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PATNA HIGH COURT
Ram Nandan Prasad, J.
Harijiwan Sahu
Versus
Jairam Sahu
Appeal from Original Decree No. 4 of 1973 ;
Decided On : SEPTEMBER 26, 1988
EKARARNAMA DEED - EXECUTION - SECONDARY EVIDENCE - ADMISSIBILITY - JOINT FAMILY PROPERTY - SALE - DIVISION OF SALE PROCEEDS - AGREEMENT - VALIDITY - PARTIAL PARTITION - SUIT FOR - MAINTAINABILITY.
Fact of the Case:
The plaintiffs, three brothers, brought a suit for realization of a sum of Rs.12000.00 (Rs. 4000.00 being the share of each of them) on the basis of an ekrarnama deed (Ext.2) dated 1-11-1964 executed by the appellant. The lands of Khata No.14 of village Barey, which had been auction purchased in 1937 in the name of Harijiwan Sahu, had been sold by registered sale deed dated 31-10-64 executed by him and all his brothers in favor of Bhuvneshwar Sahu and the consideration money received was Rs. 20,000/-. The plaintiffs' case was that as the lands of khata No.14 were the joint family property, all the five brothers had equal share in the consideration money and it agreed that this money will be invested to purchase a bus to be managed by defendant 1 and out of the profits, the instalments due towards the price of the bus should be paid up and thereafter each of the brothers should be paid their share Rs. 4000.00 (four thousand) by the defendant 1 and after this was done the bus would belong solely to Harijiwan Sahu. The defendant contested the suit. The court below found that all the five brothers were entitled to equal share in the sale proceeds amounts to Rs. 20,000.00 and it also found that the ekrarnama deed was a valid document and had been executed by defendant 1. It however found that no bus appears to have been purchased by Harijiwan Sahu with the money in question and it accepted the defendants case that the bus in question (BRN 9318) belonged to Agarwal Bus Transport, and therefore, it negatived the claim of the plaintiffs regarding rendition of accounts. The suit was decreed in favor of the plaintiffs against Harijiwan Sahu for Rs. 12,000/-. Hence this appeal by Harijiwan Sahu.
Finding of the Court:
The court held that the original ekrarnama deed was duly executed by the defendant Harijiwan Sahu with full knowledge and that Ext.2 was a true copy of the original and hence was admissible as secondary evidence. It further held that the lands of Khata No. 14 acquired in by the auction purchase were the lands of the joint family and not the separate and exclusive property of Harijiwan Sahu. The court also held that the present suit was not a suit for partition of the joint family property but was a suit based on contract amongst the five brothers as evidenced by the ekrarnama deed Ext.2 and that such a contract was not prohibited by law and was, therefore, a valid contract.
Issues: 1. Whether the original ekrarnama deed was duly executed by the defendant Harijiwan Sahu and whether Ext.2 was a true copy of the original and hence was admissible as secondary evidence? 2. Whether the lands of Khata No. 14 acquired in by the auction purchase were the lands of the joint family and not the separate and exclusive property of Harijiwan Sahu? 3. Whether the present suit was a suit for partition of the joint family property or a suit based on contract amongst the five brothers as evidenced by the ekrarnama deed Ext.2?
Ratio Decidendi: 1. The court held that the original ekrarnama deed was duly executed by the defendant Harijiwan Sahu with full knowledge and that Ext.2 was a true copy of the original and hence was admissible as secondary evidence, relying on the evidence of the plaintiffs and the circumstances of the case. 2. The court held that the lands of Khata No. 14 acquired in by the auction purchase were the lands of the joint family and not the separate and exclusive property of Harijiwan Sahu, relying on the evidence of the plaintiffs and the fact that the sale deed was executed by all the five brothers. 3. The court held that the present suit was not a suit for partition of the joint family property but was a suit based on contract amongst the five brothers as evidenced by the ekrarnama deed Ext.2 and that such a contract was not prohibited by law and was, therefore, a valid contract, relying on the decision of the Privy Council in Approver V/s. Rama Subba Iyer and Ramalinga Annavi V/s. Marayana Annavi.
