APPEAL FROM APPELLATE DECREE No.82 OF 1996 *** Against the judgment and decree dated 19.12.1995 passed by Sri B.N.P. Singh, Additional District Judge-II, Patna in Title Appeal No.41 of 1992 dismissing the appeal and upholding the judgment and decree dated 31.03.1992 passed by Sri Jawahar Prasad Ratnesh, Subordinate Judge-VII, Patna in Title Suit No.31 of 1987 decreeing the suit in part. Radhika Devi W/o Raj Kumar Pandit, resident of village-Faridpur, P.S. Phulwari, District-Patna. ………Plaintiff-Appellant-Appellant. Versus 1. Rajesh Kumar Niranjan S/o Ram Prasad Pandit 2. Kalawati Devi W/o Sri Ram Prasad Pandit 3. Rukmini Devi D/o Late Ram Charan Pandit 4. Brajesh Kumar Nandan S/o Sri Ram Prasad Pandit All residents of village-Faridpur, P.S. Phulwari, District-Patna. ………Defendants-Respondents-Respondents. For the appellant : M/s V.R.P.Singh and Nand Kumar Singh, Advocates. For the respondents : M/s S.K.Majumdar, Md. Raghib Ahsan, Sr.Advocates, Suraj Bans Roy and Om Prakash Singh, Advocates. *** P R E S E N T HON'BLE MR. JUSTICE S.N. HUSSAIN S.N. Hussain, J. This second appeal has been filed by the sole plaintiff-appellant- appellant challenging the judgments and decree of both the learned courts below. 2. The matter arises out of Title Suit No. 31 of 1987 which was filed by the sole plaintiff-appellant in January, 1987 for the following reliefs: (a) A preliminary decree of partition of 1/3rd share with regard to Schedule-I and II properties in favour of the plaintiff through the process of the court. (b) Declaration that sale deed dated 10.12.1986 with regard to Schedule-II properties of the plaint executed by Bipti Devi (original defendant no.1) in favour of defendant no.4 was illegal, sham, fraudulent, inoperative and not binding on the plaintiff. (c) Cost of the suit be awarded (d) Any other relief or reliefs to which the plaintiff was entitled. 2 3. The said suit was decreed in part and dismissed in part on contest without cost by the learned Subordinate Judge-VII, Patna vide judgment and decree dated 31.03.1992. The aforesaid judgment and decree of the trial court was challenged by the plaintiff in Title Appeal No. 41 of 1992, which was dismissed on contest without cost by the learned Additional District Judge-II, Patna vide judgment and decree dated 19.12.1995. Both the aforesaid judgments and decree of the learned courts below are under challenge in the instant second appeal. 4. The claim of the plaintiff was that the owner of the said properties was one Ram Charan Pandit, who died in the year 1959 leaving behind a widow Bipti Devi (original defendant no.1) and three daughters Radhika Devi (plaintiff), Kalawati Devi (defendant no.2) and Rukmini Devi (defendant no.3) out of whom Kalawatii Devi (defendant no.2) had two sons Brajesh Kumar Nandan (defendant no.4) and Rajesh Kumar Niranjan (latter substituted as defendant no.1 after the death of original defendant no.1 Bipti Devi). 5. Plaintiff further claimed that Ram Charan Pandit left 2.11 acres of land in which Bipti Devi inherited only 1/4th share as per the provision of the Hindu Succession Act, but the said property was never partitioned. It was also claimed that although Bipti Devi had executed three deeds of gift in favour of her three daughters with respect to her said share but ignoring that Kalawati Devi (defendant no.2) manufactured a sale deed (Ext.O) dated 10.12.1986 purported to have been executed by original defendant no.1 Bipti Devi in favour of defendant no.4 Brajesh Kumar Nandan, who was the son of defendant no.2 with regard to 10 ½ decimals of the suit land. Defendant no.2 also manufactured a gift deed dated 25.07.1987 (Ext.D) purported to have been executed by the said Bipti Devi in favour of the two sons of defendant no.2,namely Brajesh Kumar Nandan and Rajesh Kumar Niranjan mentioned above due to which the plaint was amended for declaring the said transaction also as sham, illegal and inoperative as there was no property left with Bipti 3 Devi to donate and she was also not competent to execute any deed of transfer on account of her mental incapacity due to ailment and old age. It was also claimed that due to inheritance from their father and gift by their mother, the plaintiff, defendant no.2 and defendant no.3 were coming in joint possession of the suit properties as absolute owners thereof but due to mischief created by defendant no.2 and her husband it had become difficult to continue in jointness and hence the plaintiff sought partition of the suit properties. 