NATHUNI BHAGAT Vs. MAHANTH BHAGAT

JUDGEMENT

(1.) THE plaintiff has filed this first appeal against the judgment and decree dated 12.2.1980 passed by the learned 3rd Additional Subordinate Judge, Gopalganj in Title Partition Suit No. 571 of 1974 whereby, the learned trial court dismissed the plaintiffs suit for partition.

(2.) THE plaintiff filed the aforesaid suit claiming the partition of his share measuring 6 Bigha 8 Kattha 16 1/2 Dhur being the total lands mentioned in schedule 2 and 3 of the plaint.

(3.) THE defendant No.1 ­ respondent No.1 appeared and filed a contesting written statement. Besides taking various legal plea mainly the defendant No.1 contended that the plaintiff has got no unity of title and possession over the suit property. Tally Bhagat and defendant No.2 adopted this defendant No.1 on 9.5.1946 and subsequently a registered deed of adoption was executed and registered on 28.4.1953. No doubt, on the death of Jawahar Bhagat his brother Tally Bhagat became the sole surviving coparcener but on the adoption of defendant No.1 by Tally Bhagt and his first wife the defendant No.1 became the coparcener of the property as such the gift deed executed by Tally Bhagat in the year 1958 in favour of Simrekha Devi defendanat No.2 and defendant No.1 himself is void because without consent a coparcener cannot make gift the coparcenary property. The defendant No.1 executed the sale deed as coparcener and likewise the defendant No.2 executed the sale deed in favour of the plaintiff as an heir of Tally Bhagat and not as donee. The defendant No.2 had not executed any gift deed dated 11.5.1973 in favour of the plaintiff and the plaintiff did not come in possession over the property claimed by him. The said gift deed is forged and fabricated. The defendant No.2 is an old and Parda Nasheen lady and had lost the capacity of understanding her loss and gain. In view of the above facts, the said document is not binding on the defendants No.1. The defendant No.2 has only 1/4th share in schedule 1 of the plaint and in April 1973 she surrendered her share in favour of the defendant No.1 orally in presence of several persons. Therefore, the defendant No.1 prayed for dismissal of the suit. It may be mentioned here that the defendant No.2 neither appeared nor filed the written statement nor contested the suit.