In this first appeal, the Patna High Court dismissed the appeal of sisters challenging a partition suit decree. The court held that the lower court's finding that the respondent is the daughter of the deceased father was based on consistent evidence and was not perverse.
The appeal was dismissed; the judgment and decree of the first instance were affirmed.
This page shows the compact analysis of this judgement. The full analysis — procedural history, issue-by-issue holdings with ratio and obiter, advocates, and paragraph-level evidence for every claim — is being added to the record in batches and will appear here when this judgement has been through it.
IN THE HIGH COURT OF JUDICATURE AT PATNA FIRST APPEAL No.119 of 2006
======================================================
... ... Respondent/s
| ===================== Appearance : For the Appellant |
==== : |
============================= Mr.Rakesh Kumar Srivastava, Advocate Mr.Anirudh Kumar Sinha, Advocate |
|---|---|---|
| For the Respondent No.1 For the Respondent No.2 to 4 For the Respondent No. 7 ===================== |
: : : ==== |
Mr.Suraj Kumar Yadav, Advocate Mr.Umesh Prasad, Advocate Mr.K. Vishoka Nand, Advocate Ms.Nilam Kumari, Advocate Mr. Phulen Yadav, Advocate ============================= |
| CORAM: HONOURABLE CAV JUDGMENT Date : 05 -12-2022 |
MR. | JUSTICE RAJIV ROY |
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The present First Appeal has been preferred against the order and judgment dated 25.5.2006 and the decree dated 30.5.2006 in Partition Suit No. 246 of 2000 (Sita Devi v/s Most. Luhia Devi and Ors) by which the learned Civil Judge, Senior Division-VI, Samastipur, held that the plaintiffrespondent, Sita Devi is entitled to 1/3rd share of the land as also 4 katha 1 dhur from the 1/3rd share of her mother, Luhia Devi which was gifted to her by a registered deed dated 25.8.2000.
| **[kkrk iq0 ** | [kkrk ua0 | [ksljk iq0 | [ksljk ua0 | jdck | pkSgnh |
|---|---|---|---|---|---|
| 1 | 203 | 1051 | 1388 | 0-4-12 | m0&gseu jk; oks nksfjd jk; n0&Hkksyk Bkdqj iq0&tokgj Hkxr i0&f=os.kh Bkdqj oks Hkksyk Bkdqj |
| 1057 1058 1060 |
1401 1402 1403 |
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| 1064 | 1395 | 0-3-09 | m0&Hkksyk Bkdqj n0&'kEHkw Bkdqj oxS0 iq0&cnzh jk; oxS0 i0&v'kQhZ jk; oxSj |
Patna High Court FA No.119 of 2006 dt.05-12-2022
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| 1099 | 1275 | 0-4-12 | m0&f=os.kh Bkdqj n0&jke cgknqj flag iq0&ekyk nsoh i0&jke cgknqj flag |
|---|---|---|---|
| 1175 | 1403 1414 |
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| 1279 1280 1288 |
1767 1775 |
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| 1-8-8 |
Brihaspati Rai
Nirsan Rawat Bhola Rawat (died in a state of jointness)
Muni Lal Rai Lakhi Devi (died-1985) (daughter, not granted any share) Luhia Devi (wife)
Sita Devi Pawan Devi
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(i) she was married and despite her marriage, she used to take care of her mother;
(ii) happy with the said service, her mother Luhia Devi executed deed of gift on 25.8.2000 with regard to 4 kathas 1 dhur out of her 1/3rd share;
(iii) accordingly, she got possession of the said land;
(iv) during 'Durga Puja', same year, she went to her in-laws house;
(v) her another sister, Pawan Devi took advantage of the said absence of the plaintiff and accordingly got executed another deed of gift from Luhia Devi on 16.10.2000 with regard to14 kathas much above the 1/3rd share of the mother;
(vi) Muni Lal Rai had left behind only 28 kathas 8 dhurs;
(vii) accordingly, Luhia Devi was entitled to only 1/3rd of the share i.e. 8 kathas 2 and half dhurs;
(viii) as such, she was not entitled to execute any deed of gift for 14 kathas i.e. half of the land in the backdrop of the fact that she had already executed 4 kathas 1 dhur in favour of the plaintiff vide registered deed dated 25.8.2000;
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(ix) accordingly, after the knowledge of the fraudulent act of her sister, she demanded partition;
(x) the same having been refused, the Partition Suit No. 246 of 2000 was filed.
