DEONATH SHRIVASTAVA Vs. MOSTT. GAITRI SRIVASTAVA

JUDGEMENT

(1.) THIS second appeal has been preferred against the judgement and decree dated 19-3-1990 passed by Sri Ram Kishore Singh, District Judge, Katihar, in Title Appeal No. 15 of 1998 affirming the judgement and decree dated 12-8-1988 passed by Sri Ram Narain Singh Sub-Ordinate Judge, Katihar, in Title Suit No. 43 of 1986.

(2.) BEING aggrieved and dissatisfied with the said judgement and decree the defendants-appellants have preferred this appeal.

(3.) DURING the pendency of the suit, the defendant No.1 Most. Khiroda Devi died, as such, the suit was contested by defendant Nos. 2 and 3 and both the defendants filed joint written statement. According to the written statement, the suit as framed was not maintainable. Lands of Mauza Baghmara which is also the subject-matter of partition is covered under the consolidation proceedings as such in relation to the lands of Baghmara the suit is barred under Section 4(1)(C) of the Consolidation of Holdings Act. Further case is that late Mahadeo Lal was working in the police department but he was very poorly paid and although the original defendant No.1 Khiroda Devi had no income of her own but the father of Khiroda Devi , and her brothers were sufficiently rich. The suit property of Baghmara and R. S. Plot No. 1976, 884 and 885 of Mauzza Manihari were acquired by Khiroda Devi from her money gifted by her father and brothers. The suit plots bearing plot No. 1995 and 598 of Mauza Manihari were the ancestral properties of late Mahadeo Lal. The said Mahadeo Lal died in 1959 leaving behind the plaintiff and defendant Ist party and, accordingly, the plaintiff inherited 1/3rd share in the above mentioned plots of Mauza Manihari and as there was no partition in the family of late Mahaeo Lal, as such, the said Mahadeo Lal had half share in the Manihari property and rest half share belonged to defendant No.2 and thus after the death of Mahadeo Lal the plaintiff got only 1/6th share in those Manihari properties which were the ancestral properties of late Mahadeo Lal. Further case is that although it is true that defendant No.1 was not keeping good health but it is not a fact that she was of unsound mind. The fact is that the plaintiff, who is the only daughter of defendant No.1, did never care for her mother, whereas, defendant No.3, was always doing service to defendant No.1 taking all possible care of her. So, on account of love and affection defendant No. 1 Khiroda Devi gifted all her properties to defendant No.3 out of her free and independent will by registered deed of gift dated 11-4-1986. The defendant No.3 accepted the gift and came in possession of the lands mentioned in the gift deed. By way of additional written statement, it was stated that after the death of Khiroda Devi, a gift deed dated 16-12-29 executed by late Jageshwar Lal Singh, eldest brother of Khiroda Devi was found which establishes that the land of Mauza Manihari measuring 1.16 acres appertaining to C. S. Plot No. 518 and the land of Baghmara measuring 2.21 and 2.16 acres respectively of C. S. plot Nos. 410 and 408 were gifted to Khiroda Devi by her brother.