Gautamdeo Singh v. Kapildeo Singh

Siwan in T.S.No. 617/1972 the plaintiffs have filed this appeal. The T.S.No.617/72 has been filed for partition and allotment of half share in favour of the plaintiffs with respect to the lands described in the schedules of the plaint. Although, the detailed genealogy has been appended with the plaint but necessary and relevant genealogy is that the common ancestor Bhagwat Singh had two sons Nirmal Singh and Paltu Singh. Patna High Court FA No.276 of 1979 dt.10-12-2013 2 The plaintiffs are the descendants of Paltu Singh. In the branch of Nirmal Singh there was one Shiv Sahay who had two sons Ramadhari Singh and Sheodhari Singh. Ramdhari Singh died issueless his wife having predeceased him. Sheodhari Singh had two sons Baburam Singh and Rajaram Singh. Most Sahodra Kuer was the widow of Baburam Singh and Most Sampat Kuer was the widow of Rajaram Singh. The plaintiffs’ case is that Rajaram Singh was separate from his brother Baburam Singh and he died in state of separation. After his death his widow Most Sampat Kuer inherited his property but after the death of Sampat Kuer in the year 1947, the property of Rajaram Singh was inherited by his surviving brother Baburam Singh. After the death of Baburam Singh which occurred soon after the death of Most. Sampat Kuer, his widow Most. Sahodara Kuer inherited the entire property of her husband which included the property of Rajaram Singh also. It is further case of the plaintiffs that after the death of Sahodara Kuer, her estate was inherited by Suraj Singh who was her heir and nearest agnate. The plaintiff claims the suit property which is the property of Rajaram Singh on the basis of the gift deed dated 01.02.1965 executed by Suraj Singh in their favour. The defendants, however, denied the claim of the plaintiffs and came out with the case that Rajaram Singh died in jointness with Patna High Court FA No.276 of 1979 dt.10-12-2013 3 Baburam Singh and, therefore, after the death of Rajaram Singh his brother Baburam Singh succeeded to his estate by survivorship. It is the case of the defendant that Baburam Singh had executed a gift deed dated 25.01.1938 in favour of Raj Kumar Singh, the brother of the defendant, with regard to the suit property and since thereafter his father and after him he has been continuing in exclusive possession over the same. In view of the rival pleadings of the parties the learned court below has framed altogether 6 issues out of which issue nos.3,4 and 5 were tried as material issues and are as follows. Issue No.3-Is the suit barred by the law of limitation and the principles of res judicata. Issue No.4- Whether Rajaram Singh died in the state of separation from his brother Baburam Singh? Issue No.5- Whether Baburam Singh had any right to execute the deed of gift in favour of Raj Kumar Singh and the donee acquired right and title to the suit land? After scrutinizing the evidence in the light of the pleadings of the parties, the learned court below has come to the finding that Rajaram Singh died in state of jointness with his brother Baburam Singh and, accordingly, the issue no.4 was decided in favour of the defendants. It has further been found by the learned court below that Patna High Court FA No.276 of 1979 dt.10-12-2013 4 Raj Kumar Singh (father of the defendant) acquired valid title and possession over the suit land on the basis of the deed of gift executed in his favour by Baburam Singh. While considering the issue no.3 pertaining to limitation and res judicata, the learned court below has returned the finding that the decision in T.S.No.115/49 could not operate as res judicata between the parties. However, the learned court below although has taken into notice the decision in T.S.No.34/46 but has not recorded a finding as to whether in the said decision would also operate as res judicata between the parties in the suit. On the basis of the findings aforesaid the suit has been dismissed by the impugned judgment and decree. Mr Srinandan Prasad Singh, the learned senior counsel has appeared for the appellants and Mr Kundan Bahadur Singh, advocate has appeared for the defendant-respondent. After some argument, the learned counsel for both the parties have agreed that the bar of res judicata in view of the judgment (Ext. J) in T.S. No. 34/46 would be the singular crucial issue for the decision of this appeal. At this juncture, it would be relevant to mention that Mr Kundan Bahadur Singh, the learned counsel appearing for the respondent has submitted that the issue of acquisition of title by Raj Kumar Singh (father of the defendant) over the suit properties on the basis of the gift deed dated 25.01.1938 Patna High Court FA No.276 of 1979 dt.10-12-2013 5 (Ext.B) by Baburam Singh in his favour has already been decided in his favour by the judgment and decree passed in T.S.No.34/46 and, therefore, the same issue cannot be re-agitated and the jurisdiction of the court to decide the same would be barred by the principle of res judicata. The judgment dated 28th May, 1947 of the T.S.No.34/46 passed by Sub Judge I, Chapra has been brought on record on behalf of the defendant and marked as Ext.J in the suit. From the perusal of this judgment, it transpires that the T.S. No. 34/46 was filed by Raj Kumar Singh (father of the defendant) impleading Most Sampat Kuer as defendant no.1 and Suraj Singh (donor of the plaintiffs) as defendant no.2 in the said suit. It further also transpires that Most Sampat Kuer who is admittedly the predecessor in interest of the plaintiffs had appeared in the suit, filed her written statement and contested the claim of the plaintiff. It would be seemly to notice the facts of the said case in brief. The plaintiff Raj Kumar Singh filed the said suit asserting that the suit property belonged to Shiv Sahay Singh who had two sons Sheodhari Singh and Ramdhari Singh. Rajaram Singh husband of defendant no.1 Most Sampat Kuer and Baburam Singh were two sons of Sheodhari Singh. Shiv Sahay Singh died some time before the cadastral survey operation and Rajaram Singh had predeceased his father Sheodhari Singh who died in jointness with his Patna High Court FA No.276 of 1979 dt.10-12-2013 6 brother Ramdhari Singh and his son Baburam Singh. It had been the further case of