1 FIRST APPEAL No. 25 OF 2008 Against the judgment and decree dated 03.01.2008 passed by 3rd Subordinate Judge, Gopalganj in Title Suit No.72 of 1999/1 of 2006. OMPRAKASH GUPTA & ANR. ………. Plaintiffs-Appellants Versus MOSTT. UMA DEVI & ORS. ……… Defendants-Respondents ******** For the Appellant : Mr. Shashi Shekhar Dwivedi, Sr. Advocate Mrs. Sangeeta Sharma, Advocate Mr. Rakesh Chandra, Advocate Mr. Ranjan Kumar Dubey, Advocate with him For the Respondent : Mr. Naresh Prasad No.I, Advocate Dated : 19th day of July, 2011 P R E S E N T THE HON'BLE MR. JUSTICE MUNGESHWAR SAHOO J U D G M E N T The plaintiffs have filed this First Appeal against the impugned judgment and decree dated 03.01.2008 passed by the learned 3rd Subordinate Judge, Gopalganj in Title Suit No.72 of 1999/1 of 2006 whereby the learned Court below dismissed the plaintiff’s suit for partition. (2) The plaintiffs-appellants filed the aforesaid title suit for separation of their share in Khata No.88, Plot No.178 area measuring 1 Mungeshwar Sahoo, J. 2 kattha 7 dhur, the details of which has been mentioned in Schedule-I of the plaint, which has been purchased by the plaintiffs from original defendant no.1, Yogendra Prasad through registered sale deed. The plaintiffs alleged that Yogendra Prasad was the karta of his family. The plaintiffs approached him for opening of a medical shop and it was agreed that the advanced Rs.80,000 shall be returned by Yogendra Prasad and the plaintiffs will be given the shop premises on rent as tenant. Accordingly, on 01.06.1985, the plaintiffs paid Rs.80,000 to Yogendra Prasad and after construction of shop, it was given to the plaintiffs in December, 1985 on rent. Since then the plaintiffs were paying rent till January, 1991. On 22.11.1991, the plaintiffs purchased out of suit plot 43 feet length from north to south and 14 feet wide from east to west measuring 7 ⅓ dhur for Rs.98,000 through registered sale deed. Thereafter, the plaintiffs ceased to be the tenant and remained there as owner thereof. However, the original defendant no.1 and the other family members started making construction by the side of the shop premises of the plaintiffs and dispute arose. Hence, the plaintiffs filed the said suit for carving out the land which he purchased through sale deed. (3) It may be mentioned here that just after institution of the suit, the original defendant, Yogendra Prasad died and his legal representatives were substituted. The widow of Yogendra Prasad filed the contesting written statement for self and on behalf of her minor sons. The other defendants neither appeared nor filed written statement nor contested 3 the suit. According to the contesting defendants-respondents, their case in short is that the plaintiffs never paid Rs.80,000 to Yogendra Prasad for construction of the shop. In the year 1991, Yogendra Prasad was not in need of money nor he sold 7 ⅓ dhur on 22.11.1991 nor he gave possession to the plaintiffs. Yogendra Prasad was drunkard, as a result of which, he was not capable of understanding the worldly affairs. The widow, Uma Devi was residing with her mother-in-law, Laldei Devi and was selling vegetables. Out of the income from the vegetable selling, the shop premise was constructed and it was given to the plaintiffs on rent of Rs.800 per month. When in May 1999, the defendant went to demand rent, the plaintiffs disclosed that he has purchased the land from Yogendra Prasad. The defendant, Uma Devi asked her husband Yogendra Prasad who told that no money was given to him and his left thumb impression were taken on various sada papers. The land belonged to father of Yogendra Prasad, Suraj Bhagat who died in 1960 leaving behind his two sons, widow and two daughters who all have got share in the disputed property. Since it was joint family property, Yogendra Prasad had no right to sell the same without the consent of other coparceners. The left thumb impression obtained on sada papers might have been used in creating the alleged registered sale deed. The defendant alleged that there is no L.T.I. of Yogendra Prasad on the sale deed. (4) It will not be out of place to mention here that Suraj Bhagat is the father of Yogendra Prasad. Suraj Bhagat died leaving behind 4 his widow, Laldei Devi who is defendant no.3, another son, Nagendra Prasad who is defendant no.2, two daughters namely Shushila Devi and Lalita Devi who are defendant nos.4 and 5 respectively. As stated above, Yogendra Prasad, the eldest son who was original defendant no.1 died and his legal representative alone filed the contesting written statement. Neither Laldei Devi nor the second son, defendant no.2 nor the two daughters appeared and contested the suit by filing written statement. (5) On the basis of the above pleadings of the