Mungeshwar Sahoo, J.@mdashThe Plaintiffs have filed this appeal against the judgment and decree dated 26.4.1997 passed by Sri Rama Nand
Sharma learned Subordinate Judge-Ist, Samastipur in Partition Suit No. 56 of 1995 dismissing the Plaintiffs? suit for partition.
2. The Plaintiffs filed the aforesaid Partition Suit No. 56 of 1995 claiming half share in Schedule 2 property of the plaint. The Plaintiffs further
prayed for declaration that the deed of gift dated 5.6.1989 executed by Most. Machhiya Devi is void and not binding on the Plaintiffs. The
Plaintiffs claimed the aforesaid relief on the ground that Nirsu Mahto was the common ancestor of the parties who died leaving behind two sons
namely Bal Narayan Singh and Devan Singh. Bal Narain Singh had a son Heman Singh. Heman Singh had two sons Yogendra Singh, who is
Defendant No. 1 and Mahendra Singh. This second son Mahendra Singh died leaving behind the widow Plaintiff No. 1 and sons Plaintiff Nos. 2 to
5. The Defendant Nos. 2 to 4 are the sons of Defendant No. 1 and Defendant No. 5 is the wife of Defendant No. 1. The second son of Nirsu
singh i.e. Devan Singh died issueless leaving behind his widow Machhiya Devi who also died in jointness with the Defendants and Plaintiffs. Heman
Singh, Mahendra Singh, Devan Singh and Machhiya Devi all died in state of jointness with the Plaintiffs and, therefore, the Plaintiffs and the
Defendants inherited the entire property jointly and the Plaintiffs have got half share in the property.
3. In the year 1989 Machhiya Devi was seriously ill and because of illness she had lost her sense and power of understanding and at that time
Yogendra Singh, Defendant No. 1 taking advantage of illness and critical condition of Machhiya Devi got a deed of gift executed by Machhiya
Devi on 5.6.1989 in favour of his wife Janki Devi, Defendant No. 5 with respect to the Schedule 3 lands of the plaint. According to the Plaintiffs
Machhiya Devi being a member of joint Hindu Mitakchara family had no right to execute a gift with regard to her undivided share in the joint family
properties. The witnesses scribe and identifier of the deed of gift were henchmen of Defendant No. 1 and they helped him to get the gift deed
executed and registered. Machhiya Devi had lost her sense due to illness and was not capable of understanding because of old age therefore, the
deed of gift is not a legal document and is void deed. By this deed of gift the Defendant No. 5 did not acquire any right, title and interest on
schedule 3 properties. Machhiya Devi was so much so ill that unconscious and she was unable to admit the execution of deed and in order to get
the deed registered, the Defendant No. 1 got a Commissioner appointed from district sub registry for this purpose and Defendant No. 1 got all the
formalities completed in the village in haste as such the deed of gift is created by fraud. The Plaintiffs came to know about the deed of gift on
17.5.1995. The Plaintiffs demanded for partition but the Defendants refused to partition the properties. Hence the Plaintiffs filed the suit for
partition.
4. All the Defendants have filed contesting written statements. The Defendant Nos. 1 to 3 filed joint written statement. Defendant No. 5 filed
separate written statement. Their defence is common. In the written statement besides taking various legal and ornamental pleas mainly the
Defendants contended that after the death of Bal Narain Singh there was partition in the family between Heman Singh and Devan Singh and in that
partition Devan Singh got Schedule 1 property mentioned in the written statement. Schedule 2 property of the written statement was allotted to
Heman Singh. Devan Singh died in state of separation from Heman Singh leaving behind his widow Machhiya Devi. After death of Devan Singh his
widow Machhiya Devi became the absolute owner of the properties allotted to Devan Singh. Since she was an old lady and had no issue the
Defendant No. 5 used to look after and render service to Machhiya Devi. On being pleased by the service of Defendant No. 5 Machhiya Devi
expressed her willingness to gift her properties in favour of Defendant No. 5 who accepted the offer and thereafter Machhiya Devi applied for
permission to execute the deed of gift before the consolidation officer and after obtaining permission she executed and registered the deed of gift in
favour of Janki Devi with regard to Schedule 2 properties of the plaint.
5. The further defence is that there had been partition between Yogendra Singh and Mahendra Singh and after that partition Mahendra Singh died.
