RAMESHWAR PANDEY Vs. SURESH PANDEY

JUDGEMENT

(1.) This appeal has been preferred against the judgment and decree dated 15.9.1976 and 9.11.1976 respectively passed by Sri Ram Kishore Singh, Additional Subordinate Judge, Jamui in Title Suit No. 20 of 1972/3 of 1976 whereby he has been pleased to dismiss the suit of the plaintiffs-appellants seeking relief for declaration of their title and confirmation of possession and in the alternative, for recovery of possession with respect to the suit land and also for declaration that the defendant did not acquire any title of the suit property by virtue of gift deed dated 7.8.70 executed by Lachho Devi in his favour.

(2.) The plaintiffs' case, in short, is that Sadar Pandey, son of deceased Yadunath Pandey was resident of Mauza Masauri, Mohalla Mahrajganj, District Jamui. He died in between 1944-45 leaving behind him his widow, Smt. Tita Kumari and his son Baldeo Pandey as his legal heirs and accordingly, Tita Kumari and Baldeo Pandey succeeded to the properties of Sardar Pandey half and half. Baldeo Pandey, the only son of Sardar Pandey, died in the month of January, 1951 leaving behind him his mother Mostt. Tita Kumari and his wife Lachho Devi as his legal heirs. Tita Kumari, widow of Sardar Pandey also died some time after 1951 and before 1955 leaving behind him her only daughter Smt. Shyama Devi wife of plaintiff No. 1 and mother of plaintiff Nos. 2 and 3. After the death of Tita Kumari, Shyama Devi succeeded to the interest of Smt. Tita Kumari and accordingly, she came in possession of the half share of Tita Kumari in the property of Sardar Pandey. After enactment of the Hindu succession Act, 1956 Smt. Shyama Devi became absolute owner of the property left by Tita Kumari. The said Shyama Devi died in the year 1963 leaving behind her the plaintiffs as her legal heirs. Further case of the plaintiffs is that 1 acre 17 decimals of land appertaining to Khata No. 22 Khesra No. 34 of village Ganesh Nawada, P.S. Sikandra which originally belonged to Shyam Lal Pandey and Pitamber Pandey sons of Guru Dayal Pandey and Bahsi Pandey, son of Kamal Pandey of village Konnan was acquired by a registered sale deed dated 9.1.1909 in the name of Tita Kumari, widow of Sardar Pandey and since then Tita Kumari was the sole owner of the said property and had been continuously coming in possession of the same as absolute owner of the said property. After the death of Tita Kumari, her only daughter Shyama Devi inherited the said property and came in exclusive possession of the property. After the death of Shyama Devi in the year, 1968 the plaintiffs came in possession of the said property. It is said that as the property was self-acquired property of Tita Kumari, as such Sardar Pandey or Baldedo Pandey or Lachho Devi had no concern with the said property and they were never in possession of the same. Further case of the plaintiffs is that after the death of Baldeo Pandey on 18.1.51, his widow Lachho Devi and the widow of Sardar Pandey, namely, Tita Kumari came in possession of the land and house appertaining to Khesra No. 950 of Mauza Masauri half and half. In the said house the plaintiff No. 1 was also residing under the guardianship of Lachho Devi and till today the plaintiff No. 1 along with other plaintiffs are residing in the said house. The said Sardar Pandey had also constructed a Thakurwari on the said plot (Khesra No. 950) which still exists and the plaintiffs are maintaining the Thakurwari after the death of Lachho Devi. It is said that after the death of Lachho Devi, the plaintiffs have succeeded to the interest of Lachho Devi with respect to the house and Thakurwari standing over Khesra No. 950 and the lands appertaining to the said Khesra. Further case of the plaintiffs is that in the year 1970 Lachho Devi became very old and due to old-age (65 years) she became very weak. She was also suffering from stomach disease due to which her health deteriorated to such extent that in the last week of July, 1970 she lost her consciousness. It is alleged that while Lachho Devi was critically ill, the plaintiffs No. 1 and 2 in the month of August, 1970 (between 4 to 10 August) had gone to the house of the plaintiff No. 3 as the husband of plaintiff No. 3 had fallen ill and taking advantage of the absence of the plaintiff, defendant Suresh Pandey with the help and collusion of Banswasi Pandey and some other persons got a forged and fabricated deed of gift prepared and thereafter they took the L.T.I. of Lachho Devi on the said document on 7.8.70 and got the document registered by playing fraud upon the Sub-Registrar, Jamui. The plaintiffs could know about the existence of the said document after the Shradh ceremony of deceased Lachho Devi and obtained the certified copy of the gift deed executed on 7.8.1970 and then the plaintiffs could know about the fraud committed by the defendant. It is said that the deed of gift is a forged, fabricated and void document and the execution of the said document has given rise to filing of the suit.

