APPEAL FROM APPELLATE DECREE No.198 OF 1999 *** Against the judgment and decree dated 16th of March, 1999 passed by Sri Shobha Kant Pathak, Vth Additional District Judge, West Champaran, Bettiah in Title Appeal No. 90 of 1996 reversing in part the judgment and decree dated 17.10.1996 passed by Sri D.K. Jha, Munsif, Bettiah in Title Suit No. 156 of 1994. *** PRABHAWATI DEVI & ANR. --- Appellants Versus SMT. KALAWATI DEVI & ANR. --- Respondents For the appellants : M/s Narmadeshwar Jha & Chandra Mohan Jha, Advocates. For the respondents : M/s R.S. Dwivedi, Shambhu Sharan Singh and Umesh Kr.Singh, Advocates. P R E S E N T HON’BLE MR. JUSTICE S.N. HUSSAIN This second appeal has been filed by plaintiffs-respondents-appellants against judgment and decree of the learned court of appeal below. 2. The matter arises out of Title Suit No. 156 of 1994 which was filed by the plaintiffs on 26.07.1994 challenging two registered deeds of gift executed by Phulpati Devi (defendant no.1-respondent no.2) in favour of her daughter Kalawati Devi (defendant no.2- respondent no.1) one dated 25.05.1988 (Ext.C) with respect to 04 Dhurs 8 ½ Dhurkis of homestead land and the other dated 31.05.1991(Ext.C/1) with respect to 06 Bighas 05 Kathas 18 Dhurs 15 Dhurkis of agricultural land and for other ancillary reliefs. 3. The claim of the plaintiffs was that the predecessor in interest of the parties was one Paspat Prasad who had 04 Dhurs 8 ½ Dhurkis of homestead market land and 11 Bighas 02 Kathas and 08 Dhurs of agricultural land. The said Paspat Prasad died in the year 1986 leaving behind a widow Phulpati Devi(defendant no.1 ) and three daughters Kalawati Devi(defendant no.2), Prabhawati Devi(plaintiff no.1) and Lalti Devi(plaintiff no.2) as his heirs and legal representatives and hence, every one of them including Phulpati Devi got 1/4th share in his said property. It was also claimed that by registered sale deed dated 25.05.1988, Phulpati Devi transferred the entire homestead market land to Kalawati Devi whereas by registered deed dated 31.05.1991 Phulpati Devi transferred more than ½ of the agricultural land of the joint family to Kalawati Devi, hence, she transferred lands much more than her share in both the properties and accordingly, the said deeds were bad at least 2 to the extent of lands gifted in excess to 1/4th share of Phulpati Devi. It was also claimed that parties are still joint and there is no partition by metes and bounds and hence there is no occasion for transferring specific lands by one of the co-sharers. It was also claimed that the sale deeds were executed during consolidation proceeding without permission/ sanction of the consolidation authorities and hence said deeds were barred under the provisions of The Bihar Consolidation of Holdings and Prevention of Fragmentation Act, 1956 (hereinafter referred to as Consolidation Act). It was also claimed that the plaintiffs heard rumours about the said deeds in July, 1994 whereafter they applied for certified copies of the sale deeds which were supplied to them on 11.07.1994 and 15.07.1994 whereafter the suit was filed on 26.07.1994 i.e. within a month of knowledge. 4. On the other hand, defendant nos. 1 and 2 filed joint written statement claiming that Paspat Prasad got the land in partition from his co-sharer measuring more than 10 Bighas and he died in the year 1986 leaving behind a widow and three daughters who were parties to the suit, out of whom the daughters are already married to well off families and they are residing in their husband’s house and Paspat’s wife -defendant no.1 remained alone due to which she called her eldest daughter Kalawati-defendant no.2 for her service. It was also claimed that daughters of Paspat Prasad were solvent and married to well off families and hence they did not make any claim on their fathers’ property due to which defendant no.1 Phulpati Devi became absolute owner of the entire properties of Paspat Prasad and finally executed the aforesaid impugned deeds of gift in favour of defendant no.2 which was accepted by her and she came in possession thereof. It was also claimed by the defendants that the homestead land was previously given to defendant no.2 by her father but before registration he died and hence, in order to respect the wish and sentiment of the deceased Paspat Prasad, a deed of gift was executed by his wife for the said property whereafter the donee namely, defendant no.2 came in possession of the said homestead land and constructed a Pukka house thereon. It was also claimed by the defendants that since the daughters of Paspat Prasad did not claim property of their father, there was no occasion for partition. It was also claimed that since the consolidation proceeding had been cancelled, there was no need to obtain any permission from the authority concerned. 