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2002 DIGILAW 1086 (JHR)

Bachcha Singh v. Saraswati Devi

2002-10-01

GURUSHARAN SHARMA

body2002
JUDGMENT Sharma, J.-Bharosa Singh, son of Faudal Singh of Village Kadhwan, District Palamau had two sons, namely, Suba Singh and Bachcha Singh, the plaintiff. Suba Singh died in the year 1928 issueless, leaving behind his widow, Mostt. Kusum Debi, who also died some time in the year 1979. 2. During her life time, Mostt. Kusum Debi executed a registered deed of gift dated 21.11.1978 in favour of one Jugeshwar Singh, defendant no. 1 as also a registered sale deed dated 24.11.1978 in favour of Sarswati Debi, the defendant no.2, wife of Ramnaresh Singh. Subsequently, by registered sale deeds in the year 1981, the defendant no.1 sold the lands obtained by the said gift to Sarswati Debi, Brij Kishore Singh and Moti Raj Debi, the defendants 2 to 4. 3. According to plaintiff, Mostt. Kusum Debi, being pre-1937 widow was entitled to maintenance only and sometime in the year 1935 she was given 96 decimals in Village-Kadhwan, 2.68 acres in Viliage-Ulli Pahari and 25 decimals land in VillagePipra in lieu of her maintenance, besides the house standing over plot no. 110 situated in Village Kadhwan to live in. 4. Admittedly, Mostt. Kusum Debi exclusively enjoyed the aforesaid property given to her in lieu of maintenance and was exclusively in possession thereof upto 17.6.1956, when the Hindu Succession Act, 1956 came into force. She, therefore, acquired absolute right, title and interest in the above .said property by virtue of the provision of the aforesaid Act. 5. The contesting defendants, on the other hand, failed to establish that Mostt. Kusum Devi, after death of her husband in the year 1928, came and continued in possession of any other property of the family in lieu of her maintenance. 6. The trial court decreed the suit in part holding that suit was not hit under the provisions of Section 34 of Specific Relief Act and "Mostt. Kusum Devi perfected her absolute right, title and interest over the properties given to her in different villages for her maintenance and she continued in possession thereof throughout. Hence, the defendants acquired valid title and possession over those properties transferred by her. However, transfer of the land, if any, which were not given to her in lieu of maintenance, was illegal and void and the transferees did not acquire any right, title, interest or possession thereon. 7. Hence, the defendants acquired valid title and possession over those properties transferred by her. However, transfer of the land, if any, which were not given to her in lieu of maintenance, was illegal and void and the transferees did not acquire any right, title, interest or possession thereon. 7. On the other hand, court of appeal below while reversing the findings of the trial court held that the present suit for simple declaratory relief asked by the plaintiff in absence of consequential relief for confirmation of possession was hit by Section 34 of the Specific Relief Act. 8. It was observed that name of Mostt. Kusum Debi was entered in revenue papers 17 years prior to institution of the suit along with plaintiff and he himself purchased some lands from her and also jointly executed sale deed along with her donee, Jugeshwar Singh. On that basis it was held that plaintiff would be deemed to have acquiesced into ownership of Mostt. Kusum Devi under the provisions of Section 115 of the Evidence Act. Kusum Devi had acquired absolute interest in the suit property under the 1956 Act. 9. At the time of admission of this appeal following substantial questions of law were framed: 1. "Whether in view of the findings of the trial court that the appellant had been in possession of the land in question, the suit filed by him for a declaration that the deed of gift executed by Kusum Devi by 21.11 .1978, was hit under the proviso to Section 34 of the Specific Relief Act, 1963 is correct? 2. Whether the findings of the learned court of appeal below that the suit is bad for non-joinder or mis-joinder of the parties is sustainable? 3. Whether in view of the fact that her husband died in the year 1928, the respondent inherited the property in question?" 10. In view of the admitted position that certain properties mentioned above were given to Mostt. 3. Whether in view of the fact that her husband died in the year 1928, the respondent inherited the property in question?" 10. In view of the admitted position that certain properties mentioned above were given to Mostt. Kusum Devi after death of her husband, in lieu of her maintenance and she continued in exclusive possession thereof till Hindu Succession Act, 1956 came into force and, therefore, no doubt her right, title an~ interest over those properties became absolute, but, in my opinion, in respect of other properties of the family over which even if her name stood recorded in the revenue records of the State Government jointly with the plaintiff, she did not acquire any interest by virtue of the provisions of the 1956 Act, and, therefore, she had no authority to transfer those lands and the transferees did not acquire any right, title and interest over such lands. 11. So far as the application of Section 34 of the Specific Relief Act in the present suit is concerned, I find that plaintiff's possession over the property of the family other than those given to Mostt. Kusum Devi in lieu of her maintenance was not disputed and, therefore, the present suit in absence of consequential relief of confirmation of possession was not hit by the provisions of Section 34 of the Specific Relief Act. The suit was also not bad for non-joinder of parties. 12. I, therefore, set aside the impugned judgment and decree, passed by the court of appeal below and confirm the judgment and decree, passed by the trial court. 13. I n the result, this appeal is allowed, but without costs.