HONOURABLE MR. JUSTICE v. NATH ORAL JUDGMENT Date
Case Details
IN THE HIGH COURT OF JUDICATURE AT PATNA Second Appeal No.230 of 1992 =========================================================== 1. Ramadhar Singh, Son of Ram Gobind Singh. 2. Harendra Singh. 3. Jitendra Singh. Both sons of Ramadhar Singh, All Resident of village-Dharupur, P.S.- Bikramganj, District- Rohtas.-(Plaintiffs-Appellants). -------Appellants. Versus 1. Deo Sharan Singh, Son of Late Pati Singh. 2. Suresh Singh, Son of Late Ram Sigasan Singh. 3. Kukuri Singh, @ Ram Pujan Singh, Son of Late Ram Sigasan Singh. 4. Tetri Devi Wife of Late Ramayan Singh. 5. Pintoo @ Santosh Kumar, Son of Late Ramayan Singh. All residents of village- Dharupur, P.S.-Bikramganj, District-Rohtas. (Defendant 1st set-Respondents) 6. Naresh Prasad Singh, Son of Late Lachu Singh, Resident of village-Gidha, P.S.- Dawath, District-Rohtas—(Defendant-2nd Set-Respondents). =========================================================== Appearance : For the Appellant/s : Mr. Ram Suresh Ray, Sr.Adv with Mr. Binod Bihari Singh, Adv. For the Respondent No.1 : Mr. Ramesh Jha, Adv. For the Respondent No.2 & 3: Mr. Dhrub Narain, Sr. Adv with Mr. Narendra Kumar, Adv. =========================================================== CORAM: HONOURABLE MR. JUSTICE V. NATH ORAL JUDGMENT Date: 04-03-2013 V. Nath, J This appeal has been filed by the plaintiffs against the judgment and decree of affirmance by the appellate court below upholding the dismissal of the suit. 2. The plaintiffs have filed the suit for declaration that the sale deed no. 3562 dated 01.06.1987, sale deed no. 3563 dated 01.06.1987 and sale deed no. 3564 dated 01.06.1987 are illegal, void and
Legal Reasoning
inoperative document and not binding on the plaintiffs. The prayer has been made to cancel those sale deeds and further prayer has been 2 Patna High Court SA No.230 of 1992 dt.04-03-2013 2 / 9 made to restrain the defendants for interfering in possession of the plaintiffs over the lands described in Schedule B and Schedule C of the plaint. 3. The genealogical table is not in dispute between the parties according to which Diya Singh had three sons namely Akalu Singh, Mosafir Singh and Jamindar Singh who succeeded to the properties of Diya Singh after his death. It is the case of the plaintiffs that Akalu Singh separated from his two brothers Mosafir Singh and Jamindar Singh, and in state of separation he died in the year 1932 leaving behind his two sons, Deorajit Singh and Gaju Singh. It is further case of the plaintiffs that Gaju Singh died issueless in the year 1942 leaving behind his wife Bachkalo Kuer, in jointness with his brother Deorajit Singh, his nephews Sheodayal Singh, Ramgovind Singh and Ramdeo Singh. His wife Bachakalo Kuer thereafter continued in jointness till her lifetime. Sheodayal and Ramdeo Singh died unmarried and issueless. Ramgovind Singh alongwith his son and grandsons as plaintiffs in the suit have challenged the three sale deeds by Bachakalo Kuer, executed separately in favour of defendant nos. 1,2 and 3 on 01.06.1987, mainly on the ground that Bachakalo Kuer had continued and died in jointness with the plaintiffs with regard to the suit property, and therefore, had no right to alienate the same and further also on the ground that no consideration had been paid to 3 Patna High Court SA No.230 of 1992 dt.04-03-2013 3 / 9 Bachakalo Kuer and the sale deeds had been obtained fraudulently taking benefit of diminished power of understanding of Bachkalo Kuer. The three sale deeds in favour of defendant nos. 1,2 and 3 have been described in detail in Schedule A and Schedule B of the plaint. 4. The defendant no.1 Deo Sharan Singh did not contest the suit. The defendant no.2 Ram Singhasan Singh and defendant no.3, Ramayan Singh have filed a joint written statement contesting the claim of the plaintiffs. It is the case of the contesting defendants that Gaju Singh had separated from his brother Deorajit Singh and after his death his widow Bachakalo Kuer had inherited the properties left behind by him. The contesting defendants have also asserted that Most Bachakalo Kuer had not lost her power of understanding and had executed the sale deeds out of her freewill and consent after receiving valuable consideration from the defendants. These defendants have therefore claimed their sale deeds, executed by Bachakalo Kuer in their favour, to be legally valid transactions conferring valid title and possession over the purchased properties and have alleged that the plaintiffs have filed the suit malafidely in order to grab the properties of these defendants. 