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2014 DIGILAW 778 (ORI)

Kuili Majhiani v. Salia Majhi

2014-11-19

D.DASH

body2014
JUDGMENT The unsuccessful plaintiff has filed this appeal challenging the judgement and decree passed by the learned Sub - ordinate Judge, Mayurbhanj (as it was then) in T.S. No. 33 of 1988, by dismissing the same against the respondents - defendants with cost. 2. For the sake of convenience, for clarity and to avoid confusion, the parties hereinafter have been referred to as they have been arrayed in the Court below. 3. The case of the Plaintiff is that the parties being Hindus are governed by Mitakhsara School of Hindu Law. They being “Santal” by caste belong to the Scheduled Tribe and as such the provisions of Hindu Succession Act. 1956 are not application to them. Common ancestor Fundan Majhi died in a state of jointness both in mess and estate leaving behind six sons namely Madan, Salie, Suna Pitha, Biru and Jura. These six sons continued to remain in joint mess and estate after the death of Fudan. Out of them Salie is living and is defendant no.1. Other sons died one after another leaving behind their legal heirs. Defendant nos.2 and 3 are the sons of Madan. He had two daughters namely Chanamani and Menaka. Defendant no 4 is the son of Pitha who had died also having behind the daughter namely, Thimiki and widow who died thirteen years prior to the suit. Biru died fourteen years prior to the suit leaving behind two daughters namely Rani and Sitamani. Since he had no son his interest in the ancestral property devolved upon other branches of family by way of survivorship. Jura died leaving his widow who is defendant no.5 Suna died thirty two years prior to the suit leaving behind his widow, the plaintiff and four daughters namely Mira, Mani, Sakra and Fulamani. It has further been pleaded that the plaintiff inherited her husband’s interest in the suit properties by virtue of Hindu Women’s Right to Property Act, 1937 which came into operation in 1950 by virtu of Merger Laws Act, 1950 (SIC). Thus the plaintiff filed a suit for partition of the property described in Schedule B and C of the plaint in metes and bounds, paying for allotment of 1/5th share unto herself stating entitlement of 1/5th share for defendant no.2 and 3 jointly ; 1/5th share for defendant no 1; 1/5th share for defendant no.4 and 1/5th share for defendant no. 5. 5. It is stated that the parties are possessing separate particles of land and accordingly separate note of possession with respect of those lands has been made in favour of different branches in the settlement record. The plaintiff after having approached the defendant on several occasions for the purpose of partition of the suit land in metes and bounds when failed as the defendants turned deaf ear to it, the suit has come to be filed. 4. The defendants together contested the suit by filing the written statement, it is stated that the Suna died forty three years prior to the suit and the plaintiff is admitted to be his second wife. It is further stated that after the death of Suna, the defendant no.1 and his brothers and after the death of their brother and their sons specifically defendant nos. 2 to 4 have been maintaining the plaintiff providing her maintenance giving five pauties of paddy per annum. It is further stated that the plaintiff since long has been native of village Podapada and has been residing with her daughter in village Kusumpura and she used to come to take paddy every year and return to daughter’s house. As Suna died without leaving any son and when he was in jointness more particularly forty three years prior to the suit, when in the State Hindu Women’s Right to Property Act, 1937 was not in force, it is asserted that the plaintiff is not entitled to any share over the suit land devolving upon the parties from the hands of the common ancestor. Plaintiff’s possession in respect of any portion of the suit land is stoutly denied. It is alleged that the suit has been filed by the plaintiff in collusion with and at the instance her son-in - law who in connivance with the Settlement Authority has mischievously created the note of submission in the R.O.R with such pleading they pray for non-suiting the plaintiff. 5. On such rival pleading the trial Court has framed as many as seven issues. Out of those the important issue nos.3 and 4; as to whether the plaintiff is entitled to the share as claimed and whether her husband died before the Hindu Women’s Right to Property Act,. 1937 came in force and that too during his jointness. 5. On such rival pleading the trial Court has framed as many as seven issues. Out of those the important issue nos.3 and 4; as to whether the plaintiff is entitled to the share as claimed and whether her husband died before the Hindu Women’s Right to Property Act,. 