In that partition Mahendra Singh was allotted Schedule 3 properties of the written statement of the Defendant Nos. 1 to 3. At the time of execution
and registration of gift deed Machhiya Devi was hale and hearty and she was also mentally alert and in that condition she executed and registered a
gift deed. The Defendants denied that she was critically ill and was not capable of executing and registering the deed of gift. They also denied that
the witnesses and identifier were henchmen of Defendant No. 1. The Plaintiffs have got knowledge about the execution of deed from the very
beginning. Plaintiff No. 1 Smt. Surti Devi had filed a case before Sarpanch and during inquiry by Sarpanch Machhiya Devi admitted to have
executed a deed of gift in her sound mind and hearty. On the death of Machhiya Devi the other properties which remained after gift was inherited
by Yogendra Singh as he was sole surviving grand son of Machhiya Devi and Plaintiffs do not acquire any interest in any of the lands of Machhiya
Devi.
6. On the basis of the above pleadings of the parties, the learned Counsel below framed following issues:
(1) Is the suit, as framed, maintainable ?
(2) Have the Plaintiffs got any cause of action for the suit ?
(3) Is the suit barred by law of limitation ?
(4) Whether there is unity of title and possession in between the parties in respect of the suit lands and if so, are the Plaintiffs entitled to a decree of
partition as prayed for ?
(5) Whether the Defendants have succeeded in proving previous partition as alleged in the written statement ?
(6) Whether the deed of gift deed dated 5.6.89 executed by Machhiya Devi is illegal, void and not binding on the Plaintiffs ?
(7) To what other relief or reliefs, if any, are the Plaintiffs entitled to ?
7. After trail the learned Counsel below found that there had been partition between Heman Singh and Devan Singh. The learned court below also
found that the gift deed is valid and legal. The learned court also found that there had been partition between the parties and, therefore, dismissed
the Plaintiffs? suit.
8. The learned senior counsel Mr. Ram Shankar Pradhan appearing on behalf of the Appellants submitted that it is the specific case of the Plaintiffs
that Defendant No. 1 who was Karta of the family got created the gift deed. He also obtained the permission from the consolidation officer by
playing fraud and got the gift deed registered by getting a Commissioner appointed because Machhiya Devi was so much so ill and was ailing that
she was unable to move and even was not understanding the affairs. The contents of the gift deed was never read over and explained to her.
Machhiya Devi did not appear before the Commissioner who had gone for registering the gift deed and L.T.I. was obtained from Parda on the
ground that she is a Pardanashin lady. The friend of Defendant No. 1 Ganaur Singh identified the lady as Machhiya Devi but in the evidence he has
clearly denied to have either written the gift deed and signed the gift deed on all pages but the learned court below held that the gift deed was
executed in sound mind by Machhiya Devi. The learned Counsel further submitted that even the Commissioner did not ask any question to
Machhiya Devi and at the instance of the Defendant No. 1 he made the endorsement in the gift deed but the learned court below has not
considered these matters and held that the gift deed is valid. The witnesses examined on behalf of the Plaintiffs have stated that Machhiya Devi was
ill, ailing and not capable of understanding the affairs but the learned court below did not consider these evidences. The learned Counsel next
submitted that the Defendants in the written statement also admitted the fact that the Machhiya Devi was very old and needed service of Defendant
No. 5. This appears also that on the ground of Pardanashin she was not brought in front of the Commissioner who had gone to her house and her
L.T.I. was obtained from behind Parda and Ganaur Singh identified her to be Machhiya Devi.
9. The learned Counsel next submitted that In view of the above admitted facts, the onus was on the Defendants to prove satisfactorily that the
contents of the deed was read over and explained to Machhiya Devi and thereafter understanding the contents and implication thereof Machhiya
Devi put her L.T.I. in presence of the Commissioner but the Defendants filed to prove this fact, even then the learned court below held that the gift
deed is illegal and binding on the Plaintiffs. The learned Counsel further submitted that in the grant of permission to sell the Defendant No. 1 played
an important role by certifying that the Raiyat died issueless and he has got no objection if permission is granted. This indicates that he obtained the
permission from the consolidation officer in haste. An application for permission was filed on 27.5.1989 and the report of the Amin was obtained
on 1.6.1989. On that very date permission was granted and thereafter on 5.6.1989 the so called gift deed was executed but on the next date on
the ground that Machhiya Devi is ill a Commissioner was appointed who came to her house and thereafter the deed was registered. According to
the learned Counsel these circumstances clearly proves that the Defendant No. 1 by playing fraud obtained the gift deed which has been marked
as Ext.-C. Identifier Ganur Singh has been examined on behalf of the Plaintiffs as PW 15 who has clearly denied that any gift deed was executed
and he signed on every page. According to the learned Counsel there was no partition between the husband of Machhiya Devi and Heman Singh
and the properties were joint and, therefore, Machhiya Devi had no right to execute the deed of gift. On these grounds, the learned Counsel
submitted that the impugned judgment and decree are liable to be set aside.
