HONOURABLE MR. JUSTICE v. NATH ORAL JUDGMENT Date
Case Details
IN THE HIGH COURT OF JUDICATURE AT PATNA First Appeal No.161 of 1996 =========================================================== Shubhadeo Narayan @Sukhdeo Narayan, Son of Late Harihar Prasad, Resident of Mohalla-Naya Bazar, Pokhara, Post Office-Siwan, P.S.-Siwan, District-Siwan. Plaintiff-Appellant. Versus 1. Mostt Girja Devi, Wife of Late Bipul Narayan Prasad. 2. Rajeev Kumar @ Raju. 3. Maya Devi. 4. Soni Devi. 5. Seema Kumar. All sons and daughters of Late Bipul Narayan. All residents of Mohalla- Fatehpur Near Durga Mandir, Siwan. 6. Smt Kamla Devi, Daughter of Harihar Prasad, Wife of Rameshwar Prasad. 7. Rameshwar Prasad, Son of Sachchidanand Prasad. Both resident of Mohalla-Nai Bazar, Belhatta, Post Office-Siwan, P.S.-Siwan, District-Siwan. -Defendants-Respondents. =========================================================== Appearance : For the Appellant/s : Mr. Shashi Shekhar Dwivedi, Sr. Adv. Mr. Ranjan Kumar Dubey, Adv. Mrs Sangeeta Sharma, Adv. For the Respondent/s : Mr. Yogendra Prasad Sinha, Adv. Mr. Umesh Prasad Singh =========================================================== CORAM: HONOURABLE MR. JUSTICE V. NATH ORAL JUDGMENT Date: 26-07-2013 V. Nath, J The plaintiff is the appellant in this appeal against the judgment and decree dated 19.01.1996 passed in T.S. No. 65 of 1997 by Sub-Judge-IV, Siwan dismissing his suit for partition. 2. The plaintiff filed the suit for partition claiming ⅓ share in schedule 1 and 2 properties. The defendant no. 1 in the suit is the father of the plaintiff, and the defendant no. 2 and defendant no. 3 are the own brother and sister respectively of the plaintiff. The defendant no. 4 is the brother-in-law (husband of the defendant no. 3) of the plaintiff. It is the case of the plaintiff that their family was originally Patna High Court FA No.161 of 1996 dt.26-07-2013 2 resident of village-Aashchoura, District-Balia (U.P.) but due to litigation with the co-sharers, the defendant no. 1 (father) left the native place and came to Siwan where he lived with his family in a rented house and started business. Later on, with the joint family fund and also with the aid of money provided by the plaintiff and the defendant no.2 out of their own earnings, the defendant no. 1 purchased a piece of land on 11.02.1965 and constructed a double storied pucca house over the same. The purchase of the land was, however, made by getting the sale deed executed in the name of Janki Devi, the mother of the plaintiff, in order to avoid claim by the cosharers. The plaintiff has stated that his father has been the karta of the joint family but the plaintiff and his brother defendant no. 2 also used to do their independent business and earned money. It is further case of the plaintiff that his sister (defendant no. 3) along with her husband (defendant no. 4), after differences in their own family, were allowed by the defendant no.1 to reside in the suit house. The plaintiff has however alleged that in course of time the defendant no. 3 and 4, by exercising undue influence upon the mother of the plaintiff, surreptitiously managed to get a deed of gift dated 12.08.1971
Legal Reasoning
executed by her in favour of the defendant no. 3 for the suit house. The plaintiff has stated that he came to know regarding the gift deed fraudulently obtained by the defendant no. 3 only some time before Patna High Court FA No.161 of 1996 dt.26-07-2013 3 the filing of the suit, and has specifically asserted that the mother had no right, title and interest to execute the aforesaid gift deed and the same is not binding on the plaintiff. The plaintiff has reiterated that the suit house was constructed out of the joint family fund and also with the aid of the income of the plaintiff and defendant no. 2 and they after performing the Gharbhoj ceremony on 28.02.1969 entered the suit house. It has also been stated that the mother of the plaintiff died on 15.03.1973 in the suit house and the Shradh ceremony was performed in the same house. The plaintiff has alleged that his father (defendant no. 1) has refused to partition the suit property under the influence of the sister (defendant no. 3) and her husband (defendant no. 4) and therefore the necessity for the suit arose. 3. The defendant no. 1 and defendant no. 2 filed their separate written statements but they have substantially supported the case of the plaintiff. It has been accepted by the defendant no. 1 and 2 that the land was purchased by the defendant no.1 in the name of his wife out of the joint family fund and also with the aid of the money from the plaintiff and defendant no. 2 and the construction of the suit house was also made out of the joint family fund as well as with the aid of the money provided by the plaintiff and defendant no. 2. The defendant no. 1 has also stated that the gift deed was executed by his wife in the name of the defendant no. 3 but the same was intended to Patna High Court FA No.161 of 1996 dt.26-07-2013 4 be only a nominal transaction to save the property as the plaintiff had fallen in bad company and the said