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2008 DIGILAW 969 (ORI)

NILAMADHABA DEO v. JANAKA KUMARI DEVI

2008-10-30

SANJU PANDA

body2008
JUDGMENT : Sanju Panda, J. - Challenge has been made in this appeal to the order dated 27.11.1999 passed by the learned Civil Judge (Senior Division), Bhubaneswar in T.S. No. 361 of 1994-1 decreeing the suit on contest against the Defendants and directing for partition of Schedule 'B' suit land within one month failing which the Plaintiff would be at liberty to partition the same by making the decree final through court. 2. The-brief facts of the case are as follows: Defendants are the Appellants and Plaintiff is the Respondent herein. She instituted T.S. No. 361 of 1994-1 in the court of learned Civil Judge (Senior Division), Bhubaneswar for partition of the suit property. The property which is the ancestral property belongs to Harekrushna Harichandan Mohapatra who expired on 24.12.1980. His wife late Lavanya Kumari Devi predeceased him in the year 1978. He has only son Mahendra Narayan Deo and two daughters Janaki Kumari and Prema Manjari. Prema Manjari having been adopted to another family, Mahendra Narayan and Janaki Kumari remained as the successors in respect of the suit property. By the time the suit was filed, Mahendra Narayan was dead. His son and daughter are the Defendants. The claim of the Plaintiff is that the land appertaining to Khata No. 2 in mouza Malipada belongs to her mother and after her death she was entitled to get half share from the said land and one fourth share in respect of rest of the property. Her claim having been refused, she filed the suit for partition. 3. The Defendants filed their written-statement denying the averments made by the Plaintiff in the suit stating therein that Harekrushna Harichandan Mohapatra having executed a Will in favour of Defendant No. 1, the Plaintiff lost all her interest in the suit property and in view of existence of the said Will, the suit for partition would not be maintainable. Secondly, it was pleaded that the property under Khata No. 202 having been sold by mother Lavanya Kumari Devi, though her power of attorney holder who is non-else than the father of Defendant No. 1 himself, the suit property was not available for partition. 4. In order to determine the claim of the Plaintiff, the learned Civil Judge framed as many as seven issues which are as follows: 1. Whether the suit is maintainable? 2. 4. In order to determine the claim of the Plaintiff, the learned Civil Judge framed as many as seven issues which are as follows: 1. Whether the suit is maintainable? 2. Whether the Plaintiff has got cause of action to file the suit? 3. Whether the suit is barred by time? 4. Whether the Plaintiff is entitled to get 1/2 share from her mother's property as claimed by her and 1/3rd share from her mother's property as claimed by the Defendants? 5. Whether the Plaintiff is entitled to get 1/4 th share from her father's property ? 6. Whether the Plaintiff is entitled to the relief sought for? 7. To what other relief the Plaintiff is entitled ? 5. In support of her stand, the Plaintiff examined herself as P.W. l whereas Defendant No. 1 examined himself as D.W.l and exhibited a number of documents to substantiate their respective plea. The learned Civil Judge analyzing the materials available on record decreed the suit preliminarily on contest against the Defendants holding that the Plaintiff is entitled to 1/2 share from her mother's property and 1/4th share from her father's property and directed the Defendants to partition the 'B' schedule property within one month failing which the Plaintiff would be at liberty to partition the same by making the decree final through court. 6. The Learned Counsel for the Appellants submitted that the trial court committed an illegality without looking into the written statement that a Will was admittedly there to be probated in favour of Defendant No. 1 in respect of the property recorded in the name of Harekrushna Harichandan and the said Will was executed on 3.11.1980. Therefore, the properties should not devolve in accordance with Section 8 of the Hindu Succession Act and the Plaintiff should not inherit any property as per the said Act because Harekrushna Harichandan was not dead intestate within the meaning of 'intestate' because he bequeathed all his property in favour of Defendant No. 1 by virtue of the Will. Since there was a testamentary succession to be effected, succession could not be reopened. He submitted that this was a suit for partition. Had a probate proceeding been there at the time of the trial, the Defendants would have taken a stand that the Plaintiff was not entitled to any share as she had got Ac.0.09 decs. Since there was a testamentary succession to be effected, succession could not be reopened. He submitted that this was a suit for partition. Had a probate proceeding been there at the time of the trial, the Defendants would have taken a stand that the Plaintiff was not entitled to any share as she had got Ac.0.09 decs. of land at the time of her marriage with an understanding