The main legal point established in the judgment is the requirement for reliable evidence to prove partition and the void nature of a gift by a coparcener of an undivided share without the consent of other coparceners.

Mungeshwar Sahoo, J.

The plaintiffs-appellants have filed this First Appeal against the judgment and decree dated 02.04.1976 passed by the learned 3rd Additional Subordinate Judge, Biharsharif, Nalanda in Title Suit No. 81 of 1971/2 of 1976 whereby the plaintiff's suit has been dismissed.

2. The original plaintiff had filed the aforesaid suit claiming for partition of his half share in the suit property. The original plaintiff-appellant has died during the pendency of this First Appeal and his legal representatives have been substituted. The plaintiffs claimed half share alleging that Punit Mahto had three sons namely Bandhu Mahto, Laldas Mahto and Gyan Chand Mahto who all have died. Laldas died unmarried and plaintiff is the son of Bandhu Mahto who died in 1969. The defendants are the branch of Gyan Chand Mahto who died in the year 1958-59 whereas Laldas died in 1971. Only 2.67 acres ancestral land was in possession of the joint family. Subsequently, 3 acres 15-¾ decimals was acquired by the joint family out of joint family fund and therefore, the joint family was in possession of 5 acres 82¾ decimals. Although, the acquired properties are in the name of different members but the lands were acquired out of joint family fund. Three months prior to death of Laldas, he had lost his memories and was not in good estate of mind to carry on his day to day routine work. The properties are joint but the defendant refused to partition the property. The plaintiff has acquired some property out of his own income which has been described in Schedule IV which is not the joint family property and is not available for partition.

3. The defendant Nos.1 and 2 contested the suit by filing joint written statement. Besides taking various legal pleas, they mainly contended that there had already been partition between the parties and Dajbandi was prepared during the lifetime of Laldas who died in June, 1971 and not in May, 1971, as claimed by the plaintiff. Laldas was separate after partition on 29.06.1970 who came in possession of the land allotted to him by Dajbandi. The property was divided at three places. One share to the heirs of Gyan Chand, second share to the plaintiff and third share was to Laldas. L.T.I. and signature of plaintiff and Laldas were on Dajbandi. Laldas executed a deed of gift on 27.05.1971 in favour of defendant Nos.1 and 2 and put the defendants in possession of gifted property. The plaintiff had not acquired any land and in fact, the Schedule IV land was also joint family property and that Schedule IV land was acquired as exchange land and all these lands were partitioned on 29.06.1970 and Dajbandi was prepared.

4. The further case of the defendant is that in fact, the plaintiff has purchased 25½ decimals land from these defendants but he is not willing for takabjul badlain.

5. In view of the aforesaid pleading of the parties, the learned court below framed the following issues:

I. Is the suit as framed maintainable?

II. Have the plaintiffs got any cause of action?

III. Is the date of death of Laldas and Gyan Chand alleged by the plaintiffs correct?

IV. Has Laldas executed registered deed of gift on 23.03.1971 in favour of Defendant No. 1 and 2?

V. Is there unity of title and possession between the parties and is the plaintiff entitled to partition?

VI. Is Schedule IV property a self-acquired property of the plaintiff?

VII. Are the plaintiffs entitled for the reliefs as claimed for?

VIII. To what relief or reliefs, if any, the plaintiff is entitled?

6. After hearing the parties, the learned court below came to the conclusion that the parties had separated and three Dajbandi had been prepared according to the case of the defendants, therefore, there is no unity of title and possession between the parties, while deciding issue No. 5 vide paragraph 57 of the judgment. The court below also came to the conclusion that Laldas had executed the gift deed in question with full understanding and accordingly, dismissed the plaintiff's s