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2010 DIGILAW 557 (JHR)

Balu Devi v. Krishnanand Mahto

2010-05-03

N.N.TIWARI

body2010
JUDGMENT N.N. Tiwari, J.- This Second Appeal is against the judgment and decree of learned Additional Judicial Commissioner, Fast Track Court No.-IV, Ranchi, whereby the defendant's appeal, which was allowed in the judgment and decree passed by learned Additional Munsif was modified. 2. The appellant was the plaintiff in Title Suit No. 40 of 1983. In the said suit, the plaintiff had prayed for a decree for confirmation of possession and/or in alternative, if the plaintiff is found dispossessed, for recovery of possession. He had also sought declaration that the registered deed of sale dated 16.3.1972 executed by Mostt. Bharti in favour of Krishnanand Mahto in respect of suit land is void and inoperative. 3. The plaintiff's case, in brief, was that the parties to the suit are Hindus, governed by Mitakshara School of Hindu Law. Suit land was originally owned, held and possessed by Puran Mahto-father of the plaintiff. His name was recorded in finally published Revisional Survey Records as "occupancy raiyat". Puran Mahto died soon after the Revisional Survey leaving behind four widows, namely, Most. Suraj, Most. Budhan (deceased mother of the plaintiff), Most. Alo (deceased) and Most. Bharti (defendant no. 2). The plaintiff isthe only daughter of Most. Budhan. After the death of Puran Mahto, his land and property was inherited by his four widows by way of survivorship. After death of Puran Mahto, all the four widows came in joint possession of the properties, including the suit land. The defendant no. 2 had instituted a suit for partition being Partition Suit No. 202 of 1946 claiming 1/4th share in the property. The suit was decreed declaring her 1/4th share in the preliminary decree. During pendency of the said suit, the defendant no. 1 got a registered sale deed dated 16.3.1972, executed by defendant no. 2 with respect to the suit land without any consideration and without legal necessity. The said sale deed was not operative and the same created no interest in favour of defendant no.1.The defendant no. 2 being co-widow of late Puran Mahto, had no right to alienate any part of the corpus of the property in favour of anyone. No right, title was transferred by virtue of the said sale deed and the same was wholly in-operative and void. The defendant no. 2 in collusion with defendant no. 2 being co-widow of late Puran Mahto, had no right to alienate any part of the corpus of the property in favour of anyone. No right, title was transferred by virtue of the said sale deed and the same was wholly in-operative and void. The defendant no. 2 in collusion with defendant no. 1 tried to get delivery of possession by levying Execution Case No. 28 of 1982 through defendant no. 2 in the garb of execution of the. decree in Partition Suit No. 202 of 1946. The defendant no. 2 having already parted with her interest by executing the sale deed in favour of defendant no. 1, has no right to execute final decree and defendant no. 1 is not entitled to get separate possession of the suit land. The plaintiff after the death of her mother-Budhan Devi in 1972, inherited the said land and came in possession of the same. Since the plaintiff is the only daughter of Puran Mahto, he inherited the entire land and interest of Puran Mahto and has sole and exclusive right over the land. She has been in continuous possession of the suit land. 4. The defendants contested the suit ad, inter alia, questioned the maintainability of the suit. It was contended that the suit is barred by limitation, adverse possession and ouster and the same is also barred by principle of estoppel and res judicata. The suit is also barred under Section 34 of the Specific Relief Act. The plaintiff is not in possession of the suit land and a bare declaratory suit is not maintainable. The defendant no. 2 had transferred her share in the suit land to defendant no. 1 by duly executed and registered sale deed dated 16.3.1972 for valuable consideration. The defendant no. 1 has been in possession of the suit land since thereafter. Defendant No. 2 was the absolute owner to the suit land and she had sold the land to meet her pressing needs. The defendant no. 2 had acquired 3/4th share in the suit property of late Puran Mahto. She was in possession of the suit land before she transferred the suit land in favour of defendant no. 1. After his purchase, final decree was prepared and the defendant no. 1 in execution of the final decree, got delivery of possession of the suit property. Since, thereafter, he is in exclusive possession of the same. She was in possession of the suit land before she transferred the suit land in favour of defendant no. 1. After his purchase, final decree was prepared and the defendant no. 1 in execution of the final decree, got delivery of possession of the suit property. Since, thereafter, he is in exclusive possession of the same. The plaintiff has no right, title beyond 1/4th share of her mother and he had no right to challenge the sale deed executed by defendant no. 2 in favour of defendant no. 1. She was never in possession of the suit land and she is not entitled to the relief, prayed for. 5. Both the parties adduced oral and' documentary evidences. The plaintiff examined as many as five witnesses and exhibited documents, which included rent receipts-Exhibit-1 series; certified copy of khatiyan-Exhibit-2 series; draft Parcha-Exhibits-3 and 3/1. The defendants also examined 11 witnesses and brought on record the sale deed-Exhibit-S; rent receipts-Exhibit-C series; order sheet of Execution Case No. 28/82-Exhibit-D; final decree-Exhibit-E; document of delivery of possession-Exhibit-F; order sheets of Partition Suit No. 202/46-Exhibits-G and G/1 and decree of .Partition Suit-Exhibit-H. 6. Learned trial court decreed the suit in favour of plaintiff. 