1937 came in force and that too during his jointness. As it appears the trial Court has rightly taken up these two issues together for decision not only for the reason that these are intertwined but also that the fate the suit hinges upon the answers to the same. 6. Learned counsel for the appellant submits that the answer rendered of the trial Court on above two issues are not based on proper appreciation of the evidence. It is submitted that the trial Court erred in law by rendering a finding that the husband of the plaintiff died at the time prior to the coming into force of the Hindu Women’s Right to Property Act, 1937 in the Ex- State area of Mayurbhanj. It is further submission that the evidence on this score has not been properly appreciated. It is next submitted that already there having been the severance of status of the joint family with possession of different portions of ancestral land remaining with different members including the plaintiff, the trial Court ought not to have denied the right to plaintiff to claim partition. Therefore, it is contended that the trial Court ought to have decreed the suit entitling the plaintiff to 1/5th share over the schedule - B properties. 7. Learned counsel for the respondents on the other hand supports the finding of the Court below as regards the fact that plaintiff’s husband died prior to 26.02. 1950 when Hindu Women’s Right to Property Act, 1937 came into force in the Ex - State area of Mayurbhanj of which the parties are native and where the subject matter of suit situates. It is the submission that the trial Court has done due analysis of evidence and properly evaluated the same in arriving at a conclusion with regard to the time of death of Suna. It is the submission that the trial Court has done due analysis of evidence and properly evaluated the same in arriving at a conclusion with regard to the time of death of Suna. He further contended that in view of evidence on record the trial Court having found that there was no severance of status of the joint family and separate possession of the parties with respect to separate portion of land being not there, particularly the possession as asserted by the plaintiff, there was no option before it but to dismiss of the suit and that having been rightly done, the appeal sans of merit. 8. At this juncture, for the reasons as will be seen from the discussion in later paragraphs, it felt apposite to trace the history as well as to have a short survey with regard to the rights conferred upon Hindu widow under the Hindu Women’s Right to Property Act, 1937 in respect of the interest of their husband in the Hindu joint family. The act puts the widow as a member of the joint family, in place of her deceased husband and the husband’s interest in the joint family properly under Mitakhsara., though undefined vests immediately upon his death on the widow and does not devolve by survivorship. She becomes entitled to the undivided interest of her deceased husband and takes the same interest as her husband and not the same rights as her husband. The Hindu Women’s Right to Property Act. 1973 came into force on 14.04. 1937 except in part B states. After it came into force, in view of the decision of Federal Court in a special reference under Section 213 of Government of India Act; 1935 (1941) FCR 72 wherein it was said that the Act did not operate to regulate succession to agricultural lands in the governor’s provinces or to a mortgagee’s interest in such land, some provinces extended the operation of the Central Act to succession to agricultural lands by passing legislation . So by Amendment Act. i.e Orissa Act - V of 1994 the operation of the Act its application to the Province of Orissa was extended to succession to the agricultural lands. The State of Mayurbhanj, a feudatory State was administered by Sovereign Ruler got merged with the province of Odisha w.e.f. 01.01.1949 and thus became a part of it. So by Amendment Act. i.e Orissa Act - V of 1994 the operation of the Act its application to the Province of Orissa was extended to succession to the agricultural lands. The State of Mayurbhanj, a feudatory State was administered by Sovereign Ruler got merged with the province of Odisha w.e.f. 01.01.1949 and thus became a part of it. In exercise of powers conferred by Section 4 of the Extra Provincial Jurisdiction Act. 1947 (XLVII) of 1947 read with Notification No. 388 - 48 P. dated 31.12.1948 of the Government of India in the Ministry of State, the Government of Odisha was pleased to make “Administration of Mayurbhanj State Order”, 1949 published vide Notification No. 2-A of Government of Odisha, Home Department dated 01.01. 