Paritosh K. Mukherjee, J.@mdashThis appeal arises out of the judgment and/or decree passed by the learned Third Bench of the City Civil Court at Calcutta in Title Suit No. 193 of 1988.
2. The fact of the case is that Thakurdin and Ramjosh were two brothers. They formed a partnership firm, a joint family business known as Messrs. Thakurdin Ramjosh. The said firm Thakurdin Ramjosh obtained lease in the year 1932 for a period of 17 years from one Rabindra Nath Mukherjee and Sourendra Nath Mukherjee, in respect of the land being premises No. 77A, Amherst Street, Calcutta; and constructed structure on the said land at their own costs. On the expiry of the said lease the firm Thakurdin Ramjosh again obtained the lease for 15 years in the year 1949 in respect of the said premises No. 77A, Amherst Street, Calcutta, from Rabindra Nath Mukherjee and Sourendra Nath Mukherjee. There was a partition between Rabindra Nath Mukherjee and Sourendra Nath Mukherjee and by virtue of the said partition Sourendra Nath Mukherjee became the absolute owner of the premises No. 77A, Amherst Street, Calcutta, and the firm Thakurdin Ramjosh had been paying monthly rent to Sourendra Nath Mukherjee.
3. On the expiry of the lease, the said Soutendra Nath Mukherjee filed a suit in the City Civil Court numbered as Title Suit No. 636 of 1968 for a decree of khas possession upon determination of the lease by efflux of time. The said Title Suit was decreed in favour of the landlord Sourendra Nath Mukherjee. The firm Thakurdin Ramjosh preferred an appeal before the Hon''ble High Court against the decree.
4. During the pendency of the appeal before Hon''ble High Court at Calcutta, the Defendants Nos. 1 to 4 (the Appellants herein) on payment of Rs. 1,32,125 as selami obtained lease for a period of 999 years in respect of the land of the said premises No. 77A, Amherst Street, Calcutta, from Sourendra Nath Mukherjee and subsequently the Appellants purchased the land of the said premises No. 77A, Raja Ram Mohan Sarani, Calcutta, for the price of Rs. 1,500 only.
5. After purchase of the said premises, the Appellants made an application before the High Court, at Calcutta for being added as parties, in the said appeal filled by Thakurdin Ramjosh.
6. The said appeal was dismissed and the firm Thakurdin Ramjosh was directed to deliver vacant possssion of the said premises No. 77A, Raja Ram Mohan Sarani, Calcutta, and to remove, the structures of the suit premises, The High Court was pleased to pass an order that if the structures were not removed by the Defendant, i.e. Thakurdin Ramjosh, the Plaintiff in the suit should take steps for removal of the structures.
7. The structure is still standing at the said premises No. 77A, Raja Ram Mohan Sarani, Calcutta, which still belongs to the firm Thakurdin Ramjosh.
8. The case of the Defendant/Appellant is that there is no joint family, they are living separately for a long time and they have separate mess also. The land has been purchased out of their own fund and, as such, they are the absolute owner of the land of the premises No. 77A, Raja Ram Mohan Sarani, Calcutta. They also contended that the premises No. 77A, Raja Ram Mohan Sarani, Calcutta, is not joint family property but the property belonged to a partnership firm and, as such, it is not a joint family property. Further, the partnership firm had no fund to purchase the property, so this property cannot be acquired out of the fund of the partnership firm.
9. The case of the Plaintiff/Respondent No. 1 is that the structures standing on the premises No. 77A, Raja Ram Mohan Sarani, Calcutta, is ancestral property of the parties to the suit and the parties to the suit are members of joint family.
10. The land which has been purchased by the members of the joint family is only ''an accretion'' to the ancestral property and, as such, the entire premises No. 77A, Raja Ram Mohan Sarani, Calcutta, is joint ancestral property and the Plaintiff/Respondent No. 1 being, a member of the joint family has interest and/or share in the property. The Plaintiff/Respondent No. 1 also contended that the decree passed in the Title Suit No. 636 of 1968 is not executable against the Plaintiff.
11. The suit was heard at length by the learned Third Bench of the City Civil Court at Calcutta and the -learned Court was pleased to decree the suit in favour of the Plaintiff/Respondent No. 1.
12. The learned Court below, inter alia, held that the suit property is ancestral and joint property of the parties to the suit and the parties to the suit are members of the joint family governed by the Mitakshara school of Hindu Law. The purchase of the land of the premises No. 77A, Raja Ram Mohan Sarani, Calcutta, is only ''an accretion'' to the ancestral property, inasmuch as, the structure standing on the land still belongs to the joint family. The learned Court below also held that the property belongs to the joint family and not that of the firm, and the partnership firm is also joint family firm. In the circumstances, the Respondent No. 1 is one of the joint owners of the said premises No. 77A, Raja Ram Mohan Sarani, Cacutta, and, as such, decree passed in the Title Suit No. 636 of 1968 is not executable against the Plaintiff/Respondent No. 1.
