FIRST APPEAL No. 333 OF 2001 Against the Judgment and Preliminary decree dated 01.06.2001 (decree signed on 08.06.2001) by Sri Chandra Shekhar Sharma, Subordinate Judge VI, Gaya in partition suit No.112 of 1999/169 of 1995. NIRMALA DEVI & ORS …..………………………. Defendants/Appellants Versus PANNA LAL & ORS ………………….……… Plaintiffs-respondents WITH FIRST APPEAL No. 61 OF 2006 Against the Judgment and final decree dated 25.11.2005/ 29.07.2005 passed by Sri Sushil Kumar Bharti, Sub Judge VI, Gaya in partition suit No.112 of 1999/169 of 1995. NIRMALA DEVI & ORS …..………………………. Defendants/Appellants Versus PANNA LAL & ORS ………………….……… Plaintiffs-respondents ******************* For the Appellant : Mr. V. Nath, Advocate, Mr. Ashok Kumar, Advocate Mr. Pramod Kumar, Advocate Mr. Sushant Praveer, Advocate For the Respondent : Mr. Dinu Kumar, Advocate Mr. Arvind Kumar Sharma, Advocate Mr. Shiv Kumar Prabhakar, Advocate Mr. Kinkar Kumar, Advocate. Dated : 26th day of March, 2011 P R E S E N T THE HON'BLE MR. JUSTICE MUNGESHWAR SAHOO 2 J U D G M E N T 1. The defendants have filed First Appeal No.333 of 2001 against the preliminary Judgment and Decree dated 01.06.2001 passed by Sri Chandra Shekhar Sharma, the learned Subordinate Judge VI, Gaya in partition suit No.112 of 1999 / 169 of 1995 and likewise filed First Appeal No.61 of 2006 against the Judgment/Order dated 25.11.2005 and the final decree signed on 29.07.2005 by Sri Sushil Kumar Bharti, Subordinate Judge VI, Gaya in partition suit No.112 of 1999 / 169 of 1995. With the consent of the parties, these appeals are heard together as the parties are same, the subject matter is same and the Advocates are also same and the First Appeals arise out of preliminary decree and final decree and they are disposed of by this common Judgment. 2. The plaintiff-respondent filed the aforesaid partition suit praying for partition of his 1/6th share from the suit properties mentioned in Schedule I of the plaint. The plaintiff-respondent claimed the aforesaid relief of partition to the extent of 1/6th share alleging that the father of the plaintiff and defendant No.1, namely, Late Dukhan Sao held and possessed properties. The mother of the plaintiff Bhagwati Devi also held and possessed properties. After their death, the plaintiff and the defendants jointly succeeded to the suit properties and are in joint possession and, therefore, there is unity of title and possession of the parties over the suit properties. 3. Subsequently, by amendment paragraph 4(a) was added in the plaint wherein it is alleged that after obtaining certified copy of the impugned gift deeds on 21.09.1999 the plaintiff learnt that the deeds have been brought in existence by practicing undue influence, fraud upon the executants late Bhagwati Devi who was illiterate, pardanashin and very Mungeshwar Sahoo, J. 3 simple lady. She never gave any instruction to the typist nor she ever asked any witness to attest the deed. The witnesses, typist and identifier are men of Jai Prakash Lal. Bhagwati Devi never expressed her intention to execute any deed of gift nor she had any independent advice. On account of mis- representation, undue influence and fraud the impugned deed has been brought in existence. The plaintiff has reason to believe that the L.T.I. of mother Bhagwati Devi was clandestinely obtained on sada stamp paper and she never appeared in registry to admit the execution of the deed. Another paragraph 4 (b) was added alleging that similarly and in similar manner the deceased Jai Prakash Lal also by practicing fraud, mis-representation in the matter of execution, registration, the impugned deed was prepared with the help of the man and creature on the same day with the help of same typist and scribe an identifier. Paragraph 4 (c) was added wherein it is alleged that Sudama Devi and Dulari Devi, and Ram Pyari Devi all the alleged executants never appeared before the Registry to admit the execution. They have also no independent advice. They are also pardanashin, illiterate, rustic lady having no knowledge of the affairs. The L.T.I. of the executants appears to have been obtained on sada stamp paper. By virtue of all the impugned gift, Jai Prakash Lal did not acquire interest in the suit property nor the deed of gift ever given effect. The deed of gift are not binding upon the plaintiff. Accordingly, the plaintiff amended the prayer portion and it was prayed that on adjudication that the impugned deeds of gift dated 01.09.1986 be held as illegal, void, vitiated by fraud and never given effect too. 4. The defendant No.2 and 4 filed a supporting written statement. 