Allowed

Nathuni Bhagat v. Mahanth Bhagat and Ors.

Patna HC8 Jan 2013FA/156/1980

Case brief

AI extract

What is this about?

In this first appeal, the High Court reversed the trial court's dismissal of a partition suit. The Court held that ancestral property became the separate property of a sole surviving coparcener post-partition/death, validating subsequent gifts. It also affirmed the validity of another gift deed by the widow despite lack of formal delivery of possession, setting aside the lower court's findings.

What did the court decide?

Impugned judgment and decrees set aside; Plaintiff's suit for partition decreed. No costs.

Nathuni Bhagat Vs Mahanth Bhagat and Ors. — Partition | Patna HC (2013)

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IN THE HIGH COURT OF JUDICATURE AT PATNA

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First Appeal No.156 of 1980 Against the judgment and decree dated 12.2.1980 passed by 3^rd Additional Sub Judge, Gopalganj in Title Partition Suit No. 571 of 1974. =========================================================== Nathuni Bhagat .... .... Plaintiff-Appellant Versus Mahanth Bhagat & Ors .... .... Defendants-Respondents =========================================================== Appearance : For the Appellant : Mr. Shashi Shekhar Dwivedi, Sr. Advocate Mr. Vinay Kirti Singh, Advocate with him. For the Respondents : Mr. Sandeep Kumar, Advocate. Mr. Harendra Prasad Singh, Advocate. =========================================================== CORAM: HONOURABLE MR. JUSTICE MUNGESHWAR SAHOO ORAL JUDGMENT

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Date: 08-01-2013

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Mungeshwar 1 . The plaintiff has filed this first appeal against the judgment Sahoo, J. and decree dated 12.2.1980 passed by the learned 3^rd Additional Subordinate Judge, Gopalganj in Title Partition Suit No. 571 of 1974 whereby, the learned trial court dismissed the plaintiff‟s suit for partition.

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2. The plaintiff filed the aforesaid suit claiming the partition of his share measuring 6 Bigha 8 Kattha 16 ½ Dhur being the total lands mentioned in schedule 2 and 3 of the plaint.

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3. The plaintiff claimed the said relief alleging that one Ram Sahai had two sons namely Jawahar Bhagat and Tally Bhagat. Jawahar Bhagat died leaving behind his wife Dubri and a daughter Jago. The said daughter Jago had two sons namely Fagu Bhagat and Thag Bhagat. The plaintiff is the son of Fago Bhagat. The adopted son of Tally Bhagat is Mahant Bhagat who is defendant No.1. The first wife of Tally Bhagat namely Simrekha is defendant No.2. Prior to revisional survey Jawahar Bhagat died in jointness with his brother Tally Bhagat. After revisional survey the widow of Jawahar Bhagat also died. Therefore, the ancestral property devolved on Tally Bhagat alone. Since there was no male issue from first wife Simrekha Tally Bhagat married second wife who brought this defendant No.1 who was Dagaruwa son. The said second wife also died after six month of marriage. The further case is that Tally Bhagat gifted half and half the entire property to defect No.1 and defect No.2 i.e. Mahanth Bhagat and Simrekha Devi treating the property as his separate property. He delivered possession to them also. After coming in possession of the property on the basis of gift the defendant No.1 and 2 sold 16 dhurs of land of plot No.1370 to the plaintiffs. The defendant No.2 on being pleased with the service of the plaintiff donated 6 bigha 8 kattha ½ dhur to the plaintiff by means of registered deed of gift dated 11.5.1973 and since then the

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plaintiff came in joint possession over the lands of said property. Because there was no partition the plaintiffs filed the partition suit as the defendant inspite of demand did not partition the property.

