Jagdhar Prasad Singh vs Sheodhar Prasad Singh and Others <BR> Sheodhar Prasad Singh Vs Jagdhar Prasad Singh and Others

U.N. Sinha, J.—Letters patent Appeal No. 5 of 1964 has been filed by plaintiff No. 1. Letters Patent Appeal No. 18 of 1964 has been filed by defendant No. 2. Both the appeals are directed against the judgment passed by a learned single Judge of this Court in Second Appeal No. 218 of 1957 on the 11th December, 1963 The trial Court had dismissed the plaintiffs'' suit, which decree had been reversed by the learned Additional Subordinate Judge on appeal, as a result of which the suit was decreed. On appeal by defendant No. 2, the learned single Judge of this Court has allowed the appeal in part, by which the decree passed by the first court of appeal has been modified. Hence these appeals by the two contestants. Both the appeals have been heard together and this judgment will govern both of them.

In order to appreciate the controversy between the parties; the following genealogy will be necessary:

Bihari Singh | ___________________________________________ | | | Sheon Prasad Mahabir Prasad Raghubir | (Defendant I) | |_____________________ |_____________________________ | | | | Ramchandra Singh Surajnarain Singh alias | Chanderdip Singh | _____________________________________________| | | | Jagdhar Singh (plff. I) | | | ______________________ Sheodha Prasad | | (defendant 2) Lal Babu Sabha Singh | (plaintiff 2) (plff. 3) Raja Pd. Singh (defendant 3)

(The last defendant, namely, Srimati Muni Kuer, defendant No. 4 was said by the plaintiff to be a wife of Mahabir Prasad, being mother of Jagdhar Singh, plaintiff No. 1. According to Sheodhar Prasad, defendant No. 2, Srimati Muni Kuer was not married to Mahabir Prasad. This was one of the points in controversy in this litigation.)

The plaintiffs'' case was as follows : Sheo Prasad, Mahabir and Raghubir were separate and Raghubir had died issueless, leaving a widow named Janki Kuer. Janki Kuer had come in possession of her husband''s property and after her death, Sheo Prasad, who had been managing the affairs of Janki, Kuer, took possession of the property left by Raghubir. Thereupon, defendants No. 1 and 2 along with plaintiff No. 1 had brought Title Suit No. 80 of 1932, with respect to the property left by Raghubir. The suit was decreed and the decree was affirmed on appeal in the court of the Subordinate Judge, 1st Court, Patna. It was alleged that defendant No. 2 had exercised great influence upon their father, defendant No. 1, and he got a deed of gift executed by defendant No. 1 in his favour on the 18th January, 1951 in respect of all the family properties. It was alleged that in that deed of gift plaintiff No. 1 had been falsely described as an illegitimate son of defendant No. 1. According to the plaintiffs, defendant No. 1 had no right to execute a deed of gift relating to the joint family properties and the document was inoperative and not binding upon the plaintiffs and defendant No. 4. It was alleged that after the execution of the deed of gift, the defendants had been enjoying the income of the properties covered by it and were not giving anything to the plaintiffs and defendant No. 4. The plaintiffs claimed that one-fourth share in the properties belonged to them and one-fourth to defendant No. 4, mother of plaintiff No. 1. The remaining half was said to belong to defendants 1 and 2 in equal shares. The plaintiffs claimed declaration of their title to the extent mentioned above and asked for a decree for recovery of possession after partition with mesne profits. They also claimed for a declaration that the deed of gift dated the 18th January, 1951 was inoperative and not binding upon them. (The properties in suit included the ancestral properties of Mahabir Prasad which he had got when he and his brother had separated and half of the property of Raghubir which had been obtained by the decree passed in Title Suit No. 80 of 1932).

Defendant No. 1 had filed a written statement supporting the plaintiffs'' contentions, claiming that, plaintiff No. 1 was his legitimate son through his wife Srimati Muni Kuer. He described the deed of gift as having been brought into existence by defendant No. 2 after perpetrating fraud on him. He did not, however, contest the suit and defendant No. 2 was the only defendant who contested the plaintiffs, suit.

