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2007 DIGILAW 465 (ORI)

Sukadev Jena v. Kuna Rout

2007-06-20

A.K.PARICHHA

body2007
JUDGMENT A. K. PARICHHA, J. : This is a plaintiff’s appeal challenging the judgment passed by the learned Subordinate Judge, Anandpur in T.S. No.62/78-I dismissing the prayer of the appel¬lant for partition of schedule ‘B’ properties of the plaint. 2. Plaintiff’s case, in brief, was that Bhaigo Rout and Mali Rout were brothers and Schedule ‘B’ property was their joint ancestral property. Chakradhar Rout, the father of defendant No.1 and husband of defendant No.2 was son of Bhaigo Rout whereas defendant Nos.3 to 6 and husband of defendant No.7 are sons of Mali Rout. It was claimed that in the year 1928 there was a family arrangement wherein Late Chakradhar got Schedule ‘A’ land in his share for exclusive enjoyment and possession and he con¬tinued possession over that land till 1972. Chakradhar, in order to meet the necessity of the family sold the suit land to the plaintiff for a consideration of Rs.600/- by means of registered sale deed on 7.10.1972 and delivered possession of that land whereafter the plaintiff remained in possession and enjoyment of that land. Chakradhar died in the year 1976. After his death, taking advantage of the fact that defendant No.1 was minor and defendant No.2 is an illiterate pardanashin lady, defendant Nos.3 to 7 started trouble over the suit land in order to grab that property. So to resolve the trouble, plaintiff requested defend¬ant Nos.3 to 7 for partition of Schedule ‘B’ property and for allotment of Schedule ‘A’ land to him. The said defendants did not pay any heed to his request and on the contrary they forcibly reaped away the crop of the suit land. So, finding no alterna¬tive, the plaintiff filed the suit for partition. 3. Defendant Nos.1,2,4, 5 and 6 filed separate written statements denying the averments made by the plaintiff and plead¬ing, inter alia, that there was never any family partition, that the suit land was never allotted to Chakradhar for his exclusive possession and enjoyment, that Chakradhara was a drunkard and an irresponsible person and he was never the Karta of the family. They claimed that there was never any family necessity demanding sale of the suit land and execution of any sale deed by Chakrad¬har, if any, was without their knowledge and consent. They also denied that the plaintiff ever possessed the suit land or ac¬quired any right and title over the same. They claimed that there was never any family necessity demanding sale of the suit land and execution of any sale deed by Chakrad¬har, if any, was without their knowledge and consent. They also denied that the plaintiff ever possessed the suit land or ac¬quired any right and title over the same. The contesting defend¬ants also challenged the maintainability of the suit on the ground that there is no cause of action and that the claim of the plaintiff is barred by limitation. Defendant Nos.3 and 7 did not file any written statement and were set ex parte. Considering the pleadings of the parties, learned trial Court framed the following eight issues. (i) Is the suit maintainable ? (ii) Has the plaintiff any cause of action to file the suit ? (iii) Did Chakradhar Rout exclusively acquire the suit property as per the schedule ‘A’ of the plaint on the basis of any partition effected between himself and his co-sharers ? (iv) Is the sale deed executed by Chakradhar Rout in favour of plaintiff genuine, valid and for consideration ? (v) Has the plaintiff acquired right, title, interest and pos¬session over the suit property as per schedule ‘A’ of the plaint ? (vi) Are the suit properties as per schedule ‘B’ of the plaint liable to be partitioned ? (vii) Is the plaintiff entitled to be allotted schedule ‘A’ property of the plaint in the partition ? (viii) To what relief, if any, the plaintiff is entitled ? 4. To substantiate his claim, the plaintiff examined five witnesses and produced the registered sale deed dated 2.10.1976 and the voter list of the village Fakirpur, which were marked as Exts.1 and 2. The contesting defendants examined three witnesses and produced documents, namely, Khatian No.995 of mouza Fakirpur, rent receipt, certified copy of Khatian in respect of Khata No.76 of Mouza Fakirpur, Certified copy of Khatian in respect of Khata No.345 of mouza Fakirpur and these documents were marked as Exts.A to D respectively. The contesting defendants examined three witnesses and produced documents, namely, Khatian No.995 of mouza Fakirpur, rent receipt, certified copy of Khatian in respect of Khata No.76 of Mouza Fakirpur, Certified copy of Khatian in respect of Khata No.345 of mouza Fakirpur and these documents were marked as Exts.A to D respectively. On examining these oral and documentary evidences, learned trial Court came to the conclusion that Sched¬ule ‘B’ property was the ancestral joint family property; that there was never any partition in the family, that Chakradhar Rout executed registered sale deed, Ext.1, in favour of the plaintiff after receiving the consideration of Rs.600/-, but the sale was not for any legal necessity of the family and that the sale transaction did not convey any right or title to the plaintiff as the same was made without the consent of other coparceners and was not for any legal necessity. The learned trial Judge accord¬ingly dismissed the suit for partition, but granted liberty to the plaintiff to recover the consideration amount paid to Late Chakradhar. The said judgment is under challenge in this appeal. 