Patna High Court
Jagrano Kunwar & Ors vs Smt.Nirmala Devi & Ors on 10 February, 2011
Author: Mungeshwar Sahoo
Bench: Mungeshwar Sahoo
FIRST APPEAL No. 101 OF 2007
Against the Judgment and Decree dated 24.02.2007 passed by Sri Nagendra
Prasad Tripathi, 1st Sub-Judge, Buxar in Title Suit No.58 of 1989.
JAGRANO KUNWAR & ORS .......... Defendants/Appellants
Versus
SMT.NIRMALA DEVI & ORS ......... Plaintiffs/Respondents
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For the Appellant : Mr. Surendra Kumar Singh, Sr. Advocate
Mr. Praveen Prakash, Advocate with him.
For the Respondent : Mr. Binod Kumar Singh, Advocate
No.1 to 6
Dated : 10thday of February, 2011
PRESENT
THE HON'BLE MR. JUSTICE MUNGESHWAR SAHOO
JUDGMENT
Mungeshwar
1. The defendants have filed this First Appeal against the Judgment and
Sahoo, J.
Decree dated 24.02.2007 passed by Sri Nagendra Prasad Tripathi, the learned Sub- Judge, Buxar in Title Suit No.58 of 1989 decreeing the plaintiff's suit.
2. Mostt. Indrasna Kunwar filed the aforesaid suit for declaration that the two gift deed dated 27.01.1955 executed by her mother, Fulbaso Kunwar in favour of her (Indrasna Kunwar) and her son, Ramendra Krishna Singh with respect to Schedule 1 land of the plaint and 21 sale deeds executed by the defendant-appellant, Mostt. Jagrano Kunwar in favour of defendant Nos.2 to 11 with respect to Schedule 2 land of the plaint are fraudulent without any right title and null and void. The plaintiff also sought relief for permanent injunction. It may be mentioned here that during 2 pendency of the suit, the original plaintiff died and she was substituted by her legal representatives.
3. The plaintiffs claimed the aforesaid relief on facts inter alia that the disputed land belonged to Ram Ratan Singh who had a son Nathuni Singh and a daughter, Indrasna Kunwar (the original plaintiff). Indrasna Kunwar had 4 daughters and one son, namely, Rajwanshi Devi, Lalmuni Devi, Nirmala Devi, Ramla Devi and Ramendra Krishna Singh. The owner Ram Ratan Singh died in the year 1953 leaving behind his widow, Mostt. Fulbaso Kunwar and son Nathuni Singh. The husband of the plaintiff, namely, Brij Bihari Singh was looking after Fulbaso Kunwar and her entire affairs. Brij Bihari Singh was a cunning man and exercising undue influence procure two deeds of gifts in favour of his wife, Indrasna Kunwar, i.e., plaintiff and his son Ramendra Krishna Singh on 27.01.1955. Mostt. Fulbaso Kunwar had no right to execute any deed of gift. Mostt. Fulbaso Kunwar died in the year 1958 leaving behind her son, Nathuni Singh and her daughter, Indrasna Kunwar. Ramendra Krishna Singh also died after gift in the year 1955-56 leaving behind Jagrano Kunwar, the defendant-appellant No.1. On the death of Ram Ratan Singh in the year 1953, Fulbaso Kunwar and Nathuni Singh inherited half and half and on the death of Fulbaso Kunwar in the year 1958, her half share devolved on the plaintiff and the other half share devolved on Nathuni Singh. Therefore, the plaintiff inherited 1/4th share and Nathuni Singh became the owner of 3/4th share. Nathuni Singh died unmarried in the year 1968 leaving behind the plaintiff alone who became the absolute owner of the entire property.
4. The further case is that Mostt. Fulbaso Kunwar had no right to execute deeds of gift in favour of plaintiff and plaintiff's son in the year 1955, therefore, on the death of her son, Ramendra Krishna Singh, the defendant No.1, Jagrano Kunwar did not acquire any title or interest in the disputed land but without any right title 3 and interest and without taking permission of the consolidation authority, Jagrano Kunwar executed and registered 21 sale deeds on 12.05.1989 in favour of defendant Nos.2 to 11 and, therefore, the sale deeds are illegal, null and void.
