DRAUPADI PATEL v. LOKNATH PANDA — 1998 DIGILAW 108 (ORI)

R. K. DASH, J. ( 1 ) THE unsuccessful plaintiff is in appeal against the judgment and decree of the learned Subordinate Judge, bargarh (presently Civil Judge, Senior Division) passed in Title Suit No. 108 of 1973. In the appeal respondent Nos. 1 and 3 having died, their legal representatives have been substituted. So also by orders dated 3. 1. 1979 and 3. 8. 1994 respondents 3 and 4 have been expunged. Therefore, for the sake of convenience the parties are referred to in the manner as mentioned in the cause-title of the suit. The suit was one for partition simplicitor in which the plaintiff sought for partition of her share in the suit properties left by Sita, her maternal grand-mother. The following genealogy will show the relationship of the parties: ( 2 ) PLAINTIFF's case, in brief, is that the common ancestor Chakra Pandey died leaving three sons, namely Chandia, Manu and kadab. Chandia's widow is Barian. Manu died leaving two sons. Loknath (D-l) and Garjan (D-2 ). Jadab is survived by his widow Sita and two daughters, Nura and Koti. Sita died in or about 1957. Her daughter Nura died in 1972 leaving behind her husband Uday Patel, defendant No. 5 and daughter Draupadi, plaintiff. The daughter Koti also died in the same year leaving behind her husband Labar, defendant No. 4. Chandia, Manu and Jadab were separate in mass and property and were cultivating the suit property separately according to their share without there being partition by metes and bounds. Upon death of Jadab the property which was in his separate possession/devolved upon his wife Sita and she possessed the same all along till her death. Accordingly in the Hamid settlement the suit property stood recorded jointly in the names of Chandia, Manu and Sita. Upon Sita's death, the property which was in her separate possession came to be devolved upon her two daughters Nura and Koti and they possessed the same jointly. While being in such possession they died whereafter the. said property devolved upon the plaintiff, daughter of Nura. There being no partition by metes and bounds. plaintiff filed the suit claiming one-third share in the suit property. ( 3 ) DEFENDANT 1 to 3 filed joint written statement which is cryptic in nature. They traversed and denied the plaintiff's assertion of separation among Chandia, Manu and jadab. said property devolved upon the plaintiff, daughter of Nura. There being no partition by metes and bounds. plaintiff filed the suit claiming one-third share in the suit property. ( 3 ) DEFENDANT 1 to 3 filed joint written statement which is cryptic in nature. They traversed and denied the plaintiff's assertion of separation among Chandia, Manu and jadab. They aiso disputed plaintiff's claim of separate possession of any portion of the suit property. Besides, they challenged the correctness of the genealogy as shown in the plaintiff alleging, inter a/fa, that though Garjan was the natural born son of Manu, but he was adopted by Chandia and this fact was not specifically pleaded in the plaint. ( 4 ) ON the above pleadings, the learned trial court framed five issues of which Issue nos. 2 and 4 were considered to be the main issues. Under issue No. 2, whether the plaintiff has right, title and interest in the suit property, the court relying upon the evidence of Sopuro, D. W. 1 held that Uday Patel, P. W. 2 had married Sopuro and the plaintiff is the daughter of Sopuro and not of Nura through p. W. 1. Though plaintiff's right to sue as being daughter of Nura has not been specifically denied or disputed by defendants 1 to 4, the court below by referring to paragraph 7 of the written statement and relying upon a decision of the Apex Court Udhav Singh v. Madhav Rao Scindia, observed that the intention of the aforesaid defendants to deny such relationship is quite apparent from the record. Coming to issue No. 4, learned trial court held that mere recording of the name of sita, widow of Jadab and after her the name of her two daughters Nura and Koti in two settlement record-of-rights without the share being defined, is not sufficient to hold that there was severance in joint family of Chandia and his brothers. Having so held, it concluded that the plaintiff has no locus standi to file the suit and consequently dismissed the suit. Having so held, it concluded that the plaintiff has no locus standi to file the suit and consequently dismissed the suit. ( 5 ) SHRI N. C. Pati, learned counsel for plaintiff-appellant, has contended that there being no specific denial in the written statement by the defendants challenging the plaintiff's assertion that she is the daughter of nura, learned trial court should not have allowed the defendants to lead evidence contrary to their pleadings and on the basis of the such evidence should not have held the plaintiff is not the daughter of Nura. On the question of separation among Chandia and his two brothers, it is submitted