Meera Devi And Ors vs Jashomati Devi And Ors

This appeal under Section 100 of the Code of Civil Procedure, 1908, has been filed challenging the judgment dated 27.9.2014 and decree dated 14.11.2014 passed by the learned Principal District & Sessions Judge, Deoghar in Title Appeal No. 51/2010, by which, the appeal filed by the appellant has been dismissed and the judgment dated 25.11.2010 and the decree dated 15.12.2010 passed by the learned Sub-Judge-VII, Deoghar in Title (Partition) Suit No. 6/2006 was confirmed.

The appellants herein are the respondents-appellants before the court below. The suit was filed by the respondents herein praying for partition of the ancestral property claiming ½ share in the suit property and also for declaration that the sale deed dated 8.10.2005 and gift deed dated 13.12.2005 executed by Longi Devi, the mother of plaintiff No. 1 and defendant No. 1 is illegal, void and inoperative and is liable to be cancelled.

The parties are related to each other. Plaintiff No. 1 and defendant No. 1 are the full sister and daughters of Longi Devi and Beni Modi. Beni Modi was a shopkeeper. Being Hindu, they are governed by Mitakshara School of Hindu Law. Beni Modi died leaving behind his two daughters and widow wife. The plaintiffs claimed that Beni Modi purchased 632 sq.ft of land in Mouza Shyamganj, Castairs Town, Karahanibad, Deoghar for Rs.5000/- in the year 1979. It is the case that the property was purchased from the fund of Beni Modi but it was registered in the name of his wife, Longi Devi. Longi Devi was illiterate lady and had no income of her own. After purchasing the said property, Beni Modi constructed a house and the family started living there. It is further case that Beni Modi and Longi Devi became dependent upon the plaintiffs who looked after them. During life time, Beni Modi orally partitioned the property and the eastern portion including one shop room was allotted to the plaintiff and the western portion with one shop room was allotted to defendant No. 1 and both sisters came in possession of their respective shares of the property. After the death of Beni Modi, it is the plaintiff who looked after her mother but 6-7 months back, defendant No. 1 completely took-over her mother and with an ulterior motive and taking advantage of old age of her mother, obtained Will in respect of the suit property. According to the said Will, plaintiff No. 3 was given 1/5th share in the suit property and rest 4/5th was given to the children of Meera Devi, who are the defendant Nos. 3 to 6. The execution of the said Will came to the knowledge of the plaintiffs who opposed and thereafter the Will was cancelled, but later they obtained registered deed of sale on 8.10.2005 in their favour for consideration of Rs. two lakhs. It is the case of the plaintiffs that the said sale deed was executed by misrepresentation and fraud and the same is a fabricated document and no consideration money had ever been given to Longi Devi. Further a gift deed was also executed in favour of Meera Devi, which according to the plaintiffs is also a sham document. The plaintiffs all along are in possession of their portion of the property but because of sale deed their title has come under the cloud, thus the suit was filed praying for partition.

The defendants appeared and denied all the allegations levelled in the plaint. It is their case that Longi Devi had independent right, title and possession over the suit land. It is also their claim that Longi Devi had purchased the suit land out of Stridhan and Beni Modi had no source of money to purchase the suit property and house. The defendants claimed that defendant No. 1 and Longi Devi had remodeled and re-constructed the house and defendant No. 2 started business in front of the suit house. It is their case that plaintiffs never looked after the mother. The defendants admitted about the fact of existence of the Will and its cancellation but stated that Longi Devi thereafter wanted to sell the land, but defendant requested to sell the property to her and thus, she purchased the same and got the same mutated and paying the rent.

On the pleadings of the parties, the trial court framed 07 issues, out of which, Issue Nos. (iii) (iv), (v) and (vi) are important, which are as follows:-

(iii) Whether the plaintiffs are entitled to share in the suit property?

(iv) Is their unity of title and unity of possession in between the parties?

(v) Whether the suit property is the self-acquired property of defendant No. 7 from her stridhan or it was purchased by her husband in her name?

(vi) Is the plaintiff entitled to a decree for cancellation of sale deed and gift deed executed by Longi Devi in favour of Meera Devi?

To prove the case, the plaintiffs have adduced 12 witnesses and they have also exhibited several documents. Seven witnesses were also examined on behalf of the defendants and they also exhibited several documents.