that she would not claim any property and the Plaintiff herself in her plaint admitted that a probate proceeding had been initiated and dismissed for default on 25.11.1992 vide Ext. 7. The fact that the Appellants filed an application under Order 41, Rule 27 of the CPC indicates that Probate Misc. Case No. 10 of 1999 (Will Probate) was pending before the learned District Judge, Khurda to probate the Will in question. So, before pronouncement of the judgment by the trial court, the probate misc. case was filed. Therefore, the trial court should have held that the suit for partition, was not maintainable. Thereafter, the Appellant filed a misc. case to stay the further proceeding of the appeal till final disposal of Will Probate Misc. Case No. 1 0 of 1999 pending before the learned District Judge, Khurda. After hearing the Appellants this Court dismissed the said misc. case on 30th March, 2007 giving liberty to the Appellants to agitate their grievance in the final decree proceeding, if so advised. Since 1999 till 2006, the Appellants did not take any step in the probate proceeding by filing necessary requisites and also did not pay the duty in the probate case to show their bona fide intention to proceed with the probate proceeding. During the course of argument, the question that the daughter is a coparcener in view of Amendment of Hindu Succession Act, 2005 was raised. He submitted that since Harekrushna Harichandan died in the year 1980, the Hindu Succession Act, 1986 was squarely applicable to the present case and the Hindu Succession (Amendment) Act, 2005 (39 of 2005) being prospective in nature is not applicable to the present case and the daughter could not be treated as a coparcener as succession already vested in accordance with Section 56 of the Act before the new Succession Act came into force. During the hearing of the appeal, the Appellant filed an application for additional evidence which he could not file earlier. During the hearing of the appeal, the Appellant filed an application for additional evidence which he could not file earlier. He took a plea that Exts. A to A/2 reveal the names of the purchasers from Harekrushna Harichandan. However, the Plaintiff did not add them as parties and as those sale deeds and ROR were not with the Defendants, the same could not be filed at the time of the suit. The said purchasers and Lavanya Kumari Devi, the mother of the Plaintiffs were necessary parties to arrive at a decision. Since they were not made parties, the Plaintiff was not entitled to get half share out of the property recorded in the name of the mother Lavanya Kumari Devi. The Appellants raised the question of the maintainability of the suit as the Plaintiff being the daughter had No. locus standi to file the suit for partition. On the above grounds, he submitted that the appeal should be allowed by setting aside the findings of the trial court 7. The Learned Counsel appearing for the Respondent submitted that the relationship between the parties and the genealogy given in Schedule-A of the plaint were not disputed. Regarding the argument advanced on behalf of the Appellants that during the subsistence of the Will executed by Harekrushna Harichandan in favour of Defendant No. 1 the present suit at the instance of the Plaintiff was not maintainable, he submitted that Harekrushna Harichandan died intestate and hence, the succession obtained during the subsistence of the Will was not sustainable in the eye of law, as Sections 8 and 3(g) must be read in consonance with Section 30 of the Hindu Succession Act. Section 30 of the Act makes a special provision stipulating the condition for testamentary succession. The said Section provides that any Hindu may dispose of by Will, any property, which is capable of being so disposed of in accordance with the provisions of Indian Succession Act, 1925. "Dying in intestate" under the Hindu Law of Inheritance (Amendment) Act came for consideration before this Court in the case of Mst. Jandebi Vs. Upendra Sahu and Another, wherein this Court, relying on the principle laid down by the Privy Council, held that the words are a description of the status and the capacity of the deceased at the time of his death. Jandebi Vs. Upendra Sahu and Another, wherein this Court, relying on the principle laid down by the Privy Council, held that the words are a description of the status and the capacity of the deceased at the time of his death. As per Section 213 of the Indian Succession Act No. right as executor or legatee can be established in any court of justice, unless a court of competent jurisdiction in India has granted probate or letters of administration of the Will under which the right is claimed. Therefore, mere execution of the Will cannot clothe the legatee or beneficiary with any right, title or interest in respect of the property, unless probate or letters of administration is obtained from appropriate court of law under Sections 276 or 278 of the Indian Succession Act. He further submitted that prior to initiation of the present suit Defendant No. 1 filed a probate case bearing