by Shri Pati that the learned trial court should have reiied upon, besides the oral evidence, the entries in the revenue records, i. e mutation register of 1953-54 (Ext. 1), major settlement parcha (Ext. 2) and Hamid Settlement parcha (Ext. 3] showing recording of the name of Sita and after her, her daughters Nura and Koti with other co-sharers to hold that there was severance of joint status among them. On the other hand, Shri R. K. Mohapatra, appearing for the defendants-respondents supporting the impugned judgment would contend that at the earliest opportunity when witnesses for the plaintiff were examined, suggestion was given to them that the plaintiff is not the daughter of Nura and at that point of time it was not objected to by the plaintiff that certain allegations/assertions in the plaint having not been denied or traversed, the defendants were not entitled to take such plea. Therefore, at the appellate stage she cannot be allowed to contend for the first time that the evidence of the defendants denying her to be the daughter of Nura should be washed off record and her assertion that she is the daughter of Nura should be deemed to have been admitted, being not denied in the written statement. Therefore, at the appellate stage she cannot be allowed to contend for the first time that the evidence of the defendants denying her to be the daughter of Nura should be washed off record and her assertion that she is the daughter of Nura should be deemed to have been admitted, being not denied in the written statement. In support of his such contention he relied upon a decision of the supreme Court in Shipping Corporation of india Ltd. v. Nissar Export Corporation on the question whether Chandia and his two brothers were joint or separate, Shri Mohapatra submitted that it being the settled position of law that a Hindu family shall be presumed to be joint unless otherwise proved, heavy onus was on the plaintiff to establish satisfactorily by leading acceptable evidence, that there had been separation among Chandia, Manu and jadab so as to entitle Jadab's wife Sita to succeed to his share in the suit property and there being no oral evidence led in support of separation, the mere recording of names of female heirs of Jadab in the revenue records is not sufficient to displace the presumption of jointness. ( 6 ) IN view of the contention raised at the bar, the points that arise for consideration are: (i) Whether the defendants could challenge that the plaintiff was not the daughter of Nura and as such, she was not entitled to file the suit for partition; and (ii) Whether Jadab, whose share in the suit property the plaintiff claims to have succeeded as daughter, died in jointness or in separation with his brothers Chandia and manu; ( 7 ) POINT No. 1 : It may be noted that the plaintiff claimed for partition being Jadab's daughter's daughter. According to her, there was separation among Chandia, Manu and jadab. Jadab died about 60 years back i. e in or about 1925, leaving behind his widow Sita and two daughters Nura and Koti. Upon his death his share in the suit property devolved upon Sita. In the genealogy appended to the plaint it has been clearly stated that plaintiff is daughter of Nura. The correctness of that part of the genealogy has neither been specifically nor by necessary implication denied by the defendants. Upon his death his share in the suit property devolved upon Sita. In the genealogy appended to the plaint it has been clearly stated that plaintiff is daughter of Nura. The correctness of that part of the genealogy has neither been specifically nor by necessary implication denied by the defendants. Learned trial court has however, observed that the intention of the defendants denying plaintiff's relationship with Nura as daughter is apparent from paragraph 7 of the written statement. In the said paragraph what has been urged by the defendants is that the plaintiff has neither any occasion nor any locus standi to demand for partition of the suit property. This averment, in my opinion, is not sufficient enough to say that plaintiff's assertion to claim for partition as daughter of nura has been refuted by the defendants. In this connection it is apposita to refer to certain provisions of Code of Civil Procedure as to what should contain the pleadings. Order 6, Rule 2 Sub-rule (1) says that every pleading shall contain, and contain only, a statement in a concise form of the material facts on which the party pleading relies for his claim or defence, as the case may be, but not evidence by which they are to be proved. Rules of pleadings are meant to help the court in narrowing controversies. Such provisions are meant to give to each side intimation of the case of the other so that it may be set to enable court to determine what is really at issue between parties. So far as written statement of the defendant is concerned, it is provided under Order 8, Rule 2 that the defendant must