Dismissed

Md. Nasim Ashraf @ Md. Nasim a v. Smt. Sita Devi and Ors.

Patna HC15 Apr 2013SA/231/2011

Case brief

AI extract

What is this about?

In a second appeal regarding title to suit land, the Patna High Court upheld the first appellate court's finding that no partition existed between a son and his mother. Consequently, the son, as the sole surviving coparcener, had the right to sell the joint family property without legal necessity under Article 255 of Mulla's Hindu Law. The appeal was dismissed.

What did the court decide?

The second appeal filed by the defendants/appellants was dismissed, upholding the judgment and decree of the first appellate court.

Md. Nasim Ashraf @ Md. Nasim a Vs Smt. Sita Devi and Ors. — Partition | Patna HC (2013)

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	IN THE HIGH COURT OF JUDICATURE AT PATNA Second Appeal No.231 of 2011
	====================================================== Md. Nasim Ashraf @ Md. Nasim Ashraf Ansari & Ors. .... .... Appellant/s Versus Smt. Sita Devi & Ors .... .... Respondent/s
	====================================================== Appearance :
	For the Appellant/s : Mr. Abdul Mannan Khan With Mr. Md. Najmul Hodda, Advocates For the RespondentNo.20 : Mr. Shashi Nath Jha, Advocate ====================================================== CORAM: HONOURABLE MR. JUSTICE CHAKRADHARI SHARAN SINGH ORAL ORDER
12	15-04-2013 Heard learned counsel for the appellants and learned counsel appearing for respondent no.20.
	2. The present second appeal has been preferred by the defendants/ appellants being aggrieved by the Judgment dated 10- 2-2011 and Decree dated 25-2-2011 passed in Title Appeal No. 19 of 1998 by the learned Additional District Judge ( Fast Track Court No. II), Madhubani whereby he has allowed the appeal and has reversed the Judgment dated 17-4-1998 and Decree dated 22- 4-1998 passed in Title Suit No. 39 of 1987 by the learned Additional Munsif, Ist. Madhubani. 3. The suit had been filed for declaration of title and recovery of possession in respect of suit land bearing Khesra No. 1359 measuring one katha,fifteen dhurs twenty seven dhurkies in the middle of the house facing east having one room only, having

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boundary north; room of the same house now in possession of the plaintiffs, south; room of the same house of the plaintiffs, east; road, west; Jagarnath Mahto, a tenant of the plaintiffs of the same house.

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As per the plaintiffs case, they constituted a Joint Hindu Family of which Deo Narayan Sah, the original plaintiff no.1 was the Karta and Manager. The defendants 3^rd party, namely Ram Roop Das Agrawal and Smt. Radha Devi also constituted a Joint Hindu Family of which defendant no.3 Ram Roop Das Agrawal was its Karta and Manager. Plot No. 1359 measuring one katha, fifteen dhurs twenty seven dhurkies having structure thereon belonged to defendant 3^rd party Ram Roop Das Agrawal (defendant no.3) and Smt. Radha Devi ( defendant no.4) which was let out to different tenants including defendant no.1. After the death of defendant no.1, his heirs and legal representatives were substituted in his place at the stage of trial. Defendant no.2 is appellant no.1 herein whereas appellant no.2 to this appeal is heir and legal representative of defendant no.1. As per the plaintiffs case, defendant no.1 was in occupation of the suit land as tenant. Further case of the plaintiffs was that the said Ram Roop Das Agrawal ( Defendant no.3 ) transferred the entire plot of khesra no. 1359 along with house thereon to plaintiffs through four sale deeds dated 18-3-1980. The property had been mutated in the name of plaintiffs and tenants were directed to pay rent to them. Some of the tenants namely Md. Mustaqe and Laxman Thakur vacated the suit premises occupied by them but Md. Suleman did not vacate the suit land and hence an eviction suit was filed against Md. Suleman and on trial the suit was decreed in favour of the plaintiffs and accordingly Md. Suleman had to vacate the suit

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premises occupied by him.

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Further case of the plaintiffs was that a request was made to defendant no.1/ appellant also to vacate the suit premises but he avoided on one pretext or the other and subsequently in collusion with Ram Roop Das Agrawal ( defendant no.3), vendor of defendant no.4, got a deed of attorney executed on 7-12-1984 by defendant no.4, Smt. Radha Devi in favour of one Jamil Ahmad. On the basis of said deed of attorney Jamil Ahmad executed two sale deeds dated 21-12-1984 in the name of defendant no.1 for an area of four dhurs and another in the name of defendant no.2 for an area of two dhurs.

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The plaintiffs claimed that defendant no.4, Smt. Radha Devi had no right, title or interest to sell the suit property to defendant nos. 1 and 2. The plaintiffs accordingly pleaded that the two sale deeds dated 21-12-1984 executed by attorney, Jamil Ahmad were fraudulent, void and inoperative and not binding upon the plaintiffs. In view of the sale deeds, defendant no.1 stopped the payment of rent to the plaintiffs.

