Vishnudeo Narayan, J.
1. This appeal at the instance of the plaintiff/appellant is directed against the impugned judgment and decree dated 20.6.1988 and 28.6.1988 respectively passed in Title Appeal No. 31 of 1986 by Shri Yugal Klshore Prasad, 6th Additional District Judge, Palamau whereby and whereunder the appeal was allowed and the judgment and decree dated 7.5.1986, and 17.5.1986 passed in Title Suit No. 12 of 1985 by Muns if, Palamau at Daltonganj was reversed.
2. The plaintiff/appellant Hira Mani Devi had filed the aforementioned suit for declaration of her right, title and interest in respect of the suit property i.e. 4 decimals of land of plot No. 896 appertaining to Khata No. 67 situate in village Narsingpur @ Pathra, P.S. Chainpur, District Paiamau detailed in the schedule of the plaint and recovery of possession.
3. The case of the plaintiff/appellant is that plot No. 896 of Khata No. 67 having an area of 4 decimals situate in village Narsingpur @ Pathra stands recorded in the Survey Records of Right in the name of Padarath Ram as 'Kayamy Belagan' land and he was in possession over the land and the house standing on the aforesaid suit land till his life. It is alleged that Padarath Ram died about 50 years ago leaving behind his two sons, namely Triveni Ram and Bhawani Ram who inherited the suit property and came in possession thereof along with other lands and Triveni Ram aforesaid also died in the year 1952 in the state of jointness with his brother Bhawani Ram aforesaid leaving behind his only son Ayodhya Ram and four daughters and after the death of Triveni Ram his only son Ayodhya Ram inherited the suit property excluding the four daughters of Triveni Ram as these daughters had no right in law to inherit the suit property and Ayodhya Ram came in possession thereof having exclusive title therein. Bhawani Ram also died issueless in the year 1962 in the state of jointness with Ayodhya Ram as member of the Mitakshara Joint Hindu Family and since then Ayodhya Ram had exclusive title and possession in respect of the suit land. It is alleged that Ayodhya Ram executed a sale deed dated 12.11.1975 for Rs. 1000/- in respect of the suit land in favour of the plaintiff appellant and put the plaintiff appellant in possession thereof and since then the plaintiff appellant acquired right, title and interest in respect of the suit land and came in possession thereof and continued in possession of the suit land. It is alleged that there was a dilapidated house over the area of one decimal of the suit land and the plaintiff appellant was coming in possession over the same and cultivated 3 decimals of suit land and used to keep her cattle in the said dilapidated house. The case of the plaintiff appellant further is that the defendants respondent surreptitiously kept the tools of repairing cycle in the dilapidated house aforesaid in the night in the month of December, 1982 in the absence of the plaintiff appellant and her husband and on being asked to remove his illegal possession, the defendants respondent refused to vacate the said dilapidated house and the matter was reported to the Circle Officer, Chainpur where the mutation proceeding was pending in respect thereof and the mutation case of the plaintiff appellant was rejected by the Circle Officer. It is further alleged that the plaintiff appellant came to learn during the pendency of the mutation proceeding that the defendants respondent had based their claim in respect of the suit land on the basis of an illegal, bogus and fraudulent sale deed purported to have been executed by the sisters of Ayodhya Ram executed in favour of the defendants respondent and the sisters of Ayodhya Ram had no right, title and interest to execute the sale deed in favour of the defendants respondent as Triveni Ram aforesaid had died prior to the enforcement of Hindu Succession Act, 1956 and the plaintiff appellant had acquired right and title in the suit land and she is in possession by virtue of the sale deed dated' 12.11.1975 executed by Ayodhya Ram.