10. As stated above nobody appears on behalf of the Respondents.
11. In view of the above facts and circumstances and the contention of the learned Counsel for the Appellants and in view of the judgment and
decree and pleadings of the parties the points arise for consideration in this appeal are:
(1) As to whether the Plaintiffs have been able to prove their unity of title and possession over the suit properties and whether their had been
partition between Haman Singh and Devan Singh ?
(2) As to whether the gift deed Ext.-C is valid, genuine or is obtained by playing fraud by Defendant No. 1 as such is void document as claimed by
the Plaintiffs and whether it is binding on the Plaintiffs or not and whether the impugned judgment and decree are sustainable in the eye of law ?
12. Point No. 1. According to the Plaintiffs the family is joint and the suit property mentioned as detail in Schedule 2 is joint family properties which
belong to Heman Singh who died in the state of jointness with the Plaintiffs and Defendants. On the contrary, according to the Defendants case
there had been partition between Devan Singh and Heman Singh. The Schedule 1 property of the written statement was allotted to Devan Singh
which was inherited by her widow Machhiya Devi and Machhiya Devi gifted the properties mentioned in Schedule 3 of the plaint to the Defendant
No. 5.
13. The parties have adduced oral as well as documentary evidences in support of their respective case. PW 3, 6, 8, 9 and 10 have stated that the
Plaintiffs and Defendants are joint and there had been no partition between them. According to PW 20 the parties are separate since two years
only. PW 19 is the Plaintiff No. 1 Surti Devi who has fully supported her case as made out in the plaint and PW 21 is her son. The Plaintiffs have
also produced rent receipts, which are in the name of Devan Singh. Ext.-1/B is the rent receipt in the name of Devan Singh for an area of 10 bigha
8 kattha 25/2 dhur and this rent receipt is of the year 1988 Ext.-1/A is another rent receipt of the year 1994 -95 for an area of 6 bigha 5 kattha
12/2 dhur and which indicates that the area of land covered by gift was deducted. Ext.- and Ext.-8 are revisional survey parcha which are in the
name of Devan Singh and Heman Singh.
14. On the contrary, the Defendants have also examined witnesses who have stated that there had already been partition between Devan Singh
and Heman Singh. DW 3 has stated that there had been partition between the parties also. DW 13 is the Defendant No. 5 and DW 14 is the
Defendant No. 1 Yogendra Singh. It may be mentioned here that Yogendra Singh died during the pendency of this appeal and his name has been
deleted. Ext.-B is rent receipt in the name of Devan Singh of the year 1994-95. Ext.-B/1 is rent receipt in the name of Janki Devi for the gifted
property for the year 1994-95. Ext.-B/2 is the rent receipt in the name of Janki Devi for the year 1996-97.
15. From the pleadings it is clear that the Plaintiffs? case is jointness whereas the Defendants? case is that there had been partition between Heman
Singh and Devan Singh. According to Hindu Law the presumption of jointness is in favour of the Plaintiffs. Under the Hindu Law the Hindu family
is presumed to be joint unless the contrary is proved. Therefore, here the onus lies on the Defendants to prove that there had been partition
between Heman Singh and Devan Singh.
16. In view of the above facts, now let us consider the evidences produced by the Defendants to prove the partition alleged by them in the written
statement.
