JAGDHAR PRASAD SINGH Vs. DHAR PRASAD SINGH

JUDGEMENT

(1.) Letters patent Appeal No. 5 of 1964 has been filed by plaintiff No. Letters Patent Appeal No. 18 of 1964 has been filed by defendant No.

(2.) Both the appeals are directed against the judgment passed by a learned single Judge of this Court in Second Appeal No. 218 of 1957 on the 11th December, 1963 The trial Court had dismissed the plaintiffs' suit, which decree had been reversed by the learned Additional Subordinate Judge on appeal, as a result of which the suit was decreed. On appeal by defendant No. 2, the learned single Judge of this Court has allowed the appeal in part, by which the decree passed by the first court of appeal has been modified. Hence these appeals by the two contestants. Both the appeals have been heard together and this judgment will govern both of them. 2. In order to appreciate the controversy between the parties; the following genealogy will be necessary:

(3.) The plaintiffs' case was as follows : Sheo Prasad, Mahabir and Raghubir were separate and Raghubir had died issueless, leaving a widow named Janki Kuer. Janki Kuer had come in possession of her husband's property and after her death, Sheo Prasad, who had been managing the affairs of Janki, Kuer, took possession of the property left by Raghubir. Thereupon, defendants No. 1 and 2 along with plaintiff No. 1 had brought Title Suit No. 80 of 1932, with respect to the property left by Raghubir. The suit was decreed and the decree was affirmed on appeal in the court of the Subordinate Judge, 1st Court, Patna. It was alleged that defendant No. 2 had exercised great influence upon their father, defendant No. 1, and he got a deed of gift executed by defendant No. 1 in his favour on the 18th January, 1951 in respect of all the family properties. It was alleged that in that deed of gift plaintiff No. 1 had been falsely described as an illegitimate son of defendant No. 1. According to the plaintiffs, defendant No. 1 had no right to execute a deed of gift relating to the joint family properties and the document was inoperative and not binding upon the plaintiffs and defendant No. 4. It was alleged that after the execution of the deed of gift, the defendants had been enjoying the income of the properties covered by it and were not giving anything to the plaintiffs and defendant No. 4. The plaintiffs claimed that one-fourth share in the properties belonged to them and one-fourth to defendant No. 4, mother of plaintiff No. 1. The remaining half was said to belong to defendants 1 and 2 in equal shares. The plaintiffs claimed declaration of their title to the extent mentioned above and asked for a decree for recovery of possession after partition with mesne profits. They also claimed for a declaration that the deed of gift dated the 18th January, 1951 was inoperative and not binding upon them. (The properties in suit included the ancestral properties of Mahabir Prasad which he had got when he and his brother had separated and half of the property of Raghubir which had been obtained by the decree passed in Title Suit No. 80 of 1932).