Jharkhand High Court
Most. Satwanti Devi vs Sushil Kumar Tiwari on 11 March, 2025
Author: Anubha Rawat Choudhary
Bench: Anubha Rawat Choudhary
IN THE HIGH COURT OF JHARKHAND AT RANCHI
S.A. No. 263 of 2019
1. Most. Satwanti Devi, aged about 47 years, wife of Late Bahadur
Tiwari
2. Binay Tiwari, aged about 32 years
3. Uday Tiwari, aged about 27 years
4. Umesh Tiwari, aged about 31 years
Nos. 2 to 4 sons of Late Bahadur Tiwari
5. Machhali Tiwari, aged about 61 years, son of Sarwan Tiwari
6. Sushila Devi, aged about 45 years, wife of Late Raj Giriwar Tiwari
7. Nihora Tiwari, aged about 22 years, son of Late Raj Giriwar Tiwari
8. Nitu Kumari, aged about 18 years,
9. Chandramani Kumari, aged about 14 years (minor)
No. 8 and 9 Daughters of Late Raj Giriwar Tiwari
No. 9 is represented through their natural mother Sushila Devi
(Appellant No. 6)
All residents of village Baratola, P.O. G.L.A. College, P.S. Daltonganj,
District Palamau (Jharkhand)
... ... Plaintiffs/Appellants/Appellants
Versus
1. Sushil Kumar Tiwari
2. Rajni Kant Tiwari
Both sons of Madam Tiwari, residents of village Rajwadih, P.O. and
P.S. Daltonganj, District Palamau
3. Anita Devi, wife of Deepak Kumar Tiwari, resident of Mohalla
Nawatoli, P.O. and P.S. Daltonganj, District Palamau
4. Madan Tiwari, son of Kailash Tiwari, resident of village Rajwadih,
P.O. and P.S. Daltonganj, District Palamau
... ... Defendants/Respondents
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CORAM: HON'BLE MRS. JUSTICE ANUBHA RAWAT CHOUDHARY
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For the Appellants : Mr. T. N. Jha, Advocate
For the Respondents :
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th
16/11 March 2025
1. This second appeal has been filed challenging the judgment dated
25.05.2019 (decree signed on 03.06.2019) passed by the learned District
Judge VI, Palamau at Daltonganj in Title Appeal No. 25 of 2010 whereby
the learned appellate court has dismissed the appeal and confirmed the
judgment dated 19.04.2010 (decree signed on 06.05.2010) passed by the
learned Sub-Judge No. II, Palamau at Daltonganj in T.S. No. 136 of 2002.
The appellants are the plaintiffs in the suit.
2. The suit was filed for declaration of sale deed No. 9356 dated
18.10.2002 executed by Sarwan Tiwary father of the plaintiffs in favour
of defendant No. 1 Smt. Shanti Devi as void-ab-initio and further that the
plaintiffs have got right to get such a declaration as the sale deed is
voidable and the suit property was the coparcenary property.
3. The learned counsel for the appellants has submitted that no
consideration amount was paid to the father of the plaintiffs who had
executed the sale-deed dated 18.10.2002 in favour of the defendant No. 1.
He has also submitted that the father of the plaintiffs, though was alive at
the time of filing the suit, but was not made party as he was a person of
unsound mind.
4. Upon a query of this Court, the learned counsel has further
submitted that the suit property was purchased in the name of the father of
the plaintiffs vide sale-deed No. 9175 and 9176 both dated 08.12.1982 but
those deeds were also not exhibited before the learned court and while
explaining the reason for not exhibiting the sale-deeds standing in the
name of the father of the plaintiffs , the learned counsel for the appellants
has submitted that the fact that the property was purchased in the name of
the father of the plaintiffs is not in dispute. He has further submitted that
the suit property was coparcenary property.
