IN THE HIGH COURT OF JUDICATURE AT PATNA S.A. No.217 of 2004 1. Bhola Baski son of Late Neema Baski 2, Sanat Baski 3. Manoj Baski Both sons of Late Darbari Baski 4. Suraj Baski 5. Bolo Baski 6. Sita Ram Baski 7. Rangit Baski All sons of Bhola Baski 8. Lakhi Ram Baski son of Suraj Baski 9. Nima Baski @ Sukar Baski son of Darbari Baski All resident of village Sanghotari, P.S. Baunsi, P.O. Shyam Bazar (Sukhia Barhet), District Banka.……….Defendants-Appellants-Appellants. Versus 1. Suraj Murmu @ Suraju Murmu 2. Bishan Murmu Both sons of late Kandana Murmu 3. Jitendra Murmu son of Suraju Murmu 4. Abhi Lal Murmu son of Suraju Murmu All resident of village Sakradih, P.O. and P.S. Baunsi in the District Banka. ……..Plaintiffs-Respondents-Respondents. For the appellants : Mr. Ashutosh Jha, Advocate. For the respondents : None. ----------- 09/ 17.05.2010 Heard learned counsel for the appellants. 2. This second appeal has been filed by defendants- appellants-appellants challenging the judgments and decree of both the courts below. 3. The matter arises out of Title Suit No.31 of 1983 which was filed by the plaintiffs-respondents-respondents for declaration of their share and also for partition of the suit land having 08 annas share on the basis of gift in their favour and also for declaration that order passed in a proceeding under section 145 2 Cr.P.C. was void, illegal and not binding on plaintiffs and for other ancillary reliefs. The said suit was decreed on contest by Subordinate Judge-I, Banka vide his judgment and decree dated 17.07.1998. 4. Against the said judgment and decree of the trial court defendants filed Title Appeal No.74 of 1998 which was dismissed on contest by 1st Additional District Judge, Banka vide his judgment and decree dated 09.07.2004. Against the aforesaid judgments and decree of the courts below the instant second appeal has been filed. 5. Learned counsel for the appellants vehemently challenges the judgments and decree of the courts below, but the admitted fact is that the entire suit land measuring about 18 Bighas belonged to Sakaru Manjhi (father of Bhima Manjhi) and Bhola Manjhi (father of Moto Manjhi and Nima Manjhi), who had ½ share each therein and out of them Moto Manjhi died issueless and hence the entire ½ share of Bhola Manjhi devolved upon his surviving son Nima Manjhi, whereas the entire ½ share of Sakaru Manjhi devolved upon only his son Bhima Manjhi. The defendants are heirs of Nima Manjhi, whereas Bhima Manjhi had a wife Deoki. 6. The dispute arises after this point, as according to the plaintiffs, Bhima Manjhi and his wife Deoki had a daughter Bhagia and Bhima Manjhi died leaving behind a widow and a daughter, namely, Deoki and Bhagia, respectively and Deoki 3 executed a registered deed of gift dated 22.06.1950 in favour of the plaintiffs who were children of Bhagia and her husband Kanna Manjhi with respect to the entire 18 Bighas of the suit land, but in their pleadings and evidence plaintiffs claimed that the area 18 Bighas was wrongly mentioned in the said deed as Deoki was entitled to only half of the suit property, namely, 09 Bighas. On the other hand, the defendants claimed that Bhima Manjhi was issueless and his wife Deoki also predeceased him and hence the entire ½ share of Bhima Manjhi devolved upon his agnates Nima and Nima’s successors and as such the deed of gift executed in favour of the plaintiffs was absolutely sham, frivolous and illegal on the basis of which the plaintiffs did not acquire any right, title or interest in any part of the suit property. 7. So far the relationship of Bhima Manjhi and Nima Manjhi is concerned, there is no dispute that each of them had ½ share in the suit property totally measuring 18 Bighas and hence both of them had 09 Bighas share each. Hence the main question which arises for consideration is as to whether Bhima Manjhi had a daughter Bhagia and whether he predeceased his wife Deoki. In this connection both the courts below considered the matter in detail and after full appreciation of the pleadings and evidence of the parties had come to the specific and concurrent findings of facts that Bhima Manjhi left behind a widow Deoki and a daughter Bhagia. Since the aforesaid findings are findings of fact based on valid material, this court in a second appeal cannot legally 4 interfere under the provision of section 100 of the Code of Civil Procedure. 