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4. The defendant No.1 – respondent No.1 appeared and filed a contesting written statement. Besides taking various legal plea mainly the defendant No.1 contended that the plaintiff has got no unity of title and possession over the suit property. Tally Bhagat and defendant No.2 adopted this defendant No.1 on 9.5.1946 and subsequently a registered deed of adoption was executed and registered on 28.4.1953. No doubt, on the death of Jawahar Bhagat his brother Tally Bhagat became the sole surviving coparcener but on the adoption of defendant No.1 by Tally Bhagt and his first wife the defendant No.1 became the coparcener of the property as such the gift deed executed by Tally Bhagat in the year 1958 in favour of Simrekha Devi defendanat No.2 and defendant No.1 himself is void because without consent a coparcener cannot make gift the coparcenary property. The defendant No.1 executed the sale deed as coparcener and likewise the defendant No.2 executed the sale deed in favour of the plaintiff as an heir of Tally Bhagat and not as donee. The defendant No.2 had not executed any gift deed dated 11.5.1973 in favour of the plaintiff and the plaintiff did not come in possession over the property claimed by him. The said gift deed is forged and

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fabricated. The defendant No.2 is an old and Parda Nasheen lady and had lost the capacity of understanding her loss and gain. In view of the above facts, the said document is not binding on the defendants No.1. The defendant No.2 has only 1/4^th share in schedule 1 of the plaint and in April 1973 she surrendered her share in favour of the defendant No.1 orally in presence of several persons. Therefore, the defendant No.1 prayed for dismissal of the suit. It may be mentioned here that the defendant No.2 neither appeared nor filed the written statement nor contested the suit.

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5. In view of the aforesaid pleadings of the parties the trial

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court framed following issues :

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“1. Whether the suit as framed is maintainable ?

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Whether the plaintiff has cause of action for the suit ?

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Whether the plaintiff is entitled to a decree as claimed ?

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To what relief if any, the plaintiff is entitled ?”

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6. After trial the trial court recorded the finding that the gift deed dated 17.2.1958 is illegal and never came in actual practice and defendant nos. 1 and 2 never got right, title and interest in the land of schedule 1 of the plaint on the basis of the said Baksisnama. As on adoption the defendant No.1 became the coparcener and the gift deed was made with respect to the coparcenary property. The trial court also recorded the finding that although the defendant No.1 alleged

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that the defendant No.2 never executed any gift deed in favour of the plaintiff, the plaintiff did not take any step to prove that in fact the gift deed was executed by defendant No.2 in favour of the plaintiff and further held that since the gift deed dated 17.2.1958 is void, therefore, the defendant No.2 did not derive title as such the gift deed executed in favour of plaintiff by her is also void document.

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7. The learned senior counsel Mr. S.S. Dwivedi appearing on behalf of the appellant submitted that the trial court has wrongly held that the gift deed of the year 1958 is void document as it was executed by Tally Bhagat with respect to coparcenary property. According to the learned counsel admittedly the properties were recorded in the name of Tally Bhagat and widow of Jawahar Bhagat which shows that there was partition between two brothers. Therefore, so far the said property of Jawahar Bhagat recorded in the name of his widow in the revisional survey record of right is concerned, it will be separate property of Tally Bhagat which was inherited by him on the death of widow of Jawahar Bhagat and it will never be ancestral property. Moreover, on the date of succession of the property Tally Bhagat was the sole surviving coparcener therefore, he became the absolute owner of the property on partition or on the death of widow of Jawahar Bhagat and, therefore, in view of Article 230 of the Hindu Law by Mulla the said property will be

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deemed to be the separate property of Tally Bhagat. The defendant No.1 claimed to have been adopted subsequently therefore, he will not become the coparcener with respect to the property because it is settled principles of law that once the title vested on Tally Bhagat exclusively it will not be divested by subsequent adoption of defendant No.1. In other words, according to the learned counsel on the adoption of the defendant No.1 he will not get automatically right in the property which was the exclusive and separate property of Tally Bhagat.

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8. The learned counsel further submitted that the trial court while recording the finding that the gift deed of the year 1958 is void on the ground that it is with respect to coparcenary property is therefore, liable to be set aside. So far the finding regarding the gift deed of the year 1973 executed by defendant No.2 is concerned according to the learned counsel when the property was the separate property of Tally Bhagat he executed the gift deed in favour of his wife and defendant No.1 validly and the defendants came in possession of the property pursuant to the said gift deed. So far this gift deed executed by defendant No.2 in the year 1973 is concerned the trial court did not consider the fact that the executant of the gift deed neither appeared nor contested the suit but placed wrongly the onus on the plaintiff to prove that the gift deed was validly executed

