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2014 DIGILAW 658 (ORI)

Kasinath Nayak v. Nisamani Nayak

2014-09-29

B.K.NAYAK

body2014
JUDGMENT : B.K. Nayak, J. 1. In this Writ Petition, the Petitioner prays for quashing the Order Dated 02.05.1997 under Annexure-16 passed by the Commissioner, Consolidation, Cuttack in Revision Case No. 1897 of 1995 with a further declaration that the gift deeds bearing Nos. 2193 dated 14.10.1988, 1116 dated 25.05.1988, 709 dated 05.04.1988, 1709 dated 01.08.1988 executed by Opp. Party No. 1 in favour of Opp. Party Nos. 2 to 6 are void & the donees thereunder do not derive any title to the property in question. Admittedly the disputed property appertaining to current settlement (1931) Khata No. 16 in mouza-Puranaodapada in the district of Jagatsinghpur was the ancestral property of one Bhagbat Nayak & stood recorded in the names of his two sons, Raghu Nayak & Laxman Nayak jointly in the current settlement after the death of Bhagabat. Raghu's son was Ramchandra. Petitioner-Kasinath is the son of late Ramchandra. Laxman had only daughter, Nisamani, the present Opp. Party No. 1 (since deceased & substituted by her L.Rs). Nisamani has four sons namely Gouranga, Harihar (Opp. Party No. 2), Taranisen & Gopabandhu (Opp. Party No. 3). Opp. Party No. 4 is the son of Gouranga & Opp. Party Nos. 5 & 6 are the sons of Taranisen. Following genealogy gives the relationship of the parties inter se. 2. It is the case of the Petitioner that Laxman died in jointness with his brother Raghu in the year 1947 leaving behind his only daughter Nisamani (Opp. Party No. 1) & his wife had already predeceased him. Laxman having died prior to the enforcement of Hindu Succession Act, 1956, his undivided interest in the disputed joint family property devolved upon his brother, Raghu by way of survivorship, which was later inherited by Raghu's son, Ramchandra & after him by the Petitioner. Laxman having died in 1947, Nishamani got no right over the ancestral joint family property. It is further stated by the Petitioner that part of the disputed property was erroneously recorded in the name of Opp. Party No. 1 separately & some parts were recorded in the names of the Petitioner & Opp. Party No. 1 jointly in the Major Settlement Record of Right of the year 1985, though Opp. Party No. 1 had at all no interest in such property. Taking advantage of such wrong recording, Opp. Party No. 1 gifted some properties to Opp. Party Nos. Party No. 1 jointly in the Major Settlement Record of Right of the year 1985, though Opp. Party No. 1 had at all no interest in such property. Taking advantage of such wrong recording, Opp. Party No. 1 gifted some properties to Opp. Party Nos. 2 to 6, who are her sons & grandsons, vide registered gift deed Nos. 2193 dated 14.10.1988, 1116 dated 25.05.1988, 709 dated 05.04.1988 & 1709 dated 01.08.1988. Land Register during consolidation operation having been prepared in respect of some of the disputed properties in the names of the Opp. Parties, the Petitioner filed objection Case Nos. 3878/1388, 3784/1294, 3820/1330, 3840/1350, 3819/1329, 3842/1352 & 3839/1349 of 1990 before the Consolidation Officer-Opp. Party No. 7 for deleting the names of Opp. Parties & for recording the same exclusively in the name of the Petitioner/objector. Opp. Party Nos. 1 to 6 contested the Objection Cases by filing written objection vide Annexure-5 contending that Laxman Nayak died in the year 1957 & not in the year 1947 & therefore, the interest of Laxman Nayak in the disputed property did not devolve by way of survivorship on Laxman's brother Raghu, but was succeeded by Opp. Party No. 1, the daughter of Laxman. It is alleged by the Petitioner that the Consolidation Officer without taking any evidence, & without giving any opportunity of hearing to the Petitioner & relying upon his own enquiry report dated 03.02.1992 dismissed the objection cases by his common Judgment dated 03.02.1992 passed in Objection Case No. 3878 of 1991. Copy of the Judgment of the Consolidation Officer passed in Objection Case No. 3784/1294 of 1990 has been filed as Annexure-8. During the pendency of the objection cases before the Consolidation Officer, the date of death of Laxman Nayak having been disputed by the parties, the Petitioner initiated Misc. Case No. 80 of 1991 before the Executive Magistrate, Jagatsinghpur under Section 13(3) of the Birth & Death Registration Act, 1969 for issue of death certificate in favour of Laxman Nayak. The present Opp. Party No. 1 also appeared in the said misc. case. The Executive Magistrate got the matter enquired through the Tahasildar, Jagatsinghpur, & allowed the misc. case on contest holding that Laxman Nayak died on 18.01.1947 & accordingly directed the Registrar of Birth & Death, Raghunathpur to register the date of Laxman Nayak accordingly & to issue death certificate. Party No. 1 also appeared in the said misc. case. The Executive Magistrate got the matter enquired through the Tahasildar, Jagatsinghpur, & allowed the misc. case on contest holding that Laxman Nayak died on 18.01.1947 & accordingly directed the Registrar of Birth & Death, Raghunathpur to register the date of Laxman Nayak accordingly & to issue death certificate. Challenging the order of the Executive Magistrate passed in Misc. Case No. 80 of 1991 & the death certificate of Laxman Nayak, Opp. Party No. 1 filed OJC No. 9073 of 1995 before this Court & the said Writ Petition was dismissed on merit by Order Dated 05.09.1996 & a subsequent misc. case filed for recalling the said dismissal order was also dismissed. Again for the self same cause of action Opp. Party No. 1 filed a second Writ Petition bearing OJC No. 11648 of 1996, which was also dismissed by Order Dated 14.03.1997 in view of the dismissal of the earlier Writ Petition. Annexures 14 & 15 are the orders passed in OJC No. 9073 of 1995 & OJC No. 11648 of 1996. 