext. 4 certified copy of the order-sheet dated 10-8-1932 of the court of Rajasaheb, Narasingpur, in Sarbarakari case No. 9 of 1932-33 from which it appears that one Bidyadhar Misra was the Sarbarakar of Bariha Mouza carrying a Saddar Jama of Rs. 253/- and Touzi Jama of Rs. 239/4/- a malikana 48 decimals and further that the Plaintiff Gangadhar Jena, son of Uchhab Jena of Nizagarh, applied for the post and that his father Defendant No. 1 who was a man of substance stood security for the Plaintiff. The said order shows that in spite of opposition the Plaintiff was appointed Sarbarakar on the security given by his father Defendant No. 1. This further shows that but for the security given by the Defendant No. 1, the Plaintiff could not have been appointed Sarbarakar. In fact, the Plaintiff was a man of no substance and he could not be given the position of a Sarbarakar on his own standing. On the other hand, the Defendant No. 1 was a self-made man having started life as a labourer, then a mason, then a contractor and subsequently a monopoly lessee in nux vomica. There is sufficient evidence in support of the contentions made on behalf of the Defendant No. 1. The Defendant No. 1 called four witnesses. D. W. 1 was a clerk in the Section (sic) office at (sic). He was a witness to prove certain documents, namely, exts. A to Fall relating to mutation proceedings in respect of the lands in question showing that it was the Defendant No. 1 who was the proprietor on record. D W. 2, a cultivator who worked as a Tahasildar under the Radhakanta Muth, Puri, from whom the Defendant No. 1 purchased certain lands in 1928, proved the Pattas which were granted to the Defendant No. 1 (exts. G and G-1). D. W. 3, also a cultivator, deposed to the fact that the Defendant No. 1 had started the shop thirty years ago from the time he deposed. The witness further said that the Defendant No. 1 had paddy lending and money-lending business and that he was carrying on the shop himself with the help of his servants and that he used to look after his own affairs. The witness also said that the Defendant No. 1 was a Sarabarakar. The last witness was the Defendant No. 1 himself (D. W. 4) who in detail gave evidence as to his case which stood substantially corroborated by both documentary evidence as also by his other witnesses at the trial.
13. In this view of this matter, we uphold the decision of the learned 2nd Additional Subordinate Judge and dismiss the appeal Each party, however, is to bear his own costs throughout.
Rao, J.
14. I agree.
15. Appeal dismissed.