deed had never been acted upon. The defendant no. 2 has also asserted that the mother had no right, title and interest over the suit property and had no right to execute such deed of gift. 4. The suit has been contested by the defendant no. 3 who has asserted to have acquired valid title and possession over the suit house on the basis of the deed of gift. It is her case that the suit land was purchased by the mother Janki Devi out of her Stridhan and the construction of the house thereupon was also made by her out of the Stridhan, and the plaintiff, defendant no. 1 and defendant no. 2 did not pay any consideration money or any money towards the expenses of the construction of the house. It has been stated that the mother Janki Devi was the only daughter of her parents who, out of affection, used to give her money regularly and out of that money she purchased the suit land and constructed the suit house. It has been pleaded by the defendant no.3 that she was the only daughter and therefore, her mother Janki Devi, being pleased with her services, executed the gift deed in her favour and after accepting the gift she came in possession of the suit house. It is her further case that she had let out the ground floor of the suit house to her father (defendant no.1) when he approached her as Karta of his joint family, on a monthly rental but Patna High Court FA No.161 of 1996 dt.26-07-2013 5 when the rent fell in arrears she asked him to vacate the suit house and pay the arrears of rent. The defendant no.3 has thus claimed her exclusive title and possession over the suit house on the basis of the gift deed executed by Janki Devi in her favour. 5. In view of the rival pleadings, the learned court below framed altogether 7 issues out of which the issue no.4, which was the material issue, is as follows:- Whether the suit land was purchased in the name of Smt Janki Devi out of joint family fund for the benefit of joint family and the suit house had been constructed out of joint family fund and also with the aid of self- earned money of plaintiff and defendant no.2? 6. The parties led their oral and documentary evidence in support of their respective pleadings and the trial court, after the scrutiny of the evidence, has returned the finding that the purchase of the land and the construction of the suit house thereupon had been made out of joint family fund and also with the aid of the self-earned money of the plaintiff and defendant no.2. The issue no.4 therefore has been decided in favour of the plaintiff. However, the trial court has further held that the suit is not maintainable in the present form as the plaintiff has failed to seek relief against the gift deed executed by Janki Dvi in favour of the defendant no.3, and sequentially the suit has been dismissed. Patna High Court FA No.161 of 1996 dt.26-07-2013 6 7. Mr S.S.Dwivedi, the learned senior counsel appearing for the appellant has submitted that the dismissal of the suit on the ground that no relief with regard to the gift deed has been sought is not sustainable in law. It has been urged that once after the learned court below has come to the finding that the suit land and the house constructed thereupon had been acquired out of the joint family fund and with the contribution of the money by plaintiff and defendant no.2 , it should not have ignored the inevitable conclusion that Janki Devi had no right, title or interest in the suit property and the transfer made by her through gift deed in favour of the defendant no.3 of the suit property is clearly void. It has been further submitted that the learned court below has failed to take into notice that the plaintiff was not required to seek relief with regard to a void transaction and absence of such a relief was not fatal to the suit. It has been canvassed that the principle in this regard has been well settled by the Apex Court in the case of Dhurandhar Prasad Singh Vs Jai Prakash University, AIR 2001 SC 2552 and in the case of Ranganayakamma Vs. K.S. Prakash 2008(15)SCC 673. The learned senior counsel has further pointed out that I.A.No.3866/08 has been filed on behalf of the appellant under Order 6 Rule 17 CPC for amendment in the plaint by way of adding the relief against the gift deed and also the necessary averments with regard to the void nature of the gift deed and the court Patna High Court FA No.161 of 1996 dt.26-07-2013 7 fee. It has been further pointed out that the learned senior counsel that by order dated 05.03.2009 the said I.A.3866/08 has been ordered to be considered at the time of hearing of this appeal. It has been urged by the learned senior counsel that the prayer for amendment has been made only by way of abundant caution by the appellant even when it was not necessary to seek the said relief. The learned senior counsel has relied upon a decision by the Apex Court in the case of Pankaja Vs. Yellappa 2004(6) SCC 415 in support of the submission that even if the amendment is barred by limitation, it cannot be refused on that ground alone, and the avoidance of the multiplicity of proceedings is a necessary consideration in such cases.
