FIRST APPEAL No.650 OF 1993 Against the judgment dated 28.06.1993 and decree signed on 9.7.1993 by Sri M.P. Mandal, Sub Judge IV, Begusarai in T.S. No. 58 of 1991. SUKHDEO MAHTON ………… Defendant No.1/Appellant Versus RAM LAKHAN MAHTO & ORS ……….. Plaintiffs/Respondents ******** For the appellant : Mr. Uday Shankar Sarna Singh, Advocate For the respondents : None Dated : 24th day of August, 2010 P R E S E N T THE HON'BLE MR. JUSTICE MUNGESHWAR SAHOO J U D G M E N T 1. The defendant No.1 has filed this first appeal against the judgment dated 28.6.1993 and the decree following thereupon signed on 9.7.1993 by Sri M.P. Mandal, the learned Sub Judge IV, Begusarai in Title Suit No. 58 of 1991 decreeing the plaintiffs- respondents’ suit. 2. The plaintiffs-respondents filed the aforesaid title suit No.58 of 1991 praying therein for the declaration that the deed of gift dated 26.2.1991 is void ab initio and further for partition of the suit properties detailed in Schedule B of the plaint. 3. The plaintiffs claimed the aforesaid relief of declaration about the gift deed and for partition alleging that there had been Mungeshwar Sahoo, J. -2- partition between Raktoo Mahato and Soman Mahato sons of Ganesh Mahato. Soman Mahato had two sons Butan Mahato and Kailu Mahato. There had been partition between Butan Mahato and Kailu Mahato also. Butan Mahato died leaving behind Jitu Mahato. Jitu Mahato had three sons. One is defendant No.1, the other is plaintiff and third son’s son is plaintiff No.2. According to the plaintiff, Jitu Mahato was member of coparcenary family consisting of himself and his three sons and grand son plaintiff No.2. The father of plaintiff No.2 died. Jitu Mahato died on 3.3.1991 and, therefore, the defendant No.1 has got 1/3rd share, plaintiff No.1 has got 1/3rd share and plaintiff No.2 has got 1/3rd share in the coparcenary property. 4. The further case of the plaintiff is that Jitu Mahato was seriously ill from before the time of his death during the month January and February 1991. He had become very sick and infirm and had lossed his capacity of knowing the things in its right prospective. After the death of Jitu Mahato the three sons separated in Mess and Business but were in joint possession of the suit properties which consisted of ancestral Khatiyani lands and the lands acquired with joint family funds derived from the yields of the ancestral lands. However, after the death of Jitu Mahato defendant No.1 Sukhdeo Mahato fraudulently managed to get a deed of gift allegedly executed by Jitu Mahato on 26.2.1991 in favour of defendant No.1. Because Jitu Mahato was not physically and mentally sound at the time of alleged execution of the gift deed, fraudulent act of the defendant is apparent. It is further stated that the document was not even presented by Jitu Mahato for registration before the Sub Registrar rather it was presented by defendant No.1 on 3.4.1991 for registration after the death of Jitu Mahato and, therefore, the deed is fraudulent and inoperative and moreover, the deceased Jitu Mahato -3- being the coparcener had no authority to gift his undivided share to one coparcener. One coparcener cannot dispose of his undivided interest in the coparcenary property by gift. Therefore, the transaction is void. 5. On the other hand the defendant No.1 appeared and filed contesting written statement. Besides taking the various legal pleas, the main contention was that during the life time of Jitu Mahato he partitioned his property among his three sons long prior to 1975. He got 1/4th share and 1/4th share was allotted to each of his three sons. The further case is that Jitu Mahato had acquired some landed property from his own income and he executed the deed of gift on 26.2.1991 in favour of defendant No.1 and the deed of gift is genuine document and executed without any legal infirmity but just after execution of the gift deed Jitu Mahato fell ill and he expired on 3.3.1991, so defendant No.1 got it registered under Section 40 of Registration Act. Hence, if the partition is allowed the defendant No.1 is entitled to half share and the plaintiffs’ share would be 1/4th each. 6. On the basis of the above pleadings, the learned court below framed as many as seven issues. Out of the said seven issues issue Nos.5 and 6 are the important issues and on these points only the learned counsel for the appellant has addressed to the court at the time of hearing of this appeal. Thus issue Nos. 5 and 6 are quoted hereinbelow. “Issue No.5 – Is the deed of gift dated 26.2.1991 executed by Jitu Mahato in favour of the defendant No. Sukhdeo Mahato valid, genuine and enforceable in law ? Issue No.6 – Are the plaintiffs entitled for partition of the suit land if so what will be their share ?” -4- 7. The learned court below after trial came to the conclusion that there had been no partition and that the acquisition made by the Jitu Mahato were of joint family. A coparcener of Mitakchara Hindu Family cannot dispose of his undivided interest by way of gift and thus, the transfer is void altogether. The learned court below has also found that Jitu Mahato was seriously ill and had no capacity to understand the things and, therefore, the deed of gift is invalid on this score also. 8. The learned counsel for the appellant submitted that the learned court below has wrongly decreed the plaintiffs-respondents’ suit. According to the learned counsel all the defendant’s witnesses have proved that before execution of the gift deed Jitu Mahato was in sound health but the learned court below did not rely the witnesses. The learned counsel