1949 which came into force at once. Under Clause - 5 of the said order the enactments specified in the first column of the schedule annexed thereto so far as circumstances admit and subject to any amendments to which the enactments were for the time being generally subject in the territories to which they extended, applied to the State and any provision of any law in force in the State whether substantive or procedural and whether based on custom and usages or status repugnant to any provision or any of the said enactments, to the extent of repugnancy ceased to have affect from the date of commencement of the Order. It contained a proviso that further modification and restrictions set forth in the said schedule as would be made in the enactment would get applied. By further proviso, the power that were exercised by the Ruler of the State under any of those laws prior to commencement of the Order to be exercised by the Provincial Government or any officer specially empowered in this behalf by the Government. With the next proviso, the powers that were exercised by any authority other than the Ruler of the State under any of those laws prior to the commencement of the Order, in case the authority ceased to function on or after commencement of the Order were to be exercised by the Administrator or by any subordinate authority specially empowered in this behalf by the said Administrator. It may not be out of place to mention that under clause 6 of said Order, the jurisdiction of High Court of Orissa came over the Ex-state area of Mayurbhanj and the High Court of Mayurbhanj ceased to exercise power any more with the cases standing transferred. It also contained a proviso that the enactment as so applied except where the contents of modification referred to therein otherwise required reference to British India, shall be construed as reference to all the Province of India and the Mayurbhanj State ” Thus the State was deemed to be a part of British India so far as the applicability of the act is concerned. Under the schedule in Entry No. 92 the Hindu Women’s Right to Property Act, 1937 as amended by Orissa Act - V of 1944 in its application to the Province of Odisha found mention. Thus, what has been pleaded in the plaint that the said enactment came into force into force by virtue of Merger Laws Act, 1950 in the Ex-State area of Mayurbhanj is not at all correct when also such Act was never there. The Court below as it appears has not made any further inquiry into the aspect and it proceeded on the footing that it came into force w.e.f 26.02.1950 by virtu of Orissa Merger State (Laws) Act, 1950 (Sic). 9. Though the spectrum of history it is seen that after the independence of India, the rules of Odisha States except Mayurbhanj entered into an agreement on 14.12.1947 where under they agreed to transfer the administration of their respective territories to the Government of India w.e.f. 01.01. 1948. The Central Government was empowered to exercise Extra Provincial Jurisdiction over the areas thus ceded by the Extra Provincial Jurisdiction Act, 1947 which came into force on 24. 12. 1947. In exercise of said power conferred under Sub - Section (2) of Section 3 of the said Act and all other powers enabling it in that behalf, the Central Government delegated the power of administration of the said area to the Provincial Government of Odisha. The Government of Odisha in exercise of powers conferred by Section 4 of the Extra Provincial Jurisdiction Act, 1947 made the administration of Odisha States Order, 1948 which was issued vide Notification No.2-A dated 01.01. The Government of Odisha in exercise of powers conferred by Section 4 of the Extra Provincial Jurisdiction Act, 1947 made the administration of Odisha States Order, 1948 which was issued vide Notification No.2-A dated 01.01. 1948 by Government of Odisha in Home Department dividing the merged areas into Revenue Districts and Sub - Division and placing the Revenue Commissioner in-charge of the exercise administration of the State within his jurisdiction subject to the general supervision of the provisional Government. It provided amongst other things for the application of laws mentioned therein Section 4 and for the modification of the tenancy laws provided in Section 10. Later on the areas of Kharswan and Sareikella were transferred to the provision of Bihar for administrative convenience. The ruler of Mayurbhanj entered into a similar agreement with the Central Government ceding its administration to the latter for its administration by the Provincial Government of Odisha. For its. administration, Administration of Mayurbhanj Order 1949 was passed, as already stated. The Merged State Laws Act, 1950 received the assent of Governor on 26.02.1950 and published in extraordinary issue of Odisha Gazette on 03.03.1950. The Act was thus mainly to bring uniformity in