5. The defendant No.1, Jai Prakash Lal, filed a contesting written statement. It appears that after filing the written statement, he died and his legal representatives were substituted who are the appellants. According to the contesting defendants, the properties are not ancestral properties. 4 Holding No.60 stands in the names of 3 sons of Dukhan Sao jointly which was purchased jointly on 03.03.1964 through registered sale deed. The mother of the parties, namely, Bhagwati Devi purchased 5 ana 4 paise share in holding No.60/56 Ward No.5 through separate registered sale deed dated 03.03.1964 and she came in possession of the same. She gifted her share to Jai Prakash Lal who after gift came in possession of the same and as such becomes the absolute owner of Holding No.60. The allegation of joint possessions was denied over the property of Bhagwati Devi. 6. The further case is that so far holding No.3 is concerned, it was acquired by father, namely, Dukhan Sao and mother Bhagwati Devi jointly out of their separate fund and income. Bhagwati Devi gifted her entire share in the said house, i.e., 50 paise to the defendant No.1 and, therefore, this defendant has been coming in peaceful possession of the same. On the death of father, the remaining 50 paise share of holding No.3 devolved upon all the 3 brothers and 3 sisters and the mother. The mother and all the 3 sisters executed a registered gift deed dated 27.11.1986 in favour of the defendant as such the defendant became owner of 85 paise in holding No.3, ward No.2. 7. So far the holding No.83 is concerned, it was acquired by Dukhan Sao who died leaving behind widow Bhgwati Devi, 3 sons and 3 daughters and it was inherited by them in equal shares. Since the mother and sisters have gifted their share to the defendant, the plaintiff has got only 1/7th share in this holding No.83. 8. It appears that additional written statement was filed alleging that the gift deed executed by Bhagwati Devi is legal, valid and operative. She executed gift deed out of her free will and sound state of minds in presence of witnesses. The plaintiff was also present at the time of execution of deed 5 of gift dated 01.09.1986 as such he has full knowledge of the deed of gift. She also put her L.T.I. and admitted the execution before the Registrar of Gaya. The 3 sisters have advised Bhagwati Devi to make a gift of her share in favour of Jai Prakash Lal as Jai Prakash Lal was looking after Bhagwati Devi and he was also looking after the sisters and giving them honour and respect. The story made in paragraph 4(a) to 4 (d) by amendment are cooked up story. 9. On the basis of the aforesaid pleadings of the parties, the learned Court below framed the following issues : i. Is the suit maintainable? ii. Has the plaintiff got cause of action for the suit? iii. Whether the suit is barred by law of limitation, waiver, estoppel and acquiescence? iv. Whether the suit is barred by adverse possession? v. Whether there is unity of title and possession among the parties? vi. To what other relief and releifs the plaintiff is entitled? 10. After trial, the learned Court below observed that there is presumption of jointness among the Hindu family governed by Mitakshar School of Hindu Law and ultimately found that there is unity of title and possession of the parties over the suit properties vide paragraph 8 while deciding Issue No.5. The learned Court below also found that Bhagwati Devi and her 3 sisters are illiterate ladies. Bhagwati Devi even not moved freely in the public. Bhagwati Devi is pardanashin lady. Since the amendment challenging gift deed has been allowed, it is not open to the defendant to raise the defence of limitation. The learned Court below also found that Bhagwati Devi had not put her thumb impression with her conscious state of minds and after getting it understood. The learned Court below also found that Bhagwati Devi had no separate income or she had any stridhan property and, therefore, the properties standing in her name was the property of her 6 husband. The Registrar has not made endorsement about the presentation of deed before him by the executants. The defendant-appellants are not competent to say about the acceptance of gift by Jaypraksh Lal. The learned Court below at paragraph 22 of the impugned Judgment found that properties were purchased during the life time of Dukhan Sao. After death of Dukhan Sao and prior to the gift, all were co-sharer and unity of possession is an admitted and established fact. After death of Dukhan Sao Jai Prakash Lal used to look after affairs of family as such there is very chance of undue