SIBHNATH SINGH Vs. CHANDRA SHEKHAR SINGH

JUDGEMENT

(1.) Present appeal is preferred by the appellant for setting aside the Judgment dtd. 20/4/2015 decree signed on 2/5/2015 passed in Title Appeal No. 60 of 2007 by learned District Judge I, East Singhbhum at Jamshedpur whereby and whereunder Judgment and decree dtd. 31/8/2007, decree signed on 13/9/2007 passed in Title Suit No. 54 of 1999 by the learned Sub Judge VI, Jamshedpur was dismissed. Factual matrix

(2.) Factual matrix of the case is that plaintiff/appellant has instituted Title Suit No. 54 of 1999 against the defendants for declaration of gift deed executed by defendant no.1 in favour of defendant no.2 is null and void being illegal and fraudulent and not binding upon the plaintiff with other consequential reliefs. According to plaintiff the suit Scheduled B property was belonging to his ancestor Haru Bhumij who died leaving behind his four sons Kokil Bhumij, Gahan Bhumij, Sohan Bhumij and Madhav Bhumij, out of them Sohan Bhumij died issueless. Gahan Bhumij died leaving behind his sole daughter Bimla Dasi who also died unmarried. Madhav Bhumij died leaving behind his sole daughter Ratna Bhumijian @ Ratna Dasi who is defendant no.1 in this suit. Kokil Bhumij died leaving behind his two sons namely, Madhu Bhumij and Shambhoo Bhumij. Madhu Bhumij also died leaving behind one son Kargal Bhumij. Kargal Bhumij died issueless. Shambhu Bhmij died leaving behind his sole son Shiv Nath Singh who is plaintiff and sole male member left in the family of said Haru Bhumij. It is further alleged that plaintiff belong to Bhumij community and in Bhumij community married daughter are excluded from right of inheritance with respect to ancestral property as they are Schedule Tribe, so in the matter of inheritance and succession they are guided by their traditional tribal laws prevalent in their community and the Hindu Succession Act, 1956 is not applicable in their case. It is further pleaded that parties have sufficiently Hinduised and they are guided by Mitakshra School of Hindu in the matter of succession and inheritance. Defendant no. 1, namely, Ratna Bhumij @ Ratna Dasi is the aunt (father's sister) of plaintiff and defendant no.2, Gangadhar Singh is stranger to the family of the plaintiff. When defendant no. 1 became widow she left her in- laws house and started living with plaintiff at Patamda and plaintiff was also taking all care of defendant no. 1. When defendant no. 1 became old defendant no.2 came in close contact with her and behind the back of plaintiff defendant no.2 managed to get a gift deed in his favour executed by defendant no. 1 bearing no. 2136 dtd. 15/5/1997 at Registry office, Jamshedpur. Plaintiff came to know about the aforesaid gift deed in the first week of July,1997 when the defendant no. 2 disclosed the fact of obtaining gift and threatened the plaintiff to dispossess from their land. On 5/7/1999, defendant obtained certified copy of said gift deed and came to know that suit lands have been included in that gift deed. Since the defendant no. 1 is the married daughter, so as per the custom and tradition prevalent in their society being Scheduled Tribe, defendant no.1 had no right to transfer the suit property in favour of defendant no. 2, hence the gift deed is illegal and void. It is further stated that defendant has also managed to obtain permission u/s 46 of C.N.T. Act vide Misc. Case No. 72/90-91 after suppressing the material facts that defendant no.1 has not right to transfer the ancestral land of the plaintiff. Since married daughter in Schedule Tribe community had no right to inherit the ancestral property as such survey record of right was wrongly prepared in the name of Bimla Dasi and Ratna Dasi and their possession has also been shown wrongly in the remark column of survey record, however, it will not affect the right, title and interest of the plaintiff. Defendant no. 2 has got the gift deed knowingly and willfully for his wrongful gain and to deprive the plaintiff from his right of inheritance with respect to the suit property as such gift deed is not binding upon the plaintiff and it creates no right in favour of defendant no.2 and plaintiff is still the absolute owner of the property in question. Since the plaintiff is in actual physical possession of the suit land, so illegal gift deed will not affect the right of plaintiff who is still in possession of the suit land and gift deed is in favour of stranger, so in no manner it can be valid. Gift deed has been obtained by defendant no.2 from defendant no.1 under undue influence and defendant no.2 has got no manner of right, title, interest and possession over the suit property on the basis of said gift deed and it is a nullity. Since the property belongs to Schedule Tribes member hence, Deputy Commissioner is also made necessary party as per provision of Sec. 46 of C.N.T. Act.

(3.) In the above suit original defendant no. 1 died during pendency of the suit land her name was deleted vide order dtd. 2/5/2002. Defendant no.2 also died and his legal heirs has been substituted. The substituted heirs of defendant no.2 have filed their written statement stating interalia that there is no cause of action for the suit which is barred by limitation, waiver, estoppel, acquiescence, non-joinder and mis-joinder of necessary parties as well as various provision of C.N.T. Act. It is further pleaded that a partition took place between heirs of Haru Bhumij and the deceased defendant no. 1 have also got her share in the property prior to the year 1964 and the same has been identified and she was in cultivating possession of her share. It has also been shown in the record of right. Subsequently, out of love and affection she gifted her entire share in favour of Gangadhar Singh vide registered gift deed no. 2136 dtd.. 8/5/97 Gangadhar Singh who also died leaving behind their legal heirs who are cultivating the suit land on the basis of deed of gift made in favour of their deceased father Gangadhar Singh. Donor has executed gift deed and donee has accepted it and it was followed by immediate delivery of possession, so the gift deed is legal, valid and the same has been acted upon properly as such there is no question of any illegality with regard to the gift deed made in favour of original defendant no.2 by original defendant no.1. Ratna Dasi . It is denied that in the matter of inheritance and Succession plaintiff and deceased defendant no.1 were guided by the tribal customary laws rather they have been sufficiently Hinduised and they are guided by the Hindu Succession Act, 1956 in the matter of inheritance and succession. So deceased Ratna Dasi being absolute owner of the suit property had right to execute gift and property in favour of any person. It is not true that plaintiff is in possession of the entire property of Haru Bhumij rather during her lift time Ratna Dasi was absolute owner of the property succeeded by her out of joint stock of late Haru Bhumij and she gift it in favour of defendant no.2 and she was entitled to make testamentary disposition of the property of her share and there is no question of application of law of survivorship as claimed by the plaintiff and plaintiff cannot succeed the share of Ratna Dasi. According to record of right prepared in the year 1964 Ratna Dasi has been shown as co- sharer in the suit property and in remark column her possession has also been shown with respect to the suit property in question and khatian was prepared in the name of three co-sharers including Ratna Dasi. Geanealogy has been given by the plaintiff has been admitted but they have denied that plaintiff is absolute owner of the entire property of Haru Bhumij as being only the surviving male member in the family of Haru Bhumij. It is further stated that when the gift deed was executed by Ratna Dasi the plaintiff was well aware of it and Ratna Dasi was living with Gangadhar at the time of making gift and she obtained permission for transfer of her property prior to making gift from the concerned authority under Sec. 46 of the C.N.T. Act and she had become absolute owner of the property under Hindu Succession Act. After the death of Gangadhar Singh, his legal heirs and substituted defendants are in possession of the gifted property, hence, suit of the plaintiff is fit to be dismissed.