6. Defendant no.3 Rukmini Devi supported the claim of the plaintiff but defendant no.1 (substituted), 2 and 4 contested the suit stating that Bipti Devi had died on 03.08.1987 after filing her written statement. It was also claimed that although at the instance of plaintiff and defendant no.3 Bipti Devi executed three registered deeds of gift in favour of her three daughters but the said deeds were only for the purpose of cultivation and was not meant for any partition by metes and bounds and the properties remained joint. So far the sale deed dated 10.12.1986 (Ext.O) executed by Bipti Devi as per her own free will in favour of defendant no.4 is concerned, the contesting defendants stated that it was only for 10 ½ decimals of land which was within the share of Bipti Devi and hence was legal, proper, valid and conferred right, title and interest on defendant no.4. So far the deed of gift dated 25.07.1987 (Ext.D) said to have been executed by Bipti Devi in favour of Brajesh Kumar Nandan and Rajesh Kumar Niranjan with respect to 47 ½ decimals of land is concerned, the contesting defendants claimed that it was executed by Bipti Devi as per her own free will and there was no illegality in the same. 7. After considering the pleadings of the parties, the learned trial court framed the following issues for deciding the respective claims of the parties in the suit:- (i) Is the suit as framed maintainable? (ii) Has the plaintiff got valid cause of action to sue? (iii) Whether the suit is barred under the Rules of Estoppel, Waiver and Acquiescence? 4 (iv) Is the suit hit by section 34 of the Specific Relief Act? (v) Is there unity of title and possession in respect of suit properties between the plaintiff and the defendants? (vi) Is the sale deed executed by Bipti Devi in favour of Brajesh Kumar Nandan on 09.12.1986 in respect of plot no.1106 area 10.5 decimal valid, operative and genuine? (vii) Is the deed of gift executed by Bipti Devi in favour of Brajesh Kumar Nandan and Rajesh Kumar Niranjan dated 25.07.1987 in respect of 47.5 decimals of land valid, genuine and operative documents? (viii) Whether the deeds of gift executed by Bipti Devi in favour of Kalawati Devi, Radhika Devi and Rukmini Devi respectively dated 22.08.1977, 02.07.1980 and 02.07.1980 are valid, genuine and operative documents? (ix) Whether the plaintiff is entitled to decree, if so, to what extent? (x) To what other relief or reliefs the plaintiff is entitled to get? 8. On the aforesaid issues both the parties adduced their evidence and led their arguments respectively, after considering which the learned Subordinate Judge-VII, Patna partly decreed the suit on contest without cost vide judgment and decree dated 31.03.1992 after arriving at the following findings:- (a) The genealogy given by the plaintiff is admitted by the defendants. (b) It is admitted that all the three daughters of Ram Charan Pandit and Bipti Devi are entitled to 1/3rd share in the properties left by Ram Charan Pandit and Bipti Devi. (c) From perusal of the record, it appears that deed of gift dated 25.07.1987 (Ext.D) was witnessed by Rajeshwar Prasad Yadav and Gurudutta Prasad, who did not come before the court in support thereof in spite of steps taken by defendants to examine 5 them in the court, hence they had gone in collusion with the plaintiff or they had some other ulterior motive. (d) Plaintiff could not produce any cogent evidence to show that her mother Bipti Devi was loosing mental equibelrium, rather it was proved by defendants’ witnesses that she was a sensible lady and till 1986 Bipti Devi was the Karta-Dharta of the family. (e) The plaintiff and defendant no.3 having claimed that Bipti Devi was a simpleton lady having weak intellect, the onus was heavily upon them to prove the same but they completely failed. (f) It is found that Bipti Devi was a lady of good intellect having mental equibelrium and balanced mind and was doing works of the family and agriculture of the family. (g) Bipti Devi executed deed of gift (Ext.D) and the sale deed (Ext.O) having full knowledge of the contents of the deeds, without any pressure under her best mental equilibrium and balanced mind knowing the entire contents of the deeds. (h) No specific allegation of fraud played upon Bipti Devi had been pleaded or proved by the plaintiff and defendant no.3. (i) Ext.B series show that defendant nos.1, 2 and 4 were serving Bipti Devi and also got her treated by doctor. (j) Antim-Sanskar and Shradh of Bipti Devi were done by defendant nos.1, 2 and 4 and plaintiff and defendant no.3 did not participate therein. (k) Although plaintiff claimed that the deed of gift (Ext.D) was void in absence of acceptance of gift by the donee, but the recital of the deed itself is clear that the possession was given to the minor donees through their mother who had accepted the gift on their behalf. 