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2013 DIGILAW 145 (ORI)

Prasanna Kumar Ram v. Nabakishore Ram

2013-05-14

B.K.MISRA

body2013
JUDGMENT B.K. MISRA, J. 1. The appellant, who was the plaintiff in T.S. No. 90/571 of 2006/2001, being aggrieved by the judgment and decree disll1issing the suit on contest against the defendant Nos.2 and 6 and ex parte against defendant Nos.1, 3 and 4 has preferred this appeal. 2. The appellant who was the plaintiff in the Court below (hereinafter referred to as the plaintiff), filed the suit for partition of Lot Nos. 1 and 2 properties of the plaint suit schedule, which are said to be his ancestral properties. Admittedly, the plaintiff is the son of defendant No.1. Plaintiff and defendant No.1 as well as proforma defendant Nos. 3 and 4 belong to one family. It is the case of the plaintiff that suit plot No.1205 described as Lot No.1 property in the plaint schedule was leased out by the Government in G.A. Department in favour of Rajendra Ram, who happens to be his grand father and father of defendant No.1. The said Rajendra Ram constructed several shop rooms over the said plot No.1205 and let out to different tenants. Rajendra Ram died in the year 1970 leaving behind his only son, namely, defendant No.1. The suit property was .recorded .in the name of Rajendra Ram and after his death it was mutated in the name of defendant No.1. Lot No.2 property, i.e., plot No.964 is the ancestral residential house of the parties, which was constructed out of the joint family fund and was renovated from time to time for the comfortable living where the plaintiff used to stay. The said plot No.664 stands recorded in the name of defendant No.1, who is the father of the plaintiff and Bijan Ram, father of the proforma defendant Nos.3 and 4. Plot No.664 appertains to Khata No.513 and in that Khata the there exists two plots, i.e. plot No.664 and 665. Plot No.665 was allotted to Bijan Ram by an amicable partition and defendant No.1 got plot No.664. In the record of right Khata No.513 stands recorded in the name of defendant No.1 and Bijan Ram. It is alleged that proforma defendant Nos.3 and 4 have no interest over Plot No.664 by virtue of the previous amicable partition between Naba Kishore Ram and Bijan Ram. In the record of right Khata No.513 stands recorded in the name of defendant No.1 and Bijan Ram. It is alleged that proforma defendant Nos.3 and 4 have no interest over Plot No.664 by virtue of the previous amicable partition between Naba Kishore Ram and Bijan Ram. According to the plaintiff, he is the only son of defendant No.1 and therefore, he has 50% share in the properties described in Lot Nos.1 and 2 of the plaint suit schedules. It is alleged by the Plaintiff that his father Defendant No.1 being guided by some unscrupulous persons, attempted to sell away the properties and when the plaintiff came to know about that from one Kunja Kishore Ram; he requested his father to refrain from that, but his father (defendant No.1) did not pay any heed to that but on the other hand, rebuked the plaintiff and challenged him to do whatever he likes. Thus, the plaintiff being disgusted with the attitude of his father, namely, defendant No.1, asked him for partition of the suit properties, which defendant No.1 flatly refused for which the plaintiff instituted the suit seeking partition. During pendency of the suit and in course of hearing of the miscellaneous case, the plaintiff came to know that defendant No.1 has sold away Lot No.1 property to defendant No.2 on 29.10.2001. According to the plaintiff, he used to derive income out of the shop rooms, which were built by his grand father, Rajendra Ram @ Raja Ram over Lot No.1 property and since that property is the ancestral property of him as well as defendant No.1, he and defendant No.1 (father), each has 50% share over the same. The plaintiff alleges that when the defendant No.1 came to know about the partition suit filed by the, plaintiff, he (Defendant No.1) deliberately sold away Lot No.1 property to defendant No.2 without his knowledge, and .consent as well as without having any legal necessity. It is further alleged that the defendant No.1 had no right to sell more than the share due to his share and that apart, he cannot sell away the ancestral-joint family property. According to the plaintiff, the sale of Lot No.1 property by defendant No.1 to defendant No.2 is void in the eye of law and even if such sale has taken place, the same does not affect the plaintiff's interest. According to the plaintiff, the sale of Lot No.1 property by defendant No.1 to defendant No.2 is void in the eye of law and even if such sale has taken place, the same does not affect the plaintiff's interest. Thus, when on 1.10.2001 the plaintiff asked the defendant No.1 for partition and when that was refused, the plaintiff finding no other way out had to institute the suit for partition of the suit schedule properties. 