Chapter VIII, Rule 32(2) (b) v. Chandra Ballabh Pant

Judgment

3. Chandra Ballabh Pant S/o Shri Ganga Dutt Pant R/o Village Lala Patti Bhairang District Pithoragarh…….. Plaintiff/respondent. Bipin Chandra (since deceased) Kanchan Tiwari S/o Late Bipin Chandra Ghanshyam Smt. Shankuntala W/o Late Ghanshyam Vinod Tiwari Krishna Kant Tiwari Both Sons of Late Ghanshyam Residents of Mohalla-Dharanaula Patti-Khasparja, Almora & Others (deceased) ……….. Defendants/respondents Shri P.S. Adhikari, Sr. Advocate with Shri B.S. Adhikari, Advocate defendant/appellant. Shri Rajendra Dobhal, Advocate assisted by Shri D.C.S. Rawat, Advocate plaintiff/respondent No.1 Shri D.S. Patni, Shri Kishore Kumar, Shri Anil Dabral and Shri Sharad Sharma, Advocates for defendants/respondents. A.F.R. (Approved for Reporting) Not approved for Reporting Date: 04.09.2006 (Initial of Judge) Note: Bench Reader will attach judgment when it is put up before the Judge for signature. this at top of first page of Judgment Reserved IN THE HIGH COURT OF UTTARANCHAL AT NAINITAL Second Appeal No. 263 of 2001 (Old No. 2248 of 1978) Chandra Shekhar Joshi S/o Shri Bhawani Dutt Joshi R/o Mohalla Chinakhan District Almora. Versus …. Defendant/Appellant …… Plaintiff/respondent.

5. 6. 7. Chandra Ballabh Pant S/o Shri Ganga Dutt Pant R/o Village Lala Patti Bhairang District Pithoragarh Bipin Chandra (Since deceased) Kanchan Tiwari S/o Late Bipin Chandra Ghanshyam (deceased) Smt. Shankuntala W/o Late Ghanshyam Vinod Tiwari Krishna Kant Tiwari Both Sons of Late Ghanshyam Residents of Mohalla-Dharanaula Patti-Khasparja, Almora Mahesh Chandra S/o Badri Dutt Tiwari R/o Mohalla-Dharanaula, Almora Chandra Shekhar (deceased) S/o Poornanand Vinod Chandra, S/o Late Chandra Shekhar Deep Chandra, S/o Poornanand Km. Asha D/o Chandra Shekhar ………. Defendants/respondents P.S. Adhikari, Advocate Shri Sr. Advocate for defendant/appellant. Shri Rajendra Dobhal, Advocate Advocate for plaintiff/respondent No. 1. Shri D.S. Patni, Shri Kishore Kumar, Shri Anil Dabral Sharad Sharma, Advocates for defendants/respondents. assisted Shri B.S. Adhikari, Shri D.C.S. Rawat, and Shri Hon’ble Prafulla C. Pant, J. This Second Appeal, preferred under Section 100 of Code of Civil Procedure, 1908, is directed against judgment and decree dated 10.07.1978, passed in civil appeal No. 15 of 1975 (A) by learned Civil Judge, Almora, whereby appeal dismissed, affirming judgment and decree passed on

19.06.1975 by the trial court in civil suit No. 142 of 1970, relief of possession against the appellant (defendant No. 1) with observation the plaintiff would be entitled to execute decree for possession against defendant No. 1 (present appellant) and that he (plaintiff) would be entitled joint possession along with defendant/respondents No. 2 to 4 over property in suit.

2. Heard learned counsel the parties perused the entire record.

3. Before narrating facts of the case, it is pertinent to mention here that how the parties are related to each other. The relationship between them is as follows: Gauri Dutt Joshi (Deceased) (Not owner) (son) Leela Nand Joshi (deceased) (Original purchaser of house in suit from one Durga) (Son) Bhawani Dutt Joshi (deceased) (Son) Chandra Shekhar Joshi (Defendant No.1 ) Claims share on the basis of being nearest of cognate of Girish Chandra and Mohan Chandra (widow) Khasti Devi (Died in 1969) (son) (son) Mohan Girish Chandra Chandra (Died in 1950) (Died in (Died in (1955) (Daughter) Munni Devi 1960) (Husband) Chandra Ballabh Pant (Plaintiff) claims share on the basis of gift deed executed by Khasti Devi Purchaser of share of Mohan Chandra (1948) Badri Dutt Tiwari (deceased) (Not related to above pedigree) Bipin Chandra (Defendant No. 2) Mahesh Tiwari Ghanshyam (Defendant No. 3) (Defendant No. 4)