so far as operation of laws in the Merged States. This Act was enacted to extend certain Acts and Regulations to certain areas administered as part of the Province of Odisha and this 'Province' was substituted by 'State' by virtue of Adoptation of Laws Order, 1951. By Section 4 of the Act, when all the Acts and Regulations specified in the schedule were extended to and came into force in the areas merged in the absorbing State of Odisha and administered as part thereof and so much any of the said Acts and Regulation as relate to matters with respect to which the State Legislature has power to make laws subject to such modifications or amendments as set forth in the said schedule were extended and brought into force in all such areas referred to in the merged States. Similarly by Section 5 of the Act, an act, regulation or other law corresponding to an Act or Regulation specified in the Schedule whether by virtue of the Extra Provincial Jurisdiction Act applying that Act or Regulation was by virtue of any other legislative power, such corresponding laws ceased to have effect to the extent to which the laws relates to matters with respect to which the State Legislature has powers to make laws from the commencement of the said Act. This Act replaced the Odisha Merged States (Laws) Ordinance, 1949. In its schedule the Hindu Women’s Right to Property Act,. 1947 as subsequently amended in its application to the Province of Odisha again found mentioned. So when in the Ex - State of Mayurbhanj by Administration of Mayurbhanj Order, 1949, the Hindu Women’s right to Property Act,. 1937 was already brought into force it is incorrect to say that it came into force by virtue of provision of Orissa Merged States (Laws) Act, 1950 w.e.f. 26. 02. 1950. The plaint and the judgment being given a reading are found to contain this glaring mistake. When due care and pain has not been taken in ascertaining all these facts while drafting out the plaint, the Court has also failed in its duty in examining the correctness by at least looking at the enactments and most interestingly an enactment which was never in existence has been referred to. Be that as it may with above I put a stop to it here. 10. The Hindu Women’s Right to Property Act, 1947 brought about a far reaching change in the law of succession under Hindu Law, By virtue of Section 3 (3) of the Act the Hindu Widow along with the male issue of the deceased husband if he is governed by Mitakshara school of Hindu law was conferred with the right to succeed to his property equally with the male issue. However, the interest of the property of such widow remained a limited one. The widow was not given the right of disposition of the property except for religious, charitable and other purposes for legal necessity etc. However, the interest of the property of such widow remained a limited one. The widow was not given the right of disposition of the property except for religious, charitable and other purposes for legal necessity etc. Prior to that the widow was a maintenance holder and had no right to succeed to the interest of her husband in the joint family property on the death of her husband and for the said purpose of maintenance/right was there to put a charge over the interest of her husband over the said property. With such right, the widow got the right by virtue of Section 3(3) of the Act to claim partition for carving out the share of her husband. 11. In case of “Radhi Bewa and Another Vrs. Bhagwan Sahoo and Others’, AIR 1951 Orissa” 378, the operation of the Act was held to be retrospective. However, lastly in Full Bench decision of this Court in case of Moni Dei Vrs. Hadibandhu Patra, AIR (1955) Orissa 73, it was decided that the earlier decision was erroneous and it was wrongly so decided. The Full Bench laid down that the provisions of the Act have no retrospective operation so as to apply to the case of a widow whose husband had died prior to the commencement of 1937 Act. Next, came the decision in case of “Eramma VRs. Vernupanna and Others”, AIR 1966 SC 1879 . It has been held therein in the facts of the said case that as at the time of death of appellant’s husband, the Act of 1937 had not come into force and so when Hindu Succession Act, 1956 came into force, the appellant have no manner of title to the properties and the Hon’ble Supreme Court further held that even though the appellant was in possession of the property that fact alone was not sufficient to attract the operation of Section 14 of Hindu Succession Act. In case of “Bhaskar Rout and Others Vrs. Rambha Bewa and Others’, AIR 1974 Orissa 74, this Court found the widow to be a pre-Act widow and so held to have no interest in the property and the share of her husband to have passed by survivorship to other coparceners. It