5. On being noticed, the defendants filed contesting written statement. According to the defendants, their main defence is that suit is hopelessly barred by law of limitation. The execution of gift deed by Fulbaso Kunwar was because of undue influence by Brij Bihari Singh is denied. Fulbaso Kunwar was pleased with the service of plaintiff and her son Ramendra Krishna Singh gifted her entire property to them and the plaintiff and her son accepted the gift and came in possession thereof. With the consent of the plaintiff, Mostt. Fulbaso Kunwar executed the two gift deeds on 27.01.1955 without any favour or influence of any body. After coming into possession, the plaintiff started transferring her gifted land accepting the gift as valid and genuine and after the death of Ramendra Krishna Singh, his wife Jagrano Kunwar came in possession of the property of her husband. During life time of Ramendra Krishna Singh, there was mutual partition and half share came in possession of Ramendra Krishna Singh who died in the state of separation from his mother. After death of Ramendra Krishna Singh, Jagrano Kunwar came in possession and her possession has been accepted by the plaintiff, Indrasna Kunwar in land ceiling case No.5 of 1973. During consolidation operation, the name of Jagano Kunwar was also entered in the consolidation record of right. The defendant No. 2 to 11 have purchased the land from Jagrano Kunwar for valuable consideration and have been coming in possession. The sale deeds are valid, genuine and operative.
6. On the basis of the above pleadings of the parties, the learned Court below framed 7 issues as follows :
(I) Is the suit as framed maintainable?
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(II) Have the plaintiffs got valid cause of action for the suit?
(III) Is the suit barred by law of limitation?
(IV) Whether two deeds of gift dt.27.01.1955 purported to have been executed
by Most. Fulbaso Kunwar in favour of Dulhin Indrasna Devi and Ramendra Krishna Singh with respect to schedule 1 land of the plaint fraudulent without any right title and void ab initio?
(V) Whether 21 sale deeds dt.12.05.89 and 23.09.89 executed by the defendant No.1 in favour of defendant No.2 to 11 in respect of schedule 2 land of the plaint are null and void and without any right?
(VI) Whether plaintiffs are entitled for a decree as sought for? (VII) To what other relief or releifs the plaintiffs are entitled?
7. After trial, the learned Court below while deciding Issue No.4 came to the conclusion that Fulbaso Kunwar had no right to execute the gift deeds which are without any authority in law and as such are avoid ab initio, conferring no title on the donee and, therefore, the learned Court blow held that two deeds of gift dated 27.01.1955 executed by Mostt. Fulbaso Kunwar in favour of dulhane Indrasna Devi and Ramendra Krishna Singh with respect to land are without right, tile and avoid abinitio vide paragraph 12 of the impugned Judgment. The learned Court below also held that the 21 sale deeds executed by defendant No.1 in favour of defendant No.2 to 11 in respect of Schedule 2 land of the plaintiff are null and void and without right vide paragraph 13. The learned Court below also while deciding Issue No.3 came to the conclusion that the suit is not barred by law of limitation vide paragraph 15 and, therefore, decreed the plaintiff's suit.
8. The learned senior counsel, Mr. Surendra Kumar Singh appearing on behalf of the appellant submitted that the learned Court below has wrongly held that two gift deed dated 27.01.1955 are void document. According to the learned counsel, the gift was made by Fulbaso Kunwar who was limited owner with the consent of the plaintiff who is the reversioner and, therefore, it was never void rather it was voidable. The plaintiff could have instituted a suit to avoid the said transaction within 3 years but instead of avoiding the gift deeds, she started 5 transferring the lands to strangers and thereby she accepted the gift deed executed by Fulbaso Kunwar in favour of plaintiff and her son to be valid documents and conferred title on her. The learned counsel further submitted that moreover since the gift was made in her favour, there was implied consent of the plaintiff and because of subsequent transfer made by her consent is inferred. In any view of the matter, the gift deed with the consent of the reversioner is binding on reversioner.
9. The learned counsel further submitted that the learned Court below has wrongly interpreted the legal position mentioned in article 174, 176, 181, 183 of Hindu Law by Mulla. The learned counsel further submitted that alienation made by widow on her husband's property without legal necessity is not altogether avoid but only voidable by the next reversioner. The reversioner may affirm or she may treat it a nullity. According to the learned counsel, had the plaintiff treated it as a nullity, she could have filed the suit but in this case, she elected to affirm it and therefore, in furtherance thereof, she executed sale deed dated 09.06.1965 in favour of Shivwachan Chaudhary and Ramwachan Chaudhary and Shivpujan Chaudhary and, therefore, after 34 years, she cannot be allowed to challenge the gift deed saying that it is a void document. The learned counsel further submitted that the plaintiff cannot be allowed to approbate and re-probate because the plaintiff while executing the sale deed on 09.06.1965 accepted the gift deeds to be valid, genuine and obtained advantage. Subsequently, she filed the suit challenging the said gift deed for the purpose of securing other advantages.