further submitted that one coparcener can gift his share to the other coparcener but learned court below has wrongly held that the gift is void. The learned counsel further submitted that in the present case there was partition between the three brothers and Jitu Mahato himself during his life time and, therefore, there is no question of coparcenary family because since after separation Jitu Mahato became the absolute owner of the property allotted to him and he had the authority to gift his property allotted to him in partition. In such circumstances, the theory of gift by coparcener does not arise. The learned counsel further submitted that moreover Jitu Mahato has also gifted his self acquired lands to the defendant No.1 who came in possession from 26.2.1991 and, therefore, the learned court below has wrongly decreed plaintiffs’ suit. -5- 9. As stated above in spite of service of notice nobody appeared on behalf of the plaintiffs-respondents. 10. In view of the above facts and circumstances, the point arises for consideration in this appeal are as follows : (1) Whether the deed of gift dated 26.2.1991 is valid, genuine and enforceable in law and the findings of the learned court below on this point is correct or not ? (2) Whether the plaintiffs are entitled for partition of the suit properties as claimed by them and the findings of the learned court below on this point is correct or not ? 11. According to the plaintiffs’ case there had been no partition between Jitu Mahato and his sons and they were joint forming coparcenary family. Whereas according to the defendant there had been partition between the father and sons and each of them had got 1/4th share in the suit property. To prove his case the defendants have adduced evidence oral as well as documentary evidences in this case. It may be mentioned here that admittedly the parties governed by Mitakshara Schools of Hindu Law and, therefore, there is presumption on jointness and in the case of father and sons the presumption of jointness is the strongest presumption. Since the presumption is in favour of the plaintiffs it was for the defendant to prove the previous partition by adducing cogent and reliable evidence in rebuttal of the presumption. From perusal of the written statement it appears that only statement has been made that there had been partition before 1975. There is nothing to show by what mode the partition took place. No doubt the witnesses DW 3, DW7 and DW 8 -6- (defendant no.1 himself) have stated that the parties were separate and according to DW 8 the suit properties fell in the share of Jitu Mahato but what property fell in the share of plaintiff No.1 and what property fell in the share of defendant No.1 and plaintiff No.2 are not detailed in the written statement and also in evidence. From perusal of Ext. C the alleged gift deed, it appears that it is recited that Jitu Mahato purported to gift his share in the property. Had there been partition the deceased Jitu Mahato should have mentioned in the gift deed the particular land which was allotted to him in the partition but only share has been gifted. There is no recital in the gift deed that in the partition these properties were allotted to him. The defendant is relying upon this document which gives a death blow to the defendant’s case itself that there had been partition. I therefore, find that there had been no partition between the parties and the parties were joint. The finding of the learned court below on this point is hereby confirmed. 12. The learned counsel submitted that the self acquired properties have been gifted and the properties are standing in the name of Jitu Mahato. Ext. A series have been filed to show that some of the properties are in the name of Jitu Mahato. Regarding the acquisition of these properties are concerned it is the only the case of the defendant that those properties are self acquired property of Jitu Mahato. According to the plaintiffs, it is specifically pleaded in the plaint that out of the ancestral land’s income Jitu Mahato acquired the property. Admittedly, in this case the family has got ancestral property, it is not the case of defendant that there is no sufficient yield out of the joint property. Now therefore, it was for the defendant to show that Jitu Mahato acquired the property without the aid of the income from the joint family land or that he acquired out of -7- his separate source of income. There is neither such pleading nor any such evidence to the effect that Jitu Mahato had separate source of income. No doubt, the properties are standing in the name of Jitu Mahato but the plaintiff had shown that there is ancestral land and out of that income the said properties have been acquired by Jitu Mahato. Therefore, the presumption in favour of defendant stand rebutted. Now the onus was upon the defendant to prove that the property was acquired by Jitu Mahato without the aid of the income from joint family land. As stated above, there is no such evidence. I therefore, find that the property standing in the name of Jitu Mahato i.e. Ext. A-3 to A-5 are the acquisition made by the joint family fund derived from the yield of ancestral land. The finding of the learned court below on this point is, therefore, confirmed. 13. So far execution and registration of gift deed is concerned it is assailed by the plaintiffs on two grounds. Firstly, that since the month of January and February 1991 Jitu Mahato was seriously ill and was not knowing the true affairs. PW 2, PW 3, PW 5 and plaintiff Ram Lakhan Mahato himself all have stated that Jitu Mahato had been ailing prior to his death. In the gift deed Ext.