4. Brief facts of the case, as per the plaint case, are that Leela Nand Joshi (S/o Gauri Datt Joshi), father plaintiff, purchased suit, situated in Mohalla Chinakhan, Almora, detailed foot of the plaint,

the year 1932. Shri Leela Nand Joshi died about 30 years before institution i.e. around 1940, leaving behind him his widow Khasti Devi, sons- Mohan Chandra Girish Chandra daughter Munni Devi. Munni Devi (daughter of Leela Nand) wife of plaintiff, has died. Girish Chandra (younger Leela Nand), suffering tuberculosis died in Nainital, the age of 16 years (as per evidence in 1950). Shri Mohand Chandra (elder son of Leela Nand) later died the year 1955. It is pleaded the property, as such, vested in Khasti Devi (widow of Leela Nand), who executed registered gift deed of the house in suit on 10.02.1959 favour of the plaintiff (son-in-law of Khasti Devi). Khasti Devi died on 09.04.1969 (i.e. execution deed). Plaintiff claimed his ownership over the house in suit on the basis of deed, allegedly executed his mother-n-law favour. It is also pleaded the plaint entries settlement record, favour Khasti Devi not only respect house No. 872, 873 and 874 but also land beneath and appurtenant thereto numbering 245, 336, 346 and 474, measuring area 1=3 Naali (Unit in Uttaranchal). The aforesaid house numbers were renumbered later on, as 171, 172 renumbered as 82 and 83. Only one half houses, pleaded transferred by gift deed favour of the plaintiff. It further pleaded plaint settlement record, the rest of the half share the property in suit shown mutated favour of Badri Dutt (father of defendant No. 2 to 4), on the basis of the sale deed executed 1948 by Mohan Chandra, of Leela Nand Joshi. It further pleaded the plaintiff used after his mother-in-law till her death. It pleaded plaintiff connection service, defendants mutated their names, as owners in possession and illegal possession of the property suit. Hence possession property was plaintiff.

5. Defendant No. 1 (present appellant), contested suit by filing his written statement in which he admitted that his Uncle Late Leela Nand Joshi (S/o Gauri Dutt), purchased the property suit, as pleaded the first para of the plaint. It is also admitted written statement defendant No. 1 that Girish Chandra and Mohan Chandra, Leela Nand Joshi, have also died. Rest of the contents of plaint, stated, are not admitted. It also denied that Khasti Devi, widow of Late Leela Nand Joshi was ever owner or in possession of the property. In additional pleas, it has been pleaded by the defendant No. 1 alleged gift deed executed by Khasti Devi favour plaintiff illegal ineffective document. It further pleaded death of Leela Nand Joshi, it was his brother Bhawani Dutt Joshi (father of answering defendant No. 1), who got possession of the property suit. Defendant No. 1 further alleges it was his father, who got Munni Devi (daughter of Leela Nand Joshi), married plaintiff and who performed of Leela Nand Joshi after his death. In para 22 of this written statement, it has been stated that after death of Girish Chandra and Mohan Chandra (both Leela Nand Joshi), Khasti Devi did not inherit any share, as then Hindu Succession Act, 1956, has not force. Khasti Devi, widow of Leela Nand Joshi, entries recorded favour wrongly. And entries record, favour answering defendant- Chandra Shekhar Joshi brothers Badri Dutt and Kanti Ballabh are correct. The bad for non-joinder of aforesaid parties.

6. In joint written statement, defendants No. 2, 3 and 4 have also admitted that Late Leela Nand Joshi, purchased property suit. It further admitted that Mohan Chandra and Girish Chandra were his sons and Munni Devi was his daughter. It admitted the written statements defendants that after the death of Leela Nand Joshi 1936, both Mohan Chandra and Girish Chandra issueless. Rest contents plaint, stated, admitted. In additional pleas, it has been pleaded by defendants No. 2 to 4 that Khasti Devi inherit property vested plaintiff through alleged deed. It further stated the suit is bad for mis-joinder of defendant No. 1 and defendant No. 5- Poornanand, as they have no concern with the property suit. It specifically pleaded in para 22 of their written statement that Badri Dutt, father of defendants No. 2 to 4, purchased property through

11.05.1948, executed by Mohan Chandra (son of Leelanand Joshi) and as such, after the death of their father, they are sole owners of the property in suit.

7. Defendant No. 5- Poornanand, separate affidavit, simply stating wrongly impleaded the suit and he is entitled to special costs under Section 35 the Code of Civil Procedure,

8. After perusing pleadings, court, framed following issues in the suit:-

1. Whether the gift deed, executed by Smt. Khasti Devi, is ineffective, as alleged in para 20 of the written statement of the defendant No. 1? If so, its effect?

2. Whether the executant (of the gift deed) Smt. Khasti Devi had no right to execute the gift deed, as alleged by the defendants?