10. The learned counsel for the appellant further submitted that on the death of Ram Ratan Singh in the year 1953, the property was inherited by her widow, Mostt. Fulbaso Kunwar and she gifted the property to her daughter, the plaintiff because her son, Nathuni Singh was a lunatic. He has been described as Khaptul Hawas in the gift deed of 1955. This statement is made by Fulbaso Kunwar who is 6 dead and, therefore, the statement made by deed person was admissible in evidence. According to the learned counsel, it is not the plaintiff's case that she was not insane or lunatic. The learned counsel further submitted that the case of plaintiff is that Nathuni Singh inherited 1/2nd share on the death of his father. Even if this plea is accepted then also the plaintiff has got no case because his share was gifted by his mother in the year 1955 and, therefore, it was Nathuni Singh who could have challenged the gift deed within maximum period of 12 years but he did not challenge and died admittedly in the year 1968. The plaintiff also thereafter for more than 12 years did not challenge the gift deed after the death of Nathuni Singh. Therefore, the suit was hopelessly barred by law of limitation but the learned Court below wrongly held that the gift is void ab initio.
11. So far the 21 sale deeds are concerned, the learned counsel submitted that the consolidation proceeding started in the year 1973 and was concluded in the year 1978. Records of right were prepared and only formal de-notification was to be made and, therefore, the learned D.M. by Ext.-C/1 has rightly held that in the year 1978 itself, the new records of rights were prepared and has been distributed to the raiyats and there was only a formal pronouncement of de-notification remained to be made for a long period and, therefore in such case, it was not proper to ban the transfer and moreover the de-notification has been made in the year 1990 and the said objection is not existing today. On these grounds, the learned counsel submitted that the impugned Judgment and Decree are liable to be set aside and the plaintiff suit is liable to be dismissed.
12. Mr. Binod Kumar Singh appearing on behalf of the respondent submitted that the plaintiff was never the reversioner because she was absolute owner after the death of Nathuni Singh and, therefore, the law of reversioner is not applicable. According to the learned counsel she is heir of Nathuni Singh and, therefore, she can 7 challenge the gift made by Fulbaso Kunwar regarding the property of Nathuni Singh. The learned counsel submitted that the learned Court below has rightly held that the gift deed executed by Mostt. Fulbaso is void document. The learned counsel further submitted that because Mostt. Fulbaso has no right title to gift the property of Nathuni Singh in gift and, therefore, the gift deed was void and it was not necessary for the plaintiff to institute suit for declaration that the gift deed was void. In any subsequent proceeding or suit, it can be shown that the gift deeds are void document. The learned counsel further submitted that it cannot be said that the alienation in the shape of gift by Mostt. Fulbaso Kunwar was for legal necessity. If it is proved that the said alienation was without legal necessity then it will be a void document. The plaintiff being the heir has been able to prove that the gift deed were executed without legal necessity and, therefore, the learned Court below has rightly held that the gift was void.
13. The learned counsel further submitted that the 21 sale deeds executed by Jagrano Kunwar are also void because no permission was obtained from the consolidation authorities. The D.M. has wrongly held that it is not void. On these grounds, the learned counsel for the respondent submitted that the First Appeal is liable to be dismissed with cost.
14. In view of the above rival contentions of the parties, the points arises for consideration in this Appeal are :
(i) Whether the gift deed of the year 1955 executed by Mostt. Fulbaso Kunwar are void ab initio and whether the plaintiff's suit challenging these gift deeds in the year 1989 is maintainable or barred by law of limitation?
(ii) Whether the sale deeds executed by Jagrano Kunwar, appellant No.1, in favour of other appellants, i.e., 21 sale deeds are void sale deeds and whether the impugned Judgment and Decree are sustainable in the eye of law?8
15. In this case, it is admitted fact that Ram Ratan Singh died in 1953. Fulbaso Kunwar died in 1958. Nathuni Singh died in 1968 and Ramendra Krishna died in 1956. The gift deeds have been produced in this case and they are marked as Ext.11 and 11/A. Those gift deeds have been executed by Mostt. Fulbaso Kunwar for self and guardian of Nathuni Singh describing Nathuni Singh as Khaptul Hawas. The literal meaning of Khaptul Hawas is insane/lunatic. According to the plaint, nowhere it is mentioned as to whether Nathuni Singh was insane or not. There is no case made out in the plaint that he became insane only after death of his father. From perusal of the gift deed as stated above, he has been described as Khaptul Hawas on 27.01.1955. Therefore, the presumption under the law is that fact which is proved to exist on a particular date will be presumed to continue till the contrary is proved and this presumption is backward and forward both. Now, therefore, it is for the plaintiff to prove that earlier prior to death of Ram Ratan Singh, Nathuni Singh was not insane and he became insane or lunatic only after the death of his father. Unless the plaintiff proved this fact by pleading and adducing cogent evidence, the presumption will be against the plaintiff.