Misc. Case No. 16/20 of 1985(P.) and the said misc. case was dismissed for default on 25.11.1992. The present suit was filed in the year 1994 after dismissal of the aforesaid probate misc. case. The Defendants did not take any step to restore the same till final hearing of the suit. On 01.11.1999, the suit was posted to 27.1.1999 for judgment. Probate Misc. Case No. 10 of 1999 was filed on 16.11.1999. just before pronouncement of the judgment in the suit. Though the appeal was filed in the year 2000, the Appellants did not take any step to file those documents earlier as additional evidence in the appeal. They filed Misc. Case No. 221 of 2006 to stay further proceedings of the present appeal on the ground of pendency of the Probate Misc. Case No. 1 0 of 1999 which was also dismissed. He submitted that in the suit the preliminary decree for partition was passed earlier and since the Defendants did not take any attempt to stay the suit, they are not entitled to get any benefit even if they succeeded in the probate proceeding subsequent to the preliminary decree proceeding. As the Appellants filed the application for acceptance of the additional evidence at the fag end of the appeal (during hearing of the appeal), the same was not tenable as they had not properly explained the cause for filing the application at a belated stage. Therefore, those applications were liable to be rejected. As the Appellants filed the application for acceptance of the additional evidence at the fag end of the appeal (during hearing of the appeal), the same was not tenable as they had not properly explained the cause for filing the application at a belated stage. Therefore, those applications were liable to be rejected. Though the Appellants produced two power of attorneys giving authority for transfer the property, those two documents were not referred to by the trial court. However, those documents were not documents of transfer and mere production of power of attorneys would not in any manner prove the fact of transfer of the suit property in favour of a 3rd person. Defendants did not give particulars of all the purchasers in their written statement and their pleadings being vague without any disclosure of the details of any such transfer, No. evidence of any nature was produced to prove the fact of transfer of the suit properties in favour of the outsiders. Therefore, the same could not be treated as a part transfer in the eye of law and the Plaintiffs suit could not be dismissed on that ground. Therefore, the trial court rightly negatived such plea of the Appellants-Defendants which needs to be confirmed by this Court. 8. So far as the Hindu Succession (Amendment) Act, 2005 is concerned, he submitted that in accordance with the said Act, a daughter being a coparcener has equal right in the family property. Section 6(3)(a) provides for allotment of share to a daughter in a coparcenary property equal with that of a son. Section 6(5) along with the Explanation to this amended section provides for applicability of the section to all cases where partition has not been effected before 20th December, 2004. Thus, in the present case, even assuming that the mother's properties are ancestral in nature, the Plaintiff is entitled to half share in the same. Though the Plaintiff prayed for 1/4th share in the suit property, after the amendment of Hindu Succession Act, 2005, she is entitled to half share in the suit property including the ancestral properties. He submitted that on the aforesaid grounds the appeal is liable to be dismissed. 9. this Court perused the pleadings and the evidence adduced by the parties. Though the Plaintiff prayed for 1/4th share in the suit property, after the amendment of Hindu Succession Act, 2005, she is entitled to half share in the suit property including the ancestral properties. He submitted that on the aforesaid grounds the appeal is liable to be dismissed. 9. this Court perused the pleadings and the evidence adduced by the parties. After considering the rival submissions of the parties, it finds that the Appellants filed the application for acceptance of the additional evidence during the course of hearing. In the said application, the Appellants did not specifically explain why those documents were not filed earlier. In paragraph-7 thereof, the Appellants only stated that the sale deed of February, 1972 and ROR could not be filed at the time of trial and probate proceeding being filed after the evidence led is the subsequent evidence. The power of attorneys, though were available on record, were not accepted as additional evidence for proper adjudication of the matter. 10. So far as Order 41, Rule 27 of the CPC is concerned, for production of additional evidence during the hearing of the appeal, the Party seeking to produce the same has to satisfy the Court that those material evidence were not in his possession at the time of the trial. Rule 27 of Order 41 of the CPC cannot be taken recourse to by a party to patch up the weak part of his action in the court of appeal. As per Clause (aa) of Rule 27 of the Code of Civil Procedure, the party seeking to produce additional evidence has to establish that notwithstanding the exercise of due diligence, such evidence was not within his knowledge or could not, after the exercise of due diligence, be produced by him at the time when the decree appealed against was passed. 