4. The case of the defendants respondent, inter alia, is that the suit property besides plot No. 913 was acquired by Ram Dhan Ram and he constructed a house on the suit land and he was residing with his family in the said house. Ram Dhan Ram aforesaid died prior to cadastral survey leaving behind his two sons, namely, Padarath Ram and Ranjeet Ram and Ranjeet Ram was minor being an infant and Padarath Ram was major at the time of cadastral survey and he was the head and karta of the family and both Padarath Ram and Ranjeet Ram had inherited the suit land on the death of their father Ram Dhan Ram but the suit land was recorded as raiyati land in the name of Padarath Ram in the cadastral survey records of right. The defendants respondent are the sons's son of Ramjeet Ram aforesaid. It is alleged that Padarath Ram died about 40 years ago leaving behind his two sons, namely, Triveni Ram and Bhawani Ram. Wife of Bhawani Ram predeceased him. Triveni Ram, also died in the year 1957 leaving behind his widow Madoda @ Madodra Devi, his son Ayodhya Ram and four daughters, namely, Jaso Devi, Baso Devi, Bigrii Devi and Fulpati Devi and they all inherited the suit property in respect of the interest of Triveni Ram and the descendants of Ramjeet Ram had half share in the suit property. It is alleged that Bhavani Ram aforesaid had love and affection for his cousin defendant respondent Kailash Ram who was looking after and nursing him since long and out of love and affection Bhavani Ram gifted half area in the suit plot besides other plots in his favour and also executed a deed of gift on sada paper on 5.3.1957 and defendant respondent Kailash Ram accepted the gift and came in possession of the house and land to the extent of the interest of Bhavani Ram who died issueless in the year 1964-65. It is also alleged that defendant respondent Kailash Ram had performed the funeral and shradh of Bhavani Ram. The further case of the defendants respondent is that Jaso Devi and Fulpati Devi, the daughters of Triveni Ram executed a sale deed dated 28.11.1975 in respect of their interest in the suit land for consideration to Ramdhan Ram, the father of the defenants respondent who came in possession of the suit land to the extent of the interest of Jaso Devi and Fulpati Devi and the defendants respondent and his predecessor were coming in possession of the suit property. It is alleged that Ramjeet Ram, the ancestor of the defendants respondent were residing in the house standing in the suit land and the case of the plaintiff appellant that Padarath Ram only inherited the suit property is false and it is equally false to say that Padarath Ram was alone in exclusive possession of the suit land and after his death his sons came in joint possession of the same and Triveni Ram died in the year 1952 and on his death his son Ayodhya Ram inherited the suit property to the exclusion of his sisters. It is also alleged that Bhavani Ram died in the year, 1964-65 in the state of jointness with the defendant respondent No. 2 Kailash Ram. The further case of the defendants respondent is that the sale deed dated 12.11.1975 purported to have been executed by Ayodhya Ram in favour of the plaintiff appellant is a fraudulent deed without consideration and the plaintiff appellant did not acquire any right, title and interest therein and she also was never in possession over the suit land and the said sale deed was cancelled by a registered deed of cancellation dated 22.11.1975 executed by Ayodhya Ram when he came to know about the fraud practiced upon him. It is alleged that Tarkeshwar Gupta, the husband of the plaintiff appellant in collusion with one Krishna Ram had brought Ayodhya Ram at Daltonganj under false pretext of advancing loan to him after execution of document for the same and they provided wine to Ayodhya Ram and in the state of intoxication Ayodhya Ram was brought to the registration office and Gup-teshwar obtained signature on several papers and also on some blank papers and the contents of the alleged sale deed were never read over and explained to him and at that time Ayodhya Ram was in service and he returned to the place of his service directing Tarkeshwar Gupta to pay the amount of loan to his family members and when he came to know regarding the fraud practiced upon him he enquired from the registration office and learnt that instead of a document of loan, a sale deed with respect to the residential house and land was got fraudulently executed by Tarkeshwar Gupta in the name of his wife and, thereafter, he cancelled the said sale deed by executing a deed of cancellation dated 22.11.1975. It is also alleged that the plaintiff appellant has never come in possession over the suit land. Lastly it has been alleged that the defendants respondent are paying rent of the suit land after mutation in respect thereof.
5. In view of the pleadings of the parties the following issues have been framed by the trial Court for adjudication of this case :
(i) Is the suit as framed maintainable ?
(ii) Has the plaintiff got any valid cause of action for the suit ?
(iii) Does the suit suffer from nonjoinder or mis- joinder of parties ?