3. Defendant NO.1 and proforma defendant Nos. 3 and 4 were set ex parte since they did not appear in the Court when hearing of the suit was taken up. 4. Defendant Nos.2 and 5 contested the suit by filing their separate written statement. 5. Defendant No.2 in his written statement while praying for dismissal of the suit having no cause of action, inter alia, pleaded that the suit property described in Lot No.1 is not partiable as the same when leased out by the Government to a member of the family that becomes his separate property and accordingly no other member of the coparcenery and not even his male issue acquires any interest in it by birth. It is also his further plea that when after the death of the original lease holder, his son (defendant No.1) became the rightful owner and when he in order to meet his legal necessity, alienated the suit Lot No.1 property to him after obtaining necessary permission from defendant No.5 vide Tripartite Deed No.6822 dated 29.10.2001, the plaintiff cannot question about that as he has no right, title and interest over the said lot No.1 property. Defendant No.2 further asserts that after taking delivery of possession of lot No.1 property, he got his name mutated in his favour and he is going on paying the land revenue to the concerned authority. Inter alia it is his specific stand that when Lot No.1 suit property stands recorded in the name of defendant No.1 and when he for his legal necessity such as defraying medical expenses and marriage expenses of his two unmarried daughters, sold the property to him after obtaining necessary permission from the Government, Plaintiff cannot question such sale as he has no right, title and interest or possession over the suit schedule property in any manner and cannot seek for partition of that property. 6. 6. Defendant No.5, namely, the State, in its written statement while raising many questions about the maintainability of the suit have asserted that the State is the lawful owner and title holder of the suit Lot No.1 property which was leased out to Rajendra Ram for shop-cum-residential purposes and after his death, Lot NO.1 property was mutated in favour of defendant NO.1 on proper application to the G.A. Department. The said Naba Kishore Ram, defendant NO.1 applied to the GA Department seeking permission for transfer of the land in favour of defendant NO.2 by way of sale and accordingly, a tripartite deed was executed in between the G.A. Department, Naba Kishore Ram and Sunil Kumar Mohanty on 22.10.2001, which was registered vide deed No.6823 dated 29.19.2011. With regard to the allegation of the plaintiff about interpolation in the tripartite deed, defendant NO.5 avers that the lessee had signed the document by putting the date as 12.10.2001 which was executed on 22.10.2001 and accordingly, the sale is not void in the eye of law. It is prayed by defendant NO.5 that the plaintiff having no cause of action to file the suit in respect of Lot NO.1 property, the same should be dismissed with compensatory cost on the plaintiff. 7. Out of the pleadings of the parties, the following issues were settled for determination. (i) Whether the suit is maintainable? (ii) Whether there is cause of action to file the suit? (iii) Whether the suit is bad for non-joinder or necessary party? (iv) Whether the plaintiff is entitled for 1/2 share out of the suit schedule property and a direction can be given to the defendant NO.1 to partition the suit land by metes and bounds? (v) Whether the sale deed •executed by defendant NO.1 in favour of defendant NO.2 is valid one? (vi) Whether the plaintiff is entitled to decree for means profit of Rs.1 0,000/- per month from the date of alienation of Lot NO.1 property? (vii) To what other relief, the plaintiff is entitled? 8. The learned 2nd Addl. Civil Judge (Senior Division), Bhubaneswar after considering the evidence and materials placed before it, arrived at the conclusion that the plaintiff is not entitled to the relief of partition of the suit property, which he has-prayed for and accordingly dismissed the suit. 9. (vii) To what other relief, the plaintiff is entitled? 