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2008 DIGILAW 605 (ORI)

SUBASH CH. SAHU v. SAKUNTALA SAHU

2008-07-29

SANJU PANDA

body2008
JUDGMENT : Sanju Panda, J. - This Appeal is directed against the judgment and decree dated 28.8.1990 and 7.9.1990 respectively passed by the learned Subordinate Judge, Aska in T.S. No. 65 of 1987. The Defendant is the Appellant. 2. The facts of the case as narrated on records as follows: The present Respondents as Plaintiffs filed the suit for partition. The case of the Plaintiffs is that Hari Sahu is the common ancestor. He had four sons, namely, Chakrapani Sahu, Antarjami Sahu, Gangapani Sahu and Ramkrushna Sahu. They had no ancestral property. The four sons of Hari Sahu acquired some property jointly and around 12 years prior to the suit, they partitioned the said property amongst themselves. The family had three topes which were kept joint and the usufructs are being enjoyed by all the four branches jointly. The Plaintiffs are the wife and the daughters of Late Gangapani Sahu and the Defendant is his son. Gangapani Sahu purchased a house site in the name of the Defendant and also established a Biscuit factory at Cuttack. The Defendant was living with Gangapani Sahu at Cuttack and working in the Biscuit factory. Gangapani Sahu died 2 1/2 years back prior to filing of the suit. The Defendant stayed at Cuttack for six months thereafter. He came back to the village with his family permanently and after coming from Cuttack, the Defendant began to look upon the Plaintiffs as enemies and abused them frequently. When Plaintiff No. 1 requested the Defendant to perform the marriage of Plaintiff No. 2, he refused to spend money for the marriage. Hence, Plaintiff No. 1 approached the village Bhadraloks. On the intervention of the Bhadraloks, the Defendant sold a piece of land and gave money for performing the marriage. When the Defendant's behaviour towards the Plaintiff No. 1 became intolerable, Plaintiff No. 1 demanded partition, which he refused. The Defendant allowed the Plaintiffs to stay in back portion of the house without going to the front street passing through the house and the said separation took place about three months' back from the date of filing of the suit. The Defendant refused to part with any land to the Plaintiffs and also refused to give a share in the movables. As aforesaid, all the properties of Gangapani Sahu are self acquired property. Hence, the Plaintiffs and Defendant have equal share in it. The Defendant refused to part with any land to the Plaintiffs and also refused to give a share in the movables. As aforesaid, all the properties of Gangapani Sahu are self acquired property. Hence, the Plaintiffs and Defendant have equal share in it. As the Defendant did not give anything to the Plaintiffs, finding no other source, they filed the suit for partition. The Plaintiffs have valued the suit at Rs. 50,000/- and prayed for exemption of Court-fee u/s 17-A, Schedule- II of the Court Fees Act. 3. The Defendant filed his written- statement and his averments are that Plaintiff No. 1 is not the legally married wife of Gangapani Sahu. He has stated that he is the only son of Gangapani Sahu and Gangapani Sahu had no second wife. His mother was an ailing person and his father Gangapani Sahu was visiting his father-in-Law's house frequently. There Gangapani Sahu developed intimacy with Plaintiff No. 1 and both decided to live together. Plaintiff No. 1 is the concubine of his father who was living in a separate house in the same village. Plaintiff Nos. 2 and 3 were born to Plaintiff No. 1 and Gangapani Sahu. After death of the mother of the Defendant, Gangapani Sahu brought Plaintiff No. 1 to his house, who enjoyed the house and all the property of Gangapani Sahu. After death of Gangapani Sahu, the Defendant incurred a loan of Rs. 15,000/- to make expenses of obsequies of his father and also for the marriage of Plaintiff No. 2 which took place in the year 1986. The Defendant helped in the marriage of Plaintiff No. 2 and gave Rs. 3,000/- to her. After marriage of Plaintiff No. 2, Plaintiff No. 1 started trouble in the family and wanted a partition of the suit schedule from which she was not entitled to any share being the concubine of Gangapani Sahu. The Defendant further stated that he sold a small piece of land for Rs. 1,000/- and gave the same for the marriage expenses of Plaintiff No. 2. The suit schedule properties are ancestral property of Gangapani Sahu. Hence, the Plaintiffs are not entitled to any share in the suit schedule property and he prayed for dismissal of the suit. 4. On the above pleadings, the trial court framed as many as five issues. 