Judgment:
S.N. Hussain, J.
1. This second appeal has been filed by plaintiffs-appellants-appellants challenging the judgments and decree of both the courts below.
2. The matter arises out of Title Suit No. 57 of 1976 which was filed by the plaintiffs-appellants claiming that Bahasu Raut left behind two sons Guljari Ahir and Subedar Ahir out of whom Subedar Ahir had two sons Rameshwar Rai (dead) and Maheshwar Rai (defendant No. 1). Plaintiffs are the son and widow of Rameshwar Rai, whereas defendant No. 1 Maheshwar Rai had four sons, namely Mewalal and others. It was further claimed by the plaintiffs that there was separation between Rameshwar Rai and Maheshwar Rai, but the property remained joint and there was no partition by metes and bounds. It was also claimed that Rameshwar Rai being insane due to paralysis, the said suit was filed by his son Ram Pravesh Rai, but the said Rameshwar Rai intervened in the suit and was impleaded on 03.05.1978 by the court as defendant No. 2, but subsequently the said Rameshwar Rai died on 23.03.1983 during the pendency of the title appeal.
3. It was further claimed by the plaintiffs that some of the properties were ancestral, whereas some of them were joint acquisition of Rameshwar Rai and Maheshwar Rai. In the said circumstances following reliefs were sought by the plaintiffs:
(i) Decree of partition of Y2 share of plaintiffs in the suit property.
(ii) Cost of litigation to be paid to the plaintiffs.
(iii) Any other reliefs to which the plaintiffs were deemed entitled.
4. Defendant No. 1 Maheshwar Rai filed his written statement claiming that Ramehswar Rai was not insane, rather he was of sound mind and had suffered no paralytic attack and hence the plaintiffs had no locus standi to file the suit in the lifetime of Rameshwar Rai. It was also claimed in his written statement that the plaintiffs had themselves separated from Rameshwar Rai in the year 1974 and had no concern with him and hence in the said circumstances, Rameshwar Rai gifted 15 kathas 8 Y2 dhurs of his self acquired land to Mewalal son of Maheshwar Rai by registered deed of gift dated 12.12.1974 (Ext.A). Defendant No. 2 also filed written statement supporting the claim of defendant No. 1 and also deposed as DW.1 against the plaintiffs in his examination-in chief. It was also claimed that the suit was not maintainable, as his donee Mewalal was not impleaded in the suit.
5. Considering the respective pleadings of the parties, the trial court framed following issues for deciding the title suit:
(i) Is the suit as framed maintainable?
(ii) Have the plaintiffs got any cause of action for the suit?
(iii) Whether there is any unity of title and possession between the parties with respect to the suit land?
(iv) Whether the plaintiffs are entitled to a decree for partition, if so, to what extent and for which property?
(v) Whether the property covered by gift deed in favour of Mewalal, is partiable?
(vi) Is the suit bad for non-joinder of Mewalal as party to the suit?
(vii) Whether the gift deed in question is void or voidable?
(viii) To what other relief or reliefs, if any, are the plaintiffs entitled?
6. On the aforesaid issues evidence were led and arguments were made on behalf of both the parties, where after Munsif-III, Chapra decreed the suit in part on contest vide his judgment and decree dated 28.09.1981 after arriving at the following findings:
(a) Defendant No. 2 in paragraph-7 of his written statement claimed that 15 kathas 8 Y2 dhurs of land was his self acquired property, which he gifted to Mewalal, but the said statement was not challenged by the plaintiffs in their evidence, rather plaintiff No. 1 as PW.4 admitted that fact.
(b) Article 222 of the Mulla's Hindu Law provided that a person who is a member of joint family can hold separate and exclusive property and hence defendant No. 2 was fully entitled to hold separate and exclusive property.
(c) Plaintiffs' assertion that defendant No. 2 was of half mind and unable to understand, is not correct and is falsified by the evidence.
(d) Registered deed of gift by defendant No. 2 in favour of Mewalal son of defendant No. 1 is not a void document.
(e) The said registered deed of gift may be avoidable and hence the suit is bad for non-joinder of Mewalal.
(f) Plaintiffs are entitled to 1/3rd share each along with defendant No. 2 out of the half share of Ramehswar Rai in the joint family property.
(g) The suit as framed and filed is maintainable and plaintiffs have good and valid cause of action for the suit but only to the aforesaid extent.
7. Against the aforesaid judgment and decree of the trial court the plaintiffs filed Title Appeal No. 179 of 1981 and after hearing the arguments of learned Counsel for the parties and after considering the pleadings and evidence of the parties, Additional District Judge-I, Saran dismissed the said title appeal on contest vide his judgment and decree dated 03.03.1990 after arriving at the following findings:
(a) The evidence clearly shows that there has been no partition of the joint family property by metes and bounds.
(b) Plaintiffs have failed to prove their plea that the mind of father of plaintiff No. 1 was not working properly which is also supported by his deposition as a witness and execution of deeds of transfer.
(c) The father of plaintiff No. 1, namely defendant No. 2 had executed deed of gift (Ext.A) in favour of Mewalal with respect to his self acquired property.
(d) The deed of gift (Ext.A) is genuine and valid document.