influence by Jai Prakash Lal over her mother Bhagwati Devi who happen to be in dominating position. Ultimately, the learned Court below found that the defendant failed to discharge their onus in proving that Bhagwati Devi executed the gift deed after knowing its contents and she made a conscious execution of the deed of gift in favour of Jai Prakash Lal. The deed of gift was not explained to Bhagwati Devi. The deed of gift is not a valid deed of gift and the share of plaintiff is not affected. So far deed of gift of the sisters are concerned, the learned Court below found that gift deed is valid one. Accordingly, the learned Court below held that the plaintiff has got 1/6th share in item No.1 & 3 of Schedule I of the plaint. So far item No.2 of Schedule I is concerned, it was held that he is entitled for 1/3rd + 1/6th share out of 5 ana 4 paisa and accordingly decreed the suit in part. The plaintiff was directed to pay the court fee on the valuation of Ext. „A‟, the gift deed executed by Bhagwati Devi. 11. The learned counsel, Mr. V. Nath appearing on behalf of the appellant submitted that the learned Court below approached the case in wrong angle and, therefore, the impugned Judgment and decree is vitiated. The learned counsel submitted that it is the specific case of the parties that the properties were standing in the name of father separately, mother separately and the 3 sons separately but the learned Court below proceeded 7 to decide the case presuming that Hindu Family is presumed to be joint and, therefore, there is unity of title and possession over the suit property. According to the learned counsel, although there is presumption of joint Hindu family but there is no presumption that joint Hindu family possesses joint property, but in the present case, the learned Court below observed that the family is joint and, therefore, they have unity of title and possession over the suit property. The learned counsel further submitted that it is the specific case of the plaintiff in the plaint that Bhagwati Devi, the mother owned and possessed property which she purchased through registered sale deed but the learned Court below found that the said Bhagwati Devi had no personal fund and income and stridhan, therefore, the property was purchased by her husband. It is neither the case of the plaintiff nor the case of the defendant. Therefore, the Court has made a third case. 12. The learned counsel further submitted that the appellants have adduced evidence in support of the fact that the contents of the gift deed was read over and explained to Bhagwati Devi who after understanding the same put her L.T.I. and also the gift deed was registered by the Registrar but the learned Court below discarded the evidences of the daughters of Bhagwati Devi who are also donors and also discarded evidence of the scribe and witnesses on flimsy and untenable grounds on surmises and conjectures. The learned Court below has wrongly not held that the suit is barred by law of limitation. 13. The learned counsel further submitted that the plaintiff challenged the gift deed executed by mother and the gift deed executed by sisters on same set of pleadings and evidence but the learned Court below on the same set of pleadings and evidence held that the gift deed executed by Bhagwati Devi is invalid whereas the gift deed executed by 3 sisters is valid. The learned counsel further submitted that the witnesses examined by the 8 defendants were discarded on the ground that the witnesses have failed to give the exact age of Bhagwati Devi at the time of execution of gift and this reasoning is untenable and on that reason, the entire evidence of witness cannot be discarded. The learned counsel further submitted that the evidence of one of the daughter has been discarded or doubted on the ground that she is unable to give description of the scribe. On these grounds, the evidences of witnesses were doubted by the learned Court below which is unsustainable. The learned counsel further submitted that the deed of gift is registered document and, therefore, the presumption of correctness is in favour of the defendant-appellant and the onus was on the plaintiff to have proved the fact that it was not presented before the Registrar but the learned Court below without there being any evidence held that there is no endorsement of Registrar that it was presented by executants although it is not the case of the plaintiff and the sister of the appellant specifically stated that it was presented by her mother before the Registrar. On these grounds, the learned counsel submitted that the impugned