CIVIL WRIT JURISDICTION CASE No. 6055 OF 2007 ***** ( In the matter of applications under Articles 226 and 227 of the Constitution of India ****** 1. SATYA NARAYAN SINGH, SON OF LATE PALAKDHARI SINGH 2. PRAVEER KUMAR SINGH, SON OF LATE AMARNATH SINGH 3. LALLAN KUMAR SINGH, SON OF LATE CHANDRIKA SINGH 4. PAWAN KUMAR SINGH, SON OF LATE CHANDRIKA SINGH ALL ARE RESIDENT OF VILLAGE ARARA, POLICE STATION HAJIPUR SADAR, DISTRICT VAISHALI ………………………..…………………………………………….……...PETITIONERS VERSUS 1. THE STATE OF BIHAR 2. THE COLLECTOR, VAISHALI AT HAJIPUR 3. THE DISTRICT FISHERIES OFFICER, VAISHALI AT HAJIPUR 4. THE CIRCLE OFFICER, HAJIPUR, VAISHALI AT HAJIPUR 5. THE MUKHIYA, ARARA GRAM PANCHAYAT, POLICE STATION HAJIPUR SADAR, DISTRICT VAISHALI …………………………………………………..…………………….RESPONDENTS ******************** FOR THE PETITIONERS :- MR. ASHOK KUMAR CHOUDHARY, ADV. MR. MRIGENDRA KUMAR, ADVOCATE FOR THE S T A T E :- MR. CHHOTELAL NARAIN SINGH,SC I MS. BABITA KUMAR, AC TO SC I ********* P R E S E N T THE HON'BLE JUSTICE SMT. SHEEMA ALI KHAN O R D E R Sheema Ali Khan, J. The petitioners have challenged the order dated 20.03.2006/10.04.2006 passed by the Collector, Vaishali in Misc. Case No. 67 of 2004-05. The land in dispute appertains to Khata No. 604, Plot No. 1231, 801 (new) & 2278 (new) measuring 1 acres 91 decimals situated in village Arara, Hajipur Sadar Police Station in the district of Vaishali. The aforesaid lands were recorded in the name of 2 Visheshwar Pratap Shahi. Visheshwar Pratap Shahi and his brother Rameshwar Pratap Shahi settled the aforesaid lands in favour of the ancestors of Palakdhari Singh in the year 1939. The petitioners are the sons of Palakdhari Singh. It is the case of the petitioners that the said lands, in course of time, was converted into a Pokhar and was being exclusively used by the petitioners. The petitioners got their names mutated and were paying rent to the State of Bihar. The dispute arose when during the revisional survey, the lands aforesaid were recorded as Gram Panchayat Arara. The case of the State, on the other hand, is that the Circle Officer transferred the lands in question which were converted into a Pokhar in the year 1984 to the Fisheries Department. The Fisheries Department began to settle the Pokhar in favour of different persons which led to filing of Title Suit No. 112 of 1987. The suit was filed by the petitioners for grant of permanent injunction against the State of Bihar with a prayer that they should not settle the disputed plot and interfere in the peaceful possession of the plaintiffs-petitioners, and if necessary, to grant recovery of possession and also for declaration that the entry of the disputed land in the Sairat Register in the name of State of Bihar is entirely wrong. The suit was decreed in favour of the petitioners. In the said suit, the State of Bihar appeared and an intervention application was also filed by the Gram 3 Panchayat Arara. The Civil Court found that the lands were in possession of the petitioners on the basis of the rent receipts as well as on the basis of the evidence led in the suit. Title Appeal No. 23 of 1989 was filed by the State of Bihar against the decree and judgment passed in Title Suit No. 112 o 987 on 07.04.1989. I may point out that one of the documents filed on behalf of the plaintiffs/petitioners in the suit was the order of the Joint Director, Consolidation in favour of the petitioners. This order of the Joint Director, Consolidation was challenged by the Gram Panchayat Raj and Others in CWJC No. 5107 of 1987. The impugned order of the Joint Director, Consolidation was set aside on the ground that it was a cryptic order based on no evidence. It has been asserted at paragraph 16 that the order of this Court in CWJC No. 5107 of 1987 was ex-parte order, which appears to be correct statement. The petitioners, thereafter, filed CWJC No. 454 of 2004 which was disposed of by this Court vide order dated 16.07.2004 after noticing the order passed in CWJC No. 5107 of 1987. This Court directed that the petitioners should raise their grievances either before the Revisional Authority under the Act or before the Collector of the district. The observations of this Court led to filing of the Misc. Case No. 67 of 2004-05 before the Collector, who has dismissed the Misc. Case, which order is the subject matter of this writ 4 application. The fact that the petitioners filed a suit, which was decreed in their favour, cannot be controverted by the State of Bihar. The Collector has based his order on the basis of a LADAVI executed on 22.09.1992 by Lallan Kumar Singh, Praveer Kumar, son of Amarnath Singh and Satya Narayan Singh, who happened to be the petitioner no. 1, 2 and 3 in the writ application. This LADAVI was executed in a Panchayat held in the village, wherein the aforesaid petitioners have given up their rights as far as the lands in question are concerned. It is submitted that the LADAVI does not bear the signature of Amarnath Singh, father of Praveer Kumar Singh, who was alive at that time and Pawan Kumar Singh, it is also alleged that it is a forged document, and therefore, it cannot be binding on the petitioner no. 4 and father of petitioner no. 2, since they are not signatories on the said LADAVI. From the recitals of the facts aforesaid and the order of the Collector, Vaishali, two facts emerge, firstly that the petitioners hold a valid decree of the Civil Court which declares that the petitioners are in