17. The Defendants have adduced 15 witnesses. DW 3 Kamal Singh has stated that Nirsu Singh had two sons namely Bal Narayan Singh and
Devan Singh. Both were joint. Bal Narain had a son Heman Singh. There had been partition between Heman Singh and Devan Singh. At
paragraph 4 in his cross-examination he has specifically stated that there had been no partition between Bal Narain Singh and Devan Singh. DW 6
has only stated that Devan Singh had 5, 6 bigha land and after his death Machhiya Devi came in possession of the said land. DW 12 has also
stated the same thing as that of DW 6. DW 13 is Defendant No. 5 in this case. DW 14 is the Defendant No. 1 himself. Both of them i.e. DW 13
and DW 14 have stated that Devan Singh and Bal Narain Singh were joint. Their specific case is that there was partition between Heman Singh
and Devan Singh. This is the pleading also in the written statement. So far oral evidences are concerned this is the evidences regarding partition.
None of the witnesses have stated that in which year partition took place.
18. The Defendants have adduced documentary evidences also. Ext.-B is the rent receipt of the year 1994-95. Ext.-B/1 is rent receipt in the name
of Janki Devi with regard to gifted property for the year 1995. Ext.-B/2 is rent receipt for the year 1996-97 in the name of Janki Devi, Defendant
No. 5. These rent receipts show only the mutation of Janki Devi and Devan Singh that too at the time of or during the pendency of the suit.
Therefore, by these rent receipts it cannot be conclusively arrived at that there had been partition between Devan Singh and Heman Singh.
19. Ext.-C is the alleged deed of gift dated 5.6.1989. From perusal of this Ext.-C said to have been executed by Machhiya Devi it appears that it
is clearly recited in the deed that there had been partition between Devan Singh and Bal Narain Singh. This document is contrary to the case
pleaded by the Defendants in the written statement. Therefore, the case of the Defendants as made out in the written statement and the oral
evidences discussed above clearly contradicts each other. The registered document recites that there had been partition between Devan Singh and
Bal Narain Singh whereas the witnesses have stated that both of them were joint. Therefore, this document also does not support the Defendants?
case.
20. Ext.-E is information application given by Defendant No. 1 to the S.D.O. being Information Case No. 371 of 1996 wherein also the
Defendant No. 1 admitted that Bal Narain Singh and Devan Singh were joint. However, this Ext.-""E? has been filed during the pendency of the suit
itself and moreover any statement made in this exhibit is nothing but self serving statements. In other words, the document is self serving and
therefore, it cannot be used against the Plaintiffs. Ext.-H series are the voter list. These documents have been filed to show that the parties were
living separately in separate house. In my opinion, these documents i.e. voter list also do not prove that there had been partition between Heman
Singh and Devan Singh. At best it can be said that the parties were living in separate house.
21. From perusal of the impugned judgment it appears that the learned court below relied on these Ext.-H series and gave much emphasis and
presumed that there had been partition between the parties otherwise the parties would not have been living in separate house. This approach of
the learned court below is not tenable. Ext.-F series are the order sheet of Sarpanch, Gram Panchayat. The order sheet dated 14.6.1989 was
passed by the Sarpanch saying that since the property relates to more than 6 bigha land the Gram Panchayat court has got no jurisdiction. It
appears that these documents have been filed by the Defendants regarding the validity of the gift deed. These are the documentary evidences
produced by the Defendants. From the above discussions that except the oral statement of the Defendant No. 1 and Defendant No. 5 and one or
two witnesses that Devan Singh was separate. There is no evidence in support of the said facts. In the pleadings also except the bald statement as
has been stated by the witnesses appears to be only bald statement. Moreover, the registered deed Ext.-C on the basis of which the Defendants
are claiming title regarding the property of Devan Singh is also not supporting the case of the Defendants.
