Research › Search › Judgment

Orissa High Court · body

2009 DIGILAW 68 (ORI)

BIJAY KRUSHNA DWIVEDY v. LAXMI DEI

2009-01-28

A.S.NAIDU

body2009
JUDGMENT : A.S. Naidu, J. - The Judgment and decree dated 4.2.1987 and 23.2.1987 respectively passed by the then Subordinate Judge, Jajpur in Title Appeal No. 12 of 1986 setting aside the Judgment and decree dated 20.09.1985 passed by the Munsif, Jajpur in Title Suit No. 107 of 1981 are assailed in this appeal. 2. Respondent No. 1-Laxmi Dei, as the sole Plaintiff, filed Title Suit No. 107 of 1981 in the Court of the then Munsif, Jajpur for passing a decree of perpetual injunction u/s 44 of the Transfer of Property Act against Defendant Nos. 1 and 2 restraining them from entering upon the suit land a portion of homestead or in the alternative for recovery of possession if the Defendants 1 and 2 are found in possession of the land and to direct the Defendants 1 and 2 to transfer the suit land, which they have purchased from Defendant No. 3 in favour of the Plaintiff for a, consideration of Rs. 2,000/- or as per the market price to be determined by the Court as well as for other ancillary reliefs. 3. After receiving notice issued in the suit, Defendant No. 3 did not contest the suit and became ex parte. Defendant Nos. 1 and 2 alone filed written statement contending that the Plaintiff has no locus standi to bring the aforesaid suit as she was not a co-sharer of the suit properties in terms of Section 23 of the Hindu Succession Act, 1956. It was also contended that the Plaintiff cannot maintain the suit u/s 44 of the Transfer of Property Act and the suit is hit by the provisions of Section 67 of the O.L.R. Act on the reasoning that Defendant No. 3 transferred a portion of the land out of plot No,82 and 83 to one Biswanath Das, a scheduled caste person by way of registered sale deed dated 1.6.1979. The said Biswanath Das subsequently wanted to sell away the land and due to non-availability of Scheduled Caste purchaser, he sought permission of the competent authorities u/s 22 of the O.L.R. Act and after obtaining permission, sold Ac. 0.08 dec. of land to Mahendra Moharana, Defendant No. 3 on 5.11.1980. Thus, according to the Defendants, the property had lost the character of joint family property. 0.08 dec. of land to Mahendra Moharana, Defendant No. 3 on 5.11.1980. Thus, according to the Defendants, the property had lost the character of joint family property. Defendant No. 3 transferred the property to Defendant No. 1 by registered sale deed dated 10.11.1980 for a consideration of Rs. 5,000/- and delivered possession thereof. Mahendra (Defendant No. 3) also sold Ac.0.09 dec. out of the disputed plot No. 88 to Defendant No. 2 for a consideration of Rs. 3,000/-and delivered possession thereof to him. In the written statement, it is further stated that after purchase, Defendant No. 1 applied to Jajpur Municipality for permission to construct a building and the authorities after being satisfied that the Defendant No. 1 has title over the lands, granted permission and sanctioned the plan and Defendant No. 1 had already started construction. It is further averred that the lands have been mutated in favour of Defendant No. 1 and he is paying rent and as such the suit for perpetual injunction u/s 44 of the T.P. Act is not maintainable, more so, because there is no prayer for declaration of right, title and interest. 4. To appreciate the inter se dispute, it would be better to refer to the family tree, which is as follows: Maguni Moharana Manika Manilal Laxmi Mahendra (plff) (Def.3) It would be apparent that the Appellant and proforma Respondent, who were Plaintiff and Defendant No. 3 respectively in the Court below are related to each other as brother and sister. The present Appellants, who were Defendant Nos. 1 and 2 in the suit are strangers to the property. Maguni, was father of the Plaintiff and Defendant No. 3 and was the absolute owner of the properties. He expired in the year 1970. Consequently, his widow and other sons and daughters including the Plaintiff and Defendant No. 3 succeeded to the entire property left by him. Damani, widow of Maguni died in the year 1980. The suit property, as would be evident from the plaint averments, was in the possession of the Plaintiff-Respondent and her brother-Defendant No. 3 (proforma Respondent). It is averred that the joint family properties were never partitioned between the successors of Maguni Moharana or Damani The Plaintiff though was given on marriage, due to certain disturbances, deserted her husband and was residing in the ancestral paternal house. It is averred that the joint family properties were never partitioned between the successors of Maguni Moharana or Damani The Plaintiff though was given on marriage, due to certain disturbances, deserted her husband and was residing in the ancestral paternal house. According to the plaint allegations, Defendant No. 3, i.e., proforma Respondent with an avowed oblique motive to deprive the Plaintiff of her legitimate share in the suit property colluded with Defendant Nrs.1 and 2 (Appellants) and executed a fake and nominal sale deed without receiving any consideration by putting imaginary valvation. 