5. The trial court, after considering the pleadings and evidence of the parties, has returned the finding that Most Bachakalo Kuer was not joint with the plaintiffs and she had all the valid legal right to 4 Patna High Court SA No.230 of 1992 dt.04-03-2013 4 / 9 alienate her property after passing of the Hindu Succession Act, 1956. It has also been held that the contesting defendants had paid full consideration money to Most Bachakalo Kuer who handed over the registration receipts. The possession of the contesting defendants over the suit land has also been found. The suit was dismissed holding that the plaintiffs have failed to establish their case for cancelling the sale deeds in question. 6. In appeal by the plaintiffs, the appellate court reappraised the evidence of the parties and has come to the conclusion that Bachakalo Kuer had the legal right to alienate the properties in favour of the contesting defendants as she became full owner thereof after passing of the Hindu Succession Act, 1956. It has also been found that there had already been partition in the family and Gaju Singh was in separate exclusive possession over the land allotted to him by partition and after his death his widow Bachakalo Kuer was also in separate possession of the suit properties. The appellate court has further held that Bachakalo Kuer also received the consideration money of the sale deeds from the contesting defendants and handed over the registration receipts to them who thereafter withdrew the original sale deeds from registration office. The appellate court has also found the contesting defendants to be in possession of their purchased land. 5 Patna High Court SA No.230 of 1992 dt.04-03-2013 5 / 9 7. At the time of admission of this appeal, the following substantial question of law has been formulated: “Whether the sale deed executed by a cosharer will be treated as a conclusive proof of previous partition in the family?” 8. Heard the learned senior counsel for the parties. 9. The learned senior counsel for the appellants has mainly submitted that there had been no evidence to establish that there had been partition between Gaju Singh and his brother Deorajit Singh. It has been urged, therefore, that the sale deeds in question executed by Most Bachakalo Kuer in favour of the contesting defendants, in state of jointness, are illegal and invalid because the joint family property could not have been alienated for value. The learned senior counsel has contended that both the courts below have committed error in holding that there had been partition in the family and Most Bachakalo Kuer was separate from the plaintiff-appellants and the sale deeds(Ext.A and A/1) have been wrongly relied upon as evidence of partition. Elaborating the substantial questions of law as framed, it has been canvassed that the sale deed executed by a co- sharer cannot be the conclusive proof of partition. 10. The learned senior counsel for the contesting defendant - respondents, has however, submitted that there has been sufficient evidence on record to show that Gaju Singh and Deorajit Singh were 6 Patna High Court SA No.230 of 1992 dt.04-03-2013 6 / 9 separate. It has been further submitted that even otherwise also admittedly Gaju Singh died after 1937 and thus his widow Bachakalo Kuer became limited owner of the property of the share of her deceased husband and after passing of the Hindu Succession Act, 1956 she became the full owner of the said property having unlimited power of disposition of her property. It has been canvassed that the limitation on power of alienation up on a coparcener with regard to joint family property in the State of jointness is not attracted in a case of a widow whose limited ownership has blossomed into full ownership in view of Section 14 of the Hindu Succession Act, 1956. 