5. The learned counsel has also submitted with respect to the recital
mentioned in Exhibit-B (sale deed No. 9356 dated 18.10.2002 - involved
in this case) it was pleaded by the plaintiffs that the alleged sale-deed was
not executed in sound state of mind by the father of the plaintiffs and at
the time of execution of alleged sale-deed, the father of the plaintiffs was
suffering from mental deceases and he was neither capable of knowing
anything nor he was capable to transfer the suit land. In support of the
plea of unsoundness of mind of the father, the plaintiffs had also produced
two medical papers i.e. exhibit-1 and exhibit-1/a and sought a declaration
that the sale-deed was void-ab-initio. At the same time, the learned
counsel for the appellants has submitted that it was mentioned in exhibit-
B itself that the father of the plaintiffs was transferring the property which
included the right of the plaintiffs as well. The learned counsel has also
submitted that in the sale-deed itself it was mentioned that the
consideration amount would be paid later on by making appropriate
endorsement in the parcha but there was no evidence in connection with
any endorsement made in the parcha showing payment of consideration
amount.
6. Accordingly, it is submitted that on account of the aforesaid
reasons, firstly, that the property was the coparcenary property and
secondly, no consideration was paid, the sale-deed executed by the father
of the plaintiffs in favour of the defendant No. 1 was void-ab-initio, null
and void. He submits that both the courts have failed to appreciate these
aspects of the matter and accordingly substantial question of law be
framed and this appeal be admitted for final hearing.
7. The learned counsel has relied upon the judgment passed by the
Hon'ble Supreme Court reported in 2018 (4) JBCJ 298 [SC] (Kehar
Singh (D) vs. Nachittar Kaur), paragraph 17 to submit that in the said
case, the High Court had allowed the appeal filed by the defendants and
dismissed the suit by holding that the suit land was ancestral property of
the family and the Karta had a right to sell the suit land on account of
legal necessity and such fact having been duly mentioned in the sale-deed,
the sale was held to be bona fide ,legal and for valuable consideration.
The learned counsel submits that there is no mention about the legal
necessity in the sale-deed executed by the father of the plaintiffs in favour
of defendant and therefore the coparcenary property was sold without
legal necessity and consequently the sale-deed was void-ab-initio.
8. It has been submitted that substantial question of law be framed and
second appeal be admitted.
Findings of this Court
9. The suit was filed for a declaration that the sale-deed No. 9656
dated 18.10.2002 showing Sharwan Tiwary, the father of the plaintiffs as
vendor and Smt. Shanti Devi (defendant no.1), wife of Sri Madan Tiwary
(defendant no 2) as the vendee is void-ab-initio and in any case the
plaintiffs have the right to get the same declared as voidable as the
property in suit was coparcenary property.
Case of plaintiffs.
10. The case of the plaintiffs before the learned trial court was that the
suit property was the property of the grandfather of the plaintiffs who
died in 1962 leaving behind three sons, namely, Gobardhan Tiwary,
Ramchandra Tiwary and Shrawan Tiwary; an amicable oral agreement
amongst the said three sons was made and the father of the plaintiffs
Shrawan Tiwary got 1/3rd share; In 1980, Shrawan Tiwary aged about 60
years became physically & mentally very weak and left the entire
coparcenary property to his son and the eldest son who is Plaintiff No.1
became the head and Karta of the entire family; On 08.12.1982, the
plaintiffs purchased 10 decimal of plot no.1889 under Khata no.125 and
plot no.1900 (part) area 15 decimal, plot no.1783 (part) area 15 decimal,
both under Khata no.123 of village Baralota in the name of their father
Shrawan Tiwary and Plot no. 1900 (part) measuring an area of 35 decimal
in the name of their mother Radhika Devi who died in 1993 which is
mentioned as Schedule-B through Sale deed no.9175 & 9176 both dated
08.12.1982 and the same was mutated in the names of their parents vide
Mutation Case no.202 & 566/1983-84. It has been alleged in the plaint
that the defendant no. 2 obtained the sale deed of his father (exhibit-B)
relating to Schedule-A property without payment of any consideration
amount and obtained his LTI on the same and the Chirkut. It was asserted
that in any case the property was coparcenary and no coparcener can sell
the coparcenary property without the consent of other coparceners and any
sale without the consent of coparceners is voidable. It was asserted that
the three plaintiffs have equal share with their father.
