Case: Vidyadhar Krishnarao Mungi &amp; Others Vs. Usman Gani Saheb Konkani &amp; Others

suggested motive. It may be recalled that Sadashiv settled his claim for maintenance on March 26, 1925. Laxman had agreed to give him a part of land which stood in his own name in lieu of maintenance, while Sadashiv relinquished his claim to the other properties specified in his plaint. Laxman died in 1940. Although after the settlement there was no danger whatsoever from Sadashiv in regard to it, the suit land continued to be shown in the revenue records in the name of Jankibai. Laxman did not get his name mutated in her place. It seems to us that if the property had really belonged to Laxman, he would have got his name mutated after March 1925 as there was no further need of wearing a mask.22. In support of his finding in favour of the plaintiffs, the trial court has heavily relied on Ex. 100. It is a receipt executed on March 31, 1959 by Dattatraya in favour of first defendant. It acknowledges payment of Rs. 10,000/- by the first defendant to Dattatraya and his brother Krishnaji towards payment of sale consideration of Rs. 30,000/- for sale of the suit land in favour of first defendant. The recital in the receipt relied on by the trial court is this:"the land bearing S. No. 954 ... ... ... is our ancestral ownership .. we have received in all Rs. 7,000/- ... made up of the sum of Rs. 5,000/- .. and the sum of Rs. 2,000/-. Further your have this day given Rs. 1,000/- in cash and a cheque .. dated 15-4-1959 for rupees two thousand. Thus in all Rs. 10,000/- are received towards the transaction (agreement) in respect of the suit land. The receipt is given in writing." It is signed by Dattatraya for self and for Krishnaji.23. In this cross-examination the first defendant said in regard to this document."I ... demanded the receipt for Rupees 10,000/- when payment of Rs. 3,000/- was made. We demanded the receipt relating to the agreement of sale of the suit land. The writer of Ex. 100 was known to him. He was some account writer of Razak. Ex. 100 mentions that the land was ancestral land of defendants 2 and 3. On the basis of this writing the land was purchased at the time of compromise decree."24. The trial court took the view that the words "our ancestral ownership" in Ex. 100 connoted that the suit land came to the hands of Krishnaji and Dattatraya from the side of their father. According to the trial court, the aforesaid passage from the cross-examination of the first defendant indicated that he was aware of this fact at the time of purchasing the property. The trial Court thought that this admission of the first defendant shifted the onus from the plaintiffs to him. As the first defendant did not explain as to how the words "our ancestral ownership" were understood by him, the trial court held that he knew that Laxman was the owner of the suit land. Here again, the High Court did not agree with the trial court. For the reasons to be stated hereafter we would agree with the High Courts evaluation of the probative weight of Ex. 100.25. Firstly, it should be noticed that Ex. 100 is an unregistered document. It was in the custody of the first defendant. It was filed by him court in this case. He is a Muslim. To a Muslim the words "our ancestral ownership" would connote not only paternal ancestral property but also maternal ancestral property. We are satisfied that the first defendant understood those words in the sense of maternal ancestral property. If he had known that these words would only apply to paternal ancestral property, he would have never filed the document in court in support of his case. And he could have easily withheld it, for it was an unregistered document.26. No adverse inference can be drawn against him from his admission in his cross-examination that he and his brothers have inherited some ancestral property from their father, Ahmed Latif Saheb Konkani. As already stated, a Muslim would consider the property inherited from his father as well as from his mother as ancestral property. For the same reason we are unable to draw an adverse inference against him from his admission that Ex. 100 mentioned that the land was ancestral land of the defendants 2 and 3. In this connection it is necessary to remember that in the tenancy case No. 37 of 1956 (in which the first defendant was a party) Dattatraya has appeared as a witness. In his statement in that case he had said: "The suit land was purchased by my mother. After her death myself and my brother are the owners." It may be presumed that the first defendant also knew that the suit land was entered in the revenue records in the names of Krishnaji and Dattatraya after the death of their mother. Jankibai as her heirs. So in the context of the statement of Dattatraya in the tenancy case and the entry of his and his brothers name in the revenue record on the death of their mother as her heirs the first defendant could easily have understood the words "our inherited ownership" in the sense of property inherited from a maternal ancestor, that is to say, from mother and not from father.27. Secondly, Dattatraya has not deposed that he had told the first defendant that the suit property was inherited by him and his brother from their father. He has not explained as to how the words "our ancestral ownership" were understood by him and the first defendant at the time Ex. 100 was executed by him.28. Thirdly, no question was put in cross-examination to the first defendant as to how he understood the words "our ancestral ownership" in Ex. 100. In the absence of such cross-examination, we think it will be unfair to the first defendant to draw any adverse inference against him.