(iv) Is the suit barred under Section 34 of the Specific Relief Act ?
(v) Whether the plaintiff has title and interest over the suit property on the basis of registered sale deed dated 12.11.1975 executed by Ayodhya Ram ?
(vi) Is the plaintiff entitled to reliefs claimed ?
(vii) To what relief or reliefs the plaintiff is entitled ?
6. While deciding issue No. V the trial Court has held that Triveni Ram died in the year 1952-53 i.e. before the commencement of the Hindu Succession Act, 1956 and the daughters of Triveni Ram did not inherit any interest in the property of Triveni Ram. It has also been held that Bhavani Ram died issueless in the state of jointness with Ayodhya Ram in the year 1962. It has also been held that the case of the defendants having acquiring the interest of Bhavani Ram in the suit property by unregistered gift purported to have been executed by Bhavani Ram in his favour is not legally tenable and the defendants have not acquired any right, title and interest in the suit property by virtue of the gift. It has also been held that the plea of the defendant that properties of Khata No. 67 is ancestral property of the defendants is basically wrong and the defendants were never in possession of the suit property and defendants have also not acquired any right title and interest in the suit property by virtue of the sale deed executed in their favour by the two daughters of Triveni Ram. Lastly it has been held that the plaintiff has acquired valid right title and interest in the suit property by virtue, of the sale deed executed by Ayodhya Ram and the plaintiff is in possession over the suit land. In view of the finding aforesaid the suit of the plaintiff was decreed.
7. Aggrieved by the judgment and decree of the trial Court the defendants respondent preferred Title Appeal No. 31 of 1986. The learned appellate Court below has held that Triveni Ram died in the year 1952-53 and his widow Madoda @ Madodra Devi died after the enforcement of Hindu Succession Act and her son Ayodhya Ram and four daughters are the heirs of Madoda @ Madodra Devi having equal shares therein. The learned appellate Court below has also held that Ayodhya Ram had executed the sale deed (Ext 1) dated 12.11.1975 voluntarily and with free will on getting full consideration amount. The further finding of the learned appellate Court below is that the defendants respondent failed to prove their claim of title and possession over the suit land as the heirs of the recorded tenant. It has also been held that Madoda @. Modadra Devi, the widow of Triveni Ram had succeeded the interest of her deceased husband on her death which had become absolute as per the operation of the provision of the Hindu Succession Act and on her death her four daughters beside her son had succeeded the suit property as per their respective share which she has succeeded on the death of her husband. Lastly it has been held that Ayodhya Ram did not have full and absolute title over the suit property rather along with him his aforesaid four sisters also have got their due share and it is, therefore, held that the plaintiff did not acquire valid title over the entire suit property on the strength of the impugned sale deed and to that extent it is not binding on the defendants respondent. In view of the finding aforesaid the learned appellate Court below allowed the appeal of the defendants respondent and set aside the judgment and decree of the learned trial Court.
8. This Court while admitting the appeal for hearing formulated the substantial question which runs thus :
'Whether the Court below should have decreed the suit to the extent of the share of Ayodhya Ram in the suit properties?'