Devi) herein appeared and filed her reply with the following submissions :
(i) she had already filed Partition Suit No. 240 of 2000 which is pending;
(ii) the gift deed dated 25.8.2000 is in fact a forged and fabricated document; (iii) the genealogy that the plaintiff has provided is wrong and baseless;
(iv) Luhia Devi was married to Babuji Rai and the couple was blessed with a daughter, Sita Devi;
(v) Babuji Rai died whereafter Luhia Devi along with her daughter, Sita Devi went to her 'Maika';
(vi) subsequently, she got married with Muni Lal Rai from whom Pawan Devi was born;
(vii) she was the only child that was born out of that wedlock with Muni lal Rai and as such she is entitled to half of the share of the land;
(viii) it is wrong to say that Sita Devi
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used to take care of her mother;
(ix) she fraudulently got the deed of gift executed when her mother was ill;
(x) as such, the Partition Suit is fit to be dismissed.
amongst them were as follows :
(i) whether the suit is maintainable?;
(ii) whether the plaintiff is entitled to 1/3rd share?;
(iii) whether the plaintiff is daughter of Muni Lal Rai?;
(iv) whether she is entitled for the relief.
P.W. 1,Sita Devi(plaintiff)
P.W. 2, Brajeshwar Rai
P.W. 3, Hari Lal Rai
P.W.-4, Ram Swaroop Rai
P.W.-5, Narsingh Rai and
P.W.-6, Bir Bahadur Rai.
respondent were:
(i) gift deed dated 25.8.2000;
(ii) Exhibit-2 – voter list.
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that were produced were :
DW-1, Kameshwar Rai,
DW-2, Suva Lal Rai,
DW-3 Ramchandra Rai,
DW-4, Ramashray Rai and
DW-5, Luhia Devi.
were :
25-1-1986;
(xii) Exhibit-K-and K/5-certified copy of voter list.
consideration at first instance which included :
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(iii) whether she is in possession of the land.
(i) DW-1, Kameshwar Rai, husband of the defendant-Pawan Devi who made statement that earlier Babuji Rai had married Luhia Devi from whom Sita Devi was born;
(ii) Babuji Rai died and subsequently, Luhia
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Devi married Muni Lal Rai from whom his wife, Pawan Devi was born. It was his further statement that from the said wedlock, only Pawan Devi was born and no other child was born.
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Court held that :
(i) the consistent stand of the PWs are that Luhia Devi married Muni lal Rai and both Sita Devi and Pawan Devi are their children; (ii) Muni Lal Rai left behind 28 kathas 8 dhurs and as such the mother and the two daughters are entitled to 1/3rd share;
(iii) the contradictory statement of the defendant witnesses clearly shows that Pawan Devi was not the only child who was born out of the wedlock;
(iv) Luhia Devi did not alleged that the gift deed of Sita Devi is a forged and a fabricated document;
(v) as such the plaintiff beside her 1/3rd share is also entitled to 4 kathas 1 dhur which was given to her by Luhia Devi by gift deed;
(vi) subsequently, Luhia Devi also executed gift in favour of Pawan Devi and as such whatever land is left from her share, Pawan Devi can be entitled to only that part of the said land.
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same on 25.5.2006 itself after recording its finding. The same has been brought on record by way of Annexure-I to the present appeal.