6 (l) Bipti Devi executed the sale deed dated 10.12.1986 (Ext.O) in favour of defendant no.2 as per her own free will and consent and also executed gift deed in favour of defendant no.4 and his brother with her own free will without any pressure and hence they are valid, genuine and operative documents. (m) The deeds of gift executed by Bipti Devi in faovur of her three daughters were not valid, legal and genuine as Bipti Devi was not entitled to execute the deeds of gift with respect to the entire properties of her husband to the daughters and hence it was never in operation. (n) The properties remained joint between the parties. (o) The substituted defendant no.1 and defendant no.4 validly acquired properties vide Ext.D and Ext.O. (p) Apart from the properties which are subject matter of Ext.O and Ext.D the rest of the properties are in joint ownership and possession of the three daughters of Ram Charan Pandit, namely, plaintiff, defendant no.2 and defendant no.3. (q) There is unity of title and possession of the parties in Schedule-I properties except the properties mentioned in Ext.D and Ext.O and hence the plaintiff has got valid cause of action for the suit, accordingly the suit as framed is maintainable. (r) Defendant no.1 and defendant no.3 are entitled to their respective 1/3rd in the Schedule-I properties except 10.5 decimals of Ext.O properties and 42 ¼ of Ext.D properties. 9. Against the aforesaid judgment and decree of the learned trial court, the plaintiff filed Title Appeal No. 41 of 1992 and on the basis of the pleadings of the parties the learned Additional District Judge-II, Patna without framing any points for consideration in the title appeal decided the same on the basis of the issues of the trial court and dismissed the title appeal on contest 7 without cost vide judgment and decree dated 19.12.1995 after arriving at the following findings:- (a) There is no evidence to show partition of land among three sisters by metes and bounds and hence there was unity of title and possession of the parties in Schedule-I properties. (b) Although summons were served upon the witnesses of the deed of gift dated 25.07.1987 (Ext.D), they did not appear. (c) The total landed properties inherited by Bipti Devi and her three daughters namely plaintiff, defendant no.2 and defendant no.3 was 2 acres and 11 decimals of land in which the share of Bipti Devi was 52 ¾ decimals of land to that extent she was entitled to transfer. (d) Ext.D and Ext.O are legal and valid to that extent. (e) Plaintiff is entitled to get the remaining lands partitioned. 10. Against the aforesaid judgments and decree of both the learned courts below the plaintiff filed the instant second appeal which was admitted on 02.07.1999 formulating the following two substantial questions of law:- (i) Whether Ext.D was proved to be genuine and valid document? (ii) Whether for non-consideration of the evidence of PW.3 and DW.3 the impugned judgment and decree are vitiated? However, at the time of final hearing of the second appeal on 04.03.2009 the appellants prayed for framing two more substantial questions of law which was allowed and are as follows: (iii) Whether Bipti Devi had right to give her share in gift to defendant no.4 and his brother (Rajesh Kumar Niranjan) without the consent of the other members of the joint family and whether in the facts of the case the deed of gift (Ext.D) can be said to be valid document and can be acted upon? 8 (iv) Whether an instrument of alienation can be partly valid and partly invalid and whether in the circumstances of the case, the courts below ought to have held Ext.D wholly invalid? 11. So far substantial question of law no.(ii) is concerned, it is quite apparent from the judgment and decree of the learned court appeal below that while considering the specific issues, the learned court of appeal below has also considered all the evidence of the parties, including PW.3 and DW.3, in paragraphs 14, 15, 16, 17 and 18 of the impugned judgment and decree of the learned court of appeal below. Furthermore, learned counsel for the appellant has miserably failed to show the relevance of the said evidence of PW.3 and DW.3 with regard to the substantial questions of law involved in the instant case and has also failed to elaborate the effect of any such alleged non- consideration on the final decision of the learned court of appeal below. In the said circumstances, learned counsel for the appellant has failed to substantiate the said question of law which he had raised frivolously at the time of hearing of the second appeal under Order XLI Rule 11 of the Code of Civil Procedure. 