In substance, the case of defendant No. 2 was as follows : As indicated above, it, was alleged that plaintiff No. 1 was an illegitimate son of defendant No. 1, The deed of gift was said to be a valid document and it was alleged that defendant No. 1 had executed this deed of gift on his own accord and after fully understanding all aspects of the matter. With respect to Title Suit No. 80 of 1932 it was alleged that although plaintiff No. 1 of this suit was a plaintiff in that litigation Title Suit No. 80 of 1932 had really been filed by defendant No. 1 with respect to the heritage of Raghubir, and due to some misapprehension of law, plaintiff No. 1 had also been made a plaintiff in that litigation. According to this defendant, the plaintiffs have instituted this suit at the instance of some of his enemies.

The trial court held that defendant No. 4 was not a legally married wife of defendant No. 1. The plaintiffs'' suit failed on this ground alone. It was held that the plaintiffs could not challenge the deed of gift as they had no locus standi to do so. On appeal, the first court of appeal held that defendant No. 4 was married to defendant No. 1 and, therefore, plaintiff No. 1 was a legitimate son of defendants Nos. 1 and 4. The deed of gift was held to be void in law and not binding upon,the plaintiffs. The first court of appeal also came to the conclusion that the deed of gift had been brought into existence by practising "fraud or undue influence upon Mahabir Singh". The learned Single Judge of this Court has affirmed the finding that defendant No. 4 was a lawfully wedded wife of defendant No. 1. With respect to the deed of gift, it has been held that so far as it relates to the ancestral property of defendant No. 1, the deed cannot affect the plaintiffs'' interest. The plaintiffs have been held to be entitled to one-fourth share in this property. With respect to the property of Raghubir which had been decreed in Title Suit No. 80 of 1932, it has been held that defendant No. 1 was entitled to make a gift of the property obtained by him from his brother and that the plaintiffs have no claim over this property. It appears that there was a controversy in the second appeal as to the Bakasht and homestead lands included in this litigation, in view of the fact that Zamindari interest had vested in the State of Bihar. It has been held that the Bakasht lands, if any, shall not be partitioned, as the plaintiffs were admittedly dispossessed of all the properties involved in this litigation as a result of the execution of the deed of gift dated the 18th January, 1951. According; to the learned single Judge, the plaintiffs could not be held to be in "Khas possession" of the Bakasht lands on the date of the vesting of the Zamindari interest. It has been held that the plaintiffs are entitled to mesne profits with respect to their one-fourth share in the ancestral property and a decree for partition has been passed.

The contentions raised by Sri Chatterji on behalf of plaintiff No. 1 are three-fold, namely ;-

(1) It is argued that when the first court of appeal had held that the deed of gift was fraudulent and void, the learned single Judge had no jurisdiction to reverse those conclusions. In this context it is also urged that plaintiff No. 1 had also got some portion of Raghubir''s property by decree passed in Title Suit No. 80 of 1932 and, therefore, he could not be deprived of this by-defendant No. 1, by making a gift of the share of Raghubir''s property which had come to the three plaintiffs-of that title suit.

(2) Defendant No. 2''s possession of the Bakasht lands was possession on behalf of the entire family and, therefore, the learned single Judge has erroneously held that the plaintiffs were not in Khas possession of the Bakasht lands.

(3) Even if the Bakasht lands are excluded from partition, the plaintiffs are now entitled, to half share of other properties, now that both defendant No. 1 and defendant No. 4 are dead.

The learned Advocate-General appearing for defendant No. 2 has argued in his appeal that the learned single Judge has erred in affirming the conclusion of the first court of appeal regarding plaintiff No. 1''s legitimacy and it was also contended at some stage that the suit by plaintiff No. 1 was barred by limitation. In resisting the appeal filed by plaintiff No. 1, the learned Advocate General has supported the conclusions of the learned single Judge and he has also relied upon certain concession made by Sri Chatterji in this context before the learned Judge which has been mentioned by him thus :-"

Regarding the gift, it was conceded by Mr. Chatterji that it was not void but only voidable and that too at the option of Mahabir alone. Mahabir died about six years after this gift during the pendency of this second appeal and he took no steps in his life, time to challenge the same. Hence, the gift could legally operate in respect of the exclusive property of Mahabir, and the plaintifs are not entitled to get any share in that part of the suit property which constituted half of Raghubir''s estate.