3. Challenging the order of the Consolidation Officer passed in objection cases, the Petitioner filed appeals bearing Consolidation Appeal Nos. 88 to 93 of 1992 before the Deputy Director, Consolidation,. Jagatsinghpur. Before the Appellate authority, the Petitioner also produced the death certificate of Laxman. Upon hearing both the parties & considering all the materials, the Deputy Director, Consolidation allowed the appeals by his Judgment dated 31.10.1995 holding that Laxman died in 1947 & therefore, Opp. Party No. 1 was not entitled to inherit the properties left by him by way of succession, which devolved on Raghu by way of survivorship. 4. Aggrieved by the aforesaid Appellate order of the Deputy Director; Consolidation, Opp. Party No. 1 filed Consolidation Revision No. 1897 of 1995 before the Commissioner, Consolidation, Orissa, Cuttack-Opp. Party No. 9. By his Judgment dated 02.05.1997, the Commissioner, Consolidation allowed the revision holding that under the Hindu Women's Right to Property Act, 1937, Nishamani is entitled to inherit her father's property through her mother & accordingly set aside the Appellate order passed by the Deputy Director, Consolidation. 5. It is the submission of the Learned Counsel for the Petitioner that wife of Laxman Nayak had pre-deceased him & that Opp. 5. It is the submission of the Learned Counsel for the Petitioner that wife of Laxman Nayak had pre-deceased him & that Opp. Party No. 1 at no point of time claimed succession to her father Laxman Nayak through her mother. But on the other hand, her specific case all through is that her father died leaving behind her as his only heir & successor. It is therefore, the submission of the Learned Counsel that the revisional order passed by the Commissioner making out a third case that Laxman's widow acquired limited interest in the property as per provision of Hindu Women's Right to Property Act, 1937 is illegal & unsustainable. 6. A counter affidavit has been field on behalf of Opp. Party Nos. 1 to 6 only reiterating the stand taken by Opp. Party No. 1 before the Consolidation Officer & further supporting the findings of the Commissioner, Consolidation in the impugned revisional order that after the death of Laxman Nayak in 1947 his widow acquired limited interest over the disputed land left by Laxman & after coming into force of the Hindu Succession Act, 1956, Opp. Party No. 1 succeeded to the property. 7. Undisputedly the property in question was the ancestral Joint family property of Petitioner's father, Raghu & Opp. Party No. 1's father, Laxman Nayak. There is also no dispute that Laxman Nayak died in the year 1947 in jointness. The Consolidation Commissioner in his revisional order also accepted the position that Laxman Nayak died in 1947. At no point of time, it has been claimed by Opp. Party No. 1 that wife of Laxman Nayak was alive at the time of his death. On the contrary, she claimed that her father died leaving her as the only heir & successor. Therefore, it was not open to the Commissioner, Consolidation to make out a third case holding that the widow of Laxman acquired limited interest over the disputed land left by her husband. The Commissioner has failed to take note of the plea advanced by Opp. Party No. 1 throughout the proceeding that her father died leaving behind her as the only legal heir & successor. Had the wife of Laxman Nayak been alive at the time of his death Opp. Party No. 1 would definitely have taken the plea to that effect. The Commissioner has failed to take note of the plea advanced by Opp. Party No. 1 throughout the proceeding that her father died leaving behind her as the only legal heir & successor. Had the wife of Laxman Nayak been alive at the time of his death Opp. Party No. 1 would definitely have taken the plea to that effect. Keeping in view the pleas raised by the parties before the Consolidation forum it must, therefore, be held that Laxman Nayak died in the year 1947 in jointness with his brother, Raghu, leaving his only daughter, Nishamani (Opp. Party No. 1). Therefore, Opp. Party No. 1 being a daughter, whose father died prior to Hindu Succession Act, 1956 came into force, could not succeed to her father's interest in joint family property. In the aforesaid analysis, the impugned revisional order under Annexure-16 is illegal & unsustainable &, therefore, I quash the same & restore the Appellate order (Annexure-13) passed by the Deputy Director, Consolidation. Consequently, it is held that the gift deeds executed by Opp. Party No. 1 in favour of Opp. Party Nos. 2 to 6 in respect of the disputed properties do not convey any title to the donees. The Writ Petition is accordingly allowed. No costs. Send back the revision case record to the Commissioner, Consolidation, Cuttack.