Judgment and decree are unsustainable in the eye of law. 14. On the other hand, the learned counsel, Mr. Dinu Kumar, appearing on behalf of the respondent submitted that there is no illegality in the impugned Judgment and decree. The learned Court below has rightly held that the gift deed executed by Bhagwati Devi is invalid as the property was acquired by father of the parties were in joint possession. The learned counsel further submitted that since there was no partition between the parties there is presumption of jointness. The learned counsel further submitted that the plaintiff did not challenged the gift executed by sisters and, therefore, the learned Court below has rightly held that the gift deed executed by sisters is valid. The appellants have failed to discharge their onus that Bhagwati Devi executed and registered the gift deed with 9 conscious state of mind. The learned Court below has discussed all the oral evidences properly and has given reasoning for not relying upon the witnesses. Therefore, it cannot be interfered in First Appeal. The plaintiffs had no knowledge about the gift deed earlier. She came to know the same in 1999 and therefore, they challenged by amending the plaint within three years from date of knowledge according to Article 59 of the Limitation Act. Therefore, the suit is not barred. 15. In view of the above submissions of the parties, the following points arises for consideration in this Appeal : (I) Whether the gift deed executed by Bhagwati Devi in favour of original defendant No.1 is legal, valid and binding on the plaintiff or whether the parties have got unity of title and possession over the suit properties? (II) Whether the Suit is barred by law of limitation and whether the impugned Judgment and decree are sustainable in the eye of law? 16. Point No.(I) : Originally, the plaintiff filed the simple suit for partition claiming 1/6th share in the suit property. The suit properties have been described in Schedule I of the plaint. There are only 3 items in schedule I. Item No.1 is holding No.3 of Ward No.2 which is 3 storied building. Item No.2 is holding No.60 ward no.5 which is two storied buildings and item No.3 holding No.83 ward No.5 is also 3 storied pacca building. It is specifically pleaded at paragraph 2 of the plaint that the father Dukhan Sao held and possessed properties and likewise mother also held and possessed properties. According to the defendants, the properties are not ancestral properties. So far item No.1, i.e., holding No.3 is concerned, admittedly it stands in the name of Dukhan Sao and Bhagwati Devi jointly. Therefore, Bhagwati Devi had 50 paise share. So far item No.2 holding No.60 is concerned, it is admitted case that it was acquired in the name of 3 sons and Bhagwati Devi, the mother. Bhagwati Devi purchased through separate sale 10 deeds to the extent of 5 ana 4 paisa share in holding No.60/56. The sale deed in the name of 3 sons is dated 03.03.1964 Ext.B/1 and the sale deed in the name of Bhagwati Devi dated 03.03.1964 is Ext.B/2. So far item No.3, i.e. holding No.83 is concerned, admittedly, it is in the name of Dukhan Sao, the father. The defendant‟s case is that Bhagwati Devi had purchased 5 ana 4 paise share in holding No.60/56 through Ext. B/2. She gifted the entire property to the extent of 5 ana 4 paisa to defendant No.1. Likewise the 3 sisters also executed registered gift deed regarding their share in holding No.3 after death of Dukhan Sao. Likewise the case is that on the death of Dukhan Sao, the mother and sisters gifted their share in holding No.83 which was acquired by Dukhan Sao. Now, therefore, in view of the pleading, it is admitted case that the properties mentioned in Schedule I stands in the name of father and mother jointly in one holding and the father exclusively in one holding and the 3 brothers in holding No.60 and in that holding the mother separately purchased 5 ana 4 paise share. Therefore, it becomes admitted fact that properties are not ancestral properties and the properties have been acquired by the persons in whose name the same are standing. From perusal of the impugned Judgment at paragraph 8, it appears that the learned Court below observed that there is presumption of jointness among the Hindu family and since the defendant has not taken a plea that there had been partition, the learned Court below found that the plaintiff has successfully established unity of title and possession. So far this finding is concerned, it may be mentioned here that no doubt there is presumption of jointness of Hindu family but there is no presumption that a