A gift deed of undivided interest in joint family property is void without consent of other coparceners, establishing the necessity for immediate possession for validity.

JUDGMENT :

KHATIM REZA, J.

This Second Appeal has been filed against the judgment and decree dated 04.05.2007 passed in Title Appeal No. 03/21 of 2005 by the learned Additional District Judge, Fast Track Court-Vth, Bhabua, Kaimur, whereby, the judgment and decree dated 18.12.2004 passed in Title Suit No. 201 of 1996 by the learned Munsif, Bhabua, Kaimur has been affirmed.

2. The plaintiff’s heirs are the appellants and the defendant is the respondent in the present appeal.

3. The present appeal was admitted on 26.10.2009 and following substantial questions of law were formulated while admitting the appeal:-

(i). Whether the court of appeal below itself finding impugned deed of gift dated 29.11.1976 (Exhibit 5) to be doubtful was justified in rejecting the claim of the plaintiff only on the basis of Exhibits D and E which were orders passed the by the Director of Consolidation and the High Court?

(ii). Whether the aforesaid orders (Exhibits D and E) being only on the question of sanction granted by the Consolidation authorities without going into the genuineness and validity of the deed of gift, the learned courts below were justified in refraining themselves from taking into consideration genuineness and validity of the impugned deed?

4. The plaintiff filed Title Suit No. 201 of 1996 for declaration of Gift Deed No. 7866 dated 29.11.1976 executed by Rambriksh Singh in favour of defendant, namely, Murahu Singh as null and void, illegal and also for permanent injunction over the suit land of Schedule-Gha of the plaint. The Schedule-Gha is part of Schedule-G which is property of Gift Deed No. 7866 executed by Rambriksh Singh in favour of Murahu Singh (defendant).

5. The case of the plaintiff as pleaded in the plaint is that Narkhu Rai was the ancestor and he had three sons, namely, Bharosa Rai, Jaipal Rai and Shisupal Rai. Jaipal Rai died issueless, Shisupal Rai had three sons; Mahavir Rai, Mahadeo Rai and Sahdeo Rai. These three brothers died leaving behind Asharfi Kunwar, Sonia Kunwar and Batasi Kunwar as their wives (widows). They were alive at the time of Cadestral Survey. Bharosa Rai died leaving behind two sons, namely, Hit Narayan Rai and Jagdeo Rai. Hit Narayan Rai died leaving a son Sitaram Singh. The plaintiff is son of Sitaram Rai. Jagdeo Rai died leaving behind a son Subedar Singh, Subedar Singh also died leaving behind son Rambriksh Singh. The wife of Rambriksh Singh pre-deceased him and he died issueless on 25.11.1979 while living with the plaintiff. After the death of Rambriksh Singh, his property devolved upon the plaintiff, namely, Ramkishun Singh as heir. It is further case of the plaintiff that the family of Narhu Rai had possessed the land at the time of Cadestral Survey in the year 1908-09 and at the time of Cadestral Survey grandfather of the plaintiff Hit Narayan Rai and Rambriksh Singh, Asharfi Kunwar, Batasi Kunwar, Sonia Kunwar were alive and their names stood in the Cadestral Survey also. The wives of Mahavir Rai, Mahadeo Rai and Sahdeo Rai were alive but they had no right in the property of Shisupal Rai and the property of Shisupal Rai devolved on Hitnarayan, grandfather of plaintiff and Asharfi Kunwar, Sonia Kunwar and Batasi Kunwar were only maintenance holders. Further case of the plaintiff is that the land of R.S. Khata No. 150 was in the name of R