SUDISH PRASAD Vs. BABUI JONHIA ALIAS MANORMA DEVI

JUDGEMENT

(1.) Leave granted.

(2.) Aggrieved by the judgment and decree dated 16.04.2007 passed by the Division Bench of the Patna High Court in LPA No. 58/1993, the defendant-appellant preferred this appeal before this Court. By the impugned judgment, the Division Bench allowed the appeal holding that the plaintiff-respondent became the absolute owner of the suit properties.

(3.) The plaintiff-Respondent No.1 filed Title Suit No.12/3 of 1965/71 in the Court of Subordinate Judge, Siwan for declaration of title over the suit property. The case of the plaintiff, inter-alia, is that Sukai Mahto is last male holder of the properties described in Schedule 1 , 2, and 3 of the plaint. He died leaving behind his widow Mst. Parbatia and one daughter, that is the plaintiff of this suit. Mst. Parbatia after the death of Sukai Mahto remarried in Sagai Form with Mahadeo Mahto son Ramsharan Mahto. Hurdung @ Bacha Mahto who is defendant No.12 in this suit was born out of the wedlock Mahadeo through Parbatia after he remarried. Mahadeo Mahto died about 12 to 16 years ago. Mst. Dhanwatia was the first wife of Mahadeo Mahto. Now, after the death of Mahadeo Mahto both his widows Mst.Dhanpatia and Mst. Parbatia remarried in Sagai Form with Gopal Mahto defendant.No.2 and Bal Kishun Mahto. Plaintiff s further case was that Bal Kishun Mahto who was Chachera uncle of Sukai Mahto was appointed guardian of Sukai Mahto by the order of district judge in the year 1930 to look after the person and properties of Sukai Mahto during his minority. Bal Kishun Mahto as guardian of Sukai Mahto had instituted a suit against one Keshwar Mahto which was numbered as T.S. No. 35/33. That suit was compromised whereby Keshwar Mahto gave the property described in Schedule 1 of the plaint to Sukai Mahto. Sukai Mahto was not a prudent man and was not sufficiently intelligent to understand his interest as Bal Kishun continued to look after his properties even after he attained majority. Besides that he was minor according to law because Bal Kishun was appointed guardian through the court. Balkishun taking advantage of his position got executed two zerpesgi deed dated 26.06.1940 in favour of his nephew Mahadeo Mahto and also in favour of Deoraj Mahto without consideration. Even after Sukai Mahto attained majority Bal Kishun Mahto continued to look after his properties. Sukai Mahto died in the year 1946 at the age of 23 years and at the time of his death the plaintiff was only three years of age. Now after the death of Sukai Mahto his properties were inherited by his widow but his widow Mst. Parbatia remarried after three to four months after Sukai s death. So the properties were inherited by the plaintiff after Parbatia s remarried. Bal Kishun defendant No.1 continued to look after the properties of the plaintiff even after remarriage of Mst. Parbatia. Hence the possession of Bal Kishun allegedly continued as a constructive trustee on behalf of the plaintiff. Defendant No.1 has sold many of the costly trees of sesam, mango and mahuwa. Now the plaintiff was married on 08.07.61 and the plaintiff s gawana took place in 1962 and since then the plaintiff is living in her sasural. Plaintiff seeing dishonest intention of defendant No.1 demanded possession of the properties but defendant No.1 failed to do so. Hence this suit has been brought.