# Phagoo v. Gokaran & Ors

- **Citation:** (2024) 6 ILRA 188
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2024-06-05
- **Case number:** Second Appeal No. 1761 of 1983
- **Bench:** J.J. Munir
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/phagoo-v-gokaran-ors-52134
- **Pages:** 35

## Headnote

A. Civil Law -Civil Procedure Code, 1908 -
Section 100 - Second Appeal- suit for
6 All. Phagoo Vs. Gokaran & Ors.
189
partition of four houses owned by Tirath
Ram-After the death of Tirath Ram- Share
devolved upon his wife, mother and two
daughters- Wife of Tirath Ram remarried-
Sonar community- Custom of reversion of
the husband's property after remarriage-
Plaintiff
claimed
to
have
purchased
mother's share by a registered sale deed-
On the strength of the said sale deed,
partition of the suit property sought-
Daughters of Tirath ram had filed suit for
partition- Suit was dismissed for default-
Trial Court evaluated all the evidence-
Plaintiff could not prove the factum of
remarriage of Tirath Ram's wife- suit
dismissed.

B.
Plaintiff
preferred
first
appeal-
Daughters filed cross-objections- points
for determination framed by the appellate
court-
trial
court
decree
set
aside-
daughters'
cross-objections
allowed-
Plaintiff held to be entitled to 1/3rd share
of the suit property.

C.
Second
Appeal-
admitted-
first
substantial question of law- whether the
Lower Appellate Court had jurisdiction to
entertain the appeal- answered negative-
pertains to pecuniary jurisdiction of the
court- cancellation of fictitious sale deeds
not required- cross objections cannot be
regarded as appeal- valuation of crossobjections
of
no
consequence-
Suit
properly valued as per the relief of
partition claimed- Lower Appellate Court
rightly decided that it had the pecuniary
jurisdiction to hear the appeal. (Paras 29,
30 and 31)

HELD: About the cross-objections, the valuation
of which is Rs.30,000/-, the Lower Appellate
Court
remarked
that
the
cross-objections
preferred by defendant Nos.9 and 10 were one
that did not challenge the decree of dismissal of
the suit nor a decree for declaration of their
share was sought. Defendant Nos.9 and 10 laid
a case in the cross-objections about the findings
recorded by the Trial Court being wrong. The
Lower Appellate Court, therefore, opined that
the cross-objections cannot be regarded as an
appeal and the valuation of the cross-objection
made at Rs.30,000/- by the defendant, was of
no consequence. It would not in any manner
change the valuation of the appeal which would
be governed by the valuation of the suit made
by the Trial Court. The valuation of a suit for the
purpose of jurisdiction is made on the basis of
reliefs claimed by the plaintiff, founded on the
case that he/ she pleads. We agree with the
Lower Appellate Court that the plaintiff, in
substance, claimed a partition of his 1/3rd share
and recovery of rent in the specified sum from
defendant Nos.9, 10 and 11. He valued the suit
on the basis of the said relief. He did not value
the suit for reliefs of cancellation of the four sale
deeds executed by Lakhraji, because he
regarded the same to be ultra vires and void. A
document, that is void ab initio for want of even
a semblance of title in the executant, can
always be disregarded and other reliefs claimed
by the plaintiff upon establishment of his right.
A document or documents regarded by the
plaintiff void need not be sought cancellation of,
for these do not at all create any rights in
derogation of the plaintiffs, or for that matter,
anyone
else's.
This
distinction
between
documents that according the plaintiff's case
pleaded are void ab initio and those that must
be adjudged void and, therefore, require
cancellation is well established. Since a relief for
cancellation of a void document, according to
the plaintiff's case, is not necessary at all, the
plaintiff was not required to seek cancellation of
the four sale deeds, executed by Lakhraji,
defendant No.8 in favour of defendant Nos.1 to

## Text

_Characters 0–39,815 of 123,203. This is a partial read: ask again with offset=39815 for what follows._

188 INDIAN LAW REPORTS ALLAHABAD SERIES
now in a claim under Section 166 of the
Motor Vehicles Act negligence has to be
established. But the quality of evidence to
prove negligence and the extent of
negligence to be established is certainly
different
from
culpable
negligence
punishable
under
the
criminal
law.
Tribunals cannot look at the question as an
umpire in an adversarial litigation between
parties. Even in the absence of specific
pleadings and evidence, if the totality of the
circumstances convince the Tribunal that
there has been negligence, the Tribunal will
certainly be justified in passing an award
under Section 166 of Motor Vehicles Act.
Tribunals called upon to discharge the
legislature mandate of ensuring just and
reasonable compensation to the victims
cannot function merely as umpires in an
adversarial litigative process. The Tribunals
should play the dynamic role expected of
them under a welfare legislation in a
socialist
republic
to
effectively
and
expeditiously translate the compassion of
the legislature into tangible benefits to the
victims. The primary mandate to and the
very purpose of constitution of the Tribunal
under the provisions of the Motor Vehicles
Act is to ensure just and reasonable
compensation to the victims and the
Tribunal should not and can never afford to
ignore that basic tenet. In that view of the
matter we are satisfied that the materials
available sufficiently justify the impugned
award."