13. Being aggreived and dissatisfied with the diecree and judgment, the Appellants filed this appeal against the said judgment and decree passed by the learned Third Bench, City Civil Court, at Calcutta, on the ground that there is no joint family and no joint property, the suit premises is a property of the partnership firm and the members of the family had no interest in the property and the firm has ceased to carry on business and there is no fund of the firm. The Appellant have purchased the land of premises No. 77A, Raja Mohan Sarani, Calcutta, out of their own fund, and as such, the property belonged to the Appellants.
14. The appeal has also been filed on the ground that the learned Judge should have dismissed the suit on the ground of limitation and should have held that the suit is barred under Order 21 Rule 97 of the Code of Civil Procedure.
15. Mr Sudhis Das Gupta, learned Advocate appearing on behalf of the Appellants, contended that since there is no joint family firm, no joint family property exists. The parties to the suit had separated long ago and, as such, the family cannot be said to be joint and the firm Thakurdin Ramjosh cannot be said as joint family firm, as it is a partnership firm under the Partnership Act.
16. He contended that the appeal which was filed by the Thakurdin Ramjosh was contested by the Respondent No. 1 and when the Appellants made an application for being added party to the said appeal,, the Respondent did not object to the same and, as such, the Respondent No. 1 has accepted that the Appellants have purchased the said property.
17. Mr. Das Gupta, further, contended that the suit is barred under Order 21 Rules 97 to 101 of the Code of Civil Procedure. Mr. Das Gupta contended that the Respondent should have filed his objection under Order 21 Rule 97 of the CPC in the execution proceedings, which has already been started by the Appellants in the City Civil Court for determination of his right, title and interest in the said premises No. 77A, Raja Ram Mohan Sarani, Calcutta, and not by filing the separate suit.
18. In support of his contention, Mr. Das Gupta relied on a decision in the case of
In the amended Rule 101 of Order 21 of the Code the expression "all questions (including questions relating to right, title or interest in the property)" and the expression "and not by a separate suit" are very pertinent. The expression "all questions" includes within its ambit a plea raised by an alleged obstruction is that the application under Order 21 Rule 97, Code of Civil Procedure, is barred by limitation. When such an application is held by the Court to be barred by limitation, its adjudication is of a question involved and arising between the parties to a proceeding on an amplication under Order 21, Rule 97, CPC Where the decree-holder has taken recourse against an obstructionist by moving an application under Rule 97 of Order 21, he has to get if adjudicated under Rule 101 of Order 21 and he could not then file a separate suit, for determination of any question which he has himself chosen to raise by moving an application under Order 21 Rule 97. It may be that a decree-holder while faced with an obstruction may instead of applying under Order 21 Rule 97, Code of Civil Procedure, take recourse to the remedy of filing a suit for doclaration and possession. But having recourse to the remedy provided under Order 21 Rule 97, Code of Civil Procedure, and having failed in that, he cannot turn round and urge that he is not bound by the adverse decision.
19. Mr. Das Gupta further contended that the suit filed by the Respondent No. 1 is barred by law of limitation. The Appellants have taken steps to execute the decree in Title Suit No. 636 of 1968 by filing Title Execution Case No. 55 of 1982 in the City Civil Court at Calcutta and in the year 1983, the bailif went to the premises and requested the Respondent to vacate the premtses in compliance of the decree in Title Suit No. 636 of 1968. The contention of the Appellants is that the Respondents have filed the suit after three years from the date, when bailiff want to the suit premises and, as such, the suit is barred by law of limitation.
20. In this connection, Mr. Das Gupta referred to a decision in, the case of Riikhmabai v. Lata Laxminarayan AIR I960 S.C. 335 (paras. 30(a), 31)''
21. In paras. 30(a) and 31 of the said judgment it has been observed, as follows:
30(a): This leads us with the only surviving question, namely, whether the suit was barred by limitation. This point was raised for the first time in the High Court and the High Court allowed the same to be raised but negatived the contention. The learned Counsel for the Respondent contends that for the reasons mentioned in regard to the plea based upon Section 42 of the Specific Relief Act, we should also not allow the Appellant to raise this contention either. But there is an essential distinction between the two contentions; while in the former case, if the contention was allowed to be raised, the Respondent would be prejudiced, in the later case, even if this plea was tajcen at the earliest point of time," the contesting Respondent would not have adduced better evidence or put before the Court further evidence. When the Court asked the learned Counsel to state what further facts he would have proved in respect of this, plea if this contention was taken earlier, he was not able to suggest any. In the circumstances, when the appellate Court allowed the Appellant to raise the plea of limitation, we do not think we are justified at this stage to say that the High Court should not have allowed the plea to be raised.