5. On the basis of respective pleadings of the parties, the learned trial court framed the following issues for deciding the suit: 3 (i) Whether the suit is barred by any provision of law? (ii) Whether after the death of Paspat Prasad the properties left by him came in joint possession of his heirs or it came in possession of his widow only due to which she became entitle to execute the impugned deeds of gift dated 25.05.1988 and 31.05.1991? (iii) Whether impugned deeds of gift dated 25.05.1988 and 31.05.1991 executed by defendant no.1 in favour of defendant no.2 are legal, proper and effective? (iv) Whether the plaintiffs are entitled to cost or any other relief? 6. On the aforesaid issues, evidences were led by the parties and after hearing their arguments, the learned Munsif-Bettiah decreed the suit on contest without cost vide judgment and decree dated 17.10.1996 after arriving at the following findings: (a) The defendants failed to give any valid reasoning to the claim of the plaintiffs that the impugned deeds were void documents for which no limitation is prescribed. (b) The pleadings and evidence of the plaintiffs fully explained the reason for delay in the filing of the suit and hence the suit is not barred by law of limitation. (c) After the death of Paspat Prasad the entire properties left by him devolved upon all his heirs, namely the plaintiffs and the defendants and they came and remained in joint possession thereof. (d) On the basis of the impugned deeds of gift there has been no delivery of possession in favour of defendant no.2. (e) The impugned deeds of gift dated 25.05.1988 and 31.05.1991 executed by defendant no.1 in favour of defendant no.2 are not legal, valid and proper. (f) Plaintiffs are not entitled to any relief of cost, etc. except the aforesaid relief. 7. Against the aforesaid judgment and decree of the learned trial court, both the defendants filed Title Appeal No. 90 of 1996 and after hearing the parties and perusing the materials on record, the learned 5th Additional District Judge , West Champaran, allowed the title appeal in part vide his judgment and decree dated 16.03.1999 confirming the judgment and decree of the trial court with respect to deed of gift dated 31.05.1991 but setting aside the judgment and decree of the trial court with respect to deed of gift dated 25.05.1988 after arriving at the following findings: (a) The consolidation proceeding began in the year 1978 and ended in 2.11.1993 and hence the deed of gift dated 31.05.1991 with respect to agricultural land was in contravention of section 5 of the Act and hence the trial court has rightly held that the said gift was not valid, legal and proper. 4 (b) The deed of gift with respect to homestead land was executed on 25.05.1988 whereas the suit was filed on 26.07.1994 after six years although the delay was required to be explained but the reasons assigned by the plaintiffs as well as by the trial court are not at all convincing. (c) It is brought on record that intention of the executant of the said gift was to fulfill the wish of her deceased husband. (d) Transfer through deed of gift dated 25.05.1988 does not come under the mischief of section 5 of the Consolidation Act. (e) The facts, evidence and circumstances indicate that some constructions were made by the donee subsequent to the execution of the deeds of gift and hence, the plea of the plaintiffs regarding absence of knowledge falls. (f) It is a settled principle of law that registered document would infer the knowledge of all concerned and plea of ignorance of registration is not permissible in law. (g) In the aforesaid circumstances the judgment and decree of the trial court is not sustainable to the extent of lands covered under the deed of gift dated 25.05.1988. (h) Judgment and decree of the trial court with respect to deed of gift dated 25.05.1988 is hereby set aside. 8. The instant second appeal has been filed on 20.05.1999 by the plaintiffs challenging that part of the judgment and decree of the learned court of appeal below by which it reversed the finding of the learned trial court with respect to registered deed of gift dated 25.05.1988 and declared it to be legal and valid. This second appeal was admitted by this court on 02.05.2002 framing the following substantial questions of law: (i) Whether the execution of deed of gift by a co- sharer beyond her share without consent of the other co-sharer is void and ab initio? (ii) Whether there is any limitation to defeat relief sought for against such void document? 