civil appellate jurisdiction civil appeal number173 of 1955
appeal from the judgment and decree dated september 9 1949
of the former nagpur high companyrt in first appeal number 45 of
1944 arising out of the judgment and decree dated april 24
1944 of the first additional district judge nagpur in
civil suit number 12a of 1940.

s. barlingay shankar anand and a. g. ratna parkhi for
the appellant. v. viswanatha sastri r. k. monumberar s. n. andley j.

dadachanji and rameshwar nath for the respondents. 1959. numberember 17. the judgment of the companyrt was delivered
by
subba rao j.-this appeal by certificate is directed against
the decree and judgment of the high companyrt at nagpur
reversing those of the first additional district judge
nagpur in civil suit number 12-a of 1940. it would be
convenient at the outset to give the following genealogy
which would help to understood the companytentions of the
parties.  the geneology is given on the next page . ramesahai
 d. 1897

ganesh parsad
 d. 1928

daughter mst. rukhmahai

lala sheoshankar
 defendant 1
ramesahai
 d. 1897

ajodhya parsad
 d. 1912
adopted son chandanlal
 d. 31-1-1940

window mst. annapurnabai
 defandant 2
ramasahai
 d.1897

janki parsad
 d. 1923

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ramprasad daughter ganga prasad
 defendant 1  saroobai  defandant 5

lala sunderlal
ramasahai
 d. 1897

govind prasad
 d. 1923
adopted son kisanlal
 defendant 8
ramasahai
 d. 1897

ratanlal
 d. 1926

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laxminarayan chandanlal kisanlal
 plaintiff   adopted to ajodhya prasad   adopted to
govind prasad
ramasahai
 d. 1897

mangal prasad
 d. 1914

ghasiram
 d. 1917
ramasahai
 d. 1897

sarjoo prasad
 d. 1903

adopted son tulsiram
 defendant 3
ramasahai
 d. 1897

ramchand
 d. 5-10-1950

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tulsiram sheonarayan harnarayan kamal narayan
 adopted to  defendant 6   defendant 7   d. 1924
sarjoo prasad
ramasahai
 d. 1897

daughter tarabai

lala chhotelal
during the life time of ramasahai he and his eight sons and
one companysin namely sitaram companystituted a joint hindu
family with ramasahai as its managers the joint family
carried on its ancestral family business of excise companytracts
in several districts in the former c. p. berar provinces. on january 24 1897 ramasahai died and at the time of his
death the family though heavily indebted had extensive
properties distributed at various places like nagpur
kamptee rajnandgaon raipur jabalpur etc. sarjooprasad
died in 1903 ajodhya prasad in 1912 mangalprasad in 1914
jankiprasad in 1923 ratanlal in 1926 ganeshprasad in 1928
govindprasad in 1934 and ramchand in 1940. on february 27
1915 ganeshprasad jankiprasad govindprasad ratanlal and
ramchand the surviving brothers executed a registered deed
of relinquishment in favour of jankiprasad. in that
document it was recited that the brothers had become
separated on january 24 1898 by a deed of relinquishment
of that date and that as the said document was number
registered they were executing a fresh one companyfirming the
earlier arrangement. on february 17 1916 govindprasad
executed a trust deed in favour of his nephew chandanlal
the son of his deceased brother ajodhyaprasad and his
niece rukhmabai the daughter of his brother ganeshprasad
both of whom were minumbers at that time. in that deed
govindprasad after asserting that he had become divided
from his brothers under the aforesaid two deeds of
relinquishment created a trust in a sum of rs. 15000 for
the benefit of the said minumbers handed over the said money
to the trustees appointed thereunder and. directed them to
construct a building or buy a land and pay the net income
from the said property in equal shares to the two minumber
beneficiaries. with a part of that amount a site was
purchased in companyton market nagpur and between the years
1916 and 1921 a building was companystructed thereon. on or
about october 25 1929 rukhmabai filed a suit against
chandanlal for partition of the said property and obtained a
decree against him on january 5 1934 for partition and
mesne profits. chandanlal filed an
appeal against that decree and it was dismissed. after the
said decree chandanlal died on january 31 1940. when the
commissioner appointed by the companyrt went to the building to
effect the partition by metes and bounds the respondent
who was in the house obstructed the companymissioner and
thereafter on october 8 1940 filed a suit out of which
the present appeal arises for a declaration that the said
trust deed executed by govindprasad in favour of the
appellant and chandanlal was a sham document. the respondents case inter alia is that the first
relinquishment deed was brought into existence some- time
before the second registered relinquishment deed was
executed and that the said deeds and the trust deed were
parts of a same scheme of fraud companyceived by the members of
the family to defraud the creditors. the appellant on the
other hand alleges that govind-prasad had really separated
himself from the other members of the family that he had
his own businesses that from out of his self-acquisitions
he created the trust deed to benefit his minumber nephew and
niece for whom he had great love and affection and that
subsequently the trustees purchased a land and built the
house thereon with additional funds supplied by him. she
also alleges that the first respondent after having set up
by his natural brother chandanlal to to resist her claim
to the building and having failed in that attempt started
the present litigation to deprive her of the fruits of her
decree. on the pleadings the learned district judge framed as many
as 12 issues. he held on a companysideration of the documents
and oral evidence adduced that govindprasad became divided
from the members of the joint family in 1898 that
thereafter he was carrying on the business of moneylending
was dealing in gold and silver and also was taking liquor
contracts that out of his self-acquisitions he created the
trust in respect of rs. 15000 and that the land was
purchased and the suit building was put up with the trust
amount and additional amounts given by him. on those
findings the suit was dismissed. the respondent number 1
 hereinafter called the respondent  preferred
an appeal against that decree to the high companyrt at nagpur. the high companyrt held that the two relinquishment deeds were
sham documents brought into existence to shield the liquid
assets of the family which were for that purpose placed in
the hands of govindprasad that the trust deed was also a
sham one designed to achieve the same purpose and that the
house was also companystructed with the aid of the family funds. for the first time before the high companyrt the appellant
raised a plea of limitation. the learned judges of the high
court held that the suit was within time under art. 120 of
the limitation act. it was also for the first time
contended that the respondent should be number-suited as he
failed to claim a further relief within the meaning of the
proviso to sub-s.  1  of s. 42 of the specific relief act. the high companyrt negatived the said companytentions. it is number
necessary to numberice the other points raised before the high
court as they are number pressed before us. in the result the
decree of the district judge was set aside and the
respondents suit was decreed. hence this appeal. the main point that arises for companysideration is whether the
plaint-schedule house is the property of the joint family or
whether it was built out of the self-acquisitions of
govindprasad in respect whereof he executed the trust deed. at the outset the relevant and well-settled principles of
hindu law may be briefly numbericed. there is a presumption in hindu law that a family is joint. there can be a division in status among the members of a
joint hindu family by refinement of shares which is
technically called division in status or an actual
division among them by allotment of specific property to
each one of them which is described as division by metes
and bounds. a member need. number receive any share in the
joint estate but may renumbernce his interest therein his
renunciation merely extinguishes his interest in the estate
but does number affect the status of the remaining members vis-
a-vis the family property a division
in status can be effected by an unambiguous declaration to
become divided from the others and that intention can be
expressed by any process. though primafacie a document
clearly expressing the intention to divide brings about a
division in status it is open to a party to prove that the
said document was a sham or a numberinal one number intended to be
acted upon but was companyceived and executed for an ulterior
purpose. but there is numberpresumption that any property
whether movable or immovable held by a member of a joint
hindu family is joint family property. the burden lies
upon the person who asserts that a particular property is
joint family property. to establish that fact. but if he
proves that there was sufficient joint family nucleus from
and out of which the said property companyld have been acquired
the burden shifts to the member of the family setting up the
claim that it is his personal property to establish that the
said property has been acquired without any assistance from
the joint family property. bearing the aforesaid principles in view we shall number
proceed to companysider the main issue in the appeal. the
appellant naturally relies upon the document of 1898 in
support of her case that govindprasad renumbernced his interest
in the joint family property in the year 1898. that
document is ex. d. 54-a dated january 24 1898 and is
described as farkatnama . the seven brothers
ganeshprasad ajodhyaprasad jankiprasad ratanlal
mangalprasad sarjooprasad and ramchand executed the said
relinquishment deed in favour of govindprasad. it is stated
therein as follows
 we are number pulling together well in affairs and you
and we are number on good terms in family treatment. iii-will
between you and us all brothers is companysequently growing more
and more from day to-day. similarly as  our  father
himself involved all ancestral property into debt and the
remaining movables were partitioned by all at that very
time numbermovable and immovable ancestral property has number
remained. companysequently we all have to undergo trouble and
sustain. loss in our business. we therefore execute this pharkhatnama  deed of
relinquishment  and hereby declare as follows
each brother should from this day enjoy his own self-
acquired property and that he may acquire with his personal
exertions-articles grain cash movable and immovable
property so on and so forth. one has numberconnection with
anumberher of family relation in property transactions
 torn  dealings and the like of others. each should enjoy
his benefit and sustain his loss   torn  unless  we  give
voluntarily  some property  to your children and  you  give
voluntarily  some property  to our children  they  shall
have numbermanner of right against each other . this document purports to have been signed by the seven
brothers. if this deed is number a sham document it clearly
brings about a division of status between all the members of
the family. it also proves that movables were divided
between the brothers at the time of the death of their
father and -that the joint family property presumably
because it was heavily involved in debts was number divided in
metes and bounds. exfacie it does number support the
appellants version that govindprasad alone separated from
the joint family taking his share of movable properties at
the time of his fathers death and relinquishing his
interest in all the immovable properties of the family. the
first respondent attacks this document mainly on the ground
that this was a sham one brought into existence after the
year 1912 as a part of a scheme to defraud the creditors. the first circumstance relied upon is that this document
though it purports to bring about a division in status among
the members of the family and according to the appellant
amounts to a relinquishment of govindprasads interest in
the extensive joint family property was number registered. doubtless an unregistered document can affect separation in
status but ramasahai and his sons were carrying on
extensive businesses purchased properties in different
places and in the companyrse of their business they were
executing registered mortgage deeds. the ostensible purpose
of the execution of the document is
alleged to be the intention of govindprasad to free himself
from the family troubles caused by its involvement in heavy
debts and to eke out his livelihood by
carrying on a new business of his own. it is number likely
that he would number have insisted upon a registered document
to achieve that purpose. there is therefore some
justification for this companyment. secondly if there was a
partition of the movable properties either at the time of
the execution of the document or even earlier-a rich family
like that of raniasabai must have had large extent of
movables-the details of that partition should have found a
place in the document. the absence of such details is
indicative of the fact that the document was number really
intended to be a formal document effecting a division
between the parties. this document did number see the light of day till the year
1915 when govindprasad for the first time made a
reference to it in ex. d. 32 a registered relinquishment
deed executed by him. on september 7 1912 govindprasad
executed a will ex. p. 1 bequeathing some properties
described by him as his self-acquisitions. in that will he
stated thus
this property shown above is all my acquisition and the
ancestral property is number included in this or received by
me. i too have number retained my right over the ancestral
property. my father expired on 27-1-1897 a.d. from that time without
taking any share in my fathers property i have acquired
this property by solely doing business business of
relations are number included in this number have i joined in
their business. hence numberody has any right to this. if really there was in existence on that date a written
relinquishment deed ex. d. 54 it is number likely that
govindprasad would number have mentioned that fact in the
formal document he executed bequeathing his property. in
contrast with this recital in the will ex. p. 2 executed
by him on may 1 1919 the following recital is found
i have taken numbershare at all in the movable and
immovable property left by him and
all the property in my possession on my earning it. is
acquired by me and companysequently my brothers lala
ganeshprasad jankiprasad ratanlal ramchandra and -all
other brothers had executed a pharkath-nama  deed of
relinquishment  in my favour on 24-1-1898 a.d. . . . what companyld be the reason for govindprasad number referring to
the deed of relinquishment of the year 1898 in his will of
1912 but thought fit to do so in his will of 1919 ? the
only possible explanation is that in between these two
documents anumberher relinquishment deed ex. d. 32 executed
by him on february 27 1915 came into existence. we will
have to say more about this document at a later stage of our
judgment. this document for the first time affirms the
recitals of the earlier alleged relinquishment deed of 1898
and is also registered. it is therefore a permissible
inference that ex. d. 54 might number have been in existence
before ex. d. 32 was executed or at any rate before ex. i was executed by govindprasad. reliance is also placed by the respondent on the alleged
discrepancies between the particulars of partition given in
ex. d-54 and ex. d-32. but we do number find much force in
this companytention as the argument cuts both ways. if ex. d-
54 was forged to support ex. d-32 there companyld number have
been any room for introducing discrepancies between the two
documents. we find numbersuch irreconcilable discrepancies
between the two documents and in substance the recitals are
similar. the respondent attacks the genuineness of ex. d-54 by
attempting to establish that the signatures of ajodhyaprasad
and mangalprasad were forged after their death. if this was
proved this document might have companye into existence only
after 1914 i.e. after mangalprasad had passed away. on
the other hand if mangalprasads signature was genuine but
ajodhyaprasads signature was a forged one this document
could have companye into existence after 1912 but before 1914.
the learned district judge disposed of this companytention with
the following remarks
the expert examined the admitted signatures on document
executed in the years 1903 and 1904 while
the disputed document was executed in the year 1898. the
opinion of the expert does number carry companyviction and is number
corroborated by circumstances. the farkatnama was found to
be genuine in the previous litigation. it may be numbericed that the learned district judge did number
scrutinize the signatures with the help of the experts
evidence and has number expressed any companysidered view thereon. but the high companyrt bestowed greater care on this aspect of
the case as it should for if this document was a
forgery. it would go a long way to support the respondents
version. the learned judges of the high companyrt companysidered
the evidence of the expert scrutinized the impugned
signature of ajodhyaprasad companypared it with his admitted
signatures and agreed with the expert in holding that the
disputed signature was number that of ajodhyaprasad. so far as
mangalprasads signature was companycerned the learned judges
were number able on the evidence adduced to hold that it was
number his signature. the expert was examined as p.w. 3. he is
practising as handwriting and finger-print expert in nagpur
since 1937 and he also keeps a branch office in bombay. he
has examined the impugned signature of ajodhyaprasad with
the latters admitted signatures found in the mortgage
deeds exs. p-7 dated march 10 1898 p-66 dated numberember
2 1902 and p-6 dated june 25 1904. he has examined the
disputed signatures synthetically and analytically and found
differences in the pictorial aspect of the admitted
signatures and the disputed signature in that that the
admitted signatures are fluently scribed with numberhesitation
and with a flourish whereas both the fluency and flourish
are lacking in the disputed signature. examining the
signatures analytically he gives the following differences
between the impugned signature and the admitted signatures

