FIRST APPEAL No. 101 OF 2007 Against the Judgment and Decree dated 24.02.2007 passed by Sri Nagendra Prasad Tripathi, 1st Sub-Judge, Buxar in Title Suit No.58 of 1989. JAGRANO KUNWAR & ORS ………. Defendants/Appellants Versus SMT.NIRMALA DEVI & ORS ……… Plaintiffs/Respondents ******** For the Appellant : Mr. Surendra Kumar Singh, Sr. Advocate Mr. Praveen Prakash, Advocate with him. For the Respondent : Mr. Binod Kumar Singh, Advocate No.1 to 6 Dated : 10thday of February, 2011 P R E S E N T THE HON'BLE MR. JUSTICE MUNGESHWAR SAHOO J U D G M E N T 1. The defendants have filed this First Appeal against the Judgment and Decree dated 24.02.2007 passed by Sri Nagendra Prasad Tripathi, the learned Sub- Judge, Buxar in Title Suit No.58 of 1989 decreeing the plaintiff’s suit. 2. Mostt. Indrasna Kunwar filed the aforesaid suit for declaration that the two gift deed dated 27.01.1955 executed by her mother, Fulbaso Kunwar in favour of her (Indrasna Kunwar) and her son, Ramendra Krishna Singh with respect to Schedule 1 land of the plaint and 21 sale deeds executed by the defendant-appellant, Mostt. Jagrano Kunwar in favour of defendant Nos.2 to 11 with respect to Schedule 2 land of the plaint are fraudulent without any right title and null and void. The plaintiff also sought relief for permanent injunction. It may be mentioned here that during Mungeshwar Sahoo, J. 2 pendency of the suit, the original plaintiff died and she was substituted by her legal representatives. 3. The plaintiffs claimed the aforesaid relief on facts inter alia that the disputed land belonged to Ram Ratan Singh who had a son Nathuni Singh and a daughter, Indrasna Kunwar (the original plaintiff). Indrasna Kunwar had 4 daughters and one son, namely, Rajwanshi Devi, Lalmuni Devi, Nirmala Devi, Ramla Devi and Ramendra Krishna Singh. The owner Ram Ratan Singh died in the year 1953 leaving behind his widow, Mostt. Fulbaso Kunwar and son Nathuni Singh. The husband of the plaintiff, namely, Brij Bihari Singh was looking after Fulbaso Kunwar and her entire affairs. Brij Bihari Singh was a cunning man and exercising undue influence procure two deeds of gifts in favour of his wife, Indrasna Kunwar, i.e., plaintiff and his son Ramendra Krishna Singh on 27.01.1955. Mostt. Fulbaso Kunwar had no right to execute any deed of gift. Mostt. Fulbaso Kunwar died in the year 1958 leaving behind her son, Nathuni Singh and her daughter, Indrasna Kunwar. Ramendra Krishna Singh also died after gift in the year 1955-56 leaving behind Jagrano Kunwar, the defendant-appellant No.1. On the death of Ram Ratan Singh in the year 1953, Fulbaso Kunwar and Nathuni Singh inherited half and half and on the death of Fulbaso Kunwar in the year 1958, her half share devolved on the plaintiff and the other half share devolved on Nathuni Singh. Therefore, the plaintiff inherited 1/4th share and Nathuni Singh became the owner of 3/4th share. Nathuni Singh died unmarried in the year 1968 leaving behind the plaintiff alone who became the absolute owner of the entire property. 4. The further case is that Mostt. Fulbaso Kunwar had no right to execute deeds of gift in favour of plaintiff and plaintiff’s son in the year 1955, therefore, on the death of her son, Ramendra Krishna Singh, the defendant No.1, Jagrano Kunwar did not acquire any title or interest in the disputed land but without any right title 3 and interest and without taking permission of the consolidation authority, Jagrano Kunwar executed and registered 21 sale deeds on 12.05.1989 in favour of defendant Nos.2 to 11 and, therefore, the sale deeds are illegal, null and void. 5. On being noticed, the defendants filed contesting written statement. According to the defendants, their main defence is that suit is hopelessly barred by law of limitation. The execution of gift deed by Fulbaso Kunwar was because of undue influence by Brij Bihari Singh is denied. Fulbaso Kunwar was pleased with the service of plaintiff and her son Ramendra Krishna Singh gifted her entire property to them and the plaintiff and her son accepted the gift and came in possession thereof. With the consent of the plaintiff, Mostt. Fulbaso Kunwar executed the two gift deeds on 27.01.1955 without any favour or influence of any body. After coming into possession, the plaintiff started transferring her gifted land accepting the gift as valid and genuine and after the death of Ramendra Krishna Singh, his wife Jagrano Kunwar came in possession of the property of her husband. During life time of Ramendra Krishna Singh, there was mutual partition and half share came in possession of Ramendra Krishna Singh who died in the state of separation from his mother. After death of Ramendra Krishna Singh, Jagrano Kunwar came in possession and her possession has been accepted by the plaintiff, Indrasna Kunwar in land ceiling case No.5 of 1973. During consolidation operation, the name of Jagano Kunwar was also entered in the consolidation record of right. The defendant No. 2 to 11 have purchased the land from Jagrano Kunwar for valuable consideration and have been coming in possession. The sale deeds are valid, genuine and operative. 