5. On the strength of the said sale deed, Defen ant Nos. 1 and 2 tried to take possession of the a. puted lands and raised some construction necessitating filing of the suit by tl Plaintiff. 6. On the basis of the pleadings, the Trial Court ramed as many as eight issues. In order to substantiate their case, Plaintiff got examined two witnesses and exhibited seven documents. 7. The Trial Court after considering the entire pleadings of the parties and discussing the evidence both oral and documentary adduced by the parties, dismissed the suit on the basis of the following findings: (i) Admittedly the properties were part and parcel of the joint family properties and the Plaintiff was the daughter of Maguni. Therefore, under the Hindu Succession Act, she had right, title and interest over the properties left by her father. (ii) The disputed properties were joint family properties and belonged to Maguni, the father and as such, the Plaintiff had a share. The same not being part of joint family dwelling house, Section 44 of the Transfer of Property Act and Section 4 of the Partition Act cannot be applied. The Trial Court dismissed the Plaintiff's suit. 8. The Judgment passed by the Trial Court was assailed by the Plaintiff in Title Appeal No. 12 of 1986 before the then Subordinate Judge, Jajpur. The Appellate Court scanned through the evidence and observed as follows: (i) While negativing the finding of the Learned Munsif as regards Issue Nos. 3 and 8, the lower Appellate Court on appreciation of the evidence on record and the provisions contained in Section 23 of the Hindu Succession Act held that regarding the nature and character of land as homestead, there is no controversy between the parties. 3 and 8, the lower Appellate Court on appreciation of the evidence on record and the provisions contained in Section 23 of the Hindu Succession Act held that regarding the nature and character of land as homestead, there is no controversy between the parties. The Learned Subordinate Judge while going through the evidence even appreciating the fact that the suit are at a distance of 20-30 feet away from each other and the suit plots were being used as Khala and for the purpose of drying cow-dung cakes and paddy negatived the finding of the Trial Court that the suit plots are not coming within the definition of dwelling house for which Section 23 of the Hindu Succession Act has no application. The lower Appellate Court further held that the expression "dwelling house" embraces not merely a structure of the plot, but includes adjacent building, cartilages, garden, Court-yard, orchard and all that is necessary for the convenient occupation of the house and it also includes lands on which the structure of the dwelling house stands. It was further erroneously decided by the lower Appellate Court that Maguni had purchased the suit plots with intention to construct a house and basing on the intention to construct the Learned Subordinate Judge came to a conclusion that the Learned Munsif is wrong in saying that the suit plots are not homestead properties although the Learned Munsif had given findings only on dwelling houses, but not on homestead properties. It was further held that when the sons of Maguni have partitioned the properties without making the Plaintiff and her sister into the hotchpots of partition, they can be said to have a right to set the relief as is guaranteed to them u/s 4 of the Partition or u/s 44 of the T.P. Act and on the above findings the lower Appellate Court reversed the reasonings of the Trial Court. (ii) While dealing with issue No. 4, the Learned Sub-Judge disbelieved the fact of partition and held that under the pains of repetition that the intention of the sons of Maguni to separate is sufficiently indicated by the conduct and follow-up actions taken by the brothers. (ii) While dealing with issue No. 4, the Learned Sub-Judge disbelieved the fact of partition and held that under the pains of repetition that the intention of the sons of Maguni to separate is sufficiently indicated by the conduct and follow-up actions taken by the brothers. (iii) While deciding the Issue No. 7 the lower Appellate Court held that no order for reconveyance of land can be passed and it was further held that in the absence of any prayer for partition, no relief u/s 4 of the Partition Act can also be granted. On the basis of the aforesaid observation/findings, the Learned Subordinate Judge allowed the appeal and permanently injuncted the Appellants-Defendants from entering upon the suit land. The said Judgment is assailed in this Second Appeal. 