31. The argument on the question of limitation is put thus: the Plaintiff, Respondent herein, had knowledge of the fraudulent character of the trust deed as early as 1917 or, at anydate during the pendency of the partition suit between Rakhmabai and Chandanlal instituted in the year 1929, and the suit filed in 1940, admittedly after six years of the said knowledge, would be barred under Article 120 of the Limitation Act. Article 120 of the Limitation Act reads:
This Article was subject to judicial scrutiny both by the Judicial Committee as well as by the High Courts of various States. The leading decision on the subject, is that of the Judicial Committee in, Mt. Boh v. Mt. Koklan, 57 Ind. App. 325 at p. 331 ;
There can be ''no right to sue'' until there is an accrual of the right asserted in the suit and its infringement, or at least a clear and unequivocal threat to infringe that right, by the Defendant against whom the suit is instituted.
22. The next contention of the Appellants is that in the proceeding u/s 144(2) of the Code of Criminal Procedure the respbndent has specifically admitted that the Appellants are the absolute owners of the said premises No. 77A, Raja Ram Mohan Sarani, Calcutta, and the Respondent is a monthly tenant under them and, as such, in the present suit he cannot claim td be the owner of the property.
23. Mr. Das Gupta, in support of his contention that there was no joint fund and, as such, the purchase of the suit land by the Appellants cannot be aid to be the ''joint family property'', has relied on a decision in the case of
24. In particular, Mr. Das Gupta put emphasis on paras. 14, 15, 16, 17, 25 and 28 of the said judgment, which run as follows:
14: Two main arguments were advanced before us by Mr. Rajagopal Sastri in support of the appeal. The first is as regards the properties purchased in the name of the first Defendant''s wife, his son and his grandson. Learned Counsel submitted that the High Court did not record any clear conclusion that at the date of the acquisition of these properties, the joint family had not ''a sufficient nucleus'' for acquiring these. He argued that the acquisition in the name of the first Defendant''s wife was admittedly with funds advanced by the first Defendant himself ; and if at the date of the acquisition in her name the joint family had sufficient nucleus for acquiring them the presumption would be that they were acquired with joint family, funds notwithstanding the fact that the first Defendant may have sufficient funds of his own for the same purpose. It was rightly argued that in such a case, the property should be held to be joint family property unless the presumption of the acquired property also being joint family property was rebutted by the first Defendant. It was also argued that acquisitions in the name of the third Defendant and the, sixth Defendant should also be held to have been made with funds advanced by the first Defendant himself and so these also should be presumed to have been acquired with joint family funds if it is shown that the joint family had sufficient.nucleus for acquiring these at the date of acquisition and the first Defendant does not show positively that the funds with which they were acquired did not belong to the joint family.
15: The legal position is well-settled that if in fact at the date of acquisition of a particular property the joint family had sufficient nucleus for acquiring it, the property in the name of any member of the joint family should be presumed to be acquired from out of family funds and so to form part of the joint family property unless the contrary is shown. Vide Amritlal v. Surathlal A.I.R, 1942 Cal. 553; Appelaswami v. Swyanarayanamnrthy, ILR (1943) Mad. 440; AIR 1947 P.C. 189.
16: In the case before us, it is not disputed that the acquisitions in the name of the first Defendant''s wife were made with funds advanced by him. As regards the acquisitions in the name of the third Defendant and his minor son the sixth Defendant also we find it reasonable to hold from the evidence, as regards the earnings of the third Defendant and other circumstances, that for these acquisitions also money was paid by the first Defendant. The question whether the joint family had at the time of each of these acquisitions sufficient nucleus from which the acquisition could have been made is, therefore, of great importance.
17: On a consideration of the evidence, as discussed below, we have come to the conclusion that it does not appear that the joint family had at the date of acquisitions made in the name of the first Defendant''s wife, his son and grandson sufficient nucleus from which these properties could be acquired. In coming to this conclusion, we have taken into consideration the fact that family funds were spent in purchasing 14 acres of land mentioned in the name of the fifth Defendant.
25:. Proceeding therefore on the basis on which there is no longer any dispute, that D Schedule lands were acquired out of the family funds, it appears clear that the joint family did not possess sufficient nucleus for making any of the other purchases made during this period, viz. the properties mentioned in Schedule B and Bl, purchased by the documents Ex.125, the properties mentioned in the Schedule Ci purchased by the document '' Ex. B 124, the properties mentioned in Schedule C purchased by Ex. 129, the properties mentioned in the Schedule to the written statement of the second Defendant purchased by documents Exhibits B 134 and B 135. The High Court''s conclusion as regards these properties that they did not form part of the joint family properties and are not liable to partition in the present''suit is therefore clearly correct.