21. In view of above and considering
the overall facts and circumstances of the
case this court is of the view that the
learned Tribunal has failed to examine and
scrutinize the evidence correctly and in
right perspective and has also failed to
apply the principle of 'res ipsa loquitur'
correctly, therefore this court is of the view
that the impugned judgment and order
passed by the Motor Accident Claims
Tribunal is not sustainable in the eyes of
law and it is liable to be set aside and
matter is liable to be remitted back to the
concerned Tribunal to pass a fresh order in
accordance with law.

22. The appeal is partly allowed. The
matter is remitted back to the concerned
tribunal to pass a fresh order in accordance
with law and in the light of observations
made in this order expeditiously and
preferably within a period of six months
from the date of production of a certified
copy of this order without granting
unnecessary adjournment to either of the
parties. No order as to costs.

23. The lower court record shall be
sent back to the concerned Tribunal
expeditiously and in any case within a
period of two weeks from today.
----------
(2024) 6 ILRA 188
APPELLATE JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 05.06.2024

BEFORE

THE HON'BLE J.J. MUNIR, J.

Second Appeal No. 1761 of 1983

Phagoo ...Appellant
Versus
Gokaran & Ors. ...Respondents

Counsel for the Appellant:
Ashutosh Srivastava, Shreesh Srivastava,
Shreyas Srivastava

Counsel for the Respondents:
Shakti Dhhar Dube, P.H. Vashishtha

A. Civil Law -Civil Procedure Code, 1908 -
Section 100 - Second Appeal- suit for
6 All. Phagoo Vs. Gokaran & Ors.
189
partition of four houses owned by Tirath
Ram-After the death of Tirath Ram- Share
devolved upon his wife, mother and two
daughters- Wife of Tirath Ram remarried-
Sonar community- Custom of reversion of
the husband's property after remarriage-
Plaintiff
claimed
to
have
purchased
mother's share by a registered sale deed-
On the strength of the said sale deed,
partition of the suit property sought-
Daughters of Tirath ram had filed suit for
partition- Suit was dismissed for default-
Trial Court evaluated all the evidence-
Plaintiff could not prove the factum of
remarriage of Tirath Ram's wife- suit
dismissed.

B.
Plaintiff
preferred
first
appeal-
Daughters filed cross-objections- points
for determination framed by the appellate
court-
trial
court
decree
set
aside-
daughters'
cross-objections
allowed-
Plaintiff held to be entitled to 1/3rd share
of the suit property.

C.
Second
Appeal-
admitted-
first
substantial question of law- whether the
Lower Appellate Court had jurisdiction to
entertain the appeal- answered negative-
pertains to pecuniary jurisdiction of the
court- cancellation of fictitious sale deeds
not required- cross objections cannot be
regarded as appeal- valuation of crossobjections
of
no
consequence-
Suit
properly valued as per the relief of
partition claimed- Lower Appellate Court
rightly decided that it had the pecuniary
jurisdiction to hear the appeal. (Paras 29,
30 and 31)

HELD: About the cross-objections, the valuation
of which is Rs.30,000/-, the Lower Appellate
Court
remarked
that
the
cross-objections
preferred by defendant Nos.9 and 10 were one
that did not challenge the decree of dismissal of
the suit nor a decree for declaration of their
share was sought. Defendant Nos.9 and 10 laid
a case in the cross-objections about the findings
recorded by the Trial Court being wrong. The
Lower Appellate Court, therefore, opined that
the cross-objections cannot be regarded as an
appeal and the valuation of the cross-objection
made at Rs.30,000/- by the defendant, was of
no consequence. It would not in any manner
change the valuation of the appeal which would
be governed by the valuation of the suit made
by the Trial Court. The valuation of a suit for the
purpose of jurisdiction is made on the basis of
reliefs claimed by the plaintiff, founded on the
case that he/ she pleads. We agree with the
Lower Appellate Court that the plaintiff, in
substance, claimed a partition of his 1/3rd share
and recovery of rent in the specified sum from
defendant Nos.9, 10 and 11. He valued the suit
on the basis of the said relief. He did not value
the suit for reliefs of cancellation of the four sale
deeds executed by Lakhraji, because he
regarded the same to be ultra vires and void. A
document, that is void ab initio for want of even
a semblance of title in the executant, can
always be disregarded and other reliefs claimed
by the plaintiff upon establishment of his right.
A document or documents regarded by the
plaintiff void need not be sought cancellation of,
for these do not at all create any rights in
derogation of the plaintiffs, or for that matter,
anyone
else's.
This
distinction
between
documents that according the plaintiff's case
pleaded are void ab initio and those that must
be adjudged void and, therefore, require
cancellation is well established. Since a relief for
cancellation of a void document, according to
the plaintiff's case, is not necessary at all, the
plaintiff was not required to seek cancellation of
the four sale deeds, executed by Lakhraji,
defendant No.8 in favour of defendant Nos.1 to
7. He was, therefore, not required to seek relief
of cancellation or implicitly regarded as having
sought a relief of cancellation, which would add
to the valuation of the suit, and, a fortiori to the
appeal. The Lower Appellate Court was,
therefore, perfectly right in its reasoning to have
kept the relief of cancellation out of the subject
matter of the suit and, therefore, its valuation.
(Para 29).