Case of defendants.
11. The defendant No.1 Shanti Devi (the vendee) had filed written
statement on 07.07.2003 challenging its maintainability on the ground that
the suit was barred by estoppel, waiver and acquiescence and non-joinder
of necessary party as Shrawan Tiwary (Vendor) who was not made party
in the suit; the suit was also barred under Section 34 of the Specific
Reliefs Act as the plaintiffs were not in possession of the suit land and the
father of the plaintiffs inherited residential house and some land; the
plaintiff no.1 never became the head and Karta of the family. It was
further asserted that Shrawan Tiwary with his own income purchased the
properties involved in the case in his name vide sale deed no.9175 dated
08.12.82 and vide another registered sale deed no.9176 dated 08.12.82 in
the name of his wife Radhika Devi and after death of Radhika Devi,
Shrawan Tiwary remained in exclusive possession. As the vendor had not
sold the entire land so he had not handed over his original deeds and that
the custody of original deed was with Shrawan Tiwary and Radhika Devi
and this fact has no legal value. It was asserted that the Plot no.1783 &
Plot no. 1889 had been amalgamated by the defendant no.1 and she was in
possession of the same. It was asserted that the consideration amount was
settled with free will and open mind and subsequently executed and
registered the sale deed in conscious state of body and mind in favour of
this defendant regarding his self-acquired property with which the
plaintiffs have no concerned. The consideration amount was spent by
Shrawan Tiwary to pay the loan of marriage of a grand daughter Kabutar
@ Renu Kumari. This defendant has never desired to depute any Amin,
thus the cause of action said to be arisen on 15.12.2002 is false and
imaginary. No advalorum court fee was paid on the valuation of sale
deed. As such, the relief prayed by them cannot be granted. Shrawan
Tiwary had purchased the scheduled land from his own income in his own
name and in the name of his wife. Full consideration amount was paid in
presence of this defendant and the husband of this defendant putting his
LTI over the same in presence of Sanjay Kumar who is also an attesting
witness of the sale deed in question. As such the suit of the plaintiffs is
not maintainable and same has been prayed to be dismissed.
12. The defendant no.2 has filed a separate written statement
challenging the maintainability of suit both in law as well as on the facts
of the case. The entire consideration was paid to Shrawan Tiwary on
26.10.2002 and Shrawan Tiwary in lieu of that granted receipt in the name
of defendant no.1 on the same day and also handed over the registration
receipt in the name of the defendant. The possession over the suit land
was handed over to the defendant no.1 and got a takajul Badlain effective
and since then she is in exclusive possession over the purchased land. The
suit is merely for a simple declaration, as such unless the plaintiff sought
relief for declaration for title and recovery of possession on payment of
proper court fee, the suit cannot proceed.
13. On the basis of the pleadings of both sides, following issues were
framed by the learned trial below for consideration: -
(I) Is the suit as framed, maintainable?
(II) Have the plaintiffs valid cause of action for the suit?
(III) Is the suit barred by law of estoppel, waiver and
acquiescence?
(IV) Is the suit barred by the law of non-joinder of
necessary party?
(V) Whether the suit property is the self-acquired
property of Shrawan Tiwary?
(VI) Whether the sale deed was obtained by playing fraud
upon Shrawan Tiwary?
(VII) Whether the consideration money was paid to
Shrwan Tiwary or not?
(VIII) Is the plaintiff entitled for the reliefs claimed in the
suit?
(IX) Are the plaintiffs entitled to the reliefs sought for by
them?
14. The learned trial court after considering the materials on record held
that the plaintiffs had no valid cause of action; the father of the plaintiffs
was of sound mind and this finding was recorded after considering the
oral and documentary evidences including the medical prescriptions.
Paragraph 23, 27, 28, 29, 35, 36 and 37
"23. The learned lawyer for the defendants argued that a
member of a joint family can acquire property with his own
income and disposed of without the consent of the family
member also. From the above observations, I came in
conclusion that suit land is self-acquired land of Sharwan
Tiwary although he was joint with his sons (plaintiffs). So,
according to law, there is no barred to execute his self-
acquired property in state of jointness. Therefore, I came in
conclusion that the submissions of the plaintiffs with respect to
coparcenary property is not correct. On the above plea they
do not defeat the valid execution of alleged sale deed i.e.