16. Now, let us consider the case of the plaintiff and also the statement made in the gift regarding lunatic of Nathuni Singh. According to the plaintiff on the death of Ram Ratan Singh, Nathuni Singh and Fulbaso Kunwar inherited half and half property of Ram Ratan Singh. If the plaintiff's case is believed that Nathuni was not insane then after gift made by Phulbaso, it was Nathuni who could have challenged the said gift deed during his lifetime because he died in the year 1968 and this fact is admitted. Admittedly, Nathuni Singh did not challenge the gift made by Fulbaso Kunwar regarding his share and thereby he consented the gift, i.e., alienation of his property by his mother. On the contrary, the defendant's case is that on the death of Ram Ratan Singh, his widow Fulbaso Kunwar inherited entire property which is inconsonance with the statement made in the gift deed. The learned Court below 9 has disbelieved the statement only on the ground that this gift deed is under challenge. In my opinion, this is wrong approach. The further fact is that after death of Nathuni Singh in the year 1968 also, the plaintiff did not challenge the gift deed for more than 12 years. Therefore, the question is whether the plaintiff being the reversioner could have filed the suit challenging the gift deed of the year 1955 after lapse of 34 years. Now, if it is considered as has been mentioned in gift deed that Nathuni Singh was a lunatic then there is no pleading that he was not insane prior to death of his father. In such circumstances, he will not inherit the property of his father and the entire property will go to Mostt. Fulbaso Kunwar and Mostt. Fulbaso had executed the gift deed in favour plaintiff herself and, therefore, it cannot be said or the plaintiff cannot be allowed to say that the gift was made without her consent. Even if it is considered that Nathuni was not lunatic from his birth and became lunatic only after death of his father then also on the date of execution of the gift deed, he was lunatic and, therefore, his property was alienated by way of gift by his mother on his behalf. This alienation was made in the year 1955 and, therefore, the plaintiff could have brought the suit within period of limitation challenging the gift as she was the reversioner.
17. Therefore, to sum up the matter, it can be said that there may be 3 situations - (I) That Nathuni Singh was of sound mind (II) Nathuni Singh became unsound / lunatic after death of his father. In other words, he was not lunatic from birth and (III) he was lunatic from birth. We have discussed above all these 3 situations. Now, let us consider whether the alienation by way of gift is void or viodable. The learned counsel for the respondent submitted that plaintiff is not the reversioner. So far this objection is concerned, it is relevant to quote Clause-I of article 175 of the Hindu Law by Mulla 20th Edition page 277 :
"175 (1) the heirs of the last full owner who would be entitled to succeed to the estate of such owner on the death of a widow or other 10 limited heir, if they be then living, are call „reversioner‟. A reversioner may be male or female."
18. In view of the above principles of Hindu Law in this case, the plaintiff who is heir of Ram Ratan Singh would be entitled to succeed to his estate on the death of Fulbaso Kunwar the widow of Ram Ratan Singh. Therefore, she is a reversioner. It is admitted by the plaintiff that it was the property of Ram Ratan Singh and, therefore on his death, Nathuni Singh and Fulbaso Kunwar inherited half and half and, therefore, the respondents now cannot be allowed to say that it was joint family property or coparcenary property.
19. In A.I.R. 1927 Privy Council 227 Ramgowda Annagowda Patil Vs. Bhau Saheb, the Privy Council has held that it is settled law that an alienation by a widow in excess of her powers is not altogether void but only voidable by the reversioner. In a Full Bench decision of this Court, i.e., A.I.R. 1958 Patna 581 Harak Singh Vs. Kailash Singh, it has been held that an alienation in excess of her powers is however not void but voidable in the sense that it is open to the reversioner to elect to abide by the alienation when the estate falls into their possession either by express ratification or by acts done by him which treat the alienation as valid and binding. It has also been held that if the alienation is not supported by legal necessity, the transaction is not void but it is only voidable. Such an alienation by the widow can be avoided only at the instance of a co-widow or at the instance of reversioner or at the instance of those who are entitled to the property by escheat.
