MISHRA, J. - (1.) APPELLANTS 1 to 6 are the intervenor -dependants and the appellants 7 to 9 are the plaintiffs 1 to 3 respectively. The plaintiffs filed a suit for partition of their 4/7th share to the suit property fully described in the schedule of the plaint. According to the plaintiffs Ramlal Mahto died in the year 1961 leaving behind his widow Most. Chourasia, who is defendant no. 4, and six daughters, namely, Dasauni Devi, Rajaunti Devi, Bhagia Devi, Sumitra Devi, Kulmatia Devi and Mahangi Devi, who are plaintiff no. 1 (appellant no. 7), plaintiff no. 2 (appellant no. 8) plaintiff no. 3 (appellant no. 9), plaintiff no. 4 (respondent no.5), defendant no. 1 (respondent no. 1), defendant no. 3 (respondent no. 3). The defendant no. 2 (respondent no. 2) is the husband of Kulmatia Devi, defendant no. 1.
(2.) THE case of the plaintiffs, in short, is that they are daughters of Ramlal Mahto. Their father Ramlal Mahto died in 1961 leaving behind his widow Most. Chourasia and six daughters, who are plaintiffs 1 to 4 and defendant nos. 1 and 3 as heirs succeeded to his property. Since the husband of defendant no. 1 usually reside with Most. Chourasia, he prevailed upon her to execute a deed of gift in her favour with respect to 1/7th share of the suit property and Most. Chourasia agreed to execute a deed of gift with respect to. her 1/7th share in favour of husband of defendant no. 1 but after committing a fraud the defendant obtained sale deed with respect to the suit properties. When the defendant no. 2 Dewan Mahto filed a petition for mutation his name with respect to the properties covered by the alleged sale deed, Most. Chourasia came to know that a sale deed in respect of the entire land of her husband was obtained from her. It is further alleged that Most. Chourasia was not entitled to execute sale deed in respect of the entire suit land of her husband. According to the plaintiff no consideration money, as mentioned in the sale deed, was ever paid to the said Most. Chourasia. Since the alleged sale deed was obtained by committing fraud, as such, the same is not binding upon the plaintiffs. Two separate written statements have been filed; one on behalf of defendant no. 2 and other on behalf of intervenor defendants. Apart from the usual defence the defendent no. 2 has alleged in his written statement that the plaintiffs 1 to 4 and defendant no. 3 are not the daughters of Ramlal Mahto but they are Daughters of Mukhlal Mahto. According to defendant no. 2 Ramlal Mahto died leaving behind Most. Chourasia and one daughter, namely, Kulmatia Devi, defendant no. 1, wife of Dewan Mahto, defendant no. 2, and after the death of Ramlal Mahto in the year 1961 his widow inherited the entire property of her husband along with only daughter, defendant no. 1. It is further alleged that Ramlal Mahto, husband of Most. Chourasia, was ailing from before and he remained ill for several years. Most. Chourasia was in need of money who sold the property to him for a sum of Rs. 30,000/ -. It is alleged that a sum of Rs. 20,000/ - was paid before execution of the sale deed and balance of Rs. 10,000/ - was paid to her at the time of exchange of equivalent. According to defendant no. 2, she voluntarily executed the sale deed after going through the contents and contrary allegation made by the plaintiffs has been denied. Similarly, the defendant -intervenor in their written statement, have stated that they are the purchaser of the suit land from Most. Chourasia and plaintiffs 1 to 3. In sum and substance, the intervenor defendants have supported the case of the plaintiffs. According to the intervenor -defendants also, Ramlal Mahto died leaving behind his widow as well as six daughters and the sale deed was executed in favour of defendant no. 2 on committing a fraud upon Most. Chourasia. On the basis of the aforesaid pleadings the trial court has framed as many as six issues, out of which issue nos. 3 and 4 are the relevant, which are as follows : "Had Ram Lal died leaving behind six daughters (plaintiffs 1 to 4, defendant nos. 1 and 3 and the widow Most. Chaurasia) as his heirs? Is the sale -deed dated 24.2.1968 (Ext. D) executed by Most. Chaurasia in favour of defendant no. 2 genuine, valid and for consideration -