(e) According to the provisions of Article 315 of the Mulla's Hindu Law, every coparcenary is entitled to a share upon partition and the mother of plaintiff No. 1, namely, plaintiff No. 2 is also entitled to a share equal to her son in the ancestral property.
8. The aforesaid judgments and decree of the courts below are challenged by the plaintiffs-appellants in the instant second appeal which was admitted on 11.10.1990 by a Bench of this Court after formulating the following substantial question of law:
(i) Whether the finding of the courts below on the point whether the property which defendant No. 2 had originally acquired as separate property was thrown into the hotch pot and became part of joint family property, is sustainable without any discussion of the oral evidence produced on behalf of the plaintiffs?
9. Learned Counsel for the plaintiffs-appellants argued that the suit for partition was decreed with respect to other suit lands except 15 kathas 8 1/2 dhurs of land which was gifted by defendant No. 2 Rameshwar Rai (father of the plaintiff No. 1) in favour of Mewalal son of Maheshwar Rai (defendant No. 1) by registered deed dated 12.12.1974 (Ext.A). It was further claimed that defendant No. 1 in paragraphs-5 and 11 of his deposition as DW.6 accepted that the said property, which was subject matter of the gift, was transferred by the original owner Lokar Rai to defendant Nos. 1 and 2, but neither the said deed was exhibited by the defendants nor its details were provided by them. It was further claimed that since the said land was acquired by defendant Nos. 1 and 2 jointly and throughout remained in joint possession, it was a joint family property which had blended with the ancestral properties and hence doctrine of blending would apply with respect thereto. In support of their claim, learned Counsel for the appellants relied upon a decision of the Apex Court in case of Binod Bihari Lal and Ors. v. Rameshwar Prasad Sinha and Ors. reported in : A.I.R. 1978 Supreme Court 1201. It was also claimed that as per the provisions of Mulla's Hindu Law a coparcener has no right to transfer any joint family property and if he executes such a deed, the same would be void. In this case he relies upon the provision of Mulla's Hindu Law as well as upon a decision of the Apex Court in case of Thamma Venkata Subbamma (dead) by L.R. v. Thamma Rattamma and Ors. reported in : A.I.R. 1987 Supreme Court 1775. On these grounds he claims that the impugned judgments and decree of the courts below are illegal, perverse and fit to be set aside.
10. So far the question of acquisition of 15 kathas 8 1/2 dhurs of land from the original owner Lokar Rai is concerned, it is not disputed by any of the parties. The only question is as to whether it was acquired jointly by defendant Nos. 1 and 2 or it was acquired by defendant No. 2 only, regarding which there is contradictory evidence. Even if it is assumed that it was acquired by two members of the joint family, namely defendant No. 1 and defendant No. 2, only by the said acquisition it cannot legally be presumed that it was acquired by the joint family, as according to the provisions unless it is proved that the said property was acquired with the aid of joint family properties, it cannot legally be held to be joint family property, as every member of the joint family can legally have his own self acquired properties. It may be noted in this regard that defendant No. 2, who was father of plaintiff No. 1 and husband of plaintiff No. 2, in paragraph-7 of his written statement specifically claimed that 15 kathas 8 1/2 dhurs of land was his self acquired property which he gifted to Mewalal son of defendant No. 1. Furthermore, defendant No. 2 in his deposition as special DW.1 also claimed that the said property was his self acquired property, but the said statement of defendant No. 2 was not challenged by the plaintiffs in their evidence, rather plaintiff No. 1 as PW.4 admitted the said fact. Furthermore, the plaintiffs have miserably failed to prove that the said property was acquired by the joint family or even from the joint family fund. In the said circumstances, the transfer of the said 15 kathas 8 1/2 dhurs of land by defendant No. 2 in favour of Mewalal son of defendant No. 1 by registered deed of gift dated 12.12.1974 (Ext.A) cannot legally be said to be an illegal or void document, specially when defendant No. 1, who according to the plaintiffs acquired the said property along with defendant No. 2, did not raise any objection to the said transfer by way of gift. Hence the decision of the Supreme Court in case of Thamma Venkata Subbamma (dead) by L.R. (Supra) is not applicable to the facts and circumstances of this case.
11. So far the principle of blending is concerned, there is no material at all to support the plaintiffs' claim that the said property measuring 15 kathas 8 1/2 dhurs of land either blended with the joint family property or was ever thrown into common stock of the family by defendant Nos. 1 and 2 and hence after considering the pleadings and evidence of the parties the courts below were quite justified in rejecting the claim of the plaintiffs' with respect to the aforesaid property. In the said circumstances, the decision of the Supreme Court in case of Binod Bihari Lal and Ors. (Supra) is also not applicable to the facts and circumstances of this case.
12. So far the substantial question of law framed in the instant case is concerned, it is clearly found from perusal of the pleadings and evidence of the parities that the claim of the plaintiffs that separate property was thrown into hotch pot and became part of the joint family property was not sustainable in the eye of law, as the plaintiffs have miserably failed to substantiate their claim by any valid and reliable evidence as discussed above.
13. In the aforesaid circumstances, this Court does not find any illegality in the impugned judgments and decree of the courts below nor does it find that the aforesaid questions raised by the plaintiffs-appellants were substantiated by law or by evidence. Accordingly, this second appeal is dismissed, but in the facts of this case there will be no order as to costs.