Chandrika Singh vs Suresh Singh and Anr

Mungeshwar Sahoo, J.—The plaintiff has filed this second appeal against the judgment and decree dated 13.1.1993 passed by First Additional District Judge, East Champaran, Motihari in Title Appeal No. 31 of 1989/ 32 of 1991 allowing the appeal and setting aside the judgment and decree dated 17.12.1988 passed by First Additional Munsif, East Champaran, Motihari in Title Suit No. 113 of 1984/ 242 of 1988 whereby the plaintiff''s suit was decreed. The plaintiff appellant filed the suit for declaration that the sale deed dated 14.8.1984 executed by the defendant No.2 in favour of the defendant No.1 is forged, fabricated and void and the defendant No.2 has got no right to execute the sale deed. The plaintiff claimed the aforesaid relief alleging that Shiv Singh died in the year 1944 leaving behind two sons namely Bhagelu Singh and Basudeo Singh and one widow Gangajali Devi. Basudeo Singh died in the year 1965 leaving behind the defendant No.1. Bhagelu Singh has two sons Chandrika Singh and Harish Chandra Singh. Harish Chandra Singh also died in the year 1979 unmarried. Plaintiff No. 2 is the wife of Bhagelu Singh and Bhagelu Singh is the defendant No.2. After death of Shiv Singh his two sons and widow separated and they amicably partitioned the properties. On 10.11.1967 Most. Gangajali Devi gifted the land of her share to the plaintiff No.1 and his brother Harish Chandra Singh and the donee came in possession of the same. The subject matter of the aforesaid gift is the suit land. The defendant No.2 sold the suit land to the defendant No.1 by registered sale deed dated 14.8.1984, which is illegal.

The defendants contested the suit alleging that Shiv Singh died in the year 1934 and Basudeo Singh died in the year 1965. The two sons inherited the property and partitioned between them. Gangajali Devi was getting maintenance only. She did not get any share. They denied the execution of gift deed.

The trial court held that Shiv Singh died in the year 1940 and Gangajali Devi inherited the properties and even if it is held that Shiv Singh died in the year 1934 then also on the death of Basudeo Singh in the year 1965 Gangajali Devi will get equal share and she has gifted the property. Accordingly, decreed the plaintiff''s suit.

On appeal, the appellate court reversed the finding holding that Shiv Singh died in 1934 before coming into force the Hindu Woman Right to Property Act, 1937 therefore, Gangajali Devi had not inherited the property left by Shiv Singh and she has no right to execute the deed of gift and, therefore, allowed the appeal

The learned senior counsel Mr. Devendra Kumar Sinha submitted that while reversing the judgment of the trial court the lower appellate court has not at all considered that Basudeo Singh died 1965 when Gangajali Devi was alive. She being the class 1 heir being the mother of Basudeo Singh on the death of Basudeo Singh inherited the property of Basudeo Singh equally with the son of Basudeo Singh and then she gifted in 1967.

On 24.3.1994 the following two substantial questions of law were formulated at the time of admission of the appeal:

(i) Whether the judgment of the lower appellate court is vitiated on account of non-consideration of the effect of death of Basudeo Singh in 1965 on the share of Gangajali Devi although the same has been considered by the trial court

(ii) Whether the judgment of the lower appellate court is vitiated on account of non-consideration of reasoning given by the trial court while reversing its findings

From perusal of the lower appellate court judgment it appears that the lower appellate court has not considered at all the effect of death of Basudeo in the year 1965 as to whether on the death of Basudeo Singh Gangajali Devi inherited the property of Basudeo Singh in equal share with the son being the class 1 heir and while reversing the finding of the trial court the appellate court has not met reasoning assigned by the trial court, on this ground that even if Shiv Singh died in the year 1934 then also Gangajali Devi will inherit the property on the death of her son Basudeo Singh. If she will inherit then whether gift made by her will confer title on plaintiff and gift is valid then how the gifted property will be sold by defendant No.2 in 1984. I therefore, find that the judgment of the lower appellate court is not according to law provided under Order 41 Rule 31 of the CPC as has been held by the Apex Court in the case of Santosh Hazari Vs. Purushottam Tiwai (Dead) by Lrs., . Therefore, both the substantial questions of law formulated are answered in favour of the appellant. Thus, this second appeal is allowed and the impugned judgment and decree are set aside and the matter is remanded to the lower appellate court for a fresh decision according to law in view of the above observation.