15/10/2020 Delivery | Westlaw India

Westlaw India Delivery Summary

Request made by : IP USER

Request made on: Thursday, 15 October, 2020 at 00:55 IST

Client ID: inapu-1

Content Type: Cases
Search : (Citation("AIR 1952 MB 146"))
Delivery selection: Selected Documents
Number of documents delivered: 2

© 2020 Thomson Reuters South Asia Private Limited

 15/10/2020 Delivery | Westlaw India Page 2

Brajraj Singh v Yogendrapal Singh

Madhya Pradesh High Court

27 February 1952

Case Analysis

Bench CHATURVEDI

Where Reported 1952 Indlaw MP 16; AIR 1952 MB 146

Case Digest Subject: Criminal

Keywords: Cross-Examination, Certified Copy, Hindu Family, Mutation

All Cases Cited Referred

CHUHAMAL v. RAHIM BAKSH1924 AIR(Lah) 303

NAGFSHAR BAKSH SINGH v. MT. GANESHA1920 AIR(PC) 46

Cases Citing this Case Gurbux Singh and Others v Bishan Dass 'Chela' Kaul Dass and Others
1968 Indlaw PNH 62, AIR 1970 P&H 182

Legislation Cited Indian Evidence Act, 1872

Indian Evidence Act, 1872 s. 35

Indian Evidence Act, 1872 s. 63

Indian Evidence Act, 1872 s. 65

Indian Evidence Act, 1872 s. 68

Indian Evidence Act, 1872 s. 87

© 2019 Thomson Reuters South Asia Private Limited

This database contains editorial enhancements that are not a part of the original material. The database may also have mistakes or omissions. Users are requested to verify the contents with the relevant original text(s) such as, the certified copy of the judgment,
Government Gazettes, etc. Thomson Reuters bears no liability whatsoever for the adequacy, accuracy, satisfactory quality or suitability of the content.
15/10/2020 Delivery | Westlaw India Page 3

Madhya Pradesh High Court

27 February 1952

Brajraj Singh
v
Yogendrapal Singh

Case No : C. S. A. No. 25 of 1949

Bench : CHATURVEDI

Citation : 1952 Indlaw MP 16, AIR 1952 MB 146

The Order of the Court was as follows :

(1) This is defendant's second appeal arising out of a suit filed by the respondent plaintiff against the
defendant for declaration of his right of ownership of eight annas share in the three Zamindari properties
situated in District Morena. The Subordinate Judge, Morena decreed the suit and this decree was upheld by
the District Judge Morena. It is common ground that Maharaj Singh and Harbaksh Singh were real brothers.
Harbaksh Singh had two sons Narendrapalsingh and Bhikam Singh. The plaintiff Yogendra Singh is the son
of Narendrapal Singh and the defendant Brajraj Singh is the son of Bhikam Singh. The plaintiff alleged that
his father had died when the plaintiff was a minor and his uncle Bhikam Singh as Manager of the Joint Hindu
family managed the properties and during the minority of the plaintiff his uncle got his sole name recorded in
the record of rights as owner of the zamindari properties in villages Babadipura, [VERNACULAR PORTION
DELETED]. Tonga and Bilgaon Kwary [VERNACULAR PORTION DELETED] Bnikam Singh died on 4th
February 1940 and his son the defendant applied for mutation of his name in stead of Bhikam Singh. The
plaintiff then also applied for mutation as he also considered himself to be the owner of the property. This
dispute led him to file this suit which had been decreed by the Courts below.

(2) The defendant resisted the suit on several grounds but the main ground is that Narendrapal Singh, the
plaintiff's father, had gone away to another family as an adopted son of Maharaj Singh and therefore the
defendant thinks that he cannot get anything out of the Joint Family property as Narendrapal Singh had
severed his relation with the joint family. It was also contended by the defendant that the Zamindari
properties in village Babadipura, Tonga and Bilgaon Kwary were purchased by his father Bhikam Singh with
his separate money during the period 1926 to 1928. The decision of the present case hinges on the question
whether Narendrapal Singh had gone out of the family or not? It will be sufficient to observe here that no
adoption deed had been produced before the Courts below and no evidence has been adduced to prove the
adoption i.e. to prove the ceremony of giving and taking in adoption. The only thing produced is a copy dated
7th October 1918 purported to be by Mt. Roop Kuwar widow of Maharaj Singh, in which it is mentioned that
Narendrapal Singh was adopted by Maharaj Singh and when Narendrapal Singh died on 5th September
1918 the widow authorised Yogendrapal Singh to be the owner of her property both movable and immovable
which was in Behrara and Kanhara. The original will has not been produced. Evidence of the scribe or of a
attesting witness was necessary for proving the will and this evidence has been lacking in this case. It is
necessary for a party to prove the execution of the original 'CHUHAMAL v. RAHIM BAKSH", 1924 AIR(Lah)
303. A certified copy is sufficient secondary evidence under S. 63 of the existence, conditions, and contents
of the deed but not of its execution, which must be proved as required under S. 68 of the Indian Evidence
Act, 1872. 'KARIMMULLAH v. GUDAR KOERI', 1925 AIR(All) 56. In my opinion the two Courts below were
correct in refusing to recognise this copy of the will as evidence of adoption.