Legal Reasoning
8. Mr Yogendra Prasad Sinha, the learned counsel appearing for the contesting respondents, in reply, has submitted that the finding of the learned court with regard to the acquisition of the suit property out of the joint family fund in the name of Janki Devi is contrary to the evidence on record and the learned court below has ignored the materials evidence of the defendant-respondents while considering this issue. It has been urged that there is sufficient evidence on record to show that the suit property had been acquired by Janki Devi out of her own funds and it was not the acquisition by the joint family consisting of the plaintiff, defendant no.1 and defendant no.2 out of joint family fund and with the aid of their self- Patna High Court FA No.161 of 1996 dt.26-07-2013 8 earned money. The learned counsel has placed the oral evidence led on behalf of the defendant no.3 in support of the contention that Janki Devi acquired the suit property out of her Stridhan. Supporting the dismissal of the suit, the learned counsel has argued that admittedly the plaintiff had the knowledge of the gift deed in question before the filing of the suit but he has omitted to seek necessary relief in that regard and as such the court below has rightly held that the suit was not maintainable. It has been canvassed that the plaintiff was required to displace the apparent title of the defendant no.3 on the basis of the gift deed before the relief sought by the plaintiff for partition could have been granted. It has also been submitted that the amendment made by the plaintiff at this stage for addition of the relief against the gift deed in question cannot be allowed as after the expiry of the limitation a valuable right has accrued on the basis of the gift deed in favour of the defendant no.3. It has also been submitted that possession of the defendant no.3 over the suit property is an admitted fact and there is also evidence on record to support that the plaintiff- defendant no.1 and defendant no.2 had been residing in the suit house as tenant of the defendant no.3. It has thus been submitted that the finding recorded against the defendant no.3 should be overturned by holding that the suit property was the self acquired property of Janki Devi which she had validly transferred by gift in favour of the Patna High Court FA No.161 of 1996 dt.26-07-2013 9 defendant no.3. 9. In view of the rival contentions of the parties, the following points emerge for determination in this appeal: (I) Whether the suit land and house was the exclusive property of Janki Devi or the defendant no.1, as Karta of the joint family acquired the suit land in the name of his wife Janki Devi and constructed the house thereupon out of the joint family fund and with the aid of the self- earned money of the plaintiff and the defendant no.2? (II) Whether the finding recorded by the learned court below that the suit property is the joint family property of plaintiff and defendant no.1 and defendant no.2 is sustainable in law and on facts? (III) Whether the learned court below has rightly dismissed the suit on the ground of absence of relief with regard to the deed executed by Janki Devi in favour of defendant no.3? (IV) Whether the amendment in the plaint as prayed in I.A.No. 3866/2008 by the plaintiff-appellant is fit to be allowed? 10. For convenience, all the points are taken up together for Patna High Court FA No.161 of 1996 dt.26-07-2013 10 determination. The admitted fact is that the defendant no.1 is the father and Janki Devi (deceased) was the mother of the plaintiff, defendant no.2 and defendant no.3, and the defendant no.1 is the Karta of the joint family consisting of himself, the plaintiff and the defendant no.2. It is also admitted that the defendant no.3 is daughter of the defendant no.1 and has been married, long back, with the defendant no.4. The fact has also not been denied that the defendant no.1 was original resident of village Aash Chaura, Balia (U.P.) and he had shifted to Siwan with his family. The fact has also not been denied that the defendant no.1 and his two sons who are the plaintiff and defendant no.2 had got no other residential house in Siwan in the year 1971 when the gift deed in question had been executed. In the backdrop of these admitted facts, the case of the plaintiff that the suit property had been acquired by the defendant no.1 in the name of his wife Janki Devi out of joint family fund and with the aid of the money contributed by the plaintiff no.1 and 2 and the contrary claim of the defendant no.3 that Janki Devi had acquired the land out of her Stridhan and got constructed the suit house out of her Stridhan are to be considered. 11. Both sides have led oral and documentary evidence in support of their respective cases. 