20. In I.L.R. 1955 Patna 317(Munga Kuer Vrs. Domari Tewari (D.B.), it has been held that it is now settled that a consenting reversioner will be debarred from challenging the binding effect of the alienation at least so far as he or she is concerned. In the present case at our hand obviously the gift was made in favour of 11 the plaintiff and she kept mum which impliedly means that she gave consent and, therefore, she is no precluded from challenging the transfer. If the actual reversioner was a different person, he could have challenged the transfer on the ground that he would have not be bound by the consent expressed by a person who had nothing but a chance of succession at that time.
21. So far consent of the plaintiff is concerned, it may be mentioned here that an interlocutory application No.2064 of 2010 has been filed on behalf of the appellant praying therein to permit to adduce additional evidence, i.e., to produce certified copy of sale deed dated 09.06.1965 executed by the plaintiff, Indrasna Kunwar. Regarding this interlocutory application, it was directed that it will be heard at the time of hearing of the appeal itself and the appeal was fixed for hearing. I have heard the parties at length on this application also. It appears that the appellant during the pendency of the suit itself filed the aforesaid certified copy of the sale deed along with a petition on 04.06.2002 for its acceptance as additional evidence but it was rejected by the Court below on the ground of delay on 31.07.2002. It was observed that the case is at hearing stage. Then, appellant filed review petition which was again rejected on 16.09.2002. While rejecting the said application, the learned Court below found that the recital of the deed shows its relevancy with the suit. However, the Court below held that since it is certified copy of the sale deed dated 09.06.1965, it does not bear the signature of or L.T.I. of Indrasna Kunwar. The learned Court below further observed that the appellant may raise this question after filing original sale deed. The appellant thereafter on 25.09.2002, apprised the Court below that the person who is in custody of the original sale deed refused to give the same but the learned Court below on 12.10.2009 rejected the said prayer. It appears that the civil revision application was filed before this Court being civil revision No.299 of 2003 which was dismissed for default. The learned counsel for the appellant submitted that this is a clear case 12 under Order 41 Rule 27 (A) and (B) C.P.C. According to the learned counsel, this document is essential for just decision of the controversy between the parties and, therefore, it ought to have been admitted by the learned Court below but it was rejected on the ground that it was filed at the hearing stage in the year 2002. However, the Judgment has been pronounced in 2007.
22. The learned for the respondent vehemently opposed this prayer and submitted that the sale deed was produced before the Court below after the death of the plaintiff. And, therefore, the legal representative are not in a position to deny or affirm the execution made by plaintiff.
23. From perusal of this sale deed, it appears that the same has been executed by Indrasna Kunwar on 09.06.1965 in favour of 3 persons, Shivwachan Chaudhary and Ors. Certified copy was produced before the Court below. According to Section 77 of the Indian Evidence Act, certified copy may be produced in proof of the contents of the public documents and according to Section 79 of the Indian Evidence Act, the Court shall presume to be genuine every document purportedly to be a certified copy. Therefore, the genuineness of the certified copy produced by the appellant was to be presumed. The learned Court below observed that the sale deed is very much relevant for the suit but rejected on the ground of delay saying that it has been filed at the stage of hearing. It was rejected in 2002 and the suit has been disposed of after 5 years in 2007. Therefore, in my opinion, this ground for rejection is not tenable. The other ground is that it is certified copy and, therefore, the signature of L.T.I. is absent. As stated above presumption of genuineness is in favour of the certified copy. The appellants produced this sale deed to show that Indrasan Kunwar, the original plaintiff sold the property to 3 persons named in the sale deed in the year 1965 during the life time of Nathuni Singh saying that she derived title on the basis of gift deed executed by Fulbaso Kunwar dated 27.01.1955. 13
24. In view of the above discussion of the facts and circumstances of the case, in my opinion, the learned Court below ought to have admitted the certified copy in evidence and moreover it was observed by the learned Court himself that the document was very much relevant for the suit. I also find that this document is required to be produced for substantial justice. I, therefore, allow the interlocutory application and admit this certified copy as an additional evidence on behalf of the defendant appellant which is being marked as Ext. 'E'.