5. Mr. D. Bhuyan, learned counsel for the appellant ques¬tions the legality and correctness of the impugned judgment basically on the following grounds: (i) Learned trial Court was unjust and in legal error by putting the burden of proof of legal necessity on the plaintiff when there was no specific pleading by the contesting defendants in that regard and when Ext.1 was proved to be a genuine document for consideration. (ii) The trial Court over-looked the settled principle that the transaction of sale effected by one of the coparceners of his undivided interest in the coparcenery property in mitakshara joint family without the consent of the other coparceners is not void, but is only voidable at the option of the other coparcen¬ers. (iii) Learned trial Court went wrong in rejecting the prayer of the plaintiff for partition of the Schedule ‘B’ property even though law gives right to a purchaser of undivided interest in the coparcenery property to seek partition of the joint family property for carving out his share. In support of his contentions, Mr. (iii) Learned trial Court went wrong in rejecting the prayer of the plaintiff for partition of the Schedule ‘B’ property even though law gives right to a purchaser of undivided interest in the coparcenery property to seek partition of the joint family property for carving out his share. In support of his contentions, Mr. Bhuyan cited the cases in Smt. Rani and another v. Smt. Santa Bala Debnath and others, AIR 1971 SC 1028 , Pandurang Mahadeo Kavade (dead) by his legal repre¬sentative and others v. Annaji Balwant Bokil and others, AIR 1971 SC 2228 and Raghubanchamani Prasad Narain Singh v. Ambica Prasad Singh (dead) by his Legal representatives and others, AIR 1971 SC 776 . Though the respondents have entered appearance and have engaged counsel, no one appears on their behalf on the dates of hearing. 6. At the outset, it would be beneficial to indicate some aspects, which are admitted by the parties. It is not in dispute that Schedule ‘B’ property was joint ancestral property of Bhaigo and Mali and that as the legal heir and successor of Bhaigo, Late Chakradhar Rout had share in the joint family coparcenery proper¬ty. It is also not disputed that the alleged transaction through Ext.1 by Chakradhar was without the consent of the other copar¬ceners. The real controversy in the suit was whether Ext.1 is a genuine document for consideration and whether right or title of Schedule ‘A’ land passed to the plaintiff through such transac¬tion. As has been mentioned in the impugned judgments, the scribe and the attesting witness proved the execution of sale deed, Ext.1. The plaintiff as well as these witnesses also stated about the payment of consideration amount of Rs.600/-. The endorsement of the Sub-Registrar on the document squarely supports the claim of the plaintiff about due execution of the sale deed and payment of consideration amount. Ext.1 is thus clearly proved as genuine document for consideration. The real question is whether any right and title is passed on to the plaintiff through such sale transaction. The endorsement of the Sub-Registrar on the document squarely supports the claim of the plaintiff about due execution of the sale deed and payment of consideration amount. Ext.1 is thus clearly proved as genuine document for consideration. The real question is whether any right and title is passed on to the plaintiff through such sale transaction. Article 260 of the Hindu Law (Principles of Hindu Law by Mulla) clearly says that no coparcener can alienate even for value his undivided interest without the consent of the other coparceners unless the alienation be for legal necessity or for payment by a father of antecedent debts and that this principle applies even when alienation is made in favour of one of the coparceners of the family. Relying on the cited case laws, Mr. Bhuyan vehemently argued that once Ext.1 is proved to be a genu¬ine document for consideration, presumption will follow that right and title of the suit land passed on to the plaintiff and burden would be on the defendants to plead and prove that there was want of legal necessity in the family and that the sale was not for repayment of any antecedent debts. In the case of Smt. Rani and another v. Smt. Santa Bala Debnath and others (supra) the plaintiffs filed the suit to set aside the alienation on the ground that it was made without any legal necessity, for which the apex Court ruled that the burden was on the plaintiffs to prove want of legal necessity. the facts and circumstances of that case are totally different from the present case as in the instant case, the plaintiff has come forward for partition of the joint family coparcenery property of the defendants on the plea that he has acquired right and title over part of the undivided coparcenery property through sale transaction made by one of the coparceners without the consent of other coparceners. In the case of Pandurang Mahadeo Kavade v. Annaji Balwant Bokil and others (supra), the apex Court simply observed that if the alienation on the part of the joint family is by the karta of the family, then proof of legal necessity by the alienee is not necessary when plea of want of legal necessity is not raised by any other par¬ties. The said observation has no application to the present case because it is not the case of any of the parties that Chakradhar was the Karta of the family. Moreover in the present case, the defendants in their written statement pleaded that the alleged sale was without any legal necessity. 