12. The suit property is a house constructed over an area of 2 Patna High Court FA No.161 of 1996 dt.26-07-2013 11 katha 10 dhur of land in Mohalla-Nai Bazar, Pokhara, Siwan. It is the case of the plaintiff that the defendant no.1 after coming to Siwan was living in a rented accommodation with his family. After the marriage of the plaintiff and defendant no.2 the need for larger accommodation was felt, and then for the purpose of construction of a house, the land was purchased by the defendant no.1 on 11.02.1965 out of the joint family fund and with the aid of the money given by the plaintiff and the defendant no.2 out of the income from their private business. The sale deed was, however, got executed in the name of the mother of the plaintiff, the defendant no.2 and defendant no.3, in order to save the property from future claim by the co-sharers of the defendant no.1. Thereafter the defendant no.1 with the plaintiff and defendant no.2, out of joint family fund and also the fund provided by the plaintiff and defendant no.2 got a two storied house constructed on the purchased land and started residing therein. 13. The plaintiff besides oral evidence, has also adduced documentary evidence to support the fact of purchase of land and the construction of the house by the plaintiff, defendant no.1 and defendant no.2. Ext.10 series are the Hand Notes through which the defendant no.1 took loan from Raghunath Tiwary for the purpose of construction of the house. It appears that Ext.10 was executed on 05.11.1968 for Rs. 1200/- and in the said document it has been Patna High Court FA No.161 of 1996 dt.26-07-2013 12 mentioned that the loan had been taken for the purpose of construction of the house. Similar statement has been made in Ext.10/a which is dated 15.09.1968 by which a loan of Rs. 1,000/- has been taken by the defendant no.1. Ext.10/b is also a Hand-Note executed by the defendant no.1 Harihar Prasad Gupta for securing a loan of Rs.1500/- on 20.10.1968. Ext.10/c and Ext.10/d are similar Hand Notes for Rs.1,000/- and 1200/- respectively taken as loan by the defendant no.1 Harihar Prasad Gupta in the year 1968 from Raghunath Tiwary and the purpose for loan has been mentioned as construction of house. The endorsement on Ext.10/b dated 20.08.1971 on its back by the creditor Raghunath Tiwary shows that he received back the loan amount from the plaintiff Sukhdeo Narain. Similarly, the endorsement on Ext.10/c on 01.06.1971 by Raghunath Tiwary shows that he received back the loan amount from defendant no.2 Bipul Narayan Prasad and the endorsement on Ext.10/d by the creditor Raghunath Tiwary on 03.05.1971 shows that the loan amount was paid back by the plaintiff Sukhdeo Narain. Ext.12 series is the receipts of the year 1968 in the name of the plaintiff showing purchase of bricks. Ext.1/f is dated 12.02.1965 executed by the vendor Abdul Rajak Miyan stating that he had received entire consideration money of Rs. 3900/- for sale of 2 katha 10 dhur land in the name of Janki Devi. This receipt had been executed on 12.02.1965 and has been produced on Patna High Court FA No.161 of 1996 dt.26-07-2013 13 behalf of the plaintiff. The another important document is Ext.16/a which is the detail of the day to day expenditure from 09.11.1967 onwards towards the construction of the house and the entries therein show the payments to the masons, labourers as well as the expenses towards the purchase of the building materials. Ext.18 is the invitation card issued by the defendant no.1 alongwith the plaintiff and defendant no.2 on the occasion of ‘Gripravesh’ held on 28.02.1969. Ext.3 Series are the receipts issued by the Electricity Board in the name of the plaintiff for the security money for electric connection and also for the consumption of electricity charges. These receipts have been granted in the year 1970-71. Ext. 22 is the voter list of the year 1971 wherein the name of the defendant no.1, the plaintiff, the defendant no.2 as well as Janki Devi (mother of the plaintiff and defendant no.2) had been entered against House No.72. The cumulative effect of these documentary evidence leads to the inference that the defendant no.1, the plaintiff and the defendant no.2 had purchased the land in the name of Janki Devi (wife of defendant no.1) and later on, they constructed the house thereupon. No cogent explanation of these documentary evidence could be furnished by the contesting defendant no.3 except the bald denial of genuineness of all these documents. There was definitely no dispute between the plaintiff, defendant no.1 and defendant no.2 on the one hand with the Patna High Court FA No.161 of 1996 dt.26-07-2013 14 defendant no.3 in the year 1968-69 and there was thus no reason for the plaintiff to fabricate these documents. These documentary evidence, pertaining to purchase of land and construction of house by the plaintiff, defendant no.1 and defendants, assume significance in view of the fact that the plaintiff, defendant no.1 and defendant no.2 had no other house in the town of Siwan to reside till 1972 when, according to the defendant no.3, she had let out the suit house to the defendant no.1 as Karta of his family, on monthly