22. Now let us consider the evidences adduced by the Plaintiffs.
23. PW 3, 6, 8, 9, 10 and the Plaintiff No. 1 herself as PW 19 have stated that the family is joint and the properties is also joint. Ext.-2 and Ex.-8
are revisional survey parcha which stands jointly in the name of Devan Singh and Heman Singh. Ext.-4 is the order sheet of consolidation authority
from which it appears that the Defendant No. 1 certified that Khata Raiyat died issueless. Therefore, he played an important role in the grant of
permission. Ext.-5 is the application for permission. From perusal of which it appears that the application was filed for permission to transfer half
portion of the suit property and not specified land. From perusal of the schedule it appears that 50% of each plot has been mentioned without
giving boundary and as to which side of the plot. Ext.-6 is the Amin Report. From perusal of the Amin report it appears that he has clearly given
report that Machhiya Devi the applicant has got half share in the property and, therefore, permission may be granted. In the report it is not
mentioned that Machhiya Devi was in separate portion rather it is stated that Machhiya Devi had half share. This again indicates that there was
joitness between the husband of Machhiya Devi and Heman Singh. Ext.-7 is the permission. In the schedule of the said permission also 50% of
each and every plot has been mentioned without specifying the boundary and also without specifying as to which side of the plot. It again support
jointness of the property. It is not the principles of partition that each and every plot should be divided half and half. From the schedule of the
application and the Amin reports coupled with Ext.-7 it appears that some of the plots which measures only 2 decimal, 4 decimal, 5 decimal, 6
decimal have also been divided half and half. In my opinion, it appears to be not believable and smack some foul play. All these documents clearly
prove the jointness of the property. As stated above the learned trial court swed away by Ext.-H series i.e. the voter list. The learned court below
also while discussing the evidences of Plaintiffs observed that the witnesses and the Plaintiff herself (PW 19) admitted that they are cultivating the
lands separately. It may be mentioned here that since the claim of the Plaintiffs for partition was refused the suit has been filed. The witnesses have
stated that the Plaintiffs are cultivating the lands separately since 1995. That does not mean that there had been conclusive partition by meets and
bounds between the parties. At paragraph 16 it appears that the learned court below given much emphasis to the admission of the Plaintiffs and her
witnesses who have stated that they are cultivating the lands separately and came to the finding that the Defendants have succeeded in proving the
previous partition. It may be mentioned here that the specific case of the Defendants was that there had been partition between Devan Singh and
Heman Singh. We have seen above that there is no reliable evidence either oral or documentary produced by the Defendants. The witnesses which
have been referred to by the trial court have only stated that the Plaintiffs are cultivating the lands separately from the year 1995. It is not the
admission of the witnesses of the Plaintiffs regarding previous partition. Further from the admission itself it appears that there is unequal area of
lands in possession of the parties which is striking to the conscience of the court. Had there been partition the members would have been allotted
equally. The learned court below further gave much emphasis on Ext.-C, the alleged gift deed which is under challenged. As stated above there is
much contradiction between the pleadings and the statement made in the Ext.-C regarding previous partition therefore, the reasoning of the learned
court below is not tenable. So far partition between Yogendra Singh and Mahendra Singh is concerned also except the statements and the self
serving documents, there is nothing on record in support of the said claim. The rent receipts or mutation are of the year 1995 and thereafter the suit
has been filed in the year 1995.
24. The learned Counsel below while giving finding regarding previous partition has not considered all the statements made in Ext.- C that there
had been partition between Devan Singh and Heman Singh and also Ext.-5 - 6 - 7 which speaks that Machhiya Devi had half share and that the
schedule properties given in these exhibits were unspecified and no boundary or side of plot was mentioned. Even very very small area of land has
been alleged to have been divided. Therefore, the finding of the learned court below is based on evidences which are not the evidences regarding
previous partition as such it is vitiated.
25. In view of my above discussion, I find that Defendants have failed to prove previous partition between Heman Singh and Devan Singh. The
finding of the learned court below on this point is therefore hereby reversed and it is held that the suit property is joint property. Thus, the point
No. 1 is answered in favour of the Plaintiffs Appellants.
26. Point No. 2- According to the Plaintiffs the property was joint and Machhiya Devi died in jointness. At the time of the execution of gift deed
Ext.-C she was old infirm and not capable of understanding the affairs and the Defendant No. 1 by playing fraud got the gift deed executed and
registered in the name of his wife Janki Devi from Machhiya Devi. The contents of Ext.-C was never read over and explained to her and without
knowing the contents and its implication L.T.I. was obtained and, therefore, Ext.-C is void document. On the contrary, according to the
Defendants the said gift deed is valid and genuine and Mahchiya Devi executed the same after understanding its implication and she was not ill at
the time of execution of the gift deed. In support of their respective cases the parties have adduced oral evidences and documentary evidences.