There is another vantage to it. Though, a suit is
to be valued according to the reliefs claimed in
the plaint, the plaintiff in any case would never
be required to seek cancellation of the four sale
deeds. If Lakhraji had a right to execute those
sale deeds, the suit being one for partition, the
rights of co-sharers and parties to the suit
would be determined on the basis that Lakhraji
had a share. If Lakhraji did not have a share,
the shares of parties to the suit would be
190 INDIAN LAW REPORTS ALLAHABAD SERIES
determined accordingly. Therefore, in either
event, there would be no necessity to seek
cancellation of the four sale deeds executed by
Lakhraji. (Para 30).

In the opinion of this Court, therefore, the suit
and the appeal were rightly valued and the
appeal was within the pecuniary jurisdiction of
the Lower Appellate Court according to the law
at the time that he heard the appeal. The
learned Additional District Judge was also right
in excluding from consideration the valuation
shown on the cross-objection, because the
cross-objection preferred by defendant Nos.9
and 10 did not claim any share in the decree or
sought the decree of dismissal passed by the
Trial Court to be reversed or modified. The
cross-objection was limited to certain objections
to the findings recorded by the Trial Court,
which could in any case be objected to at
hearing of the appeal before the Lower
Appellate
Court,
without
lodging
crossobjections by defendant Nos.9 and 10. We,
therefore, answer Substantial Question No.1 in
the affirmative and hold that the learned District
Judge had pecuniary jurisdiction to entertain
and determine the appeal. (para 31)

D. Second Appeal- Second substantial
question of law- whether the Court below
has erred in law in considering the effect
of the dismissal of Suit No.64 of 1968-
answered
negative-
Tirath
Ram's
daughters instituted a suit for partition
against
Smt.
Jashoda
and
Lakhraji,
seeking a declaration of their share and
Jashoda, excluding Lakhraji- dismissed for
default ex parte- bar of the plaintiff's right
to institute a fresh suit under Order IX
Rule 9 of the Code, if the suit was
dismissed under Order IX Rule 8 of the
Code- entirely different from the bar of res
judicata- dismissal of suit- no destruction
of party's right, whose suit dismissed in
default- if in a suit for partition of
property, a decree is passed after trial-
execution of that decree becomes barred
by limitation or otherwise- a second suit
on the same cause of action for a partition
and declaration of shares in the joint
property would be maintainable- even by
the plaintiff of the former suit so long as
the property is joint. (Paras 35, 37 and 42)
Held: Now, a bar of the plaintiff's right to
institute a fresh suit under Order IX Rule 9 of
the Code, if the suit was dismissed under Order
IX Rule 8 of the Code, is entirely different from
the bar of res judicata. It is attracted in a case
where the defendant appears and the plaintiff
does not, when the suit is called on for hearing
and the Court dismisses it in default. The
plaintiff is precluded from bringing a fresh suit
on the same cause of action by virtue of Order
IX Rule 9 of the Code. His remedy is to apply for
an order to set aside the dismissal, i.e. if he
satisfies the Court that there was sufficient
cause for his nonappearance. If he does not
seek restoration of a suit dismissed in the
defendant's presence, no fresh suit on the same
cause of action can be instituted. However, a
dismissal of this kind does not bring in any kind
of res judicata. Whereas dismissal of a suit
under Order IX Rule 9 merely bars the plaintiff's
remedy of instituting a fresh suit, res judicata
prevents the issues involved in the earlier suit
from being tried, because they are already
decided. Res judicata comes into play when in
an action instituted by the plaintiff and
contested by the defendant, an issue is decided
finally between parties, the effect of which is
expressed in a decree. In consequence, the
right of the plaintiff or the defendant in terms of
the decision in the earlier suit on merits, creates
a right in favour of one and extinguishes that of
the other, who fails. Therefore, while res
judicata decides and determines the right of a
party, where the party, who has the issue
decided against him, loses his right that he
claims, a dismissal of the suit does not lead to a
destruction of the party's right, whose suit is
dismissed in default. It only bars the remedy.
The right survives. Therefore, if in some other
and later suit brought by other side, the right in
respect of which the remedy to bring a fresh
suit is lost to the defaulting defendant because
of the provisions of Order IX Rule 9 of the Code,
it does not mean that in such suit, rights of the
party, whose suit has been dismissed in default,
falling for determination, cannot be determined.
They ought to be determined because dismissal
of the suit under Order XI Rule 8, does not
destroy the right itself, as already said. (Para
35)

There is another principle why Suit No.64 of
1968 would not bar, defendant Nos.9 and 10
6 All. Phagoo Vs. Gokaran & Ors.
191
from claiming the determination of their share in
the present suit. It has been held for a principle
that if in a suit for partition of property, a decree
is passed after trial, but the execution of that
decree
becomes
barred
by
limitation
or
otherwise, a second suit on the same cause of
action for a partition and declaration of shares
in the joint property would be maintainable,
even by the plaintiff of the former suit so long
as the property is joint. (Para 37)