raise by his pleading ail matters which show the suit to be not maintainable, or that the transaction is either void or voidable in point of law. In absence thereof he will not be entitled as of right to rely on any ground of defence which he has not taken in the written statement. The next relevant provision is Order 8, Rule 5 which provides, inter alia, that every allegation of fact in the plaint, if not denied specifically or by necessary implication, or stated to be not admitted in the pleading of the defendant, shall be taken to be admitted except as against a person under disability. The next relevant provision is Order 8, Rule 5 which provides, inter alia, that every allegation of fact in the plaint, if not denied specifically or by necessary implication, or stated to be not admitted in the pleading of the defendant, shall be taken to be admitted except as against a person under disability. The importance of this Rule is that the facts admitted need not be proved. It is therefore, not necessary for the plaintiff in a suit to prove facts, which have been expressly admitted by the defendant or which must be taken to have been admitted by him. ( 8 ) IN the case in hand, learned court below by referring to paragraph 7 of the written statement, as stated above, and relying upon the decision of the apex court in udhav Singh (supra) proceeded to examine whether plaintiff was the daughter of Nura or not. The facts of Udhav Singh are quite distinguishable. That was a case of election dispute where the question was as to what should be the construction of allegations made in paragraph 11 (IV) of the election petition. On a reading of the allegations made therein, their Lordships observed that the method of construction after compartmentalisation, dissection, segregation and inversion of the language of the paragraph, suggested by the counsel runs counter to the cardinal canon of interpretation, according to which a pleading has to be read as that it is a whole to assertion its true import. It was further observed not permissible to cull out a sentence or a passage and to read it out of the context, in isolation. Although it is the substance and not merely the form that has to be looked into, the pleading has to be construed as it stands without addition or subtraction of words, or change of its apparent grammatrical sense. The intention of the party concerned is to be gathered, primarily, from the tenor and terms of his pleading taken as a whole. This legal principle is well settled and there can be no deviation of it. The intention of the party concerned is to be gathered, primarily, from the tenor and terms of his pleading taken as a whole. This legal principle is well settled and there can be no deviation of it. Had the trial Judge in the present case applied the same to the facts of the present case, he on a reading of the whole of the written statement would have come to a finding that there was no denial either specific or by necessary implication, of the plaintiff's relation with Nura as shown in the plaint genealogy. Shri Mohapatra, learned counsel for defendants, argued that the plaintiff cannot challenge the findings of the trial court on this score since he did not raise any objection during trial when evidence was led to disprove her right to sue for partition as daughter of Nura. Defendants during trial examined Sopura (D. W. 1), the lone witness. As stated by her, Nura was the first wife of uday and as she was barren, Uday Married her for the second time and during subsistence of the marriage, she gave birth to two daughters Tilottama and Draupadi, the plaintiff and when the plaintiff was 6 to 7 years old she again married to one Chaitan Thakur. Since this evidence was led contrary to the pleading, objection was raised on behalf of the plaintiff. In view of that, it cannot be said that every allowance was given to the defendants to lead evidence contrary to their pleadings. The decision relied upon by Shri mohapatra in Shipping Corporation (supra)has absolutely no application to the present case. In the said reported case, the suit was one for damages and the learned trial Judge after considering the entire evidence dismissed the suit. Against that judgment the plaintiff preferred appeal to the Division Bench of madras High Court. The Division Bench set aside the judgment of the trial court and remanded the suit for decision in the light of the observations contained therein. One of the observations was that the case made out by the plaintiff that the defendants gave a discriminatory preference to the Nagapattinam cargo and refused to accept the Madras Cargo was not specifically traversed and denied in the written statement. The defendants aggrieved by the order of remand preferred appeal to the Supreme Court. One of the observations was that the case made out by the plaintiff that the defendants gave a discriminatory preference to the Nagapattinam cargo and refused to accept the