MUNNI LAL MAHTO Vs. CHANDESHWAR MAHTO

JUDGEMENT

(1.) The five appellants being three brothers and two nieces (daughters of pre-deceased brother) filed a Partition Suit. Defendants were their parents as defendants 1 and 2 and their other brother defendant No. 3 and his son defendant No. 4. It was prayed that in respect of properties, as mentioned in the plaint and claimed to be joint family property, their shares be declared and properties be partitioned by metes and bounds. On 30-6-1975, a preliminary decree in the said Partition Suit was passed whereby each was awarded 1/7th share in the joint family properties. A genealogy is given hereunder : <IMG>JUDGEMENT_66_AIR(PAT)_2007Image1.jpg</IMG>

(2.) From the genealogy referred to above, it would be seen that as per the preliminary decree, father got 1/7th share, mother got 1/7th share, plaintiff No. 1 got 1/7th share, plaintiff No. 2 got 1/7th share, plaintiff No. 3 got 1/7th share, plaintiff Nos. 4 and 5 being daughters of pre-deceased brother got 1/7th share jointly, defendant No. 3 got 1/ 7th share and defendant No. 4 was entitled to his share from his father defendant No. 3 After the preliminary decree, the father executed a registered deed of gift for his entire share on 3-1-1979 gifting it to the plaintiffs that is four out of five of his sons. He later died in 1982. Similarly on 1-5-1987, mother gifted her entire 1/7th share by a registered deed of gift in favour of her four sons as aforesaid to the exclusion of defendant No. 3 and died in the year 1989. It seems thereafter in course of final decree preparation, an application was filed on behalf of defendant Nos. 3 and 4 for amending the preliminary decree by reason of death of the parents. It was asserted that the parents having died, there were left only five sons which included one pre deceased son and, as such, prayed that the preliminary decree should now read as granting 1/5th share to each. This was contested by the plaintiffs on the ground that after preliminary decree was passed, there being severence of status, the parents had gifted their shares to them in entirety and that being so, the shares of the parents would merge with the shares already allotted to the plaintiffs and no part in share of the parents would ensure to the benefy. of the surviving defendants. The trial Court, relying on the judgment of the Apex Court in the case of Thamma Venkata Subbamma v. Thamma Rattamma since reported in AIR 1987 SC 1775 held that a gift by a coparcener of his undivided share in copercenery property without the consent of all the other coparceners is void and, as such, held that the gift deeds were void and unenforceable. As a consequence, it was held that there being only five shares left, the preliminary decree was amended to 1/5th share each. This has brought the plaintiffs to this Court aganst the said order. The plaintiffs-petitioners have submitted that the learned trial Court acted without jurisdiction in declaring the gift deeds void and the judgment of the Apex Court had no application to the facts of the present case. Upon notice, opposite parties being defendant No. 3, opposite party No. 1 and defendant No. 4 being opposite party No. 2 before this Court have appeared. Parties has been heard.

(3.) Parties are not at dispute with regard to the facts and the dates, as mentioned above. Therefore, the question is whether the trial Court was right in holding that the gift deeds executed by the parents were invalid, because if the gift deeds were invalid then their shares would devolve equally on their five sons as there was no testamentary disposition otherwise. But if the gift deeds were valid then their shares would get merged with the shares already declared in favour of the plaintiffs to the exclusion of opposite parties Nos. 1 and 2. The result would be the share of opposite parties No. 1 and 2 would remain unaltered by reason of death of their parents whereas the shares of the plaintiffs-petitioners would increase proportionately.