(3.) IN this case the plaintiffs have examined as many as 13 witnesses in support of their case. Similarly, the defendants have examined 7 witnesses in support of their case. There is no documentary evidence tiled either by the plaintiffs or by the defendants in support of their respective cases except oral evidence adduced as stated above. The Court below on consideration of the oral evidence of the parties has accepted the case of the defendants who are main contesting party in this case and disbelieved the case of the plaintiffs and further held that Ramlal Mahto died leaving behind Most. Chourasia (defendant no. 4) as well as only daughter, namely, Kulmatia Devi (defendant no. 1). The trial court has further held that the plaintiffs have not been able to substantiate their case that Ramlal Mahto died leaving behind Most. Chourasia and six daughters. The Court has similarly disbelieved the case of the plaintiffs with regard to the execution of the sale deed in favour of defendant no. 2 relying upon the evidence of Most. Chourasia. She has categorically stated that she has voluntarily executed the sale deed and have received consideration money mentioned therein. The trial court had disbelieved the case of the plaintiffs also on the reasoning that had Ramlal Mahto died leaving behind six daughters, the other daughters must have come to the court claiming their share as well but curiously the other daughters have neither filed any written statement nor deposed in the court claiming their respective shares. On the aforesaid reasoning the trial court has non -suited the plaintiffs with respect to the disputed land. In this appeal in spite of the notices having been served upon the respondents none has appeared in their support and, as such, the appellants have been heard ex parte. Mr. Katriar has very fairly placed the evidence both on behalf of the plaintiffs as well as the defendants. P.W. 1 Baijnath Prasad has claimed himself to be the nephew of Ramlal Mahto. From his evidence it appears that Ramlal Mahto died leaving behind his widow and six daughters. He has stated that Mukhlal Mahto was his uncle, who died leaving behind one daughter Bhurui Devi P.W. 2, who is villager of the plaintiffs. P.W. 3 is the deed writer, who has proved the Exts. 1 and 1/A. P.W. 4 Baijnath Mahi is alleged to be the agnate of Ramlal Mahto and has stated that Ramlal Mahto has six daughters and Mukhlal Mahto had only one daughter, namely, Murty. P.W. 5 Raj Bali Mahto is a co -villager who has stated that Ramlal Mahto had six daughters and shradh of their father was performed by them and they normally come for cultivation one by one. P.W. 6 Panchu Mahto is villager of Ramlal Mahto. P.W. 7 is the scribe of the sale deed executed by Most. Chourasia in favour of defendant no. 2 marked as Ext. 1/1. P.Ws. 8, 9, 10 are the formal witnesses. P.W. 12 herself claimed to be one of the daughters of Ramlal Mahto who has stated in her evidence that Ramlal Mahto died leaving behind his widow and six daughters including herself. She has further stated that Most. Chourasia is in collusion with Dewan. P.W. 13 is intervenor defendant claiming himself to be purchaser of the land from the plaintiffs and is in possession over the purchased land. Similarly the witnesses examined on behalf of the contesting defendants have stated in their evidence that Ramlal Mahto died leaving behind Most. Chourasia and only one daughter, namely, Kulmatia Devi, defendant no.1. The witnesses further stated that other daughters claiming to be the daughters of Ramlal Mahto are, in fact, daughters of Mukhlal Mahto. Similarly D.W. 1 Sarju Mahto and D.W. 2 and 5 have also stated in their evidence that Ramlal Mahto died leaving behind Most. Chourasia and only daughter, namely, Kulmatia Devi. They have further stated that the other alleged daughters are, in fact, the daughters of Mukhlal Mahto.;