NIRMALA DEVI Vs. PANNA LAL

JUDGEMENT

(1.) The Defendants have filed First Appeal No. 333 of 2001 against the preliminary judgment and Decree dated 01.06.2001 passed by Sri Chandra Shekhar Sharma, the learned Subordinate Judge VI, Gaya in partition suit No. 112 of 1999 / 169 of 1995 and likewise filed First Appeal No. 61 of 2006 against the Judgment/Order dated 25.11.2005 and the final decree signed on 29.07.2005 by Sri Sushil Kumar Bharti, Subordinate Judge VI, Gaya in partition suit No. 112 of 1999 / 169 of 1995. With the consent of the parties, these appeals are heard together as the parties are same, the subject matter is same and the Advocates are also same and the First Appeals arise out of preliminary decree and final decree and they are disposed of by this common Judgment.

(2.) The Plaintiff-Respondent filed the aforesaid partition suit praying for partition of his 1/6th share from the suit properties mentioned in Schedule I of the plaint. The Plaintiff-Respondent claimed the aforesaid relief of partition to the extent of 1/6th share alleging that the father of the Plaintiff and Defendant No. 1, namely, Late Dukhan Sao held and possessed properties. The mother of the Plaintiff Bhagwati Devi also held and possessed properties. After their death, the Plaintiff and the Defendants jointly succeeded to the suit properties and are in joint possession and, therefore, there is unity of title and possession of the parties over the suit properties.

(3.) Subsequently, by amendment paragraph 4(a) was added in the plaint wherein it is alleged that after obtaining certified copy of the impugned gift deeds on 21.09.1999 the Plaintiff learnt that the deeds have been brought in existence by practicing undue influence, fraud upon the executants late Bhagwati Devi who was illiterate, pardanashin and very Mungeshwar Sahoo, J. simple lady. She never gave any instruction to the typist nor she ever asked any witness to attest the deed. The witnesses, typist and identifier are men of Jai Prakash Lal. Bhagwati Devi never expressed her intention to execute any deed of gift nor she had any independent advice. On account of mis-representation, undue influence and fraud the impugned deed has been brought in existence. The Plaintiff has reason to believe that the L.T.I. of mother Bhagwati Devi was clandestinely obtained on sada stamp paper and she never appeared in registry to admit the execution of the deed. Another paragraph 4 (b) was added alleging that similarly and in similar manner the deceased Jai Prakash Lal also by practicing fraud, mis-representation in the matter of execution, registration, the impugned deed was prepared with the help of the man and creature on the same day with the help of same typist and scribe an identifier. Paragraph 4 (c) was added wherein it is alleged that Sudama Devi and Dulari Devi, and Ram Pyari Devi all the alleged executants never appeared before the Registry to admit the execution. They have also no independent advice. They are also pardanashin, illiterate, rustic lady having no knowledge of the affairs. The L.T.I. of the executants appears to have been obtained on sada stamp paper. By virtue of all the impugned gift, Jai Prakash Lal did not acquire interest in the suit property nor the deed of gift ever given effect. The deed of gift are not binding upon the Plaintiff. Accordingly, the Plaintiff amended the prayer portion and it was prayed that on adjudication that the impugned deeds of gift dated 01.09.1986 be held as illegal, void, vitiated by fraud and never given effect too.