SURTI DEVI Vs. MANOJ KUMAR SINGH

JUDGEMENT

(1.) THE plaintiffs have filed this appeal against the judgment and decree dated 26.4.1997 passed by Sri Rama Nand Sharma learned Subordinate Judge -Ist, Samastipur in Partition Suit No. 56 of 1995 dismissing the plaintiffs? suit for partition.

(2.) THE plaintiffs filed the aforesaid Partition Suit No. 56 of 1995 claiming half share in schedule 2 property of the plaint. The plaintiffs further prayed for declaration that the deed of gift dated 5.6.1989 executed by Most. Machhiya Devi is void and not binding on the plaintiffs. The plaintiffs claimed the aforesaid relief on the ground that Nirsu Mahto was the common ancestor of the parties who died leaving behind two sons namely Bal Narayan Singh and Devan Singh. Bal Narain Singh had a son Heman Singh. Heman Singh had two sons Yogendra Singh, who is defendant No.1 and Mahendra Singh. This second son Mahendra Singh died leaving behind the widow plaintiff No.1 and sons plaintiff Nos. 2 to 5. The defendant Nos. 2 to 4 are the sons of defendant No.1 and defendant No.5 is the wife of defendant No.1. The second son of Nirsu singh i.e. Devan Singh died issueless leaving behind his widow Machhiya Devi who also died in jointness with the defendants and plaintiffs. Heman Singh, Mahendra Singh, Devan Singh and Machhiya Devi all died in state of jointness with the plaintiffs and, therefore, the plaintiffs and the defendants inherited the entire property jointly and the plaintiffs have got half share in the property.

(3.) IN the year 1989 Machhiya Devi was seriously ill and because of illness she had lost her sense and power of understanding and at that time Yogendra Singh, defendant No.1 taking advantage of illness and critical condition of Machhiya Devi got a deed of gift executed by Machhiya Devi on 5.6.1989 in favour of his wife Janki Devi, defendant No.5 with respect to the schedule 3 lands of the plaint. According to the plaintiffs Machhiya Devi being a member of joint Hindu Mitakchara family had no right to execute a gift with regard to her undivided share in the joint family properties. The witnesses scribe and identifier of the deed of gift were henchmen of defendant No.1 and they helped him to get the gift deed executed and registered. Machhiya Devi had lost her sense due to illness and was not capable of understanding because of old age therefore, the deed of gift is not a legal document and is void deed. By this deed of gift the defendant No.5 did not acquire any right, title and interest on schedule 3 properties. Machhiya Devi was so much so ill that unconscious and she was unable to admit the execution of deed and in order to get the deed registered, the defendant No.1 got a Commissioner appointed from district sub registry for this purpose and defendant No.1 got all the formalities completed in the village in haste as such the deed of gift is created by fraud. The plaintiffs came to know about the deed of gift on 17.5.1995. The plaintiffs demanded for partition but the defendants refused to partition the properties. Hence the plaintiffs filed the suit for partition.