28: The only income from joint family properties that appears to have come into the hands of the first Defendant during this period was that from D Schedule lands. The yield from these lands may. roughly be estimated at about 300 kalams for each year. The price per kalam in 194l appears from Ex. 100 to have been Rs. 2-5. The net income, after payment of the kist and debiting the expenses of cultivation etc., may be placed therefore at about Rs. 500. It is undoubtedly a very rough estimate. But in the absence of. anything more specific on the record we think it proper to accept this as a reasonable basis for ascertaining the nucleus available in the first Defendant''s hands from the B Schedule property. On this calculation the first Defendant appears to have had in his hands about Rs. 1,500 during the years 1940 to 1942. There was already however a deficit of more than this amount on his management of the properties during the previous period 1931 to 1939. It is reasonable therefore to think that there was no nucleus from the joint family properties which the first Defendant could have possibly used in making the acquisitions during 1941 to 1942. The conclusion of the High Court that these properties did not belong to the joint family and are therefore not liable to partition cannot therefore be disturbed.
25. Mr. Das Gupta further contended that, M/s. Thakurdin Ramjosh the firm had no sufficient fund at the time when the property in question was purchased by the Appellants. Hence, the property which has been purchased by the Appellants cannot be said to be the joint property.
26. Mr. Das Gupta stated that the learned Court below is wrong in holding that the Respondent No. 1 has interest in the said premises No. 77A, Raja Ram Mohan Sarani, Calcutta, and the appeal should be allowed and the decree and judgment passed by the Court below should be set aside.
27. Mr. Subrata Banerjee, learned Advocate, appearing on behalf of the Plaintiff/Respondent No. 1 contended that in the year 1932 Thakurdin Ramjosh obtained the lease of the premises No. 77A, Raja Ram Mohan Sarani, Calcutta, and had constructed the structures thereon and the lease was again renewed in the year 1949. The structure standing on the premises No. 77A, Raja Ram Mohan Sarani, Calcutta, belonging to the joint family and it is ancestral property to the parties to the suit. The premises No. 77A, Raja Ram Mohan Sarani, Calcutta, is joint and ancestral property of the parties to the suit.
28. In this connection, he refers to Arts, 1, 4, 5, and 9 of the ''Hindu Law'', by S. V. Gupte, 3rd Ed., published by AIR Publication. Article 1 runs as follows:
Article 1. A joint and undivided family is a body consisting of" persons, male or female, who are the sapindas (relations) of each other by birth, marriage or adoption.
29. Mr. Banerjee further contended in the circumstances that under the Mitakshara school of Hindu Law, the premises No. 77A, Raja Ram Mohan Sarani, Calcutta, should be considered as joint and ancestral property of the parties to the suit, and he refers to the decision in the case of
30. In the circumstances, the property should be considered as joint property as well as ancestral property to the parties to the suit.
31. He further submitted that in the year 1979, when the Appellants, as members of the joint family purchased the land of the said premises No. 77A, Raja Ram Mohan Sarani, Calcutta, when it was ''an accretion'' to the ancestral property of the parties to the suit, inasmuch as, the structure is the ancestral property and the lease-hold interest at that time was also ancestral.
32. According to Article 5 of the Mitakshara school of Hindu Law accretion to the ancestral property should be considered as ancestral property.
33. Articles 4 and 5 of the Mitakshara school of Hindu Law runs as follows:
Article 4: Ancestral property is property of a male Hindu in which his male issue (i.e. sons, grandsons and great-grandsons) acquire an interest by birth.
Article 5: The male issue of a Hindu (male) acquire by birth alone an interest, in the property inherited by him from his father, grand-father or great grand-father.
Explanation. (1) Share of ancestral or other joint family property allotted to a male Hindu or partition is itself ancestral property.
(2) Accretions to ancestral property are ancestral property.
34. In the circumstances, as soon as the Appellants purchased the land of the premises No. 77A, Raja Ram Mohan Sarani, Calcutta, the interest in the land by way of accretion also vested in the Respondent No. 1 as the said premises was ancestral. Mr. Baherjee also stated that the interest in the immovable property once vested cannot be divested. Mr. Banerjee also pointed our that the land of the premises has been purchased jointly by four, members of the joint Hindu family and, as such, under Article 9 of the Mitakshara School of Hindu Law, it shall be considered as joint property of the parties.