25. As stated above this Ext. 'E', the sale deed executed by Indrasna Kunwar, the original plaintiff clearly proves the fact that the gift deed was acted upon and the original plaintiff accepted the gift as it is clearly mentioned in the sale deed that she derived title through gift deed executed by Fulbaso Kunwar. This sale deed is of the year 1965, i.e., during the lifetime of Nathuni Singh. It is not the case of the plaintiff-respondent that they are in possession of the lands sold by Fulbaso Kunwar by this sale deed of the year 1965. Therefore, the consent of the plaintiff who is reversion is now well proved.
26. According to article 183 (4) of the principles of Hindu Law by Mulla 20th Edition, a gift by a widow or other limited heir of the whole or any part of the estate inherited by her to a 3rd person, i.e., (person other than the next reversioner) is not binding on the actual reversioner but if the gift is made in favour of the reversioner, it will certainly bind the reversion. Article 178 (3) of the Hindu Law speaks that the alienation made by a widow or other limited heir of the corpus of immovable property would raise a presumption that the transaction was a proper one if there was consent of the next reversioner to the alienation. In the present case the gift was made for the entire estate by the limited owner in favour of the reversioner, i.e., the plaintiff and plaintiff's son and, therefore according to article 197 of the Hindu Law by Mulla, it will amount to surrender and, therefore, it is good on that ground. 14
27. From above fact, it appears that at one place accepting the gift of the year 1955 to be valid and legal the plaintiff who is reversion executed Ext.'E', the sale deed in the year 1965 and thereby she derived benefit. The suit has been filed in the year 1989 challenging the said gift deed. In a decision reported in A.I.R. 1993 (S.C.) 352 R. N. Gosai Vs. Yaspal Dhir, the Hon'ble Supreme Court at paragraph 10 has held that law does not permit a person to both approbate and reprobate. This principal is based on the doctrine of election which postulates that no party can accept and reject the same instrument and that "a person cannot say at one time that a transaction is valid and thereby obtain some advantage to which he could only be entitled on the footing that it is valid and then turn round and say it is void for the purpose of securing some other advantage.
28. For better understanding, the legal position article 184, 190, 191 and article 206 of the principle of Hindu Law Mulla 20th Edition is quoted hereunder :
"184. EFFECT OF ALIENATION MADE FOR LEGAL NECESSITY OR WITH COSENT OF NEXT REVERSIONER Alienation made by a widow or other limited heir of property inherited by her for justifying necessity, or with the consent of the next reversioners as stated in article 183, passes an absolute estate in the property to the alienee. It is not only binding on her, but also on the reversioners, including reversioners subsequently born or adopted."
"190. ESTOPPEL : ELECTION BY REVERSIONER (1) An alienation by a widow of her husband‟s estate without legal necessity or an invalid surrender is not altogether void, but only voidable by the next reversioner. He may affirm it, or he may treat it as a nullity (article 185). If he elects to affirm it, he will be precluded from exercising his right to avoid it and from questioning the transaction. The election may be made after the reversion has fallen into possession, or even before.
(2) The above rule applies not only to male, but also to female reversioners."
"191. ALIENATION MADE BY WIDOW WITH CONSENT OF REVERSIONER, WHETHER BINDING ON HIM AND ACTUAL REVERSIIONER (1) A reversioner, whether a male or female, who consents to an alienation by a widow or other limited heir made without legal 15 necessity, or to an invalid surrender, and transferees from him, are precluded from disputing the validity of the alienation, though he may have received no consideration for his consent. It is immaterial that the alienation is by way of gift .
However, if the actual reversioner at the widow‟s death be a different person, he is not precluded from questioning the alienation, though even as regards him, the alienation will stand good unless he proves that the transaction was one without legal necessity.(article 183 (1) The actual reversioner, even if he were the son of the consenting reversioner, is not bound by his father‟s consent, unless the consent was even for a consideration and the son enjoyed the benefit of it.
(2) A reversioner who takes from a widow a mortgage of the alienated property is not on that ground precluded from questioning the alienation on the widow‟s death."
29. From above principals, a suit by reversioner for a declaration that alienation made by widow is void except for her life must be brought within 12 years from the date of alienation according to article 125 of the Limitation Act corresponding to article 108 of the new Limitation Act 1963. In the present case, the plaintiff filed the suit on 10.09.1989 after 34 years of the gift deed. We have discussed regarding the consent of the plaintiff in execution of the gift deeds which is evidence by the sale deed dated 09.06.1965 executed by her in favour of Shivwachan Chaudhary, Ramwachan Chaudhary, Shivpujan Chaudhary. Therefore, in view of article 184, 190, 191 of the Hindu Law as quoted above and the decisions referred to above, the plaintiff is precluded from avoiding it. She did not challenge the gift deed within the stipulated period and, thereby she elected to abide by the transaction and also derived benefit from the said transaction.
