FIRST APPEAL No.766 of 1977 Against the Judgment dated 10.08.1977 and the decree signed on 23.08.1977 by Sri Aniruddh Prasad Chaudhary, Addl. Sub Judge, Barh in Title Suit No.52 of 1976-77. ------- CHANDESHWAR PRASAD ------------Defendant No.2-Appellant Versus MOST. JEERA DEVI & ORS. ---------------- Plaintiff-Respondents For the Appellant – Sri D.P. Sharma, Advocate Sri Madan Prasad Singh, Advocate Sri Mongal Pandit, Advocate For the Respondent – Sri Ganpati Trivedi, Advocate, Sri Manoj Kumar Pandey, Advocate Dated : 22nd day of July, 2010 P R E S E N T HON'BLE MR. JUSTICE MUNGESHWAR SAHOO ------------- J U D G M E N T Mungeshwar Sahoo, J. (1) The defendants have filed this First Appeal against the Judgment dated 10.08.1977 and the decree signed on 23.08.1977 by Sri Aniruddh Prasad Chaudhary, the learned Addl. Sub Judge, Barh, in Title Suit No.52 of 1976-77 decreeing the plaintiff-respondent’s suit for partition. (2) The plaintiff-respondents filed the aforesaid suit praying for partition and for declaration that the dead of gift dated 14.11.1975 executed by defendant No.1 in favour of defendant No.2 is not binding on the plaintiffs. (3) It may be mentioned here that the defendant No.1, Mostt. Feko Devi@ Feko Dasi was the original appellant No.1 in this First Appeal. During the pendency of this First Appeal, she died and her name has been expunged. 2 (4) The plaintiff-respondents filed the aforesaid suit claiming aforesaid relief on the facts inter alia that the suit property belonged to Ramswaroop Mahto. The defendant No.2, Mostt. Feko Devi was the first wife of Ramswaroop Mahto. The plaintiff No.1 is the second wife of Ramswaroop Mahto and the other plaintiff-respondents are the son and daughter of Ramswaroop Mahto. (5) According to the plaintiff, Ramswaroop Mahto died on 14.09.1975. He had no issue from the defendant No.1. With consent of her, he married the plaintiff No.1. Out of said second wedlock, Ramswaroop had 3 children. Plaintiff No.3 and 4 are daughters and plaintiff No.2 the son was born on 28.03.1976 after the death of Ramswaroop Mahto on 14.09.1975. Late Ramswaroop Mahto was allotted the suit property in the partition with his cousin. After the death of Ramswaroop Mahto, the plaintiff and defendant No.1 came in joint possession of all the properties and the plaintiff No.1 is managing the property. The defendant No.2-appellant is the brother’s son of defendant No.1. Because of greed, the defendant No.2 got a deed of gift executed by Mostt. Feko Devi, the defendant No.1 on 24.11.1975. Although, she had no right to executed the gift regarding Schedule ‘2’ property of the plaintiff. The deed of gift is illegal and in valid and does not convey any right title or interest to the defendant No.2. On the basis of gift, the defendant No.2 tried to dispossess the plaintiff. The plaintiff demanded partition but the defendant No. 1 avoided. Because of legal necessity, the plaintiff No.1 has sold plot No.314 measuring 10.5 desimal to defendant No.3 who is in possession. The plaintiff have got 15 anas share in the suit property. (6) The defendants No. 1 and 2 filed a contesting written statement. Their case in short is that plaintiff No.1 is not legally married 3 wife of Late Ramswaroop Mahto. Ramswaroop Mahto married her in 1959 without consent of defendant No.1. Because of this marriage, dispute arose between the two wives so in 1961, Ramswaroop Mahto partitioned his all properties between himself and his two wives. He gave 10.5 biggha to the plaintiff No.1 and 10.5 biggha to the defendant No.1 and he himself kept about 15 biggha land. He also delivered possession of the partition property to the wives who came in possession and mutated regarding the said lands. They are paying rent separately. Only the plaintiff No.3 and 4 are the daughter of Ramswaroop Mahto born through plaintiff No.1. Plaintiff No.2 is not the son of Ramswaroop Mahto rather he is the son of brother of plaintiff No.1. (7) The further case of the defendants is that Ramswaroop Mahto was suffering from T.B. and was not keeping good health for last 25 to 26 years before his death. So, he was keeping the defendant No.2 to look after and manage the family properties. Defendant No.2 was managing the properties and out of pleasure, defendant No.1 executed a deed of gift regarding the property which had been given to her by Ramswaroop in partition in the year 1961. And since then, the defendant No.2 is in possession of all these gifted properties. The defendant No.3 got sale deed executed knowing the gift in favour of defendant No.2. However, the defendant No.3 is not in possession of the property sold to him by plaintiff No.1 rather