6. On the basis of the above pleadings of the parties, the learned Court below framed 7 issues as follows : (I) Is the suit as framed maintainable? 4 (II) Have the plaintiffs got valid cause of action for the suit? (III) Is the suit barred by law of limitation? (IV) Whether two deeds of gift dt.27.01.1955 purported to have been executed by Most. Fulbaso Kunwar in favour of Dulhin Indrasna Devi and Ramendra Krishna Singh with respect to schedule 1 land of the plaint fraudulent without any right title and void ab initio? (V) Whether 21 sale deeds dt.12.05.89 and 23.09.89 executed by the defendant No.1 in favour of defendant No.2 to 11 in respect of schedule 2 land of the plaint are null and void and without any right? (VI) Whether plaintiffs are entitled for a decree as sought for? (VII) To what other relief or releifs the plaintiffs are entitled? 7. After trial, the learned Court below while deciding Issue No.4 came to the conclusion that Fulbaso Kunwar had no right to execute the gift deeds which are without any authority in law and as such are avoid ab initio, conferring no title on the donee and, therefore, the learned Court blow held that two deeds of gift dated 27.01.1955 executed by Mostt. Fulbaso Kunwar in favour of dulhane Indrasna Devi and Ramendra Krishna Singh with respect to land are without right, tile and avoid abinitio vide paragraph 12 of the impugned Judgment. The learned Court below also held that the 21 sale deeds executed by defendant No.1 in favour of defendant No.2 to 11 in respect of Schedule 2 land of the plaintiff are null and void and without right vide paragraph 13. The learned Court below also while deciding Issue No.3 came to the conclusion that the suit is not barred by law of limitation vide paragraph 15 and, therefore, decreed the plaintiff’s suit. 8. The learned senior counsel, Mr. Surendra Kumar Singh appearing on behalf of the appellant submitted that the learned Court below has wrongly held that two gift deed dated 27.01.1955 are void document. According to the learned counsel, the gift was made by Fulbaso Kunwar who was limited owner with the consent of the plaintiff who is the reversioner and, therefore, it was never void rather it was voidable. The plaintiff could have instituted a suit to avoid the said transaction within 3 years but instead of avoiding the gift deeds, she started 5 transferring the lands to strangers and thereby she accepted the gift deed executed by Fulbaso Kunwar in favour of plaintiff and her son to be valid documents and conferred title on her. The learned counsel further submitted that moreover since the gift was made in her favour, there was implied consent of the plaintiff and because of subsequent transfer made by her consent is inferred. In any view of the matter, the gift deed with the consent of the reversioner is binding on reversioner. 9. The learned counsel further submitted that the learned Court below has wrongly interpreted the legal position mentioned in article 174, 176, 181, 183 of Hindu Law by Mulla. The learned counsel further submitted that alienation made by widow on her husband’s property without legal necessity is not altogether avoid but only voidable by the next reversioner. The reversioner may affirm or she may treat it a nullity. According to the learned counsel, had the plaintiff treated it as a nullity, she could have filed the suit but in this case, she elected to affirm it and therefore, in furtherance thereof, she executed sale deed dated 09.06.1965 in favour of Shivwachan Chaudhary and Ramwachan Chaudhary and Shivpujan Chaudhary and, therefore, after 34 years, she cannot be allowed to challenge the gift deed saying that it is a void document. The learned counsel further submitted that the plaintiff cannot be allowed to approbate and re-probate because the plaintiff while executing the sale deed on 09.06.1965 accepted the gift deeds to be valid, genuine and obtained advantage. Subsequently, she filed the suit challenging the said gift deed for the purpose of securing other advantages. 