Dismissed

Ahilya Devi and Ors. v. Sushila Devi

Patna HC5 Feb 2013SA/91/2009

Case brief

AI extract

What is this about?

The Patna High Court dismissed an appeal against a lower court decision upholding a deed of gift and barring a title suit on limitation grounds. The court held the deceased mother had absolute ownership via inheritance and her gift was valid, while noting appellants had knowledge of the gift for years. The appeal was rejected as facts were not perverse and limitation applied.

What did the court decide?

Appeal dismissed; judgment and decree of courts below upheld.

Ahilya Devi and Ors. Vs Sushila Devi — Property and Title | Patna HC (2013)

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Patna High Court SA No.91 of 2009 (7) dt.05-02-2013

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IN THE HIGH COURT OF JUDICATURE AT PATNA

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Second Appeal No.91 of 2009

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====================================================== 1. Ahilya Devi widow of Late Ramjee Sharma 2. Suman Sharma 3. Risa Kumari- Both minor son and daughter of Late Ramjee Sharma respectly both under guardian Ahilya Devi mother and next friend All residents of M- Madhopur, PO Basudeopur PS Kotwali District Muger

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.... .... Appellants Versus Sushila Devi wife of Nitya Nand Sharma, resident of Mohalla- Majdi Barhipur, PS & PO- Sultanganj, District Bhagalpur .... .... Respondent ====================================================== Appearance : For the Appellants : Mr. Subodh Prasad, advocate For the Respondent : Mr. Jagdish Prasad No.1, advocate Mr. Ashok Kumar, advocate ====================================================== CORAM: HONOURABLE MR. JUSTICE CHAKRADHARI SHARAN SINGH ORAL ORDER

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7 05-02-2013 Heard learned counsel for the appellants and learned counsel for the respondent.

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The appeal preferred under section 100 of the Code of Civil Procedure (hereinafter referred to as the Code) has been placed for hearing under Order 41 Rule 11 of the Code.

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The appellants are aggrieved by the judgement dated 07-01-2009 and the decree dated 23-01-2009 passed by the learned Additional District Judge, F.T.C.-II, Munger in Title Appeal No. 51/05 and the judgement and decree dated 05-10-2005 and 24-10-2005 respectively passed by Munsif, I, Munger in Title Suit No. 71 of 97/ 28 of 05.

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The plaintiffs are the appellants herein and had brought the said Title Suit No. 71/97 for a declaration that the deed of gift dated 31-05-1989executed by Mostt. Siyawati Devi,

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Patna High Court SA No.91 of 2009 (7) dt.05-02-2013

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(mother-in-law of appellant No.1) in favour of Sushila Devi (daughter of Mostt. Siyawati Devi), the sole respondent, was void and illegal conferring no title or possession to the defendant over the suit land and the same was not binding upon the plaintiffs.

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The case of the plaintiffs, as developed in the plaint, was that Ramjee Sharma was son of Siyawati Devi who had a daughter also, namely, Sushila Devi (respondent). Siyawati Devi was the sole heir and legal representative of Bhago Devi, her mother, who had purchased the suit property through a registered sale deed dated 21-12-1950. Siyawati died sometime in the year 1989 leaving behind her son Ramjee Sharma and daughter Sushila Devi but before her death Siyawati Devi executed a deed of gift transferring some portion of the suit property in favour of the respondent which according to appellants is major portion of the suit property and is a residential house. The said deed of gift, which bears the signature of Ramjee Sharma, husband of appellant No.1, was challenged also on the ground that the said signature was not of Ramjee Sharma and the deed of gift was forged. It was pleaded that the property being a residential house, the defendant, Sushila Devi, could not claim any share in the same. The respondent- defendant while raising objection as regards maintainability of the suit on the ground of being barred by limitation denied the entire claim.

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On the basis of allegations and counter allegations made in the plaint and in the written statement the learned trial court framed altogether nine issues including issues No. (iv), (v) and (vii) which read thus:-

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(iv) Whether Siyawati Devi executed a deed of gift in favour of Sushila Devi and whether the same is a

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Patna High Court SA No.91 of 2009 (7) dt.05-02-2013

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valid deed of gift or the same is forged, fabricated and void document and inoperative one?

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(v) Whether Siyawati Devi had right to execute the deed of gift in favour of the defendant?

