Prem Nath vs Munshi Ram

This is defendant's second appeal from the judgment and decree dated 2291966 of the learned District Judge Badarwah affirming the judgment

dated 2061965 passed by the Sub Judge, Kishtwar, decreeing the plaintiff's suit for joint possession of the land described in Para 4 of the plaint.

The facts giving rise to this appeal are: By a deed dated 2371963 Devi Das and Rup Chand sons of Mukhta Thakkar of village Cherji Tehsil

Kishtwar gifted 32 Kanals and 10 marlas of land out of joint and undivided estate measuring 49 Kanals and six Marias comprised in Khewat No

Khata Nos. 1 to 3 situated in village Cherji, Tehsil Kishtwar, in favour of Prem Nath, the soninlaw of Devi Das. Munshi Ram, minor claiming to be

the son of Rup Chand filed a suit through his maternal grand father, Khazana as his next friend for possessing of the said land in the court of the

Sub Judge, Kishtwar, on 981963, against Prem Nath donnee averring that Mst. Nauratu was the legally wedded wife of Rup Chand, that the land

measuring 49 Kanals and 6 Marias comprised in Khewat No. I Khata Nos. 1 to 3 situated in village Cherji was the joint and ancestral property of

the coparcenary consisting of his uncle Devi Das, his father Rup Chand, and himself, that the alienation of 32 Kanals and 10 Marias of land out of

the joint holding as evidenced by the aforesaid gift deed was void and ineffectual as the property being the coparcenary property, Devi Dass and

Rup Chand the donors, could not gift away the same. To this suit both the donors Devi Dass and Rup Chand were impleaded as codefendants.

During the pendency of the suit, Devi Dass, one of the donors died, and the plaintiff made an application dated 2421963 before the trial court

string therein that Devi Dass had died in 'Katik (1963)' and that since Prem Nath was in possession of the estate of the deceased Devi Das, he

should be brought oh the record as legal representative of Devi Das. It may be mentioned that by then the defendants Nos. 1 and 3 namely Prem

Nath and Rup Chand had not been served and had not appeared before the trial court. It was on 3rd February 1964 that the said defendants

appeared before the trial court of Sub Judge who passed the following order in their presence :

Vakil mudayi wa Vakil mudalian 1 ta.3 hazar. Mujalia No. 2 chonka ifaut ho couka hai aur us ka qaim muqam Prem Nath mudalia ko bataya

gaya hai aur us ki ganab sa bhi Vakil hazar hai. Naqal arzi dahwa diya gaya. Jawabdahwa bataqarar 2 March 1964 pesh hoba. Hukam sunaya

gaya/'

Thereafter, the defendants filed a written statement on 3031964, stating that the plaintiff was not the son of Rup Chand defendant No. 3 nor could

he be a member of joint family, that the gift deed had been rightly executed and the plaintiff had no right to challenge the same, that Mst. Nauratu

was not the legally wedded wife of Rup Chand defendant, that in case the plaintiff be deemed to be a member of the joint family, he was entitled

only 'to 1/3rd share in the estate in presence of defendants Nos. 2 and 3. It also needs to be mentioned here that on 22101964 the plaintiff and

Rup Chand defendant filed before the trial court, a composition deed whereby Rup Chand acknowledged the plaintiff as his legitimate child born of

Mst. Nauratu. He further acknowledged in this deed that Mst. Nauratu was his legally wedded wife and that the estate was joint and ancestral of

the plaintiff, himself and Devi Das deceased who constituted a coparcenary.

On the pleadings of the parties, the following issues were struck by the trial court in this case :

(1) Whether the plaintiff was born to Mst. Nauratu from defendant No. 3 as such being his son was a coparcener ? OPP

(2) In case of proof of issue No. 1 whether the gift deed in question was valid and binding ? OPD

(3) Relief.

The learned Subordinate Judge, Kishtwar, found all the issues in favour of the plaintiff. In the result he passed the decree for joint possession of the

suit land in favour of the plaintiff. Against the judgment and the decree of the learned trial court, Prem Nath, contesting defendant, preferred an

appeal to the learned District Judge, Badarwah. who affirmed the judgment and the decree passed by the trial court.

The first appeal filed by Prern Nath defendant having thus proved abortive, he has come up in second appeal to this court.

Mr. Gupta appearing for the appellant has not challenged treat the plaintiff Munshi Ram was a legitimate child of Rup Chand and that Mst, Narautu

was the legally wedded wife of Rup Chand. In support of the appeal he has urged only the following three contentions :

(i) That no issue was framed by the trial as to whether or not, Devi Das, Rup Chand and the plaintiff constituted a joint family.

(ii) That Devi Das deceased, uncle of the plaintiff, left four daughters who were necessary parties to the suit, and since they had not been

impleaded as defendants, the defect was fatal to the suit.

(iii) That Devi Das and Rup Chand were competent to gift away the property with the consent of the other coparceners and in the instant case, the

consent was given by, the plaintiff through his father.