Final Decision: The appeal was dismissed with costs throughout and interest on the decreetal amount @ 6% per annum from the date of the appellate decree was allowed.
1. All the five parties in this appeal land in the suit) are brothers being the sons of late Shankar Sahu of village Ara, P.S. and P.C. Burmu, Dist. Ranchi. The appellant Harijiwan Sahu was defendant 1 in the suit while his three brothers respondents 1, 2 and 3, Jairam Sahu, Laxman Sahu and Ram Sewak Sahu were the plaintiffs. Jagdish Sahu, respondent 4 here was defendant 2 in the suit.
2. The three brothers respondents 1 to 3 brought this suit for realisation of a sum of Rs.12000.00 (Rs. 4000.00 being the share of each of them) on the basis of a ekrarnama deed (Ext.2) dated 1-11-1964 which has been executed by the appellant. Admittedly the lands of Khata No.14 of village Barey. P.S. Burmu which had been auction purchased as far back as 1937 in the name of Harijiwan Sahu had been sold by registered sale deed dated 31-10-64 executed by him (Harijiwan Sahu) and all his brothers in favour of Bhuvneshwar Sahu and the consideration money received was Rs. 20,000/-.
3. The plaintiffs case is that as the lands of khata No.14 were the joint family property, all the five brothers had equal share in the consideration money and it agreed that this money will be invested to purchase a bus to be managed by defendant 1 and out of the profits, the instalments due towards the price of the bus should be paid up and thereafter each of the brothers should be paid their share Rs. 4000.00 (four thousand) by the defendant 1 and after this was done the bus would belong solely to Harijiwan Sahu. To this effect, the ekrarnama deed is saint to have been executed by Harijiwan Sahu. According to the plaintiffs this sum of Rs. 20,000.00 was utilized by Harijiwan Sahu to purchase Bus No. BRN 9318 and he had been plying the same and earning profits but even after all the instalment dues were paid up, Harijiwan Sahu neither paid Rs. 12,000/(Rs.4000.00 share of each plaintiff) nor rendered any accounts of the profits of the bus, hence they were compelled to file the suit. In the suit the plaintiffs (respondents 1, to 3) prayed that a decree for a sum of Rs. 12,000.00 be passed against defendant 1 or in the alternative joint possession of the bus be made available to them and that a decree for rendition of accounts be also passed against defendant 1.
4. There is no dispute between the parties that the five sons of Shankar Sahu constituted a joint family along with their father and that the latter was the Karta of the joint family. It further appears that lands of Khata No. 14 of village Barey had been held by Shankar Sahu along with some of his nephews i.e. son of his brother who were his co-sharers in respect of this property but as the co-sharers of Shankar Sahu neglected to contribute their shares in paying the rent of the lands of Khata No. 14, those lands were ultimately sold in execution of rent decree in which the Khata was purchased in 1937 in the name of Harijiwan Sahu who was a junior member of the joint family constituted by his father and mother himself, and his four brothers. According to the plaintiffs case although the auction purchase was in the name of defendant 1, actually the purchase had been made by joint family funds and the property acquired in the auction sale i.e. lands of Khata No. 14 became the joint family property of Shankar Sahu and all his sons and was jointly managed by them. According to the plaintiffs their father died in February, 1946 but the five brothers continued to remain joint even thereafter but later there was separation among them and the joint status was terminated.
5. The suit was contested by defendant 1 that is the appellant Harijiwan Sahu. The other member Jagdish Sahu defendant 2 in the court below and respondent 4 in this appeal did not put any contest but filed written statement merely stating therein that he has been unnecessarily made a party in the suit and that so far as he is concerned the suit should be dismissed against him.
6. The case of Harijiwan Sahu in his written statement is that the aucti
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