27. PW 3 has stated that Machhiya Devi died after one and half years long illness. This witness was going to visit her during that illness period. Six
months prior to her death she had lost her mental balance and she was not even able to hear and understand the affairs. Machhiya Devi died on 6th
August 1989. PW 4 has stated that Machhiya Devi died after long illness about 1 1/2 years. He was also going to visit her during illness. Two days
prior to her death also this witness had visited her but she could not identify this witness. PW 12 has stated that Machhiya Devi had not executed
any gift deed in favour of Janki Devi and the gift deed if any is forged and fabricated. Six month prior to her death Machhiya Devi had lost her
sense. This witness was also visiting her regularly. PW 13 has also stated that Machhiya Devi was senseless. PW 15 Ganaur Singh is said to be
witness on the gift deed. He has clearly denied his signature in each pages of the gift deed except page one. He has stated that he is friend of
Defendant No. 1. In 1989 Yogendra Singh called him and gave a piece of paper and asked him to writ down in another paper and thereafter he
took away the said written paper and obtained signature of this witness. He has further stated that he had gone to see Machhiya Devi on that day.
Machhiya Devi did not talk to him. When this witness loudly spoke she open her eyes and then again closed. Prior to that day and also after that
day this witness was visiting Machhiya Devi and during that period Machhiya Devi had no sense. In the cross examination he has admitted his
signature on the first page which has been marked as Ext.-A. He denied the signature of other pages. He also denied his signature on the back
page of gift deed Ext.-C. At paragraph 4 of his cross-examination he has stated that Machhiya Devi was residing in joint house in one room.
Suggestion has been given to this witness that he had identified Machhiya Devi and signed on Ext.-C to which he had denied. PW 18 has also
stated that gift deed is forged and Janki Devi never came in possession on the basis of gift deed. PW 19 is the Plaintiff No. 1 herself. She has also
stated that prior to her death Machhiya Devi was ill since 1 1/2 year. Six months prior to her death she was senseless.
28. It is the case of the Plaintiffs that Machhiya Devi was senseless prior to her death and she was not understanding the affairs. The onus is upon
them to prove this fact.
29. Now let us consider the Defendants? witnesses.
30. DW 2 has stated that in 1989 Machiya Devi told Janki Devi that she is desiring to gift her land because she was pleased with Janki Devi seeing
her service. Janki Devi accepted the offer and Machhiya Devi executed the gift. She was never ill and she executed the will in her good health and
mind. Such is the evidence of DW 3, 5 and 6. It appears that the evidences of these witnesses are just like parrot statements. DW 7 has stated that
on 5.6.1989 Machhiya Devi along with Suresh Prasad Mishra and Ganaur Singh had gone to him. At the instance of Machhiya Devi he scribed gift
deed and read it over to Machhiya Devi. Machhiya Devi in his presence put her thumb impression and Ganaur Singh identified her. Suresh Prasad
Mishra also put his signature as witness. On that day gift deed was not presented for registration. Machhiya Devi took the gift deed with her. On
the second day Janki Devi came to this witness with the said gift deed and told him that Machhiya Devi is suffering from stomach ach and this
witness produced gift in the registry office. The Commissioner was appointed and the deed was registered on the said very day in the house of
Machhiya Devi. In the cross examination he has stated that he was not knowing either Machiya Devi or Janki Devi. He was also not knowing any
witness or identifier. He told the name of witness and identifier on seeing the gift deed. From the evidences of this witness it is clear that he was not
knowing either Machhiya Devi or Janki Devi or even the name of witness and the name of identifier. On the basis of gift deed he deposed before
the court.
31. DW 8 has stated that on 1.6.1989 Machhiya Devi and Janki Devi had gone to consolidation office for obtaining permission. DW 9 is Suresh
Prasad Mishra the witness on Ext.-C. DW 10 has stated that Ext.-C was registered on 6.6.1989 which was produced before the registry office by
Janki Devi. It appears that this witness was appointed as Commissioner who had visited the house of Machiya Devi. It may be mentioned here that
he is clerk in the registry office. He h as stated that the thumb impression of Machhiya Devi was obtained by Ganaur Singh from behind Parda. In
the cross- examination he has admitted that Machhiya Devi was behind the Parda and he had not seen Machhiya Devi. When he told that she
should come out from Parda he was told that because Machhiya Devi is Pardanashin she is not coming out of Parda. This witness has also stated
that he did not ask any question to Machhiya Devi nor he can say physical feature of Machhiya Devi or her age.
32. We have discussed the evidences of other witnesses of the Defendants who have stated that Machhiya Devi had gone to scribe herself.