10. The learned counsel for the appellant further submitted that on the death of Ram Ratan Singh in the year 1953, the property was inherited by her widow, Mostt. Fulbaso Kunwar and she gifted the property to her daughter, the plaintiff because her son, Nathuni Singh was a lunatic. He has been described as Khaptul Hawas in the gift deed of 1955. This statement is made by Fulbaso Kunwar who is 6 dead and, therefore, the statement made by deed person was admissible in evidence. According to the learned counsel, it is not the plaintiff’s case that she was not insane or lunatic. The learned counsel further submitted that the case of plaintiff is that Nathuni Singh inherited 1/2nd share on the death of his father. Even if this plea is accepted then also the plaintiff has got no case because his share was gifted by his mother in the year 1955 and, therefore, it was Nathuni Singh who could have challenged the gift deed within maximum period of 12 years but he did not challenge and died admittedly in the year 1968. The plaintiff also thereafter for more than 12 years did not challenge the gift deed after the death of Nathuni Singh. Therefore, the suit was hopelessly barred by law of limitation but the learned Court below wrongly held that the gift is void ab initio. 11. So far the 21 sale deeds are concerned, the learned counsel submitted that the consolidation proceeding started in the year 1973 and was concluded in the year 1978. Records of right were prepared and only formal de-notification was to be made and, therefore, the learned D.M. by Ext.-C/1 has rightly held that in the year 1978 itself, the new records of rights were prepared and has been distributed to the raiyats and there was only a formal pronouncement of de-notification remained to be made for a long period and, therefore in such case, it was not proper to ban the transfer and moreover the de-notification has been made in the year 1990 and the said objection is not existing today. On these grounds, the learned counsel submitted that the impugned Judgment and Decree are liable to be set aside and the plaintiff suit is liable to be dismissed. 12. Mr. Binod Kumar Singh appearing on behalf of the respondent submitted that the plaintiff was never the reversioner because she was absolute owner after the death of Nathuni Singh and, therefore, the law of reversioner is not applicable. According to the learned counsel she is heir of Nathuni Singh and, therefore, she can 7 challenge the gift made by Fulbaso Kunwar regarding the property of Nathuni Singh. The learned counsel submitted that the learned Court below has rightly held that the gift deed executed by Mostt. Fulbaso is void document. The learned counsel further submitted that because Mostt. Fulbaso has no right title to gift the property of Nathuni Singh in gift and, therefore, the gift deed was void and it was not necessary for the plaintiff to institute suit for declaration that the gift deed was void. In any subsequent proceeding or suit, it can be shown that the gift deeds are void document. The learned counsel further submitted that it cannot be said that the alienation in the shape of gift by Mostt. Fulbaso Kunwar was for legal necessity. If it is proved that the said alienation was without legal necessity then it will be a void document. The plaintiff being the heir has been able to prove that the gift deed were executed without legal necessity and, therefore, the learned Court below has rightly held that the gift was void. 13. The learned counsel further submitted that the 21 sale deeds executed by Jagrano Kunwar are also void because no permission was obtained from the consolidation authorities. The D.M. has wrongly held that it is not void. On these grounds, the learned counsel for the respondent submitted that the First Appeal is liable to be dismissed with cost. 14. In view of the above rival contentions of the parties, the points arises for consideration in this Appeal are : (i) Whether the gift deed of the year 1955 executed by Mostt. Fulbaso Kunwar are void ab initio and whether the plaintiff’s suit challenging these gift deeds in the year 1989 is maintainable or barred by law of limitation? (ii) Whether the sale deeds executed by Jagrano Kunwar, appellant No.1, in favour of other appellants, i.e., 21 sale deeds are void sale deeds and whether the impugned Judgment and Decree are sustainable in the eye of law? 8 15. In this case, it is admitted fact that Ram Ratan Singh died in 1953. Fulbaso Kunwar died in 1958. Nathuni Singh died in 1968 and Ramendra Krishna died in 1956. The gift deeds have been produced in this case and they are marked as Ext.11 and 11/A. Those gift deeds