7. The defendant preferred appeal against the said judgment and decree in the Court of Judicial Commissioner, Ranchi being Title Appeal No. 81 of 1993. The said appeal was finally heard and disposed of by learned Additional Judicial Commissioner, Fast Track Court No.-IV, Ranchi. 8. Learned appellate court had formulated three points for consideration: (I) Whether Most. Bharti (defendant no. 2) inherited the interest of Most. Budhan, Most. Suraj and Most. Alo or she is entitled to only 1/4th share from the land of late Puran Mahto? (II) Whether the appellant got valid right, title and interest on the basis of the sale deed executed by Most. Bharti on 16.3.1972? (III) Whether the judgment and decree passed by Sri G. Prasad, Additional Munsif, Ranchi requires any interference? . 9. Learned lower appellate court discussed the facts, evidence and law in detail and answered the points to conclude that the appellant-Krishnanand Mahto got valid right, title and interest only to the extent of 1/4th allotted to Most. Bharti by virtue of the sale deed executed by Most. Bharti dated 16.3.1972. The share of Most. Budhan, Most. Suraj and Most. 9. Learned lower appellate court discussed the facts, evidence and law in detail and answered the points to conclude that the appellant-Krishnanand Mahto got valid right, title and interest only to the extent of 1/4th allotted to Most. Bharti by virtue of the sale deed executed by Most. Bharti dated 16.3.1972. The share of Most. Budhan, Most. Suraj and Most. Alo being joint as per the Partition Suit No. 202 of 1946 and all of them died leaving Behind Balu Devi as their heir, she shall be entitled to inherit their share and remain in possession as legal heir and successor. Balu Devi being entitled to 3/4th share in the property left by her father-late Puran Mahto and Most. Bharti having got 1/4th share in Partition Suit No. 202 of 1946, the appellant-Krishnanand Mahto is entitled to the extent of her 1/4th share in the suit land transferred to him by virtue of sale deed dated 16.3.1972 by Most. Bharti. 10. Learned lower appellate court has modified the decree passed by learned Munsif in the said term. 11. The plaintiff-Balu Devi has challenged the judgment and decree of the appellate court, inter alia, that the Partition Suit No. 202 of 1946 claiming 1/4th share was .not maintainable. Most. Bharti being joint tenant with other co-widows was not entitled to seek partition of her share and the sale deed dated 16.3.1972 executed by Most. Bharti in favour of defendant-Krishnanand Mahto during pendency of final decree proceeding' was invalid and inoperative. The sale deed conveyed no right, title in favour of Krishnanand Mahto. The vendor having no right to transfer, the sale deed was void. Learned lower appellate court committed an error in upholding the sale deed and holding the same valid to the extent of 1/4th share of Most. Bharti. 12. Having considered the pleadings of the parties and materials on record as also the provision of law, I find no substance in the said grounds of the appellant. 13. Section 3 of the Hindu Women's Rights to Property Act, 1937, inter alia, conferred the right to the Hindu widows to claim partition as a male owner. Most. Bharti in view of the said provision of law was entitled to claim partition as a male owner. 13. Section 3 of the Hindu Women's Rights to Property Act, 1937, inter alia, conferred the right to the Hindu widows to claim partition as a male owner. Most. Bharti in view of the said provision of law was entitled to claim partition as a male owner. After coming into force of the provision of Hindu Succession Act, 1956, the limited right of widows/female Hindu in any property possessed by her whether acquired before or after commencement of the Act became her full and absolute right. By virtue of Section 14 of the said Act, a Hind female acquired full right of ownership over the land held by her. Accordingly, Most. Bharti was entitled to claim partition of 1/4th share in the year 1946 under the provisions of Section 3 of the Hindu Women's Rights to Property Act, •1937 and having got decree of 1/4th share, she acquired full title by virtue of Section 14 of the Hindu Succession Act, 1956. Most. Bharti had levied execution of the final decree in Execution Case No. 28/82 when she became absolute owner of the property of her 1/4th share allotted to her. The remaining 3/4th share of Most. Budhan, Most. Suraj and Most. Alo being joint as per the decree of Partition Suit No. 202 of 1946. All of them having been died leaving behind Balu Devi-the appellant, she became entitled to inherit remaining 3/4th share as their sole heir and successor. The respondent has been, thus, rightly held to be entitled to get the land by virtue of sale deed dated 16.3.1972 executed by Most. Bharti only to the extent of 1/4th share. 14. Learned appellate court, in view of the said position of law, has rightly modified of the judgment and decree of learned Additional Munsif, who had decreed the suit in favour of the plaintiff without taking into consideration the said position of law under which Most. Bharti was entitled to get only 1/4th share and was entitled to transfer the same as absolute owner in the year 1972. Sale deed dated 16.3.1972 in favour of the defendant-Krishnan and Mahto has been, thus, rightly held to be valid only to that extent. 15. In view of the above discussion, I find no ground made out giving rise to any substantial question of law in this second appeal. This appeal is, accordingly, dismissed.