Decision (1 = appeal accepted, 0 = rejected): 0

Explanation:
0[ds]It is also important to observe that Dattatraya, who appeared as a witness for the plaintiffs, did not speak about this motive. On the contrary, he admitted in histhat he had made "no inquiry about the purchase of suit land from mother." He further admitted that he "never questioned father why he purchased the suit land benami in the name of mother." So his evidence does not bear out the alleged motive. None of the plaintiffs have entered the witness box. Under the Hindu Law Sadashiv could claim maintenance from Laxman only from ancestral property in his hand. Sadashiv could not claim maintenance from anyproperty of Laxman. This legal position is not disputed by counsel for the appellants. But he says that Laxman could have hardly known the law. It is difficult to believe that Laxman was ignorant of the law. He was a petition writer. His occupation brought him in constant touch with lawyers and litigants. Accordingly, it is not improbable that he had acquired information that thisproperty was in no danger. So there was no reason why Laxman should have concealed the purchase of the suit land from Sadashiv.21. There is yet another important circumstances which discounts the suggested motive. It may be recalled that Sadashiv settled his claim for maintenance on March 26, 1925. Laxman had agreed to give him a part of land which stood in his own name in lieu of maintenance, while Sadashiv relinquished his claim to the other properties specified in his plaint. Laxman died in 1940. Although after the settlement there was no danger whatsoever from Sadashiv in regard to it, the suit land continued to be shown in the revenue records in the name of Jankibai. Laxman did not get his name mutated in her place. It seems to us that if the property had really belonged to Laxman, he would have got his name mutated after March 1925 as there was no further need of wearing a mask.The trial court took the view that the words "our ancestral ownership" in Ex. 100 connoted that the suit land came to the hands of Krishnaji and Dattatraya from the side of their father. According to the trial court, the aforesaid passage from theof the first defendant indicated that he was aware of this fact at the time of purchasing the property. The trial Court thought that this admission of the first defendant shifted the onus from the plaintiffs to him. As the first defendant did not explain as to how the words "our ancestral ownership" were understood by him, the trial court held that he knew that Laxman was the owner of the suit land. Here again, the High Court did not agree with the trial court. For the reasons to be stated hereafter we would agree with the High Courts evaluation of the probative weight of Ex. 100.25. Firstly, it should be noticed that Ex. 100 is an unregistered document. It was in the custody of the first defendant. It was filed by him court in this case. He is a Muslim. To a Muslim the words "our ancestral ownership" would connote not only paternal ancestral property but also maternal ancestral property. We are satisfied that the first defendant understood those words in the sense of maternal ancestral property. If he had known that these words would only apply to paternal ancestral property, he would have never filed the document in court in support of his case. And he could have easily withheld it, for it was an unregistered document.26. No adverse inference can be drawn against him from his admission in histhat he and his brothers have inherited some ancestral property from their father, Ahmed Latif Saheb Konkani. As already stated, a Muslim would consider the property inherited from his father as well as from his mother as ancestral property. For the same reason we are unable to draw an adverse inference against him from his admission that Ex. 100 mentioned that the land was ancestral land of the defendants 2 and 3. In this connection it is necessary to remember that in the tenancy case No. 37 of 1956 (in which the first defendant was a party) Dattatraya has appeared as a witness. In his statement in that case he had said: "The suit land was purchased by my mother. After her death myself and my brother are the owners." It may be presumed that the first defendant also knew that the suit land was entered in the revenue records in the names of Krishnaji and Dattatraya after the death of their mother. Jankibai as her heirs. So in the context of the statement of Dattatraya in the tenancy case and the entry of his and his brothers name in the revenue record on the death of their mother as her heirs the first defendant could easily have understood the words "our inherited ownership" in the sense of property inherited from a maternal ancestor, that is to say, from mother and not from father.27. Secondly, Dattatraya has not deposed that he had told the first defendant that the suit property was inherited by him and his brother from their father. He has not explained as to how the words "our ancestral ownership" were understood by him and the first defendant at the time Ex. 100 was executed by him.28. Thirdly, no question was put into the first defendant as to how he understood the words "our ancestral ownership" in Ex. 100. In the absence of suchwe think it will be unfair to the first defendant to draw any adverse inference againstthe trial court fell in error in relying on documents of dubious evidentiary value. The documents were, as already discussed, also consistent with the real ownership of Jankibai. So the trial court was wrong in thinking that it was reasonably probable that Laxman was the real owner of the suit land. In our view, the High Court has correctly appraised the entire evidence and has come to the right conclusion that the real owner of the suit land was Jankibai, and not Laxman.