parties, the learned Court below framed the following issues: (i) Is the suit maintainable? (ii) Is the plaintiff is entitled for filing the suit? (iii) Whether the parties have got unity of title and possession? (iv) Whether the plaintiff is entitled for separate possession over 7 ⅓ dhur land? (v) Whether the plaintiff is entitled for any other relief? (6) After trial, the learned Court below came to the conclusion that there are discrepancies in the evidences of the plaintiffs and the plaintiffs have not produced any documentary evidence in proof of payment of Rs.80,000 to Yogendra Prasad. The witness, Shambhu and Yogendra have not been examined, therefore, the claim of the plaintiffs is suspicious. The plaintiffs also did not file the Kirayanama paper. The learned Court below also found that the disputed property was purchased by the plaintiffs in 1991 alone from Yogendra Prasad whereas again the plaintiffs purchased another property in 1993 from Yogendra Prasad and 5 his brother, Nagendra Prasad, defendant no.2 which indicate that the suit property was joint family property. Therefore, Yogendra Prasad had no right to sell the property without the consent of other coparceners to the plaintiffs. Therefore, the sale deed is void vide paragraph 10 of the judgment. On the above finding, the learned Court below dismissed the plaintiff’s suit. (7) Mr. S.S. Dwivedi, the learned senior counsel appearing on behalf of the plaintiffs-appellants submitted that the learned Court below has approached the case in wrong angle and wrongly came to the conclusion that the plaintiffs failed to produce any documentary evidence in support of payment of Rs.80,000 to Yogendra Prasad. In fact, the registered sale deed itself speaks that Rs.80,000 was paid to him earlier which was adjusted towards the consideration amount and remaining Rs.18,000 was paid to him at the time of registration of the sale deeds dated 22.11.1991. So far obtaining consent from the other coparceners is concerned, none of the coparcener appeared and denied to have given consent for transferring the property to the plaintiffs. The learned Court below presumed that no consent was obtained from the others when there was no such case made by the other coparceners. The learned counsel further submitted that the contesting defendants themselves stated that Laldei Devi was karta of the joint family. In coparcenery property, there is no concept of kartaship of mother. The learned counsel relied upon Article 217 of the Hindu Laws of Mullah. On the death of Suraj Bhagat, his eldest 6 son, Yogendra Prasad became the karta. According to the learned counsel, even if there was no separation the transfer made by Yogendra Prasad in the year 1991 was voidable and not void because he was karta and the transfer could have been challenged by coparcener or the coparcener may confirm the transfer. Here none of the coparcener appeared and said that their consent was not obtained. Therefore, it will be deemed that the transfer was with consent of the other coparcener. Even if it is not relied upon then also, the legal representatives of Yogendra Prasad are estopped to say that the transfer was made without the consent of others. Moreover, since the transfer by karta i.e. manager of the joint Hindu family is not void ab initio rather it is voidable, the learned Court below could not have held that it is void document. The transfer was made in the year 1991 and the vendor, Yogendra Prasad remained alive till 1st of June, 1999. During this period, he never raised any objection regarding non payment of consideration amount rather in 1993, Yogendra Prasad and his brother, Nagendra Prasad again sold some other property to the plaintiffs. Therefore, the defence of the contesting defendants that he was drunkard and was incapable of understanding the affairs is not acceptable and further, if consideration amount of Rs.80,000 had not been paid to Yogendra Prasad then, he would not have again sold the property to the plaintiffs after two years i.e. in the year 1993. The registered sale deed through which plaintiffs purchased the suit property have got presumption of genuineness. The original defendant no.1, Yogendra Prasad never 7 challenged the genuineness of the sale deed. The plaintiffs examined the scribe of the sale deed and the other witnesses who supported the fact of execution of the registered sale deeds and payment of Rs.80,000 by the plaintiffs to Yogendra Prasad but the learned Court below did not consider the said evidences. The learned Court below also did not consider the admission of Yogendra Prasad made in the registered sale deed about receipt of Rs.80,000 because the said admission by Yogendra Prasad became the statement of a dead person. (8) The learned