the defendant No.2 is in possession. After death of Ramswaroop Mahto, the property which was in possession of Ramswaroop came in possession of defendant No.1 who is living with defendant No.2 in the same house and the defendant no.2 is also managing the said property. Since the defendant No.2 acquired title on the basis of gift deed simple suit for partition is not maintainable unless advolerum court fee is paid. 4 (8) The defendant No.3 filed a supporting written statement supporting the plaintiff’s case. He claimed that after purchase through registered sale deed dated 14.01.1976, he is in possession on 10.5 decimal land comprised within plot No.314, Khata No.333. His property has wrongly been listed in the scheduled of the plaint. (9) On the basis of these pleadings of the parties, the learned Court below framed as many as 11 issues which are as follows : (i) Is the suit as framed maintainable? (ii) Have the plaintiffs got cause of action for the suit ? (iii) Is the court fee paid insufficient ? (iv) Is the suit bad for misjoinder of unnecessary parties and claims? (v) Is the plaintiff No.2, son of Late Ramswaroop Mahto be gotten by him and born from plaintiff No.1? (vi) Is the plaintiff No.1 legally wedded wife of Ramswaroop Mahto? (vii) Are the plaintiff entitled to claim partition from defendant No.1 with respect to suit properties mentioned in Schedule 1 and 2 of the plaint? (viii) Is the deed of gift dated 24.11.1975 executed by defendant No.1 in favour of defendant No.2 valid, genuine and for consideration and operative in the eye of law and binding on the plaintiffs? (ix) Is the plaintiff’s got unity of title and possession over the lands in the suit? (x) Are the plaintiffs entitled to a decree as prayed for? (xi) To what other relief or reliefs, if any, are the plaintiff entitled ? (10) After trial by the impugned Judgment and decree, the learned Court below came to the conclusion that plaintiff No.1 is legally wedded wife of Ramswaroop Mahto. The learned Court below also found that the 5 marriage took place prior to passing of Hindu Marriage Act, 1955. The learned Court below also found that plaintiff No.2 is the son of late Ramswaroop Mahto born after his death. The learned Court below also found that there was no partition of the lands between plaintiff and defendant No.1 as alleged by defendant No.1 and 2. All the properties are continuing in joint possession. The learned Court also found that the deed of gift is valid to the extent of only one ana share of defendant No.1. On the basis of all these findings, the learned Court below decreed the plaintiffs suit. (11) As stated above during the pendency of this Appeal, the original defendant No.1-appellant Mostt. Feko Devi died and her name has been expunged. Now, therefore, the situation has changed. The appellant No.2, i.e., Chandeshwar Prasad is stranger to the family and admittedly he is not heirs of Ramswaroop Mahto. He is claiming title on the basis of gift deed executed by defendant No.1-appellant No.1 Mostt. Feko Devi who died. (12) The learned counsel for the appellant submitted that in view of the above fact, the appellant, Chandeshwar Prasad is claiming only the entire property gifted to him without challenging the other part of the findings on other issues. The learned counsel submitted that during life time of Rameshwar Mahto in the year 1961, partition took place and the names of the defendant No.1 as well as plaintiff No.1 were mutated with regard to property allotted in their share, i.e., 10.5 biggha each. The rent receipts have been filed and other documentary evidences have been adduced by the defendants-appellant to show that in fact partition took place but the learned Court below wrongly held that no partition took place. The learned counsel further submitted that because of the said partition in the year 1961, the defendant No.1 was in exclusive possession 6 of 10.5 biggha land allotted in her share and she was paying rent after mutation against the grant of rent receipts and, therefore, she had acquired right title and possession over the same and on the death of Ramswaroop Mahto, she became the absolute owner of the said property and, therefore, she executed the gift deed in favour of defendant No.2- appellnt conveying good title on him. The learned counsel further submitted that the plaintiff have got no share with respect to those gifted properties which are in possession of the defendant No.2-appellant. (13) The learned counsel alternatively submitted that even it is held that there is no partition in the year 1961 then also after death of Ramswaroop, defendant No.1 inherited the property of Ramswaroop to the