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(vii) Whether the suit is barred by the law of limitation? 7. The evidences were led by the parties before the trial court. The trial court on the basis of materials available on record while dealing with issues No. (iv) and (v) came to specific finding that the plaintiffs failed to establish that the deed of gift (exhibitA) was obtained by fraud. The learned trial court held that the deed of gift conferred a good title on the respondent/ defendant. From perusal of the judgement of the trial court, it appears that the learned trial court took into account the denial of the husband of appellant No.1 as regards his signature over the deed of gift. Learned trial court on the basis of pleadings held that the plaintiff No.1 in her plaint did not deny the signature of her husband on the deed of gift. It also appears that the said deed of gift also contains thumb impression of Most. Siyawati Devi.

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While dealing with the issue No. (vii) the learned trial court came to specific finding that Late Ramjee Sharma, husband of plaintiff No.1, had the knowledge about the deed of gift who died three years after his mother died and never challenged the said deed of gift. As per the evidence of plaintiffs themselves, they had the knowledge regarding the deed of gift as Ramjee Sharma used to tell them about the said deed of gift but they also did not challenge the validity of deed of gift till 1997. The validity of deed of gift was challenged only in 1997 when Title Suit No. 71/97 was filed. In such view of the matter, the learned trial court held that the suit was hopelessly barred by limitation.

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Patna High Court SA No.91 of 2009 (7) dt.05-02-2013

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On appeal preferred against the judgement and decree of the trial court, the appellate court vide its judgement dated 07-01-2009 dismissed the suit concurring with the findings of fact arrived at by the learned trial court on the basis of material evidence, both oral and documentary, available on the record.

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Learned counsel for the appellants while challenging the validity of the judgments of the court below has, at the very outset, submitted that the present appeal involves a substantial question of law as to whether Siyawati Devi could have made the deed of gift in favour of Sushila Devi, the sole respondent, without partition in the family having taken place. He has further submitted that in the absence of examination of witnesses to the deed of gift the courts below should not have upheld the validity of such document. He has also submitted that the courts below committed gross error while coming to the finding of fact that the deed of gift was valid and contained the signature of the husband of plaintiff No.1. He has submitted that the courts below have not taken into account properly the material evidence available on record before them.

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As regards the first submission made on behalf of the appellants that Mostt. Siyawati Devi could not make deed of gift in favour of respondent in the absence of partition in the family, I am of the view that the same has no force in view of Section 15 of Hindu Succession Act, 1956 which reads as follows:-

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“ 15. General rules of succession in the case of female Hindus - (1) The property of a female Hindu dying intestate shall devolve according to the rules set out in Sec.16,-

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(a) firstly, upon the sons and daughters (including the children of any pre-deceased son or daughter) and the husband;

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(b) secondly, upon the heirs of the husband;

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(c ) thirdly, upon the mother and father;

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(d) fourthly, upon the heirs of the father; and

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(e) lastly, upon the heirs of the mother.

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(2) Notwithstanding anything contained in sub-section

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(1),-

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(a) any property inherited by a female Hindu from her father or mother shall devolve, in the absence of any son or daughter of the deceased (including the children of any predeceased son or daughter) not upon the other heirs referred to in sub-section (1) in the order specified therein, but upon the heirs of the father; and

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(b) any property inherited by a female Hindu from her husband or from her father-in-law shall devolve, in the absence of any son or daughter of the deceased (including the children of any pre-deceased son or daughter) not upon the other heirs referred to in sub-section (1) in the order specified therein, but upon the heirs of the husband”.

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According to Section 15 read with Section 16 of the Act, on the death of Bhago Devi the property belonging to Bhago Devi devolved on Siyawati Devi who was her only legal heir being her only daughter. Siyawati Devi accordingly became the absolute owner of the property on such devolution and she could validly make the deed of gift in favour of the sole respondent. Learned counsel for the appellants has failed to refer to any statutory or customary requirement that Siyawati Devi could not have made the deed of gift or even if she could do, she could do it with respect to her share. In my opinion, in the present case, there

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is no question of any share going to Siyawati Devi as the entire property devolved upon her after the death of Bhago Devi.

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So far as findings of fact arrived at by the courts below, learned counsel for the appellants has not been able to make out a case that such findings are so perverse as to warrant any interference by this court in exercise of power under section 100 of the Code.

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Lastly, I am of the opinion that the courts below were, right in rejecting the claim of the plaintiffs on the ground that the suit was barred by limitation as the plaintiffs had the full knowledge about the existence of deed of gift since 1989 itself which fact is not in dispute.

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In such view of the matter, the appeal is dismissed.

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(Chakradhari Sharan Singh, J)

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BKS/-

Ahilya Devi and Ors. v. Sushila Devi

Case brief

What is this about?

What did the court decide?

Ahilya Devi and Ors. v. Sushila Devi

Case brief

What is this about?

What did the court decide?

What the court decided

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Issues for consideration

Statutes considered

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