R.L. Narasimham, C.J.
1. This is an appeal by the contesting defendants (Defendants 1, 2, 4, 5, 6 and 9) against the judgment and decree of the Additional Subordinate Judge, Berhampur, passing a preliminary decree for partition, for estimation of mesne profits, and for other consequential reliefs in favour of the plaintiff. The following is the pedigree showing the relationship of the parties.
MAGHANAD PADHY_DOMMI DEI
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Kruttibas (Deft. No. 1) Apanna alias Pitambar (died in Surekha
Sayantha (Deft.8) Madhusudan (Deft.2) Apr.1936=Malati(Plff.) (deft.9)
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Padmanabg Dibyasingha Biswanath Saratha
(Deft.3.) (Deft.4.) (Deft.5) (Deft.6)
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Bhaskar (Deft.7)
2. The plaintiff's case was that the joint family properties of her husband Pitambar and his two brothers, Kruttibas and Appanna, were partitioned by metes and bounds by four arbitrators by an award dated 9-7-1929 (Ext. 6). At that time, her husband was a minor and his mother guardian Dommi Dei accepted the award on his behalf. By virtue of the said award, the properties described in Schedules A and B fell to Pitambar's share.
The properties described in Schedule D were given to Dommi Dei for her maintenance during her lifetime to be divided equally amongst the three sons after her death, and the properties described in Schedule L were given away to Surekha as her marriage dowry. The properties described in Schedule C were kept joint because the interest of the family in these properties consisted of only a fractional share, the remaining shares belonging to other co-sharers.
The other two brothers namely Kruttibas and Appanna were also allowed their respective shares, but subsequently the properties described in Schedules J and K were transferred to either Pitambar or his widow Malati (Plaintiff). After partition, the eldest brother, namely Krutibas (defendant) remained in separate possession of his share, but the other two brothers namely Pitambar and Appanna, lived together mainly because Pitambar was a minor and Appanna managed his share of the properties also.
Dommi Dei died in due course and Pitambar after marrying the plaintiff died sometime in 1936 within two years of her joining him, leaving her a childless widow. Appanna (defendant 2) however continued to manage her share of the properties until 26-3-1938. He rendered account of his management of her share, and by a document (Ext. 1) dated 26-3-1938 agreed to pay her 45 Bharanams and 14 nowties of paddy, cash of Rs. 741 and 7 1/2 tolas of gold in full settlement of accounts.
He also gave up possession of her share, and she exercised possession over the same by leasing out her lands to various tenants. Again on 22-3-1941 he made some payments towards the dues of the plaintiff as acknowledged in his deed of settlement (Ext. 1) and also made the necessary endorsements (Ext. 1-a) on that document. Not content with that, he on 3-4-1941 also conveyed to her the properties described in Schedule J for Rs. 700 (Ext. 2) towards discharge of the balance of the debt due.
Subsequently, however, troubles arose mainly because the plaintiff was unwilling to adopt his second son Saratha (defendant 6) to her deceased husband. Defendants 1 and 2 then made common cause against her and forcibly dispossessed her from some of her properties. She then brought a criminal case through her tenant Padmanabh Panigrahi against them, but they successfully defended themselves and got acquitted. This acquittal so much emboldened them, that they forcibly dispossessed her of almost all her properties leaving her no other alternative but to bring the present suit under appeal on 22-3-1947.
3. Defendants 1 and 2 who are the main contesting defendants have made common cause andalleged that there was no partition of the joint family properties in 1929 as alleged. According to them defendant 1 alone partitioned during the lifetime of his father prior to 1924 and lived separate with his share of the joint family properties. Subsequently he made several acquisitions from his own earnings which were not available for partition in the present dispute. They further alleged that the plaintiff's husband Pitamber and defendant 2 remained joint throughout till Pitambar's death and that consequently defendant 2 as the sole surviving coparcener of the joint family, was entitled to all the properties of his father excluding those that were given on partition to defendant 1.
According to them, therefore, the plaintiff was entitled to nothing but maintenance as the widow of an undivided deceased coparcener. They further alleged that the plaintiff took in adoption Saratha (defendant 6) the second son of defendant 2 on 10-11-1943, as a son to her deceased husband Pitambar, and that consequently, Saratha alone was entitled, to the interest of Pitambar in the joint family property.