9. Although no separate second appeal was filed by the defendants but in the aforesaid second appeal they filed a cross-objection under the provision of Order 41 Rule 22 of the Code of Civil Procedure challenging that part of the judgment and decree of the learned court of appeal below by which it affirmed the judgment and decree of the trial court with respect to deed of gift dated 31.05.1991 and declared it to be void, illegal and not binding. By order dated 16.09.2005, it was also directed that the second appeal would be heard together with the two objections raised by the respondents in cross-objection, which were as follows: (i) Against that part of the impugned order of the learned Lower Appellate Court by which it held that gift deed was barred by Section 5 of Consolidation Act and (ii) Lalti relinquished her claim and thus cannot sue as plaintiff. 5 10. Learned counsel for the appellants argued before this court that admittedly Paspat Prasad left behind a widow and three daughters and also left behind 11 Bighas 02 Kathas and 08 Dhurs of agricultural land and 04 Dhurs and 8 ½ Dhurkis of homestead market land. Hence, each of the said heirs had only 1/4th share in the said properties and the deeds of gift dated 25.05.1988 and 31.05.1991 by the widow Phulpati Devi(defendant no.1) in favour of one of the daughters Kalawati Devi (defendant no.2) were bad at least to the extent of lands gifted in excess to 1/4th share of Phulpati Devi. He also submitted that it is an admitted fact that the parties are still joint and there had been no partition by metes and bounds and also that the said deeds of gift were executed during the consolidation proceeding, hence, the impugned deeds are not only bad in law but are also barred by law. He also averred that the suit was not barred under the provisions of Consolidation Act as it had been filed for setting aside voidable deeds for which the consolidation courts had no authority under the Act. It is also stated that the plaintiffs had no knowledge about the said deeds of gift earlier and they came to know only in July, 1994 which has been fully proved by valid evidence and hence the suit is also not barred under the Law of Limitation with respect to deed of gift dated 25.05.1988. Hence, learned counsel for the appellants stated that the learned court of appeal below has rightly held that the deed of gift dated 31.05.1991 with regard to agricultural lands was not valid, legal and proper but it erred in refusing to pass a similar decree with respect to deed of gift dated 25.05.1988. 11. On the other hand, learned counsel for the respondents argued that in the plaint the main thrust is that the impugned deeds of gift were void, ab initio and only declaratory court fees had been paid, as declaration was sought against deeds of gift. He also averred that some deeds of gift were executed by Paspat Prasad in the year 1983 in favour of the plaintiffs and he kept 04 Dhurs and 8 ½ Dhurkis of homestead market land for his eldest daughter defendant no.2 and respecting of his wishes his widow defendant no.1 executed the deed of gift dated 25.05.1988 with respect to the homestead land in favour of defendant no.2 whereafter defendant no.2 came in possession and constructed her house in the year 1988. Hence, he claimed that the plaintiffs had full knowledge of the deed of gift which was a registered document and also had knowledge of possession of defendant no.2 at least by the constructions made by her. He also averred that the impugned deeds were dated 25.05.1988 and 31.05.1991 whereas the suit was filed on 26.07.1994 i.e. much after three 6 years of the said deeds, although, Article 59 of the Limitation Act specifically provides that it should be filed within three years of knowledge and here due to registration of the said deeds the legal presumption would be that the defendants had knowledge of the said impugned deeds on the dates of their registration itself and onus was squarely upon the plaintiffs to prove lack of knowledge. He also argued that explanation II and III (c) of Section 3 of the Transfer of Property Act specifically provided that construction of house amounted to knowledge, whereas the provision of Registration Act also provided that registration of a document amounted to knowledge to all . It was also claimed that the impugned deed of gift dated 25.05.1988 was with respect to homestead market land and thus it was beyond the scope of the Consolidation Act, whereas even with respect to the impugned deed of gift dated 31.05.1991 the transaction may be void with regard consolidation proceeding and the said transaction was not void inter-se the transferor and the transferee. In that regard, he relies upon a decision of a Division Bench of this court in a case of Ram Raji Sharma and another Vs. The State of Bihar and others, reported in 2007(4) PLJR 449. He also stated that only plaintiff no.2 has claimed about knowledge of the impugned deeds in the year 1994 and that too was through her husband, who was not examined and hence, the evidence with regard to knowledge is not reliable. 