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by defendant No.2. Accordingly, to the learned counsel the onus is on the defendant No.1 to prove the fact that in fact it was not executed by defendant No.2 or it was obtained by playing fraud on her. The learned counsel further submitted that the trial court did not also consider the fact that Tally Bhagat died in 1962 admittedly and on his death even if the property was coparcenary property defendant No.2 became the owner of half property of Tally Bhagat and in the capacity of her she executed the gift deed but the trial court wrongly held that this case has not been made out in the plaint and, therefore, the same cannot be examined by the court and wrongly held that the gift deed is void. On these grounds, the learned counsel for the appellant submitted that the impugned judgment and decree are liable to be set aside.

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9. On the other hand, the learned counsel Mr. Sandeep Kumar appearing on behalf of the respondents submitted that on the basis of the evidence the trial court recorded the finding that the gift deed of the year 1958 was not acted upon and, therefore, the defendant Nos. 1 and 2 never came in possession of the property as such the gift deed was void gift deed. The learned counsel further submitted that the trial court has also considered the evidences and recorded the finding that on the basis of the gift deed of the year 1973 the plaintiff never came in possession of the property,

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therefore, the trial court has rightly dismissed the plaintiff‟s suit. According to the learned counsel when no possession was delivered the gift was not complete and moreover in the gift deed of the year 1973 it has been mentioned that she derived title on the basis of gift deed executed by her husband Tally Bhagat and then she gifted the property. Now therefore, the appellant cannot be allowed to argue that even if the gift deed was invalid she inherited the property of her husband to the extent of half and she gifted the property to the plaintiff because it will amount to making of third case by the court.

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10. In view of the above submissions of the learned counsel for the parties, the point arises for consideration in this first appeal is, as to whether the plaintiff is entitled for separating his property from schedule 1 property on the basis of acquisition of his title by registered gift deed Ext.-3 and the sale deed executed by defendant No.1 and defendant No.2 and whether there is unity of title and possession between the parties.

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11. From the submission of the parties it appears that on the basis of question of law only this first appeal can be disposed of. Regarding possession only the evidence is required to be gone into. 12. It may be mentioned here that according to the plaintiff himself the property belonged to one Ram Sahai Bhagat who had two sons. It is admitted fact that on the death of widow of Jawahar

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Bhagat when the property devolved upon Tally Bhagat he was the sole surviving coparcener. According to the Article 230 of the Hindu Law by Mulla clause No.6 property obtained as his share on partition by a coparcener who has no male issue or according to clause 7 property held by a sole surviving coparcener when there is no widow in existence who has power to adopt became the separate property of the coparcener. Admittedly in the present case on the date of inheritance by Tally Bhagat there was no widow of Ram Sahai Bhagat and, therefore, the property became the separate property of Tally Bhagat. In such circumstances in view of Article 498 of the Hindu Law by Mulla a Hindu adopting a son does not thereby deprived himself of the power to dispose of his separate property by gift or will. Since on the date of inheritance the property was separate property of Tally Bhagat and the defendant No.1 was adopted subsequently the subsequent adoption will not deprive Tally Bhagat from disposing his separate property by gift. From perusal of the impugned judgment it appears that the trial court has not considered this aspect of the matter and has held that on being adopted the defendant No.1 became the coparcener. The gift deed has been executed by Tally Bhagat regarding the coparcenary property therefore, the said gift deed of the year 1958 is void document. It may be mentioned here that the defendant No.1 is also one of the

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donee but he never challenged the said gift deed executed by his adoptive father in his favour and in favour of his adoptive mother. No relief was sought for by him in the suit regarding the said gift deed of the year 1958. Therefore, in my opinion, the finding recorded by the courts below regarding the illegality of the gift deed of the year 1958 is unsustainable.