8. The learned 2nd Addl. Civil Judge (Senior Division), Bhubaneswar after considering the evidence and materials placed before it, arrived at the conclusion that the plaintiff is not entitled to the relief of partition of the suit property, which he has-prayed for and accordingly dismissed the suit. 9. In this appeal, the present appellant, who was the plaintiff in the Court below challenges the findings of the learned 2nd Addl. Civil Judge (Senior Division) Bhubaneswar on the ground that when the suit properties are ancestral properties of the Plaintiff and Defendant No.1, the learned Court below without applying its juridical mind and without proper appreciation of the evidence and legal issues dismissed the suit which has caused great prejudice to the present appellant. 10. I have gone through the evidence as has been laid in the Court below and also heard the learned Counsel appearing for the appellant as well as the learned counsel for the respondent NO.2 and the learned Addl. Standing Counsel appearing for respondent No.5. The overwhelming evidence on record shows that the Lot NO.1 property was leased out to Rajendra Ram by the Government in General Administration Department in favour of the deceased, the father of the plaintiff on the strength of a registered lease deed dated 29.06.1962 vide Ext. 1 over which the said Rajendra Ram constructed fifteen shop rooms which were let out to different persons. There is also no dispute that after the death of the said Rajendra Ram in the year 1970, the defendant No.1, who is the son of the said Rajendra Ram got the land mutated in his name in respect of Lot NO.1 property and the said certified copy of the record of right has been marked as Ext.2, Similarly, with regard to Lot NO.2 property, there is no dispute that the property appertains to Khata No. 513 and Plot NO.664 also stands recorded in the name of the father of the plaintiff/appellant, namely, defendant NO.1. There is also no dispute that the Lot NO.1 property has been sold by defendant NO.1 to defendant No.2, after obtaining necessary permission from the General Administration Department of Government of Orissa, which was challenged in the suit on the ground that since the said property after the death of the original lessee Rajendra Ram devolved on his son, namely, the father of the plaintiff, the same becomes the ancestra,1 property of the .plaintiff and, therefore, ever the Lot NO.1 and Lot No.2 properties, the plaintiff being the coparcener of his Hindu joint family undivided property, he has coparcenary right over the same. 11. Mr. Mishra, learned Senior Counsel for the appellant very strenuously contended that as per the settled position of law, alienation bf joint family property by a Manager is restricted to the extent except for legal necessity or for the benefit of the family otherwise he can not do so. Besides that, it was also contended that the lease hold property granted in favour of the grandfather of the plaintiff is both heritable and transferable in nature and in that context reliance was placed on a decision of this Court reported in 2011 (II) OLR 431 , Sourindra Narayan Bhanja Deo vs. Member; Board of Revenue, Orissa and others. Besides that, reliance was also placed on two decisions of this Court as reported in 59 (1985) CLT 407, Satyapriya Mohapatra vs. Ashok Pandit, 1993 (I) OLR 187 Sankarlal Verma vs. Smt. Uma Sahoo. Accordingly, it was contended that when without any legal necessity the Lot NO.1 property was sold by defendant NO.1 to defendant No.2, the same is not binding on the plaintiff and in that context reliance was placed on a decision of this Court reported in 70 (1990) C.L.T. 335, Mst. Kasturi Adabasia and others vs. Bishnu Dandasena and others. Accordingly, it was argued on behalf of the -appellant with vehemence that the findings recorded by the learned trial Court cannot be sustained and besides that when the judgment in question is very cryptic and non-speaking one, the same is liable to be set aside. 12. Kasturi Adabasia and others vs. Bishnu Dandasena and others. Accordingly, it was argued on behalf of the -appellant with vehemence that the findings recorded by the learned trial Court cannot be sustained and besides that when the judgment in question is very cryptic and non-speaking one, the same is liable to be set aside. 