35. Article 9 of the Mitakshara school of Hindu Law reads as follows:
Article 9(1). There is no presumption that a joint family possess joint or any property.
(2) Once it is admitted or proved that a joint family possess joint property, the presumption is that all property held by one or more members of the family is joint family property provided that such joint property is sufficient to raise the presumption.
(3) There is a presumption that property acquired by two or more members of a joint family by joint labour or exertions is joint family property, although such property is acquired without the aid of joint family property.
(4) There is no presumption that a business carried on by a member of a joint family either by himself or in partnership with a stranger is a joint family business.
(5) Once it is admitted or proved that the property in dispute was originally self-acquired or separate, the presumption is that it continued separate.
(6) Once it is admitted or proved that a partition has taken place, the presumption is that all property of the joint family has ceased to be joint family property..
(7) There is no presumption that any property held by a member of a joint family is joint family property.
36. Mr. Banerjee thereafter refers to a decision in the case of
37. He added that the Appellants in the present case are determined to execute the decree in Title Suit No. 636 of 1968 against the Respondent no, 1 by recovery of possession from him when Respondent No. 1 as a member of joint family has right title and interest in the land of the premises and such action on the part of the Appellants amount to detrimental to the interest of the joint family property and hence such acquisition of property is a joint property of the parties, in view of the observations made in the aforesaid case.,
38. In the circumstances, Mr. Banerjee stated that the property being the premises No. 77A, Raja Ram Mohan Sarani, Calcutta, is a joint property and the Respondent No. 1 has interest in the said premises No. 77A, Raja Ram Mohan Sarani, Calcutta.
39. In answer to the point that the suit is hit by Order 21 Rules 97 to 101 of Code of Civil Procedure, Mr. Banerjee stated that the Respondent No. 1 filed suit against the Appellants as well as their husbands.
40. Mr. Banerjee stated that in the plaint, it has been particularly stated that the Defendants Nos. 5 to 8, the husbands of the Appellants with the help of anti-social elements were trying to oust the Respondent from the suit premises, so he had no alternative but to file a suit immediately against the Appellants and their respective husbands the Respondents Nos. 2 to 5 and made an application under Order 39 Rule 1 and 2 of the CPC for protection of his interest " against the Appellants as well as the Respondents Nos. 2 to 5 herein. In the execution proceedings, initiated by the Appellants the Defendants Nos. 5 to 8 were admittedly not made parties and, as such, the Respondent No. 1 Kedar Lai Jaiswal had to file a fresh suit for immediate protection of his interest in the property, otherwise the Defendants Nos. 5 to 8 immediately ousted the Respondent No. 1 Kedar Lal Jaiswal from the suit premises, on the strength of a decree in Title Suit No. 636 of 1968, Sourendra Nath Mukherjee'' v. Thakurdin Ramjosh. Moreover, in the bailiff report it has been mentioned that the Respondent No. 1 is in possession of only three rooms in the said premises but the Respondent No. 1 was in actual possession of seven rooms which have been mentioned in the Schedule to the plaint. In the premises, to claim possession of seven rooms he has an independent right to file a suit for declaration of his joint ownership against the Appellants and their respective husbands who are proforma Respondents Nos. 2 to 5 herein this appeal. Such remedy could not be available to the Respondent No. 1 in execution proceedings where the Respondents Nos. 2 to 5, the members of the joint family being the respective husbands of Appellants, were not parties and a decree for declaration of joint ownership could not be passed by Executing Court in execution proceeding.
41. Hence, such remedy can be had only by filing regular suit and the Respondent Kedar Lal Jaiswal rightly filed the Title Suit for such relief and- the suit is quite maintainable and, accordingly, the learned Court has rightly held the issue in favour of the Respondent No. 1.
42. The decree for possession of the suit premises is not executable against the Respondent No. 1, inasmuch as, he is joint owner of the premises along with the Appellants and, as such, he has independent fight in this property.
43. In support of his contention, Mr. Banerjee referred to the decision in the case of Mani Nariman Daruwala and Ors. v. Phiroz M. Bhatena and Ors.( AIR 1991 Bom. 328).