9. Assailing the impugned judgment it has been submitted by the learned counsel for the plaintiff appellant that both the Courts below had concurrently held that Triveni Ram died in the year 1952-53 i.e. before the commencement of the Hindu Succession Act, 1956 leaving behind Ayodhya Ram and four daughters. It has also been held by the lower appellate Court below that Madoda @ Madodra Devi is the widow of Triveni Ram deceased and she had died after the commencement of Hindu Succession Act. It is also the concurrent finding of both the Courts below that Ayodhya Ram had duly executed the sale deed (Ext. 1) dated 12.11.1975 voluntarily, out of his free will and for consideration in respect of the suit property in favour of the plaintiff appellant and in view of the finding aforesaid the learned appellate Court below ought not to have allowed the appeal filed by the defendants respondent setting aside the judgment and decree of the trial Court. It has further been submitted that in view of the concurrent finding of both the Courts below Ayodhya Ram, the vendor of the plaintiff appellant, has moiety of share in the suit property whereas Jaso Devi and Fulpati Devi who had executed the sale deed in favour of the defendants respondent had a negligible share in the suit property and in this view of the matter the appellate Court below has committed a manifest error in allowing the appeal and dismissing the suit of the plaintiff appellant in toto. It has also been submitted that both the Courts below have also concurrently held that after the execution of the sale deed by Ayodhya Ram in favour of the plaintiff appellant she has come in possession over the suit land and in the event of the execution of the sale deed by the two daughters of Triveni Ram in favour of the defendants respondent in respect of their share in the suit property the defendants respondent can never acquire title and interest in respect of the entire suit land from which he has dispossessed the plaintiff appellant and in this view of the matter the suit of the plaintiff appellant has to be decreed in part in respect of the share of Ayodhya Ram in the suit property and in that case it was defendants respondent to seek partition of the suit land of the share of his vendors i.e. his two daughters which he has acquired by virtue of the sale deed dated 28.11.1975. It has also been submitted that the learned appellate Court below has also held that Ayodhya Ram did not have full and absolute title over the suit property rather along with him his aforesaid four sisters also have got their due share and it is, therefore, held that plaintiff appellant did not acquire valid title over the entire suit property on the strength of the impugned sale deed and to that extent it is not binding on the defendants respondent and in view of the aforesaid finding the learned appellate Court below has erred in setting aside the decree of the trial Court and viewed thus the impugned judgment of the appellate Court below cannot be sustained.
10. Refuting the submissions aforesaid it has been submitted by the learned counsel for the defendants respondent that the learned Court below has rightly allowed the appeal and dismissed the suit of the plaintiff appellant in view of the fact that the sale deed executed by Ayodhya Ram in her favour cannot be severed or separated so far the interest of the daughters of Triveni Ram is concerned and in this view of the matter the plaintiff appellant is not entitled at all to get a relief as prayed for in view of the provision of Section 27(2)(b) of the Specific Relief Act.
11. It is an admitted fact that Padarath Ram stands recorded in the Survey Records of Right (Ext. 6) in respect of Khata No. 67 which includes suit plot No. 896 besides 913 and this Khata is Belagan Kayamy and there is house and Sahan on plot No. 896. The Record of Rights has got the presumption of its correctness unless rebutted by cogent legal evidence. Admittedly cadastral survey operation took place in the year 1918 and Records of Right was finally published in the year 1922. DW 5 in para 3 has deposed that at the time of the survey operation, both Padarath Ram and Ranjeet Ram were adult. Therefore, the case of the defendants respondent that Ramjeet Ram had interest in the land of Khata No. 67 along with Padarath Ram has been rightly negatived by both the Courts below and it cannot be said that the land of Khata No. 67 was the joint family property acquired by Ramdhan Ram, the father of Padarath Ram and Ranjeet Ram and it was their joint family property. There is no dispute in respect of the fact that Padarath Ram died about 50 years ago of the institution of the suit leaving behind his two sons Triveni Ram and Bhavani Ram in the. state of jointness with them. There is also no dispute in respect of the fact that Bhavani Ram died issueless in the year 1962. It is relevant to mention here that both the Courts below have rightly held that defendants respondent Kailash Ram has not acquired any right, title and interest in the suit land including the other land of Khata No. 67 by virtue of the unregistered deed of gift purported to have been executed by Bhavani Ram in his favour. It is the concurrent finding of fact that Triveni Ram has died in the