3. Whether the defendant No. 1 had been possession property dispute, continuously adverse the rights of Smt. Khasti Devi and other defendants? If so, its effect?

4. Whether the suit is bad for mis-joinder of parties, as alleged by defendants No. 2,3 and 4?

5. Whether Girish Chandra died after execution of sale deed by Mohan Chandra? If not, its effect?

6. Whether the defendants No. 2,3 and 4 are bonafide purchasers protected by Section 43 of Transfer of Property Act, 1882?

7. To what relief, if any, the respondents are entitled?

8. Whether the defendants No. 2,3 and 4 have been in possession of the property in dispute, if so, its effect?

9. The trial court, after recording the evidence and hearing the parties, the gift deed, executed by Khasti Devi favour of the plaintiff, is a valid document and Smt. Khasti Devi had to execute the gift deed respect of property in suit. It further that Girish Chandra died after the execution of sale deed by Mohan Chandra, favour of defendants No. 2 to 4. The trial court found the suit is not for mis-joinder either defendant No. 1 defendant No. 5. It further that defendants No. 2 to 4 are not protected respect of interest, alleged property suit, Section 43 of Transfer of property Act, 1882. Lastly, it was that defendants No. 2 to 4 were not exclusive possession of the property in suit, as alleged them. And as such, trial court decreed the suit for possession with costs, as against defendants No. 1 4 with clarification decree, physical possession would executed, against defendant No. 1 only. Against judgment decree dated 19.06.1975, passed in civil suit No. 142 of 1970, the defendant No. 1, preferred appeal under Section 96 of Code of Civil Procedure, 1908, which registered as civil appeal No. 15 of 1975 (A). The appeal was heard and dismissed by Civil Judge, Almora on 10.07.1978, where by judgment and decree passed by trial court is affirmed with observation the plaintiff has one half share property in suit, and as such, he shall be entitled execute decree possession against defendant No. 1 (appellant) only. It further observed by appellate the plaintiff shall be entitled decree of joint possession over the property along with defendants No. 2 to 4. Aggrieved by said judgment decree, Second Appeal preferred by defendant No. 1 before Allahabad High Court the year 1978, where it was admitted on

11.08.1978 on following substantial questions of law:-

1. Whether Smt. Khasti Devi was competent gift away the property in suit?

2. Whether jurisdiction relief possession respect agricultural land?

3. Whether the decree joint possession could have been passed by lower appellate court respect of a part of property as against defendants- respondents No. 2 to 4 before it ?

10. Answer to substantial question No. 1:- Admittedly, property suit was purchased Leela Nand Joshi, uncle of defendant/appellant year 1932. It is also not disputed thereafter, at time of his death, Leela Nand Joshi, left behind him, his widow Khasti Devi, sons- Mohan Chandra and Girish Chandra and daughter Munni Devi. It also not disputed that Girish Chandra died issueless, around

1950. Meanwhile, Mohan Chandra, one of the heirs of the deceased Leela Nand Joshi, transferred the share inherited by him in respect of property in suit favour of Badri Dutt Tiwari (father of defendants No. 2 to 4) through a registered deed dated 11.05.1948. This registered (Ext. B-2), executed by Mohan Chandra read with evidence, adduced behalf of the defendants No. 2 to 4. Since Girish Chandra Joshi, brother of Mohan Chandra was alive at transfer property (Mohan Chandra), such, inherited by Girish Chandra (younger son of Leelanand Joshi) cannot be to have been transferred by Mohan Chandra Badri Dutt Tiwari or his sons. It this one half share the property in suit in respect of which the plaintiff claims that Khasti Devi (mother of Girish Chandra), transferred appellant/defendant No. 1 Chandra Shekhar Joshi (nephew of Khasti Devi) alleges that he being nearest cognate of Mohan Chandra, inherited that half share. At time of death of Mohan Chandra, as is evident the evidence on record, Khasti Devi (widow of Leela Nand Joshi) was alive. There is concurrent finding of fact of both courts below remained in possession of property and used collect tenants, as is clear from evidence of P.W. 2 Bhola Datt and P.W. 3 Bhuwan Chandra inducted suit. This Court cannot interfere with concurrent finding of fact. That being so, provisions contained in Section 14 of Hindu Succession Act, 1956, get attracted this case. Section 14 of Hindu Succession Act, 1956, reads as under:- “14. Property of female Hindu to be her absolute Property- (1) Any property possessed a female Hindu, whether acquired before commencement of this Act, shall be held by her as owner thereof and not as a limited owner. Explanation- In sub-section, “property” includes both movable immovable property acquired a female Hindu inheritance devise, a partition, or lieu of arrears of maintenance, or by from any person, whether a relative or not, before, at or after her marriage, or by her own skill or exertion, or by purchase or by prescription, or in any other manner whatsoever, and also any such property stridhana immediately before commencement of this Act. (2) Nothing contained sub-section (1) to any property acquired by way of gift or under will or any other instrument or under a decree or order of a civil court or under an award where terms of gift, will instrument decree, award prescribed a restricted estate in such property.” Explaining Section 14 Hindu Succession Act, 1956, Jagannathan Vs. Kunjithapadam, AIR 1987, Supreme Court 1493, Apex Court has held that a limited estate of a Hindu female would enlarge absolute estate of property held by her in the following situation:- (i) Where acquired limited estate property before or after the commencement of the act provided she was in possession of the property at time of coming into force of the Act i.e. 17.06.1956. (ii) Even property question was possessed by her lieu of her to maintenance as against the estate of her deceased husband or family property, she would be entitled to become a full or absolute having regard origin of her right was traceable right against her husband’s estate. It further clarified aforesaid judgment Supreme Court nothing in Section 14 supports proposition that Hindu female should actual physical possession constructive possession of any property on the date of coming into operation of the Act. The expression ‘possession’ has been used sense of having a property control property. Since it has come on evidence on record Khasti Devi was in possession of property the extent of one half share of Girish Chandra and was collecting tenants commencement of Hindu Succession Act, 1956, thereafter, such, Khasti Devi became the extent of said half share the property suit w.e.f.