44. In para. 12 of the said judgment it has been observed as follows:
In my view, the phrase "holder of a decree for possession" which is contemplated under the above Rule postulates that he has to be a holder of valid decree for possession. The said phrase cannot include a person who is a holder of a decree which is a nullity. Nullity is not a decree at all. Hence, before a decree-holder can call upon a Court to here his complaint in regaed to the obstruction to the execution of his decree by a person who has no independent right to possession, he has first to qualify having the status of being the holder of a valid decree for possession. If he holds a decree which is a nullity in law, he cannot be termed as a holder of a valid decree for possession. If he holds a decree which is a nullity in law, he cannot be termed as a holder of a decree which is capable of being put in execution. It follows that an obstructionist can always contend that the decree under execution is a nullity and, therefore, the Courts are refrained from entertaining an application for removal of the obstruction. Once such a contention is raised, it will be for the decree-holder to establish that the decree which he has put in execution is a valid decree and the same is capable of being executed. In my view, such above contention can be raised by an obstructionist even if he failjs to establish that he has an independent right to possession. The holding of a valid decree is a sine qua non for initiation of proceedings under Rules 97 to 101 of Order XXI of the Code of Civil Procedure. If the decree under execution is a nullity, the decree-holder will not be heard to say that the obstructionist is illegally resisting its execution.
45. Moreover, Order 21, Rule 97 to 101 is generally applicable in case of judgment-debtor, but the Respondent No. 1 Kedar Lal Jaiswal is not judgment-debtor in earlier suit No. 636 of J.968 which was filed against firm M/s. Thakurdin Ramjosh and not against Kedar Lal Jaiswal who has right title and interest in the joint property along with Respondents Nos. 2 to 5 and the Appellants herein.
46. The Respondent No. 1 Kedar Lal has independent right to file suit against the Appellants claiming interest in the property and, as such, he has right to file this suit.
47. In answer to the point of limitation, Mr. Banerjee stated that the suit has been filed within the period of limitation of three years, as prescribed under Article 120 of the Limitation Act.
48. In support of his contention he argued further that the period of limitation in a given case like this starts when there is a clear and an unequivocal threat to infringe the right by the Plaintiff in the suit arises. The bare information and/or intimation of the bailif as regards to the execution proceeding against the Respondent No. 1 cannot be construed as clear and unequivocal threat to the Respondent No. 1 Kedar Lal Jaiswal''s right title and interest in the joint property. Every threat" by party to such a right, however ineffective innocuous it may be, cannot be considered to be a clear and unequivocal threat so as to compel him to file a suit. Whether a particular threat gives rise to a compulsory cause of action depends upon the question whether that threat effectively invades or jeopardizes the said right. The bailiff, Mr. Banerjee submits could not dislodge and/or dispossess the Respondent No. 1 from the suit premises forcibly without the assistance of the Police and when the bailiff visited the suit premises at all in the year 1983 there was no actual physical forcible dispossession of the Respondent No. 1 from the suit premises. It was only in the later part of year 1987.the clear and unequivocal threat of the physical dispossession from the suit premises arose when the Appellants and the Respondents Nos. 2 to 5 with the aid and assistance of anti-social elements forcibly attempted to dislodge and/or dispossess the Respondent No. 1 from the suit premises and the Respondent No. 1 rushed to the Fourth Court of the learned Metropolitan Magistrate at Calcutta, for interim protection u/s 144 of the Code of Criminal Procedure. Hence, the cause of action for the suit arose in the latter part of the year 1987 arid the Respondent No. 1 filed his suit against the Appellants and the Respondents Nos. 2 to 5 in the year 1988 well within the period of three years from the date of clear and unequivocal threat to his right title-and interest and physical possession in respect of the-suit premises.
49. Mr. Banerjee, in support of his contention, strongly relied upon the observations made in para. 33 of the judgment in the case of Rukinabai v. Lala Laxminarayan (Supra) which runs as follows:
33. The legal position may be briefly stated thus: The right to sue under Article 120 of the Limitation Act accrues when the Defendant has clearly and unequivocally threatened to infringe the right of the Plaintiff in the suit. Every threat by a party to such a right, however ineffective and innocuous it may be, cannot be considered to be a clear and unequivocal threat so as to compel him to file a suit. Whether a particular threat gives rise to a compulsory cause of addition depends upon the question whether that threat effectively invades or jeopardises the said right.
50. In view of the aforesaid observations Mr. Banerjee submitted that the judgment passed by the learned Judge, City Civil Court, to the extent that the suit is riot barred by law of limitation is quite justified.
51. Mr. Banerjee, learned Counsel for the Respondent No. 1 in answer to the decision in the case of K. V. Narayanswami v. K. V. Ramkrishna lyer(Supra) cited by Mr. Dasgupta, learned Counsel for the Appellants, submitted with much force in his arguments that the said judgment cannot be applicable in the given case like the present one. In view of the fact that the Appellants, the four ladies purchased the land whereupon the structure being the joint property of the joint members of the family at all material times and still standing and the purchase of the land is nothing more than as ''an accretion'' of land to the structures standing thereupon the said land and inasmuch as the land being accretion to the structure is an ancestral within the meaning of Article 9 of the Hindu Law as already been submitted by Mr. Banerjee. Mr. Banerjee tried to impress upon us by contending that the decision in the case of K. V. Narayanaswami v. Ramkrishna Iyer(Supra) as cited by Mr. Dasgupta would be applicable in a case where the property purchased is other than the property not being land in question, whereupon the structure is still standing. In the event, the Appellants had purchased a property elsewhere then a duty might have been cast upon the Respondent to prove that there was sufficient fund or no sufficient fund of the joint family for the purchase of the said property but, in the instant case, this decision is not relevant at all.
