KRIPA DEVI Vs. POONAM DEVI

JUDGEMENT

(1.) The plaintiffs have filed this first appeal against the judgment and decree dated 26.2.1981 passed by the learned 5th Additional Subordinate Judge, Motihari in Partition Suit No. 213 of 1971/ 27 of 1980, whereby the learned trial court dismissed the plaintiffs' suit for partition.

(2.) The plaintiffs appellants filed the aforesaid partition suit claiming share to the extent of 3/4th in the suit land. According to the plaintiffs the common ancestor was one Chanarma Rai who had four sons namely Rawal Rai, Bhaiyaram Rai, Rajaram Rai and Lal Bahadur Rai. The plaintiffs and defendants 2nd set represent the branch of Bhaiyaram Ram. The defendant 1st set are the descendants of Rajaram Rai. Bhaiyaram Rai had four sons namely Dhanukhdhari Rai, Dhaneshwar Rai, Sheodhari Rai and Kamla Rai. He had also two daughters namely Most. Dharohara Kuer and Ramrati Kuer. Dharohara Kuer had a son who died leaving behind a widow and two sons, the plaintiffs. Kamala Rai died in the year 1970 issueless. Sheodhari Rai died in the year 1952 leaving behind a daughter defendant No.9. Dhaneshwar died in the year 1946 leaving behind his widow Hika Kuer and two daughters namely Most. Swari Devi and Kumari Devi. Kumari Devi died leaving behind a son plaintiff No.3. The plaintiff Nos. 4 to 6 are the sons of defendant No.8. Dhanukhdhari Rai died in the year 1944 leaving behind a widow Pataso Kuer who in tern died in the year 1955. The subject matter of the partition suit is the land of Bhaiyaram Rai. After the death of Bhaiyaram Rai his four sons separated about 50 years back i.e. either in the year 1930 or in the year 1931 and started cultivating the lands according to their convenience. There was no partition by metes and bounds. The widow of Dhanukhdhari, Dhaneshwar and Sheodhari transferred about 1.5 bigha of their lands to defendants 3rd set. On 8.12.1951 Sheodhari Rai, Most. Pataso and widow of Dhaneshwar namely Hika Kuer executed four deeds of gift in favour of the plaintiffs. The plaintiffs came in possession over the gifted land. Kamla Rai transferred his four ana share to the defendant 1st set. This transfer caused inconvenience therefore, the plaintiffs demanded partition, which was refused. Hence the suit was filed.

(3.) The contesting defendants No.1 filed separate written statement. Defendant Nos. 2 to 7 also filed contesting written statement. The other defendants filed supporting written statement. The defence of the defendant No.1 and defendant Nos. 2 to 7 is in the same line. According to them the main defence is that Dhaneshwar Rai died before Revisional Survey in the year 1917. Dhanukhdhari died in February 1936. The plot Nos. 975 and 976 in fact belonged to the branch of Rajaram Rai and are in possession of Mahavir Ram grandson of Rajaram Rai. Bhaiyaram Rai died in the state of jointness that is his three sons. The properties of Bhaiyaram Rai came ultimately in possession of his two sons namely Sheodhari Rai and Kamla Rai who survived the other brothers. The three sale deeds executed by Sheodhari Rai in favour of defendant 3rd set are Farzi sale deed and never came in operation. Sheodhari could not execute any valid gift deed in favour of the plaintiffs as he was never a sole surviving coparcener. Likewise Most. Pataso and Hika Kuer were entitled to maintenance only and had no right to execute any gift deed in favour of the plaintiffs as such the gift deeds were void. Ultimately, all the properties in suit came in possession of Kamla Rai who was last surviving coparcener. He sold some properties to defendant No.1 Janki Rai who came in possession. Kamla Rai also executed several deeds of gift in respect of remaining suit land.