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Defendants 1 and 2 appeared and filed their written statement stating therein that defendant 3rd party did not constitute Joint Hindu Family and they had separated soon after the death of Gokul Prasad, and defendant no.4, Smt. Radha Devi was allotted six dhurs of land in her share in the middle of plot no. 1359 having an area one katha, fifteen dhurs and twenty seven dhurki with house and therefore, according to them the sale made by Ram Roop Das Agrawal ( defendant no.3) in favour of the plaintiffs in respect of the entire area of plot no. 1359 was not valid and was contrary to law and the plaintiffs never came in possession of the suit land. The defendants further pleaded that as Radha Devi was

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not in a position even to move, she had executed deed of attorney dated 7-12-1984 in favour of Jamil Ahmad and on the basis of power of attorney said Jamil Ahmad validly executed two sale deeds dated 21-12-1984 in favour of defendants 1 and 2 and hence defendants 1 and 2 became entitled to the suit property.

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It is to be noted that Ram Roop Das Agrawal ( Defendant no.3) is the son of Gokul Prasad who was defendant no.3 in the suit whereas Smt. Radha Devi ( defendant no.4) is wife of Gokul Prasad and vendor of defendants 1 and 2 of the suit land.

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On the basis of aforesaid facts the learned trial court framed seven issues during trial but the main issues are issue nos. (iii ) to vi which are as follows:-

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“( iii ) Have the plaintiffs’ title over the suit land as

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mentioned in the plaint ?

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(iv) Is there relation of land-lord and tenants between the plaintiffs and defendants 1 and 2 and the plaintiffs are entitled to get arrears of rent as prayed for ?

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(v) Is the power of attorney dated 7-12-1984 executed by defendant no.4 in favour of Md. Jamil genuine and on the basis of said power of attorney, the sale deed dated 21-12-1984 executed by Md. Jamil in favour of defendants 1 and 2 valid and operative? (vi) Is the plaintiffs entitled to evict the defendant no.1 and 2 from the suit premises and to get the possession over the same ?”

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The learned trial court on the basis of the evidence both oral and documentary adduced in course of the trial held that the plaintiffs had no title over the suit premises and that there was no relationship of land-lord and tenant between the plaintiff and defendant nos.1 and 2 and therefore the plaintiffs were not entitled

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to get arrears of rent as prayed for.

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The learned First appellate court on the basis of evidence available on record and the pleadings of both the parties formulated seven points for consideration which are as follows :-

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A:- Have the plaintiffs title over the suit premises as mentioned in the plaint on the basis of sale deed executed by Ram Roop Das Agrawal ?

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B:- Was Radha Devi ( defendant no.4) entitled to sell the suit premises through her power of attorney Md. Jamil ?

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C:- Is there relationship of landlord and tenant between plaintiffs and defendant nos.1 and 2 ?

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D:- Are the plaintiffs entitled to get arrear of rent as prayed for?

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E:- Are the plaintiffs’ entitled to evict the defendant Ist. party and 2^nd party from suit premises and to get the vacant possession of the same ?

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F:- Was the properties of late Gokul Prasad Agrawal partitioned between his widow Radha Devi ( defendant no.4) and son Ramroop Das Agrawal ( defendant no. 3 ) by metes and bounds ?

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G:- Whether the judgment and decree passed by learned court below in title suit no. 39 of 1987 is valid or fit to be set aside ?”

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The first and foremost point which the Ist. Appellate Court considered was Point No. F, i.e., whether the properties of late Gokul Prasad Agrawal were partitioned between his widow Radha Devi ( defendant no.4) and son Ram Roop Das Agrawal (defendant no.3) by metes and bounds. The learned Ist. Appellate Court concluded, on the basis of evidence that there was nothing to show partition between Ram Roop Das Agrawal ( defendant no.3) and Smt. Radha Devi ( defendant no.4) and answered the

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point in negative. The points A and B were taken together. The first appellate court came to the conclusion that the plaintiffs had title over the suit property and that Radha Devi was not entitled to sell the suit premises through her power of attorney executed in the name of Md. Jamil Ahmad.

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Dealing with point nos. C and D the first appellant court held that there was relationship of landlord and tenant between the plaintiffs and the contesting defendants and also that the plaintiffs were entitled to get the arrears of rent from the contesting defendant. In view of this finding, the first appellate court held that the judgment and decree of the trial court was fit to be set aside.

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Mr. Abdul Mannan Khan, learned counsel appearing on behalf of the appellants has submitted that the findings of fact arrived at by the first appellate court are presumptive and not on the basis of evidence available on record. He has submitted that the first appellate court committed an error of law in holding that the Karta, who sold the suit property in absence of any proof of legal necessity of the family had right to sell the joint family property. He has further submitted that there is no evidence on record that the suit property inherited by Gokul Prasad was his ancestral property or it was a self acquired property. According to him the first appellate court has wrongly applied the Rule of devolution of property by survivorship in absence of any material on record that the suit property was inherited by Gokul Prasad and it was not his self acquired property. He has further submitted that the First Appellate Court has wrongly disturbed the findings of the trial court though there was no reason for the same as the judgment of the trial court was based on correct principles of law.