Some of the alleged concessions have, however, been repudiated by Sri Chatterji, according to whom, all that he had conceded was that the deed of gift was not void but only voidable. It is said that he had not conceded that it could be avoided by Mahabir alone, as according to Sri Chatterji this deed of gift can be avoided by plaintiff No. 1 also.

Before I deal with the contentions of Sri Chatterji enumerated above, I would like to state that it is not possible to hold with Sri Chatterji that the learned single Judge has wrongly mentioned the extent of the concession which Sri Chatterji is said to have made before him. Earlier, in the judgment, the learned single Judge has referred to certain concession which the Advocate-General had made before him, on a question of law, and it is difficult to conclude that the learned single. Judge has committed an error as to the extent of concession that Sri Chatterji had made before him. The learned Advocate-General has urged that although he has no clear recollection about this matter, Sri Chatterji must have made the concession quoted above in view of Sections 19 and 19A of the Contract Act. This argument, is not without force. I must, therefore, conclude that Sri Chatterji had agreed that the deed of gift was only voidable and that too at the option of Mahabir alone, How, ever, it will appear presently, that the contentions raised by Sri Chatterji, on merit, support of his appeal, are not valid.

On the first point argued by Sri Chatterji, regarding the finding of the first court of appeal, that the deed of gift was fraudulent and void, reference may be made to paragraph 20 of the judgment of that court where this point has been dealt with. The learned Additional Subordinate Judge has stated that the "deed of gift itself is the best evidence to show that this was brought about by practising fraud or undue influence upon Mahabir Singh." Then, the learned Judge has stated that by compromise in Title Suit No. 80 of 1932 (Exhibit, 3), a share in the heritage of Raghubir had been given to plaintiff No. 1, jointly with his father and brother, which was also gifted away by Mahabir. Sri Chatterji wholly repudiates the compromise incorporated in Exhibit 3, basing the right of plaintiff No. 1 on the decree passed in that suit and not. on the compromise arrived at later on. Be that as it may, the conclusions of the learned Additional Subordinate Judge with respect to the deed of gift incorporated in paragraph 20 were really speculative. For instance, he has stated thus:

Mahabir admittedly is an old man of 80 or 85 years and perhaps it was not difficult to win him over and to make the false recitals in the deed of gift about the illegitimacy of the plaintiff No. 1 which again is not admissible in evidence.

In my opinion, the learned single Judge of this Court has approached this question correctly, concluding that the gift so far as it related to the ancestral property, could not affect the plaintiffs'' interest. The learned Judge has, again, correctly held that the deed of gift did operate in respect of Mahabir''s exclusive interest in Raghubir''s estate, as well as in respect of Mahabir''s one fourth share in the ancestfal property. (It may be stated that in March 1950, Mahabir had expressed his unequivocal desire to separate/and the learned single Judge has stated that after March 1950, the shares of the members of the family in the ancestral property were Mahabir one-fourth, Mani Kuer-one-fourth, Sheodhar one-fourth and Jagdhar one-fourth) This leads to the connected argument of Sri Chatterji to the effect that plaintiff No. 1 had got some share in Raghubir''s property as a result of the decree passed in Title Suit No. 80 of 1932. Sri Chatterji has referred to. Exhibit 1, the plaint of that suit and Exhibit 9, the judgment passed by the trial court which had been affirmed in appeal, for his contention that plaintiff No. 1 of this suit had obtained a share in Raghubir''s property as a result of that litigation. But, our attention was drawn towards the end of Exhibit 9, which made it clear that the decree passed was only in favour of Mahabir, who was plaintiff No. 1 of that suit. The trial court said thus:

Since we have found above, that Raghubir died in state of separation from his brother Sheo Prasad as well as Mahabir, (who had obviously separated) and that his widow Janki Kuer is also dead, Raghubir''s property must devolve upon the plaintiff 1 and defendant 1 in equal shares.