It must be added here that what this Court has
observed regarding the right of a party to seek
partition of a joint property, where his suit is
dismissed under Order IX Rule 8 of the Code, is
not in derogation of the wider principles, well
acknowledged that a suit for partition after a
decision of the first suit, where the decree is not
executed for some reason, is not barred. What
this Court has held is that notwithstanding the
dismissal of a partition suit instituted by a cosharer under Order IX Rule 8, even if it be
regarded that his right to sue is barred, his right
to claim a partition of his share in a suit brought
by another cosharer, can never be held barred.
This
principle
is
to
be
understood within the parameters of the wider
principles, permitting a second suit for partition
to be brought under the circumstances indicated
in those decision. (Para 42)

E.
Second
Appeal-
Third
substantial
question of law- whether the Court below
has erred in interpreting the effect of
Section 14 of the Act of 1956 over the
provisions of Section 2 of the Act of 1856-
answered affirmative- Section of the
Hindu Succession Act, 1956- Section 2 of
the Hindu Widows' Remarriage Act, 1856-
Date when succession opened out in
favour of the widow- date of remarriage-
of utmost importance- no divestment of
widow's right possible- if remarriage after
the promulgation of the Act of 1956-
Lakhraji held to be entitled to 1/4th share
of the property- Appeal partly allowed.
(Paras 63, 64 and 65)

Held: Therefore, what is relevant is the date
when succession opened out in favour of the
widow, and more than that, the date when she
remarried.
If
both
dates
fall
after
the
enforcement of the Act of 1956, even in a case
when the Act of 1856 was still in force, the
widow would not be divested of her right at all.
In case, the succession opened out before
enforcement of the Act of 1956, but the widow
remarried after the enforcement of the last
mentioned Act, the provisions of Section 2 of
the Act of 1856 would not apply and there
would be no divestment of property that vests in
her absolutely under Section 14(1) of the Act of
1956. Likewise, the Act of 1956 having
overriding effect on all laws, if either of the two
events have happened after the enforcement of
the Act of 1956, any custom or uncodified law,
would not apply to divest the widow. (Para 63).

In the present case, Lakhraji's husband died
on 14.10.1967 and she remarried Phagoo in a
customary form of marriage, called Sagai,
native to the community to which she
belonged, in the month of April, 1968. By the
time both events happened, the Act of 1956
had come into force. This, then being the
position on facts, Smt. Lakhraji must be held
to have inherited the suit property from her
deceased husband in the specified share as
her absolute estate, of which she could not be
divested, either by custom or by virtue of
Section 2 of the Act of 1856. The issue, if she
was in possession of the suit property when
succession opened out, is not seriously or
even slightly in issue in this appeal, because it
is not in dispute that in whatever manner, she
was duly recorded in the revenue records to
the exclusion of the other heirs entitled.
There is also evidence that she was in
possession of the suit property and no one
has disputed the said fact. Smt. Lakhraji's
share
would,
therefore,
vests
in
her
absolutely, of which she would not be
divested upon remarriage to Phagoo. (Para
64).

Substantial Question of Law No.3 is, therefore,
answered in the affirmative and it is held that the
Court below erred in interpreting Section 14 of the
Act of 1956 regarding its effect on the provisions
of Section 2 of the Act of 1856. (Para 65)

Appeal Partly allowed. (E-14)

List of cases cited:

1. Shaukat Ali Vs Kamal @ Abdulla 1980 LLJ 243
192 INDIAN LAW REPORTS ALLAHABAD SERIES
2. Kamla Devi Vs Sunni Central Board of Waqfs,
U.P., Lucknow through its Secretary & anr., AIR
1949 All 63

3. Bisheshar Das & anr. Vs RamParshad & anr.,
(1906) 3 All LJ 379

4. Kannikandath Kizhe Purakkal Velia's Son,
Thayan Vs Kannikandath Kozhe Purakkal, 1934
SCC OnLine Mad 424 : AIR 1935 Mad 458

5. Devendra Kumar Srivasatava Vs Prabhat
Kumar Srivastava & ors., 2023 SCC OnLine Pat
2458

6. Asha Sharma & ors. Vs Amar Nath & ors., AIR
2003 HP 32

7. Manakkal Nadakumar Vs M. Subramanyan &
ors., ILR 2017 (1) Kerala 907

8. Sankar Prasad Khan and others Vs Smt.
Ushabala Dasi and other, AIR 1978 CAL 525

9. Gangadhar Charan Naga Goswami & ors. Vs
Sm. Saraswati Bewa & anr., AIR 1962 Orissa 190

10. Mst. Bhuri Bai Vs Mst. Champi Bai, 1967 SCC
OnLine Raj 10

11. Velamuri Venkata Sivaprasad (dead) by LRs
Vs Kothuri Venkateswarlu (dead) by LRs & ors.,
(2000) 2 SCC 139

12.
Kizhakke
Vattakandiyil
Madhavan
Vs
Thiyyurkunnath Meethal Janaki, 2024 SCC
OnLine SC 517

13. Cherotte Sugathan Vs Cherotte Bharathi,
(2008) 2 SCC 610

(Delivered by Hon'ble J.J. Munir, J.)