30. The learned Court below has not considered all these settled principles of Hindu Law and the decisions of the Hon'ble Supreme Court as well as of this Court and other High Courts and wrongly held that the gift deed of the year 1955 Ext.1 and 11/A are void ab initio and that the suit is not barred by law of limitation.
31. The learned counsel or the respondent submitted that the gift deeds were obtained by husband of the plaintiff by putting pressure on Fulbaso Kunwar. So far 16 this submission is concerned it has got no meaning at this stage because if the said fact was true then the plaintiff would have challenged the execution of gift deed within stipulated period. No steps were taken by the plaintiff to avoid the gift deed on this ground earlier rather instead of avoiding deed she herself derived benefit by transferring the properties. For the first time in the year 1989, this ground has been taken in the suit after 34 years.
32. In view of my above discussion, I find that the gift deed Ext. 11 and11/A dated 27.01.1955 executed by Fulbasoi Kunwar in favour of plaintiff and plaintiff son were voidable documents and the plaintiff being the reversioner could have challenged the same within the period provided under the Limitation Act but she instead of challenging the same elected to confirm it. I further find that the gift deed were executed by Fulbaso Kunwar with consent of the plaintiff Indrasana Kunwar. The finding of the learned Court below on these points are, therefore, reversed and it is held that so far gift deeds are concerned, the suit is barred by law of limitation and, therefore, not maintainable. Thus Point NO.1 is answered in favour of the appellant.
33. Point No.2. The learned counsel for the respondent submitted that the 21 sale deeds executed by Jagrano Kunwar are void because no permission from the authority under the Consolidation Act was taken. So far this submission is concerned also, I do not agree with the learned counsel because it has been held above that the gift deeds are valid deeds and the plaintiff are precluded from challenging the same. Now, therefore, the plaintiff and her son became owner of entire property of Ram Ratan Singh to the extent of half and half on the basis of gift and them came in joint possession. When Jagrano Kunwar sold the property in 1989, the plaintiff filed application for declaring the sale deed as void before the Consolidation authorities. By Ext.C/1, i.e., dated 18.08.1992, the D.M. Buxar held that the 21 sale deeds have 17 been executed in 1989 and the consolidation proceedings had already concluded in the year 1978. The records of rights have already been distributed to the land owners. Only formal notification is to be issued de-notifying the area. Therefore, the D.M. refused to declare the sale deeds as void. Against the said order of the D.M., a writ application was filed before this Court being C.W.J.C. No.13116 of 1992 by plaintiff-respondent which was dismissed on 08.08.1995 and, therefore, order of the D.M. has become now final. The learned counsel for the respondent relied upon a Full Bench decision of this Court reported in A.I.R.2010 Patna 143 Panna Devi Vs. State of Bihar and submitted that the sale deeds are void. From perusal of the Full Bench decision, it appears that the Full Bench has held that transfer of any land contrary to the provisions of the Act shall be void. So far this principle is concerned, there is no dispute but in the present case as has been held by the D.M. Buxar the consolidation proceeding had already been finished and record of rights have already been distributed within land owners. The question is whether the bar will operate thereafter also? Because of the dismissal of the writ application, the said order of the D.M. has now become final and only on this technical ground, it cannot be held that the sale deeds are void sale deeds.
34. The other aspect of the matter is that I have held above that the plaintiff and her son derived title through gift deeds and, therefore, on the death of Ramendra Krishna Singh in the year 1956, his widow Jagrano Kunwar became the owner of half gifted property and came in joint possession. By executing the sale deeds, she transferred her lands and, therefore, it is between the defendant No.1 and defendant No.2 to 11. Even if it is held that the sale deeds are void then also the land will not go to the plaintiff because Jagrano Kunwar is the appellant No.1 in this First Appeal and it will go to her. So far land of Jagrano Kunwar is concerned, the plaintiff has no locustandi to institute the suit because she has no title or interest with regard to the share of Jagrano Kunwar.