possession and the State of Bihar, wherein the State of Bihar was injuncted from settling the Pokhar in question, to any third party. Secondly, it is apparent that the order of the Collector is also based on the assumption that the petitioners have title over the lands 5 in question as the question of executing a deed of relinquishment in a panchayat would indicate that the persons who executed the deed of relinquishment are in fact the owners of the lands in question. The only question before this Court is whether the deed of relinquishment dated 22.09.1992 was a valid document for the purpose of passing the title of the land in question to the State of Bihar? For this purposes, the relevant facts as indicated above are, that the deed of relinquishment came to be executed by a registered document after the final decision in the suit by only three of the co-sharers, in whose favour the suit was decreed. The validity of Deed of Relinguishment has been considered by the Apex Court in the case of Kuppuswami Chettiar vs. A.S.P.A. Arumugam Chettiar & Another (AIR 1967 SC 1395). The Court has held that a registered deed of release, releasing the right, title and interest of the releaser, without consideration may operate as transfer by way of gift when the document clearly shows intention to effect transfer and is signed by or on behalf of the releasor, duly attested by at least two witnesses. The principle laid down aforesaid cannot be doubted! In the present case, however, the distinction lies in the fact that only two of the four brothers have executed a deed of relinquishment and as such the title cannot pass to the 6 beneficiary unless the document was executed with the consent of the other co-sharers. This brings the Court to the next question which is whether a co-sharer has a right to transfer his/her undivided share in a joint Hindu Property ? To address the aforesaid issue, I must refer to Section 30 of the Hindu Succession Act, 1956, which provides as follows:- “30. Testamentary succession.- Any Hindu may dispose of by will or other testamentary disposition any property, which is capable of being so disposed of by him or by her, in accordance with the provisions of the Indian Succession Act, 1925 (39 of 1925), or any other law for the time being in force and applicable to Hindus.” The Apex Court while considering this question in the case of Thamma Venkata Subbamma vs. Thamma Rattamma and Others (AIR 1987 SC 1775) has held as follows:- “When a particular State of law has been prevailing for decades in a particular area and the people of that area having adjusted themselves with that law in their daily life, it is not desirable that the court should upset such law except under compelling circumstances. It is for the Legislature to consider whether it should change such law or not. It may be legitimately presumed that before the passing of the Hindu Succession Act, 1956, the Legislature must have taken into 7 consideration the prohibition against making of gifts by a coparcener of his undivided interest in the coparcenary property, but the Legislature has not, except permitting the coparcener to make a will in respect of his undivided interest by section 30 of the Hindu Succession Act, altered the law against making of gift by a coparcener of his undivided interest. While considering whether the strict rule against alienation by gift should be interfered with or not, the Court should also take into consideration the legislative inaction in not interfering with the rule against alienation by gift, while enacting the Hindu Succession Act”. Thus, the conclusion, in the present case, on the basis of the aforesaid decisions is that the „Ladavi‟ (deed of release/relinquishment should be treated to a deed of gift in favour of the respondent Gram Panchayat. The co-sharer had the right to transfer his undivided share of the land in favour of the beneficiary of the deed. Before this court, all four brothers have appeared and challenged the order of the Collector passed in Misc. Case No. 67 of 2004-05. The averment in the writ application is that the deed of relinquishment has not been executed by the petitioners, whereas from the order sheet, it would transpire that the petitioners have challenged the Ladavi on the ground that it is a tainted with fraud and is not signed by Amarnath Singh, father of Praveen Kumar and Pawan Kumar 8 Singh, on the basis of which the Court finds that the deed of relinquishment is executed by only sosme of the co-sharers. The effect of the execution of a deed of release by some of the co-sharers is that the interest and title of the land will not pass to the beneficiary. The beneficiary would have the right to sue for partition as per the law laid down in the case of Gajara Vishnu Gosavi vs. Prakash Nanasahed Kamble and Others, (2009 (4) PLJR 225). Thus, the order passed in the Misc. Case No. 67 of 2004-05, declaring that the land belongs to State of Bihar, by way of deed of relinquishment dated 22.09.1992 in favour of the Gram Panchayat, Arara and that the District Fisheries Officer has a right to settle the lands has to be quashed. The State of Bihar would only get right, interest and title over the Pokhar, to the extent of the share of the „releasor‟, after a decree of partition in their favour. This writ application is thus disposed of with the aforesaid observations and directions. ( Sheema Ali Khan, J. ) PATNA HIGH COURT DATED, THE 26TH OCTOBER, 2010 A.F.R./ANAND