Madras Cargo was not specifically traversed and denied in the written statement. The defendants aggrieved by the order of remand preferred appeal to the Supreme Court. On facts their lordships did not agree with the view of the madras High Court that the allegations made in the plaint had not been traversed by the defendants. Alternatively their Lordships observed that since during trial it was not objected that the allegations contained in the plaint were not denied by the defendants, the plaintiff should not have been permitted by the High Court to raise the same for the first time in appeal. Even applying the aforesaid decision of the Supreme Court to the present case, it can unhesitatingly be held that since the plaintiff had raised objection at the earliest opportunity when the evidence was led by the defendants by examining D. W. 1 that plaintiff was daughter of D. W. 1 Supuro and not Nura, the learned trial Judge should not have accepted the belated plea of the defendants and come to a finding that plaintiff was not the daughter of Nura. Apart from what has been stated above factually also defendants plea is not believable and acceptable. Sopuro, D. W. 1 says that she gave birth to the plaintiff through her first husband Uday. On the date of her deposition on 8. 4. 1976 she was aged sixty. According to her when she was about 14 to 15 years she married Uday and led conjugal life for 10 to 11 years and through uday she gave birth to two daughters tilottamma and the plaintiff. To her estimation plaintiff would be 35 years old. So if calculated, plaintiff was born in 1941 in which year, according to her, she left Uday and married one Chaitan Thakur. But it is in her evidence that by the time she married for the second time, plaintiff was 6 to 7 years old. This discrepancy should have been taken into consideration while appreciating her evidence. So if calculated, plaintiff was born in 1941 in which year, according to her, she left Uday and married one Chaitan Thakur. But it is in her evidence that by the time she married for the second time, plaintiff was 6 to 7 years old. This discrepancy should have been taken into consideration while appreciating her evidence. Added to this, it does not appeal to commonsense that a mother, even if she left her husband and married elsewhere, she without there being any animosity would go against the interest of her daughter to disentitle her from any property. So if Supuro, D. W. 1 was really the mother of the plaintiff she would have withheld herself from the witness box to depose against the plaintiff. I would, therefore, hold that she is not the mother of the plaintiff and that her attendance was procured by defendants in order to disentitle the plaintiff of her right to the suit property. ( 9 ) POINT No. 2: Coming to the question whether there was severance of joint status in the family of Chandia, Manu and Jadab, reference may be made to paragraph 5 of the plaint where it is stated that those three brothers were separate in both mess and property and were possessing the suit property according to their share without being partition by metes and bounds. In order to prove separation, the plaintiff mainly relied upon revenue records Exts. 1 to 6, besides oral evidence of d. Ws. 2 and 5. Ext. 3 is the parcha of Hamid settlement record-of-right of 1925. It appears from the said Parcha that the name of sita, widow of Jadab stood recorded jointly along with other co-sharers in respect of the suit property. The inclusion of name of Sita was never challenged at any point of time by the co-sharers. Even after the death of Manu when mutation was affected and the names of his sons (Defendants 1 and 2) were got recorded along with the names of Chandia and sita in the year 1953-54 under Ext. 1, no objection was taken by any of those co-sharers for inclusion of Sita's name in the mutation register. Even after the death of Manu when mutation was affected and the names of his sons (Defendants 1 and 2) were got recorded along with the names of Chandia and sita in the year 1953-54 under Ext. 1, no objection was taken by any of those co-sharers for inclusion of Sita's name in the mutation register. If according to the defendants 1 to 3 jadab died in a state of jointness, prior to hamid Settlement, then upon his death his interest in the suit property would have devolved by way of supervivorship upon Chandia and Manu and accordingly in the settlement record-of-right the whole property should have been recorded in their names alone and not jointly with the name of Sita since she being a pre-Act widow was entitled to maintenance. Therefore, recording of Sita's name along with the names of other co-sharers in consistent only with the theory that Sita was not a maintenance holder but had interest in the suit property. This finding is further fortified from the major settlement record-of-right of 1970 Ext. 2. Long prior to the said settlement sita had died leaving behind