11. In the present case, though the suit was filed in the year 1994 and the appeal was filed in the year 2000, the Appellants have not explained as to why the documents in question which were available with them were not filed during the course of hearing of the appeal and without any such explanation, those documents should not be accepted as additional evidence. The court is not bound to permit additional evidence and the parties are not entitled to admit such evidence which is subject to the conditions and limitation laid down under the rule. Reference in this regard may be made to the decision of the apex Court in the case of Mahavir Singh and Ors. v. Naresh Chandra and Anr. reported in 2001 (I) OLR SC 689. Therefore, the Appellants' application for acceptance of additional evidence is rejected. 12. So far as the probate of Will is concerned, since the preliminary decree was passed earlier and the probate proceeding was still pending and the Appellants did not take any step in the said proceeding, they cannot say that the property is not liable for partition. The apex Court in the case of Mrs. Hem Nolini Judah (since deceased) and after her legal representative Mrs. Hem Nolini Judah (since deceased) and after her Legal Representative Mr. Marlean Wilkinson Vs. Isolyne Sarojbashini Bose and Others, wherein the legatee under the first Will, without obtaining probate or letters of administration in respect of the said Will, executed a second Will in favour of another person, the question arose as to whether the legatee under the second Will can acquire any right, title or interest in respect of the property which was the subject matter of first Will, without obtaining probate or letters of administration in respect of the same, referring to Section 213 of the Act, held that No. right to a legatee can be established in a court of justice, unless probate or letters of administration is obtained in respect of the Will, under which the right as a legatee is claimed. The apex Court further held that as the Will was not subjected to probate or letters of administration, the person shall be treated as a person 'dying in intestate' and normal succession would be applicable. 13. In the case of Jagojoti Bose and Another Vs. Bararuchi Bose and Others a preliminary decree for partition was passed and simultaneously though a probate proceeding was continuing, No. attempt was made to stay the suit and ultimately the probate proceeding was allowed subsequent to the preliminary decree passed in the suit. The order passed in the probate proceeding was tendered as a defence during the final decree proceeding. Bararuchi Bose and Others a preliminary decree for partition was passed and simultaneously though a probate proceeding was continuing, No. attempt was made to stay the suit and ultimately the probate proceeding was allowed subsequent to the preliminary decree passed in the suit. The order passed in the probate proceeding was tendered as a defence during the final decree proceeding. Since appropriate steps were not taken during the pendency of the suit, the claim on the strength of the Will and the probate, subsequent to the preliminary decree was held to be barred by principle of res judicata, actual and constructive. Therefore, grant of probate subsequent to preliminary decree was wholly immaterial for the simple reason that by the time probate was granted the rights of rights on the parties on the basis of inheritance had already been worked out and the stage of setting up the probate in defence had passed off. 14. In view of the aforesaid decisions, as it is seen in the present case that the preliminary decree was passed in favour of the Plaintiffs in the year 1999 and the probate proceeding was still pending without any determination about the genuineness of the Will, the contention of the Appellants in the suit for partition is not maintainable in view of the pendency of the probate proceeding. Hence, the finding of the trial court regarding maintainability of the suit is confirmed. Since the Will was not probated, normal succession is applicable to the property of Harekrushna Harichandan and the Plaintiff is entitled to a decree for partition. 15. So far as the share of the Plaintiff is concerned, the Hindu Succession (Amendment) Act 2005 is applicable to the present case. Since the partition was not effected before 20th December, 2004, the Plaintiff is entitled to half share in the suit property. As the daughter is a coparcener in the family by birth, she is entitled to allotment of the share in a coparcenary property equal with that of a son. Reference in this connection may be made to the decision reported in 2008 (II) CLR 20 (Chandra Pattnaik and Ors. v. Sarat Chandra Pattnaik and Anr.). 16. The first appeal is accordingly dismissed. Final Result : Dismissed