Research › Search › Judgment

Patna High Court · body

2006 DIGILAW 283 (PAT)

Sudhir Kumar Thakur v. Saheb Mandal

2006-03-31

SYED MD.MAHFOOZ ALAM

body2006
Judgment Syed Md.Mahfooz Alam, J. 1. This second appeal has been preferred against the judgment and decree dated 19.2.1990 passed by Sri Anant Prasad Shrivastava, District Judge, Sitamarhi in Title Appeal No. 35 of 1989 whereby he has been pleased to set aside the judgment and decree dated 12.7.1989 passed by Sri Narendra Mishra, Subordinate Judge III, Sitamarhi in Title Suit No. 15/87/10/89 by which judgment he had decreed the suit of the plaintiffs. 2. The brief facts of the case are as follows: Appellant Sudhir Kumar Thakur had filed Title Suit No. 15 of 1987 in the Court of Subordinate Judge, Sitamarhi for declaring that the sale deed dated 30.12.1986 executed by Ram Rakshi Devi defendant no. 2 in favour of defendant no. 1, Saheb Mandal, is fraudulent, illegal and without consideration and not binding upon him and for declaration that by execution of the said sale deed, defendant no. 1 had not derived right, title and interest in the suit land. The suit was decreed by the Subordinate Judge III, Sitamarhi on 12th July, 1989. Against the said judgment and decree, the defendants filed appeal which was numbered as Title Appeal No. 35 of 1989. In the said appeal, judgment was delivered on 19.2.1990 and by the said judgment, the appeal was allowed and the judgment and decree passed by the Subordinate Judge No. Ill was set aside. Against the said judgment and decree the plaintiff- appellant has preferred this second appeal. 3. The case of the plaintiffs-appellant, in short, is that one Muneshwar Thakur was the grandfather of the plaintiffs. He had three sons, namely, Jagamath Thakur @ Nirsu Thakur, Ramchandra Thakur and Ram Sewak Thakur. Ramchandra Thakur was the father of the plaintiffs whereas Ram Sewak Thakur was the husband of defendant no. 2. After the death of Muneshwar Thakur, all the three sons inherited the property left by him. Before revisional survey operation, partition took place between the sons of Muneshwar Thakur and accordingly, they came in possession of the property as per their respective shares. The father of the plaintiffs and Ram Roop Thakur alias Guja Thakur together acquired a piece of land measuring an area of 13 1/2 katha appertaining to C.S. Plot No. 341 through a registered sale deed dated 26.10.1959 from their own earnings. The father of the plaintiffs and Ram Roop Thakur alias Guja Thakur together acquired a piece of land measuring an area of 13 1/2 katha appertaining to C.S. Plot No. 341 through a registered sale deed dated 26.10.1959 from their own earnings. After the purchase both the persons came in possession over the land and the two brothers of the plaintiffs father had no concern with the said land. The father of the plaintiffs and Guja Thakur by mutual consent partitioned the said land between them. Guja Thakur came in possession over the piece of land from north including the trees standing thereon and the father of the plaintiffs came in possession over the land including the trees from south (described in Schedule I of the plaint). After partition the plaintiffs father gave a ridge over the land by dividing the same in two portionsone being the eastern portion and the other being the western portion. He also planted some trees over some portions of the said land and the rest land remained in cultivating possession of the plaintiffs father. The old trees standing on the land were cut by the plaintiffs father and other brothers of the plaintiffs father had no concern with those trees. Further case is that after the death of the plaintiffs father, the plaintiffs and their mother came in possession of the said land and as the mother of the plaintiffs executed a sale deed on 27.9.1986, as such by virtue of the said sale deed the plaintiffs came in exclusive possession over the entire land described in schedule I of the plaint. Further case of the plaintiffs is that they came to know about the execution of the sale deed by their own aunt, Ram Rakshi Devi, defendant no. 2 with respect to the half portion of the aforesaid land (described in Schedule II of the plaint). According to the plaintiffs, this was done at the instance and instigation of their enemies and the sale deed dated 30.12.1986 is a fraudulent one and the same is also without consideration. 