(i) the lady, Sita Devi was not the daughter of Muni Lal Rai, rather she was daughter of Babuji Rai with whom Luhia Devi had earlier married and only after his death, she got married to Muni Lal Rai from whom only Pawan Devi was born;
(ii) the deed of gift was obtained by Sita Devi by fraud;
(iii) Luhia Devi did not supported the plaintiff version;
(iv) the Partition Suit No. 240 of 2006 (preferred by the appellants herein) should not have been taken up and dismissed on the same day;
(v) the plaintiff had to prove that she is the daughter of Muni Lal Rai;
(vi) as she failed to do so, the finding arrived at by the learned Court is perverse and as such, the order is fit to be set aside;
(vii) the learned Court failed to consider the evidences of the DW-1 and DW-5 properly.
attention to an order of Patna High Court in F.A. No. 127 of
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2002 (Lalan Dusadh @ Lallan Dusadh and Ors v/s Ram Narain Dusadh and Ors) disposed of on 6.4.2011 to submit that it was for the plaintiff to prove her case.
28.The learned counsel for the respondent, on the other hand pleaded that :
(i) Sita Devi was daughter of Luhia Devi and Muni Lal Rai;
(ii) the mother and the two daughters being the heirs of late Muni Lal Rai were entitled to 1/3rd share;
(iii) she used to take care of her mother and pleased with her service, the gift deed was executed on 25.8.2000 with regard to 4 kathas 1 dhur out of her 1/3rd share;
(iv) she was in physical possession of the 1/3rd share as also the 4 kathas 1 dhur that was gifted by her mother;
(v) the finding arrived at by the learned Court is just and proper;
(vi) as such the present appeal is fit to be dismissed.
through the records of the case, the considered view of this Court is/are that :
(i) the question before the learned Court below was whether the lady, Sita Devi is daughter of Muni Lal Rai or not;
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(ii) the Court examined the PWs and DWs and came to a definite finding that so far as the statement of the PWs are concerned, they were consistent on the fact that both Sita Devi and Pawan Devi are daughters of Muni Lal Rai and Luhia Devi;
(iii) on the other hand, the Defendant witnesses made contradictory statement inasmuch as while DW-1 stated that only Pawan Devi was born out of wedlock, as per the statement of another witness, three children were born out of the said wedlock; (iv) the learned Court further took into account the fact that even the DW-5, Luhia Devi, mother of both Sita Devi and Pawan Devi talked about her marriage to Muni Lal Rai but has not made any categorical statement that Sita Devi is not the daughter of Muni Lal Rai;
(v) further, Luhia Devi also did not disputed the authenticity of the gift deed dated 25.8.2000 but merely stated that it may have been taken when she was ill;
(vi) the learned Court further took into account the fact that the said Muni Lal Rai left behind 28 kathas 8 dhurs of land which the mother and the two daughters have to be given in equal share of 1/3rd each;
(vii) accordingly, the learned Court held that as the plaintiff has proved that she is
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daughter of Muni Lal Rai and Luhia Devi and defendant failed to controvert it despite producing number of witnesses and putting on record number of exhibits, it came to a definite conclusion that not only she is entitled to 1/3rd of the share but is also entitled to 4 kathas 1 dhur which has been gifted to her through registered deed by Luhia Devi, mother out of her 1/3rd share.
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arrived at by the learned Court.
(Rajiv Roy, J)
Ravi/Ajay-
| AFR/NAFR | NAFR |
|---|---|
| CAV DATE | 24.11.2022 |
| Uploading Date | 05.12.2022 |
| Transmission Date | NA |
2 issues framed by the court
Whether the appellant was entitled to set aside the lower court's finding that the respondent is the daughter of Muni Lal Rai and Luhia Devi.
Whether the respondent is entitled to the 1/3rd share of the land and the gifted portion granted by the lower court.
Smt. Pawan Devi and Kameshwar Rai
Smt. Sita Devi
RAJIV ROY
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court