Exhibit-B.
27. From the perusal of alleged sale deed Exhibit-B it is clear
that suit land had been sold for met urgent necessity of the
family and above oral evidences of P.W. 3 i.e. plaintiff no. 2
supported the recital of the alleged sale deed.
28. The defendant filed so many documents i.e. Exhibit-E, F,
F/1, G to show that Sharwan Tiwary was in sound mind and
had taken legal steps in the court and also deposed in the
court while will prove that the mental condition of the
Sharwan Tiwary is sound and he bears good health. The
defendants filed several sale deeds in B series to show that the
Sharwan Tiwary was capable to understand everything in his
interest and his sons i.e. plaintiffs have full knowledge about
his sound mind. So some of the plaintiffs executed sale deed
jointly vide exhibit-B/1. The Sharwan Tiwary had also
executed another sale deed which is Exhibit-B/2 on 21.12.02.
In this way there are ample evidence before the court to show
that Sharwan Tiwary was in sound mind and good health and
he fully capable to understand to watch his interest with
respect to save his property. Therefore, I came in conclusion
after the above discussions of the evidence of the parties that
Sharwan Tiwary was not man of unsound mind at the time of
execution of alleged sale deed Exhibit-B.
29. It is pertinent to mention here that an argument advanced
by the learned lawyer for the defendant that Sharwan Tiwary
i.e. father of the plaintiffs is surviving. He is able to come
before court to state the real fact but the plaintiffs have not
brought him before the court to show the mental position of
Sharwan Tiwary even then the plaintiffs have not made him
party in this suit. However, according to well established
principle of law Sharwan Tiwary is necessary party for proper
adjudication of the question involving in this case. Because he
was the person to state the real fact about the execution of the
sale deed and receiving the consideration amount. The
plaintiffs deliberately want to suppress the real fact before the
court to non-produced him. I consider the above argument of
the parties and I convinced the argument of the defendant that
Sharwan Tiwary is competent person to state that the truth
and he is necessary party and witness for proper adjudication
of the issue. His non-production before the court shows that
the plaintiffs deliberately have not produced before the court.
It is fattal to the plaintiffs.
35. From the perusal of the evidence of the plaintiffs. I found
that plaintiffs had not asked about payment of consideration
amount from his father Sharwan Tiwary clearly. From the
evidence of witness no. 3 Para-28 that there was necessity to
sale the suit property because the grand-daughter of his son
namely Machhali Tiwary has necessity for the marriage of his
daughter Renu Kumari. The defendants have filed Exhibit-9 as
Marriage Card of Renu Devi in support of above fact.
36. The defendant have examined D.W.-1 Satendra Shukla in
support of payment of consideration amount of Rs. 1,71,000/-
and grant of payment receipt by Sharwan Tiwary (Exhibit-A)
which has been marked without objection from the side of
plaintiff and the plaintiff did not challenge and had not
disputed the validity of document. Similarly, Sashikant Shukla
son of brother of defendant No. 1 who has examined as D.W.
has clearly deposed in para-12 that :
पैसा दे ते समय वहाां पर सामेशवर शुक्ल, वववेक उर्फ़ सत्येंद्र शुक्ला, सुशाांत
वतवारी, सरवन वतवारी और उनके दामाद मौजूद थे।
37. It is admitted fact that defendant no. 2 is retired military
person and he is practicing lawyer in Daltonganj and he is
getting military pension and the son of defendant Sushil
Kumar Tiwary is in Jharkhand police. Sushil Tiwary also
examined in this case on behalf of defendant. So, from the
evidence of the defendant No. 2 Madan Tiwary, Satendra
Kumar Shukla, Sushil Kumar Tiwary, it is found that the
consideration amount of the suit land had been paid to Sushil
Kumar Tiwary."