1. This is a defendant's second appeal
arising out of a preliminary decree for
partition.

2. Gokaran, the sole plaintiff of
Original Suit No.20 of 1972, instituted a
suit for partition of four houses, shown in
the schedule, with their own boundaries at
the foot of the plaint, giving rise to the suit
and all located in Plot No.854/29. The
plaintiff demanded partition of his 1/3rd
share in the
four houses aforesaid,
hereinafter referred to as 'the suit property',
that he claimed against the defendants on
the basis of a registered sale deed dated
13.12.1971, executed in his favour by Smt.
Jashoda widow of Patiraj. The suit property
was originally owned by one Tirath Ram
son of Patiraj, who had acquired it of his
own exertions. Tirath Ram died on
14.10.1967. Smt. Jashoda was his mother.
She executed a registered sale deed dated
13.12.1971 of her 1/3rd share in the
plaintiff's favour. The plaintiff, besides
seeking a decree of partition and separate
possession, prayed that a decree for the
recovery of a sum of Rs.2136/- be passed
against defendant Nos.1 and 2, and another
for Rs.840/- against defendant Nos.6 and 7,
on account of his proportionate share in the
rent that the said defendants had realized
from the tenants in the suit property.

3. A moreful description of the facts,
leading to this appeal, would be necessary.
But, before a reference to the facts, it would
be apposite to refer to the following pedigree,
which the Lower Appellate Court has relied
upon and shows the accurate relationship of
parties, who were the original owners of the
suit property:

Pati Raj = Smt. Jashoda
 |_________________|
 |

 Tirath Ram = Smt. Lakhraj
 (died on 14.10.67) (remarried Phagoo
 | in April, 1968)
 |__________________|
 __________|___________
 | |
Smt. Keshari Devi Smt. Kapura Devi
 (Defd. 9) (Defd. 10)
6 All. Phagoo Vs. Gokaran & Ors.
193
4. The plaintiff instituted the suit
with a case that Tirath Ram carried on the
business of a jeweller in town Khalilabad,
District Basti. He constructed four houses,
detailed in Schedule A at the foot of the
plaint. Tirath Ram died on 14.10.1967,
survived by his widow Smt. Lakhraji and
two daughters, Smt. Keshari Devi and Smt.
Kapura Devi, besides his mother, Smt.
Jashoda Devi. Apparently, he died intestate
and the four of his heirs would inherit a
1/4th share in the suit property, but for a
certain decision of his widow, Smt.
Lakhraji. It is the plaintiff's case that
amongst the Sonars, a community from
which Tirath Ram hailed, there is an
ancient custom of remarriage by women
after the death of their husband. There is
another custom that after remarriage, the
woman is divested of the estate that she
inherits from her husband, which then
reverts to the husband's heirs next in order
of succession. Smt. Lakhraji is said to have
married one Phagoo, defendant No.1 in the
month of April, 1968, in accordance with
the community's custom. Phagoo shifted to
Smt. Lakhraji's house and settled with her,
becoming what is described as 'Ghar
Baitha' Husband. Both Lakhraji and
Phagoo began a life together as man and
wife, in consequence of which, Lakhraji
lost all her rights and title to the suit
property that she inherited from Tirath
Ram. As a result, the share of the other
heirs, to wit, Smt. Jashoda, Tirath Ram's
mother and his two daughters, Smt. Keshari
Devi and Smt. Kapura Devi, defendant
Nos.9 and 10 in the suit, was enlarged to a
1/3rd. Smt. Jashoda transferred her 1/3rd
share in the suit property vide registered
sale deed dated 13.12.1971 in the plaintiff's
favour for a total sale consideration of
Rs.15,000/-, said to have been paid in cash.
The plaintiff thus became a co-sharer in the
suit property, comprising the four houses.
5. It is averred in the plaint that in
the sale deed executed by Smt. Jashoda, her
share has been mentioned as 1/2 due to a
clerical error. Defendant Nos.1 to 7 to the
suit are men, one of them a minor at the
relevant time, to whom Smt. Lakhraji
transferred her entire share in the suit
property, she inherited from Tirath Ram
through four sale deeds, being conveyances
dated 28.05.1968, 01.03.1969, 21.05.1970
and 22.04.1971. All the four houses,
comprising
the
suit
property,
were
constructed by the late Tirath Ram, but in
the sale deed dated 21.05.1970, there is a
mention of the plot alone, whereon the
houses were constructed. The plaintiff says
that all these four sale deeds are fictitious
and without consideration. These have been
executed by Smt. Lakhraji, who had no title
to convey. Defendant Nos.11 and 13 are
tenants of the house on different rates of
rent, from whom defendant Nos.1 and 2
have realized a sum of Rs.2136/- in rent
during the last three years, proportionate to
the plaintiff's share, which he is entitled to
recover. Likewise, defendant Nos.6 and 7
have realized rents from tenants, Kishori,
Gaya and Ram Khelawan, to whom they let
out portions of the houses, comprising the
suit property that they purchased from Smt.
Lakhraji. The plaintiff claims a sum of
Rs.840/- on account of rent realized by
defendant Nos.6 and 7 from the tenants
aforesaid, proportionate to his share in the
suit property.

