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2002 DIGILAW 255 (PAT)

Ram Nath Pandey v. Suresh Pandey

2002-02-21

S.N.PATHAK

body2002
Judgment S.N.Pathak, J. 1. This second appeal is directed against the judgment dated 23.9.85 passed by 1st Additional District Judge, Siwan, in Title Appeal No. 104 of 1980, whereby the appellate court confirmed the judgment of the trial court dated 23.7.80 passed by the 2nd Additional Sub-Judge, Siwan, in title suit no. 60/15 of 1977/80. The defendants of that suit are the appellants before this Court. 2. The plaintiff-respondents had filed the aforesaid suit seeking declaration of the title over the suit property. That was the only relief and no other relief was sought. Hence, this appeal has been admitted on the sole substantial question of law whether the suit was barred under Section 34 of the Specific Relief Act for seeking no consequential relief. The alleged facts on which the suit was filed were, in fine, to the effect that there was one Mukund Pandey who had four sons, namely, Ram Rakcha Pandey, Ram Kishun Pandey, Brij Raj Pandey and Ram Sewak Pandey. From the branch of Ram Rakcha Pandey, plaintiff no. 5 Ram Daras Pandey and plaintiff no. 6 Ram Deo Pandey are there. From the branch of Ram Sewak Pandey, there are Suresh Pandey, Ram Ugrah Pandey, Mahadeo Pandey and Ram Nagina Pandey, who are plaintiff nos, 1 to 4. Ram Kishun had two sons, Ramdayal and Ram Dat Pandey. Ramdayal died issueless and Ram Dat left behind his widow Deo Raju Kuer. Brij Raj died before R.S. leaving behind his widow Basmato Kuer who also died 30 days before filing of the suit. R.S. was prepared in the names of Brindaban, the son of Ram Rakcha, Ram Kishun and Basmato Kuer and Ram Sewak. The parties had separated before R.S. So, R.S. was prepared as mentioned above. On the death of Basmato Kuer, her property was inherited by Ram Sewak Pandey because his other brothers were already dead before the death of Basmato Kuer. However, to maintain peace in the family, Ram Sewak gave half of the land to the family of Brindaban and retained half of the land with himself and gave nothing to the branch of Ram Kishun because Ramdayal and Ram Dat had no issue. The family of Ram Sewak and Brindaban had constructed certain temples and installed certain deities therein and plaintiff no. 1 was offering puja and performing ragbhog etc. to the deities. The family of Ram Sewak and Brindaban had constructed certain temples and installed certain deities therein and plaintiff no. 1 was offering puja and performing ragbhog etc. to the deities. However, Ramdayal Pandey executed a deed of endowment on 1.11.1923 and in this deed he included the property of Basmato Kuer also, over which he had no title nor any possession. He appointed himself as Motwali (Ext. C). Then on 8.10.1931 (Ext. C/1), another deed of endowment was executed by Ramdayal appointing Basmato Kuer and then after her death Deo Raju Kuer to be followed by Brij Raj Pandey and Mahendra Pandey of village Bhahailia. By a subsequent deed of correction dated 21.7.1937 (Ext. H), he changed the line of succession of Motwalis by deleting the name of Baidyanand Pandey and Mahendra Pandey to succeed Deo Rajo Kuer, the names of Jerbandhan, Bandhu and Sandhu were supplied as successors to Deo Rajo Kuer. By another deed of endowment dated 10.4.1956 (Ext. C/2). Ramdayal Pandey again executed a Tamliknama and by this deed Jagat Narayan Pandey was appointed as Motwali on the death of Deo Rajo Kuer. 3. However, some panches were also appointed as trustees to see that deeds of endowment were properly executed. It was alleged by the plaintiff-respondents that Ramdayal was almost half mad and one Jerbandhan of the village who was having enmity with the plaintiff-respondents put Ramdayal under his undue influence and got the alleged deeds of endowment created in favour of deities who were ranged as respondents 7 to 10. Further case of the plaintiff-respondents was that on the death of Ramdayal, the plaintiffs applied for mutation of their names for the suit property and the Circle Officer allowed their application. However, the defendant-appellants appealed before the D.C.L.R., who ordered mutation to be made in favour of the deities, plaintiff nos. 7 to 10. This order has cast clouds on the plaintiffs case and, hence, suit was filed. 4. The case of the defendant-appellants was that Ramdayal Pandey had executed all the deeds of endowment in a state of perfect physical and mental health. The deeds of endowment were all legal and valid and the property, in question, was in possession of the defendant-appellants. The plaintiffs had no title over the suit land and, hence, the suit is fit to be dismissed. 5. The deeds of endowment were all legal and valid and the property, in question, was in possession of the defendant-appellants. The plaintiffs had no title over the suit land and, hence, the suit is fit to be dismissed. 5. The trial court on the basis of evidence adduced in its court decreed the suit in toto and the appellate court confirmed this judgment of the trial court. So far the deeds, in question, are concerned, it was submitted by the appellants lawyer that both the courts below failed to grasp with the legal implications of the deeds, in question, and wrongly held that Ramdayal Pandey had executed the deeds under undue influence. The deeds were voidable and not void and, therefore, without seeking their cancellation, the plaintiff-respondents would not succeed and the suit was barred because of non-seeking of relief in this behalf. The suit was also hit by Section 34 of the Specific Relief Act because no confirmation of possession or recovery of possession was sought. The suit was further bad because the interest of deities and the interest of the plaintiff nos. 1 to 6 was opposed to each other. 