8. So far the deed of gift dated 22.06.1950 (Ext.4) executed by Deoki in favour of the plaintiffs is concerned, although it is with respect to 18 Bighas of the suit land, but the plaintiffs had very fairly stated in their plaint itself that Bhima Manjhi having only ½ share in the same Deoki was entitled to transfer only 09 Bighas of the suit land which she had transferred to the plaintiffs. The law is well settled in this regard that if a person transfers any property more than his/her share by any document, the document would legally be deemed to be with respect to the share which he/she had in the said suit. In the said circumstances, Deoki had right, title and interest over 09 Bighas of the suit land and she was entitled only to transfer the said share. Hence, the said Ext.4 would legally be deemed to be only with respect to 09 Bighas of the suit land, which had been accepted by the donees (plaintiffs) themselves, who were none else than the grand children of the donor. 9. Leaned counsel for the appellants has placed reliance upon a decision of the Apex Court in case of State of Uttar Pradesh vs. Nahar Singh (dead) and others reported in AIR 1998 Supreme Court 1328, but the said decision is with respect to a criminal appeal and does not in any manner involve any issue which is included in the instant case. Learned counsel for the appellants also relies upon another decision of the Apex 5 Court in case of Jadu Gopal Chakravarty (dead) vs. Pannalal Bhowmick and others , reported in AIR 1978 Supreme Court 1329, but the said decision was with respect to the jurisdiction of this court under section 100 of the Code of Civil Procedure with respect to the suit for setting aside earlier compromise decree on the ground that it was obtained by collusion and fraud and also dedication of property to a deity as a religious endowment under the Hindu law and it was merely held that existence or non- existence of the primary facts depended on construction of the basic documents like deed of trust, etc. This case law is also not applicable to the facts and circumstances of this case as it was with respect to a completely different context and so far the construction of basic document is concerned it was not in dispute that Bhima Manjhi had 09 Bighas of the suit land and it was fully proved that he left behind a widow Deoki who was fully entitled to the suit property which she transferred to her grand children. So, the said document, namely deed of gift in the instant case fully proved the moiety share of the plaintiffs in the suit property. 10. Learned counsel for the appellants further relies upon a decision of a learned Single Judge of this court in case of Baset Manjhi and others vs. Raimat Majjhiain and others, reported in 1994(2) PLJR 582 in which it was held that provisions of section 2(2) do not apply to members of Scheduled Tribes, who will be governed by customary law in matters of inheritance and succession and any alienation made by a widow 6 without legal necessity therefor will be invalid and according to customary law properties left behind by deceased Santhal will devolve to his agnates after death of the widow. The said decision was on the basis of a completely different set of fact that the widow had no issue and the parties claiming against her were her next reversioners. Here the case is completely different as the widow and deceased husband left behind a daughter. Furthermore, no customary law or any provision of the Santhal Pergana Tenancy Act or any other relevant provisions have been brought on record to show that the widow or the daughter of deceased will not inherit from a deceased person, rather the properties of the deceased would go to his agnates. Furthermore even in the absence of any deed of gift, the plaintiffs were the heirs and successors in interest of Bhima Manjhi and his widow Deoki. In the said circumstances, the aforesaid case law is not at all applicable to the facts and circumstances of this case. 11. On the basis of the aforesaid findings, this court does not find any illegality in the impugned judgments and decree of the courts below nor does it find any substantial question of law involved in the instant second appeal which is accordingly dismissed at this stage of hearing under Order XLI Rule 11 of the Code of Civil Procedure. harish/ ( S. N. Hussain, J. )