The trial court after evaluating the evidences has held that from the evidences available on record, it transpires that there is no positive evidence regarding purchase of suit property by Longi Devi from Stridhan. The court also held that in the endorsement i.e. Ext.-C, it has been mentioned that Longi Devi paid the money to the vendor but the deed writer (P.W.12) stated that it was Beni Modi who paid the money to her wife in his presence at the time of purchase of the suit property. It was the case of the defendants that their father i.e. Beni Modi was hand to mouth and was a careless person, but surprisingly, defendant in cross-examination admitted that her father (Beni Modi) got solemnized marriage of both the daughters and the expenditure of the marriage was borne by him. It is also admitted that all rents were paid by her father and the father was maintaining the family. The court on this evidence came to a conclusion that the claim of the defendant Meera Devi that their mother was the Karta of the family is unbelievable. The court, thus, came to the conclusion that there was joint nucleus in the family and Beni Modi was the karta of the family and therefore the claim of the defendant-Meera Devi is not correct. The court further held that the property was purchased by Beni Modi in the name of his wife. After the death of Beni Modi, the property devolves upon his wife and two daughters each having 1/3rd share in the suit property. The court also held that by executing the sale deed, Longi Devi sold excess of her share. Thus, the sale deed executed by her is valid to the extent of her share only. The trial court thus held that the defendants became the owner of 2/3rd share of the property and plaintiff will get only 1/3rd share of the suit property. The possession of the plaintiff of the suit property has also been established by him by exhibiting voter list and in fact, Meera Devi in her cross-examination said that son of plaintiff No. 1 is running a shop in the premises. Ext. 5A also proves the possession of the plaintiff. In conclusion, the court held that the plaintiff is entitled to 1/3rd share in the suit property as the property was joint.

The defendants, being aggrieved by the said judgment, preferred title appeal being Title Appeal No. 51/2010 and they claimed the entire suit property. The appellate court considering the evidences, has concurred with the finding of the trial court and thus, dismissed the appeal. The appellate court has found that Beni Modi was Karta of the family and was properly maintaining his family and the suit land was purchased by Beni Modi in the name of his wife. The appellate Court has also found that after the death of Beni Modi, the suit property devolves upon his wife and two daughters in equal share i.e. 1/3rd each. The appellate court further held that the wife of Beni Modi i.e. Longi Devi could not have sold more than her share i.e. more than 1/3rd share, thus any sale or gift executed by Longi Devi beyond 1/3rd share is invalid. The court also held that the defendants also accepted the possession of the plaintiff over the eastern side and none of the defendants have denied the said possession. On the aforesaid findings, the court concurred with the findings of the trial court.

I have heard the counsel for the appellant and I have gone through the record.

The counsel appearing on behalf of the defendants submits that the sale deed could not have been declared null and void. He submits that since the suit property was purchased by Longi Devi so it can be presumed that she had purchased the same from her stridhan. It is further submitted that since the property was purchased from stridhan of Longi Devi, she had right to sale her entire property. He also submits that the court below has completely been misled while deciding the issue. As per the appellants, Longi Devi was the Karta of the family and thus the findings of both the court below are absolutely bad.

After hearing the parties and going through the judgment of both the court below, I find that the entire questions, which the respondents have raised at the time of argument, are the question of fact. Both the courts below, after considering the evidence of the plaintiffs and defendants, have concluded that Beni Modi was the karta of the family and was a man of means. Both the court below disbelieved the plea of the defendants that Longi Devi was the karta of the family. Both the courts below have found that the property was purchased from the fund of Beni Modi but was registered in the name of his wife-Longi Devi. The courts have also found that the plaintiffs were in possession of the suit property, which in fact has also been admitted by defendant. The court below thus had correctly held, on the facts, that Longi Devi did not have right to sell more than her share. All these findings which have been arrived at by the courts below are the findings of facts. The point raised by the counsel of the appellant are the point of facts which have been decided by both the courts against the defendants-appellants. The appellants want to re-open the factual controversy by filing the instant second appeal, which cannot be done, as this Court is not a fact finding Court. Moreso, when the facts have been appreciated by both the courts below and the findings are concurrent, no relief can be granted in this case. I find no perversity in both the judgments, as both the courts below have considered oral and documentary evidences meticulously.

In view of the aforesaid facts, I find no illegally in the judgment and decree passed by both the courts below and there is no substantial question of law which has been answered in favour of the appellants. Accordingly, the appeal is dismissed upholding the judgment dated 27.9.2014 and decree dated 14.11.2014 passed by the learned Principal District & Sessions Judge, Deoghar in Title Appeal No. 51/2010.