extent of 1/3rd share jointly with plaintiff No.1 because for carving out the share a notional partition shall be presumed to have taken place just before the death of Ramswaroop Mahto. In such circumstances, 1/3rd will go jointly to both the widow, 1/3rd will go to the plaintiff No.2 the son and the rest 1/3rd which was the share of Ramswaroop Mahto will devolve upon the plaintiffs and the defendant No.1 jointly, i.e., 1/4th of 1/3rd (1/4th X 1/3rd = 1/12th ) 1/12th to each of the daughters and son and 1/12th jointly to the plaintiff No.1 and defendant No.1. (14) On the basis of this, the learned counsel submitted that the gift deed will be valid to the extent of the share of defendant No.1, but the learned Court below has wrongly held the defendant No.1 has only one ana share. On these grounds, the learned counsel submitted that the impugned Judgment and decree are liable to set aside. (15) On the other hand, the learned counsel appearing on behalf of the respondent submitted that according to the case of the parties, it is admitted that the suit property belonged to Ramswaroop Mahto and he was the absolute owner. During lifetime of Ramswaroop Mahto, nobody 7 had any title on the same. And, therefore, in 1961, no partition could have been effected by Ramswaroop Mahto conveying valid title regarding 10.5 biggha land either in favour of defendant No.1 or in favour of defendant No.2. According to the learned counsel, except the rent receipts and separate demand there is no other evidence to show that title of Ramswaroop Mahto extinguished. The learned Counsel further submitted that the defendant No.2 having greedy eye has created all these documents with a view to grab the land. According to him if in fact Ramswaroop Mahto was pleased by his service then he himself would have executed the gift deed and moreover the defendant No.1 also did not execute the gift deed during the life time of Ramswaroop Mahto but as soon as he died on 14.09.1975, the defendant No.2 got the gift deed executed in November, 1975. The learned counsel further submitted that in fact there was no such partition and all the plaintiffs and defendants were residing jointly with Ramswaroop Mahto and the learned Court below has rightly found the same. (16) The learned counsel further submitted that the defendant No.1 has no right to execute the gift deed in favour of defendant No.2 regarding joint property because on the death of Ramswaroop Mahto, the widows, i.e., plaintiff No.1 and defendant No.1 jointly inherited one block of share and unless there is a partition between the two widows one widow has no authority/ right to transfer by way of gift the undivided share because on her death, the property will devolve on the principles of survivorship on the other widow. The learned counsel further submitted that since the defendant No.1 has executed the gift deed regarding joint property, it is a void document and no right title or possession passed on to the defendant No.2. The learned counsel further submitted that when the coparcener has no right to execute gift with respect to joint property, 8 then there is no question of execution of gift by the widow with respect to her undivided interest. On the basis of this submission, the learned counsel submitted that the appeal is liable to be dismissed. (17) In view of the above findings of the parties, the following points arises for consideration in this Appeal : (i) Whether there had been partition between deceased Ramswaroop Mahto, defendant No.1 and plaintiff No.1 during the life time of Ramswaroop Mahto in 1961 as alleged by the defendant. (ii) Whether the defendant No.1 had the right to execute the gift deed in favour of defendant No.2 and whether the gift deed is legal valid and conveyed right title in favour of the defendant No.2. F I N D I N G S (18) Point No. (i) – According to the plaintiff’s case, the entire suit property belonged to late Ramswaroop Mahto. He got the said property in partition between him and Yogeshwar Mahto, the first cousin. This fact is admitted by the defendants. Therefore, the property came in the hand of Ramswaroop Mahto in partition and because there was no other male member in the family of Ramswaroop Mahto, although the property was ancestral property, he became the absolute owner of the said property. Nobody had any interest in the said property. The widow will inherit the property only after his death. (19) According to the defendants during the life time of Ramswaroop Mahto, property was partitioned in the year 1961. In that partition, Ramswaroop gave 10.5 biggha land to each of the widow and thereafter their names have been mutated separately. Ramswaroop