4. Though 22 issues were framed, including a specific issue (issue No. 6) about the self-acquisitions of defendant 1, most of the issues were not pressed and the parties went to trial mainly in respect of the following two important issues:
(i) Whether Pitambar died while in a state of jointness with his brother Appanna (issue No. 2); and
(ii) Whether defendant 6 was validly taken in adoption by the plaintiff, (issue No. 16).
5. The trial court rejected the contention of defendant 1 that he effected a partition with his father during the latter's lifetime and held that the three brothers effected partition by metes and bounds by virtue of the award given by the arbitrators in 1929. He therefore held that Pitambar died in 1936 as a divided brother of defendants 1 and 2 and that consequently his widow (plaintiff) was entitled to succeed to his share. He also disbelieved the story of adoption of defendant 6 by the plaintiff as put forward by the defendants and hence decreed the plaintiff's suit. These questions were also canvassed in this appeal and they are the main questions for decision by us.
6. The most important document in this case is the award of the arbitrators dated 9-7-1929 (Ext. 6) which clearly says that the joint family properties of the three brothers (Pitambar being represented by his mother-guardian Dommi Dei) were partitioned by metes and bounds and separate shares were allotted to each of the three, though some properties were kept joint. If this document be held to be genuine, the plaintiff's case of partition must necessarily succeed. On behalf of the defendants, therefore, themselves the admissibility of the document was challenged on the following grounds:
(i) that it is not an original award but only a copy, and as such, inadmissible due to non-explanation for production of the original.
(ii) that, in any case, it is, in essence, a deed of partition and as it was not registered it is inadmissible.
Apart from inadmissibility it was further alleged that no such award was in fact executed and that it is not a genuine document.
7. The four arbitrators mentioned in the award are (1) Karji Karuna Sindhu Dhyana Samanto (P. W. 6) who is an agnatic cousin of the family, (2) Ballabh Padhy (father of P. W. 7) who was the husband of the sister of the mother of defendants 1 and 2, (3) Ganapathi Babartha (P. W. 2) father-in-law of Surekha and (4) Agadhu Satapathy, Revenue Inspector of the estate residing in the village. Two of the arbitrators, namely Agadhu and Ballabh are dead, but the other two have appeared as witnesses on behalf of the plaintiff viz., P. Ws. 2 and 6 and have spoken about the partition effected by them amongst the three brothers, the drawing up of the award and their signing the same.
Their evidence shows that four copies of the award were prepared at the same time, the main copy being scribed on stamp paper of higher denomination and kept with one of the arbitrators, namely Agadhu Satapathy, and the other three copies being scribed on stamp paper of lower denomination and signed by all the arbitrators and one copy given to each one of the three contesting parties. Every page of every one of the documents scribed on stamp paper of lower denomination was initialled by the arbitrators and the last page was signed by all of them.
The main copy scribed on stamp paper of higher denomination was however signed by defendants 1 and 2 and by Dommi Dei on behalf of Pitambar and in the other three copies a note was made to the effect that in the main copy the parties themselves had affixed their signatures. Ext. 6 is the copy which was handed over to defendant 2 but which subsequently came into the possession of the plaintiff. I see no reason to disbelieve the evidence of the two arbitrators, P. Ws. 2 and 6, regarding the circumstances under which Ext. 6 came into existence.
Both of them are common relations of the parties. Doubtless P. W. 6 seems to be somewhat inimically disposed towards defendant 1 and had deposed against him in some criminal cases. But P. W. 2 seems to be a very respectable gentleman. He is the father-in-law of defendant 9 Surekha who is the sister of defendants 1 and 2. He is an old man aged about 65 years and nothing has been brought out to discredit his testimony. This witness also stated that the parties asked the four arbitrators to settle their disputes, first orally and then after the arbitrators had made careful enquiries and made tentative notes about the respective shares of the parties, they were asked to execute a muchalika consenting to arbitration by these two gentlemen, and that, on the very next day, namely 9-7-1929, the award was written out on stamp paper produced by the parties.
Though the actual scribing of the award on the very next day after the written consent of the parties to the appointment of arbitrators may look somewhat suspicious, the evidence of P. W. 2 shows that the parties had requested them orally some days prior to that date to settle their dispute. Hence I see no inherent improbability in the evidence of P. W. 2.
8. The award (Ext. 6) is itself an original and not a copy. If the evidence of P. W. 2 be believed the award was prepared in quadruplicate and all the four documents were scribed by one Narayan Panda a professional scribe and signed by all the arbitrators--every page having been initialled. Ext. 6 cannot, therefore, be a mere copy subject to the rule of secondary evidence as given in the Evidence Act. The mere fact that the main documentwas written on stamp paper of higher denomination and was left with one of the arbitrators, namely Agadhu, will not show that the other three documents prepared at the same time and signed by all the arbitrators, are also not originals.