12. So far remaining substantial questions of law no.(i), (iii) and (iv) are concerned, they all are with respect to the deed of gift dated 25.07.1987 (Ext.D) executed by original defendant no.1 Bipti Devi in favour of her grand sons Braj Kumar Nandan (defendant no.4) and Rajesh Kumar Niranjan (substituted defendant no.1) with respect to 47.5 decimals of land out of the total 2.11 acres of suit land, hence all the said three issues are taken up together for consideration. 13. Learned counsel for the plaintiff has stated that section 123 of the Transfer of Property Act, 1982 requires attestation of deed of gift by at least two witnesses which was done in the aforesaid deed of gift dated 25.07.1987, but he claims that according to section 68 of the Indian Evidence Act, 1872 if a document is sought by law to be attested it shall not be used as evidence until one attesting witness has been called for the purpose of proving its execution, if there be an attesting witness alive. Hence he submits that 9 admittedly none of the two attesting witnesses having been produced by the defendants to prove the execution of the said document as required by law, the said document should not have been used as evidence by the learned court below assuming it to be a genuine and valid document, specially when the plaintiff categorically denied execution of the said deed of gift. 14. The other point raised by learned counsel for the plaintiff- appellant was that according to article 357(2) of Mulla Hindu Law a coparcener under the Mitakshara Law has no right to dispose of his share unless he is the sole surviving coparcener. He also stated that it is not in dispute that after the death of Ram Charan Pandit in 1959 his widow Bipti Devi and three daughters inherited the suit properties, hence according to section 258 of Mulla Hindu Law Bipti Devi or any co-sharer was prohibited from disposing of his/her undivided interest in the property by gift. Thus he claimed that Bipti Devi had no right to transfer her share by gift to her two grand sons without the consent of other members of the joint family and thus the deed of gift (Ext.D) cannot be held to be a valid document conferring any title upon the donees. 15. Further point raised by learned counsel for the appellant is that both the learned courts below have held that deed of gift (Ext.D) was executed with respect to the lands which exceeds 1/4th share of the donor Bipti Devi and hence the deed would be valid only to the extent of her 1/4th share. He further claimed that the said deed of gift was for specific land and not with respect to the share of Bipti Devi and the donees had accepted the gift of specific land. Hence, they cannot now turn around and accept merely a part thereof and the learned courts below cannot be held to be justified in assuming that the instrument of alienation was partly valid and partly invalid and the learned courts below ought to have held that Ext.D was wholly invalid. 16. In reply to the aforesaid arguments of learned counsel for the appellant, learned counsel for respondent nos.1, 2 and 4 claimed that summons were sent to both the attesting witnesses of Ext.D at the instance of the 10 defendants but they did not choose to appear and hence the process as prescribed under section 68 of the Evidence Act was taken by the court and when even thereafter the said attesting witnesses of Ext.D did not appear, the court was fully justified in passing its impugned judgment and decree. He further claimed that in the plaint the plaintiff nowhere claimed that Ext.D was not signed by Bipti Devi, whereas in her written statement the original defendant Bipti Devi herself admitted that she had executed Ext.D giving the entire share to her grand sons and hence according to section 58 of the Evidence Act the admitted fact was not required to be proved. He claimed that original defendant no.1 after filing her written statement died and hence she could not depose but the scribe of the deed of gift deposed as DW.11 proving the said Ext.D and its execution and registration, whereas defendant no.2 the mother and guardian of the two donees who were minor at the time of Ext.D deposed as DW.18 and admitted that Ext.D was executed and she accepted the gift on behalf of her minor sons. 17. With regard to other points raised on behalf of the appellant, learned counsel for the contesting respondents submitted that Bipti Devi or her daughters did not become coparceners after the death of Ram Charan Pandit in the year 1959, rather they inherited as co-sharers as per the provisions of the Hindu Succession Act, 1956 and hence the old provision with regard to coparceners would not be applicable in case of Bipti Devi. Learned counsel for the respondents also stated that both the learned courts below specifically found that the deed of gift Ext.D was legally executed by the donor in favour of the donees except that it was a bit in excess of the share of the donor left in the suit property and hence the learned courts below were fully justified in holding that the deed of gift was limited only to the extent of the share of the donor left in the property. 