JUDGMENT
M.P. Varma, J.
1. The State of Bihar through the Collector, Monghyr and the Assistant Superintendent of Commercial Taxes-in-charge, Jamui, circle Jamui, District Monghyr, who were the defendants-first party in the suit, have filed this appeal against the judgment and decree passed by the Subordinate Judge, Monghyr, in Title Suit No. 20 of 1963. The suit was filed by the plaintiff-respondents Smt. Panchratan Devi. Her husband Chandra Shekhar Prasad was arrayed as defendant second party in the suit.
2. The facts giving rise to the suit are as follows. The Assistant Superintendent of Commercial Taxes, Jamui circle levied two certificate cases Nos. 13 TT of 1955-56 and 53 TT of 1956-57 against the defendant second party, namely, the husband of the plaintiff, who was working as the Manager of Khalsa Motor Service a Road Transport business having its headquarters at Jamui. The certificate cases were for recovery of the commercial taxes due from him. On 6-2-1962, both the certificate cases were struck off on the report of the Assistant Superintendent of Commercial Taxes-in-charge, Jamui Circle, that the defendant second party had no movable or immovable properties except a gun. On 10-2-1962, the defendant 1st party again moved the court of certificate officer stating that the earlier report was incorrect and that the certificate-debtor defendant second party had a pucca house at Jamui and got the certificate cases revived which were numbered as Certificate Case No. 73TT of 56-57 and Certificate Case No. 44TT of 1957-58. The aforesaid property was attached in the proceeding.
3. The case of the plaintiff is that, there was a partition in the family of her husband in which he got 25 acres of land with a katcha house standing thereon along with other properties by a registered Tamliknama (Ext. 4) dated 20-7-49; the land appertained to plot No. 581, khata No. 41 at mauza Jamui. On 25-2-50, her husband transferred the said 25 acres of land with the said house by a registered deed of gift to her. She accepted the gift and took possession at the property and is coming in continuous and exclusive possession thereof since then.
4. It is her further case that she is the only child of her father and she got Rs. 10,000 from him. Her father was working then as a senior clerk in the office of the Excise Department at Monghyr. She further got some ornaments and cash from her nani and from her mother too. She, therefore, got demolished the old katcha house standing on the aforesaid plot and with her own money she constructed a new pucca house thereon and got her name registered in the Union Committee at Jamui and in the chaukidari-assessment register and has been paying taxes since then.
5. In the certificate cases, referred to above, she filed objections under Section 21 of the Bihar and Orissa Public Demand Recovery Act, 1914, hereinafter called “the Act”. On 6-6-1962, she produced evidence of her title and possession over the suit property; but, the learned Certificate Officer rejected her claim by order dated 13-4-1963 and directed to put her property described at the foot of the plaint for sale, hence the necessity of filing the suit. The suit was filed on 29-4-1963.
6. The case of the defendants-appellants on the other hand is that the suit property in question has been owned and possessed by defendant second party Chandra Shekhar Prasad, who is the certificate-debtor in the aforesaid certificate cases. According to the defendant-appellants only the front portion of the house was demolished and a new construction was raised by the defendant second party-respondents with his own income and fund and that the suit-land being ancestral joint Hindu family was allotted to the share of the defendant second party. It is also the case of the defendant-appellants that the deed of gift executed by the certificate-debtor Chandra Shekhar Prasad, defendant second party-respondents, was only a device to defraud the Government of its outstanding dues and that he has made a farzi transaction of gift in the name of his wife.
7. The learned Subordinate Judge on contest decreed the suit against defendant No. 1 and ex parte against the rest and held that the plaintiff-respondents was entitled to and was in possession of the suit property against which the present appeal lies.
8. Learned Standing Counsel No. II Mr. Naseem Ahmad appearing for the appellants at the very outset stated that the suit in question is barred for want of notice under Section 80 of the Civil P. C., hereinafter referred to as ‘the Code’. It has been urged that the suit was filed in pursuance of the provisions laid down under Order 22, Rule 63 of the Code and according to the learned counsel service of notice under Section 80 of the Code is a must. The learned Standing Counsel II has placed reliance on the case of Sawai Singhai Nirmal Chand v. Union of India (AIR 1966 SC 1068) and has urged that in such a circumstance the suit is bad for non-service of notice under Section 80 of the Code.
9. No issue with regard to non-service of notice under Section 80 of the Code was framed in the court of the learned Subordinate Judge. It appears that the maintainability of the suit was not challenged but nonetheless this question has been raised for the first time before us whether the suit is bad for non-service of such a notice. Counsel for respondents Shri Madan Mohan Sahay has argued, in the alternative, that no issue with regard to non-service of notice under Section 80 of the Code was framed in court below and that the maintainability of the suit was not challenged.