1,000/- and gave the same for the marriage expenses of Plaintiff No. 2. The suit schedule properties are ancestral property of Gangapani Sahu. Hence, the Plaintiffs are not entitled to any share in the suit schedule property and he prayed for dismissal of the suit. 4. On the above pleadings, the trial court framed as many as five issues. Issue No. 2 is whether the Plaintiff No. 1 is not the married wife of Late Gangapani Sahu and Issue No. 3 is whether Plaintiff No. 1 is legally entitled for any share in the suit property. These two are the main issues. The trial court answered the issues in favour of the Plaintiffs and decreed the suit and directed that Plaintiffs and Defendant are entitled to 1/4th share each equally except S1. Nos. 24 and 25 for the suit schedule property and directed the parties to partition the suit schedule property amicably within six months failing which the Plaintiffs may apply to the court for final decree and to carve out their shares by appointing a Civil Court Commissioner. 5. The Defendant has challenged the aforesaid findings of the trial court and stated that the court below has erred in law in decreeing the suit for partition as Plaintiff No. 1 being a concubine is not entitled to any share. Plaintiff Nos. 2 and 3 are also not entitled to any share in the property as all the suit schedule properties are ancestral property of Gangapani Sahu. The Plaintiff No. 1 has not proved the valid marriage between her and Gangapani Sahu. Hence, the findings of the trial court that there is a presumption of marriage between Plaintiff No. 1 and Gangapani Sahu is illegal as during the lifetime of Arnapurna, the first wife of Gangapani Sahu, Plaintiff No. 1 came to the house of Gangapani Sahu and lived together. So she cannot be presumed to be the legally marriaged wife of Gangapani Sahu during the lifetime of Arnapurna as per the Hindu Marriage Act. 6. The learned Counsel appearing for the Respondent-plaintiffs submitted that the trial court findings are based; on materials available on record and proved facts and hence the same is legally sustainable and the Defendant's appeal is liable to be dismissed. 7. 6. The learned Counsel appearing for the Respondent-plaintiffs submitted that the trial court findings are based; on materials available on record and proved facts and hence the same is legally sustainable and the Defendant's appeal is liable to be dismissed. 7. Considering the rival submissions of the parties, the dispute to be decided in this appeal is that whether the Plaintiff is entitled to share in the suit property as a married wife of Gangapani Sahu. On examing the evidence on records and pleadings of the parties this Court finds that Plaintiff No. 1 in support of her case examined five witnesses including herself and P.W.3 is Chakrapani Sahu who is none other than the brother of Gangapani Sahu and paternal uncle of the Defendant. P.W.3 has stated regarding the relationship of the Plaintiffs and the Defendant's father Gangapani Sahu and he has categorically stated that the mother of the Defendant was dead. So, the father of the Defendant married again to Plaintiff No. 1 as per their case custoMs. He has further stated that it is false to say that Plaintiff No. 1 was kept of the father of the Defendant and in his crossexamination, he has categorically stated that he was not in inimical terms with the Defendant and the father of the Defendant had not kept Plaintiff No. 1 in his house during the lifetime of his first wife who was ailing. He has stated that the marriage between Plaintiff No. 1 and Gangapani Sahu took place 27 years back. P.W.2 is the father of Plaintiff No. 1 who has stated that after the death of Gangapani Sahu's first wife, the father of the Defendant proposed to marry Plaintiff No. 1. P.W.2 performed the marriage in his village according to their caste customs and P.W.1, the Plaintiff herself has stated that the mother of the Defendant died 30 years back. P.W.4 is 65 years old, who is a Karji of village Kendubadi (Priest). He was a family friend of Plaintiff No. 1 and he has also stated that Plaintiff No. 1 married the father of Defendant 26 years back. P.W.4 is 65 years old, who is a Karji of village Kendubadi (Priest). He was a family friend of Plaintiff No. 1 and he has also stated that Plaintiff No. 1 married the father of Defendant 26 years back. So, the above evidence corroborates each other regarding the factor of marriage between Plaintiff No. 1 and Gangapani Sahu and rightly the trial court has come to a conclusion that Plaintiff No. 1 is the legally married wife of Gangapani Sahu and the Plaintiffs are entitled to share in the properties left by Gangapani Sahu which are admittedly self-acquired. Therefore, the findings of the trial court are confirmed. Appeal is dismissed but with costs. Final Result : Dismissed