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2014 DIGILAW 12 (ORI)

Baishnab Sankhua v. Sankarsan @ Sankar

2014-01-08

S.PANDA

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JUDGMENT S. PANDA, J. : This appeal has been filed by the appellants challenging the judgment and decree dated 29.9.1983 and 07.10.1983 passed by the learned Subordinate Judge, Balasore in O.S. No.163 of 1980-I. 2.The brief facts of the case are that respondent No.1 as plaintiff filed the suit for cancellation of a partition deed executed by him on 30.5.1978, which was obtained by practicing fraud on him in the guise of a Power of Attorney. In the plaint it was pleaded that most of the properties mentioned in ‘GA’ and ‘Gha’ Schedule of the plaint have been divided inequitably. The plaintiff also prayed for a fresh partition declaring his 2/15th share in the ‘Kha’ Schedule, 2/3rd share in the ‘Ga’ Schedule and ½ share in ‘Gha’ Schedule property of the plaint. It is the case of the plaintiff that one Bali Sankhua was the common ancestor, who had five sons namely Baidi, Sadei, Radhu, Sadhu and Maku. Hari is the only son of Baidi and defendant Nos.3, 4 and 5 are the sons of Hari. Sadei had three sons being defendant Nos.6, 7 and 8. Radhu had four sons namely Mani, Dhira, Krushna and Bidyadhar. Dhira and Bidyadhar expired being issueless. Mani had two sons namely Baishnab (defendant No.1) and Purna (defendant No.2) and plaintiff is the son of Krushna. Bidyadhar expired 14 years back (1967) and Krushna expired on 15.7.1979. Plaintiff is the only legal heir of Krushna. After death of Bauli his five sons separated among themselves by dividing the ancestral property and possessed the same accordingly. There is a dwelling house, tank and one plot of ‘Kissam - Sarada’ in the properties mentioned in ‘Kha’ Schedule of the plaint. The said property was possessed separately by way of amicable and convenience. However, there was no partition by metes and bounds and in 1930 Bandobasta (Major Settlement) the said property recorded in favour of defendant Nos. 3, 4, 5, 6, 8, Krushna, defendant Nos. 1, 2, 9, 10 and others. In the said property each branch has 1/5th share and Radhu’s 1/5th share devolved on his sons namely Mani, Dhira, Krushna and Bidyadhar. Dhira expired about 50 years back while leaving jointly with other brothers and he has not married. Accordingly, his share devolved on his three brothers namely Mani, Krushna and Bidyadhar. 1, 2, 9, 10 and others. In the said property each branch has 1/5th share and Radhu’s 1/5th share devolved on his sons namely Mani, Dhira, Krushna and Bidyadhar. Dhira expired about 50 years back while leaving jointly with other brothers and he has not married. Accordingly, his share devolved on his three brothers namely Mani, Krushna and Bidyadhar. Mani while leaving jointly died 40 years back and defendant Nos.1 and 2 are his legal heirs possessing 1/15th share of ‘Kha’ Schedule property of the plaint. Bidyadhar died issueless and his share in ‘Kha’ Schedule property of the plaint devolved on Krushna as his sole legal heir (brother). Accordingly, Krushna had 2/15th share in the said property i.e. his 1/15th share and 1/15th share of Bidyadhar. Therefore, the plaintiff is entitled to 2/15th share in the ‘Kha’ Schedule property of the plaint and defendant Nos.1 and 2 are entitled to 1/15th share in the said property. At the time of Mani’s death defendant Nos.1 and 2 being minor living with Krushna and Bidyadhar. Krushna was serving in Jute Mill at Goruhat in the district of Hoogly and Bidyadhar was working in Calcutta Corporation. Out of their own income Krushna and Bidyadhar purchased property in their name described under Lot No.1 of ‘Ga’ Schedule of the plaint. Plaintiff went to Calcutta at the age of 15 to 16 years and worked in the houses of different persons. Plaintiff does not know how to write Odia but with practice he knows to sign his name in English only. The other properties mentioned in ‘Ga’ Schedule of the plaint acquired in the name of the plaintiff, defendant Nos.1 and 2 along with Bidyadhar and Krushna. It was further pleaded in the plaint that the properties were purchased out of the money supplied by the plaintiff, Krushna and Bidyadhar but as defendant Nos. 1 and 2 were living in village at the time of registration they have included their name in the sale deed. Hence plaintiff is entitled to 2/3rd share in the said property (his 1/3rd and 1/3rd share of Bidyadhar). 2.1Lot No.1 of ‘Gha’ Schedule property of the plaint was acquired from one Duma Behera on 12.3.1969, for which plaintiff has contributed half on the consideration amount whereas defendant Nos.1 and 2 have contributed another half. Hence plaintiff is entitled to 2/3rd share in the said property (his 1/3rd and 1/3rd share of Bidyadhar). 