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He has placed reliance upon the judgment of this Court reported in 1996 (1) PLJR 132 ( Haquik Mian V. Rajendra Prasad) to contend that the appellate court must not have interfered with the findings of the trial court.

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He has also relied upon a Full Bench Judgment of Rajasthan High Court reported in AIR 1973 ( Rajasthan ) 173 (Ramdayal and others Vrs. Bhanwarlal and others) to submit that burden of proving legal necessity to support alienation is upon the alienee. The alienee can succeed not only on proof of legal necessity but also on proof that the alienee made reasonable enquiries and was satisfied as to the existence of the legal necessity. According to him, in the present case there was absolutely no element of legal necessity pleaded.

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Mr. Shashi Nath Jha, learned counsel appearing on behalf of respondent no.20, on the other hand,while supporting the judgment of the first appellate court, has contended that the present second appeal does not involve any substantial question of law. According to the learned counsel, the findings of the first appellate court are based upon evidence available on record and no finding can be said to be contrary to the evidence.

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He would submit that this Court in exercise of power conferred under section 100 of the Code of Civil Procedure may not interfere in the case in hand as the judgment of the first appellate court cannot be said to be perverse. Justifying the transfer of the suit property made by Ram Roop Das Agrawal (defendant no.3) in favour of the plaintiffs, he has contended that admittedly Ram Roop Das Agrawal was the only surviving coparcener of the family and consequently there remained no question of absence of any legal necessity. He has placed reliance

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upon Article 255 of the Mulla Principle of Hindu Law in support of his submission which reads thus;

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“ 255 : Alienation By Sole Surviving Coparcener :

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(1) A person who for the time being is the sole surviving coparcener, is entitled to dispose of the coparcenary property, without legal necessity or he may make gift of it.”

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Mr. Jha has submitted that the first appellate court has rightly come to the finding that there was no partition between the widow of late Gokul Prasad i.e. Radha Devi ( defendant no.4) and Ram Roop Das Agrawal ( defendant no.3) and according to him the learned appellate court rightly held that there was jointness in the family.

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Mr. Abdul Mannan Khan, learned counsel for the appellant in reply, relying upon Section 6 of the Hindu Succession Act has submitted that in the present case, after the death of Gokul Prasad his interest in the property devolved upon his heir under the Act and not by survivorship, even if the property was a co-parcenary property.

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In view of rival submissions made on behalf of the parties, the question which falls for consideration in the present appeal is as to whether the findings arrived at by the trial court or by the first appellate court on the point of jointness of defendant no.3 and defendant no.4 can be said to be perverse, contrary to evidence or the law. In view of the rival submissions, it is to be considered as to whether the first appellate court committed any error while applying Article 255 of the Hindu Law to conclude that Ram Roop Das Agrawal was entitled to sell the property in absence of any other coparcener in the family and what is effect of section 6 of Hindu Succession Act 1956 as it existed prior to 9-9-2005 on the

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right of Ram Roop Das Agrawal, who executed the sale deed in question.

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So far as the question of jointness is concerned, I find that the same has been dealt by the first appellate court in paragraph 9 of the judgment. The first appellate court took into account the legal presumption of jointness of Hindu Family and considering the evidence of the plaintiffs as well as defendants came to the finding of fact that there was no partition as there was no legal evidence to prove that there was partition between son and the mother ie. widow of Gokul Prasad Sah. I do not find any perversity in such finding as the learned First Appellate Court has discussed the evidence on record and has assigned reasons for reaching to such conclusion.

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From the judgment of the first appellate court it appears that applying Article 255 of Hindu Law, the first appellate court came to the finding that the sole coparcener was entitled to sell the coparcenary property as if it were his separate property. This is in the back ground of the finding that Radha Devi and Ram Roop Das Agrawal were in jointness. In my opinion Ram Roop Das Agrawal had the right to sell the property by virtue of Article 255 of the Hindu Law and conclusion of the first appellate court cannot be faulted with. So far as reference to Section 6 of the Hindu Succession Act by the learned counsel for the appellant is concerned, I am of the view that the question in the present appeal is as to whether Ram Swaroop Das Agrawal had the authority to execute the sale deed or not being the sole surviving coparcener of the family. Answer to this lies in Article 255 of Mulla on Hindu Law which has been quoted herein above. Once the First Appellate Court came to the finding that there was no

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partition between Ram Roop Das Agrawal ( Defendant no.3 ) and Radha Devi ( Defendant No.4) , as a natural corollary, Defendant no.3 happened to be the sole surviving coparcener of the Joint Family. That being so, by virtue of Article 255 of Mulla on Hindu Law, he would be well within his right to alienate the suit property. This question cannot be said to have been wrongly decided by learned First Appellate Court.

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I do not find any substantial question of law which the present appeal involves and which has been wrongly decided by learned First Appellate Court.

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The appeal is accordingly dismissed.

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(Chakradhari Sharan Singh, J)

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Naresh

Md. Nasim Ashraf @ Md. Nasim a v. Smt. Sita Devi and Ors.

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Md. Nasim Ashraf @ Md. Nasim a v. Smt. Sita Devi and Ors.

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