counsel for the appellants further submitted that so far question of drunkard is concerned, there is no reliable evidence adduced on behalf of the defendants. Moreover, there is no provision to declare a sale deed void or voidable on the ground that the executant of the sale deed is a drunkard. On the contrary, as stated above in 1993, he along with his brother again executed sale deed in favour of the plaintiffs. The defendants never challenged the second sale deed. This defence has been taken only after the death of Yogendra Prasad. The defendants disputed the L.T.I. of Yogendra Prasad on the sale deed. The plaintiffs examined the finger print expert who gave opinion to the effect that the L.T.I. appearing on the sale deed is of Yogendra Prasad but the learned Court below without considering these evidences wrongly dismissed the plaintiff suit. Further, the learned Court below failed to consider the fact that the defendants have filed title suit no.214 of 1999 challenging the sale deeds executed by Yogendra Prasad in favour of the plaintiffs on 22.11.1991 8 which is still pending. In that suit, the dispute regarding void or voidability will be decided but the learned Court below in the present case decided the said dispute wrongly because in the present case, the defendants never filed counter claim praying for setting aside the sale deeds. On these grounds, the learned counsel submitted that the impugned judgment and decrees are liable to be set aside and the plaintiffs suit be decreed. (9) On the other hand, the learned counsel appearing on behalf of the defendants-respondents supported the impugned judgment and decree. According to the learned counsel, there are much contradictions in the evidences of the plaintiffs and no paper has been filed by the plaintiffs in support of the payment of Rs.80,000 to Yogendra Prasad. Therefore, the learned Court below had rightly found that no consideration was paid. The learned counsel further submitted that the coparcener cannot transfer the joint family property without there being any partition and if they transferred without the consent of the other coparcener, the transfer will be void. Therefore, the learned Court below has rightly held that transfer made by Yogendra Prasad in favour of the plaintiffs is void document. The learned Court below has considered all the evidences available on record and arrived at a finding giving good reasons, therefore, it cannot be interfered with in this First Appeal. On these grounds, the learned counsel submitted that the First Appeal is liable to be dismissed. 9 (10) In view of the above rival contentions of the parties, the points arise for consideration is as to “whether plaintiffs-appellants have been able to prove their case of purchase from Yogendra Prasad through two registered sale deeds dated 22.11.1991 on payment of consideration amount” and “whether the impugned judgment and decrees are sustainable in the eye of law?” (11) In support of their respective cases, the parties have adduced oral as well as documentary evidences. P.W.1 is the scribe of the sale deeds dated 22.11.1991. Both the sale deeds have been marked as Exhibit-1 and 1/a. He has stated that after writing the sale deeds, the contents thereof was read over and explained to Yogendra Bhagat who after receiving the balance consideration amount of Rs.18,000 put his L.T.I. on both the sale deeds which were identified by Lal Babu Prasad. From perusal of the cross-examination of this witness, it appears that only suggestion has been given to him that at the time of execution of the sale deed, Yogendra Prasad was intoxicated condition which he denied. It may be mentioned here that there is no cross-examination on the point of receiving the balance consideration of Rs.18,000 and putting L.T.I. by Yogendra Prasad on both the sale deeds. (12) P.W.2 is formal witness. P.W.3,, Subhash Chandra Prasad has stated that in his presence, both the sale deeds were executed by Yogendra Prasad in favour of the plaintiffs which was read over to him. 10 He told that he had already received Rs.80,000. In presence of this witness, balance Rs.18,000 was paid. This witness has further stated that he signed as witness on the sale deeds at the instance of Yogendra Bhagat. In the cross-examination, he has stated that Rs.80,000 was not paid in his presence. A suggestion has also been given to this witness that in his presence, no money was paid. There is no cross-examination with regard to execution of the sale deed and putting L.T.I. of Yogendra Prasad in the sale deeds in presence of the witnesses. (13) P.W.4 is the plaintiff no.1 who has stated that he had paid Rs.80,000 on 01.06.1985 to Yogendra Bhagat. He constructed shop and also house for him and gave the shop to