2.1Lot No.1 of ‘Gha’ Schedule property of the plaint was acquired from one Duma Behera on 12.3.1969, for which plaintiff has contributed half on the consideration amount whereas defendant Nos.1 and 2 have contributed another half. 2.2Similarly Lot Nos.2, 3 an 4 of ‘Gha’ Schedule property of the plaint were purchased from Umakanta Panda, Gadadhar and Anadi Behera in the name of plaintiff and defendant Nos.1 and 2 and half of the consideration amount was contributed by the plaintiff, as such he is entitled to half share in the said property also. 2.3Plaintiff and defendant Nos.1 and 2 were living jointly after death of Bidyadhar and Krushna as plaintiff was serving at Calcutta and giving financial help to defendant Nos.1 and 2. In the year 1978 defendant No.5 proposed to sell his property measuring 24 decimals, which plaintiff agreed to purchase and consideration money was fixed at Rs.500/-. Plaintiff entrusted the registration of the deed on defendant Nos. 1 and 2. as they were living jointly. The deed was registered on 30.5.1978 and defendant Nos.1 and 2 persuaded plaintiff to execute a Power of Attorney in their favour to look after the property to which plaintiff agreed. Taking advantage of that defendant Nos.1 and 2 got one deed written, read and explained to the plaintiff as Power of Attorney and got the signature of the plaintiff. Thereafter, the plaintiff went away to Calcutta. In the month of December, 1979 the plaintiff came back and wanted his share from defendants but as they delayed the matter the plaintiff claimed partition. At this juncture they disclosed that the partition deed was registered on 30.5.1978. Thereafter plaintiff enquired into the matter and on 24.1.1980 after obtaining certified copy of the said document came to know that instead of executing a Power of Attorney, a partition deed was registered and his signature has been taken away. He further found that there are wrong recitals in the document and inequitable partition has been made. Hence the suit. 2.4Defendants Nos.1 and 2 filed their joint written statement inter alia stating that since there is a previous partition of the suit property the plaintiff has no cause of action and the suit is not maintainable. He further found that there are wrong recitals in the document and inequitable partition has been made. Hence the suit. 2.4Defendants Nos.1 and 2 filed their joint written statement inter alia stating that since there is a previous partition of the suit property the plaintiff has no cause of action and the suit is not maintainable. Though they have admitted the genealogy but they have stated that as Krushna was unmarried, plaintiff is not the son of Krushna. Bidyadhar married one Gura Dei, who died issueless so with the consent of Mani, Bidyadhar adopted defendant No.2 as his adopted son and he has disclosed in the G.P.F. papers that defendant No.2 is his nominee. After death of Mani, Bidyadhar married for the second time to Mani’s wife Koili, whose name has been reflected as wife of Bidyadhar in the Government papers and Voters’ list. Plaintiff’s parentage is not known. He being an orphan child out of pity Krushna brought him from Goruhat Jute Mill and left him in the care of Koili, as such plaintiff was treated as son of Krushna. For his future maintenance the name of plaintiff was shown as purchaser of different properties and taking advantage of this fact the plaintiff is posing himself as son of Krushna and his heir. Plaintiff has no right, title and interest in ‘Kha’ Schedule property of the plaint as the share of Krushna devolved on defendant Nos.1 and 2. After death of Bidyadhar, his property was devolved on his second wife Koili and defendant No.2, the adopted son. Koili expired in the year 1976 and her property devolved on defendant No.2 alone. They have also denied that the joint family has acquired the property out of the income of Krushna and Bidyadhar. They have further stated that Bidyadhar was frequently coming to the village and looking after the joint family property and defendant No.2 being the adopted son of Bidyadhar was managing the property as per his direction. Plaintiff has passed L.P. School from the Village - Mantiri and was reading in Jagannathpur U.P. School up to Class-V. Thereafter he went to Caluctta to maintain himself. He was not contributing any money to the family rather he was taking money from the family, as such except the properties under Lot No.2, plaintiff had no share in other properties. Plaintiff has passed L.P. School from the Village - Mantiri and was reading in Jagannathpur U.P. School up to Class-V. Thereafter he went to Caluctta to maintain himself. He was not contributing any money to the family rather he was taking money from the family, as such except the properties under Lot No.2, plaintiff had no share in other properties. Bidyadhar’s share does not devolve on Krushna and the land mentioned in ‘Gha’ schedule property was purchased in the name of the plaintiff along with defendant Nos.1 and 2 due to love and affection towards the plaintiff. Therefore, the plaintiff is entitled to 1/3rd share in the said schedule property and he has admitted the said fact in the partition deed. Plaintiff after being married wanted to live separately and in the presence of village gentries the properties were divided according to the decision of the village gentries. At that time defendant No.1 purchased the property from defendant No.5 and plaintiff also wanted to purchase 24 decimals from the said land, which has also been given to him. The sale deed was executed on 30.5.1978 and on the same day partition deed was registered. The plaintiff knows how to read and write Odia. There was no necessity for execution of a joint Power of Attorney in favour of defendant Nos.1 and 2 and the inequitable distribution described in the plaint are not true. The village gentries knowing the status of the plaintiff being a stranger to the joint family allotted the property to him, which was not only accepted by the plaintiff but also he has executed the deed. No fraud has been practiced and the suit is liable to be dismissed. 