52. Mr. Banerjee in answer to the contention of Mr. Dasgupta, learned Counsel of the Appellants, on the point of contradictions in the application u/s 144(2) of the Code of Criminal Procedure, filed before the Fourth Court of the learned Chief Metropolitan Magistrate, Calcutta, with the deposition of the Respondent No. 1, in the suit before the trial Court, argued strongly that, the Appellants cannot take advantage of such contradiction, if at all made, by bona fide mistake by the Respondent No. 1 since there is a specific bar u/s 145 of the Evidence Act.
53. Moreover, Mr. Banerjee strongly relied on the decision in the case of
(E) Evidence Act (1872), Section 145 -- A certified copy of the deposition of a witness in a Criminal Court cannot be used as substantive evidence, i.e. as an admission in a Civil Suit.
54. In the present, case, the Appellants in the Court below disclosed the certified copy of the application u/s 144 of the Code of Criminal Procedure as a substantive evidence to impress upon the Civil Court as regards to the admission of tenancy in an application u/s 144 of the Code of Criminal Procedure filed before the Metropolitan Magistrate, Calcutta. Such attempt is strongly disapproved by the decision in the case of
55. We have carefully considered the judgment/decree passed by the learned. Third Bench of the City Civil Court at Calcutta and also the respective submissions made by Mr. Dasgupta, appearing for the Appellants and Mr. Banerjee for the Respondent No. 1 Kedar Lal Jaiswal.
55A. The moot question in the present appeal before us for our consideration is whether or not the purchase of land in question by the Appellants of premises No. 77A, Raja Ram Mohan Sarani, Calcutta, is ''an accretion'' to the structure standing there at the said premises within the meaning of Article 5 Expl. (2) forming part of the ancestral property. No doubt, admitted fact of the parties is that the parties are governed by Mitakshara school of Hindu Law. Thakurdin and Ramjosh the two brothers happen to be the ancestors of the parties. Admittedly, the ancestors of the parties formed a joint family firm, under the name and style of ''Thakurdin and Ramjosh'' and obtained a lease in respect of the land of premises No. 77 A, Raja Ram Mohan Sarani, Calcutta, with a right to raise and construct structure thereat the said premises for the purpose of their accommodation, business and trade and for other incidental purpose, as particularly described in the Deed of Lease executed by the erstwhile landlord of the said premises in the year 1932. The Respondent No. 1 decree-holder is a son of Thakurdin Shaw and the Respondents Nos. 2 to 5, who were the Defendants Nos. 5 to 8, in the Court below, are the sons of Ramjosh. The Appellants before us are admittedly the respective wives of the Respondents Nos. 2 to 5 in the present appeal.
56. The Appellants after their marriage became the members of the joint family of the Respondents. There is no doubt in our mind that so far the premises No. 77A, Raja Ram Mohan Sarani is concerned, there was no physical partition effected by and between the parties before us.
57. Mr. Dasgupta while making his submissions for the Appellants drew our attention to the cross-examination of P.W. Kedar Lal Jaiswal to impress upon us that, there has already been partition, effected by and between the parties and the parties are living separately having separate mess and business. But from perusal of the deposition of FW. 1 already on record, particularly Ex. 3, the Deed of Conveyance, dated May 7, 1942, whereby another premises No. 35, Jatindra Mohan Avenue, Calcutta, was subjected to partition and not the premises No. 77A, Raja Ram Mohan Sarani, Calcutta, whereupon the structure immediately after obtaining the lease far back in the 1932, M/s. Thakurdin Ramjosh, the joint family firm constituted and formed by Thakurdin Ramjosh out of their joint family fund and the. said structure was and still is standing and is in joint use and occupation of the parties to the litigation as a member of the joint Hindu family, governed by Mitakshara school of Hindu Law.
58. From consideration of the facts and circumstances of this case, there is no rom of doubt in our mind to hold that the structure standing at the premises No. 77A, Raja Ram Mohan Sarani, is an ancestral property of the parties to the litigation and the subsequent purchase of land by the Appellant as a member of joint Hindu family, notwithstanding the facts whether it was purchased with or without the aid of the joint family fund is an accretion to the ancestral property. Such accretion of land to the structure also becomes ancestral property of the parties and that must endure to the benefit of the member of the joint family.