him on rent in December 1985. He purchased the suit property in January, 1991. This witness has fully supported the case as made out in the plaint. From perusal of the cross- examination, it appears that at paragraph 39, suggestion has been given to this witness that Yogendra Prasad was drunkard and Ganjeri, therefore, deed was forged. (14) P.W.5 has stated that in his presence there was negotiation between the plaintiffs and Yogendra Prasad in May 1995 and in his presence, Omprakash Gupta paid Rs.80,000 on 01.06.1985 for construction of shop and house to Yogendra Bhagat. When Yogendra Bhagat was in need of money again in 1991 and he was not able to return Rs.80,000, he sold the suit property on 22.11.1991 through two sale deeds. In the sale deeds, Rs.80,000 was adjusted and Rs.18,000 was paid to 11 Yogendra Prasad. From perusal of the cross-examination, I do not find any such vital contradiction so as to discredit him. (15) P.W.6 is the Advocate Commissioner. He has proved his notice, hajiri, map, field book as Exhibit 3, 3/b and report has been proved as Exhibit 3/C. P.W.7 has proved the sale deed executed by Yogendra Bhagat and his brother and mother, Laldei on 07.07.1993 which has been marked as Exhibit 1/b. This witness has not been cross-examined by the defendants. Now, therefore, the sale deed, Exhibit-1/b has become admitted document. P.W.8 is formal witness. P.W.9 has proved the photographs of Yogendra Prasad and the negatives which have been marked Exhibit-5 series and Exhibit-6 series. P.W.10 is the finger print expert who has compared the disputed L.T.I. of Yogendra Prasad with the admitted L.T.I. and has proved his report which has been marked as Exhibit-7. (16) From the above evidences, it appears that the plaintiffs have examined the scribe of the sale deeds, Exhibit-1 and 1/a, the attesting witnesses and also the witnesses who have stated that Yogendra Bhagat admitted to have received Rs.80,000 which was adjusted in the sale deeds and in presence of the witnesses, the balance consideration amount of Rs.18,000 was paid to Yogendra Bhagat. The defendants pleaded that L.T.I. appearing on the sale deeds are not the L.T.I. of Yogendra Bhagat. So far this pleading is concerned, Exhibit-7 which is the report of P.W.10, finger print expert clearly shows that L.T.Is. on these sale deeds are L.T.I. 12 of Yogendra Bhagat @ Yogendra Prasad. Further, the plaintiffs have proved Exhibit-1/b which is dated 07.07.1993 executed by Yogendra Bhagat, his brother and mother in favour of plaintiffs i.e. two years after execution of Exhibit 1 and Exhibit 1/a. In the sale deed, Exhibit-1 and 1/a, Yogendra Bhagat clearly admitted the fact that he had received Rs.80,000 earlier from the plaintiffs and he was not in a position to repay the same and because of the fact that he is in urgent need of money, he is selling the property to the plaintiffs for Rs.98,000. Rs.80,000 was adjusted and he received Rs.18,000. In both the sale deeds, the consideration amount was Rs.49,000. Out of which Rs.40,000 was adjusted and Rs.9,000 was paid. From perusal of Exhibit-1/b i.e. the sale deed dated 07.07.1993 it is clear that Yogendra Bhagat, Nagendra Bhagat and their mother, Laldei Devi again sold property to the plaintiffs i.e. after 2 ½ years of execution of Exhibit-1 and 1/a. The question is whether the original defendant, Yogendra Bhagat along with his mother and brother would have agreed to sell again to the plaintiffs if he had not received the consideration amount of the earlier sale deeds. The further question will be if Yogendra Bhagat was drunkard and was incapable of understanding the affairs why the defendants did not challenge the second sale deeds on that ground. On the contrary, the brother and mother joined him as co-executant and registered sale deed in 1993, Exhibit-1/b. Now, let us see what is the evidence produced by the contesting defendants-respondents. 13 (17) D.W.1 is Uma Devi, the widow of Yogendra prasad. She has stated that no partition has taken place between the sons, widow and daughters and Suraj Bhagat who died in 1960 and all of them are in joint possession. After death of Suraj Bhagat, Laldei Devi became the karta. At paragraph 6 of her examination-in-chief, she has stated that her husband was drunkard and Juari and he was of loose character. Because he was drunkard, he was not capable of understanding what is good and what is bad. The mother-in-law had constructed the disputed shop and had inducted the plaintiffs as tenant. The plaintiffs paid rent from 1984 to 1999 to her mother-in-law, Laldei Devi. In 1999, when this witness went to demand rent, the plaintiffs disclosed about the purchase. Then this witness asked her husband who denied to have received Rs.80,000 and executed the sale