2 with respect to the half portion of the aforesaid land (described in Schedule II of the plaint). According to the plaintiffs, this was done at the instance and instigation of their enemies and the sale deed dated 30.12.1986 is a fraudulent one and the same is also without consideration. Further case is that although Schedule I land was purchased by the plaintiffs father and Ram Roop Thakur alias Guja Thakur from their own income and there was no contribution of the brothers of the plaintiffs father in purchasing the said land but due to mistake the names of Jagarnath Thakur @ Nirsu Thakur and Ram Sewak Thakur were also wrongly recorded in the R.S. khatian alongwith the name of the plaintiffs father and for thesaid wrong entry, the brothers of the plaintiffs father were always giving assurance to the plaintiffs father for executing a deed of Ladavi in his favour and one of the brothers of the plaintiffs father, namely, Jagarnath Thakur @ Nirsu Thakur executed the deed of Ladavi in favour of the plaintiffs father with respect to the aforementioned land on 21.12.1973 but Ram Sewak Thakur could not execute the deed of Ladavi and he died leaving behind his widow Ram Rakshi Devi, one son and two daughters. Further case is that the plaintiffs were paying rent to the State of Bihar and obtaining the rent receipts with respect to the said land. The names of the plaintiffs were also recorded in the consolidation proceeding with respect to the aforementioned land and the husband of defendant no. 2 had never raised any objection for the same. It is further said that the defendant no. 2 had no right to execute the sale deed with respect to Schedule II land when her husband died leaving behind his one son and two daughters also and, therefore, the plaintiffs are not bound by the sale deed executed by defendant no. 2 on 30.12.1986 in favour of defendant no. 1. It is said that the plaintiffs came to know about the execution of the said fraudulent and illegal sale deed in January, 1987 and then the plaintiffs filed the suit for declaring the said sale deed as illegal, void, fraudulent and without consideration and not binding upon the plaintiffs. 4. 2 on 30.12.1986 in favour of defendant no. 1. It is said that the plaintiffs came to know about the execution of the said fraudulent and illegal sale deed in January, 1987 and then the plaintiffs filed the suit for declaring the said sale deed as illegal, void, fraudulent and without consideration and not binding upon the plaintiffs. 4. Both the defendants appeared in the suit and filed joint written statement according to which the case of the defendants is as follows: The suit is not maintainable, the same is barred by law of limitation and principle of estoppel and waiver and is also not maintainable for non-joinder of the necessary parties. The heirs of Nirsu Thakur and Shiv Nandan Thakur have not been made party to the suit. The suit is also not maintainable due to the operation of the consolidation scheme in the Mauza where the suit property is situated. Further case of the defendants is that the brothers of the plaintiffs father were joint and it is not true that they all had separated amongst themselves prior to the revisional survey. Muneshwar Thakur died prior to revisional survey in the state of jointness and at that time Ram Sewak Thakur, the husband of defendant no. 2, was minor and Jagarnath Thakur was living in village Sarhachiyan alongwith his fathers sister (Faff). After the death of Muneshwar Thakur, Ram Chandra Thakur became the karta of the joint family consisting of all the sons of Muneshwar Thakur. It is incorrect to say that the suit land was acquired by the father of the plaintiffs together with one Guja Thakur from his own income rather Ramchandra Thakur being the karta of the joint family had acquired the suit land out of the income of the joint family fund and as such, all the three sons jointly came in possession of the Schedule I land and accordingly, the revisional survey khatian was prepared in the names of three brothers showing half share to the branch of Muneshwar Thakur and half share to Guja Thakur. Further case is that the sons of Muneshwar Thakur had separated amongst themselves in the year 1970-71 and Jagarnath Thakur left his share to his two brothers through a deed of gift and himself settled in village Sarhachiyan. Further case is that the sons of Muneshwar Thakur had separated amongst themselves in the year 1970-71 and Jagarnath Thakur left his share to his two brothers through a deed of gift and himself settled in village Sarhachiyan. Hence Ramchandra Thakur and Ram Sewak Thakur partitioned amongst themselves all the properties belonging to the joint family of Muneshwar Thakur and they came in possession accordingly. In Schedule I land measuring 30 decimals, the land measuring 15 decimals from the east was allotted to Ram Sewak Thakur and 15 decimals of land from the west were allotted to Ramchandra Thakur on partition. The land was accordingly divided by a ridge which is still present. The defendants have denied this fact that Ram Chandra Thakur was in exclusive possession of Schedule I land and had grown trees over the same and had also cut the old trees standing over the said land. The defendants have also claimed that the sale deed dated 27.9.1986 executed by the plaintiffs mother is a fraudulent document and the same is without consideration. The defendants have also denied that the sale deed executed by defendant no. 2 in favour of defendant no. 1 was brought in existence by playing fraud and the same is of without consideration. The defendants have claimed that the deed of ladavi dated 21.12.1973 is a collusive and fraudulent deed. The lands given in the said Ladavi deed have not been properly described and the same were not of the share of Jagarnath Thakur and it is not correct to say that in the consolidation proceeding, the lands were recorded in the names of the plaintiffs and the plaintiffs were paying rent to the State of Bihar. It has been asserted that the sale deed executed by defendant no. 2 in favour of defendant no. 1 is a valid and genuine document and the plaintiffs have no right to challenge the said sale deed and so, the suit is fit to be dismissed with cost. 5. From perusal of the judgment of the trial court, it appears that on the basis of the pleadings of both the parties, the trial court framed as many as seven issues to be decided in the suit. Those issues are as follows: (i) Is the suit, as framed, maintainable? (ii) Have the plaintiffs got valid cause of action? 