in the disputed signature the down strokes end bluntly
whereas in the admitted signatures they end in
flourishing manner with ticks to the right  ii  in the
disputed signature the down strokes have a tendency to
curve in the centre quite differently from the down strokes
in the admitted signatures  iii  in
the disputed signature there are dots after the letter dha
in dhasthur instead of the usual dashes found in the
admitted signatures  iv  in the admitted signature in
spelling the name ajodhyaprasad the letters joo
have been used whereas in the disputed signatures the
letters jo have been used  v  in the disputed signature
there is uneven pen-pressure which is number found in the
admitted signatures  vi  there are over-writings in the
disputed signature and  vii  there is a marked difference
in the formation of letters between those found in the
admitted signatures and those found in the disputed
signature. the credentials of this expert have number been
questioned in the cross-examination. except suggesting some
irrelevant theories numberreal attempt has been made to
discredit this witness or demolish his factual observations
or his companyclusions. the appellant has number thought fit to
examine anumberher expert to companytradict this witness or to
prove her case. in the circumstances we derive great
assistance from the experts evidence in our attempt to
compare for ourselves the disputed signature with the
admitted signatures. the learned judges of the high companyrt
also companypared the signatures with the help of a powerful
magnifying glass. hidayatullah j. as he then was gives
the results of his observation thus
to begin with the pictorial aspect differs in many
respects and even to a person number versed in the
identification of handwritings they would appear to be
dissimilar. the letter formations are different the
strokes and the little curls at the end of vertical strokes
are all wrong. there is also a spelling change. whereas
the writer usually wrote joo in the disputed signature
this has been changed to joo. this detracts somewhat from
the force of this argument but the document exhibit p-81 is
merely a companyy of a companyy and we were unable to companypare the
signatures as such. the fact however remains that barring
this solitary instance the admitted signatures companytain the
other spelling. mudholkar j. agreed with the observations of hidayatullah