(3) Mr. Bhagwan Das Gupta, learned counsel for the appellant, has drawn my attention to page 133 of the
History of Jageerdars "Gwalior State (Vol. 2) and asks me to infer from a perusal of the above mentioned
page that Narendrapal Singh was adopted by Maharaj Singh. The learned counsel contended that this
History is published under authority and should be believed to be true Under S. 87, of the Indian Evidence
Act, 1872 this Court can only presume that the History was written or published by the person & at the time
& place, by whom or at which it purports to have been written or published. The presumption is with regard
 15/10/2020 Delivery | Westlaw India Page 4

to publication, authorship etc. but not with regard to accuracy. The History of Jageerdars cannot be taken to
be of any use in this matter nor does it mention that Narendrapal Singh was adopted by Maharaj Singh. The
only fact referred to on page 133 of the book is this that Narendrapal Singh applied for mutation in his favour
and alleged that he was the adopted son of Maharaj Singh but this was not recognised by Darbar. As
regards the will I have observed above that it was not proved and we do not know what happened to the
property left by Mt. Roop Kuwar. If Narendrapal Singh had been adopted by Maharaj Singh, there would
have been no necessity for executing a will by Mt. Roop Kuwar; for the property of Maharaj Singh would
have, in natural course, devolved upon Narendrapal Singh. In my opinion the Courts below are correct in
repelling the contention of the defendant that Narendrapal Singh had gone out of the family. And I am
satisfied that the family was joint.

(4) An application dated 13th October 1930 bearing the signature of Bhikam Singh in file No. 1 of 79 X 8
Tehsil Sabalgarh also states the same fact that the family was joint in 1930. Niranjanlal who is acquainted
with the hand writing of Bhikam Singh deposes that the signature on this application is that of Bhikam Singh
and it transpires that Bhikam Singh was the Manager of the joint Hindu family and in that capacity he has
filed this application. Umrao Singh who appears as a witness on behalf of the defendant admitted in
cross-examination that the family was joint and there has been no partition until now. In my opinion there is
sufficient evidence produced in the file to show that the Zamindari properties in villages Babadipura, Tonga
and Bilgaon Kwary are properties of a joint Hindu family and the plaintiff is entitled to a moiety.

(5) In the records of right relating to the Zamindari properties in villages Panihari, Deori and Baroli, Yogendra
Singh's name appears along with the defendant's name as owner of half and half. If Narendrapal Singh had
gone to another family this would not have been recorded as such. Of course the collector's book is kept for
purpose of revenue and not for purposes of title, and a definition of shares in revenue and village papers
affords, by itself, but a very slight indication of an actual separation in a Hindu family, and in no case can it
be regarded that such a definition of shares is sufficient evidence upon which to find, contrary to the
presumption in law as to jointure, that the family to which such definition referred had separated
'GAJANDRA SINGH v. SARDAR SINGH', 18 All 176 approved by the Privy Council in 'NAGFSHAR BAKSH
SINGH v. MT. GANESHA', 47 Ind App 57: 1920 AIR(PC) 46.

(6) The next point for determination is whether these villages had been purchased by Bhikam Singh with his
separate money or, with the aid of the joint family property, when Bhikam Singh was the Manager of the joint
Hindu family.

1. From the evidence I am satisfied that there has been no division of right or severance of right and the
family continues to be joint in estate. I am clear in my mind that mere cesser of commensality would not
make the two cousins separate in estate, for a member of a joint Hindu family may become separate in food
or residence for his own convenience. If the family is joint as I hold it to be the question of limitation does not
arise, and, I am also of the opinion that a prayer for possession was not needed at all.

(7) I therefore dismiss the appeal with costs.

© 2019 Thomson Reuters South Asia Private Limited

This database contains editorial enhancements that are not a part of the original material. The database may also have mistakes or omissions. Users are requested to verify the contents with the relevant original text(s) such as, the certified copy of the judgment,
Government Gazettes, etc. Thomson Reuters bears no liability whatsoever for the adequacy, accuracy, satisfactory quality or suitability of the content.