rent. 14. The plaintiffs have adduced oral evidence in support of his case that the land had been purchased and the suit house had been constructed by the plaintiff, defendant no.1 and defendant no.2. P.W.4, 6, 7, 8, 9, 10, 11 and 12 are the masons and labourers who had all deposed that they worked in the construction of the house and were paid their wages by the plaintiff. P.W.13, 14, 15, 16, 17, 18, 19, 20, 21, 22, 24, 25, 26 have deposed that they had participated in the ‘Gharbhoj’ in the suit house organized by the plaintiff, defendant no.1 and defendant no.2. P.W.28 is Raghunath Tiwary, who had provided loan to the defendant no.1 through Hand-Notes (Ext.10 series) and he has accepted to have provided loan to the defendant no.1 and had also accepted to have acknowledged the receipt after getting the loan amount back. P.W.27 is cousin of the plaintiff who has also supported the case of the plaintiff. P.W.30 is a brick-supplier who has accepted Patna High Court FA No.161 of 1996 dt.26-07-2013 15 to have supplied the bricks to the plaintiff and accepted to have granted receipt (Ext.12 series) to the plaintiff. 15. Although it is the specific case of the contesting defendant no.3 that the land had been purchased by Janki Devi and the house in question had also been constructed by Janki Devi out of her own fund but no evidence has been adduced to support the fact that Janki Devi had personal funds out of which she purchased the land and later on made construction of the suit house. Unlike the documentary evidence brought on the record by the plaintiff, the defendant no.3 has also not adduced documentary evidence to support the details of the construction by Janki Devi over the suit house and the only evidence in this regard, produced on behalf of the defendant no.3 is Ext. B-4/2 which is the sanctioned plan of the house in the name of Janki Devi and Ext.B/4 which is the application for sanction of the plan by Janki Devi. 16. At this juncture it would be apposite to mention that in her written statement the defendant no.3 has specifically pleaded that Janki Devi was the only daughter of her parents who were very rich persons and they used to give money and ornaments to her. It has also been pleaded that Janki Devi used to do money lending business out of the said money and thus had enough personal funds. But in her Patna High Court FA No.161 of 1996 dt.26-07-2013 16 deposition as D.W.23 she has stated in paragraph 18 that her mother had another sister whose name was Dulari and she died after her marriage. She has further stated in paragraph 15 of her deposition that she would not produce any person of the family of her maternal uncle as witness in this suit. She has also deposed in paragraph 46 that she had no account of the income of her mother and according to her knowledge, her mother had no account in any bank. She has also deposed in paragraph 22 that she had not seen any account with regard to the expenditure incurred in the construction of the suit house. She has also deposed in the same paragraph that she or her mother was not acquainted with Raghunath Tiwary. It may be mentioned here this Raghunath Tiwary was the creditor who advanced loans to the defendant no. 1 Harihar Prasad through Hand Notes (Ext. 10 series) for the purpose of house construction. 17. It would also be condign to notice the other statements made by the defendant no. 3 in her deposition in juxtaposition with her claim that her mother Janki Devi was the exclusive owner of the suit house who had transferred the same to her (defendant no. 3) by executing the gift deed in her favour on 12.08.1971. In her examination-in-chief she has stated that after the gift deed, she started living in the suit house by constructing the first floor and had given the ground floor to her father and brother on rent of Rs. 100/- per Patna High Court FA No.161 of 1996 dt.26-07-2013 17 month from 01.03.1972. However, her statement in the cross examination in paragraphs 17, 21 and 27 lead to the inference that she came in the suit house in the year 1977. This fact is also highlighted by her statement in paragraph 21 where she has stated:-“…1977 ds igys tc eSa vkrh Fkh rks ek¡ dh lsok djrh Fkh esjs pys tkus ij mudh cgq,¡ mudh lsok ugha djrh Fkh …” In paragraph 11, she has deposed that her mother, brothers and father always used to reside together and in paragraph 16 she has stated that there was no dispute between her father and mother and in the same paragraph she has further stated that due to increase in the number of the members of the family, her father, mother and brothers started feeling difficulty in residing in the rented house and the mother purchased the land. In paragraph 28, she has stated that her mother had only the suit house to reside in the town of Siwan and at the time of execution of the gift deed for the suit house, her father and mother were not residing in the suit house but in paragraph 31 she has stated that before 12.08.1971 she did not reside