15. The learned trial court observed that it was the bounden duty of the
plaintiffs to prove that the sale-deed was not executed with consideration
and ultimately held in paragraph 39 as under: -
"39. From the observations and analysis of the above
evidence of the parties, I came in conclusion that
consideration amount of the alleged sale deed had been paid
by the defendants to the father of the plaintiffs Sharwan
Tiwary and alleged sale deed has been executed validly. The
defendant no. 1 had acquired right, title, interest and valid
possession over the suit land. The plaintiffs are unable to
prove their case."
16. Thus, the learned trial court held that (a) the plaintiffs had no valid
cause of action (b) Exhibit-B was validly executed by the father of the
plaintiffs in favour of defendant No. 1 with due payment of consideration
amount, so there was no occasion to file the case, hence the suit was not
maintainable (c) with respect to issue No. III, no argument was advanced
(d) with respect to issue No. IV, the learned trial court held that the suit
was barred on account of non-joinder of necessary party because Sharwan
Tiwary, the vendor of exhibit B, was the necessary party and the plaintiffs
had not made him as a party and without his implication, the suit was not
maintainable as per the provision of law. The learned trial court ultimately
held that the plaintiffs are not entitled for the relief and dismissed the suit.
17. So far as the learned appellate court is concerned, the learned
appellate court after perusal of the medical documents held that it was
rightly arrived by the learned trial court that the Vendor Sharwan Tiwary
was mentally and physically fit to execute the sale-deed No. 9356 dated
18.10.2002 (Exhibit-B) in favor of defendant No. 1 and the vendor
Sharwan Tiwary was neither made a party nor was examined on behalf of
the plaintiffs to this effect. With respect to payment of consideration
amount, the learned appellate court referred to the money receipt of
consideration amount dated 26.10.2002 filed by the defendants as Exhibit-
A and also the affidavits sworn by the Sharwan Tiwary, the father of the
plaintiffs and the vendor before the notary public, dated 22.03.2003 which
was marked Exhibit C wherein it was mentioned that Title Suit No.
136/2002 pending before the learned Sub-Judge, Palamau was filed to
harass the defendants. The learned appellate court also observed that the
vendor Sharwan Tiwary was a necessary party and was not made party
before the learned trial court. The learned appellate court also observed
that the Karta of the joint family property has right to alienate the property
and the plaintiffs being sons of Sharwan Tiwary had no right to challenge
such sale in the light of the findings of legal necessity recorded against
him. Exhibit-4 was the invitation card of marriage of vendor's grand-
daughter which was filed to substantiate that the vendor sold the
ancestral/scheduled property to meet out the loan accrued on the occasion
of marriage of his grand-daughter. It was also observed that the onus to
prove the case lies on the plaintiffs which they have failed to prove. The
learned appellate court was of the view that the judgment passed by the
learned trial court was a well-discussed judgment based on materials on
record which required no interference.
18. This Court finds that there are concurrent findings recorded by both
the courts below that the suit was not maintainable as the vendor of the
property, father of the plaintiffs, namely, Sharwan Tiwary though alive
but was not made a party to the proceedings. Both the courts rejected the
plea of the plaintiffs that Sharwan Tiwary was not physically and mentally
fit to execute the sale deed No. 9356 dated 18.10.2002 (Exhibit-B). Both
the courts rejected the plea that the property was sold without
consideration. Both the courts recorded that the property was sold by
Sharwan Tiwary for legal necessity for the marriage of his grand-daughter
and further it is not in dispute that the property stood in the name of
Sharwan Tiwary and his wife.
19. Considering the totality of the facts and circumstances of this case
and the findings recorded by both the courts after considering the
materials on record, particularly the finding that the plaintiffs had failed to
prove that their father Sharwan Tiwary was a person of unsound mind and
failed to make him party to the proceedings, and that the property was
sold for consideration and that it was sold for marriage of grand-daughter,
no substantial question of law arises in this second appeal, which is
hereby dismissed.
20. Pending I.A., if any, is also dismissed as not pressed.
(Anubha Rawat Choudhary, J.)
Mukul