12. From the aforesaid arguments, it is quite apparent that certain facts are admitted, namely that the original owner of the suit properties was Paspat Prasad, who left behind a widow and three daughters as his heirs and legal representatives and also left behind 04 Dhurs 8 ½ Dhurkis of homestead market land and 11 Bighas 02 Kathas 08 Dhurs of agricultural land and that his widow defendant no.1 executed registered deed of gift in favour of her eldest daughter defendant no.2 dated 25.05.1988 with respect to entire 04 Dhurs and 8 ½ Dhurkis of homestead market land and also executed another registered deed of gift in her favour dated 31.05.1991 with regard to 06 Bighas 05 Kathas 18 Dhurs and 15 Dhurkis of agricultural land, which was more than half of what was left by Paspat Prasad. 13. So far the question of gift by defendant no.1 of more than her share is concerned, the defendants admitted that defendant no.1 had only 1/4th share in both the aforesaid lands but they have given two explanations for executing the said deeds for more than her share. The first explanation is that Paspat Prasad himself wanted to gift 04 Dhurs 8½ Dhurkis of homestead market land to defendant no.2 but since he could not do the same, 7 his widow namely defendant no.1 respecting his wishes executed the said deed of gift dated 25.05.1988 in favour of defendant no.2. The second explanation is that all the three daughters of Paspat Prasad were married to well off families and were residing with their respective husbands and hence, they did not make any claim on their father’s property due to which their mother defendant no.1 Phulpati Devi became absolute owner of the entire properties left by Paspat Prasad whereafter she executed the aforesaid deeds of gift dated 25.05.1988 and 31.05.1991 in favour of defendant no.2. 14.In this regard, the law is very clear as the Hindu Succession Act, 1956 specifically provides that females are not coparceners but they are tenants in common having their defined share in the ancestral properties and they cannot exceed it. Since, the defendants had admitted the properties and heirs left by Paspat Prasad, the onus was squarely upon them to prove that Paspat Prasad had ever wished or had ever executed any will that the aforesaid 04 Dhurs 8 ½ Dhurkis of homestead market land should be gifted to defendant no.2 and also to show that the daughters of Paspat Prasad specially the plaintiffs had ever relinquished their right, title, interest and share in the suit properties or had given their consent for execution of the said deeds but the defendants completely failed to discharge the said onus as there is no semblance of evidence either oral or documentary to prove the said claim of the defendants. In the said circumstances, the learned trial court was quite justified in holding that defendant no.1 had executed the impugned deeds of gift in favour of defendant no.2 with respect to lands, which were much more than her share and hence, the said documents had to be declared void. 15. So far the question of absence of knowledge of the plaintiffs with regard to the impugned deeds of gift is concerned, they had specifically claimed that earlier they had no knowledge of the said deeds and they only came to know about them in July, 1994 when they heard rumours about it whereafter they applied for certified copies of the said deeds which were made available to them on 11.07.1994 and 15.07.1994 whereafter they filed the suit on 26.07.1994 within a month of their knowledge. This statement is supported by oral evidence adduced by the plaintiffs as well as documentary evidence, namely certified copies of the said deeds. On the other hand, the defendants claimed that the registration of any document leads to a legal presumption about knowledge to all and hence, when the said deeds were registered in the year 1988 and 1991 which would be legally presumed that the 8 plaintiffs had knowledge about the same immediately after their registration. The second point raised by the defendants in that regard is that after their purchase of the homestead market land in the year 1988 defendant no.2 made constructions over the same and hence, the said constructions amounted to knowledge as per section 3 of the Transfer of Property Act. 16.In this