deeds and he also told that the plaintiffs obtained L.T.I. on various blank papers giving him wine. Thereafter this witness came to know about the forged sale deeds and when her husband knew about this forged sale deeds in the night her husband died. Now, therefore, according to her specific evidence is to the effect that the sale deeds are forged document and that Laldei Devi inducted the plaintiffs as tenant. It may be mentioned here that when in the cross-examination she was asked as to whether she will examine her mother-in-law she baldly stated that her mother-in-law is 'Pagal'. As we have stated above at paragraph 6, she has also stated that her husband is characterless and now saying that her mother-in-law is Pagal(mad). At paragraph 33 of her cross-examination, she has stated that 14 her mother-in-law was giving money to her husband for drinking wine and he was drinking wine for 24 hours. At paragraph 36 of her cross- examination, she is unable to say what amount was spent in construction of the shop premises and said that her mother-in-law will be able to say. From perusal of her evidence, it is clear that whatever she has stated about the payment of consideration and construction of shop by her mother-in- law appears to be not reliable. So far payment of consideration is concerned, she got this knowledge from her husband. It may be mentioned here that her husband was alive for more than 8 years after execution of the sale deeds. The plaintiffs specific case is that after purchase he never paid the rent. Peculiarly no eviction suit has been filed for either realization of rent or for eviction of the plaintiffs. On the contrary, again after 2 ½ years another property was sold by Yogendra Prasad. Only bald statement has been made that her husband was drinking wine for 24 hours. On the contrary, the circumstances show that this is not so. If her husband was drunkard, he would not have joined as co-executant in Exhibit-1/b. No rent receipts have been filed by the defendants to show that in fact, the plaintiffs were paying rent. The defendant's case is that they were paying rent to Laldei Devi and that Laldei Devi constructed the house and that Laldei Devi inducted the plaintiffs as tenant whereas in evidence D.W.1 said that she is mad woman. Therefore, in my opinion, the evidence of D.W.1 is not acceptable. At one place she is making out a case that the sale deed is forged and fabricated. Therefore, if it is forged and fabricated, there is no 15 question of drunkard or Juari arises. We have seen the report of P.W.10 Yogendra Prasad himself admitted to have received Rs.80,000 and he was in need of money. This statement made in the registered sale deeds are the statement of a dead person. The defendants failed to explain this admission. (18) D.W.2 to D.W.5 and D.W.7 are not on the point of payment of consideration and execution of the sale deeds. They have deposed regarding tenants and that Laldei Devi became karta and there was no partition. D.W.6 has stated that Laldei Devi had constructed the suit premises and that Yogendra Bhagat was drunkard. At paragraph 9 of his cross-examination, he has admitted that he has never seen him drinking wine. (19) From the evidences of the defendants as discussed above, there is no reliable evidence that Yogendra Bhagat was such a drunkard person that he was incapable of understanding what is good and what is bad. The witnesses have only stated that he was drunkard. Except this statement, there is nothing on record in support of this fact. The question is whether at the time of execution of the sale deed he was in intoxicated condition and he was incapable of understanding what he was executing. There is no evidence with relation to this question adduced on behalf of the defendants. A general statement has been made that he was a drunkard or Juari. There is no provision that sale deed executed by a drunkard is void document. The defendants failed to adduce reliable 16 evidence that at the time of execution of the sale deed, he was intoxicated to such extent that he was incapable of understanding the matter. On the contrary, from perusal of Exhibit-1 series, it appears that he was dealing with the property. Further, this statement of the D.W.1 is not supported by the other defendants. The legal representatives are claiming through Yogendra Prasad, therefore, they are bound by the statement of Yogendra Prasad who has died. When there is no reliable evidence to the effect that he was drunkard and was incapable of understanding the worldly affairs, it cannot be said that Laldei Devi became the karta of coparcenery family. If the defendant's case is believed then it indicates that coparcener ceased to exist on death of Suraj Bhagat because Laldei Devi cannot