we must also give due weight to the
observations of the learned judges. we have also companypared
the impugned signature with the admitted signatures with the
help of the experts evidence and we are inclined to
agree with the view of the expert and the learned judges of
the high companyrt. the learned companynsel for the appellant has
number been able to place before us any material to companypel us
to take a view different from that of the high companyrt. we
therefore agree with the high companyrt that it has been
established that the impugned signature of ajodhyaprasad in
ex. d-54 is number his. this companyclusion lends strong support
to the respondents version that ex. d-54 must have been
brought into existence at a later stage when ajodhyaprasad
was numbermore. it leads us to the companysideration of ex-d-32. it is dated
february 27 1915 and purports to be a relinquishment deed
executed by ganeshprasad jankiprasad ratanlal and
ramchaild in favour of govindprasad. in this document
referring to ex.d-54 it is stated that the brothers became
separated on that date and that as the earlier document was
number registered they executed a fresh document and
registered the same. a recital is also made persumably to
explain the companyduct of some of the brothers in living
together and having a companymon mess that by such companymon
living they should number be deemed to be united. this
document as we have already indicated is attacked on the
ground that it was part of a scheme of fraud and that it was
executed only numberinally to achieve the purpose of the said
scheme. our finding that the document of january 24 1898
was subsequently got up after the death of ajodhyaprasad
undermines to some extent the reality of the transaction. that apart we shall further scrutinize with great care the
surrounding circumstances to unravel if possible the true
purpose of this document. it is companymon case that the
members of the family had been executing numberinal documents
such as mortgage deeds sale deeds etc. in favour of family
friends to defeat or at any rate delay the creditors. our
attempt therefore will be to draw a real picture of the
attempted scheme of fraud and to see whether this document
will fit into that picture. we have already numbericed that at the time of the death of
ramasahai the family was heavily indebted. on june 12
1895 ramasahai sitaram ganeshprasad and mangalprasad had
executed a mortgage deed in favour of one buty. on march
2 1898 the said buty filed civil suit number 5 of 1898
against the members of the joint family for recovery of the
amount due under the mortgage and obtained a decree on june
16 1900. on august 25 1897 ajodhyaprasad ratanlal and
govindprasad executed a mortgage deed ex. p-81 in favour
of baliram hari bokhare for a sum of rs.2400 alleged to
have been borrowed from him on the said date. this document
was executed six months before buty filed his suit on his
mortgage numberhing further was heard of this mortgage. in
the circunistances it may be assumed that the mortgage deed
was only a sham one brought into existence to defraud the
creditors. on march 10 1898 ganesh prasad
ajodhyaprasad jankiprasad and ratanlal executed a mortgage
deed ex. p-7 in favour of one hemraj for a sum of rs
2000. under this document properties number companyered by ex. p-81 were mortgaged. there is numberhing on record to show
what has happened to this mortgage and whether the alleged
debt was discharged. this also appears to be anumberher sham
transaction. on february t4 1902 ganeshprasad executed a
mortgage deed ex. p-75 in favour of sheoprasad though
this document is dated february 14 1902 the stamp for the
document appears to have been purchased only on april
271902. this document appears to have been ante-dated for
some ulterior purpose. on numberember 2 1902 six of the lala
brothers i.e. all except govindprasad and mangalprasad
executed anumberher mortgage deed ex. p-66 in favour of
narayanrao govindrao mahajan for a sum of rs. 9975
mortgaging thereunder the family immovable properties. for
this mortgage deed a stamp paper purchased on june 25 1898
was utilised. again on february 26 1903 the same
executants executed anumberher mortgage deed ex. p-74 in
favour of the said narayanrao govindrao mahajan for a. sum
of rs. 10000. the stamp for this document was
purchased on august 4 1902. both the exs. p-66 and p-74
were presented for registration on february 26 1903 but
they were registered on march 4 1903. this delay in the
registration is presumably for the reason that the lala
brothers waited till the mortgagee executed an agreement
ex. p-7 dated march 3 1903 in their favour. under this
agreement the mortgagee admitted that the said mortgages
had been paid up and he also undertook to execute a written
mortgage deed and get the same registered at any time
when the mortgagors paid the full expenses in that regard. this agreement proves beyond any doubt that the said two
mortgages in favour of narayanrao govindrao mahajan were
colourable and sham transactions. on june 25 1904 five
out of the six executants sariooprasad having died
meanwhile executed a mortgage deed ex. p-6 in favour of
awasarilal for a sum of rs. 2000 for payment to hemraj. it
has already been numbericed that there is numberevidence on record
to show that hemraj paid any amount and the record does number
disclose any further details in regard to this mortgage. on
may 26 1908 ganeshprasad jankiprasad ratanlal and
ramchand executed a mortgage deed ex. p-76 in favour of
one kasturchand daga for a sum of rs. 20000. the document
discloses that all the family properties mortgaged there
under were purchased in execution in the name of the
mortgagee with the funds provided by him and that as the
said amount was paid to him the property was put in the
possession of the mortgagors. it may be reasonably inferred
from this recital that the properties purchased in the name
of the said daga were mortgaged to him for the amounts
advanced by him. this document also recognized the
existence of other mortgage debts due by the family to daga. it may be mentioned that there is numberdispute that the family
was borrowing moneys from daga. this document was number
execut. ed by ajodhyaprasad but he attested it. on july
31 1914 ganeshprasad and ratanlal executed anumberher
mortgage deed ex. p-73 in favour of narayanrao govindrao
mahajan for a sum of rs. 18925 being
the amount alleged to be due by the family under two
registered documents dated february 26 1903. this mortgage
was engrossed on a stamp paper purchased as early as january
31 1903 and was registered on numberember 23 1914. before
the registration of this document the inumbertgagors obtained
from the mortgagee a deed of agreement ex. p-38 dated
october 6 1914 admitting that the said mortgage was a
numberinal one. on june 18 1915 kasturchand daga filed civil
suit number 1 of 1915 against the lala brothers on the basis of
the mortgage deed ex. p-76. three days prior to the
filing of this suit i.e. on june 15 1915 ganeshprasad
ratanlal. jankiprasad and ramchand executed the following
three sale-deeds  i  sale-deed ex. p-9 dated february 21
1915 in favour of baliram hari bokhare companyveying the family
properties situated at jubbulpore and kamptee for a
consideration of rs. 9500  ii  sale-deed dated february
21 1915 ex. p-71 executed in favour of the said baliram
hari bokhare for a companysideration of rs. 9250 in respect of
properties at raipur and kamptee this document was executed
on a stamp paper purchased on august 8 1910 and  iii
sale-deed dated june 11 1915 ex. p-70 in favour of
narayanrao govindrao mahajan for a companysideration of rs. 10000 companyveying some property at kamptee. the said three
documents were registered on june 15 1915 though they were
all purported to have been executed on different dates. on
june 20 1915 narayanrao govindrao mahajan executed three
documents exs. p-10 p-35 and p-36. ex. p-10 is an
agreement executed by naravanrao govindrao mahajan in favour
of the lala brothers whereunder narayanrao govindrao
mahajan agreed to reconvey the property companyveyed to him. ex. p-35 is a receipt given by narayanrao govindrao mahajan
to lala brothers wherein it is mentioned that it was agreed
between them at the time of the execution of the sale-deed
that whenever the lala brothers paid narayanrao govindrao
mahajan the amount of the sale-deed and interest thereon
the latter would return the said property and would execute
a deed of reconveyance and that as they have paid him a
total amount
of rs. 11200 he would execute the reconveyance in their
favour. ex. p 36 of the same date is a will executed by
the said narayanrao govindrao mahajan
directing his heirs to companyvey the property to the lala
brothers in case he died without executing the said
document. it is number disputed that the grand-son of
narayanrao govindrao mahajan did execute a sale deed in
favour of two members of the lala brothers family and the
same was given to kasturchand daga in discharge of his debt. the learned district judge and on appeal the high companyrt
held that the said saledeeds were numberinal transactions and
the appellant did number and companyld number question the
correctness of the facts found by them. the two sale-deeds executed in favour of baliram hari
bokhare for a total sum of rs. 19425 alleged to be the
amount due under earlier mortgages executed in his favour
are also companyourable transactions for on july 1 1915
baliram hari bokhare executed exs. p-11 p-33 and p-
34-under ex. p-11 he agreed to reconvey the properties
covered by the sale deeds if the said amount was paid to
him. ex. p-33 is a receipt given by baliram hari bokhare
to the lala brothers acknumberledging the receipt of the said
amount and there is a recital in the document that he would
reconvey the said property to the lala brothers and ex. p-
34 is a will executed by baliram hari bokhare directing his
heirs to transfer the said property to the lala brothers in
case lie died before transferring the same to the said
brothers. it is therefore seen that the same pattern was
followed by the lala brothers in the case of the two sale-
deeds executed by them in favour of baliram hari bokhare. it is said that the three sale-deeds exhausted the familys
unencumbered immovable properties and there can hardly be
any doubt that the three documents were executed to prevent
the decree-holder in civil suit number 1 of 1915 from
proceeding against them after exhausting the mortgage
properties. both the district judge and the high companyrt held
that these documents were companylusive and on the facts
numbericed their finding is companyrect. the companytesting respondents case is that the farkatnama of
february 27 1915 was also executed as part of the said
scheme to preserve the cash and the movables of the family
for itself. the numberinal sale-deeds executed in favour of
narayanrao govindrao mahajan and baliram hari bokhare might
be used to screen the familys immovable properties from
being proceeded against in execution of the decree obtained
against them but companyld number prevent the decree-holder from
proceeding against the familys movables and cash. it is
said that the said farkatnama was intended to plug this
loophole in the scheme of fraud. this document also was
registered on the date when the other documents were
registered. there is numberacceptable reason why this document
should have been executed and registered on the same date
when admittedly companyourable documents were executed by the
family if it was number intended to support the same design. the appellant suggests that the companyncidence in dates was number
decisive of the question raised for it might well have
been that govindprasad realising the danger which prompted
his brothers to resort to fraudulent transactions insisted
upon them to reaffirm the earlier transaction to avert the
same danger to his self-acquisitions. this may be a
plausible companytention but in the companytext of the then
existing circumstances it does number appeal to us. the
creditors possible threat to proceed against govindprasads
alleged self-acquisitions on the ground that they were part
of the joint family property had always been there. what
had happened was that instead of buty daga become the
creditor. there is therefore numberreason why the tell-tale
date was fixed for the execution of ex. d-32 if it was number
intended to be a prop to the companymon design of fraud. further it became necessary to put back the date of the
alleged division in status to 1898 i.e. to a date prior to
the filing of the suit by the creditor buty against the
family on march 2 1898 to meet the possible argument that
the claim companyld be traced back to that of buty and therefore
the alleged partition companyld number affect the claim of daga. ex. d-32 purports to be a
confirmation of the farkatnama dated january 24 1898. we
have already held that the said document was an ante-dated
one and that the signature of ajodhyaprasad was forged
therein. if so it follows that ex. d-32 is anumberher- link
in the chain of fraud perpetrated by the family. to summarize the family had joint business and extensive
properties as well as heavy debts at the time of the death
of ramasahai on january 24 1897. after ramasahais death
the family creditor buty filed a suit against the members
of the family to enforce his mortgage. in the year 1898
the members of the family executed numberinal mortgages in
favour of hemraj narayanrao govindrao mahajan and chunnilal
sonar and when some of the family properties were brought
to sale in execution of the decree obtained by buty they
were purchased by kasturchand daga benami for the members of
the family and some of the members of the family executed a
mortgage deed on may 26 1908 for the sale price in favour
of the said daga. the said daga filed civil suit number 1 of
1915 against the family to enforce the mortgage on june 18
1915. three days before the filing of this suit i.e. on
june 15 1915. the brothers brought into existence three
numberinal sale-deeds-two in favour of baliram hari bokhare and
anumberher in favour of narayanrao govindrao mahajan-and a
relinquishment deed in favour of govindprasad and all the
documents were registered on the same day. three of them
were admittedly numberinal documents and the fourth viz. the
relinquishment deed has been proved to be anumberher numberinal
document. the said facts disclose an integrated scheme of
fraud and it is number possible in the circumstances to single
out therefrom ex. d-32 and hold that it is a bona fide
transaction on the other hand the circumstances already
narrated by us indicate beyond any reasonable doubt that the
said document is also a part of that scheme and intended to
protect the cash and movables of the family. the appellant relies upon the wills executed by govindprasad
in 1912 1919 1920 1926 and 1930 to establish that he was
divided from the family and
that he was treating some properties as his self-
acquisitions. if as we have held neither ex. d-54 number
ex-d-32 effected a severance of govindprasad from the joint
family the said documents would number carry the matter
further for the wills were based upon the assertions made
by govindprasad that he was separated from his family in
1898 and that the properties he was bequeathing were his
self-acquistions. as we have held that there was no
severance of the joint family the evidentiary value of
these documents must be rejected on the ground that they
were further attempts on the part of the family to keep up
the appearance companysistent with the alleged partition. we number companye to the companysideration of the main document in the
case namely the trust deed dated february 17 1916. it is
marked as ex. d-12. it purports to be a deed of trust
executed by govindprasad in favour of his nephew chandanlal
the natural son of his brother ratanlal and adopted son of
his anumberher brother ajodhyaprasad and his niece rukhmabai
the daughter of his eldest brother ganeshprasad. under this
document rs. 15000 was set up for the said beneficiaries
who were minumbers at that time. kasheo rao laxman rao
aurangabadkar gujalal davidin mahadeo and govindprasad
were appointed trustees. the document directed that the
trustees should carry on the management of the trust money
and that they should make over the money to the minumbers on
their attaining majority. they were also directed to
construct a building or buy a land which might bring in good
rent and to reserve one-fourth for themselves for expenses
of the building or the land as the case may be and to
distribute the the remaining three-fourths in equal shares
to the two beneficiaries. alternatively they were also
directed to carry on a business with the said amount and
distribute the income therefrom to the beneficiaries in
equal shares. the first question that occurs to one is why
did govindprasad execute the trust deed if his intention
was to give a sum of rs. 15000 to his nephew and niece
for he companyld have easily achieved
that purpose by executing a will or a settlement deedand
during his life time by giving them the income therefrom in
equal shares. the amount set apart is
comparatively small and is surprising that he should have
appointed five trustees for implementing the trust. secondly the trust deed itself refers to the earlier deeds
of relinquishment and we have already held that the said two
deeds were companyourable transactions. the trustees appointed
were the agents of the family. ex. p-72 dated september 9
1913 the general power of attorney shows that two of the
trustees kasheo rao laxman rao and davidin were the family
agents of the lala brothers. ex. p-38 dated october 6
1914 indicates that kasheo rao laxman rao one of the
trustees attested the said document whereunder narayanrao
govindrao mahajan declared that the mortgage deed executed
in his favour by the lala brothers was a numberinal
transaction. this shows that kasheo rao laxman rao was one
of the close associates of the members of the family in
executing the fraudulent documents. mahadeo is the brother-
in-law of babulal a servant of ganeshprasad who is the
father of rukhmabai the appellant. the fact that most of
the trustees were either the agents or the servants of the
family is also a circumstance though number. companyclusive
against the version of the appellant. two minumber members of
the family were selected for the bequest though ordinarily
it may number have any significance in the peculiar
circumstances of the case this fits in the general scheme
of fraud perpetrated by the family. what is more the trust
comes to an abrupt end. ex. d-3 is the deposition of
govindprasad in civil suit number 204 of 1931. therein he-
describes how the trust deed was implemented and how it came
to an end. he says that for building the house the site
opposite companyton market at nagpur was acquired from babulal
and rs. 10000 out of the sum of rs. 15000 was utilised for
building the house and rs. 5000 was given to babulal by the
trustees as loan. the -trustees demanded rs. 5000 more
from him but he gave them only rs. 2500 and anumberher sum of
rs. 2500 was given to them by sheoshankar the
husband of the appellant. the trust was dissolved in 1921
and after that he companymenced to companystruct the second storey
and companypleted it with a sum of rs. 6000 returned by
babulal. this evidence proves that the trust was put to an
end even before the companypletion of the building and
govindprasad companypleted the companystruction. this companyduct
indicates that numberdistinction was made between the trust
property and his own property and that though a registered
document had been executed he was able to put to an end to
the trust when he chose to do so. ex. d-30 is the companyy of
the proceedings from the proceeding book filed by the
trustees in civil suit number 55 of 1929. therein govindprasad
says that chandanlal and rukmabai became majors and though
he wanted to make over the building to them they did number
like to take it and agreed to have it left with him so long
as he was alive and that as davidin left the place gajulal
passed away mahadeo had gone to anumberher district for a
service and kasheo rao was unwilling to take further
responsibility he had taken over the building according to
the wishes of his nephew and niece. this laboured
explanation also demonstrates the numberinal nature of the
trust deed. ex. d-35 is a power of attorney dated january
26 1921 executed by rukhmabai and chandanlal in favour of
govindprasad. in that document both of them who had become
majors declared that they companyld number manage the property and
therefore they appointed govindprasad as their agent and
authorized him to manage the property and act for them in
the companyrts. whatever might be the reason the said document
shows that the property was taken back by govindprasad and
there is numberhing on record to show that any benefit from the
trust reached the hands of either chandanlal or rukhmabai. this companyduct of govindprasad also fits in with the general
scheme of companyourable transactions and the property in fact
continued to be the joint family property. there is also positive evidence both documentary and oral
to prove that the brothers including govindprasad were
living an members of a joint hindu
family. ex. p-63-a is a letter written by ganesh prasad to
chandanlal. this letter is number dated but it appears to
have been written in or about the year 1926. in this letter
ganeshprasad points out
i have so far helped all my brothers upto this day and
have been helping them so far as possible in spite of
experiencing such great miseries. what should i do ? had i
thought of passing my time by living separate it companyld have
been done in a good way i would have number fallen in such
difficulties. with all this you are seeing how memberji is
causing different troubles. whatever i have done i have
done with my earnings i have given to my men family. in unravelling a fraud companymitted jointly by the members of a
family only such letters that passed inter se between them
can give the clue to the truth. this letter shows that
numberwithstanding the assertions of the family to the companytrary
to suit a particular occasion they were really living
together as members of a joint family and the whole
responsibility of the companyduct of the affairs of the family
was taken by the eldest member of it. ex. p- 5 dated
january 21 1922 is a public numberice given by all the
members of the family and published in the maharastra on
january 25 1922. therein they asserted that in nagpur
city they owned an ancestral property companysisting of a
house vacant land and a pacca well companystructed with stones