5. From perusal of the judgment of the trial court, it appears that on the basis of the pleadings of both the parties, the trial court framed as many as seven issues to be decided in the suit. Those issues are as follows: (i) Is the suit, as framed, maintainable? (ii) Have the plaintiffs got valid cause of action? (iii) Is the Kewala dated 30.12.1986 executed by defendant no. 2 in favour of the defendant no. 1 with respect to land of 15 decimals of khata no. 341, Khesra No. 763 situated in village Bailgarh illegal, void, fraudulent and without consideration? (iv) Is the Kewala dated 30.12.1986 executed in favour of defendant no. 1 by defendant no. 2 binding upon the plaintiffs? (v) Is the Schedule I property of the plaint self-acquired of Ramchandra Thakur and was the same purchased after partition from all the brothers? (vi) Is the Schedule II property of the plaint of the share of defendant no. 2 and has the defendant no. 1 got possession over the same? (vii) Are the plaintiffs entitled for any other relief? 6. From perusal of the judgment of the trial court it appears that on issue nos. 5 and 6 the finding of the trial court was that the plaintiffs could be able to establish this fact that Schedule I land of the plaint as a whole measuring 30 decimals was acquired by Ramchandra Thakur and the plaintiffs are in possession of entire 30 decimals of land. The learned trial court further held that the defendants could not be able to show and prove that Schedule II land of the plaint was of the share of the husband of defendant no. 2 and defendant no. 1 was given possession of the same by defendant no. 2 and accordingly, the trial court decided issue nos. 5 and 6 in favour of the plaintiffs. On issue nos. 3 and 4, the finding of the trial court is that Kewala dated 30.12.1986 executed by defendant no. 2 in favour of defendant no. 1 with respect to the land measuring 15 decimals of C.S. Khata No. 341 Khesra No. 763 is illegal, void, fraudulent and without consideration. The trial court further held that the sale deed dated 30.12.1986 standing in favour of defendant no. 2 in favour of defendant no. 1 with respect to the land measuring 15 decimals of C.S. Khata No. 341 Khesra No. 763 is illegal, void, fraudulent and without consideration. The trial court further held that the sale deed dated 30.12.1986 standing in favour of defendant no. 1 is not binding upon the plaintiffs as it has been held that the land was exclusively acquired by Ramchandra Thakur. The learned trial court discussed issue nos. 1, 2 and 7 simultaneously and held that there is no defect in the frame of the suit. The plaintiffs have got valid cause of action for bringing the suit against the defendants and the plaintiffs are entitled for reliefs as sought by them and finally, the trial court decreed the suit of the plaintiffs with cost. 7. Against the said finding, the defendants preferred appeal which was numbered as Title Appeal No. 35 of 1989 and the same was disposed of on 12.7.1989 by Sri Anant Prasad Shrivastava, the then District Judge, Sitamarhi whereby he has been pleased to set aside the judgment and decree of the trial court and dismissed the suit of the plaintiffs. Against the said judgment and decree, the plaintiff-appellant has preferred this second appeal. 8. From perusal of the record of this second appeal it appears that on 6.1.1991 while admitting the appeal for hearing, only one substantial question of law was formulated by this Court which is as follows: (i) Whether the judgment and decree passed by the two courts below can be sustained as they do not seem to have considered Ext. 3, the Ladavl deed and Ext. 5 the order passed by the Consolidation Officer? It further transpires that during course of hearing the learned Advocate of the appellant suggested the more substantial questions of law to be formulated in this case which are as follows: (ii) Whelher the learned appellate court has wrongly reversed the finding of the learned trial court that the property in suit is self-acquired property, without any evidence on the record to show that the suit property was the joint family property or purchased out of the joint family fund having sufficient nucleus? (iii) Whether the suit being purely declaratory in nature, the lower appellate court has wrongly held in his findings that the suit was not maintainable on account of