3.On the above pleadings the Court below has formulated as many as nine issues and some of the relevant issues are : Is Sankarsan (Plaintiff the son of Krushna) ? Is Purna Defendant No.2 adopted son of Bidyadhar ? Is the alleged deed dated 30.5.1978 fraudulent, illegal unconscionable and inequitable ? Has the plaintiff got 2/15th share in ‘Kha’ schedule and 2/3rd share in ‘Ga’ schedule and ½ share in ‘Gha’ schedule suit properties ? The parties have adduced oral as well as documentary evidence in support of their respective pleas. The plaintiff got himself examined as P.W.2 and defendant No.2 got himself examined as D.W.3. Has the plaintiff got 2/15th share in ‘Kha’ schedule and 2/3rd share in ‘Ga’ schedule and ½ share in ‘Gha’ schedule suit properties ? The parties have adduced oral as well as documentary evidence in support of their respective pleas. The plaintiff got himself examined as P.W.2 and defendant No.2 got himself examined as D.W.3. Considering the evidence on record, the Court below in issue Nos.3 and 4 came to the conclusion that Purna-defendant No.2 is not the adopted son of Bidyadhar and he was the nominee only to receive the dues. Further in Issue Nos.5 to 8 the Court below taking into consideration the evidence of Deed Writer and a witness held that nothing has been mentioned in the Registered Deed of Partition regarding allotment of house and homestead as per Amin’s measurement as well as land purchased in the name of the plaintiff. Hence those circumstances show that partition deed was not conscionable one and it has been done at the back of the plaintiff. As such the deed is fraudulent and illegal one and plaintiff is entitled to get the partition of the suit property. 4.Learned counsel appearing for the appellant though raised contention with regard to correctness of the findings of the Court below but he has mainly contended that the allotment of share in respect of ‘Kha’ schedule and ‘Ga’ schedule property was not correct. He further submitted that defendant Nos.1 and 2 being the son of Mani they are entitled to the property of Bidyadhar after his death equally with the plaintiff and allotment of Bidyadhar’s share totally in favour of the plaintiff is not sustainable in law. 5.Learned counsel appearing for respondent No.1 in support of the findings of the Court below submitted that since Krushna is the sole legal heir of Bidyadhar, after death of Bidyadhar his share devolve on Krushna and as Mani died prior to Bidyadhar, Mani is not the heir of Bidyadhar. Accordingly, defendant Nos.1 and 2 are not entitled to get share of Bidyadhar and the Court below rightly allotted the share in favour of the plaintiff. Accordingly, defendant Nos.1 and 2 are not entitled to get share of Bidyadhar and the Court below rightly allotted the share in favour of the plaintiff. 6.After hearing learned counsel for the parties and going through the materials available on record, it appears from Ext.3-the Voters’ list, Ext.4-the Sale Deed, Ext.-2 the Admission Register that Sankarsan-plaintiff is the son of Krushna and defendant’s plea that plaintiff is brought by Krushna and his parentage is not known has no basis. Ext.3, the Voters’ list reveals that defendant No.2 is the son of Mani. Mani died prior to Bidyadhar and Dhira died long since. After death of Bidyadhar, his properties devolve on Krushna. The plaintiff is the son of Krushna and as such is entitled to get the property of Krushna. Accordingly plaintiff is entitled to entire property of Krushna and Bidyadhar. 7.Neither there are materials on record to show that Bidyadhar adopted defendant No.2 nor there any pleadings or evidence disclosing the date, year and time of adoption. Exts.A to E are some of the papers relating payment of dues of Calcutta Corporation where Bidyadhar was serving and the name of Purna was reflected as nominee. 8.Admittedly Bidyadhar predeceased Krushna. On the death of Bidyadhar his property will be devolved as per Section 8 of Hindu Succession Act, 1956 and in absence of Class-1 heir the property will be devolved on the brother as per Section 8(b) of the Hindu Succession Act, 1956 and Krushna being the Class-II heir, he is entitled to entire share of Bidyadhar. Accordingly, the plaintiff being the son of Krushna is entitled to the share of Bidyadhar, which was devolve on Krushna. Mani died much prior to Bidyadhar, therefore, defendant Nos.1 and 2 being the son of Mani, they are entitled to the share of Mani and they being the Category 4 of Class-II heirs, they are coming under Section 8(c) of Hindu Succession Act, 1956 being the brother’s son and are entitled to get 2/15th share of ‘Kha’ schedule property, 2/3rd share of ‘Ga’ schedule and 1/3rd share of ‘Gha’ schedule property. ‘Gha’ schedule property being purchased property defendant Nos.1 and 2 are entitled to get 1/3rd share each. 9.In view of the above, this Court confirms the impugned judgment and decree passed by the Court below. Accordingly the First Appeal is dismissed. Appeal dismissed.