(Defendant No. 1 in that suit was Sheo Prasad). Therefore, there is no validity in the argument that by the decree passed in Title Suit No. 80 of 1932, the present plaintiff No. 1 had obtained a share from Raghubir''s property for himself. Therefore, the conclusion of the learned single Judge that defendant No. 1 could make a valid gift of his share of Raghubir''s property to defendant No. 2 was quite correct. The decree passed by the learned single Judge giving one-fourth share in the ancestral property of defendant No. 1 to the plaintiffs must, therefore, be affirmed.

The second point argued by Sri Chatterji regarding Bakasht lands, is based on his argument that the possession of defendant No. 2 must be deemed to have been the possession of the plaintiffs'' branch also, for interpreting the expression "Khas possession" within the meaning of Section 6 of the Bihar Land Reforms Act. But, this argument omits to note that even according to the plaintiffs in this suit, defendant No. 2 had ousted the plaintiffs from possession soon after the execution of the deed of gift. It is on this basis that the plaintiffs had claimed mesne profits and obtained a decree for the same. It is difficult to appreciate how the plaintiffs can contend that the possession of defendant No. 2 was their possession because they were co-owners and also claim mesne profits on the ground of being kept out of possession. In my opinion, the learned Advocate General has rightly relied upon the case of Ramrudhar Singh v. Dileshwar Singh 1964 BLJR 823for his contention that defendant No. 2 was in possession of the Bakasht lands adversely to the plaintiffs and therefore, his possession was not the possession of the plaintiffs within the meaning of Section 6 of the Bihar Land Reforms Act. Reference may also be made to the case of Suraj Ahir and Ors. v. Prithinath Singh 1963 BLJR 1 which is a decision of their Lordships of the Supreme Court, and where it was stated that a mere subsisting title to possession over certain lands on the date of vesting would not bring those lands under the term "Khas" possession. Sri Chatterji has contended that the present suit had been instituted in February 1952, and therefore, the vesting of the intermediary''s interest thereafter could not deprive the plaintiffs of their share in the Bakasht lands, if any of the co-owners was in possesion immediately before the institution of the suit. I do not think there is any validity in this argument, The basis of the present suit was that defendant No. 2 was claiming to hold adversely to the plaintiffs and even if this suit succeeds with respect to part of the ancestral property of defendant No. 1. the nature of possession of defendant No. 2 from before the institution of the suit cannot be altered. This point, must, therefore, be decided against the plaintiffs.

The last point raised by Sri Chatterji claiming for his clients half share in the properties (even if the bakasht lands are excluded), may now be considered. The learned single Judge has held that defendant No. 1 had full right to make a gift of his one-fourth share of the ancestral property to defendant No. 2 and this conclusion is correct. Apparently, all that is outstanding is the one-fourth share in the ancestral property of defendant No. 1 and his family, which has been held to be the share of defendant No. 4. She is now dead and this litigation cannot decide the fate of that share. Therefore, the finding as to the respective shares mentioned above must be left as it is and the decree passed in favour of the plaintiffs cannot now be enlarged. This disposes of the appeal by plaintiff No. 1 and Letters Patent Appeal No. 5 of 1964 is threrefore, dismissed.

So far as Letters Patent Appeal No. 18 of 1964 is concerned, the learned Advocate-General has contended that the first court of appeal was the last court of facts and it had come to its conclusion regarding the validity of the marriage between defendant No. 1 and defendant No. 4 without taking into consideration, some relevant evidence and the learned single Judge ought not to have affirmed the finding on this point in a second appeal, without either remanding the case or without proceeding u/s 103 of the Code of Civil Procedure. I do not think that this contention has any force. The learned single Judge has dealt with all the arguments advanced before him and he has referred to all the documents to which the learned Advocate General referred, namely, Exhibits E, F and F(1). In my opinion, the finding regarding validity of marriage between defendant No. 1 and defendant, No. 4 cannot now be reversed. On the question of limitation raised ''by the learned Advocate-General it appeared that no such special ground has been taken in this Letters Patent appeal and, therefore, it is not possible to hold that the suit by plaintiff No. 1 is barred by limitation, as this suit had been instituted more than three years after he had attained majority. I would, therefore, conclude that this appeal is also without any merit. It is also dismissed.

In view of the circumstances of the case, the parties should bear their own costs of the two appeals.

R.L. Narasimham, C.J.

I agree.