(3.) The defendant has appeared in the suit and contested the claim of the plaintiffs by filing written statement. According to the written statement of the defendant, the suit is barred by Law of Limitation, estoppel, waiver and acquiescence and is bad for non-joinder of necessary party as Sardar Pandey had left behind him one more daughter, namely, Maharani Devi who was married to Amrit Pandey, resident of village Balwapar, P.S. Warsaliganj, District Gaya, but her two sons, namely, Sita Ram Pandey and Binda Pandey as well as two daughters Binda Pandey were not impleaded as parties to the suit. Further erase is that Sardar Pandey (common ancestor) died in the year, 1935 (not in between 1944-45) leaving behind his son Baldeo Pandey as his sole heir and successor and it is false to say that Tita Kumari, the widow of Sardar Pandey, came in possession of the property left by Sardar Pandey, half and half. The fact is that Baldeo Pandey, the only son of Sardar Pandey, inherited the entire 16 annas interest in the property left by Sardar Pandey. The defendant has also asserted that Tita Kumari predeceased Baldeo Pandey although both Baldeo Pandey and Tita Kumari died in the year 1951 and after the death of Baldeo Pandey, his widow Lachho Devi came in possession over the entire property left by Sardar Pandey. The defendant has further asserted that it is false to say that after the death of Tita Kumari, her daughter Shyama Devi came in possession of 8 annas share. The defendant has further alleged that after enactment of the Hindu Succession Act, 1956, Lachho Devi who inherited the entire interest of her husband in the property left by Baldeo Pandey, became the full owner of the property having unfettered right for enjoyment of the property with right to alienation of the property. Further case of the defendant is that it is false to say that Tita Kumari had herself purchased the property under Mauza Ganesh Nawada appertaining to Khata No. 22 Khesra No. 34 through a registered sale deed dated 9.1.1909 and the reality is that the entire consideration money for purchasing the said property was paid by Sardar Pandey from his own pocket who purchased the land in the name of his wife Tita Kumari. It is alleged that Sardar Pandey kept the original sale deed with him so long as he was alive and after his death, the original sale deed was somehow taken by plaintiff No. 1 who took advantage of his being son-in-law of Sardar Pandey and Tita Kumari. It has been denied that since 1909 Tita Kumari had been coming in exclusive possession of the property of Ganesh Nawada and that after the death of Tita Kumari, Shyama Devi came in exclusive possession of the property of Ganesh Nawada and after her death the plaintiffs came in possession of the same. It has been asserted that after the death of Sardar Pandey, Baldeo Pandey came in exclusive possession of the land of Mauza Masauri and it is false to say that Tita Kumari has half-share in the said property. It has also been denied that plaintiff No. 1 was residing in the said house along with his family members under the guardianship of Lachho Devi. It has been contended that that Lachho Devi was absolute owner of the suit property and had been coming in exclusive possession of the house, Thakurwari and lands appertaining to plot No. 950 of Mauza Masarui, Maharajganj, Jamui as well as of Ganesh Nawada and she being the absolute owner of the above said property, executed the deed of gift dated 7.8.1970 in favour of the defendant and since the date of execution of the gift deed, the defendant had been coming in possession of the entire property as full owner. The defendant has also denied that Lachho Devi was very weak and unconscious at the time of execution of the gift deed. It has been stated that she was quite healthy and conscious till the last hours of her life. It has further been contended that Lachho Devi has executed the deed of gift after knowing and understanding the contents of the deed and it is altogether false to say that the gift deed is a forged and fabricated document which has been brought into execution after playing fraud upon the Registrar. The defendant has also denied that the plaintiffs were residing in the house or Thakurwari standing on plot No. 950. It has been asserted that the defendant had performed Dah Sanskar and Shradh of Lachho Devi and at the time of Shradh of Lachho Devi he had invited the plaintiffs to attend the Shradh ceremony and since then the plaintiff No. 1 is residing in the boundary of Thakurwari and is refusing to vacate the same. The prayer has been made to dismiss the suit of the plaintiffs.