NIRMALA DEVI Vs. OM PRAKASH @ TUN TUN LAL

JUDGEMENT

(1.) This appeal has been filed by the plaintiffs against the judgment and decree dated 08.04.1991 passed inT.A.No.148/88/01/89 by 6th Additional District Judge, Patna reversing the decree in favour of the plaintiff in T.S.No.256/76/209/1983 by Sub Judge VI, Patna.

(2.) The plaintiffs filed the suit for declaration that the deed of gift dated 28.11.1967, purported to have been executed by Late Ramchandra Prasad in favour of defendant no.1 Ramsakhi Devi, for the suit house was illegal, invalid, ineffective and inoperative and not binding upon the plaintiff and defendant no.2, and the same had in no manner affected the title and possession of the plaintiff and defendant no.2 in respect of the suit house. The further relief was for confirmation of possession of the plaintiffs over the western half of the suit house described in the schedule of the plaint through the tenant of the plaintiffs or in alternative for passing a decree for recovery of possession to the plaintiffs over the same and further also for a decree of possession to the plaintiffs over the portion of the suit premises in occupation of defendant no1.

(3.) Sans unnecessary details, the case of the plaintiff is that Durga Prasad was the ancestor of the plaintiffs and he was a well to do man and he had a son Ramchandra Prasad who was the father of the plaintiff no.1 and grandfather of plaintiff nos. 2 to 6. Durga Prasad formed a Hindu joint family with his son, grandsons and great grandsons and died in the year 1958 in jointness with the plaintiff nos.1 and 2, his wife having predeceased him. Durga Prasad during his lifetime remained the head and karta of joint family of the plaintiffs and he acquired various properties including the suit property out of the ancestral joint family fund. It is the case of the plaintiffs that Ramchandra Prasad, Son of Durga Prasad did no business and had no source of income and was maintained with the earnings and income of the joint family properties. It is further case of the plaintiffs that Ramchandra Prasad, after the death of his wife in the year 1940, acquired bad habits of taking wine and indulging in sexual activities with women of bad character ignoring the insistence of the father to give up the bad habits. Durga Prasad , therefore, executed a deed of gift dated 04.03.1958 in respect of some of his properties in favour of the plaintiff no.2 in order to safeguard the properties from being squandered by his son Ramchandra Prasad. It has been pleaded that although the suit property was acquired by Durga Prasad in the year 1935 in the name of his son Ramchandra Prasad out of ancestral joint family fund and while executing the gift deed in favour of the plaintiff no.2 he intended to include this property also in the gift but he could not do so due to refusal by Ramchandra Prasad to join in the gift deed by including the suit property in the gift. It has been further stated by the plaintiff that Durga Prasad constructed double storied building during his lifetime over the suit property and he used to let out the said property and realize rent from the tenants. The plaintiffs have further alleged that the defendant no.1 was a maid servant in their family and Ramchandra Prasad developed illicit relationship with her and allowed her to reside in one room in the first floor of the suit house. After the death of Ramchandra Prasad on 05.04.1975, the plaintiff no.1 sold half of the suit house towards east to the defendant no.2 Md Samsuddin who had been a tenant therein from 1955 for the purpose of raising funds for performing the Shradh of Ramchandra Prasad and when the defendant no.1 was asked to vacate the portion in her possession in the suit house, she claimed to be the owner of the suit house on the basis of the deed of gift dated 28.11.1967 executed by Late Ramchandra Prasad in her favour. It has been stated by the plaintiff that the alleged deed of gift dated 28.11.1967 is forged and fabricated and not executed by Ramchanda Prasad. It has been further stated that the suit property was a joint family property and Ramchandra Prasad had no right to execute the gift deed of the joint family property. It has been also stated that Ramchandra Prasad had no source of income and he did not acquire the suit property nor made any construction over it, and therefore, also he could not have made any gift of the same to the defendant no.1. The plaintiffs have also stated that even if the gift deed is found or proved to have been executed by Ramchandra Prasad in favour of the defendant no.1, it must have been executed on the basis of the terms imposed by the defendant no.1 to continue to have illicit relationship with him, and therefore, also the gift deed being for unlawful consideration and immoral object is void, unenforceable and not binding on the plaintiffs. The plaintiffs have also stated that the mutation of the name of the defendant no.1 in the municipal corporation over the suit property has been done in collusion with the staff of the municipal corporation and without notice to the plaintiffs.