6. A written statement was filed by
defendant Nos.9 and 10, admitting the
plaint case to the extent of Tirath Ram's
death, their relationship to him and that of
Smt. Jashoda to the deceased. It is also
admitted that defendant Nos.9 and 10 and
Smt. Jashoda succeeded to Tirath Ram's
estate as his heirs. These defendants,
however, question the sale deed relied upon
194 INDIAN LAW REPORTS ALLAHABAD SERIES
by the plaintiff as illegal and void on
ground that it was never Smt. Jashoda's
conscious act and an instrument executed
without consideration or legal necessity. It
is also pleaded that the sale deed was one
obtained by means of undue influence,
because Smt. Jashoda was aged 100 years,
who had almost lost her eyesight and
become very hard of hearing. To add to
this, she was an illiterate and a rustic
woman. Defendant Nos.9 and 10 claim that
they are entitled to the whole of the suit
property after Smt. Jashoda's demise. It is
also their case that the plaintiff's brother
Prahlad purchased a grove of Tirath Ram
from Smt. Lakhraji on 10.04.1969, and,
similarly one Shubhkaran, a son of Lalsa
Ram, purchased a field belonging to Tirath
Ram from Smt. Lakhraji on 09.04.1969. The
plaintiff says that Smt. Lakhraji remarried
Phagoo in April, 1968 in accordance with the
ancient custom of the community. Since
Phagoo stays with her as her husband, Smt.
Lakhraji, by the other custom of the
community, stands divested of her rights and
title to the suit property. These defendants,
therefore, say that the sale deeds, executed by
Smt. Lakhraji in favour of defendant Nos.1 to
7 on the various dates indicated, are without
title, fictitious and without consideration.
These have been got executed by Phagoo,
defendant No.1 in his own name and in
favour of his relatives and friends. It is also
the case of these defendants that the sale
deeds that were executed by Smt. Lakhraji in
collusion with Phagoo, as already said, are
fictitious and without consideration. There is
an alternate plea that if ultimately it is held
that they are owners of a 2/3rd share, the said
share of theirs may be partitioned and
separate possession delivered.

7. Defendant Nos.1, 2 and 8 have
filed a joint written statement where they
admit that Tirath Ram carried on a
jeweller's business before his demise and
constructed the suit property. He died in the
year 1967. It is pleaded that his widow,
Smt. Lakhraji, defendant No.8, succeeded
to his estate as his heir and LR. It is not
disputed that Smt. Lakhraji executed the
various sale deeds in favour of defendant
Nos.1 and 2, Phagoo and Ram Asrey,
through which they have acquired title.
According to these defendants, Tirath Ram
was owner in possession of Plot Nos.857/4
and 275. He raised houses, making for the
suit property, and Smt. Lakhraji inherited it
as his widow and heir, after his demise.
Khalilabad
was
under
consolidation
operations, when Tirath Ram passed away.
Smt.
Jashoda,
Tirath
Ram's
mother,
surrendered her rights in the suit property
in favour of Smt. Lakhraji as also the other
properties of Tirath Ram. This led Smt.
Lakhraji, defendant No.8, becoming the
sole bhumidhar in possession of the suit
property, that was mutated in her name
alone. The consolidation records became
final and Smt. Jashoda did not press her
claim during the currency of those
operations. Smt. Jashoda was ill for a
period of about two months, preceding her
death
and
had
lost
her
power
of
understanding, with the result that the sale
deed relied upon by the plaintiff is a
fictitious and forged document. It has been
obtained by putting up an imposter for Smt.
Jashoda. These defendants denied Smt.
Lakhraji's remarriage and also the custom
about divesting of a widow's rights that she
has inherited from her husband upon
remarriage. A plea of the bar of estoppel
and acquiescence has also been raised.

8. Defendant Nos.3 to 5 filed their
own written statement together, denying
that Smt. Lakhraji remarried Phagoo.
However, they do not deny the fact that
Tirath Ram passed away in the year 1967
6 All. Phagoo Vs. Gokaran & Ors.
195
and Smt. Lakhraji succeeded to the estate
as his widow. These defendants admitted
the custom of Sagai in the community of
Sonars as well as the fact that Smt. Lakhraji
had executed a sale deed in their favour.
They have pleaded that Tirath Ram was
bhumidhar in possession of Plot No.154/21
and 275-M. He built houses thereon, which
comprise
the
suit
property.
These
defendants plead that they had good
relations with Tirath Ram, on account of
which, he agreed to give them some land
for building a house, as they had expressed
their desire to construct a house for
themselves in Khalilabad for carrying on
business. It is these defendants' case that
that Tirath Ram agreed to transfer some
land to them for a sum of Rs.1500/-. There
were parleys held in September, 1967
between defendant Nos.3 to 5 and Tirath
Ram, in consequence whereof, Tirath Ram
put these defendants in possession of land,
agreed to be sold to them. They had
commenced laying foundation, when Tirath
Ram passed away in October, 1967,
without executing a sale deed. It is pleaded,
therefore, that the sale deed executed by
Smt. Lakhraji in their favour is to honour
her husband's words. The defendants plead
that they have incurred an expenditure of
about Rs.10,000/- or more in laying the
foundation and constructing a portion of
the building. The sale deed relied upon by
the plaintiff has also been challenged by
these defendants as an act of Smt. Jashoda
with her mind not accompanying it and not
binding on the defendants at all. These
defendants too raise a plea of estoppel.