6. However, so far as the findings of fact are concerned, this Court is unable to interfere with the same because both the courts below have been concurrent in their findings. They have held that the plaintiffs were in possession of the suit land and that the defendants who were strangers to the family had no title to the suit land. So, I shall confine this appeal on the substantial question of law which has been framed by this Court at the time of admission as also the substantial question of law which has been raised before this Court at the time of hearing to the effect that the interest of the plaintiff nos. 1 to 6 is opossed to the interest of deities (plaintiff nos. 7 to 10). Before I proceed to discuss the aspects of the case, I would like to dispose of the question whether the deeds executed by Ramdayal Pandey were valid or invalid. So far the findings of fact regarding the mental health of Ramdayal Pandey is concerned, I need not go into this question because they were findings of fact and they are conclusive, as I have already stated above. So far the findings of fact regarding the mental health of Ramdayal Pandey is concerned, I need not go into this question because they were findings of fact and they are conclusive, as I have already stated above. Admittedly, the deeds of endowment were created several times right from the year 1923 upto the year 1956. The executor of the deeds was changing Motwalis from time to time and lastly he appointed son of Jerbandhan Pandey as Motwali or Shebait The sons of Jerbandhan Pandey are the defendant-appellants in this Court. So, apparently, Ramdayal Pandey was exercising full control over the property, in question, and he had not completely divested himself of his interest in the suit property. Moreover, he had included the property of Basmato Kuer also, in the deed which he was not authorised to do because on her death this property devolved upon Ram Sewak Pandey. It was also in the evidence adduced in the lower court that the donor was enjoying the usufruct of the dedicated property. In ail circumstances, therefore, the donor was having control over the property gifted. So, under Section 407 A of the Hindu Law the dedication was not a valid dedication. So, the deeds, in queston, were held to be void. This is so, because the donor was changing Motwalis and Shebait from time to time and he was changing the natural mode of succession, as provided under Article 419 of the Hindu Law to the Shebaitship of the deities which he was not authorised to do in case of complete and valid deed of endowment. In this view of the matter also, it was apparent that the donor had not divested himself completely from the interest which he was holding over the gifted property. So, the deeds of endowment were invalid and void on this account also. In such a circumstance, on the death of Ramdayal, his brother Ram Dat predeceasing himself, and then Rajo Kuer also being dead when the suit was filed, the plaint.ffs 1 to 6 will inherit the property of Ramdayal and Deorajo. So, their title to the suit property was unaffected and remained intact. The defendants had acquired no title and even otherwise they had no title over the same except that they had been appointed Motwali of the deities to which, perhaps, the suit land was dedicated. So, their title to the suit property was unaffected and remained intact. The defendants had acquired no title and even otherwise they had no title over the same except that they had been appointed Motwali of the deities to which, perhaps, the suit land was dedicated. However, since the dedication of the deities was invalid as it has been shown above, the deities (plaintiff nos. 7 to 10) acquired no title. Moreover, since the deed of dedication dated 10.4.1956 was also invalid, the defendant-appellants did not acquire any title over the office of Shebaitship of the deities. In such a circumstance, plaintiff nos. 1 to 6 were rightly entitled to seek their declaration over the suit property. 7. So far the question whether the interest of plaintiff nos. 1 to 6 was opposed to the interest of plaintiff nos. 7 to 10, I am of the opinion that since the deeds of dedication to these plaintiffs were found to be invalid, the concerned deities acquired no interest and, hence, there was no question of their interest being adverse to the interest of plaintiff nos. 1 to 6. In this view of the matter also, the suit would not be bad for misjoinder. As far as the question whether the plaintiff-respondents had any cause of action, since the order of D.C.L.R. relating to mutation of the deities over the suit property cast a cloud over the title of the respondents, they had to file suit and they had also the good cause of action. 8. Now the question is whether the suit is barred under Section 34 of the Specific Relief Act. In this connection, the courts below had held that the plaintiff nos. 1 to 6 were in possession of the suit land. So, I do not think that the plaintiff-respondents were required to seek any relief regarding confirmation of possession and recovery of possession. Hence, I am of the opinion that the suit was not barred under Section 34 of the Specific Relief Act. Since, the deeds, in question, were found to be invlaid, the plaintiff-respondents were not under any obligation to seek cancellation of the deeds also. 9. In the result, this appeal is dismissed and the judgment and decrees of the two courts below are confirmed.