BINDABASINI DEVI Vs. BHAGWATI DEVI

JUDGEMENT

(1.) This appeal by the defendants in a title suit is directed against a judgment of affirmance. The trial court as also the first appellate court have held that the sale deed dated 30 -5 -1955 executed by Smt. Chandra Prabha Devi in favour of defendant Nos. 1 and 2 is null and void, that the plaintiff is entitled to possession of the suit property and that the defendants are liable to be evicted from the said property.

(2.) The facts, except a few exceptions, are almost admitted. Two shops with Parti lands bearing holding Nos. 281 and 282 within Ward No. 2, Circle No. 14 under Chapra Municipality belonged to late Brij Bihari Prasad Advocate. Holding No. 281 was let out to one Gulam Murshid, father of the defendants second party (defendants 7 to 10). Holding no - 282 was let out to M/s. Anant Brothers and Co., of which the plaintiff -respondent was a partner. On 12.12.1949 Brij Bihari Prasad executed a deed of gift in favour of his wife, Smt. Chandra Prabha Devi in respect of certain properties including holding Nos. 281 and 282. On 22 -8 -1954 Brij Bihari Prasad executed a deed of agreement for sale, for self and as guardian of his son Birendra Prasad, in favour of the plaintiff received part consideration and put the plaintiff in possession. On 30 -5 -1955 Smt. Chandra Prabha Devi (in the capacity of the donee sold holding Nos. 281 and 282 to two sisters, namely, Smt. Ram Kishori Devi and defendant No. 1, dividing the two holdings in the manner that western portion (holding No. 281) was transferred to Smt. Ram Kishori Devi and the eastern portion (holding No. 282) was transferred to defendant No. 1. On 29 -7 -1955 Brij Bihari Prasad executed the sale deed for self and as the guardian of his son, Birendra Prasad, and transferred holding Nos. 281 and 282 to the plaintiff - Ram Kishori Devi filed a suit for eviction of M/s. Anant Brothers and Co. from holding No. 281, claiming title by virtue of the sale deed executed by Smt. Chandra Prabha Devi on 30 -5 -1955. The said title suit was, however, dismissed, on a finding that the deed of gift executed by Brij Bihari Prasad in favour of his wife was void, as he was not competent to demise the properties, jointly belonging to him and his minor son, by a deed of gift to his wife. The trial court's judgment in the said eviction suit was affirmed by the first appellate court as also by this Court, vide judgment dated 5 -8 -1960 in Second Appeal No. 347 of 1958. Defendants 1 and 2 however, filed another suit for eviction, impleading Gulam Murshid as a defendant, from holding No. 282. (Title suit no 164/41 of 1955/56). The trial court decreed the suit. But on appeal, it was remitted to the trial court for a hearing. After remand, however, defendants 1 and 2 entered into a compromise with Gulam Murshid, who in term of the said compromise, vacated a portion of the said holding and delivered possession thereof to defendants 1 and 2. Birendra Prasad, who was born before Brij Bihari Prasad executed the deed of gift in favour of Smt. Chandra Prabha Devi, attained majority in the year 1967. Round about the same time, Gulam Murshid vacated the entire holding No. 282 and defendants 1 and 2 assumed possession. There was some vacant land behind the shops in holding Nos. 281 and 282 belonging to Brij Bihari Prasad and Birendra Prasad. On 11 -5 -1969, they executed another sale deed in respect of the said vacant land in favour of the plaintiff. The plaintiff, on the basis of his title by virtue of the said transfer made by Brij Bihari Prasad for self and as guardian of his minor son has instituted the instant suit and succeeded in obtaining a decree both in the trial court and the court of appeal below.

(3.) The basic question involved in this case is, whether defendants 1 and 2 acquired any title, right or interest in holding No. 281 and/or 282 by virtue of the sale deed executed by Smt. Chandra Prabha Devi or not. In other words, whether Smt. Chandra Prabha Devi had any title or interest in the suit properties or not, which she could transfer in favour of defendant Nos. 1 and 2. Smt. Chandra Prabha Devi's title, right or interest in the suit properties depends upon the validity of the deed of gift dated 12 -12 -1949 executed by Brij Bihari Prasad. The moot question, therefore, is the deed of gift executed by Brij Bihari Prasad on 12 -12 -1949 in favour of Smt. Chandra Prabha Devi valid ? Does it create any title, right or interest in her favour? It is not in dispute that Brij Bihari Prasad executed the said deed of gift in favour of his wife, Chandra Prabha Devi when their son, Birendra Prasad, was already born. This also is not in dispute that the property in question was the ancestral property in the hands of Brij Bihari Prasad. Since Brij Bihari Prasad's son Birendra Prasad was already born, a coparcenary had come (o exist. Admittedly their family was governed by the Mitakshra School of Hindu Law, As an obvious incident of a coparcenery between Brij Bihari Prasad and Birendra Prasad, they were co -sharers having equal rights, Brij Bihari Prasad being the father and the Karta and Birendra Prasad, the son, acquiring right and interest in the property by birth.