10. In the plaint there is an averment that no notice under Section 80 of the Code was required in law to be served on the defendants 1st party as this suit is only in continuation of the claim proceeding decided by the Certificate Officer. The defendants in reply thereto in the written statement had vaguely stated that the suit was barred for want of such notice, but the issue was either not raised at the trial stage and/or does not appear to have been pressed. There is no inconsistency in the proposition that the provision under Section 80 of the Code is mandatory and the standing counsel has rightly placed reliance on the case reported in AIR 1966 SC 1068 (supra) but the right may be waived by the party for whose benefit it has been provided. The question is whether in this case, under appeal, the appellants will be deemed to have waived this right. From the facts, as stated above, it appears that the appellants had waived this right as I gather from the conduct of the parties. It is apparent that this issue was not raised in the court below, so much so that this point was not taken even in the memorandum of appeal. There are a number of authorities that Section 80 of the Code notice can be waived by the defendant. Reference in this regard may be made to one such decision of the Judicial Committee in the case of Vellayan Chettiar v. Government of the Province of Madras (AIR 1947 PC 197) which has been consistently followed by the various High Courts in India including our own High Court. In the case of Province of Bihar v. Kamakhya Narain Singh (AIR 1950 Pat 366), it was held that it was presumably for a party for whose advantage the provision of notice under Section 80, C.P.C. has been made to waive it. Thus, on consideration of the facts, I find that waiver applies in the case and the appellant is estopped from taking the plea at this stage, and the contention of the learned Standing Counsel that the suit is not maintainable is rejected.
11. Coming to the merit of the case, the counsel for the appellant has attacked the deed of gift (Ext. 1) created in favour of the plaintiff by her husband defendant second party-respondents on the ground that it was a clever device to defraud the outstanding dues of the Government and as such it is hit by Section 53 of the Transfer of Property Act. The submission does not appeal to me. The certificate case was filed in the year 1955-56 whereas, the deed of gift was executed long before on 25-2-50. The certificate-debtor defendant second party was working as a Manager in Khalsa Motor Service. It has been pleaded on behalf of the appellants that as a Manager of Khalsa Motor Service, he had the knowledge that the Government dues might ultimately be realised from his immovable properties and he, therefore, made a farzi and sham transaction by creating such deed. By any stretch of imagination, it is hard to hold that as a Manager working in any motor concern would have thought in the year 1950 that some Government dues would fall on his head long after six years and would create a document to defeat the Government for payment of the dues. I, therefore, do not find any force in the contention.
12. The plaintiff-respondent has proved the deed of gift Ext. 1 through P. W. 1, who is one of the attesting witnesses of the deed which was executed in his presence. P. W. 5 has proved the Chauki-dari receipts, marked Ext. 5 series, P. W, 6 Durga Mistry is a mason who has stated regarding the construction of the suit house by the plaintiff under her supervision and not by her husband defendant second party. P. W. 9 is a close relation of the plaintiff, who has stated that the plaintiff Panchratan Devi got some ornaments, clothes and utensils from her nani. The plaintiff herself was examined on commission and she has stated all the facts as pleaded in the plaint on oath.
13. Learned counsel for the appellant, however, has next argued that the deed of gift executed on 25-2-50 does not give any title to the plaintiff-respondent as one son was born to her before the Tamliknama dated 20-7-49 (Ext. 4) and that the son born gets coparcenery interest in the ancestral property. The submission appears to be incorrect. From the recital in the Tamliknama, which has been proved by P. W. 4 Pundhari Prasad, I get that the property mentioned in Tamliknama was the self-acquired property of Pundhari Prasad and he in his lifetime partitioned it and his son defendant-second party got the suit property in his share. Therefore, it was not the ancestral property and the son born does not inherit and get any coparcenery interest in the property prior to execution of the deed of gift. If it would have been the ancestral property and had the defendant 2nd party inherited the same from his father after his death, the question would have been otherwise, but there is no such evidence and the deed of gift cannot be said to be invalid.
14. In view of the discussions made above, I do not think it essential to discuss the evidence of the defendant-appellants given in the suit as most of the documents and oral evidence relate to the fact that the defendant second party i. e., the certificate-debtor was working as an employee in the Khalsa Motor Service and was also running a Bus as a proprietor of Durga Motor Service, P. W. 8 has been examined to say that the defendant second party is a member of joint Hindu Mitakshara family and he got a share in the suit land as ancestral property. He has also stated that on certain occasions he had seen the defendant second party residing in the house for a few days. Mere stay in the house for a few days, will not change the status. He is the husband of the plaintiff and his stay in the house is a natural event. The other witnesses have proved the service of notices of the certificate proceedings and other documents relating to the certificate case No. 44TT of 1957-58, learned counsel for the respondent Shri M. M. Sahay has rightly contended that the evidence led on behalf of defendant-appellants are not relevant for the purpose of deciding the issue, inasmuch as reliance cannot be placed on the testimony of D. W. 8 Ranjeet Bahadur Sinha, who has stated that defendant second party got share in the ancestral property on partition. Learned counsel has rightly pointed out that the deed of gift was a valid document and the plaintiff-respondents came in possession of the property as soon as she accepted the gift and that she constructed the pucca house over the suit land out of her own fund which she got from her father and also from her mother and nani. The Subordinate Judge has rightly held that the suit property is the exclusive property of the plaintiff and she is in possession of the same.
15. Thus, on consideration of the facts discussed above, I do not find any merit in the appeal and is dismissed as such, but there will be no order as to costs.
S. Ali Ahmad, J.
I agree.