with her mother, and her father, brothers and their families used to reside with her mother. Considering these statements, the case of the defendant no. 3 that she has rented out the ground floor of the suit house to her father and brothers from 01.03.1972 on the monthly rental of Rs. 100/- becomes highly improbable. No special circumstance has been pleaded by the defendant no. 3 to support her case as to how her mother, who was Patna High Court FA No.161 of 1996 dt.26-07-2013 18 living with her sons and husband in a rented house with difficulty and had purchased the land and constructed the suit house thereon, had, instead of shifting to the said house with her sons and her husband, gifted the same to her daughter and took the same house on rent from her daughter immediately thereafter to reside with her family. 18. The defendant no. 3 has further stated in her deposition in paragraphs 10 and 16 that her mother was the karta of the joint family of her husband and sons and she has established the homeopathic shop and directed her husband to carry on business in the said shop but this is contrary to her case in paragraph 42 of her written statement accepting defendant no.1 to be karta of his joint family. In paragraph 46 she has stated that the homeopathic shop was established after selling ornaments and there was income of Rs. 50-60, 200-300 daily and from that income the expense of the family was carried on. In paragraph 36 of her deposition she has stated that her brothers and father also put their signature on the gift deed and she has further stated in paragraph 38 that the gift deed was executed with the consent of both the brothers and father. However, from the perusal of the gift deed (Ext. D-1) it is manifest that it does not bear the signature of the plaintiff and defendant no. 2 and it only bears the signature of the defendant no. 1 Harihar Prasad. 19. The defendant no. 1 Harihar Prasad has been examined as Patna High Court FA No.161 of 1996 dt.26-07-2013 19 D.W. 4. He has stated in his deposition that his wife had no property of her own and she had got nothing from her Naihar. He has further stated that he had purchased the land in the name of his wife and the consideration money was paid by him and his two sons. He has also explained that he got the sale deed executed in the name of his wife because of on-going dispute with his co-sharers. He has also stated that the suit house was constructed by him and his sons. He has stated in paragraph 16 that his wife was suffering from cancer and was not having a good mental condition. He has further stated that there had been dispute in the paternal family of his son-in-law, and as they had no other house to reside and therefore he allowed his son-in-law and the daughter to reside with him in the suit house. He has denied to have consciously put his signature on the gift deed and has alleged that his signature on the gift deed might have been obtained in the state of intoxication as he was addicted to wine. 20. The defendant no. 4 has been examined as D.W. 22 and he has supported the case of the defendant no. 3. The other witnesses examined on behalf of the contesting defendant no. 3 and 4 have also supported the case of the defendant no. 3. All these witnesses have also stated that the defendant no. 1 is residing in the suit house as tenant of his daughter (defendant no. 3) from 1972 and is in possession of the suit house as such. Patna High Court FA No.161 of 1996 dt.26-07-2013 20 21. From the scrutiny of the pleadings and evidence of the parties, it transpires that the evidence led on behalf of the defendant no. 3 including her own deposition are not sufficient enough to sustain her claim that the suit land and house were the exclusive properties of Janki Devi. The absence of cogent evidence to support existence of personal fund with Janki Devi; the admitted fact that Janki Devi, her husband and her sons had no other residential house in the town of Siwan and assertion of the defendant no. 3 that Janki Devi purchased the land, got constructed the house thereupon, and still gifted the same to her daughter and started residing therein as tenant of her daughter and the absence of any special circumstance to explain the conduct of Janki Devi, are the factors and circumstances incompatible with the case of the defendant no. 3 and that too when the defendant no. 3 has accepted that her husband’s family has got sufficient property and income and she has also purchased properties in her own name in the same town. The preponderance of probability therefore lies in favour of the case of the plaintiff that the land was purchased by the defendant no. 1 as the karta of his family in the name of his wife Janki Devi with the joint family fund and also with the aid of the money from his two sons and thereafter the suit house had been constructed by him with the joint family fund and also with the fund provided by his two sons out of their own income. Patna High Court FA No.161 