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13. The other aspect of the matter is that even if the gift deed of the year 1958 is ignored for academic purpose then also it is admitted fact that Tally Bhagat died in the year 1962. If the gift deed was not acted upon then Tally Bhagat remained owner thereof till his death. On his death half property will go to defendant No.2 the widow of Tally Bhagat and half property will devolve on defendant No.1 i.e. Mahanth Bhagat i.e. adopted son of Tally Bghagat. From perusal of the trial court‟s judgment it appears that this point was raised by the plaintiff appellant before the trial court. However, the trial court said that in the gift deed it has been mentioned by defendant No.2 that she came in possession of the property on the basis of gift deed executed by Tally Bhagat in the year 1958 therefore, now the plaintiff cannot be allowed to make a third case which was not pleaded. According to the trial court the plaintiff has not pleaded that even if the gift deed is disbelieved she inherited half property of Tally Bhagat and then she gifted the property inherited of

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her in the year 1973 to the plaintiff.

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14. So far the conclusion of the trial court in this point is concerned it may be mentioned here that there cannot be estoppel against the statute. In other words, the law is not required to be pleaded. It is admitted fact that Tally Bhagat died in the year 1962. Even if there was gift or no gift and the case of the defendant No.1 is accepted that the gift deed of the year 1958 executed by Tally Bhagat was not acted upon them, the property remained a separate property of Tally Bhagat. On his death in the year 1962 in view of Section 6 of the Hindu Succession Act, 1956 Simrekha Devi defendant No.2 will be class 1 heir and shall inherit half share by operation of law in the property of Tally Bhagat. So far this question is concerned it is a pure question of law and it requires no pleading. Only because she did not claim inheritance by law the title cannot be denied in favour of defendant No.2. Now therefore, the trial court has wrongly observed that this is a third case. In my opinion, this is not a third case but it is a pure question of law. The trial court has not considered this aspect of the matter and held that since there is no pleading the court cannot make a third case.

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15. So far the possession and illegality of the gift deed of the year 1973 is concerned it may be mentioned here that the defendant No.2 has executed this gift deed in favour of the plaintiff. She did not

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challenge that she has not executed the gift deed. She has not challenged that possession was not delivered. It may be mentioned here that this gift deed was executed by her in 1973. Now therefore, on the death of Tally Bhagat she became the owner of the half share of the property and therefore she had already executed the gift deed in favour of the plaintiff in the year 1973. She is not challenging the gift deed either on the ground of fraud or misrepresentation or that she has not executed the gift deed. On the contrary, the defendant No.1 is challenging the same.

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16. In the case of Prem Singh vs. Birbal Singh (2006) 5 SCC 353 the Apex Court has held that there is a presumption that a registered document is validly executed. A registered document, therefore, prima facie would be valid in law. The onus to prove thus would be on a person who leads evidence to rebut the presumption. This view has again been reiterated in the case of Vimal Chand Ghevar Chand Jain and others vs. Ramakant Eknath Jadoo (2009) 5 SCC 713 .

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17. This Court in the case of Sita Saran Prasad vs. Manorama Devi 2012 (2) BLJ 165 has held considering the registered sale deed that such document cannot be said to be void ab initio . There cannot be presumptive invalidity attached to such a transaction. Such document remains valid on principle that apparent

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state of affairs is real state of affairs, until facts invalidating the same are established. Here in the present case at our hand, the case of the defendant is that the gift deed was not executed by Simrekha Devi and that she was old enough to understand her loss and gain and that she was Parda Nasheen lady. These are the facts alleged by the defendant to rebut the presumption. It may be mentioned here that no counter claim has been filed by the defendant so as to declare the gift deed of the year 1973 as void or illegal. Moreover, the defendant No.2 was party to the suit, she never challenged the said gift deed. In view of the above settled proposition of law laid down by the Apex Court as well as by this Court the onus was on the defendant to have adduced cogent and reliable evidence to show that in fact the defendant No.2 had not executed the gift deed moreover in presence of defendant No.2 in my opinion, the defendant No.1 had no locus standi to challenge the valid execution of the gift deed by defendant No.2. The other aspect of the matter is that on the death of Tally Bhagat Simrekha Devi inherited half property and she became the owner of the same by fiction of law. Therefore, she had the right to dispose of the property. During the life time of said Simrekha Devi the defendant No.2 the defendant No.1 had got no semblance of title on the property inherited by the defendant No.2. Therefore, as stated above he had got no locus standi to challenge the said gift deed and

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moreover he has not sought any relief against the said gift deed. However, the trial court placed wrong onus on the plaintiff to prove the valid execution of the gift deed by defendant No.2 and because of this wrong placement of onus on the plaintiff the lower court has wrongly decided that the plaintiff has not taken any action to prove the validity of the said gift deed.