year 1952 leaving behind his son Ayodhya Ram and his four daughters. The appellate Court below has also held that Madoda @ Madodra Devi being the widow of Triveni Ram was also one of his heirs when Triveni Ram had died and Madoda @ Madodra Devi had died after the commencement of the Hindu Succession Act and after the death of Madoda @ Madodra Devi her share which she has succeeded on the death of her husband in the year 1952 has become absolute under the provisions of the Hindu Succession Act and on her death all her heirs i.e. her son Ayodhya Ram and her four daughters have succeeded her having equal shares therein. The Hindu Women's Rights to Property Act, 1937 came into force on 14th April, 1937 (hereinafter referred to as the Act). Prior to that a widow of the coparceners constituting the joint family had no right whatsoever in the Joint family, property and it had become expedient to amend the Hindu law to give better right to the women in respect of the properties either self acquired or joint family property left by her husband. The relevant provision of the Hindu Women's Right to Property Act, 1937 runs thus :
'.....3(1). When a Hindu governed by the Dayabhaga School of Hindu law dies intestate leaving any property, and when a Hindu governed by any other School of Hindu law or by customary law dies intestate leaving separate property, his widow, or if there is more than one widow all his widows together, shall subject to the provisions of Sub-section (3), be entitled in respect of property in respect of which he dies intestate to the same share as a son : -
Provided that the widow of a predeceased son shall inherit in like manner as a son if there is no son surviving of such predeceased son, and shall inherit in like manner as a son's son if there is surviving a son or son's son of such predeceased son :
Provided further that the same provision shall apply mutatis mutandis to the widow of a predeceased son of a predeceased son.(2) When a Hindu governed by anyschool of Hindu law other than theDayabhaga School or by customary lawdies having at the time of his death aninterest in a Hindu joint family property, his widow shall, subject to theprovisions of Sub-section (3), have inthe property the same interest as hehimself had.
(3) Any interest devolving on a Hindu widow under the provisions of this section shall be the limited interest known as a Hindu Woman's estate, provided however that she shall have the same right of claiming partition as a male owner.
(4) xxx xxx xxx
12. It will admit of no doubt that in the year 1952 Triveni Ram, Bhavani Ram and Ayodhya Ram were the coparceners forming a joint family. In view of the concurrent finding of both the Courts below Triveni Ram has died in the year 1952. A pertinent question arises here as to what Interest Triveni Ram had in the joint family property at the time of his death which stands succeeded by his widow Madoda @ Madodra Devi under Section 3 of the said Act which became absolute under the provisions of Hindu Succession Act, 1956 succeeded by her five heirs on her death. For this we have to presume a notional partition in the year 1952 when Triveni Ram had died to ascertain his interest in the joint family property. Any female of the joint family is not the member of the coparcenary. The joint family consisted of Triveni Ram, Bhavani Ram and Ayodhya Ram when Triveni Ram died in the year 1952. Therefore, Bhavani Ram had half share in the joint 'family property and Triveni Ram and Ayodhya Ram each had one fourth share therein as per notional partition. This one fourth interest of Triveni Ram stands succeeded by his widow Madoda (c) Madodra Devi as limited owner on his death. This one fourth interest succeeded by Madoda @ Madodra Devi has become absolute by the Act of 1956 which stands succeeded by her son Ayodhya Ram and her four daughters in equal shares on her death. The half share of Bhavani Ram as per notional partition stands inherited by Ayodhya Ram on the death of Bhavani ram by the rule of survivorship. Therefore, Ayodhya Rain will have 1/4 + 1/20 + 1/2 i.e. 4/5 share in the land of Khata No. 67 which includes the suit plot No. 896 whereas all the four daughters taken together shall have 1/5th share therein and the share of Jaso Devi and Fulpati Devi, the executants of the sale deed in favour of the defendants respondent taken together shall be 1/10th in the land of Khata No. 67 including the suit plot. It is equally relevant to mention here that none of the daughters of Triveni Ram had got their share partitioned in respect of the suit property or in respect of the land of Khata No. 67 which consists of suit plot No. 896 having an area of 04 decimals and plot No. 913 having an area of 07 decimals, the total area of this Khata being 11 decimals (Ext. 6) Ayodhya Ram sold the entire suit plot No. 896 having an area of 4 decimals to the plaintiff appellant by executing the sale deed dated 12.11.1975 and the plaintiff appellant was put in possession thereof. There is cogent evidence brought on the record by the plaintiff appellant that the defendants respondent had dispossessed her after the execution of the sale deed in their favour by the two daughters of Triveni Ram, and in this view of the matter the finding of the learned