9. There is another written
statement filed by defendant Nos.11 and
13, again a joint one. These defendants
admit that Lakhraji had remarried Phagoo
and has been living with him as his wife.
The said defendants admit the plaintiff's
case that Smt. Jashoda executed a sale deed
relating to her share in the suit property in
the plaintiff's favour and put him in
possession. These defendants have also
admitted the execution of the sale deed in
favour of defendant Nos.1 to 7 by
defendant No.8 and the fact that they were
tenants of House No.1 in the list of houses,
shown in Schedule A to the plaint. They
have been paying rent to the plaintiff
relative to their share after execution of the
sale deed. It is pleaded that these
defendants have been impleaded to the suit
without a cause.

10. An additional written statement
has been filed by defendant No.12, denying
the plaintiff's right, title to and possession
of the suit property. He has questioned the
plaintiff's right to institute the suit with a
plea that the said defendant was a tenant of
defendant Nos.1 and 2 and paying rent to
them. He has also pleaded that he has
vacated the premises and put defendant
Nos.1 and 2 in possession.

11. The plaintiff has put in a
replication and denied the case of a family
arrangement, where Jashoda gave up her
rights to her share in Tirath Ram's property.
It is pleaded that she remained in her senses
till her death. It is also denied that Smt.
Lakhraji had secured the consent of
defendant Nos.9 and 10, when she executed
sale deeds in favour of defendant Nos.6 and
7. The plaintiffs have reaffirmed through
another
replication
the
custom
of
remarriage amongst the Sonars and the
appended custom of divesting of rights of
the widow in the estate inherited from the
deceased husband. Defendant Nos.1 and 2,
through a joint additional written statement,
and defendant No.10 through another
additional
written
statement,
besides
defendant Nos.6 and 7, through a separate
196 INDIAN LAW REPORTS ALLAHABAD SERIES
additional written statement, have affirmed
the cases respectively pleaded by them
regarding the plaintiff not at all being the
owner of the suit property. It has been
reaffirmed that the plaintiff has no share in
the suit property.

12. The Trial Court framed the
following issues:

 "1- Whether the suit is under
valued?

 (b)
Is
the
court
fee
paid
insufficient?

 2- Whether Smt. Lakhraji has
remarried with Fagu defendant no.1 as
alleged? If so its effect?

 3- Whether there was any custom
in the community of Tirath Ram of
divesting the widow from the property of
the deceased?

 4- Is the share of plaintiff in the
disputed property?

 5- To what relief any is the
plaintiff entitled?

 6- Whether plaintiffs are entitled
to recover the amount of rent from the
defendants as alleged?"

13. The parties went to trial on the
said issues leading both documentary and
oral, where the Trial Court held in favour
of the plaintiff on Issues Nos.1 and (b).
Issue No.2 was answered by the Trial
Judge in the negative and holding that the
plaintiff had failed to prove that Lakhraji
had married defendant No.1. Issue No.3
was also answered in the negative holding
that the plaintiff failed to prove the custom
in the community, to which Tirath Ram
belonged, divesting the widow of her
property received from her deceased
husband upon remarriage. It was also held
that she became absolute owner of the suit
property upon her husband's death in view
of the provisions of Sections 4 and 14 of
the Hindu Succession Act, 1956 (for short,
'the Act of 1956') and that the provisions
of the Hindu Widows' Remarriage Act,
1856 (for short, 'the Act of 1856') would
not apply once the widow became full
owner. It was, therefore, concluded that
even if Smt. Lakhraji remarried Phagoo, it
would not divest her of title in the suit
property. Issue No.4 was answered in the
manner that Smt. Jashoda had not executed
the sale deed dated 13.12.1971 in the
plaintiff's favour for reasons assigned there,
including that a copy of Part II Yogya
Praurh Register, Ex. A-14, shows that
Jashoda had died on 10.12.1971 whereas
the sale deed was executed on 13.12.1971.

14. So far as the share of Smt.
Keshari Devi and Smt. Kapura Devi is
concerned, the Trial Court has evaluated
evidence, including the effect of a suit for
partition filed by them, being Suit No.64 of
1968, that was dismissed in default, to infer
that the case of a family partition taking
place later, where defendant Nos.9 and 10
surrendered their rights to resolve the
dispute is believeable. The Trial Court has
relied, particularly, upon Ex. A-9, Ex. A10
and Ex. A11, extracts of CH Form-23,
which show that Lakhraji's name had been
entered after Tirath Ram's death. It has
been reasoned that Jashoda, who was alive
at that time, did not object. It is inferred
that Jashoda had surrendered her rights to
Lakhraji. The four sale deeds executed by
Smt. Lakhraji in favour of defendant Nos.1
to 7 were noticed to have been executed in
Smt.
Jashoda's
lifetime
without
any
6 All. Phagoo Vs. Gokaran & Ors.
197
objection
from
her,
and,
therefore,
affording
added
reasons
about
Smt.
Jashoda surrendering her rights. Coming
back to the share of defendant Nos.9 and
10, is the fact that after dismissal in default
of their own suit for partition, they did not
get it restored and never entered the
witness-box to support their claim. It is,
particularly, remarked by the Trial Court
that in the consolidation proceedings,
where Smt. Lakhraji came to be recorded
after Tirath Ram's demise exclusively,
defendant Nos.9 and 10 did not raise any
objection. There is an added observation
that Lakhraji also executed a sale deed in
favour of Shubhkaran and Prahlad. This
sale deed is admitted by defendant Nos.9
and 10. There is no objection to the
aforesaid deeds in favour of Prahlad and
Shubhkaran, notwithstanding the case of a
remarriage by Lakhraji and resultant
divestment of her interest in Tirath Ram's
estate.
From
all
this
conduct
and
transactions, the case about defendant
Nos.9 and 10 also surrendering their right
in favour of Smt. Lakhraji has been
accepted by the Trial Court. Based on all
these facts, the learned Trial Judge
dismissed the suit by means of his
judgment and decree of 3rd November,
1980.