non-payment of ad valorem court fees? (iii) Whether the suit being purely declaratory in nature, the lower appellate court has wrongly held in his findings that the suit was not maintainable on account of non-payment of ad valorem court fees? (iv) Whether the finding of the learned appellate court that this suit is hit by the proceeding of Bihar Consolidation of Holdings & Prevention of Fragmentation Act, 1956 is in accordance with law? Thus, before this Court there are altogether four substantial questions of law to be decided in this second appeal. Substantial Questions of Law No. (i) 9 Since both these substantial questions of law are inter-related, as such the same are being discussed together. According to the case of the plaintiffs, Muneshwar Thakur was the grandfather of the plaintiffs. He had three sons, namely, Jagarnath Thakur alias Nirsu Thakur, Ramchandra Thakur and Ram Sewak Thakur. Ramchandra Thakur was the father of the plaintiffs whereas Ram Sewak Thakur was the husband of defendant no. 2. According to the case of the plaintiffs, after the death of Muneshwar Thakur all his three sons jointly inherited the property left by him but before revisional survey operation, partition took place between all the three sons of Muneshwar Thakur and accordingly, they came in separate possession of the property as per their respective shares. After the said partition, the father of the plaintiffs and Ram Rup Thakur alias Guja Thakur together acquired a piece of land measuring an area of 13 1/2 kathas appertaining to C.S. Khata No. 341 Khesra No. 763 through registered sale deed dated 26.10.1959 from their own earnings and after the said purchase, both the persons came in possession of the purchased land and by mutual consent they partitioned the land in between them by giving ridge. Thus, the case of the plaintiffs is that the suit land is the self-acquired property of their father, who was separate from his two other brothers at the time of the alleged purchase which took place on 26.10.1959 and since defendant no. 2 Ram Rakshi Devi, the widow of Ram Sewak Thakur, had no right, title and interest in the suit property as such, she had no right to execute the sale deed in favour defendant no. 1 which was executed on 30.12.1986. 2 Ram Rakshi Devi, the widow of Ram Sewak Thakur, had no right, title and interest in the suit property as such, she had no right to execute the sale deed in favour defendant no. 1 which was executed on 30.12.1986. As against this, the case of the defendants is that the plaintiffs father Ramchandra Thakur was joint with his two brothers and it is not true that they had separated prior to revisional survey and that is why after the death of Muneshwar Thakur, the suit land came in joint possession of the plaintiffs father and his two brothers and revisional survey khatian was also prepared in the names of all the three brothers showing half share to the branch of Muneshwar Thakur and half share to the branch of Guja Thakur. There is specific case of the defendant that the sons of Muneshwar Thakur separated in the year 1970-71. Thus, the specific case of the defendants is that the suit land is joint acquisition of the plaintiffs father and his two brothers and the same was purchased from the joint family fund. It appears that the trial court came to the conclusion that the suit land was the self-acquired property of the plaintiffs father and not the joint family acquisition. The trial court has discussed this point in paragraph 6 of his judgment and reasonings given for arriving at the conclusion are as follows: (1) Ext. 3 is the Ladavi deed which was executed by Jagarnath Thakur @ Nirsu Thakur in favour of the father of the plaintiffs on 21.12.1973 and according to this deed of Ladavi which was executed by no other person than the own brother of the plaintiffs father, all the three sons of Muneshwar Thakur had separated about 26-27 years ago i.e. in the year 1946-47. (2) The recital of the deed also discloses that the other two brothers of Ram Chandra Thakur had no concern with the suit land and the record of right as prepared during the revisional survey is wrong. According to the trial court, since this is the statement of one of the brothers of the plaintiffs father, as such this cannot be disbelieved. (3) Ram Sewak Thakur, the husband of defendant no. According to the trial court, since this is the statement of one of the brothers of the plaintiffs father, as such this cannot be disbelieved. (3) Ram Sewak Thakur, the husband of defendant no. 2, got started a proceeding under Section 144 of the Code of Criminal Procedure with respect to the disputed land against the father of the plaintiffs but he lost the proceeding and the said proceeding was decided in favour of Ramchandra Thakur, the father of the plaintiffs and he was found in possession of the suit land by the Court of the Executive Magistrate. (4) Ext. 4 is the sale deed in question executed by Pashupati Nath Mehta in favour of Ramchandra Thakur and Guja Thakur. The recital of the sale deed in question also does not disclose that the consideration money was paid by Ramchandra Thakur from the joint family fund. (5) The order of the Executive Magistrate passed in the proceeding under Section 144 Cr. RC. on 25.7.1976 (Ext. 5/A), the order of the Consolidation Officer, Runisaidpur and the certified copy of the order (Ext. 5) establish that the name of the plaintiffs father stands mutated in the record of right with respect to the suit land and there is no paper to show that the defendants paid the rent of the land to the State of Bihar. (6) There is no oral evidence on record to show that the joint family had sufficient nucleus with the help of which the property in question was acquired by the joint family. 