So long as all the documents contain the signatures of the scribe and of the arbitrators they are originals. It is true that the parties' signatures are found only in one of the documents signifying the acceptance of the award and in the other three documents there is only a mere mention of this fact. The lower court was therefore right in saying that so far as the acceptance of the award is concerned the endorsement on Ext. 6 (Ext. 6(a)) may be a copy and not the original but that so far the award itself is concerned, Ext. 6 is as good as original as the document that was given to Agadhu. Its admissibility is, in my opinion, beyond question.
9. It is conceded that in the year 1929 an award of an arbitrator partitioning immovable property was not compulsorily registrable. But it was argued that inasmuch as the award was accepted by the parties and signed by them it became, in substance, a deed of partition and as such was compulsorily registrable. This leads to the question as to whether when an award is made by arbitrators, and is signed by the arbitrators and also by the parties, its true character changed and it becomes a deed of partition.
Though there are some old decisions supporting such a view: see Teklal Singh v. Sripati Chowdhury 18 CWN 475: (AIR 1914 Cal 273(2)) later, decisions of the Lahore, Bombay, Allahabad and Patna High Courts are against this view. Thus in a Lahore case reported in Ralia Ram v. Dunichand, 66 Ind Cas 118, it was held that a list of properties awarded by arbitrators to different members of a Hindu joint family on partition formed part of the award and the mere fact that they were signed by the parties themselves did not make it compulsorily registrable. In Yemnava v. Revanshiddappa AIR 1927 Bom 656 a similar view was taken.
In Mangli Pershad v. Babu Ram AIR 1929 All 365 the Calcutta view in 18 Cal WN 475: (AIR 1914 Cal 273 (2)) was dissented from and the contrary view was adopted. In Mt. Jasoda v. Punit Singh AIR 1934 Pat 48 the Bombay and Allahabad view was followed. In 1934 by virtue of the amendment made to the Indian Registration Act even an award became compulsorily registrable and consequently there are not many decisions after that year dealing with this question.
The only later decision which learned counsel,after careful research on the subject, could cite wasKanshi Ram v. Harnam Das, AIR 1940 Lah 73 wherealso it was pointed out that where an award iswritten on behalf of an arbitrator, the mere fact thatthe parties signed it will not alter the original natureof that document. I would in agreement with thePatna view mentioned above which is supported bythat of Bombay, Allahabad and Punjab, hold thatnotwithstanding the signatures of the parties thedocument Ext. 6 was in reality an award of thearbitrators and not a deed of partition and, as thelaw then stood, it was not compulsorily registrable.Ext. 6 is therefore admissible in evidence.
10-14. There are subsequent documents of unimpeachable genuineness executed by defendants 1 and 2 which clearly show that they recognised the award to be genuine and admitted that their brother Pitambar had separated from them-by virtue of that award. (His Lordship then considered other documentary evidence regarding partition and possession of the plaintiff and continued as under) --I would, therefore, in agreement with the lowercourt hold that after the settlement of accounts on 26-3-1938 (Ext. 1) between the plaintiff and defendant 1 she regained possession of most of the lands allotted to her husband's share though she was forcibly dispossessed sometime in 1943.
15-23. (His Lordship after rejecting other objections of the defendants, considered the oral evidence on the issue of alleged adoption by the plaintiff and concluded as follows :) Hence, though a document or deed of adoption is not always necessary to prove the factum of adoption, in the peculiar circumstances of this case and bearing in mind the previous transactions of the family and the difference that had arisen between the plaintiff on the one hand and defendants 1 and 2 on the other, the absence of such a document would render the oral evidence of the defendants on this question unbelievable.
24. There is also no later document to show that the boy Saratha was ever treated as the adopted son of Pitambar. If the adoption was really true, one would expect defendant 2 in the usual course to get the name of the boy mutated describing him as the adopted son of Pitambar and to see that the cist receipts were also issued in his name. This was admittedly not done, and D. W. 2 was compelled to admit that there was not a single document to establish the alleged adoption.
25. I would, therefore, in agreement with the learned lower Court, hold that the oral evidence of the defence witnesses about the so-called adoption of Saratha on 10-11-1943, is not believable.
26. The judgment and decree of the lowercourt are affirmed and the appeal is dismissed withcosts.
G.C. Das, J.
27. I agree.