11. From the rival pleadings of the parties, it is manifest that the status of Most Bachakalo Kuer as widow of Gaju Singh is not in dispute. It is also the case of the plaintiffs that Gaju Singh died in the year 1942 leaving behind her widow. Under the provisions of Hindu Women’s Right to Property Act, 1937, Bachakalo Kuer came to acquire the interest of Gaju Singh in the property of the joint family as a limited owner thereof. After the passing of the Hindu Succession Act in the year 1956 she became full owner of the said property in view of Section 14(1) of the said Act. 12. In Sukh Ram & Anr. Vs Gauri Shankar & Anr, AIR 1968 SC 365, their lordships of the Apex Court have held that the restrictions applicable to a Hindu coparcener under Mitakshra Law 7 Patna High Court SA No.230 of 1992 dt.04-03-2013 7 / 9 governed by Benares School upon his right of alienation is not applicable to a Hindu widow acquiring an interest in that property as full owner by virtue of Hindu Succession Act and her right of disposition of the said property is uninhibited. In a later decision, the right of a cosharer in a joint family property to alienate his share even in the state of jointness has also been recognized by the Apex Court in the case of Gajara Vishnu Gosavi Vs. Prakash Nanasahed Kamble 2009 (4)PLJR SC 225. Even the alienation of specific portion of the joint property in possession of a cosharer by him and putting the vendee in possession have also been upheld by the Apex Court in the case of Jai Singh & Ors. Vs. Gurmej Singh 2009 (4) PLJR SC 197, with only condition that the vendee has been held entitled to remain in exclusive possession till the joint holding is partitioned among all the cosharers. 13. Tested on the anvil of the aforesaid principles, the right of Most Bachakalo Kuer to alienate the property by executing the sale deeds in question in favour of the contesting defendants is to be upheld. The sale deeds (Ext.2, 2/A and 2/B) executed by Most Bachakalo Kuer in favour of the contesting defendants therefore cannot be held to be illegal and invalid for the said reason. 14. It is the case of the plaintiffs that they had filed T.S.No. 172/87 for partition. In the said suit the purchasers (contesting 8 Patna High Court SA No.230 of 1992 dt.04-03-2013 8 / 9 respondents in the present appeal) from Most Bachakalo Kuer were also parties. The said suit had been withdrawn. The learned senior counsel for the appellants has accepted that thereafter no suit for partition had been filed and in the present suit also no relief for partition has been sought. Both the courts below have reached to the concurrent finding of fact that the sale deeds in question have been validly executed by Most Bachakalo Kuer who after receiving the consideration money had also handed over the registration receipt to the purchasers. Further from the findings of both the courts below it appears that the finding to the effect that Most Bachakalo Kuer was separate in exclusive possession of her property which she had inherited after the death of her husband Gaju Singh is based not only upon the sale deeds executed by her but also on the basis of the other evidence in this regard on record. The appellate court below has also taken into notice the deposition of the plaintiffs’ witnesses including P.W.9 who has deposed regarding separate exclusive possession of Most Bachakalo Kuer and thereafter of the purchasers over the suit land. This finding of fact could not be established to be perverse, on behalf of the appellants during the course of argument. 15. In view of the aforesaid discussions, it is clear that the sale deeds executed by Most Bachakalo Kuer in favour of the contesting 9 Patna High Court SA No.230 of 1992 dt.04-03-2013 9 / 9 defendants cannot be held to be illegal, void or inoperative and not binding upon the plaintiffs. In view of the possession of the purchasers over the purchased property, the plaintiffs are also not entitled to the relief for the permanent injunction, as prayed.
Decision
16. In the result, the substantial question of law as formulated is decided against the appellants. Accordingly, this appeal fails and the impugned judgment and decree of courts below are upheld. In the facts and circumstances, there shall be no order as to costs. (V. Nath, J) Nitesh/-