Prabhawati Devi v. Jasmatia Devi

CORAM: HONOURABLE MR. JUSTICE V. NATH ORAL ORDER 12 16-04-2012 Heard Mr. Abbas Haidar, the learned counsel appearing on behalf of the appellants. Mr. Rajendra Narain, the learned counsel for the respondent is also present.

The defendants are the appellants in this second appeal against the judgment of reversal. The suit has been filed for partition after seeking the declaration that the gift deed executed by the father of the plaintiff in favour of the defendants was void, illegal and inoperative and not binding upon the plaintiff. It has not been disputed that initially the property belonged to Soharai 2 Patna High Court SA No.529 of 2009 (12) dt.26-04-2012 Yadav and it devolved upon his three descendants, namely, Jai Narain, Bodhi and Harbans. It is the case of the plaintiff that there had been partition between three co-sharers and the suit property was allotted to the share of Bodhi. The plaintiff has come out with the case that Bodhi had two sons, namely, Fagu and Budhan ,and the plaintiff is the daughter of Budhan whereas the defendants are the descendants of Fagu. After getting knowledge that the gift deed in question had been obtained by the defendants from Budhan with regard to his entire share, the plaintiff filed the present suit seeking the aforementioned reliefs.

The defendants did not appear and contest the suit inspite of service of summons as found by the trial court. However, the trial court after hearing the suit ex-parte came to the finding that the plaintiff has failed to establish her case that the gift deed was not a valid document. Consequently, the suit was dismissed.

The appeal was filed by the plaintiff and in appeal also the defendants, who had been impleaded as respondents, did not appear. The appeal was heard ex-parte and the appellate court below came to the finding that in view of the presumption of jointness of Hindu family, the gift deed in question executed by Budhan in favour of the defendants was a void document. In the 3 Patna High Court SA No.529 of 2009 (12) dt.26-04-2012 result, the appeal was allowed and the judgment and decree of the trial court was set aside.

Mr. Abbas Haidar, the learned counsel appearing for the defendants-appellants, has submitted that the appellate court below has ignored the evidence on record before coming to the finding that the family of the plaintiff and the defendants were joint. It has been urged by the learned counsel that the depositions of the plaintiff’s witnesses itself show that there had been partition in between Fagu and Budhan, and Budhan was entitled to alienate his share by gift. The depositions of the plaintiff’s witnesses have been placed by the learned counsel in support of his contention. It has been further contended by the learned counsel that the trial court has correctly appreciated the evidence as well as the facts and circumstances of the case and thereafter dismissed the suit.

After perusing impugned judgments and considering the submission of the learned counsel for the appellants, it is manifest that the plaintiff has filed the suit challenging the gift deed executed by her father Budhan in favour of the defendants and seeking partition thereafter. It is not in dispute that the defendants did not appear either in the suit or appeal. No petition under Order 41 Rule 11 C.P.C. had also been filed by the defendants. The scope of second appeal is very limited 4 Patna High Court SA No.529 of 2009 (12) dt.26-04-2012 and it can be entertained only when the substantial question of law arises for consideration. The depositions of the witnesses of the plaintiff including the plaintiff and her husband did not show that there had been specific statement regarding partition between the two sons of Bodhi i.e., Fagu and Budhan. The presumption of jointness of Hindu family can be rebutted, but for that, there must be appropriate pleading and proof. Even the depositions of the witnesses in its entirety do not establish that there is any specific statement with regard to the partition between the parties. The appellate court, therefore, has rightly concluded that the gift deed executed by Budhan with regard to the joint family property was void ab initio. The said finding is in consonance with the principles of Hindu law.

There is no substantial question of law arising in this appeal which is, accordingly, dismissed. B.Roy/- (V. Nath, J)