IN THE HIGH COURT OF JUDICATURE AT PATNA S.A. No.178 of 2003 1. Chandrama Mahto @ Chandra Mahto Koeri son of Late Ramdutt Mahto, 2. Rajeshwar Mahto son of Chandrama Mahto, both residents of village Laguni, Pargana, Bal, P.S. Daudpur, P.O. Bareja, District-Saran. ….Defendants-Appellants-Appellants. Versus 1. Bikarma Koeri son of Late Ramdutt Mahto, resident of village Laguni, Pargana,-Bal, P.S. Daudpur, P.O. Bareja, District-Saran. ….Plaintiff-Respondent-Respondent. 2. Radhika Devi W/o Jag Mohan Prasad 3. Nayan Kumari W/o Purushottam Mahto, both residents of village Bhorey, P.S. Baniapur, District Saran. At present resident of village Laguni P.S. Daudpur, District-Saran. ….Defendants-Respondents-Respondents. For the appellants : Mr. Janardan Prasad Singh, Advocate. For the respondents : None. ----------- 07/ 17.03.2009 Heard learned counsel for the appellants. This second appeal has been filed by the defendants- appellants-appellants challenging the judgments and decree of both the learned courts below. The matter arises out of Partition Suit No.66 of 1989, which was filed by plaintiff-respondent-respondent no.1 for partition of the suit properties and for other ancillary reliefs. The said suit was decreed on contest with cost by the learned Subordinate Judge-8, Chapra, vide his judgment and decree dated 28.02.1994. The aforesaid judgment and decree of the trial court was challenged by defendant nos.1 and 2-appellants in Title Appeal No.45 of 1994 (36/96), which was dismissed by the learned Additional District Judge-IX, Saran at Chapra, vide his judgment 2 and decree dated 17.05.2003. The said judgments and decree of the learned courts below are under challenge in the instant second appeal. From the arguments as well as from the materials on record, including the judgments and decree of the learned courts below, it appears that admittedly Ramdutt Mahto had purchased some of the suit properties in the name of his second wife Sahodra Devi, who was recorded with respect thereto. It is also an admitted fact that the said Sahodra Devi was issueless, whereas Ramdutt Mahto had two sons and two daughters from his deceased first wife and they were Chandrama Mahto (defendant no.1-appellant no.1), Bikarma Koeri (plaintiff-respondent no.1), Radhika Devi (defendant no.3- respondent no.2) and Nayan Kumari (defendant no.4-respondent no.3), whereas Chandrama Mahto had a son Rajeshwar Mahto (defendant no.2-appellant no.2). The claim of the defendants-appellants is that Ramdutt Mahto was in service and from the income of his service he purchased some of the suit properties in the name of his second wife Sahodra Devi, who was duly mutated and acquired full right, title and interest therein and subsequently she gifted the said property by a registered deed of gift to Rajeshwar Mahto (defendant no.2- appellant no.2) and hence there was no question of any partition of the said property as it did not belong to any joint family. It was also argued on behalf of the defendants-appellants that Sahodra Devi having not been impleaded by the plaintiff in the suit, although she 3 was a necessary party and had a share even according to the claim of the plaintiff and hence the suit was bad for non-joinder of necessary party. Both the learned courts below considered the pleadings and evidence of the parties and came to the conclusion that there was no documentary evidence with regard to any earlier partition and even oral evidence adduced by the defendants with regard to earlier partition was no convincing whereas the plaintiff was able to prove that there was no previous partition. Furthermore, admittedly some of the properties were purchased by Ramdutt Mahto in the name of Sahodra Devi and according to the claim of the defendants Ramdutt Mahto had sufficient income to purchase the said property whereas there was nothing to show that Sahodra Devi had any income from her own, hence the joint family of Ramdutt Mahto including his widow will inherit the said property after the death of Ramdutt Mahto and the plaintiff would have a definite share therein irrespective of the fact as to in whose name the said property was purchased by Ramdutt Mahto. In the said circumstance, if the said property was the joint family property of the heirs of Ramdutt Mahto, the widow Sahodra Devi had no right to execute the said property to any one single handedly without the consent of the other members of the family. Thus the deed of gift executed by Sahodra Devi in favour of Rajeshwar Mahto was rightly held to be ab-initio void and was thus ignored as there was no occasion for setting aside a document, which is ab-initio void and had no value in the eye of 4 law and there was no essentiality for the plaintiff to seek separate relief for getting the aforesaid deed of gift annulled upon adjudication by the court. So far the non-impleadment of Sahodra Devi is concerned, according to the claim of the contesting defendants she had transferred all her right, title or interest in the suit property to Rajeshwar Mahto by a registered document and hence when Rajeshwar Mahto was already impleaded as defendant no.2- appellant no.2 there was no requirement for impleading Sahodra Devi. However, in any view of the matter the said Sahodra Devi having died issueless during the pendency of the title suit/title appeal there was no question for dismissing the title suit/title appeal on that ground. In the aforesaid facts and circumstances of the case, this court does not find any illegality in the impugned judgments and decree of the learned 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.)