Bindeshwari Pandey v. Smt.Ramawati Devi

2. The plaintiff has filed the suit praying for declaration that the deed of gift dated 01.07.81 executed by Jagdish Pandey in favour of defendant no. 1 and another deed of gift dated Patna High Court FA No.432 of 1992 dt.28-08-2012 2

20.08.1981 executed by Jagdish Pandey in favour of defendant no. 1 are invalid void and not binding on the plaintiff and further for partition of his half share in the property described in schedule 2 of the plaint.

3. Filtering the unnecessary details, the plaintiff’s case is that Nandu Pandey had two sons, namely, Tuna Pandey and Dhuna Pandey. The two brothers had separated and the plaintiff and the defendants belonged to the branch of Tuna Pandey and the suit properties admittedly had fallen to the share of Tuna Pandey in partition with his brothers. Tuna Pandey had three sons, namely, Dharichhan Pandey, Baleshwar Pandey and Jagdish Pandey. It is not in dispute that Baleshwar Pandey died and thereafter his widow also died issueless in the year 1971. Jagdish Pandey died but before his death he executed the two deeds of gift dated 01.07.81 and 20.08.81 in favour of the defendant no. 1 who is wife of Fakira Pandey son of Kameshwar Pandey. Dharichhan Pandey died in the year 1947 leaving behind his widow namely Dayawanti Devi and two sons Bindeshwar Pandey and Kameshwar Pandey out of whom Bindeshwar Pandey is the plaintiff in the suit and Kameshwar Pandey and his son Fakira Pandey are the defendant no. 2 and defendant no. 3 in the suit. The case of the plaintiff is that the deeds of gift from Jagdish pandey with regard to his share in the suit Patna High Court FA No.432 of 1992 dt.28-08-2012 3 property had been obtained by practicing fraud, undue influence and under coercion. It is also the case of the plaintiff that there had been no partition in the family and therefore Jagdish Pandey being a member of the Joint Hindu Family could not have transferred by way of gift his share without partition of the Joint Hindu Properties.

4. The defendants filed contesting written statement stating inter alia that there had been partition among the three brothers, namely, Dharichhan Pandey, Baleshwar Pandey and Jagdish Pandey 20-22 years ago and thereafter the joint family came to an end. It is also the case of the defendants that thereafter there had been further partition among the plaintiff and defendant no. 2 also and they started living separately and their mother Dayawanti Devi lived with the defendant no. 2 till her death. After the death of Baleshwar Pandey his 1/3 share was inherited by his brother Jagdish Pandey but in order to maintain peace and good relation, Jagdish Pandey allowed half of the share of Baleshwar Pandey to go to the plaintiff and the defendants, and retained another half and in this manner Jagdish Pandey became entitled to half share in the properties of Tuna Pandey and another half came to the plaintiff and the defendants. Thereafter Jagdish Pandey, out of love and affection and being pleased with her services, gifted his share to the defendant no. 1 and put her in possession over the same. The defendants thus, Patna High Court FA No.432 of 1992 dt.28-08-2012 4 asserted previous partition and claimed that there was no unity of title and jointness of possession over the suit properties between the plaintiff and the defendants.

5. In view of the rival pleadings of the parties, the learned court below framed altogether nine issues out of which issue nos. 5 and 7 were the material issues which are as follows:- Issue no. 5:- Is the deed of gift dated 01.07.81 executed by late Jagdish Pandey in favour of the defendant no. 1 valid, genuine and operative ? Issue no. 7:- Whether Jagdish Pandey was separate from his co-sharers ?

6. After scrutinizing the evidence of the parties, the learned court below has come to the finding that there had been separation and partition among Jagdish Pandey, the plaintiff and the defendants, and accordingly decided the issue no. 7 against the plaintiff. The issue no. 8 has also been decided against the plaintiff by holding that the two deeds of gift have been validly executed by Jagdish Pandey in favour of defendant no. 1 who acquired valid title and possession over the share of Jagdish Pandey on that basis.