10. From perusal of the judgment of the first appellate court it appears that the said finding of the trial court was reversed and for taking different view from the trial court, the appellate court has given the following reasonings: (1) At the time of execution of the sale deed, Ram Sewak Thakur, the husband of defendant no. 2, was minor and the eldest brother of the plaintiffs father, namely, Jagarnath Thakur alias Nirsu Thakur was residing at village Sarhachiyan, as such Ramchandra Thakur, the father of the plaintiffs was Karta of the joint family. (2) The evidence on record establishes that the partition amongst the three brothers took place about 1971-72 which falsifies the case of the plaintiffs that the partition had taken place before revisional survey. (2) The evidence on record establishes that the partition amongst the three brothers took place about 1971-72 which falsifies the case of the plaintiffs that the partition had taken place before revisional survey. The mother of Ramchandra Thakur, who was the very competent witness on the point of partition, was intentionally withheld and was not examined by the plaintiffs. The evidence of Ram Rakshi Devi, wife of Ram Sewak Thakur was trustworthy. (3) The Ladavi deed executed by Jagarnath Thakur alias Nirsu Thakur establishes that there were other properties in the family of the plaintiffs and the defendants forming nucleus. According to the appellate court, the above facts establish beyond doubt that the suit land was purchased from the joint family fund and it was not the self-acquired property of the plaintiffs father. 11. In order to come to the conclusion that the finding of the first appellate court is correct or not, it is essential to arrive at a finding as to whether at the time of purchase of the suit land through sale deed dated 26.10.1959 (Ext. 4), the father of the plaintiffs was joint with his two brothers or separate. According to the case of the plaintiffs, the plaintiffs father had separated from his two brothers much before the revisional survey and at the time of execution of the sale deed dated 26.10.1959 through which the suit land was purchased, the plaintiffs father was separate from his two brothers. As against this, the case of the defendants is that at the time of revisional survey, the father of the plaintiffs was joint with his two brothers. There is specific case of the defendants that at the time of execution of the sale deed dated 26.10.59 Ram Sewak Thakur, the husband of defendant no. 2, who was the youngest brother of the plaintiffs father was minor and as the eldest brother Jagarnath Thakur was residing at village Sarhachiyan at the house of his Fua as such, the plaintiffs father Ramchandra Thakur was the Karta of the joint family and he purchased the suit property from the joint family fund. 12. 2, who was the youngest brother of the plaintiffs father was minor and as the eldest brother Jagarnath Thakur was residing at village Sarhachiyan at the house of his Fua as such, the plaintiffs father Ramchandra Thakur was the Karta of the joint family and he purchased the suit property from the joint family fund. 12. It has been argued by the learned Advocate of the appellant that since the sale deed stands in the name of the plaintiffs father, as such the onus lies upon the defendants to establish that the suit property was purchased from the joint family fund and that the family had sufficient properties or income forming joint family nucleus. In this regard, the learned Advocate of the appellant has placed reliance upon the decision reported in AIR 1968 Supreme Court 1276 (C.Narayan Raju V/s. G. Chamaraju & Ors.). He referred following lines from para 3 of the said decision: "It is well established that there is no presumption under Hindu Law that business standing in the name of any member of the joint family is a joint family business even if that member is the manager of the joint family unless it could be shown that the business in the hands of the co-parceners grew up with the assistance of the joint family property or joint family funds." The learned Advocate of the appellant further placed reliance upon the decision reported in 1999(3) PUR Page 52 (Barhu Ram and Ors. V/s. Butai Ram & Anr.). He referred following lines from para-20 of the said decision which are as follows: "The general principle undoubtedly is that a Hindu family is presumed to be joint unless the contrary is proved. There is, however, no presumption that a Hindu family is also possessed of property. It is well settled that property acquired with the aid of joint family property is necessarily the joint family property, but the burden is on the party who alleges them to be an accretion to the ancestral property to establish nexus between the acquisition and the income of the ancestral property." 