of 1996 dt.26-07-2013 21 22. The factual backdrop of the case also demonstrates that Janki Devi being the wife of the defendant no. 1 and mother of the plaintiff and defendant no. 2 was occupying the position where they would have reposed their confidence in her and their existed fiduciary relationship between them. In absence of any cogent evidence to support the fact that Janki Devi had any personal fund to purchase the suit land and construct the suit house, the case of the plaintiff is more probable that the suit land was purchased in her name and she held only ostensible title to the suit land in a fiduciary capacity vis a vis her husband and her sons. Therefore the conclusion is inevitable that Janki Devi had no independent and exclusive title over the suit land and house on the same is the joint family property of the defendant no. 1 and his two sons who are the plaintiff and the defendant no. 2. 23. The trial court has also meticulously scanned the pleadings and evidence of the parties and has rightly reached to the conclusion that the suit land had been purchased in the name of Janki Devi out of the joint family fund and suit house had been constructed thereupon out of joint family fund and also with the aid of the self earned money of the plaintiff and the defendant no. 2. I do not find any illegality in this finding of the trial court. No issue was framed for the property in Schedule II and in this appeal also no submission has been made for Schedule II property. 24. The trial court however has erred in law in dismissing the suit as not maintainable, on the ground that the plaintiff has failed to Patna High Court FA No.161 of 1996 dt.26-07-2013 22 seek the relief against the gift deed executed by Janki Devi in favour of the defendant no. 3. Once after the finding that Janki Devi had no title over the suit land and house, the transfer of the same by her by the gift deed, in favour of the defendant no. 3, would be a transaction which is void and nullity. The plaintiff in such a case is not required to seek relief against the said gift deed and is entitled to raise the invalidity of the said transaction in the suit. In the case of State of Maharastra Vs. Pravin Jethalal Kamdar, A.I.R. 2000 S.C. 1099, the Apex Court has also held that there is no need to seek declaration regarding the invalidity of the sale deed when it has been found to be nullity and the plea of its invalidity can be raised in the course of the suit. 25. From the perusal of the plaint, it is apparent that the plaintiff has specifically raised the plea of the invalidity of the gift deed in question for the suit land and house executed by Janki Devi in favour of the defendant no. 3 and asserted the same to be joint family property. The defendant no. 3 in her written statement has contested the claim of the plaintiff and has set up the case of self acquisition of the suit land and house by Janki Devi. The parties have gone to trial on this issue as the only material issue in the suit knowing full ambit of the case of each other, and have led their respective evidence inviting determination of the said issue. In these circumstances, the Patna High Court FA No.161 of 1996 dt.26-07-2013 23 absence of a formal relief against the gift deed cannot be held fatal to the suit. It would be apt here to reminisce the observation by their lordships in the case of Kedar Lal Vs. Harilal, A.I.R. 1952 S.C. 47 as follows:- “…I would be slow to throw out a claim on a mere technicality of pleading when the substance of the thing is there and no prejudice is caused to the other side, however clumsily or inartistically the plaint may be worded. In any event, it is always open to a Court to give a plaintiff such general or other relief as it deems just to the same extent as if it had been asked for, provided that occasions no prejudice to the other side beyond what can be compensated for in costs…” 26. The dismissal of the suit on the ground of maintainability because of absence of a formal relief against the gift deed, therefore, cannot be sustained as this course will only lead to multiplicity of litigation. 27. Although I.A. No. 3866 of 2008 has been filed by the plaintiff-appellant for amendment in the plaint seeking to add the relief against the gift deed, it has been rightly submitted by the learned senior counsel for the appellant that this prayer for amendment has been sought only by way of abundant caution. In view of the aforementioned discussion, no order is required to be passed on Patna High Court FA No.161 of 1996 dt.26-07-2013 24 the interlocutory application (I.A.No.3866/2008). 28. In view of the aforesaid reasons and discussions, this appeal is allowed and judgment and decree of the appellate court below is set aside. The suit is decreed and the plaintiff is held entitled to the relief for partition of his 1/3rd share in the suit property mentioned in Schedule I of the plaint as claimed. There shall be no order as to costs. Nitesh/- (V. Nath, J)