18. After considering the respective arguments of learned counsel for the parties and the evidences relied upon by them it is quite apparent that the donor Bipti Devi, who was the original defendant no.1 in the instant suit 11 filed her written statement specifically admitting that she had executed Ext.D gifting her entire share to her two grand sons. Furthermore the execution of the said deed of gift has been fully proved by the evidence, specially the deposition of the scribe of the deed as PW.11, hence the learned courts below rightly came to the concurrent finding of fact that the said deed of gift Ext.D was executed by the original defendant no.1 Bipti Devi. 19. It is an admitted fact that there were two attesting witnesses of the deed of gift (Ext.D) and hence the provision of section 123 of the Transfer of Property Act 1982 was fully complied. Furthermore from the record of the case it transpires that at the instance of the defendants summons were duly sent by the court and served upon the said two attesting witnesses but they did not appear for deposing in the case for reasons best known to them and hence the provision of section 68 of the Evidence Act 1872 was also fulfilled as the requirement of proving a document by the attesting witnesses was made subject to the process of the court and capable of giving evidence. Hence, due to non-appearance of the attesting witnesses even after due notices no adverse inference can be drawn against the said deed of gift (Ext.D), specially when the executant of the deed, namely original defendant no.1 Bipti Devi had clearly stated in her written statement that she had executed the deed of gift (Ext.D) which was also fully supported by the scribe of the said deed of gift Ext.D who had deposed as DW.11. In the said circumstances, the learned courts below rightly held that the provisions of law were fulfilled and the aforesaid deed of gift Ext.D cannot be said to be not proved to be genuine and valid document. 20. Learned counsel for the appellant has relied upon the provisions of the Hindu Law which are applicable to a coparcenary. It is not in dispute that the original owner Ram Charan Pandit died after coming into force of the Hindu Succession Act 1956, section 8 whereof specifically provides that property of a male Hindu dying intestate devolves according the provisions of the said chapter of the Act, firstly upon the heirs being the relative specified in Class-I of the Schedule and thereafter two others and definitely the widow and 12 the daughters are the heirs of Class-I mentioned in the Schedule of the Act. Section 6 of the said Act also provides that when a male Hindu dies after commencement of this Act having at the time of his death an interest in Mitakashara coparcenary property, his interest in the property shall devolve by survivorship upon surviving members of the coparcenary in accordance with this Act, but the said Act has been made subject to a provision that if the deceased had left him surviving a female relative specified in Class-I of the Schedule the interest of the deceased in the Mitakashara coparcenary property shall devolve as per the provision of the Act and not by survivorship. In the said circumstances after the death of Ram Charan Pandit in the year 1959 his widow and three daughters did not become co-coparceners, rather they can be legally deemed to be co-sharers in the joint family property and hence the provision of Articles 258 and 357(2) of the Mulla Hindu Law with regard to coparcenary are not applicable to the instant case and Bipti Devi was fully entitled to execute the deed of gift (Ext.D) in favour of her grand sons with respect to her share. This view is fully supported by a decision of the Hon’ble Apex Court in case of Commr. of Income-tax, Madhya Pradesh, Nagpur and Bhandara, Nagpur Vs. Seth Govindram Sugar Mills, reported in A.I.R. 1966 Supreme Court, 24 (paragraph-10). Hence, the contention of learned counsel for the appellant is not legally substantiated. 21. It is an admitted fact that the entire property left by Ram Charan Pandit was 2.11 acres in which his