17.06.1956. Registered

10.02.1959, paper No. 39A (Ext. 9) read with statement of P.W. 1 Ganga Datt (witness of gift deed) evidence adduced behalf plaintiff, proves the case of the plaintiff of Khasti Devi property was transferred the plaintiff by her before her death the year 1969. Paper No. 40 C (Ext. 1) Khasti Devi before execution of the gift deed obtained permission Assistant Collector, Almora, transferring her share the property. It is pertinent mention here the pleadings, is no body’s case that the house in suit is a joint Hindu family property.

11. Shri P.S. Adhikhari, learned counsel appellant, argued that after death of Girish Chandra 1950, his brother Mohan Chandra inherited his (Girish Chandra’s) the property. And after death of Mohan Chandra, Chandra Shekhar Joshi (defendant No.1), being the nearest cognate family got said share the property in suit. In the opinion of Court, argument appears be misconceived. Even if Mohan Chandra inherited share of Girish Chandra, on his death, since Mohan Chandra also died before commencement of Hindu Succession Act, 1956, as is clear the evidence on record, only Khasti Devi (mother of Mohan Chandra), widow of Leelanand Joshi, who got possession of property. Had the property been ancestral property of Leela Nand, it could have been said that his nephew Chandra Shekhar Joshi (defendant No. 1) inherited share on the death of his cousin Mohan Chandra. But is not the case here. The house did not belong Gauri Dutt, father of Leela Nand Joshi and Bhawani Dutt Joshi. Rather, it was a self-acquired property of Leela Nand Joshi. As such, his widow cannot deprived of her life estate, received by her after death of Leelanand Joshi and his sons Mohan Chandra and Girish Chandra. (It is pertinent to mention here that Mohan Chandra already transferred the year 1948 before the death of Girish Chandra). For reasons, discussed above, Court is of the view that Khasti Devi since became full the extent of half share the property under Section 14 of Hindu Succession act, 1956, was competent to gift away her the property suit. Accordingly substantial question law No. 1 stands answered.

12. Answer to substantial question of law No. 2:- From documentary evidence record, is clear the property in suit is situated Mohalla Chinakhan, within the municipal limits Almora. It is not established on record agricultural land, which requires declared as abadi land. Paper No. 45-C (Ext. 4) record court, which assessment register Nagar Palika, Almora, the house in question was assessed the year 1958-59. In the circumstances, this Court has no hesitation in holding the civil court had jurisdiction to grant relief of possession respect of property suit. Accordingly, substantial question No. 2, stands answered.

13. Answer to substantial question No. 3:- Since, discussed above, record of Leela Nand Joshi, inherited son- Mohan Chandra was transferred by him (Mohan Chandra) the year 1948 to Badri Dutt Tiwari, father of defendants No. 2 to 4, evidence that Mohan Chandra, Badri Dutt (or sons) partitioned Mohan Chandra the property in suit the share of heirs of Leela Nand, as such, appellate committed decreeing joint possession of plaintiff that extent, and decreed the suit for possession only as against defendant No. 1 (present appellant). Therefore, substantial question of law No. 3 stands answered against the appellant.

14. For reasons, discussed above, this Court does not find any reason interfere with judgment and decree, passed by first appellate court in civil appeal No. 15 of 1975(A). Accordingly, the appeal dismissed. Costs easy. Dt: 04.09.2006 Sweta (Prafulla C. Pant, J.)