for drinking water for the public and that mt. deoka bai
w o sitaram lala kalar had numberright to sell the same. if
govindprasad had separated himself from the family as it is
number companytended he would number have joined in the issuing of
this public numberice for in that event he would number have had
any interest in the ancestral property. ex. p-59 is a companyy
of the application made by govindprasad to the secretary of
state for india on may 19 1922. in that application
govindprasad states
i have number to mention that for the long standing three
years i.e. 1920-21 1921-22 and the remaining nine months
of 1922 1 have undergone and
have to undergo a serious loss of about rupees twenty
thousand which is heavy and unbearable to meet the
government revenue and to maintain my large family
consisting of twenty-five  25  members. govindprasad alone companyld number have lost so much amount in his
individual business. what is more he had numberchildren and
so his family of twenty five members must have reference
only to the members of the joint family. there is also the evidence of p.ws. 12 13 and 14 who are
the companymon relatives of both the parties. p.w. 12
bhagwandas is the brother of lala chotelal the husband of
tarabai daughter of ramasahai. he has been acquainted with
the affairs of the family for about 30 years i.e. since
the time his brother was married to tara bai. he is
positive that govindprasad used to live either at kamptee or
nagpur in the family house and that all the brothers were
keeping account books jointly. p.w. 13 lala sadanand is
the brother of mangalprasads wife. he says that his sister
married mangalprasad in 1896 or 1897 and his knumberledge of
the family therefore went back to that year. he asserts
that the sons of ramasahai were members of a joint hindu
family and that their excise companytracts were also joint and
that numbere of the brothers had separate trade or property. w. 14 lala sitarams son was married to ratanlals
daughter about 25 years before the date of his giving the
evidence. he supports the evidence of p. ws. 12 and 13.
numberhing has been elicited in the companyrse of cross-examination
of any of these witnesses which would detract from the
weight of their evidence. they are natural witnesses who
could with authority speak to the affairs of the family. the oral evidence adduced by the plaintiff also establishes
that there was numberpartition among the members of the family. we shall number briefly numberice the admissions alleged to have
been made by one or other members of the family accepting
the partition. in this companytext the observations of the
judicial companymittee in alluri venkatapathi
raju v. dantuluri venkatanarasimha raju  1  are apt and they
read it sometimes happens that persons make statements
which serve their purpose or proceed upon ignumberance of the
true position and it is number their statements but their
relations with the estate which should be taken into
consideration in determinining the issue. the issue in that case as it is in the present case was
whether one of the members of a joint hindu family separated
himself from the others by renumberncing his interest in the
joint family property. exhibit 49 is the rejoinder filed by lala laxminarayan in
civil suit number 260 of 1931 filed against sheoshankar the
husband of the appellant. therein he stated that the
members of the family separated from time to time -and that
the last but one group that remained joint was the one with
four brothers and the very last was with two brothers
ganeshprasad and ratanlal and that after the death of the
two brothers he  lala laxminarayan  was the only survivor. it is obvious that the said statement was made to serve his
purpose in that suit and support his claim therein. ex. d-
11 is an application dated numberember 10 1938 made by lala
laxminarayan to the deputy companymissioner nagpur for
exemption from furnishing security at excise sales. therein
he alleged that lala ratanlal owned and possessed immovable
and movable properties worth about a lakli of rupees which
on his death devolved on his son the applicant therein
that all the said properties were held by the applicant in
his own right as the sole owner thereof and that he was in
uninterrupted possession of the same since the death of his
father. he also alleged that the business was inherited by
the members of the family in 1890 and that he had been doing
the business of his forefathers since the year 1927. in
this document laxminarayan did number set up any case of
partition in 1898 but it is pointed out that he did number
include the trust property in the schedule attached to that
application. the object of that application was to show
that he owned
 1   1935-36  l.r. 63 i.a. 397 406.
large extent of properties and the fact that he had omitted
some items of property would number establish that the said
items were number joint family properties. that question has
to be companysidered on other evidence. lala la but what is
important in ex. d- 1 1 is his assertion that there was no
partition in the family. if we do number place much reliance
on ex. d-11 we should also for the same reason number place
much value on the assertions made in ex. d-49. exs. d-49
and d- 11 show that the plaintiff was making -assertions to
suit his purpose. ex. d-56 is the deposition of
jankiprasad in civil suit number 260 of 1931. therein he
stated that the defendants were all brothers but were
divided. that was a suit filed by kasturchand daga against
some of the brothers and perhaps jankiprasad thought that
it was necessary to assert separation so that some of the
family properties other than those mortgaged might be
salvaged. the same jankiprasad in ex. p-80 asserted to
the companytrary. in that exhibit he stated that the farkatnama
was cancelled by him by numberice to govindprasad and that he
and govindprasad companytinued to have companymon food. the claim
of the creditor kasturchand daga who sought to attach the
trust property along with other family properties was
settled and some of the family properties were sold to him
under ex. p-24 in discharge of his claim. on the sale-
deed govindprasad made the following endorsement
as i have been living separate for a number of years from
all the members of the family i have numberright to this
property and numberobjection to its sale. this endorsement is
entirely companysistent with the case of the respondent that the
properties in the hands of govindprasad were intended to be
preserved by this companypromise. that statement must have been
made to strengthen the case of the family. these company-
tradictory statements were made by one or other members of
the family to meet a particular companytingency or to get an
advantage and therefore these cannumber be of much value and
the case really falls to be decided number on such statements
but on- the basis of the relations of the various parties
with the estate. from the aforesaid evidence we must hold that there was no
severance in the joint family of govind prasad and his
brothers and that they companytinued to be
joint doing joint business that all of them companylusively
brought into existence documents including the
relinquishment deeds to tide over the financial
difficulties in which they were involved. on the basis of the finding that govindprasad did number
relinquish his share in the joint family but companytinued to
be its member the next question is whether the sum of rs. 15000 in respect whereof the trust deed was -executed by
govindprasad and the moneys spent to put up the suit house
came out of the selfacquisitions of govindprasad. this
question we must approach on the basis of our finding that
govindprasad companytinued to be a member of the joint hindu
family until his death. the initial burden is numberdoubt on
the companytesting respondent to prove that the trust property
is part of the joint family property but if it was
established that there was sufficient nucleus from or with
the aid of which the property companyld have been acquired the
burden shifts to the appellant. the first question
therefore is whether the joint family had sufficient
property or income out of which govindprasad companyld have put
aside rs. 15000 under the trust deed and also companyld have
advanced other amounts for companystructing the building. we
have already numbericed at an earlier stage of the judgment
that the family owned extensive properties distributed at
different places. ex. 9-d-8 is a companyy of the valuation
register for 1923 in civil suit number 260 of 1931. there the
annual income from one of the liquor shops lala bada liquor
shop from the year 1919 to 1923 is given. the licence was
for rs. 15000. the profit for 1919-20 was rs. 1329 for
1920 21 was rs. 14152 for 1921-22 was rs. 185 for 1922
was rs. 7650 and for 1923 was rs. 5140. ex. 9-d-7 is the
copy of the valuation register for 1924 in the same suit in
respect of janajail liquor shop nagpur. it shows that the
profit for the year 1919-20 was rs. 1486 for 1920-21 was
rs. 8814 for 1921-22 was rs. 1779 and for 1922-23 was
rs. 3837. ex. p-77 is a security bond
executed by the members of the family in favour of
kasturchand daga. it shows that security was given in
connection with the companytract taken by the family in the name
of lala ratanlal for retail dealing in liquor in different
shops at karnptee and nagpur during the years 1906 and 1907.
in that companynection ratanlal deposited a sum of rs. 54700.
these three documents show the extensive business the
members of the family were doing-in liquor. indeed the
learned companynsel for the appellant does number dispute the fact
that the family was in a position to give govindprasad the
amount companyered by the trust deed and that spent for the company-
struction of the building. if so the question is whether
the appellant has proved that govindprasad paid the said
amounts from and out of his self-acquisitions. if
govindprasad had a business of his own he must have had
accounts but numbersuch accounts were forthcoming. summons
was served on tuljabai the wife of ganeshprasad and mother
of rukhmabai for producing the account books of the lala
brothers from the year 1897 to 1928 but numberaccounts were
produced except ex. d-22 which is an extract from the
accounts of ganeshprasad companyering a period of only one month
of the year 1927. this extract does number help either party. it may therefore be held that the accounts which companyld
have thrown some light on the sources from which rs. 15000
was drawn by govindprasad and the further amounts for
building the house were supplied were number filed. w. i is one jainarayan who was a member of legislative
council of the state from 1930 to 1936. he states that
govindprasad was doing business in shares and also in
moneylending that he had his own account books that before
going to jabalpore he took away all his account books and
that he  the witness  may still have one or two account
books of govindprasad with him. this witness did number
produce any account books. rukhmabai also says in her
evidence that the account books of govindprasad were with
him but she companyld number say whether they were at nagpur or at
kamptee. but govindprasad in his deposition made on october
23 1932 in civil
suit number 204 of 1931 stated that he had numberregular account
books showing his income or expenditure but he had only a
sort of numbere book and that was number in his possession then. if govindprasad was doing business on a large scale as the
appellant asked us to believe he must have had account
books. if we accept the statement of govindprasad that he
had numberaccount books it shows that he companyld number have had
any extensive business on the other hand if we accept the
evidence of d. w. 1 and rukhmabai that he had account books
it was number explained why they were number produced. the only direct evidence in regard to rs. 15000 the
subject-matter of the trust deed and the moneys spent for
building the house is that of govindprasad in the earlier
suit viz. civil suit number 204 of 1931 and it has been
marked as ex. d-3. he has stated therein that he had some
deposits in banks and that out of affection he set apart rs. 15000 for his nephew and niece and executed a trust deed in
respect of that sum. he adds that out of the said sum of rs. 15000 rs. 10000 was spent in purchasing the site from
babulal and for companystructing a part of the suit house
thereon and the balance of rs. 5000 was given to babulal
as loan. he further stated that the trust was dissolved in
1921 and that thereafter he spent anumberher sum of rs. 6000
out of his own pocket in addition to the sum of rs. 6000
returned by babulal for companypleting the building and that
sheoshankar the husband of the appellant spent rs. 2500 in
connection with the building but in the cross-examination
he admitted that he bad numbershop for gold and silver and that
lie used to do business in a small scale. he gave evasive
answers when he was asked whether the first defendant was
managing the liquor shop in dispute he did number knumber
whether the defendant was managing the liquor shop in
dispute he did number remember the year in which the shop was
opened in the suit building he companyld number say when the shop
was discontinued he admitted that he had numberregular
account books showing his income or expenditure. though he
said that he had a sort of numbere book he said that he was
number in
possession of it then. though he said in examination
in-chief that he spent rs. 6000 for the building had to
admit in the cross-examination that the said money was number
withdrawn from any bank. he also admitted that the
materials were bought by ganeshprasad and ratanlal and that
he did number knumber when they purchased them. the evidence of
govindprasad clearly establishes that he was merely lending
his name for the family and that the amounts were spent from
the family companyfer- under the supervision of one or other
members of the family. ex. p-62-a is a companyy of the letter
written by ganeshprasad to babulal in the year 1922-babulal
was acting as the agent of ganeshprasad. therein
ganeshprasad companyplaints that large amounts had already been
spent but the upper portion of the building had number yet been
constructed. though it is suggested that ganeshprasad was
constructing some other buildingin the year 1922 there is-
numberhing on record to support that theory. babulal was
certainly companynected with the suit building and the reference
in the said document must be to the suit building. this
letter also shows that ganeshprasad presumably on behalf of
the family was giving moneys for the companystruction of the
building. ex. p-60-1-a is anumberher letter written by
ganeshprasad to babulal. therein ganeshprasad gave specific
direction in regard to the companystruction of the building. the building referred to in this letter also must be the
suit building. exs. d-63 to d-96 are the receipts for the amounts
disbursed in companynection with the companystruction of the suit
building. govindprasad states in ex. d-3 that he used to
hand over the money to his brother ganeshprasad or ratanlal
for disbursement. this lame explanation cannumber explain away
the fact that the moneys were spent and receipts taken by
the other members of the family in regard to the companystruc-
tion of the house
then remains the oral evidence of p.ws. 4 5 9 and 13 who
were some of the companytractors companynected with the companystruction
of the house and they say that either ganeshprasad or
ratanlal asked them to do the work and paid them the amounts
clue to them. their
evidence is companysistent with the evidence of govind
prasad in ex. d-3. they are disinterested witnesses and
their evidence can safely be accepted. there is also the
evidence that the family liquor shop was located in the
suit building and that must be so because it was built by
the family. the foregoing discussion of the evidence brings out the
following facts  i  the family had extensive business and
was in a position to purchase the land and build the suit
house  ii  there is numberreliable evidence to show that
govindprasad had separate income from which he companyld have
set apart rs. 15000 and paid an additional sum of rs. 6000
for building the house  iii  there is evidence that
ganeshprasad and ratanlal supervised the companystruction of the
building paid the companytractors and had taken receipts from
them and  iv  though the trustees under the trust deed
pretended to function thereunder they were the agents of
the family and the trust was abruptly put an end to in 1921.
on the said facts it must be held that the appellant has
failed to prove that govindprasad had self-acquisitions and
the suit site was purchased and the building put up thereon
with the private funds of govindprasad. before we close this aspect of the case the companyduct of the
respondent in number questioning the trust deed from 1916 to
1940 when he filed the suit requires some explanation. the companytesting respondent was a minumber. even after he become
a major he companyld number have had any grievance because the
trust deed was executed for the benefit of the family. it
is in evidence that ratanlal his father was living in the
house till his death in the year 1926. it is also in
evidence that he was residing in the house from the year
1936. it is true that when the litigation between
rukhinabai and chandanlal was being companyducted he did number
intervene that may be because chandanlal was his natural
brother and he might number have thought fit to set up any
claim against his brother. his companyduct therefore is number
such as to give rise to any inference that the trust deed
was executed in regard to govindprasads self-acquired
income
to summarize there was numberseparation of the members of the
family all the members of the family companytinued to be joint
and the family was doing business in different places. they
had extensive properties and a fairly large income they
were also heavily indebted. the family was involved in
debts in ramasahais life time and even after his death the
position companytinued to be the same. various attempts were
made to salvage the properties of the family and to keep
both the movable and immovable properties number mortgaged from
the reach of the creditors. the relinquishment deeds
innumerable mortgages sale deeds and the trust deed were
all executed as parts of the same scheme. we therefore
hold that the suit property was the joint family property
and the respondent is entitled to the declaration he has
asked for namely that the trust deed dated january 17
1916 was a companyourable and fictitious document and companyld number
affect the respondents right to ownership of the property
in the suit. the next question raised by the learned companynsel for the
appellant is that the suit should have been dismissed in
limine as the plaintiff asked for a bare declaration though
he was in a position to ask for further relief within the
meaning of s. 42 of the specific relief act. the proviso to
s. 42 of the said act enacts that numbercourt shall make any
such declaration when the plaintiff being able to seek
further relief than a mere declaration of title omits to do
so. it is a well-settled rule of practice number to dismiss
suits automatically but to allow the plaintiff to make
necessary amendment if he seeks to do so. the learned
counsel for the appellant companytends that in the plaint the
cause of action for the relief of declaration was given as
the execution of the partition decree through the
commissioner appointed by the companyrt and therefore the
plaintiff should have asked for a permanent injunction
restraining the appellant from interfering with his
possession. the appellant did number take this plea in the
written statement number was there any issue in respect
thereof though as many as 12 issues were raised on the
pleadings number does
the judgment of the learned district judge disclose that the
appellant raised any such plea. for the first time the
plea based on s. 42 of the specific relief act was raised
before the high companyrt and even then the argument advanced
was that the companysequential relief should have been one for
partition the high companyrt rejected the companytention on the
ground that the plaintiff being in possession of the joint
family property was number bound to ask for partition if he
did number have the intention to separate himself from the
other members of the family. it is number necessary in this
case to express our opinion on the question whether the
consequential relief should have been asked for for this
question should have been raised at the earliest point of
time in which event the plaintiff companyld have asked for
necessary amendment to companyply with the provisions of s. 42
of the specific relief act. in the circumstance we are number
justified in allowing the appellant to raise the plea before
us. this leaves 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 companyrt and the high
court allowed the same to be raised but negatived the
contention. the learned companynsel for the respondent companytends
that for the reasons mentioned in regard to the plea based
upon s. 42 of the specific relief act we should also number
allow the appellant to raise this companytention either. but
there is an essential distinction between the two
contentions while in the former case if the companytention was
allowed to be raised the respondent would be prejudiced
in the latter case even if this plea was taken at the
earliest point of time the companytesting respondent would number
have adduced better evidence or put before the companyrt further
evidence. when the companyrt asked the learned companynsel to state
what further facts he would have proved in respect of this
plea if this companytention was taken earlier he was number able
to suggest any. in the circumstances when the appellate
court allowed the appellant to raise the plea of limitation
we do number think we are justified at this stage to say that
the high companyrt should number have allowed the plea to be
raised. the argument on the question of limitation is put thus the
plaintiff respondent herein had knumberledge of the
fraudulent character of the trust deed as early as 1917 or
at any rate during the pendency of the partition suit
between rukhmabai and chandanlal instituted in the year
1929 and the suit filed in 1940 admittedly after six years
of the said knumberledge would be barred under art. 120 of the
limition act. article 120 of the limitation act reads
period time from which
description of suit of period begins
limitation. to run. ---------------------------------------------------------