Mahto retained 15 bigghas of land for himself. It may be mentioned here that except the oral evidence regarding partition, no document has been filed. As has been held above, Ramswaroop Mahto was the absolute owner so without their being any registered document, he could not have conveyed 9 title with respect to his property measuring 10.5 bigghas in favour of either defendant No.1 or plaintiff No.1. The alleged partition cannot also be treated as gift made by Ramswaroop Mahto to his wives because for gifting immovable property registered gift deed is necessary. There is no other mode alleged by the defendants-appellants how the title passed to them. It is well settled principal of law that if law requires that title will pass only on execution of a registered document, it will not pass unless the said documents is executed and registered according to law. It is not the case that the widows have pre-existing title and interest in the property. Therefore even if possession is given then also their possession will be permissive possession. In other words by mere admission, title will not be vested regarding immovable property valued more than Rs.100/- in favour of a person who has no title. (20) The learned counsel for the appellant submitted that late Ramswaroop Mahto himself got the names of the widows mutated with regard to the property allotted to the wives separately. Reliance has been placed on Exhibit ‘I-2’ to I-2/2 which are register-II in the name of defendant No.1, Ramswaroop Mahto and plaintiff No.1 respectively. The appellants also relied upon 7 rent receipts Exhibit ‘G’ series which are in the name of defendants. The learned counsel for the appellant submitted that these documents amply proved the fact that there had been partition between Ramswaroop Mahto and his two wives as far back as in 1961. So far this submission is concerned, in my opinion, the revenue records, i.e., entry in Jamabandi / register-II relates to only fiscal matter and are not the document of title. The entry in Jamabandi and the grant of rent receipts neither creates any title in favour of a person who has no title nor extinguishes title of the person who has the title. Moreover, in the present case, it is not the case that the defendant No.1 was living separately. 10 Defendant No.1 in her evidence at paragraph 11 has stated that so long Ramswaroop Mahto was alive, he was collecting the rent of the house which was allotted to her in partition. This evidence of defendant No.1 clearly proves that Ramswaroop Mahto had not divested his title and moreover he could not have divested his title without their being any registered document. Over and above this, it is specific case of the defendants that when partition took place, the other relatives of the parties when asked Ramswaroop Mahto to execute gift deed in favour of the wives he evaded vide the evidence of defendant No.1 and 2 and D.W.10 and D.W.6. (21) It is the case of the defendants that the defendant No.2- appellant was residing since long in the house of Ramswaroop Mahto. There was no male members. There is no evidence on record to show as to on what basis the names were mutated separately. The order has also not being produced. Only the register-II and rent receipts have been proved which are not sufficient to prove that in fact there was partition and moreover partition is effected between the co-sharer, i.e., between persons who had pre-existing title. In the present case as discussed above because the property belonged to Ramswaroop, no title can be created in favour of the two widows, by mere entering, the name in revenue record. (22) The learned counsel for the appellant further submitted that she became the absolute owner of the property which she was possessing on the date of death of Ramswaroop. The learned counsel relied upon a decision reported in 2009 (4) P.L.J.R. 48 (S.C.) (Gangamma Vs. G. Naga Ranthnamma) and submitted that on the death of Ramswaroop, defendant No.1 was in possession of the property and, therefore, she became the absolute owner on his death. It appears that in the case referred to by the learned counsel, the property were standing in the name of the ladies. 