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18. So far the possession is concerned, PW 4 is the plaintiff has clearly stated that he came in possession of the property gifted to him vide paragraph 3 of the examination-in-chief. It appears that the trial court has disbelieved his evidences on the ground that he is not able to say as to how many plots he came in possession and which portion of which plot. From perusal of paragraph 9 of his crossexamination also he clearly stated that he is in possession of the gifted property. It appears that the other witnesses examined on behalf of plaintiff are formal witness.

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19. So far the evidences adduced by the defendants are concerned, it appears that witnesses have stated the negative evidence to the effect that the plaintiff never came in possession and that the defendant No.1 is in possession of the same. It may be mentioned here that it is not the case of the defendant that since the plaintiff never came in possession therefore, the gift deed of the year 1973 is illegal document and as stated above no counter claim has

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been filed by the defendant challenging the registered gift deed of the year 1973. As has been held above he has no locus standi to challenge the gift deed executed by the defendant No.2 in favour of the plaintiff in presence of defendant No.2 who did not challenge the same. The defendant No.2 never alleged that no delivery of possession was given to the donee. The trial court held that since the gift of the year 1958 is invalid, illegal and void and, therefore, she did not derive any title on the basis of the said gift deed, as such she could not have executed the gift deed in favaour of the defendant. I have already held above that the approach of the trial court is against the provision of law and, therefore, I have already held that the gift deed executed of Tally Bhagan in the year 1958 was within his capacity as owner. The defendant Nos. 1 and 2 themselves jointly executed sale deed in favour of the plaintiff whereby 16 dhur alone was sold and, therefore, admittedly the defendant No.1 admitted title of defendant No.2 also.

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20. It appears that during the pendency of this first appeal an interlocutory application being I.A. No. 131 of 2013 has been filed by the appellant praying for marking the certified copy of the gift deed dated 17.2.1958 as Ext.-6. The learned counsel for the appellant submitted that in fact the certified copy of the gift deed was produced in the court below and was proved by PW-3 but the trial court instead

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of marking the same as Exhibit-6 has only marked „X‟ for identification. It may be mentioned here that this document is morethan 30 years old and further the genuineness or execution of the same is never challenged by the defendants. In such circumstances, in view of the decision reported in 2013 (1) PLJR 48 (SC) Union of India vs. Ibrahim Uddin and another I heard this interlocutory application along with this first appeal. It appears that this is the sheet-anchor of the claim of the parties and PW 3 has duly proved the same and moreover the document is of the year 1958 i.e. more than 30 years old and is necessary for decision in this first appeal, therefore, this interlocutory application is allowed and the certified copy of the gift deed is hereby marked as Ext.-6.

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21. It appears that the plaintiffs have also adduced documentary evidences. Ext.-1 is rent receipt to prove his possession over the property and mutation in his name. Ext.2 is the sale deed executed by defendant Nos. 1 and 2 of the year 1972 whereby 16 dhur was sold and in the sale deed they claimed title on the basis of gift deed of the year 1958. Therefore, indirectly the genuineness of the gift deed of the year 1958 was admitted by defendant No.1. This aspect has also not been considered by the trial court. In the cross examination PW 4 in paragraph 11 only says that in some of the lands of 5 khatas he is in possession of half share. In other words

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there has been no partition by measurement.

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22. In view of the above facts and circumstances of the case the findings recorded by the trial court is unsustainable in the eye of law. The reasons assigned by the trial court are untenable and in my opinion, the finding recorded by the trial court is not acceptable as trial court has recorded the same without considering the provision of law. Therefore, the findings of the trial court are hereby reversed.

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23. In the result, this first appeal is allowed and the impugned judgment and decrees are set aside. The plaintiff‟s suit is decreed. In the facts and circumstances of the case, no orders as to costs.

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Patna High Court, Patna (Mungeshwar Sahoo, J.) Date. 08/01/2013 S.S.

Nathuni Bhagat v. Mahanth Bhagat and Ors.

Case brief

What is this about?

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Nathuni Bhagat v. Mahanth Bhagat and Ors.

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