her two daughters, Nura and Koti. Chandia and Manu had also died and they were succeeded by Loknath and Garjan, defendant Nos. 1 and 2. During the settlement, the suit property was recorded jointly in the names of Loknath, Garjan, Nura and Koti. There is no material on record to show that Loknath and Garjan had ever objected against inclusion of names of Nura and koti in the record-of-rights. Rather they accepted them to have succeeded to the interest of their father Jadab as heirs in the suit property. Shri Mohapatra, learned counsel for the defendants 1 to 3 referring to a decision of Allahabad High Court in the case of Uman Shanker v. Mt. Aisha Khatun urged that mere recording of Sita's name in the revenue records does not necessarily raise presumption that her husband was separate from his brothers. There is no dispute about the proposition of law enunciated in the said decision. ( 10 ) THIS court in the case of Padan mallik v. Sakhei Bewa and Anr. Aisha Khatun urged that mere recording of Sita's name in the revenue records does not necessarily raise presumption that her husband was separate from his brothers. There is no dispute about the proposition of law enunciated in the said decision. ( 10 ) THIS court in the case of Padan mallik v. Sakhei Bewa and Anr. took the similar view that mere recording of the name of a pre-Act widow in the record-of-rights jointly with other co-sharers is not sufficient to hold that she was a co-owner of the suit property having equal right as that of the co-sharers. Such record-of-rights was, however, held to be a factor to be taken into consideration along with other evidence to find whether there was severance of joint status in the family. The court also took note of some other decisions Ganpath Sahu v. Bulli Sahu and unreported common judgment in Jairam naik v. Baikluntha Charan Naik, disposed of on 11. 10. 1961. In Ganapath (supra) it was observed that if in a settlement record a pre act widow is jointly recorded in respect of some lands with other co-sharers, it is consistent only with the theory that she was not a maintenance holder but had some interest in the property. For arriving at such conclusion the court, besides relying upon the record-of-rights, also took note of other materials, such as rent receipts showing payment of separate rent and Chowkidari receipts. In the unreported judgment in Jairam Naik (supra), it was observed that if the name of the widow finds place together with the co-sharers in the record-of-rights, that gives an indication of separation amongst all the co-sharers during their life time. This view was taken not merely basing on the record-of-rights but on consideration of several other features appearing in the evidence on a conspectus of the aforesaid judicial pronouncements what is deducible is that mere recording of the name of a pre-Act widow in the record-of-rights is not conclusive proof of severance of joint status amongst the co-sharers. It is only a piece of evidence which shall be considered along with other evidence, to find whether the family in which widow's husband was a co-sharer was joint or separate. It is only a piece of evidence which shall be considered along with other evidence, to find whether the family in which widow's husband was a co-sharer was joint or separate. ( 11 ) COMING to the present case, the plaintiff not only relied upon the entries in the record-of-rights of Hamid Settlement, 1925 where the name of Sita, widow of Jadab, stood recorded jointly along with other co-sharers in proof of the fact that there was severance of joint family status of Chandia and his two brothers but also relied upon the entries in the Mutation Register of 1953-54 (Ext. 1) as well as Major Settlement record-of-rights of 1970 (Ext. 2) and V. B. Registers, exts. 4 to 6. Copies of V. B. Registers, Exts. 4 to 6, reveal that Nura and Koti, daughters of Sita paid water tax separately in respect of the property which they were in possession. All these documents taken together would show that there was severance of joint status amongst the three brothers, namely, Chandia, manu and Jadab. Besides the above, the oral evidence of P. Ws. 2 and 5 support the plaintiff's case of separation amongst the three brothers. On an analysis of the evidence, both oral and documentary, I would hold that there was severance of joint status amongst Chandia, manu and Jadab and therefore, Jadab's one-third share in the suit property ultimately came to be devolved upon the plaintiff, his daughter's daughter. Consequently the impugned judgment and decree of the trial court are set aside and the plaintiff's suit for partition is decreed. It is declared that the plaintiff has one-third share and defendants 1 and 2 have one-third share each in the suit property. Parties are directed to amicably effect partition, failing which either party may apply to the court to make the decree final. The appeal is thus allowed, no costs. Appeal allowed.