G.K. Misra, C.J.
1. The following genealogy would show the relationship of the parties:
| | |
Nanda Binod Hari
| | |
______|__________ Kalandi __________|____________
| | | | | |
Bikal Baidhar ____|___________ Sahdu Jai Panchanan
| | | | (D.1) (D.2) (D.3)
widow widow Hrushi Sunaskar
Lochan Jasoda D.5 D.6
widow Tabha | |
(D.4) Gananath Srinath
2. Admittedly, in the disputed properties Keshab's branch has eight annas nine pies interest while Bhikari's branch has seven annas three pies interest. Dhwajamani died sometime in 1923. Defendant 4 Tabha, widow of Dhwaja-mani, transferred certain properties under a registered sale deed, Ext. A, on 18-7-62 to defendants 1 to 3.
Plaintiffs are the sons of Baidhar. The suit is filed by them for declaration of their title to the disputed land, and for a further declaration that Ext. A is not binding on them. Their case was that Dhwajamani died in a state of jointness and the properties passed to them by survivorship.
3. Defendants 1 to 4 contested the suit alleging that there was severance of joint status before the death of Dhwajamani, and defendant 4 was entitled to effect transfer of specific lands which were in her possession and certain shares of other lands were in her joint possession with the plaintiffs and defendants 5 and 6.
4. All the courts concurrently found that Dhwajamani died in 1923.
The trial court decreed the suit on the finding that Dhwajamani died in a state of jointness. The lower appellate court and the learned single Judge held that Dhwajamani died in a state of separation. They accordingly dismissed the plaintiffs' suit.
Plaintiffs obtained leave from R. N. Misra J., and that is how this A.H.O. has come before us.
5. The moot question for consideration in this case is whether Dhwaja-mani died in a state of separation or jointness.
The finding of the lower appellate court is a pure finding of fact, and is binding on this court in second appeal.
6. Mr. Sinha however, very vehemently contended that this finding is not based on a consideration of relevant evidence.
After having gone through the materials on record very carefully, we are satisfied that the finding of fact is unassailable. It is based on the settlement record of 1931 wherein Tabha has been jointly recorded in respect of some lands with other co-sharers. This is consistent only with the theory that she was not a maintenance holder, but had some interest in the property. The rent receipts filed in this case also indicate that she was paying rent along with the other co-sharers. They spread over a period of over twenty years, and the other co-sharers had not raised any objection to the insertion of her name either in the settlement records or in the rent re-ceipts. The chowkidari receipts also stand in her name in 1949 and 1955.
Mr. Sinha places reliance on a mortgage deed, Ext. 6 dated 25-4-22 to show that the other co-sharers mortgaged the joint family properties to effect the marriage of Dhwajamani. The document only shows that Dhwajamani had not been married by then. The statement of witnesses that there was separation two years before marriage cannot be construed with mathematical precision. The witnesses are not expected to be precise about the time of marriage. Clearly, the severance of joint status was after marriage.
7. On the aforesaid analysis, we are satisfied that the finding of fact recorded by the 1st appellate court confirmed by the learned Single Judge that Dhwajamani died in a state of separation is unassailable.
8. On our conclusion that Dhwaja-mani died in a state of separation, defendant 4 is entitled to inherit the share of Dhwajamani. In the eight annas nine pies interest belonging to Keshab's branch, defendants 5 and 6 are entitled to half. In the other half, plaintiffs and defendant 4 have half share each. Thus, the interest of defendant 4 in the disputed properties is two annas, two and one-fourth pies.
9. In the sale deed Ext. A, defendant 4 has transferred more than her interest in the disputed properties. The position can be made clear by indicating the area transferred by her in the various plot numbers.
Plot No.Total Area.Area sold
4920.13 acre. 0.04 acre 3 kadis4910.16 acre. 0.05 acre 3 kadis4890.21 ')
)Total area -
0.77 acre.Area sold :
0.13; 3 Kadis.4900.35 '5780.12 '5790.06 '5800.03 '
Thus out of 1.06 acres in plot Nos. 492 494 489, 490, 578, 579 and 580 defendant 4 transferred 0.23 acre to defendants 1 to 3.
In 1.06 acres, eight annas nine pies interest represents 0.59 acre and 5 kadis. Out of this, the four annas share of defendant 4 would be 0.14 acre and 9 kadis. Thus, though her share would represent 0.14 acre 9 kadis, she sold 0.23 acre which is much more than her share.
10. Similarly, out of plot Nos. 167, 205. 303, 356, 437, 439, 443 and 201 in Khata No. 63 having a total area of 1.27 acres, defendant 4 transferred 0.38 acre and 34 kadis. In 1.27 acres, the eight annas nine pies interest is 0.64 acre. The one-fourth interest of defendant 4 therein is 0.16 acre. She, however, sold 0.38 acre and 31/4 kadis which is much in excess of her interest.
The question for consideration is whether the entire sale deed would be declared invalid and inoperative on the ground that she transferred much more than her own interest in the disputed lands. On this ground the sale deed cannot be invalidated in toto. It would be valid and operative to the extent of defendant 4's interest in the disputed lands. Her interest in the disputed lands is two annas, two and one-fourth pies. The sale deed is valid to the extent it transfers her two annas, two and one-fourth pies interest in the disputed lands and it is invalid in respect of the excess interest transferred.
11. The result of the aforesaid discussion is that the plaintiffs' suit for a declaration that they have title to the disputed properties to the exclusion of defendant 4 is to be dismissed. Their prayer that the sale deed, Ext. A, be declared invalid as a whole is also to be dismissed. A declaration is to be given that the sale deed is valid to the extent it transmits two annas two and one-fourth pies interest of defendant 4 in favour of defendants 1 to 3 and is invalid in respect of the excess interest transferred. Defendants 1 to 3 would be in joint possession with the other co-sharers.
Thus, the suit is decreed in part.
12. In the result, the judgment of the learned Single Judge is set aside and the appeal is allowed in part as indicated above.
In view of the partial success, parties to bear their own costs throughout.
13. I agree with my Lord.