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35. The learned counsel for the respondent submitted that Jagrano Kunwar never came in possession and only the plaintiff was in possession and, therefore, the purchasers never came in possession. So far this question is concerned, it may be mentioned here that on the death of Ramendra Krishna Singh, Jagrano Kunwar with the plaintiff became the co-sharer and, therefore, possession of plaintiff will be deemed to be the possession of Jagrano also. So far the share of Jagrano Kunwar is concerned, it is not disputed. The learned counsel or the respondent further submitted that Jagrano Kunwar has executed more than her share and, therefore, the sale deeds are void and further without partition she could not have sold the property. So far this submission is concerned also, it may be mentioned here that there is no such pleading in the plaint as to what was the extent of entire property and what was the share of Jagrano Kunwar and what is the excess share. If there had been no partition between Jagrano Kunwar and Fulbaso Kunwar then it can at best be said that the purchaser will have a right to file partition suit but on that ground it cannot be said that the sale deeds are void.
36. From perusal of Ext/C which is order passed by the D.C.L.R. in ceiling case, it appears that one unit has been allowed to Jagrano Kunwar, the widow of Ramendra Krishna Singh.
37. The learned counsel for the respondent to prove exclusive possession of plaintiff placed the documentary evidences, i.e., the rent receipts Ext/2 series, rent receipts Ext.5 series and certified copies of khatiyan Ext.6 series. So far the submission that plaintiff was in exclusive possession is concerned as stated above since Jagrano Kunwar was co-sharer the possession of plaintiff will be possession of Jagrano Kunwar also. Ext.9 series are regarding mutation which are of the year 1994 i.e., after institution of the suit. Ext.10 series are the 21 sale deeds executed by Jagrano Kunwar.
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38. In view of my above discussion and the finding that Jagrano Kunwar had inherited the property of her husband, the sale deed executed by her could not have been challenged by original plaintiff Indrasna Kunwar on the ground that consolidation proceeding is going on so it is void. Accordingly, I find that the plaintiff had no locustandi to challenge the sale deeds executed by Jagrano Kunwar.
39. During the hearing of this First Appeal, two interlocutory applications have been filed on behalf of the respondents. One is I.A. No.10466 of 2010 filed on 15.12.2010 under Section 340 of Code of Criminal Procedure. The learned counsel submitted that Ext 'A' is rent receipt in the name of Jagrano Kunwar which is forged one because when all the revenue records are in the name of Indrasna Kunwar from 1970 onwards how in absence of any order Ext/A was issued. So far this application is concerned, it is misconceived and for the first time, it is being raised before this appellate Court. No such application was filed before the Court where it was produced and there is no such finding in the impugned Judgment and Decree that in fact it is forged one. Accordingly this interlocutory application is rejected.
40. The second interlocutory application has been filed under Order 41 Rule 27 C.P.C. by the respondent on 13.12.2010 praying therein to admit 7 documents as additional evidence in this Appeal. The details of the said documents have been mentioned in paragraph1. Those are (a) order passed under Section 144 (b)( order passed in Title Suit No.25 of 1998. (c) petition under Order 23 C.P.C. (d) plaint of Title Suit No.25 of 1998 (e) written statement of that suit (f) written statement of Nirmala Devi in that suit and (g) copy of writ application which has been dismissed on 08.08.1995. In my opinion, none of these documents are relevant for the purpose of deciding this First Appeal nor are relevant in any way for the decision of points raised in this Appeal. None of the grounds mentioned in order 41 Rule 27 is attracted so as to admit these documents in evidence in the Appeal. The provisions 20 relating to exercise of power under Order 41 Rule 27 C.P.C. is an exception to the general rule of permitting the parties to adduce evidence in support of their cases. During pendency of the appeal, no party is permitted to adduce additional evidence except in the circumstances mentioned under Order 41 Rule 27 C.P.C. Hence, a party can only be permitted to adduce additional evidence where circumstances are distinctly covered by this statutory exceptions and for the ends of justice. As stated above these documents are not relevant at all and, therefore, this interlocutory application is also rejected.
41. The learned Court below has found that the sale deeds are void documents without considering the above aspect of the matter on the ground that during the pendency of the suit, the D.M., Buxar rejected prayer. The learned Court below has not considered that the consolidation proceeding in fact concluded as far back as in 1978 and the record of right had been distributed to the land owners. I, therefore, reversed the finding of the learned Court below on this point and, therefore, I find that the impugned Judgment and Decree are unsustainable in the eye of law.
42. In the result, this Appeal is allowed. The impugned Judgment and Decree are set aside and the plaintiff's suit is dismissed. The parties shall bear their own costs.
(Mungeshwar Sahoo, J.) Patna High Court, Patna The 10th February, 2011 Sanjeev/.A.F.R.