regard, it may be noted that Article 59 of the Limitation Act provided three years as the period of limitation from the date of knowledge for filing a suit to cancel or set aside an instrument. It is well settled that an instrument of transfer of immovable properties can only be by a registered document, hence, the said Article of the Limitation Act provides about date of knowledge and not the date of registration from which the period of limitation could be counted. Furthermore, the plaintiffs are admittedly ladies living far away with their respective husbands and hence their absence of knowledge was quite understandable, whereas the defendants could not produce any other material to prove previous knowledge of the plaintiffs. Interestingly enough both defendant no.1 and defendant no.2 deposing as DW.10 and DW.11 in the suit admitted that they had no knowledge about the deeds, hence they themselves having no knowledge about the said deeds cannot raise valid objection to the plaintiffs’ absence of knowledge about the deeds. Secondly, the defendants’ claim of construction of a house by defendant no.2 is falsified by their own document-Ext.C series as well as by the earlier deeds of year 1983(Ext.3 series) which clearly showed that the said land contained house. Accordingly, the claim of defendant no.2 that she constructed a house over the land in question after the deed of gift is absolutely falsified and hence, that cannot be a plea with respect to the knowledge of the plaintiffs. In the said circumstances, the learned trial court rightly found that the reason for delay in the filing of the suit had been fully explained and the suit was not barred by Law of Limitation. 17. So far the consolidation proceeding is concerned, admittedly the impugned deed of gift dated 25.05.1988 was with respect to homestead market land and hence neither the said deed nor the suit challenging the said deed was affected either by the provision of the Consolidation Act or by the pendency of the consolidation proceeding. However, the impugned deed of gift dated 31.05.1991 is with respect to agricultural land and was executed after the year 1978 when the consolidation proceeding started in the area and 9 before 1993 when the consolidation proceeding ended in the area according to learned court of appeal below. The initiation of the consolidation proceeding is proved by the relevant notification and the defendants have failed to show by any valid material that consolidation proceeding was not continuing in the area when the deed was executed. The defendants also could not produce any document to show that either permission or sanction of the consolidation authorities was taken before executing the said deed of gift and hence, the said deed of gift was clearly barred under the provision of section 5 of the Consolidation Act. 18.In the said circumstances, both the learned courts below rightly came to the conclusion that the deed of gift dated 31.05.1991 was void on the basis of the aforementioned facts and also on the basis of bar created by section 5 of the Consolidation Act. So far the case law relied upon by learned counsel for the respondents, in a case of Ram Raji Sharma & Anr. Vs. The State of Bihar and others, reported in 2007(4) PLJR 449 is concerned, it also does not come to the rescue of the defendants-respondents as it was only held therein that if a transaction is made during the pendency of a consolidation proceeding, it is void in so far as the consolidation proceedings are concerned and not the transaction inter-se the transferor and the transferee. Hence, it has been merely held that such a transaction cannot be held to be void inter-se the transferor and the transferee, but in the instant case, the transfer in question is not claimed to be void inter-se the transferor and the transferee, rather it is the other rightful owners of the property, namely the plaintiffs, who are neither the transferor nor the transferee, who have filed the suit against the transferor and the transferee claiming the said transfer to be void. Accordingly, this point is also decided in favour of plaintiffs-appellants and against the defendants-respondents. 19. So far the defendants’-respondents’ claim regarding relinquishment by plaintiff no.2 Lalti Devi is concerned, the law is well settled that any relinquishment or surrender cannot create any right, title or interest in a property nor it can be treated as a transfer. Reference in that regard may be made to a decision of a Division Bench of this court in the case of Brijendra Kumar Sinha Vs. Akhileshwar Prasad and others, reported in 1991(2) PLJR 625 and another decision of this court in case of