9. This appeal involves the following substantial questions of law. (i) Whether the suit property should be governed u/s 44 of the Transfer of Property Act and whether protection thereunder can be given to the Plaintiff ? (ii) Whether the Plaintiff can be given any relief u/s 23 of the Hindu Succession Act? (iii) Whether the suit is barred u/s 67 of the O.L.R. Act? 10. A perusal of both the Judgments as well as pleadings reveal that there is no dispute with regard to the fact that the Plaintiff was the daughter of Maguni and as such, she had right, title and interest over the property left by her father and mother. It is further apparent from the pleadings that the properties left by Maguni were inherited by his legal heirs and successors including the Plaintiff and Defendant No. 3. As per Section 23 of the Hindu Succession Act, 1956 (under which the present dispute was adjudicated) a female heir specified in Class-I of the schedule has a right in the homestead property of her deceased father. But then, such right was enforceable until the male heirs choose to divide their respective shares. From the written statement filed by the Defendants, it appears that subsequent to the death of Maguni, his two sons effected partition of the properties including the suit properties by means of registered partition deed. But then, the said partition deed was not produced before the Court nor marked. The suit lands are recorded as 'Gharabari' and Talabagayat' in the settlement R.O.R., Ext.4. But then, the said partition deed was not produced before the Court nor marked. The suit lands are recorded as 'Gharabari' and Talabagayat' in the settlement R.O.R., Ext.4. The evidence on record further reveals that the ancestral house of the Plaintiff's father is situated at a distance of 25-30 feet away from the suit plot. Considering the nature of the land, purpose for which it was used, gives an indication that the same were part and parcel of the homestead properties. The expression "dwelling house" embraces not merely a structure on the plot, but includes adjacent building, cartilages, garden, Court-yard, orchard and all that is necessary for the convenient occupation of the house. Thus, this Court finds that the conclusion arrived at by the Learned Trial Court that the suit properties were not part of homestead suit properties is not correct and the Appellate Court rightly disagreed with the said findings. 11. Once it is held that the properties in dispute were part and parcel of the joint family dwelling or homestead lands of the family, the conclusion would be if there is partition of such properties at the instance of the sons of Maguni, daughter-Plaintiff shall also get a share. Thus, keeping the Plaintiff out of the hotchpots of the partition was unjustified. 12. In view of the aforesaid position, the Plaintiff has a right to claim for the relief in consonance with Section 4 of the Partition Act or Section 44 of the Transfer of Property Act, as the case may be. The findings of the lower Appellate Court in this regard, thus suffer from no infirmity. It is the admitted fact that after the death of Maguni and his wife, their two sons and two daughters being the Class-I heirs, inherited the properties left by Maguni. In consonance with Sub-section (1) of Section 22 of the Hindu Succession Act, any heir specified in class- I of the schedule if proposes to transfer his/her interest in the property or business, the other heirs shall have a preferential right to acquire interest proposed to be transferred. In the case in hand, there.is no material to reveal that Defendant No. 3 before alienating the properties in favour of Defendant Nos. 1 and 2, who are outsiders had offered the Plaintiff or his other co-sharers to purchase the suit land nor there is any evidence to show that Defendant Nos. In the case in hand, there.is no material to reveal that Defendant No. 3 before alienating the properties in favour of Defendant Nos. 1 and 2, who are outsiders had offered the Plaintiff or his other co-sharers to purchase the suit land nor there is any evidence to show that Defendant Nos. 1 and 2 were intimated about the said fact. In the case of Ganesh Chandra Pradhan Vs. Rukmani Mohanty and Others, it is held: Transferor-heir must propose or notify his intention to transfer to other class-l co-heirs, a transfer made without it would be vulnerable even after it is completed on proof by co-heirs who have the preferential right, that the transferor was made without notice to the proposal of transfer to them. 13. Similar view was also expressed in the case of Muralidhar Das v. Bansidhar Das and Ors. reported in 1995 C.L.T.376 wherein this Court observed thus: Armed with the substantive right conferred by Sub-section (1) he may seek the remedy in the civil Court of competent jurisdiction under the provisions of CPC and the provisions contained in the Specific Relief Act. He may move the Court for realization of his preferential right in cases where the other co-sharers are proposing to transfer or where the transferrers has already been made in favour of strangers. 14. In view of the aforesaid clear position, the conclusion is irresistible that the remedy of the aggrieved co-heir lies in the civil Court of competent jurisdiction and the civil Court has jurisdiction to realize their preferential right to the purchased property proposed to be sold or already sold by one of the co-heirs to a stranger purchaser without obtaining the prior permission of the co-heirs. Thus, in consonance with Sub-section (1) of Section 22 of the Hindu Succession Act, the aggrieved co-heir has a right to seek remedy from the civil Court where the transfer has already been affected. 15. In view of the discussions made above, this Court finds no apparent error in the decision of the Appellate Court and declines to interfere with the same. Consequently, the Second Appeal is dismissed. Parties to bear their own cost.