7. Heard Mr. D.P. Sharma, the learned counsel appearing on behalf of the appellant. No one has appeared on behalf of the respondents at the time of hearing of this appeal. Patna High Court FA No.432 of 1992 dt.28-08-2012 5

8. The learned counsel for the appellant has firstly submitted that there is presumption of jointness in a Hindu family and the person who asserts otherwise carries heavy burden to prove that the partition has already taken place. It has been urged that the defendants have failed to discharge their burden of proof and the evidence of the defendants are not sufficient for establishing previous partition in the family of Tuna Pandey. It has further been submitted that the learned court below has misinterpreted and misconstrued the documents of the defendants and has wrongly drawn the inference on that basis that there had been earlier partition. It has been canvassed by the leaned counsel that separation among the family members will not amount to partition by metes and bounds which is required to be established by independent evidence in order to prove disruption of joint status. With regard to the validity of the deeds of gift executed by Jagdish Pandey in favour of defendant no. 1, it has been argued that the plaintiff has brought sufficient evidence on record from which it is manifest that the two deeds of gift have been fraudulently obtained by exercising undue influence and coercion upon Jagdish Pandey.

9. In view of the submission on behalf of the appellant the following points emerge for consideration in this appeal:- Patna High Court FA No.432 of 1992 dt.28-08-2012 6 (i) Whether there had been separation partition among the three sons of Tuna Pandey? (ii) Whether the two deeds of gift dated 01.07.81 and 20.08.81 executed by Jagdish Pandey, in favour of the defendant no. 1 are legal, valid and binding upon the plaintiff?

10. Point No.1:- It is the case of the plaintiff that after partition between the Tuna Pandey and Dhuna Pandey, there had been no further partition among three sons of Tuna Pandey and the properties allotted to Tuna Pandey in partition continued to be joint among his descendents. It is further case of the plaintiff that after the death of Baleshwar Pandey and his widow issueless, and thereafter Jagdish Pandey also dying issueless, the entire family properties devolved upon the two sons of Dharichhan Pandey and as such the plaintiff and the defendant second set are entitled to half share each in the suit properties. To the contrary, the case of the defendants is that after the partition between the Tuna Pandey and Dhuna Pandey, the three sons of Tuna Pandey also separated and thus Patna High Court FA No.432 of 1992 dt.28-08-2012 7 their joint status stood disrupted, and even thereafter the plaintiff- defendants also became separated.

11. It is not in dispute between the parties that Dharichhan Pandey died in the year 1947 and thereafter Baleshwar Pandey died in the year 1971 leaving behind only his widow as his heir who also died soon thereafter. From Ext. F which is certified copy of sale deed dated 16.07.81 executed by the plaintiff together with the Bachu Pandey, it appears that in the boundary of the plot no. 564 which had been sold, the plaintiff had been shown in the eastern boundary in one block and the defendant no. 2 Kameshwar Pandey had been shown in the another block. This sale deed (Ext. F) and its recitals have been accepted by the plaintiff in his deposition to be correct. As such if the plaintiff’s case of jointness among the descendents of Tuna Pandey is accepted then the sale deed should have been executed by Jagdish Pandey being the eldest member in the family and not by the plaintiff and further, even in the boundaries of the land subject matter of the sale deed, the land held by the plaintiff and the land held by the defendant should also not have been shown separately. This Ext. F could not be explained on behalf of the appellant during the course of the argument. This is definitely a militating circumstance against the case of jointness as pleaded by the plaintiff. Another documentary evidence is a deed of gift dated Patna High Court FA No.432 of 1992 dt.28-08-2012 8