13. It is well settled that property acquired with the aid of joint family property is necessarily the joint family property, but the burden is on the party who alleges them to be an accretion to the ancestral property to establish nexus between the acquisition and the income of the ancestral property." 13. On the basis of the decisions cited above the learned Advocate of the appellant argued that the onus lies upon the defendants to prove that the suit property was the joint family property of plaintiffs father and his two brothers and that the joint family had sufficient property or income forming joint family nucleus. I have no hesitation to hold that since the sale deed stands in the name of the plaintiffs father but the averment of the defendants is that the land mentioned in the sale deed had been purchased from the joint family fund, as such the onus lies upon the defendants to prove that the suit property was purchased from joint family fund and that the joint family had sufficient property or income forming joint family nucleus. 14. Let me see whether the defendants-respondents could be able to discharge their onus successfully. In this regard, the most important factor is the age of the husband of defendant no. 2 Ram Sewak Thakur. In support of his age, school leaving certificate of Ram Sewak Thakur has been brought on record which is Ext. D which shows that in the school leaving certificate, his date of birth was recorded as "7.6.1943". If the authenticity of this document is believed then on 26.10.1959 the age of the husband of defendant no. 2, namely, Ram Sewak Thakur comes to about 16 years old and thus, from this document it is established thai on 26.10.1959 when the sale deed in question was executed the husband of defendant no. 2 was minor. It is admitted case of both the parties that the eldest brother of plaintiffs father, namely, Jagarnath Thakur had been residing at village Sarhachiyan at the house of his Fua and therefore, there appears no difficulty in drawing inference that the husband of defendant no. 2, who was minor at the time of execution of the sale deed in question, might be residing with Remchandra Thakur as a member of joint family under the guardianship of the said Ramchandra Thakur. 2, who was minor at the time of execution of the sale deed in question, might be residing with Remchandra Thakur as a member of joint family under the guardianship of the said Ramchandra Thakur. The oral evidence of D.W. 6 Ram Rakshi Devi, wife of Ram Sewak Thakur also establishes that at the time of purchase of the suit land, her husband was minor. According to her evidence, she was about 36 years old on 8th June, 1989 meaning thereby that in the year 1959 her age was only 6 years. According to her evidence, her marriage was performed in the year, 1964 which means that she was married at the age of 11 years. There is nothing on record to show that in comparison to her, her husband was much older. However, it is common factor that there remains a difference of 3-4 years of age between the bride and bridegroom, and therefore, if the age of the husband of defendant no. 2 is compared with the age of defendant no. 2 herself then in that case also the only conclusion will that at the time of purchase of the suit land, the husband of defendant no. 2 was not more than 16 years of age and, therefore, it is not believable that a minor boy was separate in mess and business in the year, 1959 when the suit land was purchased by the plaintiffs father Ramchandra Thakur. Therefore, the logical conclusion will be that at the time of purchase of suit land through sale deed dated 26.10.1959 the plaintiffs father was joint with his two brothers although the evidence shows that the eldest brother was residing at village Sarhachiyan. 15. On the point of joihtness of brothers of the plaintiffs father, Ext. E and Ext. F are also relevant. Ext. E is the raiyati purcha whereas Ext. F is the raiyati khatian which shows that plot no. 763 appertaining to Khata No. 341 measuring an area of 60 decimal was jointly recorded in the name of Guja Thakur alias Ramrup Thakur and all the three brothers of plaintiffs father, namely, Jagamath Thakur, Ramchandra Thakur and Ram Sewak Thakur. Ext. E is the raiyati purcha whereas Ext. F is the raiyati khatian which shows that plot no. 763 appertaining to Khata No. 341 measuring an area of 60 decimal was jointly recorded in the name of Guja Thakur alias Ramrup Thakur and all the three brothers of plaintiffs father, namely, Jagamath Thakur, Ramchandra Thakur and Ram Sewak Thakur. Admittedly, this document was prepared within the knowledge of the plaintiffs father Ramchandra Thakur when he was the sole authority of the family as his eldest brother had left the house and the youngest brother was not very much mature. So, it is difficult to believe that the entry regarding the jointness of the family on Ext.s E and F was wrong. I am, therefore, of the view that these documents also prove that at the time of purchase of the suit land, the plaintiffs father was joint with his two brothers and there is no reasonable ground to differ with the finding of the leanred first appellate court on this point. 