59. We are unable to accept the contentions made by Mr. Dasgupta that since M/s. Thakurdin Ramjosh had no sufficient fund at the time, when the land in question was purchased by the Appellants, the property so purchased cannot be said to be joint family property. The decision referred to by Mr. Dasgupta in the case of K.V. Narayanaswami v. Ramkrishna Iyer (Supra), particularly paras. 14, 17, 25 and 28, is not germane in the facts and circumstances of the present case, since the land purchased by the Appellants is the same land whereas the ancestral property being the structure is a standing and the land so purchased by way of accretion to the structure also becomes ancestral property of the members of the joint Hindu family.
60. In our view, the contention of Mr. Dasgupta could be upheld, had the Appellants purchased some property other than the premises No. 77A, Raja Ram Mohan Sarani, Calcutta. As such, in our. view, the learned Court below is quite justified in holding the purchase of a land of the Appellants as ''an accretion'' to the structure, the ancestral property of the parties to the litigation within the meaning of Arts. 4 and 5 of the Mitakshara school of Hindu Law.
61. In the present case admittedly the Appellants are more than two members of a joint family and they have purchased land of premises No. 77A, Raja Ram Mohan Sarani, Calcutta, and we have considered Article 9, Sub-clause (3), which preciously says that where a property is acquired by two or more members of a joint family with or without the aid of the joint family property, shall be treated as a joint family property for all purposes. The Appellants have admittedly purchased the land. It is immaterial here to consider whether the Appellants purchased the said land with or without the aid of the joint family fund. One of the question therefore, to be considered by us, is that whether the Appellants as a member of the joint family can acquire a property to: the detriment of the interest of the joint property. We have also considered the decision in the case of Tammareddi Venkatarammayya v. Tammareddi Tandava Krishna Rao (Supra), referred by Mr. Banerjee. We have no reason to differ with the said decision, as the Appellants before us as joint members of the joint Hindu family cannot purchase the property in question at the detrimental to the interest of the joint property and the purchase of land, in our view, is a joint property of the parties. It is to be noted here that the Appellants though happen to be the members of the joint property are determined to execute the decree passed in the earlier Title Suit No. 636 of 1968 by way of eviction and/or physical dispossession of the Respondent No. 1 Kedar Lal Jaiswal, such act on the part of the Appellants detriment to the interest of the other members of the joint family property and, hence, we are of the view that the Appellants as members of the joint family cannot and should not be given liberty to execute the decree of the earlier suit against other members of the Hindu joint family.
62. We have further carefully considered the points raised by Mr. Dasgupta as regards the maintainability of the suit, as well as the decision referred to by him in the case of Rukhmabai v. Lala Laxminarayan (Supra) in paras. 30(Supra) and 31 as also para. 33 of the said decision, as relied upon by Mr. Banerjee, the learned Counsel for the Respondent No. 1.
63. We are of the opinion that the bailiff''s visit in the year 1983, to the Plaintiff/decree-holder (Respondent No. 1 herein) for the purpose of requesting the Respondent No. 1 Kedar Lal Jaiswal to vacate the rooms in question and not the entire premises in occupation of the Respondent No. 4, cannot be construed as a clear and unequivocal threat. The bailiff by any stretch of imagination could not forcibly execute the decree. The bailiff at best could persuade the judgment-debtor to vacate the premises. Such approach of the bailiff, if at all made in the year 1983, is not a clear and unequivocal threat. According to Mr. Banerjee, it was only in the later part of the year 1987, the clear and unequivocal threat amounting to infringement of the right title and interest of the Respondent No. 1 Kedar Lal Jaiswal arose when the proforma Defendants, the respective husbands of the Appellants, attempted in vain to dispossess the Respondent No. 1 illegally and wrongfully with the help of antisocial elements from the suit premises No. 77 A, Amherst Street, Calcutta, and which caused the Respondent No. 1 Kedar Lal Jaiswal to initiate proceeding u/s 144 of the Code of Criminal Procedure before the Metropolitan Magistrate, Calcutta. Hence, the contention of Mr. Dasgupta to the effect that the suit is barred by limitation, does not hold good and we fully agree with the decision of the learned Court below.
64. We have also considered the decision in the case of
65. Accordingly, the judgment and decree passed by the Third Bench, City Civil Court at Calcutta, is hereby confirmed and the appeal is dismissed.
66. There will be no order as to costs.
67. Prayer for stay of execution of the decree, made on behalf of the Appellants, is considered and refused.
68. If certified copy of the judgment is applied for, the same may be supplied as early as possible, upon strict compliance of the Rules.
N. K. Mitra J.: I agree.