the plaintiff that after the death of Sheodhari Singh there were left in the family only Ramdhari Singh, Baburam Singh and Most Sampat Kuer widow of Rajaram Singh. It has further been asserted that Most Sampat Kuer was only a maintenance holder having no interest in the family property although for her satisfaction to keep her in good humour Baburam Singh got her name recorded in the Register-D also. The plaintiff Raj Kumar Singh claimed that Baburam Singh executed a gift deed with respect to all his lands in his favour on 25.01.1938 and on that basis he got his name mutated and also redeemed the previous mortgages over the gifted lands and came in actual possession of the properties. It had, however, been alleged by the plaintiff that later on Baburam Singh with malafide intention due to escalation in the price of the suit lands started making false claim over the same taking advantage of the fact that the name of Most. Sampat Kuer was recorded in the Register D and Most. Sampat Kuer had also made certain farzi alienation in favour of Suraj Singh (defendant no. 2). It further appears that the said suit was contested by the defendant no. 1 Most Sampat Kuer with the case that Rajaram Singh died after death of his father Sheodhari Singh and it was also asserted that Rajaram Singh died in separation from Baburam Singh Ramdhari Singh. The defendant no.1 Most Patna High Court FA No.276 of 1979 dt.10-12-2013 7 Sampat Kuer therefore made her claim to the suit property on the basis of title by inheritance after the demise of her husband Rajaram Singh and further claimed to be continuing in possession of her husband’s properties. The right of Baburam Singh to alienate the suit property by gift in favour of the plaintiff was specifically denied and it was also asserted that, at any rate, the said gift never became effective. It becomes manifest from the judgment (Ext. J) that the following material issues were framed for adjudication:- Issue no. 6- Is the deed of gift propounded by the plaintiff genuine and valid? Had Baburam Singh any right to execute any deed of gift? Issue no. 9- Was Raja Ram Singh separate from his brother Baburam Singh at the time of his death? Both the aforesaid issues were decided in favour of the plaintiff Raj Kumar Singh and the finding had been returned that Rajaram Singh died in state of jointness with his brother Baburam Sinh and it was also further held that the defendant no. 1 Most. Sampat Kuer therefore could not claim any interest in the property of the family beyond her right of maintenance. With regard to issue no. 6 relating to the validity of the gift deed, the learned court had concluded that Baburam Singh had a right to execute a deed of gift of Patna High Court FA No.276 of 1979 dt.10-12-2013 8 the nature as evidenced by Ext. 2 and it was also held that the gift deed dated 25.01.1938 (Ext. 2) executed by Baburam Singh in favour of the plaintiff Raj Kumar Singh was a genuine and valid document and the plaintiff Raj Kumar Singh acquired right and title over the gifted property on that basis. It would be fruitful to notice the concluding part of the judgment as follows: “ In result, the suit is decreed with costs against defendant no. 1 who alone contested the suit and ex parte without cost against defendant no. 2. Pleader’s fee Rs. 95/-. It is declared that defendant no. 1 has no right, title or possession to the properties in suit. It is further held that the plaintiff is in possession of the properties in suit subject to his liability for maintenance of defendant no. 1 and others mentioned in the deed of gift. Possession of the plaintiff is accordingly confirmed.” It has not been disputed by the learned counsel for the parties in this appeal that this judgment (Ext. J) passed in T.S. No. 34 of 1946 and the decree (Ext. K) thereof had attained finality as no appeal was preferred by the defendants of that suit. In view of the aforesaid judgment (Ext. J) and decree (Ext. K), the inevitable conclusion is that Most. Sampat Kuer W/o Rajaram Singh did not acquire title over the suit property by inheritance after the death of her husband Rajaram Singh which is the case propounded by the plaintiffs. It is also not far to seek that the interest of Rajaram Patna High Court FA No.276 of 1979 dt.10-12-2013 9 Singh, after his death, devolved upon his brother Baburam Singh with whom he died in jointness and the said Baburam Singh had transferred the suit property in favour of Raj Kumar Singh, father of the defendant, by gift in the year 1938 through gift deed (Ext. B) and the donee came in actual physical possession of the gifted property. Thus the whole edifice of the plaintiffs’ case crumbles down as the suit property was not available to be inherited by Most. Sahodara W/O Baburam Singh and thereafter to pass on to Suraj Singh (the donor of the plaintiff) as the legal heir or reversioner after the death of Sahodara Kuer. On behalf of the appellants, no credible reasons has been advanced to persuade this court to take a different view. Although, in view of the aforesaid judgment and decree in T.S. No. 34 of 1946 (Ext. J and K), the claim of the plaintiff in the present suit on the basis of the gift by Suraj Singh who, in turn, claimed to have derived title tracing it upto Most. Sampat Kuer, was entirely untenable still the learned court below has adverted to the pleadings and evidence of the parties and thereupon has recorded the finding that Raja Ram died in jointness with his brother Baburam Singh and Raj Kumar Singh, the father of the defendant, acquired valid title and possession over the suit property on the basis of the gift deed dated 25.01.1938 executed by Baburam Singh in his favour. As mentioned above, the learned court below has taken into notice the Patna High Court FA No.276 of 1979 dt.10-12-2013 10 judgment (Ext. J) of T.S. No. 34 of 1946 and could have dismissed the suit holding the issues arising between the parties to be barred by res judicata but as the suit has ultimately been dismissed, I find no reason to interfere with the impugned judgment and decree. In result, it is held that this appeal has no merit and is dismissed, accordingly. The impugned judgment and decree passed by the learned court below stands affirmed. Nitesh/- (V. Nath, J)