16. It has been argued on behalf of the learned Advocate of the appellant that the learned first appellate court did not consider Ext. 3 and Ext. 5 of the plaintiffs due to which the first appellate court has arrived at incorrect finding. According to the submission of the learned Advocate of the appellant, Ext. 3 is Iadavi deed dated 21.12.73 executed by Jagamath Thakur alias Nirsu Thakur whereby the said Jagamath Thakur alias Nirsu Thakur, the eldest brother of the plaintiffs father, had admitted that the suit property was separately acquired by the plaintiffs father from his own income and he (Jagamath alias Nirsu Thakur) had no right, title and interest in the said property and so, he executed deed of Iadavi. The learned Advocate submitted that this document clearly establishes that the suit property was self-acquired property of the plaintiffs father. The learned Advocate further submitted that Ext. 5 which is order-sheet dated 29.3.1978 of the court of the Consolidation Officer, Runnisaidpur, Sitamarhi also establishes that in the consolidation proceeding the suit plot was recorded in the name of the plaintiffs father and no objection was raised from any quarter that the property was not the self-acquired property but the learned first appellate court did not correctly interpret these two documents and as such, the learned court below has arrived at the incorrect finding. It is true that Ext. 3 which is deed of Iadavi dated 21.12.73 executed by Jagamath Thakur alias Nirsu Thakur, the eldest brother of the plaintiffs father, shows that he had executed a deed of Iadavi in favour of the plaintiffs father with respect to the suit land and on that basis the name of the plaintiffs father was recorded with respect to the suit plot vide order dated 29.3.1978 (Ext. 5) but I am of the view that the view taken by the first appellate court that these documents cannot establish that the suit property was self-acquired property of the plaintiffs father is correct because of the fact that Ext. C dated 26.12.1973 which is also a ldavi deed executed by the plaintiffs father Ramchandra Thakur in favour Jagarnath Thakur alias Nirsu Thakur shows that in lieu of Ladavi deed dated 21.12.73 executed by Jagarnath Thakur in favour of Ramchandra Thakur, the said Ramchandra Thakur (plaintiffs father) executed a deed of ladavi in faviour of Jagarnath Thakur alias Nirsu Thakur relinquishing his claim with regard to other lands. This goes to establish that on the one hand Jagarnath Thakur relinquished his claim in respect of suit land whereas on some other land Ramchandra Thakur left his claim. All these things happened in the year 1973 meaning thereby that prior to execution of ladavi deeds, all the brothers of plaintiffs father had common interest in the property. According to the case of the defendants, the sons of Muneshwar Thakur separated in the year 1970-71 and this averment appears to be correct in view of the abovementioned ladavi deeds. Thus, all these facts establish beyond doubt that at the time of purchase of the suit property, all the three sons of Muneshwar Thakur, namely, Jagarnath Thakur alias Nirsu Thakur, Ramchandra Thakur and Ram Sewak Thakur were joint and as such, the natural inference will be that the suit property must have been purchased from the joint family fund. 17. The question is whether the joint family comprising all the three brothers of the plaintiffs father had nucleus to purchase the property. In my view, the answer is that both the ladavi deeds Exts. 17. The question is whether the joint family comprising all the three brothers of the plaintiffs father had nucleus to purchase the property. In my view, the answer is that both the ladavi deeds Exts. 3 and C establish that there were some other properties besides the suit property in the family and according to the finding of the first appellate court, these facts were sufficient to hold that there was nucleus to purchase the property. I am, therefore, of the view that the defendants have been able to discharge their onus to prove that there was sufficient nucleus in the joint family to purchase the suit property. Accordingly, I hold that the learned first appellate court has correctly interpreted Ext. 3, the ladavi deed and Ext. 5 the order passed by the Consolidation Officer and on the basis of scrutiny of other evidence, the learned first appellate court has rightly come to the conclusion that the suit property is the joint family property of all the three sons of Muneshwar Thakur. Since it is established that the suit property was purchased from the joint family fund, as such it is also established that the husband of defendant no. 2 