have been executed by Mostt. Fulbaso Kunwar for self and guardian of Nathuni Singh describing Nathuni Singh as Khaptul Hawas. The literal meaning of Khaptul Hawas is insane/lunatic. According to the plaint, nowhere it is mentioned as to whether Nathuni Singh was insane or not. There is no case made out in the plaint that he became insane only after death of his father. From perusal of the gift deed as stated above, he has been described as Khaptul Hawas on 27.01.1955. Therefore, the presumption under the law is that fact which is proved to exist on a particular date will be presumed to continue till the contrary is proved and this presumption is backward and forward both. Now, therefore, it is for the plaintiff to prove that earlier prior to death of Ram Ratan Singh, Nathuni Singh was not insane and he became insane or lunatic only after the death of his father. Unless the plaintiff proved this fact by pleading and adducing cogent evidence, the presumption will be against the plaintiff. 16. Now, let us consider the case of the plaintiff and also the statement made in the gift regarding lunatic of Nathuni Singh. According to the plaintiff on the death of Ram Ratan Singh, Nathuni Singh and Fulbaso Kunwar inherited half and half property of Ram Ratan Singh. If the plaintiff’s case is believed that Nathuni was not insane then after gift made by Phulbaso, it was Nathuni who could have challenged the said gift deed during his lifetime because he died in the year 1968 and this fact is admitted. Admittedly, Nathuni Singh did not challenge the gift made by Fulbaso Kunwar regarding his share and thereby he consented the gift, i.e., alienation of his property by his mother. On the contrary, the defendant’s case is that on the death of Ram Ratan Singh, his widow Fulbaso Kunwar inherited entire property which is inconsonance with the statement made in the gift deed. The learned Court below 9 has disbelieved the statement only on the ground that this gift deed is under challenge. In my opinion, this is wrong approach. The further fact is that after death of Nathuni Singh in the year 1968 also, the plaintiff did not challenge the gift deed for more than 12 years. Therefore, the question is whether the plaintiff being the reversioner could have filed the suit challenging the gift deed of the year 1955 after lapse of 34 years. Now, if it is considered as has been mentioned in gift deed that Nathuni Singh was a lunatic then there is no pleading that he was not insane prior to death of his father. In such circumstances, he will not inherit the property of his father and the entire property will go to Mostt. Fulbaso Kunwar and Mostt. Fulbaso had executed the gift deed in favour plaintiff herself and, therefore, it cannot be said or the plaintiff cannot be allowed to say that the gift was made without her consent. Even if it is considered that Nathuni was not lunatic from his birth and became lunatic only after death of his father then also on the date of execution of the gift deed, he was lunatic and, therefore, his property was alienated by way of gift by his mother on his behalf. This alienation was made in the year 1955 and, therefore, the plaintiff could have brought the suit within period of limitation challenging the gift as she was the reversioner. 17. Therefore, to sum up the matter, it can be said that there may be 3 situations – (I) That Nathuni Singh was of sound mind (II) Nathuni Singh became unsound / lunatic after death of his father. In other words, he was not lunatic from birth and (III) he was lunatic from birth. We have discussed above all these 3 situations. Now, let us consider whether the alienation by way of gift is void or viodable. The learned counsel for the respondent submitted that plaintiff is not the reversioner. So far this objection is concerned, it is relevant to quote Clause-I of article 175 of the Hindu Law by Mulla 20th Edition page 277 : “175 (1) the heirs of the last full owner who would be entitled to succeed to the estate of such owner on the death of a widow or other 10 limited heir, if they be then living, are call „reversioner‟. A reversioner may be male or female.” 18. In view of the above principles of Hindu Law in this case, the plaintiff who is heir of Ram Ratan Singh would be entitled to succeed to his estate on the death of Fulbaso Kunwar the widow of Ram Ratan Singh. Therefore, she is a reversioner. It is admitted by the plaintiff that it was the property of Ram Ratan Singh and, therefore on his death, Nathuni Singh and Fulbaso Kunwar inherited half and half and, therefore, the respondents now cannot be allowed to say that it was joint family property or coparcenary property. 