-C also there is a recital that because of oldness the deceased Jitu Mahato was always ill and in that condition the deed was executed. It may be mentioned here that the deed Ext.-C is alleged to have been executed on 26.2.1991 and on 3.3.1991 Jitu Mahato died i.e. just after four days of Ext. C. This itself shows that the deceased was on death bed. It was for the defendant to have explained this suspicion satisfactorily but failed to explain the same. The witnesses examined on behalf of the defendant only stated that he was not ill prior to execution of gift or at the time of execution of gift. The suspicion is if he was not ailing and was capable of knowing the things then under -8- what circumstances he died just after four days, has not been clearly explained. No doubt the defendant has stated that just after execution of the deeds it could not been presented for registration because it was late therefore, they returned back and thereafter Jitu Mahato had loose-motion and he died. This bold statement of the defendants cannot be relied upon because there is no such pleading and in face of the evidences of PW 2 Ram Bhajan Das, PW 3 Mohd. Zaheer, the plaintiff Ram Lakhan Mahato himself and PW 5 Thakuri Mahato and also the recital in Ext.-C to the effect that Jitu Mahato was always ill. From the perusal of the witnesses examined on behalf of the plaintiff, it is clear that Jitu Mahato was seriously ill. This evidence of the plaintiff is further corroborated by the fact that just after four days Jitu Mahato died and further in the recital of Ext.-C also. I, therefore, find that Jitu Mahato was seriously ill and was not capable of knowing the things in true prospective. Accordingly, the finding of the learned court below is hereby confirmed. 14. Secondly, the plaintiff has challenged the execution of the gift deed as void on the ground that coparcener has no power to gift his undivided share. I have found above that there had been no partition between the parties and the family is joint as such the parties are copartioners. In such circumstances, the parties had common interest and unity of possession in the coparcenary property. None of them had definite share in it. Therefore, Jitu Mahato had undivided interest in the property and further he gifted his undivided share, it would be evident from Ext.-C. In the case of Thamma Venkata Subbamma (dead) by L.R. Vs. Thamma Rattamma and others AIR 1987 SC 1775, the Hon’ble Supreme Court at paragraphs 13, 14 and 15 has held as follows : -9- “13. We may also refer to a passage from Mulla’s Hindu Law, Fifteenth Edition, Art. 258, which is as follows :- “Gift of undivided interest.- (1) According to the Mitakshara law as applied in all the States, no coparcener can dispose of his undivided interest in coparcenary property by gift. Such transaction being void altogether there is no estoppel or other kind of personal bar which preclude the donor from asserting his right to recover the transferred property. He may, however, make a gift of his interest with the consent of the other coparceners.” 14. It is submitted by Mr. P. P. Rao, learned Counsel appearing on behalf of the respondents, that no reason has been given in any of the above decisions why a coparcener is not entitled to alienate his undivided interest in the coparcenary property by way of gift. The reason is, however, obvious. It has been already stated that an individual member of the joint Hindu family has no definite share in the coparcenary property. By an alienation of his undivided interest in the coparcenary property, a coparcener cannot deprive the other coparceners of their right to the property. The object of this strict rule against alienation by way of gift is to maintain the jointness of ownership and possession of the coparcenary property. It is true that there is no specific textual authority prohibiting an alienation by gift and the law in this regard has developed gradually, but that is for the purpose of preventing a joing Hindu family from being distintegrated. 15. The rigor of this rule against alienation by gift has been to some extent relaxed by the Hindu Succession Act, 1956. Section 30 of the Act permits the disposition by way of will of a male Hindu in a Mitakshara coparcenary property. The most significant fact which may be noticed in this -10- connection is that while the Legislature was aware of the strict rule against alienation by way of gift, it only relaxed the rule in favour of disposition by a will the interest of a male Hindu in a Mitakshara coparcenary property. The Legislature did not, therefore, deliberately provide for any gift by a coparcener of his undivided interest in the coparcenary property either to a stranger or to another coparcener. Therefore, the personal law of the Hindus, governed by Mitakshara School of Hindu Law, is that a coparcener can dispose of his undivided interest in the coparcenary property by a will, but he cannot make a gift of such interest.” 15. In view of the settled principles of law, I find that the gift Ext.-C is void document executed by a coparcener who had no authority to transfer by gift his undivided share in the coparcenary property. The finding of the learned court below on this point is hereby confirmed. 16. In view of my above discussion, I find no merit in this first appeal and accordingly, this first appeal is dismissed. In the facts and circumstances of the case, there shall no orders as to costs. (Mungeshwar Sahoo, J.) Patna High Court, Patna The 24th August, 2010 S.S./A.F.R.