SHIVAJI RAI Vs. RAJENDRA RAI

JUDGEMENT

(1.) These two revision applications have been heard together and are being disposed of this order as common questions of law are involved therein. These applications have been filed against orders passed in two suits by different courts whereby the petitions filed in this suits under Section 4(c) of the Bihar Consolidation of Holdings and Prevention of Fargmentation Act, 1956(hereinafter referred to as the Act) have been rejected.

(2.) In C. R. No. 963 of 1983, the suit was filed for a declaration that the deed of gift dated 11-8-1978 purported to have been executed by defendant No. 1 in favour of defendant No. 3 was null and void. The plaintiff's case, short, is that one Nathuni Rai had four sons namely, Awadh, Lakshtni, Janak and Ramlagan, The plaintiff is one of the sons of Ramlagan Rai, defendant No. 1. Defendant No. 2 is another son of Ramlagan Rai and defendant No. 3 is the wife of defendant No. 2, Nathuni Rai died in a state of jointnes; with his aforesid four sons, having interest in Mitakshara coparcenary. Janak Rai was in service and from his personal earnings, he acquired 1 bigha 1 katha land, which was his self-acquisition. He died in a state of jointness with his brothers and upon his death, his widows Most. Gulzaria and Most. Gazia came in possession of the said properties and after the death of Most. Gazia, the other widow Most. Gulzaria alone remained in possession thereof. Most-Gulzaria out of the aforesaid 1 bigha 8 kathas gifted same land in favour of the plaintiff and the donee was put in possession thereof. Subsequently, there was separation amongst the four branches of Nathuni Rai. The plaintiff and defendants coming from the branch of Ramlagan Rai remained joint. Awadh and Lakshmi died issueless, without leaving any widow. It is said that defendant No. 2 fraudulently created a deed of gift purported to have been executed by defendant No. 1, in the name of his wife, defendant No. 3. Defendant No. I was very old and he was not in a position to understand the recitals and the effect of the deed. In this deed, the land which had been gifted to the wife of defendant No. 2 has also been included. It has been alleged that defendant No. 1 neither put his left thumb impression on the deed of gift nor he ever executed the same and the attestation thereon was forged and fabricated. According to the plaintiff, it was falsely stated in the deed of gift that the plaintiff was separate from his father, defendant No. 1 though they continued to be joint and defendant No. 1 had no right to execute the deed of gift relating to joint family property of the parties.

(3.) In the suit on 23-2-1981 a petition under Section 4(c) of the Act was filed by the defendant (petitioner). Thereafter on 28-4-1981 a petition for making amendment in the plaint was filed by the plaintiff to the effect that wherever the expression 'null and void' has been used, the same should be amended illegl". It was prayed that at the end of the relief portion, prayer should be inserted for settig aside deed of gift. The trial court allowed the prayer for amendment of the plaint and thereafter by a subsequent order the petition under Section 4(c) of the Act has been rejected. Hence, C. R., No. 963 of 1983 has been filed before this Court.