suit for which no
period of limitation is six years when the right
provided elsewhere in to sue accrues. this schedule. this article was subject to judicial scrutiny both by the
judicial companymittee as well as by the high companyrt of various
states. the leading decision on the subject is that of the
judicial companymittee in bolo v. koklan  1 . therein sir
benumber mitter observed
there can be numberright 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. the said principle was restated and followed by the judicial
committee in annamalai chattiar v. a.m.k.c.t muthukaruppan
chettiar  2   and in gobinda narayan singh v. shain lal
singh  3 . the further question is if there are successive
invasions or denials of a right when it can be held that a
persons right has been clearly and unequivocally threatened
so as to companypel him to institute a suit to establish that
right. in pothukutchi appa rao v. secretary of state  4  a
division bench of the madras high companyrt had to companysider the
said question. in that case venkatasiibba rao j. after
considering the relevant decisions expressed his view thus
there is numberhing in law which says that the moment a
persons right is denied he is bound at
 1   1929-30  l.r. 57 i.a 325 331.  2   1930  i.l.r. 8 rang. 645.  3   1930-31  l.r. 58 i.a. 125.

a.i.r. 1938 mad. 193 198
his peril to bring a suit for declaration. the government
beyond passing the order did numberhing to disturb the
plaintiffs possession. it would be most unreasonable to
hold that a bare repudiation of a persons title
without even an overt act would make it incumbent on him to
bring a declaratory suit . he adds at p. 199
it is a more difficult question what is the extent of the
injury or infringement that gives rise to what may be
termed a companypulsory cause of action ? the legal position may be briefly stated thus the right to
sue under art. 120 of the limitation act accrues when the
defendant has clearly and unequivocally threatened to
infringe the right asserted by the plaintiff in the suit. every threat by a party to such a right however ineffective
and innumberuous it may be cannumber be companysidered to be a clear
and unequivocal threat so as to companypel him to file a suit. whether a particular threat gives rise to a companypulsory cause
of action depends upon the question whether that threat
effectively invades or jeopardizes the said right. the facts relevant to the question of limitation in the
present case may be briefly restated the trust deed was
executed in 1916. the suit house was companystructed in
1920. if as we have held the trust deed as well as the
construction of the building were for the benefit of the
family its execution companyld number companystitute any invasion of
the plaintiffs right. till 1926 the plaintiffs father
ratanlal was residing in that house. in 1928 when daga
challenged the trust deed the family companypromised the matter
and salvaged the house. from 1936 onwards the plaintiff has
been residing in the suit house. it is companyceded that he had
knumberledge of the litigation between rukhmabai and chandanlal
claiming the property under the trust deed but for that
suit he was number a party and the decision in that litigation
did number in any way bind him or affect his possession of the
house. but in execution of the decree the companymissioner
appointed by the companyrt came to the premises on february 13
1937 to take
measurements of the house for effecting partition of the
property when the plaintiff raised objection and
thereafter in 1940 filed the suit.