7. Article 261 of the Hindu Law (Principles of Hindu Law by Mulla) speaks about right of a purchaser of coparcenery interest. In this article also it has been noted that a coparcener cannot alienate his undivided interest in the joint family property without the consent of the other coparceners unless such sale is for legal necessity of the family or for payment of antecedent debts. It has been clarified that a coparcener may alienate his undivided interest in the joint family property, but he can not alienate his interest in any specific property belonging to the coparcenary for the simple reason that no coparcener can before partition claim any such property as his own and that any such alienation would remain valid only to the extent of the seller’s interest in the alienated property. It is further noted in this article that any sale by one of the coparceners of the undivided interest in the coparcen¬ery property without the consent of the other coparceners would not be void ab initio, but would be voidable at the option of other coparceners and therefore, a bona fide purchaser has a right to seek partition of the coparcenery property for carving out his share. This principle has been endorsed by the apex Court in Raghubanchmani Prasad Narain Singh v. Ambica Prasad Singh (supra). Law is therefore, settled that the purchaser of an undivided coparcenery property can sue for partition and would be entitled to a decree for partition if he can establish that he acquired any legal right over the property through the sale transaction. 8. The evidence and circumstances in the present case reveal that Chakradhar executed a sale deed in respect of the suit land in favour of the plaintiff on receipt of the considera¬tion amount of Rs.600/-, but the sale was neither made in the capacity of karta of the family nor was made with the consent of the other coparceners. Such transaction may not be void ab ini¬tio, but would be voidable at the option of other coparceners. Such transaction may not be void ab ini¬tio, but would be voidable at the option of other coparceners. The other coparceners, i.e., defendant Nos.3 to 7 challenged the legality of the sale on the ground that the same was not for any legal necessity or for payment of any antecedent debts and that it was never made with their knowledge and consent. Admit¬tedly, Chakradhar was not the Karta of the family. The plaintiff neither pleaded nor led any evidence to show that there was any legal necessity in the family, which necessitated sale of the suit land. So, even if Ext.1 is a genuine document for considera¬tion yet the same would not convey any right or title of the suit land in favour of the plaintiff because such sale was made by one of the coparceners without the consent of other coparceners and was not for any legal necessity of the family. Here Mr. Bhuyan relies on the case of Parameswar Panda v. Adikanda Panda and others, 2004 (II) OLR 427 , Gaugam Paul v. Debi Rani Paul and others, AIR 2001 SC 61 and Smt. Boodipeddi Laxminarasamma v. Gada Ranganayakamma and others, AIR 1964 Orissa, 43. In the case of Parameswar Panda v. Adikanda Panda and others (supra) this Court observed that a person, who was not a party to the suit, but purchased part of the suit property during pendency of the liti¬gation may be allowed to be impleaded as a party in the final decree proceeding for the purpose of avoiding multiplicity of the proceeding in future. In Gaugam Paul v. Debi Rani Paul and others (supra) while dealing with the issue of undivided interest in the dwelling house, the apex Court held that right of a family member to pre-empty the share purchased by a stranger can be exercised only when that stranger files a suit for partition. In the case of Smt. Boodipeddi Laximinarasamma, v. Gada Ranganayakamma and others (supra) the subject matter was coparcenery interest pur¬chased in Court auction. The principles noted in the above cited case are not at all in controversy, but the facts and circum¬stances of those cases are totally different and so, the ratio cannot be applied to the present situation. 9. In the case of Smt. Boodipeddi Laximinarasamma, v. Gada Ranganayakamma and others (supra) the subject matter was coparcenery interest pur¬chased in Court auction. The principles noted in the above cited case are not at all in controversy, but the facts and circum¬stances of those cases are totally different and so, the ratio cannot be applied to the present situation. 9. A purchase can get a share in the coparcenery property through partition only if he acquires some right through valid sale, which means that the sale must be legal and binding. Since the sale in favour of the plaintiff was made by one of the copar¬ceners without the consent of the other coparceners and the sale was not for any legal necessity and further the seller was not the manager of the family, the transaction in favour of the plaintiff cannot be considered to be a valid, legal transaction and the plaintiff cannot derive any title over any part of the coparcenery property and consequently, he will not be entitled to a decree for partition of the coparcenery property. Learned trial Court, therefore, did not commit any error in rejecting the prayer of the plaintiff for partition. However, under the equity he would be entitled to refund of the consideration money paid by him to late Chakradhar from the interest of Chakradhar in the coparcenery property along with interest thereon. 10. In the result, therefore, the appeal is found to be without any merit and is dismissed. The judgment and decree of the learned trial Court is confirmed with the simple modification that the plaintiff would be at liberty to realize the considera¬tion money paid to Late Chakradhar Rout along with interest thereon @ 9% per annum from the date of payment till the date of realization. No cost. Appeal dismissed.