appellate Court below is against the evidence of the plaintiff appellant on the record and the appellate Court below has committed a manifest error on this score. The plaintiff appellant was in possession of the suit proeprty by virtue of the execution of the sale deed in her favour by Ayodhya Ram in respect of the entire area of plot No. 896 and she had subsisting right and title in respect thereof and she was dispossessed by the defendants respondent from the entire suit land whereas they had only acquired by the sale deed in their favour the share only of the two daughters of Triveni Ram in the entire land of Khata No. 67. Therefore, the action of the defendants respondent dispossessing the plaintiff appellant from the entire suit plot is contrary to law. There were other properties in Khata No. 67 besides the suit plot and in that situation it was incumbent upon the defendants respondent to seek partition of the land of Khata No. 67 on the basis of the sale deed executed in their favour by the two daughters of Triveni Ram and equity was to be adjusted accordingly. It was not incumbent upon the plaintiff appellant to file a suit for partition of the land of Khata No. 67 when the entire suit plot was sold to her by Ayodhya Ram who had moiety of share in the suit land of Khata No. 67 including the suit plot. There were other properties in the said Khata which in case of partition may be allotted to the daughters of Triveni Ram as per equity. Therefore, in the facts and circumstances of this case there will be no recession where the rights of third party have intervened and it would be inequitable to grant recession and in this view of the matter Section 27 of the Specific Relief Act is of no help to the defendants respondent. A person seeking equity must come with clean hands. In the case of Narain Sahu and Ors. v. Atma Ram Bajoria and Ors., 1990 (1) BLJR 554, it has been held by the Bench of this Court that a purchaser of an undivided share does not acquire any right to possess the property in question without the consent of all the co-owners as thereby he merely acquires a right to sue for partition. Therefore, the defendants respondent by virtue of his subsequent sale deed executed in their favour by the two daughters of Triveni Ram ought to have sought the partition of the land of Khata No. 67.
13. It is well settled that the High Court while considering the matter in the exercise of its jurisdiction in Second Appeal would not reverse the finding of fact as recorded by the Courts below but it is not an absolute proposition and in a case where the finding is recorded without any legal evidence on the record or on misreading of evidence or suffers from any legal infirmity which materially prejudices the case of one of the parties or the finding is perverse it would be upon the High Court to set aside such a finding and take a different view. Here in this case the appellate Court below came to the finding that Ayod-hya Ram did not have full and absolute title over the suit property rather along with him his aforesaid four sisters also have got their due share and, therefore, the plaintiff appellant did not acquire valid title over the entire suit property on the strength of the said sale deed and it is not binding upon the defendants respondent and in view of the said finding the appeal was allowed setting aside the entire decree by the learned appellate Court below which is definitely contrary to law. The plaintiff appellant had valid right title and interest in the suit plot to the extent of the share of. Ayodhya Ram and she was in possession of the entire plot by virtue of the sale deed in her favour. There were also other plots in Khata No. 67 for adjusting the equity in case of partition filed by the daughters of Triveni Ram or their vendors and in such a situation the learned appellate Court below have erred in allowing the appeal and setting aside the decree passed by the trial Court. The proper course for the learned appellate Court below was to dismiss the appeal with a direction to the defendants respondent to seek partition of the land of Khata No. 67 carving out their separate share by virtue of the sale deed executed by the two daughters of Triveni Ram in respect thereof. Therefore, the substantial question formulated in this case has to be answered in the affirmative.
14. In this view of the matter there is merit in this appeal and it succeeds. The appeal is hereby allowed. The impugned judgment of the lower appellate Court below is hereby set aside and suit of the plaintiff appellant is hereby decreed in part. The right title and interest in respect of the suit plot is declared in favour of the plaintiff appellant to the extent of the share which Ayodhya Ram had therein and she is also entitled for recovery of possession in respect of the entire suit plot as prayed. However, the defendants respondent may, if they so like, seek partition of the land of Khata No. 67 claiming their due share therein in accordance with law on the basis of the sale deed executed in their favour by the two daughters of Triveni Ram in a duly constituted suit before the competent Court for carving out his separate thaktha. In the facts and circumstances of this case there is no orders as to costs.