18.10.1973 (Ext. D/2). This deed had been executed by Chandeshwar Pandey in favour of Smt. Madhuri Devi and had been attested by the plaintiff as well as defendant no. 2. The plaintiff has accepted the valid execution of this document. But in this document also the plaintiff and the defendant no. 2 had been shown in different boundaries holding separate land. This deed of gift had been executed in the year 1973 and it is the case of the defendants that there had been separation in the family in the year 1971-72. Another document is Ext.-9 which is a Sanha dated 20.06.81 by the plaintiff and in this document, the plaintiff had stated that Jagdish Pandey was separate and leaving with the defendant nos. 2 and 3. The separate rent receipts (Ext. B/1), Chowkidari receipts (Ext. C/1) and Water receipts Ext. E series) in the name of Jagdish Pandey and the defendant no. 2, as well as plaintiff and the voter list (Ext. N) showing separate houses of the parties clearly suggest that the descendents of Tuna Pandey did not remain joint.

12. The oral evidence of the parties also suggest that the joint family had disrupted. Even the plaintiff’s witness P.W.-4 has also accepted that the plaintiff and the defendants are separate and he had purchased land from Tirweni Pandey and in its northern boundary is the land of Kameshwar Pandey and (defendant no. 2) in southern boundary is the land of Bindeshwar Pandey. During the Patna High Court FA No.432 of 1992 dt.28-08-2012 9 course of argument, the learned counsel for the appellant could not explain the facts mentioned in the oral as well as documentary evidence but only maintained that these documents only suggest that there had been separation in the family but no partition by metes and bounds has taken place. But there is no pleading by the plaintiff that there had been separation in the family earlier rather his consistent case is that the family members are in joint possession of the suit properties. The evidence on record are inconsistent with the case of the plaintiff, and are sufficient to rebut the presumption of jointness. The learned court below has meticulously considered the evidence of the parties and thereafter reached to the right conclusion that there had been partition among the three sons of Tuna Pandey. As such, this point is decided against the plaintiff-appellant.

13. Point No. 2:- The case of the plaintiff is that the deeds of gift in question have been obtained by the defendants by exercising fraud undue influence and coercion upon Jagdish Pandey. The details of the fraud, and coercion have been mentioned in the plaint. However, from the gift deeds dated 01.07.81 and 20.08.81 (Ext. D/1 and Ext. D) it appears that the same had been executed by Jagdish Pandey who had put his signature on each page of the deeds. Further, the D.W.-4 and D.W.-7 who are the attesting witnesses on the deeds of gift have supported the case of the defendants and Patna High Court FA No.432 of 1992 dt.28-08-2012 10 accepted that the deeds have been validly executed. The scribe of both deed of gifts is D.W.-16, and D.W.-9 is the identifier in both the deeds and both of them have accepted in their deposition that the deeds of gift had been prepared on the instruction of Jagdish Pandey and he had given his L.T.I. and put his signature after going though the contents of the deeds in presence of attesting witnesses. In view of there facts, the voluntary execution of the two gift of deeds by Jagdish Pandey is apparent. Further, in corroboration of this fact, Ext. A (affidavit sworn by Jagdish Pandey) has also been brought on record by the defendants wherein he has stated that he had voluntarily executed the deeds of gift in favour of the defendant no. 1. No evidence oral or documentary could be pointed out on behalf of the appellant to establish the contrary. From the impugned judgment also it appears that the material evidence has been scanned by the learned court below before coming to the conclusion that the two deeds of gift are valid and genuine documents. In this view of the matter, the conclusion is inescapable that the plaintiff has failed to establish the invalidity of the two deeds of gift. This point is accordingly decided against the plaintiff-appellant.

14. In view of the foregoing discussions, it is clear that the plaintiff has no unity of title and jointness of possession over the suit property and his claim of half share in the suit properties has Patna High Court FA No.432 of 1992 dt.28-08-2012 11 remain unsubstantiated.

15. In the result, it is held that this appeal has no merit and is, accordingly, dismissed. The impugned judgment and decree in this appeal is upheld. There would be however, no order as to costs. Devendra/- (V. Nath, J)