12. Learned counsel appearing for the respondent Nos.2 and 5, on the other hand, contended that the trial Court has given cogent and detailed reasons while dismissing the suit and there is no reason for interfering with the judgment and decree of the Court below which is under challenge in this appeal and this Court as the Appellate Court is to examine the whole issues involved in the appeal including the points of law and give a finality to the matter. 13. While hearing the appeal, a very interesting point was raised at the Bar as to whether assuming that the grandfather's property was ancestral property in the hands of the father, can the grandson would have an interest in the property, who has acquired the interest in it by birth. Under the Hindu law, it is clear that the moment a son is born he gets a share in the father's property and becomes part of the coparcenary. His right accrues to him not on the death of the father or inheritance from the father but with the very fact of his birth. Normally, therefore, whenever the father gets a property from whatever source from the grandfather or from any other source, be it separate property or not, his son should have a share in that and it will become part of the joint Hindu family of his son and grandson and other members who form joint Hindu family with him. But the question is; is the position affected by Section 8 of the Succession Act, 1956 and if so, how? Under the Hindu Law, the son would inherit the property of his father as 'Karta' of his own family. But the Hindu Succession Act has modified the rule of succession. The Act lays down the general rules of succession in the case of males. There were divergent views in the matter. But the position has been set to rest by the Hon'ble Apex Court in two decisions as reported in AIR 1986 SC 1753 Commissioner of Wealth-tax, Kanpur, etc. vs. Chander Sen etc. The Act lays down the general rules of succession in the case of males. There were divergent views in the matter. But the position has been set to rest by the Hon'ble Apex Court in two decisions as reported in AIR 1986 SC 1753 Commissioner of Wealth-tax, Kanpur, etc. vs. Chander Sen etc. and in the case of Yudhister vs. Ashok Kumar reported in AIR 1987 SC 558 . The Hon'ble Apex Court in the aforesaid two decisions held that Section 8 of the Hindu Succession Act, 1956 indicates the heirs in respect of certain property and Class I of the heirs includes the son but not the grandson. It includes, however, the son of the predeceased son. Under Section 8 of the Hindu Succession Act, 1956, the property of the father who dies intestate devolves on his son in his individual capacity and not as Karta of his family. In the words of the Hon'ble Apex Court in the case of Commissioner of Wealth-tax, Kanpur (supra) is as follows:- "In view of the Preamble to the Act i.e. that to modify where necessary and to codify the law, in our opinion it is not possible when Schedule indicates heirs in Class I and only includes son and does not include son's son but does include son's of a predeceased son, to say that when son inherits the property in the situation contemplated by Section 8 he takes it as Karta of his own undivided family. The Gujurat High Court's view noted above, if accepted, would mean that though the son of a predeceased son and not the son of a son who is intended to be excluded under Section 8 to inherit, the latter would by applying the old Hindu law get a right by birth of the said property contrary to the scheme outlined in Section 8. Furthermore as noted by Andhra Pradesh High Court the Act makes it clear by Section 4 that one should look to the Act in case of doubt and not to the pre-existing Hindu law. Furthermore as noted by Andhra Pradesh High Court the Act makes it clear by Section 4 that one should look to the Act in case of doubt and not to the pre-existing Hindu law. It would be difficult to hold today the property which devolved on a Hindu under Section 8 of the Hindu Succession Act would be HUF property in his hand vis-a-vis his own son; that would amount to creating two classes among the heirs mentioned in Class I, the male heirs in whose hands it will be joint Hindu family property and vis-a-vis son and female heirs with respect to whom no such concept could be applied or contemplated. It may be mentioned that heirs in Class I of Schedule under Section 8 of the Act included widow, mother, daughter of predeceased son etc." 14. Thus, the express words of Section 80f the Hindu Succession Act, 1956 cannot be ignored and the same must prevail. It is necessary to bear in mind the Preamble of Hindu Succession Act, 1956 which states that it was an Act to amend and codify the law relating to intestate succession among the Hindus, with that background the express language which excludes son's son but include son of a predeceased son cannot be ignored and their Lordship's of the Hon'ble Apex Court accepted the views of the Allahabad High Court, Full Bench view of the Madras High Court, Madhya Pradesh High Court and Andhra Pradesh High Court, but did not agree with the view of the Gujurat High Court in the matter. 