RAM CHANDRA YADAV Vs. YAMUNA YADAV

JUDGEMENT

(1.) The Defendants have filed this First Appeal against the judgment and Decree dated 14.05.1997 passed by Mr. Abid Ansari, the learned Subordinate Judge I, Aurangabad in Partition Suit No. 71 of 1995 decreeing the Plaintiff-Respondent partition suit to the extent of 1/4th share.

(2.) The Plaintiff-Respondent No. 1 & 2 filed the aforesaid partition suit praying for partition of their 1/4th share in the suit land and also to set aside the deeds of gift dated 28th February, 1994 and 18th July, 1994. The Plaintiff's case in short is that Mangar Yadav died in 1980 leaving behind his son Ram Balak Yadav, the Defendant No. 1 and grand son, Ram Chandra Yadav (Defendant No. 2-appelant No. 1) and Jamuna Yadav (Plaintiff No. 1 Respondent No. 1). Both sons of Aklu Yadav, Mangar Yadav and Ram Balak Yadav had business of milk and used to keep cows and buffaloes and they earned sufficient income from which they purchased landed property mentioned in Schedule 'A' of the plaint. The property is joint family property of the parties. Aklu Yadav, the second son of Mangar Yadav died in the year 1940. After death of Mangar Yadav, Ram Balak Yadav became karta of the joint family. The Defendant No. 2 was literate so the money and savings of the joint family were given to him who used to purchase the lands in the name of different members of the family, out of the said joint family fund. Defendant No. 1 is under the influence and coercion of Defendant No. 2. So the Defendant No. 2 got partition suit No. 85 of 1989 filed in the name of Defendant No. 1 Ram Balak Yadav which was dismissed for default. The suit property is still joint and there had been no partition between the parties, therefore, the Plaintiff has got 1/4th share. The Plaintiff came to know that Defendant No. 2 got created sham and collusive deeds of gift dated 28th February, 1994 and 18th July, 1994 in the name of his sons and daughters-in-law by Defendant No. 1 in respect of joint family property. Ram Balak Yadav is very old aged about 90 years and has lost his mind and understanding as well as hearing as such the said deeds of gift are void and executed by a coparcener in respect of coparcenaries property. The done never came in possession over the disputed land. The gift deeds are void. The Plaintiff demanded partition but the Defendants refused. Hence the suit for partition was filed.

(3.) On being noticed, the Defendant No. 1 to 7 appeared and filed a contesting written statement. Their main defence is that there is unity of title and possession between the parties. There was partition in 1989 amongst Ram Balak Yadav, Jamuna Yadav and Ram Chandra Yadav by metes and bonds. The Plaintiff got the partition suit No. 85 of 1989 filed in the name of Ram Balak Yadav with malafide intention. Though Ram Balak Yadav was separate from before. Ram Chandra Yadav and Jamuna Yadav were also separate from each other. Ram Balak Yadav voluntarily and consciously executed the gift deeds in favour of Smt Savitri Devi, Rajendra Yadav, Satendra Yadav and Sanjay Kumar and done came in possession over the donated land. In the partition, Schedule I land of written statement was allotted to Ram Balak Yadav and Schedule II land of written statement was given to Jamuna Yadav and rest land to Ram Chandra Yadav. Ram Chandra Yadav was in military service from 1958 to 1988 and from the earnings of his service, he acquired the properties in the name of his wife and sons bearing plot No. 613, 695, 594, 675 of Khata No. 44 and plot No. 1661 of Khata No. 18 and plot No. 1761 and these property are never the joint family properties. The gift deeds are valid and binding on the Plaintiff. There was no undue influence of coercion on Ram Balak Yadav.