BRAHM NARAYAN Vs. MINOR RAJESH KUMAR

JUDGEMENT

(1.) Plaintiffs, who have appealed, instituted a suit on 17-12-1985, praying, inter alia, for declaration that the deed of Gift (Ex. D/3), executed on 9-12-1983 by defendant No. 1 Ramchandra, was void and mutation on that basis was also void. The Deed was executed by the said defendant, who died during the course of trial after filing his written statement. He made a gift of certain lands in favour of defendant/respondents Rakesh Kumar and Abinash Kumar, both minors, represented by their natural guardian, father, Shrikrishna Sharma, who had accepted the same on their behalf. Indeed, the main relief claimed was for the land described in para 1 of the plaint to be declared ancestral property of the parties and that along with the plaintiffs, defendant No. 4, (Mewaram), be declared as owner in equal shares in that land. Suit has been dismissed in toto.

(2.) Plaintiffs' case, as stated in para 1 of the plaint, is that though defendant Ramchandra was registered as Bhumiswami in respect of the ten plots, of the Survey Numbers specified, the land in question was ancestral property. In the total area of 4.537 hectares, he had 1/2 share. Nirpatlal was common ancestor of the parties. Ramchandra was issueless and plaintiffs along with defendant No. 4 (Mewaram herein respondent No. 3) were his prospective heirs and successors. In para No. 9, 1 the genealogy is set out. It is disclosed therein that Nirpat had two sons, Moharman and Ramchandra, abovenamed Moharman was dead. He left behind three sons; Mewaram (defendant No. 4); Gandharva (also dead) whose son Kalicharan was plaintiff No. 2 and Brahm Narayan (plaintiff No.1). Progeny of Mewaram is also disclosed. Among his three sons, Jagdish, Banwari and Shrikrishna, it is disclosed that the last-mentioned Shrikrishna had two sons, Rajesh Kumar and Abinash Kumar (minors), figuring in the suit as defendants No. 2 and 3. In para 3, the averment is that ignoring and overlooking the fact that Ramchandra had got the property from his father Nirpat along with Moharman, (great grandfather of defendants 2 and 3). Under undue influence of Shrikrishna, father of defendants 2 and 3, he had executed a Deed of Gift on 9-12-1983 in their favour illegally and on that basis, Patwari mutated their names on 8-1-1984 which was confirmed on 27-2-1984.

(3.) Separate written statements were filed on behalf of defendant No. 1 (Ramchandra) and the two donees, defendants Nos. 2 and 3, through their natural guardian and father, Shrikrishna. Defendant No. 4 did not file any written statement and did not contest the suit. The case of defendant No, 1 was that the plaintiffs and defendant No. 4 were not his prospective heirs and successors though he was issueless. For last sixty years after his father's death, he and his brother Moharman were living separately. He ceased to have any relationship with the plaintiffs and defendant No. 4 and they could not claim to be his prospective heirs and successor. He admitted, however, that in the suit property described in para 1 of the plaint, he had 1/2 share and that till 9-12-1983, he was in possession thereof and was cultivating the lands of his share. He had given possession, after executing the Deed of Gift in favour of defendants Nos. 2 and 3, and that was accepted on their behalf by their natural guardian and father, Shrikrishna and since then, they are continuing in possession of the land gifted. He also stated that plaintiff Brahm Narayan, during lifetime of his father, Moharman, was given in adoption to one Mata Prasad and he ceased thereafter to have any relationship with the family. Accordingly, the said plaintiff had no right to sue him and to claim any relief against him in respect of the suit land. After Nirpat's death, Ramchandra and Moharman did not continue to live as coparceners and both started living separately. In the written statement filed on behalf of defendants Nos. 2 and 3, averments made were almost on same lines, but additionally, it was also stated that no undue influence was exercised by their father Shrikrishna on defendant Ramchandra and the latter had executed the Deed of Gift voluntarily.