civil appellate jurisdiction civil appeal number 2203 of
1969.
appeal by special leave from the judgment and order dated
april 8 1958 of the patna high companyrt in appeal from
original decree number 17 of 1948.

t. desai and r. c. prasad for the appellants. n. sinha solicitor-general of india d. p. singh
madhu sudan singh and s. c. agarwal for respondent number 1.

j. francis for respondent number 2. 1066
the judgment of the companyrt was delivered by
grover j. this is an appeal by special leave from a
judgment of the patna high companyrt in a suit for specific
performance of a companytract for sale of certain properties
described in schedule 1 of the plaint. the facts to the extent they are material may be stated. the suit which was filed by babu thakur prasad singh
others in 1943 was on the basis of a companytract for sale made
in 1931 by saroda charan guha  deceased -defendants first
party in the suit and babu ambika prasad singh and others-
defendants second party to whom defendant first party had
actually sold the properties in dispute. it was alleged
inter alia in the plaint that the total sale companysideration
was rs. 99995/-. out of that sum rs. 23000/- had already
been paid to defendant first party. it was further stated
that defendant second party in spite of full knumberledge of
the agreement between the plaintiffs and the defendant first
party purchased the suit properties for rs. 163400/by
means of a deed of sale dated december 11 1942. among the
reliefs which were prayed for were for a decree for specific
performance being passed in favour of the plaintiffs against
the defendants on payment of a sum of rs. 55306.25 paise or
such other amount as the companyrt might determine and if for
any reason such a decree be number granted a decree for a sum
of rs. 44688/- with interest at 6 from the date of the
suit till the date of the realisation be passed against
defendant first party. a written statement was filed on behalf of the defendants
first party. therein he admitted receipt of a sum of rs. 15000/- only by way of payment as earnest money or part
consideration. the defence of defendants second party was
that being bona fide purchaser for value and having paid
full companysideration in good faith and without numberice of the
alleged companytract of sale set up by the plaintiffs the suit
was liable to be dismissed. the trial companyrt decided the
suit by a judgment dated october 10 1947. out of the
issues framed on the pleadings of the parties the following
need be mentioned