Machhiya Devi had gone to consolidation office herself and applied for permission. If Machhiya Devi was Pardanashin she would not have
appeared publicly and would not have gone personally before the scribe or before the consolidation office. The witnesses have admitted that
Machhiya Devi had gone to them and they had talked with them. PW 7 admitted that he was not knowing Machhiya Devi but then he stated that
Machhiya Devi told him to scribe the gift deed and at the instance of Machhiya Devi the other witnesses signed. All these evidences clearly indicate
that Machhiya Devi was not Pardanashin. In such circumstances the question arises as to how she became Pardanashin on the date when
Commissioner went to her house for obtaining her L.T.I. on Ext.-C. She did not even come out of her Parda and appear before Commissioner in
presence of others i.e. Ganaur Singh and her other family members. This appears to be suspicious. PW 15 Ganaur Singh had clearly denied this
fact to have identified Machhiya Devi. In the back of Page 2 of Ext.-C the Commissioner has clearly stated that he obtained L.T.I. of Machhiya
Devi from behind Parda.
33. On 5.6.1989 Machhiya Devi herself went to the scribe and got the gift deed executed and got the signature of the witnesses but on the next
very day the gift deed was presented by Defendant No. 5 before the registry office. When the commissioner went to her house she did not appear
before him. L.T.I. was given from behind Parda on the ground that she is Pardanashin. It is stated that Ganaur Singh identified her but Ganuar
Singh denied this fact in his evidence. Admittedly, the witnesses have stated that Machhiya Devi was 85 - 90 years old. The Commissioner is not
able to say about physical feature of Machhiya Devi and also unable to say her age. In my opinion, therefore, the gift deed appears to be doubtful.
The Defendants were to prove the gift deed by removing all suspicious circumstances. Although the Defendants admitted that she was aged about
85-90 years but then they have stated that she was not ill. We have discussed the circumstances in which this gift deed was presented and it was
registered. So far this suspicious circumstances is concerned it has not been explained by the Defendants.
34. Ext.-3 series are the medical prescription of Machhiya Devi ranging from 1977 to 1988. From perusal of Ext.-3-b dated 25.5.1987 it appears
that the doctor found Machhiya Devi senseless and the disease was found lungs conjection and severe weakness was there. Treatment continued
up to 20.6.1987 by that prescription. Ext.-3/A is another medical prescription which is dated 12.7.1988 wherein again she was found senseless
and severe weakness. No diet was being given to her. The doctor prescribed liquid diet. On 20.7.1988 the doctor directed to repeat the said
treatment which was prescribed earlier on 12.7.1988. These medical prescriptions were never challenged by the Defendants. In the evidence only
the witnesses including the Defendant No. 1 and Defendant No. 5 have stated that Machhiya Devi was hale and hearty and she was never ill. This
evidence is totally demolished by these medical evidences. Further these medical evidences are clearly supported by the oral evidences adduced
by the Plaintiffs.
35. From perusal of the impugned judgment it appears that the learned court below has not at all considered the case in the light of above
evidences. The learned court below approached the case in wrong angle. He relied upon the evidences of the Commissioner without considering
the fact that he is only a clerk and he never talked Machhiya Devi.
36. So far the order of Gram Panchayat Kachahari is concerned also it cannot be looked into because the Sarpanch has found that the case filed
by Surti Devi Plaintiff No. 1 before Gram Kachahari is not within the jurisdiction of Gram Kachahari. Therefore, any finding or observation given
by Gram Kachahari in the order sheet Ext.-F series is not binding and conclusive. Moreover, the Sarpanch or so called other villagers has not been
examined on behalf of the Defendants. The learned court below has not considered this aspect also. In my opinion therefore, the reasoning
assigned by the court below is not acceptable.
37. In view of my above discussion, I find that the Defendants have failed to prove that Ext.-C is valid and genuine document. The Defendants
have failed to explain the circumstances discussed above. It appears that on the ground of Pardanashin some body else put L.T.I. It is not the case
of the Defendants that Machhiya Devi was a Pardanashin. I therefore, find that the Ext.-C gift deed is obtained by the Defendants fraudulently and,
therefore, it is void document. No title passed on the Defendant No. 5 on the basis of Ext.-C. The finding of the learned court below on this point
is therefore, reversed.
38. In the result, this first appeal is allowed. The impugned judgment and decree are set aside and the Plaintiffs? suit for partition to the extent of
half share is decreed. The parties shall bear their own cost.