19. In A.I.R. 1927 Privy Council 227 Ramgowda Annagowda Patil Vs. Bhau Saheb, the Privy Council has held that it is settled law that an alienation by a widow in excess of her powers is not altogether void but only voidable by the reversioner. In a Full Bench decision of this Court, i.e., A.I.R. 1958 Patna 581 Harak Singh Vs. Kailash Singh, it has been held that an alienation in excess of her powers is however not void but voidable in the sense that it is open to the reversioner to elect to abide by the alienation when the estate falls into their possession either by express ratification or by acts done by him which treat the alienation as valid and binding. It has also been held that if the alienation is not supported by legal necessity, the transaction is not void but it is only voidable. Such an alienation by the widow can be avoided only at the instance of a co-widow or at the instance of reversioner or at the instance of those who are entitled to the property by escheat. 20. In I.L.R. 1955 Patna 317(Munga Kuer Vrs. Domari Tewari (D.B.), it has been held that it is now settled that a consenting reversioner will be debarred from challenging the binding effect of the alienation at least so far as he or she is concerned. In the present case at our hand obviously the gift was made in favour of 11 the plaintiff and she kept mum which impliedly means that she gave consent and, therefore, she is no precluded from challenging the transfer. If the actual reversioner was a different person, he could have challenged the transfer on the ground that he would have not be bound by the consent expressed by a person who had nothing but a chance of succession at that time. 21. So far consent of the plaintiff is concerned, it may be mentioned here that an interlocutory application No.2064 of 2010 has been filed on behalf of the appellant praying therein to permit to adduce additional evidence, i.e., to produce certified copy of sale deed dated 09.06.1965 executed by the plaintiff, Indrasna Kunwar. Regarding this interlocutory application, it was directed that it will be heard at the time of hearing of the appeal itself and the appeal was fixed for hearing. I have heard the parties at length on this application also. It appears that the appellant during the pendency of the suit itself filed the aforesaid certified copy of the sale deed along with a petition on 04.06.2002 for its acceptance as additional evidence but it was rejected by the Court below on the ground of delay on 31.07.2002. It was observed that the case is at hearing stage. Then, appellant filed review petition which was again rejected on 16.09.2002. While rejecting the said application, the learned Court below found that the recital of the deed shows its relevancy with the suit. However, the Court below held that since it is certified copy of the sale deed dated 09.06.1965, it does not bear the signature of or L.T.I. of Indrasna Kunwar. The learned Court below further observed that the appellant may raise this question after filing original sale deed. The appellant thereafter on 25.09.2002, apprised the Court below that the person who is in custody of the original sale deed refused to give the same but the learned Court below on 12.10.2009 rejected the said prayer. It appears that the civil revision application was filed before this Court being civil revision No.299 of 2003 which was dismissed for default. The learned counsel for the appellant submitted that this is a clear case 12 under Order 41 Rule 27 (A) and (B) C.P.C. According to the learned counsel, this document is essential for just decision of the controversy between the parties and, therefore, it ought to have been admitted by the learned Court below but it was rejected on the ground that it was filed at the hearing stage in the year 2002. However, the Judgment has been pronounced in 2007. 22. The learned for the respondent vehemently opposed this prayer and submitted that the sale deed was produced before the Court below after the death of the plaintiff. And, therefore, the legal representative are not in a position to deny or affirm the execution made by plaintiff. 23. From perusal of this sale deed, it appears that the same has been executed by Indrasna Kunwar on 09.06.1965 in favour of 3 persons, Shivwachan Chaudhary and Ors. Certified copy was produced before the Court below. According to Section 77 of the Indian Evidence Act, certified copy may be produced in proof of the contents of the public documents and according to Section 79 of the Indian Evidence Act,