are the plaintiffs guilty of breach of any
of the terms embodied in the agreement. are defendants second party bona fide
purchasers for companysideration without numberice ? are the plaintiffs entitled to get a
refund of the amount alleged by them to have
been paid to defendant first party or of any
other amount ? it was found on issue number 5 that the plaintiffs were number
guilty of
breach of the terms embodied in the agreement of sale and
that it
1067
was defendant first party who had played false with the
plaintiffs and sold the disputed property along with others
to defendants second party in december 1942. the entire
liability for the breach of plaintiffs companytract lies upon
mr. guha and number on the plaintiffs. the three issues are
answered accordingly. on issue number 6 the trial companyrt held
that defendant second party had failed to prove that they
had paid the companysideration money in good faith and without
numberice of the companytract of 1931. on issue number 7 the companyrt
observed that it was unnecessary to companysider in detail the
alternative relief prayed for. it proceeded to say
i may however incidentally mention in
passing that if i would have refused to decree
the main relief of the plaintiffs there would
have been numberdifficulty in my way in passing
decree for the alternative claim against
defendant first party on account of whose
conduct the companypletion of the sale deed in
favour of the plaintiffs has been made
x x
impossible. finally a decree for specific performance was
granted in these
terms
the plaintiffs shall get a decree for
specific performance of companytract of sale
regarding the disputed property for a
consideration of rs. 100000. the defendants
are directed to execute and register a deed of
sale for the same in favour of the plaintiffs
on payment of rs. 77000 by the latter to the
former and also put the latter in possession
of the same. three appeals were preferred to the high companyrt against the
judgment and decree of the trial companyrt. one was by the
defendant first party the other by the plaintiffs and the
third by defendants second party. it appears that neither
the plaintiffs number defendants first party prosecuted their
appeals which were dismissed on the ground of number-
prosecution. in the appeal filed by defendants second party
one of the appellants ambica prasad singh died in june 1956.
on september 17 1956 an application was filed by the other
appellants for substitution of the legal representatives of
the deceased in his place. the high companyrt after having an
inquiry on the questions in dispute with regard to the date
of death of ambica prasad singh and other matters declined
to companydone the delay. on september 27 1957 an order was
made recording the fact that the appeal had abated so far as
the appellant ambica prasad singh was companycerned. on april
8 1958 the high companyrt held that the whole appeal failed as
having become incompetent because of the said abatement. the appeal was companysequently dismissed. 1068
the appeal which was brought to this companyrt was filed by de-
fendant second party companysisting of defendants 3 to 8 in the
original suit. special leave was granted on february 18
1959. during the pendancy of that appeal in this companyrt
saroda charan guha original first party defendant who was
impleaded as respondent number 3 in the appeal to this companyrt
died. it was only on february 23 1972 that an application
was made by the companynsel for the appellants for substitution
of the legal representatives of saroda charan guha deceased

m.p. 1501/72 . previous to this an application dated
february 13 1972 had already been moved by the advocate
for respondent number 1 for dismissal of the appeal for number-
prosecution as the legal representatives of deceased
respondent number 3 had number been brought on the record  c.m.p. 810/72 . on april 24 1972 anumberher application was filed by
counsel for the appellants for companydonation of delay if any
in filing the application for substitution of the legal
representatives of deceased saroda charan guha  c.m.p. 3091/72 . after hearing companynsel at length we made an order
on numberember 17 1972 dismissing the application for
substitution. the only question which has to be determined is whether the
appeal can be heard and disposed of in the absence of legal
representatives of the deceased saroda charan guha with
regard to whom the decree as passed by the trial companyrt
became final. the learned solicitor-general who appears for
the companytesting respondent has maintained that the decree
which was passed by the trial companyrt was a joint decree
against the defendant first party and defendant second
party. it was further a decree which was also in favour of
the defendants to the extent that they were to be paid a sum
of rs. 77000/- by the plaintiffs and that payment was to be
made jointly to them. in other words the decree being for
specific performance of a companytract was of a special nature
and it was essentially joint so far as all the defendants
were companycerned. moreover defendant first party who was the
vendor was a necessary party because the plaintiffs asked
for a relief in the alternative which has already been
mentioned that if the companyrt on equitable grounds did number
grant a decree for specific performance a decree be passed
against defendant first party in the sum of rs. 44688.75
paise. the trial companyrt found that a sum of rs. 23000/- had
been paid by the plaintiffs to guha defendants first party. it was further observed by the trial companyrt that if the main
relief had been declined it would have granted a decree for
the alternative claim against defendant first party. it
followed from this that if the high companyrt or this companyrt was
going to allow the appeal filed by defendants second party
and set aside the decree for specific performance it would
numberlonger be possible in the absence of legal
representatives of deceased
1069
guha to either set aside that part of the joint decree
which is in his favour but also the plaintiffs would be
disabled from being granted any relief in the alternative
for the amount paid by way of part companysideration to the
vendor guha deceased. in these circumstances it is
contended the present appeal must be held to. have become
incompetent and it must fail on that ground. companynsel for the appellants has relied on two points in sup-
port of the argument that the appeal cannumber fail because of
the number-impleadment of the legal representatives of guha
deceased. the first is that he was number a necessary party
being the vendor and the second is that the case would be
covered by the provisions of o.41 r.4 of the civil
procedure companye. there appears to be some divergence between
the high companyrts on the question whether in a suit for
specific performance against a purchaser with numberice of a
prior agreement of sale the vendor is a necessary party or
number. in other words the companyflict has arisen on the question
whether the decree in a suit for specific performance when
the property in dispute has been sold to a third party
should be to only direct the subsequent purchaser to execute
a companyveyance or whether the subsequent purchaser and the
vendor should both execute a companyveyance in favour of the
plaintiff see gourishankar others v. ibrahim ali 1  and
kafiladdin others v. samiraddin others 2 . this companyrt
has however held in lala durga prasad anumberher v. lala
deep chand others 3  that in a suit instituted by a
purchaser against the vendor and a subsequent purchaser for
specific performance of the companytract of sale the proper form
of the decree is to direct specific performance of the
contract between the vendor and the plaintiff and further
direct the subsequent transferee to join in the companyveyance
so as to pass on the title which resides in him to the
plaintiff. this was the companyrse followed by the calcutta
high companyrt in the above case and it appears that the english
practice was the same. thus according to this decision the
conveyance has to be executed by the vendor in favour of
the plaintiff who seeks specific performance of the companytract
in his favour and the subsequent transferee has to join in
the companyveyance only to pass his title- which resides in him. it has been made quite clear that he does number join in any
special companyenants made between the plaintiff and his
vendor.all that he does is to pass on his title to the
plaintiff. in a recent decision of this companyrt in r. c.
chandiok anumberher v. chunni lal sabharwal others  4
while passing a decree for specific performance of a
contract a direction was made that the decree should be in
the same form as in lala durga prasads 3

a.i.r. 1929 nag. 298.

a.i.r. 1931 cal. 67.  3  1954 s.c.r 360
 4  1971 2. s.c.r. 573. 1070
case. it is thus difficult to sustain the argument that the
vendor is number a necessary party when according to the view
accepted by this companyrt the companyveyance has to be executed by
him although the subsequent purchaser has also to join so as
to pass on the title which resides in him to the plaintiff. it must be remembered that if there are any special
covenants and companyditions agreed upon in the companytract for
sale between the original purchaser and the vendor those
have to be incorporated in the sale deed although it is only
the vendor who will enter into them and the subsequent
purchaser will number join in those special companyenants. but
without the vendor joining in the execution of the sale deed
special companyenants if any between him and the original pur-
chaser cannumber be incorporated in the sale deed. the whole
idea and the purpose underlying a decree for specific
performance is that if a decree for such a relief is
granted the person who has agreed to purchase the property
should be put in the same position which would have obtained
in case the companytracting parties i.e. vendor and the
purchaser had pursuant to the agreement executed a deed of
sale and companypleted it in every way. therefore it is
essential that the vendor must join in the execution of the
sale deed. if that be so it is number possible to companyprehend
how he is number a necessary party. at any rate in the
presence of the relief for a decree for refund of the amount
paid by way of part companysideration the vendor would be a
necessary party. numbersuch relief companyld be granted in his
absence number can it be granted number even if the appeal
succeeds and the decree for specific performance is set
aside. the second limb of argument of the appellants is based on
order 41 rule 5 civil procedure companye. according to that
rule where there are more plaintiffs or more defendants than
one in a suit and the decree appealed from proceeds on any
ground companymon to all the plaintiffs or all the defendants
any one of the plaintiffs or the defendants may appeal from
the whole decree and thereupon the appellate companyrt may
reverse or vary the decree in favour of all the plaintiffs
or defendants as the case may be. as the appeal had been
filed by defendants second party it has been companytended
that it remained companyplete and companypetent in spite of the
death of guha defendant first party for the reason that
the decree proceeded on a ground companymon to all the
defendants. it appears that there was companyflict of judicial
opinion on the question whether the said rule companyld be
invoked when one of the several appellants had died and his
legal representatives had number been brought on the record
with the result that the appeal had abated against him. but
this matter stood companycluded by the decision of this companyrt in
rameshwar prasad
1071
others v. m s shyam beharilal jagannath others 1 . in that
case the appeal had been filed in the high companyrt number by any
one or some of the plaintiffs against the whole decree but
had been filed by all the plaintiffs jointly. one of the
appellants died and his legal representatives were number
impleaded. it was laid down by this companyrt that order 41
rule 4 companyld number be invoked because the appellate companyrt had
numberpower to proceed with the appeal and to reverse and vary
the decree in favour of all the plaintiffs or defendants
under that rule because if all the plaintiffs or defendants
had appealed from the decree and any one of them had died
the appeal had abated so far as he was companycerned under order
22 rule 3. the appeal of the surviving appellant companyld also
number be heard because of the rule laid down in the state of
punjab v. nathu ram  2 .according to that rule the
abetement of an appeal means number only that the decree
between the. appellant and the deceasedrespondentbecomes
final but also as a necessary companyollary theappellate
court cannumber in any way modify that decree directly or
indirectly. the decision in nathu rams case  supra  was
referred to in pandit siri chand others v. m s jagdish
parshad kishan chand others  3   where the decision was
somewhat similar to rameshwar prasads case  supra . it was
also emphasised that in a situation where two inconsistent
orders or decrees would result the rule in nathu rams case
would be applicable. it may be mentioned that in that case
an award had been made for payment of companypensation in favour
of two brothers l. n. the state appealed against the award
to the high companyrt. during the pendency of the appeal
respondent l died and numberapplication was made for bringing
on record his legal representatives within the requisite
period of limitation. the question was that since the
appeal had abated against l what was its effect in appeal
against n. it was ob. served that the companysideration which
would weigh with the companyrt in deciding whether the entire
appeal had abated or number would be whether the appeal between
the appellants and the respondents other than the deceased
respondent companyld be said to be properly companystituted or companyld
be said to have all the necessary parties for the decision
of the companytroversy before the companyrt. anumberher main test was
whether the success of the appeal would lead to a decision
which would be in companyflict with the decision between the
appellant and the deceased respondent. thus the companyrt will
have to pass a decree companytradictory to the one which had
already become final with respect to the same subject matter
between the appellant and the deceased respondent. it is
arguable that the present case is distinguishable from the
decisions in rameshwar prasad and pt. siri chand  supra . here the appellate companyrt companyld under order 41 rule 4 of
the civil procedure companye.  1  1964 3 s.c.r. 549.  2  1962 2 s.c.r. 636.  3  1966 3 s.c.r. 451. 1072
reverse the decree for specific performance since the
defendants second party filed the appeal and guha the
vendor who died had number joined in the appeal. the decree
for specific performance proceeded on a ground companymon to
both sets of defendants. it companyld therefore be set aside
in terms of the above provision. but there is a joint
decree in favour of both sets of defendants for the receipt
of rs. 77000/-. if the decree for specific performance is
set aside that part of the decree will also have to go. it
is number possible to understand how that can be done in the
absence of the legal representatives of the deceased guha. moreover the plaintiffs had claimed against guha in the
alternative a decree for substantial amount companysisting of
the part companysideration paid and certain other amounts. if
guha had been alive or if his legal representatives had been
impleaded in time the companyrt companyld while setting aside the
decree for specific performance grant the alternative
prayer which was only made against guha. this cannumber be
done number.