15. Section 80f the Hindu Succession Act, 1956 lays down the scheme of succession to the property of a Hindu dying intestate. The schedule classified the heirs on whom such property should devolve. Those specified in Class I took simultaneously to the exclusion of all other heirs. A son's son was not mentioned as an heir under Class I of the schedule, and, therefore, he could not get any right in the property of-his grandfather under the provision. The right of a son's son on his grandfather's property during the lifetime of his father which existed under Hindu law as in force before the Act, was not saved expressly by the Act and, therefore, the earlier interpretation of Hindu law giving a right by birth in such property ceased to have effect. 16. The right of a son's son on his grandfather's property during the lifetime of his father which existed under Hindu law as in force before the Act, was not saved expressly by the Act and, therefore, the earlier interpretation of Hindu law giving a right by birth in such property ceased to have effect. 16. It is needless to mention here that Section 8 of the Hindu Succession Act, 1956 confers the right of succession only on the son of a predeceased son and not on a grandson when his father is living at the time of succession and he does not get anything on the ground that he gets a right by birth. 17. Even assuming that the Lot No.1 and, Lot No.2 property are ancestral properties in the hands of defendant NO.1, but because of the specific provisions contained in Section 8 of the Hindu Succession Act, the appellant-plaintiff cannot have any interest in the said properties. Thus, in the instant case, when the father of the plaintiff, namely, defendant NO.1 is alive and when the plaintiff claims that Lot NO.1 and Lot NO.2 properties are the ancestral properties, he cannot seek for any partition of those properties and he cannot have any claim over those properties and cannot seek for relief of partition during the lifetime of his father , i.e. defendant No.1, who is alive now, as the old position has undergone, a radical chance in the law of succession i.e. Section 8 of the 'Hindu Succession Act, 1956 the plaintiff cannot question the alienation of Lot NO.1 property by defendant No. f to defendant NO.2 as the said property devolved on defendant NO.1 in his individual capacity and not as Karta of his family when Rajendra Ram died. 18. Accordingly, the contention of the learned counsel for the appellant since the suit properties are the ancestral properties of the plaintiff, he has right over the suit properties and can maintain the suit for partition is not tenable in the eye of law. The decisions relied upon by the learned counsel for the appellant as has been quoted earlier has no application to the facts of this case. The decisions relied upon by the learned counsel for the appellant as has been quoted earlier has no application to the facts of this case. Very unfortunately this interesting question of law was never raised in the Court below, but when the appeal is before this Court, this Court is duty bound to take into consideration the law governing the field and it is also the settled position of law that a question of law can be agitated at any stage and question of estoppel does not arise at all. 19. The learned Court below though did not consider this aspect but while answering Issue Nos. 4 and 5 the two vital issues has assigned reasons for negativing the claim of the plaintiff seeking partition of the suit properties. 20. In the premises, from the foregoing discussion's 8.nd keeping in background the established position of law as enunciated by the Hon'ble Apex Court in the case of Commissioner of Wealth-tax, Kanpur, (Supra) and Yudhister vs. Ashok Kumar (supra), I am to arrive at the irresistible conclusion that the plaintiff could not have maintained the suit for partition as laid in the Court below and rightly the same has been dismissed. Accordingly, the present appeal being devoid of merit stands dismissed for the reasons assigned by this Court. There is, however, no order as to costs. Appeal dismissed.