family because it is joint possessed, joint property or any property. Therefore, on the basis of the presumption that a joint family continued to be joint in the present case, no finding could have been given that there is unity of title and possession over the suit property. As stated above, the properties are standing in the 11 name of different persons. So far the properties standing in the name of 3 brothers are concerned, there is no dispute. So far the properties standing in the name of father is concerned, on the death of father, it will devolve equally on the widow and the 3 sons and 3 daughters. Likewise the property purchased by Bhagwati Devi through Ext.B/2 is concerned, it will devolve on her heirs equally on her death provided, there is no gift deed. So far other holding is concerned, it is in the name of Dukhan Sao and Bhagwati Devi. So far this holding is concerned, the mother had got half share in it. It is neither the case of the plaintiff nor the case of the defendant that the properties have been acquired by Dukhan Sao in the name of his 3 sons or in the name of Bhagwati Devi or in his own name out of joint family fund or out of income from joint family property. From perusal of paragraph 20 of the impugned Judgment, it appears that the learned Court below proceeded to decide this question saying that the defendant has not made a case that Bhagwati Devi had any separate income or she had any stridhan property and, therefore, the learned Court below held that whatever property is in her name was the property of her husband. So far this finding of the learned Court below is concerned as stated above, it is not the case of either parties. The learned Court below has made out a third case. It is well settled principal of law that the Court is required to find out the correctness or otherwise of the case pleaded by the parties and the Court has no jurisdiction to go out of pleadings and made a third case. In this case although there is no case that the properties have been acquired by Dukhan Sao in the name of his wife, the Court below presumed this fact of its own which is not permissible under the law. 17. The only dispute between the parties is that after the death of Dukhan Sao, the mother Bhagwati Devi and the 3 sisters gifted their property to the defendant No.1. Therefore, according to the defendants, the 12 property which were standing in the name of Bhagwati Devi will go to the defendant No.1. The 3 sisters also gifted their share to the defendant NO.1 and, therefore, which they inherited on the death of Dukhan Sao will also go to the defendant No.1 on the basis of the gift deed executed by them. In this way, according to the defendant, the plaintiff will be entitled to a share in the property of father only. On the contrary, the plaintiff‟s case is that Bhagwati Devi and 3 sisters are illiterate and pardanashin lady and the defendants got the gift deeds executed by them because of mis- representation, undue influence and fraud. They did not put their L.T.I. on the gift deeds after understanding the contents thereof and the gift deeds are invalid, illegal and not binding on the plaintiff. Now, therefore, the most important question will be as to whether the gift deeds executed by the mother and the sisters in favour of original defendant No.1 is valid, legal. The share of the plaintiff will be dependent on the decision of these gift deeds. So far gift deed of the sisters are concerned, it has not been challenged by the plaintiff. Now, therefore, the only point to be decided here is about the gift deed executed by Bhagwati Devi in favour of defendant No.1. The gift deed is dated 01.09.1986 which has been marked Ext. „A‟. 18. It may be mentioned here that the registered sale deeds is in the name of mother, i.e., Bhagwati Devi with regard to holding no. 60 has been marked as Ext. B/2 which is dated 0303.1964. Likewise the holding no.3 stands in the name of Dukhan Sao and Bhagwati Devi. The sale deed dated 25.01.1969 has been marked as Ext. „B‟. The gift deed of 3 sisters has been marked as Ext. „A/1 dated 27.11.1986. Admittedly the mother and the 3 sisters have put their L.T.I. on the sale deeds. It is well settled principal of law that it is for the person who alleges undue influence has to prove the same. The law does not envisage raising of presumption in favour of undue influence. A party alleging the same must prove the same subject of course 13 to just exceptions. In case of illiterate pardanashin women, the burden would be on the vendee to prove that the transaction was genuine document. 19. P.W.1, P.W.2 have stated that