I have given my anxious consideration to the matter and I am of the opinion that none of the three contentions of the learned counsel for the

appellant can be allowed to prevail.

With regard to the first plea, it would be sufficient to mention that in his written statement the appellant did not clearly, explicitly and specifically

deny the averments made by the plaintiff in Para No. 3 of his petition of plaint that he along with his father Rup Chand, and uncle Devi Dass

constituted a joint Hindu family and that the suit property belonged to the joint family. The reply made by the defendant appellant in his written

statement to these averments was very evasive. He merely stated that Para No. 3 of the plaint is correct to this extent that the suit land was

ancestral. At no time during the course of nearly two years that the suit went on in the trial court, did the plaintiff press for this issue, which is now

sought to be suggested. In these circumstance, it is not open to the appellant to raise the question at this stage. The contention raised by the learned

counsel for the appellant is accordingly rejected.

The second contention of the learned counsel for the appellant is also without any substance. The appellant Prem Nath had nowhere pleaded in his

defence that the suit could not proceed in the absence of the four daughters of Devi Dass deceased. The minutes of the proceedings of the trial

court further show that no such objection was taken even on 321964 when the learned Sub Judge recorded the order referred to above or on

3031964 or 1351964 when the issues were framed.

In the absence of any pleading regarding the omission to bring the said daughters of Devi Dass on record as legal representatives of Devi Dass, it

cannot lie in the mouth of the appellant to urge that the omission to bring the said daughters was fatal to the suit. Moreover, it was the defendant

Prem Nath who was in possession of the suit property and in the suit which was instituted during the life time of Devi Dass and wherein Devi Dass

was also impleaded as a codefendant no relief was sought against him. Furthermore, the daughters of Devi Dass do not appear to have any interest

in the property at the time of the institution of the suit.

It is well established that in a case for declaration that a certain alienation is void and ineffectual it is only the alienee who is a necessary party to the

suit, though the alienor may be joined as a proper party Reference in this connection may be made to a recent authority of the Supreme Court

reported in A.I.R.1966 Supreme Court 216. Relying on this authority, I hold that as no relief had been sought by the plaintiff against Devi Dass

deceased and the plaintiff could have effectively, obtained the relief claimed against the alienee even in the absence of the alienors, the daughters of

Devi Dass were not necessary parties to the suit As such the omission to implead the said four daughters was not fatal to the suit and the suit did

not abate because of their absence.

The third contention advanced by the learned counsel for the appellant is equally devoid of force. It is now firmly established by the catena of

decision that no coparcener can dispose of his undivided interest in the coparcenary property ,by gift. Such a transaction being void altogether

there is no estoppel or other ground of personal bar which precludes the donor from asserting his right to recover the transferred property.

Reference in this connection may be made to Bujwahan Singh and ors. v. Mt. Shyama Devi and ors , reported as A I. R. 1954 Patna, 301

wherein it has been held as follows :

'A gift by one coparcener of his undivided share to another coparcener to the exclusion of others is not valid.

Again in Guramma Bhratar Chanbasapa Dsshmukh and ors. v. Mallappa Chanbasappa and ors., A.I. R. 8964 Supreme Court, 510 Suba Roa, J.

(as his Lordship then was) speaking for the court observed as follows :

The decisions of Hindu Law sanctioned gifts to strangers by a manager of a joint Hindu family of a small extent of property for pious purposes.

But no authority went so far and none has been placed before us, to sustain such a gift to a stranger, however much the donor was beholden to him

on the ground that it was made out of charity. It may be remembered that the manager has no absolute power of disposal over joint Hindu family

property. The Hindu Law permits him to do so only within strict limits. We cannot extend the scope of the power on the basis of the wide

interpretation given to the words ""pious purposes"" in Hindu Law in a different context. In the circumstances we hold that the gift to a stranger of a

joint family property by the manager of the family is void.

The learned counsel for the appellant has in support of his contentions sought to rely on Article 258 of the Principles of Hindu Law by Mulla 1959

(Edition). In the said paragraph, the celebrated author has of course stated that a coparcener can make a gift of his interest with the consent of the

other coparceners, but in the instant case, neither from the pleadings nor far from evidence can it be inferred that the consent had been, lawfully

given by Munshi Ram minor. In fact, the learned counsel for the appellant has tried to set up a new case which he cannot be allowed to do.

A reference to the written statement (at page 9 of the trial court file) would show that the defendant appellant had nowhere alleged that the

alienation was made with the consent of all the coparceners. Even in the memorandum of the appeal before the lower appellate court, the point

was not specifically taken. Moreover, the plaintiff as at the time of the institution of the suit so also at the time of the alienation was a minor, and

there could obviously be no question of his consent. In the circumstances, there is no merit in this contention of the learned counsel for the appellant

as well.

In view of the foregoing, I find no force in this appeal which is dismissed. The judgments and the decrees passed by the courts below are affirmed.

The defendant appellant shall pay the costs of this appeal, as also of the suit and that of the first appeal to the respondent.