had got 1/3rd share in the suit property but the evidence on record shows that one of the brothers, namely, Nirsu Thakur had left his claim, as such the suit land was divided half and half between plaintiffs father Ramchandra Thakur and the husband of defendant no. 2 Ram Sewak Thakur. This fact further finds corroboration from existence of ridge just in the middle of the suit land dividing the suit land half and half. Thus, I find no difficulty in holding that the husband of defendant no. 2 had half share in the suit property and, therefore, after his death the defendant no. 2 had every right to execute the sale deed in respect of half share of her husband. I, therefore, hold that the sale deed dated 30.12.1986 executed by defendant no. 2 in favour of defendant no. 1 is legal, valid, for consideration and binding upon the plaintiff. Accordingly, these points are decided. Substantial Question of Law No. (iii) 18. 2 had every right to execute the sale deed in respect of half share of her husband. I, therefore, hold that the sale deed dated 30.12.1986 executed by defendant no. 2 in favour of defendant no. 1 is legal, valid, for consideration and binding upon the plaintiff. Accordingly, these points are decided. Substantial Question of Law No. (iii) 18. It has been argued by the learned Advocate of the appellant that the learned first appellate court in order to decide the controversial points between the parties, had formulated four questions for determination in the appeal and one of the questions was whether the suit was not maintainable due to non-payment of ad valorem court fee. In this regard the finding of the learned first appellate court is that in view of the pleadings of both the parties the plaintiffs should have paid ad valorem court fee on the valuation of the land but since the plaintiffs have not paid ad valorem court fee on the actual valuation of suit land, as such the suit was not maintainable due to non-payement of ad valorem court fee. 19. The contention of the learned Advocate of the plaintiffs is that since the suit was of declaratory in nature, as such payment of ad valorem court fee was not at all required. It is settled principle of law that if the nature of the relief claimed is simply declaratory in nature then ad valorem court fee is not required to be paid on the actual valuation of the suit property. The pleadings as well as the reliefs prayed for by the plaintiffs establish that the plaintiffs suit is declaratory in nature and as such I hold that the plaintiffs were not required to pay ad valorem court fee. I, therefore, hold that the finding of the learned first appellate court on this point is erroneous and not in accordance with law and as such, the same is hereby set aside. Accordingly, this substantial question of law is decided. Substantial Question of Law No. (iv) 20. It has been argued by the learned Advocate of the appellant that the judgment of first appeal will show that while discussing point no. Accordingly, this substantial question of law is decided. Substantial Question of Law No. (iv) 20. It has been argued by the learned Advocate of the appellant that the judgment of first appeal will show that while discussing point no. (iii), the court held that as the consolidation proceeding was going on in village Balipad where suit property lies, as such the suit is barred under the provision of Section 4(1)C of the Bihar Consolidation of Holdings and Prevention of Fragmentation Act, 1956 (hereinafter referred to as the "Consolidation Act"). The submission of the learned Advocate of the appellant is that Section 4(1 )C of the Consolidation Act will not apply in this case as the defendants did not raise this point before the trial court and, therefore, it will be deemed that the defendants have waived this plea. But I cannot agree with the above argument of the learned Advocate of the appellant as there is settled law that even at appellate stage, the contesting party may take the plea that the appeal and consequently the suit is barred under the provision of Section 4(1 )C of the Consolidation Act and in this regard I place reliance upon the decisions reported in 2000(2) PUR Page 338 (Sheikh Haiderjan, petitioner V/s. Md. Yusuf Ansari & Ors. opposite party) and 1990 PUR Page 90 (Mosstt. Siya Kuer & Ors., petitioners V/s. Mosstt. Keshar Kuer & Ors., Opposite Party). Since the record shows that the consolidation proceeding was started in village Balipad where suit property lies and the same was going on during the pendency of suit as well as first appeal and still there is nothing to show that consolidation proceeding is over, I am of the view that the finding of the first appellate court that the suit is barred under the provisions of Section 4(1)C of the Consolidation Act is correct. Accordingly, the finding of the appellate court is upheld and substantial question of law no. (iv) is accordingly, answered. 21. In the result, I do not find any merit in the second appeal and as such, the same is hereby dismissed on contest with cost. The judgment and decree of the first appellate court is hereby confirmed.