11 The acquisition were made by registered deed of sales as would be evident from paragraph 7. In the present case, the defendants are claiming title on the basis of mutation only. Therefore, the decisions cited by the learned counsel for the appellant is not helpful to the appellant. (23) The learned counsel for the appellant submitted that even if the partition is of the year 1961 is not believed then also on the death of Ramswaroop Mahto, the defendant No.1 will be entitled to her share and the gift deed executed in favour of defendant No.2 will be valid to the extent of her share. (24) From perusal of the gift deed Exhibit B-1, it appears that all the properties which are mutated in the name of defendant No.1 has been gifted. We have seen above that by mere mutation of the name title did not pass on the defendant No.1. We have also seen that Ramswaroop Mahto was exercising right of possession over all the properties. The separation even if admitted then the partition cannot be said to be absolute partition but it must be held that the partition was only for the convenience of enjoyment only and there was no relinquishment of the right title. (25) In view of my above discussion, I find that the defendants have failed to prove the alleged partition of the year 1961 as pleaded by them. The finding of the learned Court below on this point is, therefore, hereby confirmed. (26) Point No. (ii) – According to the defendants, the defendant No.1 inherited the property after the death of Ramswaroop and since the gift deed has been executed by defendant No.1 after his death, the gift deed will be valid to the extent of share of defendant No.1. The learned counsel submitted that on the death of Ramswaroopo Mahto in notional partition, 1/3rd share will go to both the widows jointly and, therefore, the 12 share of defendant No.1 will be 1/6th. On the death of Ramswaroop Mahto again both the widows will inherit 1/4th of 1/3rd , i.e., 1/12th jointly and the share of defendant No.1 will be 1/24th. On calculation, 1/6th + 1/24th , it comes to 5/24th which will be the share of defendant No.1 in the whole suit property. The learned counsel on the basis of this calculation submitted that the gift deed will be valid upto this share and, therefore, the defendant No.2-appellant is entitled to said share. (27) Now, let us see the legal position regarding this submission. The Hon’ble Supreme Curt in A.I.R. 1978 (S.C.) 1239 (Gurupad Khandappa Magdum Vs. Hirabai Khandappa Magdum at paragraph 13 has held as follows : “In order to ascertain the share of heirs in the property of a deceased coparcener it is necessary in the very nature of things, and as the very first step, to ascertain the share of the deceased in the coparcenary property. For, by doing that alone can one determine the extent of the claimant’s share. Explanation 1 to S. 6 resorts to the simple expedient undoubtedly fictional, that the interest of a Hindu Mitakshara coparcener “shall be deemed to be” the share in the property that would have been allotted to him if a partition of that property had taken place immediately before his death. What is therefore required to be assumed is that a partition had in fact taken place between the deceased and his coparcerners immediately before his death. That assumption, once made, is irrevocable. In other words, the assumption having been made once for the purpose of ascertaining the share of the deceased in the coparcenary property, one cannot go back on that assumption and ascertain the share of the heirs without reference to it. The assumption which the statute requires to be made that a partition had in fact taken place must permeate the entire process of ascertainment of the ultimate share of the heirs, through all its stages. To make the assumption at the initial stage for the limited purpose of ascertaining the share of the deceased and then to ignore it for calculating the quantum of the share of the heirs is truly to permit one’s imagination to boggle. All the consequences which flow from a real partition have to be logically worked out, which means that the share of the heirs must be ascertained on the basis that they had separated from one another and had received a share in the partition which had taken place during the lifetime of the deceased. The allotment of this share is not a processual step devised merely for the purpose of working out some other conclusion. It has to be treated and accepted as a concrete 13 reality, something that cannot be recalled just as a share allotted to a coparcener in an actual partition cannot generally be recalled. The inevitable corollary of this position is that the heir will get his or her share in the interest which the deceased had in the coparcenary property at the time of his death, in addition to the share which he or she received or must be deemed to have received in the notional partition”. (28) In view of above settled principal of law, there is no dispute regarding the share of widow, i.e., defendant No.1. Regarding devaluation of interest when two widows are there, the matter have been dealt with by this Court in 2000 (4) P.L.J.R.