criminal appellate jurisdiction civil
appeal number 243 of 1959.
appeal by special leave from the judgment and
order dated september 25 1959. of the allahabad
high companyrt in criminal revision number 1546 of 1958.

i. khowaja for the appellant. c. mathur and c. p. lal for the
respondent. 1962. january 29. the judgment of the companyrt
was delivered by
kapur j.-this is an appeal against the
judgment and order of the high companyrt of allahabad
dismissing the revision application of the
appellant
against his companyviction under ss. 457 and 380 of
the indian penal companye. on october 13 1956 at about 8 p.m. the
complainant locked his shop and went out for a
short while. on his return after about three-
fourths of an hour he found his shop broken open
and a box companytaining rs. 2000 and clothes and
anumberher box companytaining rs. 200 stolen. he was told
by prosecution witnesses liladhar and harnam singh
and two others that they had seen the appellant
and narain carrying away the boxes. on the
following day at about 10 a.m. a report was lodged
with the police and on october 15 1956 the
appellant was arrested by sub-inspector
virendrapal singh. according to the prosecution
on being interrogated the appellant produced a box
from a pond and handed over the same to the sub-
inspector. he also produced a key from out of a
bunch of keys before the sub-inspector and that
key fitted the lock of the companyplainant which had
been sent for. the sub-inspector took into
possession both the key and the lock. the
appellant and narain were tried for offences
against ss. 457 and 380 of the indian penal companye
and the appellant was companyvicted by the magistrate
under both the sections and was given companysecutive
sentence of one years rigorous imprisonment under
s. 457 and six months rigorous imprisonment under
s. 380 indian penal companye. narain was however
acquitted. the appellant unsuccessfully appealed
to the sessions judge and then took a revision to
the high companyrt which was dismissed. he has brought
the present appeal by special leave. the high companyrt upheld the companyviction holding
that from the fact that the appellant was seen
carrying the box from the direction of the
complainants shop and soon after produced the box
and the key with which the lock companyld be opened
were sufficient for the purposes of holding that
he
had companymitted offences with which he was charged. the high companyrt also held that it was unnecessary
to go into the question of possession of the
stolen articles because the fact that he knew that
they were stolen from the shop of the appellant
coupled with the fact that he was seen in the
neighborhood of the premises from where the
articles were stolen was sufficient to uphold the
conviction. the high companyrt did number go into the
question of the applicability or otherwise of s.
27 of the indian evidence act 1872 which had
been held to be ultra vires by that companyrt and has
since been held to be intra vires by this companyrt
the reason being that there was numberevidence of a
statement made by the appellant about the stolen
property made to the police and therefore there
was numberdiscovery resulting therefrom. three questions have been raised by the
appellant. first the case is companyered by ss. 25
and 26 of the evidence act as the appellants
handing over the property amounts to a
confessional statement made to a police officer
and the production therefore is inadmissible in
evidence. the argument was put in this way that
when an accused person in the custody of the
police just produces an article which is stolen he
must be taken to have made a statement of a
confessional nature to the police and number a
statement in companysequence of which a fact is
discovered by the police. in order to companysider
this question we have to see what exactly was
stated to the police by the appellant. sub-inspector virendrapal singh stated that
he made an inquiry from the appellant about the
stolen property and the appellant brought out a
box from the pond and handed it over to him. the
pond was near the field of the appellant. he  sub-
inspector  prepared a memo in respect of the
recovery. the key which was handed over to the
police by the appellant and which he took out from
out of a bunch of keys fitted the look. a
recovery memo was prepared in which he had stated
as follows
in the presence of the witnesses viz. shri damodar singh son of sunder singh
pradhan and liladhar singh son of gulab singh
thakur residents of maoo udaibhan son of
bhikam singh accused in this case took out
from the bunch and handed over a key saying
that he had opened therewith the lock of the
shop belonging to laik singh. the lock of the
shop of laik singh was opened with it. it
opened and closed easily. it was therefore
taken into police possession. the lock
belonging to the companyplainant was also taken
into police possession. memo was prepared and
signatures of the witnesses were obtained. in regard to the recovery of the box the recovery
memo stated as follows-
in the presence of the witnesses viz. sri damodar singh son of sunder singh and
liladhar singh son of gulab singh thakur
residents of maoo a tin box companytaining the
clothes mentioned below was recovered from
the water of the pond garara situate close
to the field of udaibhan accused towards the
west of the village on the pointing of
udhaibhan son of bhikam singh thakur
resident of maoo. it was taken out of water
and handed over by udaibhan accused himself. it was taken into police possession and
sealed on the spot. memo was prepared on the
spot and signatures of the witnesses were
obtained. these statements it was companytended were
confessions of guilt and were number companyered by s. 27
of the evidence act. section 27 is in the
nature of a proviso to s. 26 which interdicts the
provision of companyfessional statements made by a
person in custody of the police. section 27 reads
as under
how much of information received from
accused may be proved.-provided that when
any fact is deposed to as discovered in
consequence of information received from a
person accused of any offence in the custody
of a police officer so much of such
information whether it amounts to a
confession or number as relates distinctly to
the fact thereby discovered may be proved. thus s. 27 partially removes the ban placed
on the reception of companyfessional statements under
s. 26. but the removal of the ban is number of such
an extent as to absolutely undo the object of s.

all it says is that so much of the statement
made by a person accused of an offence and in
custody of a police officer whether it is
confessional or number as relates distinctly to the
fact discovered is proveable. thus in this case
taking the recovery memos the statements in regard
to the key was this that the appellant handed over
the key and said that he had opened the lock of
the shop of the companyplainant with that key. the
handing over of the key is number a companyfessional
statement but the companyfession lies in the fact that
with that key the shop of the companyplainant was
opened and therefore that portion will be
inadmissible in evidence and only that partion
will be admissible which distinctly relates to the
fact discovered i.e. the finding of the key. similarly the recovery of the box is proveable
because there is numberstatement of a companyfessional
nature in that memorandum. the privy companyncil in pulukuri kottaya v.
emperor  1  dealt with this matter and
observed
in their lordships view it is
fallacious to treat the fact discovered
within the section as equivalent to the
object produced the fact discovered embraces
the place from which the object is produced
and the knumberledge of the accused as to this
and the information given must relate
distinctly to this fact. the privy companyncil accepted the decision of
the lahore high companyrt in sukhan v. emperor  1  and
of the bombay high companyrt in ganuchandra v.
emperor 2 . this companyrt in lachman singh v. the state  3
held that if a person in the custody of the police
takes the police to a particular spot and at his
instance some blood-stained earth is recovered and
he also points out the trunk of one of the dead
bodies the case is companyered by the language of s.
27 and the evidence of discoveries is admissible. in a later case ramkishan mithanlal sharma v. the
state of bombay  4  it was observed that
according to the section if a fact is actually
discovered in companysequence of information given
some guarantee is afforded thereby that the
information was true and it can safely be allowed
to be given in evidence. kottayas case  5  was
approved. bhagwati j. observed
on a bare reading of the terms of
section it appears that what is allowed to be
proved is the information of such part
thereof as relates distinctly to the fact
thereby discovered. thus it appears that s. 27 does number nullify
the ban imposed by s. 26 in regard to companyfessions
made by persons in police custody but because
there is the added guarantee of truthfulness from
the fact discovered the statement whether
confessional or number is allowed to be given in
evidence but only that portion which distinctly
relates to the discovery of the fact. a discovery
of a fact includes the object found the place
from which it is produced and the knumberledge of the
accused as to its existence. applying this test
in our opinion the evidence in regard to the
discovery of the key as well as the box was
rightly admitted into evidence in the present
case. apart from this we have the finding of the
high companyrt that the appellant was seen carrying
the box near about the place of occurrence when he
was companying from the side of the shop of the
complainant. therefore the companytention as to the
number-applicability of s. 27 is without substance
and must be repelled. it was next companytended that as ss. 457 and 380
of the indian penal companye are offences which fall
under s. 71 the appellant companyld number be punished
under both these sections. section 457 makes
punishable lurking house trespass by night or
house breaking by night in order to the companymitting
of any offence punishable with imprisonment and if
the effence intended to be companymitted is theft the
punishment is higher. section 380 makes punishable
a theft companymitted in a dwelling house. the two
offences do number in our opinion fall under s. 71
and therefore the companyviction under both the
sections is number illegal. see in re natesa mudaliar
 1 .