Patna High Court - Orders
Santi Devi & Ors. vs Om Prakash Sah & Ors. on 9 February, 2012
Author: Vijayendra Nath
Bench: Vijayendra Nath
IN THE HIGH COURT OF JUDICATURE AT PATNA
Second Appeal No.68 of 2010
======================================================
Santi Devi & Ors.
.... .... Appellant/s
Versus
Om Prakash Sah & Ors.
.... .... Respondent/s
======================================================
Appearance :
For the Appellant/s : Mr. Pravin Kumar Gupta
Mr. Amerendra Nath Tiwary
For the Respondent/s : None
======================================================
CORAM: HONOURABLE MR. JUSTICE VIJAYENDRA NATH
ORAL ORDER
11 09-02-2012 Heard the learned counsel on behalf of the appellants. The defendants 1st set are the appellants in this second appeal against the judgment and decree of affirmance. The plaintiffs' suit was for declaration of their exclusive title over the suit property on the basis of gift deed executed by Dhaneshwari Devi in favour of the plaintiff no.1.The gift deed is dated 30-3-1963. The defendants 2 Patna High Court SA No.68 of 2010 (11) dt.09-02-2012 2/4 have not denied the validity of the gift deed, but have asserted that the gift deed was executed in pursuance to a family arrangement wherein Chhoharo Devi, wife of Budhan Sao, gifted some land to Dhaneshwari Devi and in return, Dhaneshwari Devi executed the gift deed in favour of the plaintiff no.1, who was then minor and as his father had become a saint and therefore the gift deed was executed in the name of the plaintiff no.1 The defendants further claimed that the gift was though in the name of the plaintiff no.1 but was for the benefit of the whole family and therefore the gifted property is not the exclusive property of the plaintiffs.
Both the courts below have decided the issues in favour of the plaintiffs and consequently the suit was decreed and the appeal was dismissed.
The learned counsel appearing on behalf of the appellants, in his own persuasive style, has firstly submitted that the earlier partition in the family in the year 1956 has not been considered by both the courts below, and further it has also not been considered that in view of that partition Dhaneshwari Devi could not have got individual right to execute the gift deed. It has been urged by the learned counsel that after the partition in the year 1956 there was further arrangement in which some lands were given to Dhaneshwari Devi through gift deed executed by 3 Patna High Court SA No.68 of 2010 (11) dt.09-02-2012 3/4 Chhoharo Devi , and Dhaneshwari Devi executed the gift deed in favour of the son of the defendant no.1( who is the plaintiff no.1). It has been further contended that in view of the earlier partition in the year 1956 whereby the property, subject matter of gift deed, was allotted to Dhaneshwari Devi, the suit property was the family property and not the self-acquired property of Dhaneshwari Devi and on this basis the learned counsel has argued that the plaintiff no.1 thus could not have acquired exclusive right over the property on the basis of the gift deed dated 30-3-1963.
After perusing the impugned judgments and considering the submissions of the learned counsel, it is pellucid that there is a gift deed dated 30-3-1963 in favour of the plaintiff no.1 which had been executed by Dhaneshwari Devi. In the gift deed the plaintiff no.1was put under the guardianship of his father as he was a minor then. The defendants' case that the property, subject matter of gift deed, was a joint family property, as disclosed from the deed of partition of the year 1956, is not sustainable simply because if that was the position ,there was no necessity for any further family arrangement giving some property to Dhaneshwari Devi and obtaining some other property in return from her. Moreover, both the courts below have also found that there is no reference to family arrangement in the gift deed in question and no such 4 Patna High Court SA No.68 of 2010 (11) dt.09-02-2012 4/4 reference could be pointed out even in the gift deed said to have been executed by Chhoharo Devi in favour of Dhaneshwari Dev. It does not appeal to reason as to why that important aspect which had the direct bearing on the rights of the parties had been omitted from the recitals of the two gift deeds.After elaborate consideration of evidence the courts below have come to the finding that the property, subject matter of the gift deed, was the exclusive property of Dhaneshwar Devi which she acquired through the funds provided by her father, who was a wealthy person and Dhaneshwar Devi was his only daughter. The findings recorded by both the courts below are based upon consideration of evidence and there is no perversity in the same. The issues arising in the suit between the parties are now concluded by the findings of fact by both the courts below.
There is no substantial question of law arising in this appeal for consideration which is, accordingly, dismissed.
(Vijayendra Nath, J) B.Roy/-