15. Aggrieved by the aforesaid
decree passed by the learned Trial Judge,
Gokaran, the plaintiff, instituted Civil
Appeal No.492 of 1980 before the District
Judge of Basti, seeking reversal of the Trial
Court's decree. The appeal was admitted to
hearing on 20.12.1980. Defendant Nos.9
and 10 too filed cross-objections in Civil
Appeal No.492 of 1980, with a prayer that
the findings of the Trial Court against the
said defendants be set aside with costs. No
variation, modification or setting aside of
the decree was, however, sought. The
Lower
Appellate
Court
framed
the
following points for determination:

 "1.
Whether
Smt.
Lakhraji
remarried Phagoo?

 2. Whether there was a custom
amongst the Sonars of remarriage by the
widows and if so, is there any custom
regarding the divesting of the vested estate
in the widow after remarriage? What is the
effect
of
the
provisions
of
Hindu
Succession Act and Hindu Widow's Remarriage Act on the aforesaid custom?

 3. Whether there has been a
family
settlement
under
which
Smt.
Lakhraji alone became owner of the
disputed properties or alternatively whether
Smt. Jashoda surrendered her rights in the
properties of Tirath Ram which devolved
on her after the death of Tirath Ram?

 4. Whether Smt. Jashoda was
dead on the date of the alleged execution of
the sale-deed, dated 13.12.71, paper no.
140 C or she executed the sale-deed in
question?
 5. What, if any, was the share of
Smt. Jashoda and what, if any, is the share
of the plaintiff and defendants 9 and 10
each?"

16. The Lower Appellate Court
allowed the plaintiff's appeal as also the
cross-objections filed by defendant Nos.9
and 10. The Trial Court's decree was set
aside and the suit decreed for relief of
partition. The plaintiff was held entitled to
a 1/3rd share in the suit property and
defendant Nos.9 and 10 to a 2/3rd, which
the two defendants would share equally.
The plaintiff was also held entitled to
recover a sum of Rs.2136/- from defendant
Nos.1 and 2 and a sum of Rs.840/- from
198 INDIAN LAW REPORTS ALLAHABAD SERIES
defendant
Nos.6
and
7,
respectively
towards
rent,
received
by
the
said
defendants from the tenants. The plaintiff
was held entitled to costs of the appeal
throughout
from
all
the
defendants,
including
defendant
Nos.9
and
10.
Defendant Nos.9 and 10 were held entitled
to costs of their cross-objections from the
remaining defendants.

17 . This appeal was admitted to
hearing
on
the
following
substantial
questions of law:

 "1. Whether the court below had
the jurisdiction to entertain the appeal filed
by the plaintiff?

 2. Whether the court below has
erred in law in considering the effect of the
dismissal of suit no.64 of 1968?

 3. Whether the court below has
erred in interpreting the effect of Section 14
of the Hindu Succession Act over the
provisions of Section 2 of the Hindu
Widows Re-marriage Act, 1856?"

18. This appeal was heard and
decided by this Court on an earlier occasion
and it was quite a long time ago. This
appeal was decided vide judgment and
decree dated 24.04.2002, allowing it with
costs, setting aside the decree of the Lower
Appellate Court and restoring that of the
Trial Judge. The judgment and decree of
this Court was challenged in appeal by
special leave before the Supreme Court,
being Civil Appeal No. 2220 of 2006,
where the appeal was allowed by a short
order of their Lordships, holding that the
High Court has not recorded any finding on
Substantial Questions of Law Nos.2 and 3,
perhaps, under an impression that once
substantial questions of law are framed and
the appeal admitted, this Court gets
jurisdiction to re-appreciate evidence and
set aside findings of fact recorded by the
first Appellate Court. On this finding, the
appeal was allowed and the judgment and
decree earlier passed by this Court set aside
with a remit of the appeal to this Court for
decision afresh on the substantial questions
of law already framed, or any additional
substantial question of law, that may be
framed under Section 100(5) of the Code of
Civil Procedure, 1908 (for short, 'the
Code').

19. There is no cavil about the fact
that Substantial Question No.1 was not
pressed during hearing before this Court on
the earlier occasion, but not after remand.
During the resumed hearing of the appeal
on 16.08.2021, four other substantial
questions of law were framed, bearing
Nos.4 to 7. The order dated 16.08.2021
reads:

 "Midway during hearing, it was
pointed out by Mr. Pramod Jain, learned
Senior Advocate assisted by Mr.