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1965 Supreme(Pat) 109
PATNA HIGH COURT
U.N.Sinha, J.
Girdhari Lohar
Versus
Anand Lohar
Appeal From Appellate Decree No. 915 of 1963 ;
Decided On : OCTOBER 14, 1965
The appellate court has the authority to modify a finding of the trial court in favor of the appellants, particularly when the plaintiff-respondent supports the trial court's decree and raises the issue of an erroneous finding.
Headnote:
HINDU MINORITY AND GUARDIANSHIP ACT, 1956 - SEC. 11 - SUIT BY MINOR WITH UNCLE AS NEXT FRIEND - MAINTAINABILITY - REGISTRATION ACT, 1908 - SEC. 35 - REGISTRATION OF DEED OF GIFT AFTER DONOR'S DEATH - VALIDITY - APPELLATE COURT - MODIFICATION OF FINDING OF TRIAL COURT IN FAVOUR OF APPELLANTS - PROPRIETY.
Fact of the Case:
Plaintiff, a minor, filed a suit for declaration of title and recovery of possession of property, claiming to be the daughter's son of Indrajit Lohar. The defendants, claiming to be agnates of Indrajit, challenged the validity of the deed of gift executed in plaintiff's favor and asserted their possession of the disputed property.
Finding of the Court:
The trial court decreed the suit in favor of the plaintiff, upholding the validity of the deed of gift and recognizing the plaintiff's relationship with Indrajit. The appellate court affirmed the trial court's decree, except for the finding that the defendants were agnates of Indrajit, which it reversed.
Issues: 1. Whether the plaintiff's suit with the uncle as the next friend was maintainable under Section 11 of the Hindu Minority and Guardianship Act, 1956? 2. Whether the appellate court independently applied its mind to the evidence on record in determining the plaintiff's relationship with Indrajit? 3. Whether the deed of gift was validly registered in light of Section 32 of the Indian Registration Act? 4. Whether the appellate court adequately considered the evidence on the question of possession? 5. Whether the appellate court was entitled to modify a finding of the trial court in favor of the defendants.
Ratio Decidendi: 1. Section 11 of the Hindu Minority and Guardianship Act, 1956, does not prohibit the institution of a suit by a minor with the uncle as the next friend, as it does not involve the disposal or dealing with the minor's property. 2. The appellate court's judgment demonstrates that it independently evaluated the evidence and reached its own conclusion regarding the plaintiff's relationship with Indrajit. 3. The registration of the deed of gift after the donor's death was valid under Section 35 of the Registration Act, as the registering authority was satisfied about the authority of the executant. 4. The appellate court adequately addressed the question of possession in its judgment. 5. The appellate court was entitled to modify a finding of the trial court in favor of the defendants, as the plaintiff-respondent had supported the trial court's decree and could raise the issue of an erroneous finding.
Final Decision: The appeal was dismissed with costs to the plaintiff-respondent.
U.N.Sinha, J.
1. This appeal has been preferred by defendants Nos. 1 to 3 and it arises out of a suit instituted by the plaintiff for declaration of title to and for recovery of possession of the property involved in this litigation. The plaintiffs case is as follows:-
-It is said that the property in suit had belonged to one Indrajit Lohar, who had a son named Ramnichhatar and a daughter named Ramrajia. The son was married to one Mosst. Sahaji. Ramrajia was married to Rajbansi Lohar. Ramrajia died in the lifetime of her father, leaving behind a son named Anand, who is the plaintiff in this suit. Ramnichhatar died leaving no issue, and after his death, when Ramrajia was also dead, Indrajit got Sahaji married to Rajbansi When Indrajit was alive, he and Sahaji jointly executed a deed of gift on the 22nd November, 1965, in favour of Anand giving him Indrajits property including the disputed land. Before this deed of gift could be registered, Indrajit had died. The document was registered after his death. Thus, according to the plaintiff, he had come in possession of the property of Indrajit and the defendants started to interfere with his possession, with the result that a proceeding under Sec.144 of the Code of Criminal Procedure had commenced. This proceeding had ended in the plaintiffs favour. Thereafter, it appeared that in the Government Serishta, the name of Dhanushdhari, original defendant No. 1, was mutated in collusion with the Karamchari and the plaintiff was dispossessed from the disputed land in Baisakh 1365 Fasli. Thus, this suit had to he instituted for possession with mesne profits. According to the plaintiff, who is a minor, his step-mother Mosst. Sahaji was not well disposed towards him with the result that his father. Rajbansi had adverse interest to the minor and. therefore, the suit had been instituted with the uncle as the minors next friend.
2 The substance of the defendants case is as follows: The relationship of the plaintiff with Indrajit Lohar was denied and the validity of the deed of gift has been challenged. According to a separate genealogical table given by the defendants. Indrajit and the defendants had descended from a common ancestor. It was admitted that Indrajit had a son named Ramnichhatar, but it was denied that he had any daughter at all. According to the defendants, after the death of Ramnichhatar, his widow, Sahaji had married Rajbansi, father of the plaintiff. Rajbansis first marriage was with a lady of some other village and the plaintiff is the son of Rajbansi and that wife. It was denied that the plaintiff was the son of Rajbansi and Ramrajia, daughter of Indrajit Lohar. Thus, according to the defendants, they were agnates of Indrajit and the plaintiff was unconnected with his family. It is alleged that the present suit has been collusively brought and a deed of gift has been fabricated. The defendants claimed to be in possession of the disputed property after Indrajits death.
3. On a consideration of the materials on record, the suit was decreed by the trial Court and an appeal was carried in the Court of appeal below by the present appellants. The appeal has failed. The trial Court had held that the plaintiff was the daughters son of Indrajit and the Court had also upheld the validity of the deed of gift dated the 22nd November, 1955. The plaintiffs title and possession until dispossession by the defendants were accepted. But, it was held that the defendants were agnates of Indrajit, as was their case in the Court of appeal below, all the findings of the trial Court have been affirmed, except that the learned Subordinate Judge has held that the defendants-appellants have failed to prove that they were agnates of Indrajit Lohar. That is why in the order portion of the judgment of the Court of appeal below it has been mentioned that the judgment and decree of the trial Court are affirmed, but with modification. The real effect of the decree of the appellate Court is that the de