was further held that a pre-Act widow would only be a maintenance holder and will have no right over the coparcenery property. It was further held that a pre-Act widow would only be a maintenance holder and will have no right over the coparcenery property. The position has been reiterated in case of “Duli. Prusty and another Vrs. Ketaki Prusty and another’, AIR 1994 Orissa 10. In case of “Controller, Estates Duty, Madras Vrs. Alladi Cuppuswamy, AIR 1977 SC 2069 ; while dealing with the character of interest which a Hindu Widow gets by way of a statutory provision contained in 1937 Act, it has been observed that there can be no doubt that prior to the passing of the 1937 Act, the Hindu women had no right or interest at all in a Hindu coparcenery. She was neither a coparcener nor a member of the coparcenery nor she had did any interest on it except the right to get maintenance. She also have no right to demand partition of the coparcenery property after the death of her husband. Next, in the decision of the Hon ‘ble Apex Court in N. Jayalaxmi Ammal and another Vrs. R. Gopal Pathan and another, A.I.R. 1995 SC 995, the view has been expressed that the burden of proof rests on the plaintiff who are successors of the widow to prove that the husband died after coming into force of the 1937 Act and the widow obtained the undivided half right in the property as per 1937 Act. Finding that this fact has not been proved by the plaintiff, the Hon ‘ble Court came to the conclusion that the widow was not shown to have inherited the undivided half share of her husband in the property and she was incompetent to convey any interest in the suit property. 12. On the rival pleadings the trial Court as it is seen has at the outset taken up for consideration to find out as to whether Suna died prior to 26.02.1950 which should have been 01.01.1949 or thereafter which touches the foundation of plaintiff's claim. The trial Court has made the evaluation of evidence and’ has arrived at a conclusion that Suna’s death was prior to the date and plaintiff is thus a pre-Act widow. This Court in seisin of the first appeal is under legal obligation to re-appreciate the evidence on this score in order to examine the sustainability• of said finding on issue nos. This Court in seisin of the first appeal is under legal obligation to re-appreciate the evidence on this score in order to examine the sustainability• of said finding on issue nos. 3 and 4 keeping in mind the rival submission as advanced and the correct date. 12(a). P. W.1 has deposed on oath in the year 1991 that Madan died first whereafter Suna and then Pitha. According to him, Pitha died forty years back. So his evidence is on the point that Suna died more than forty years and it can be roughly said to be prior to the year 1951. Next, P.W.3 has stated that Madan’s death had taken place fifty years back and Suna died five years thereafter i.e. forty five years prior to his deposition. Plaintiff has came to depose as P.W.6 she has stated to have married Suna when she was aged around fourteen to fifteen years and only after three to four years of marriage Suna died. When her evidence was recorded she has disposed her age to be sixty years. So her evidence is definite on the point that Suna died prior to the year 01.01.1949 and the same clearly gives a death blow to the case of plaintiff that Suna's death 32 years prior to the filing of the suit that is in or around the year 1956. With such clinching oral evidence from the side of the plaintiff cutting across her case, still she has not left to attempt in order to catch the straw while being drowned. In this attempt, the School Admission Register of her only daughter Fulamani has been pressed into service that has been mark as Ext.1 and also counter foil of Transfer Certificate Ext.2 wherein Fulamani birth finds mention as 17.11.1954. So from this strength is derived that Suna’s must have been during a year before. But the Court below has looked upon this Ext.l with suspicion and as a manipulated one as it contains the over writings visible to the naked eye. More particularly with respect of the date of birth and the age of taught. So from this strength is derived that Suna’s must have been during a year before. But the Court below has looked upon this Ext.l with suspicion and as a manipulated one as it contains the over writings visible to the naked eye. More particularly with respect of the date of birth and the age of taught. The teacher present at that time has not been examined and the Headmistress who has proved the admission Register has no personal knowledge when such over writings have gone un-explained viewing it with general tendency on the part of the parents or guardians to lower the age of the children while putting them in the school the Court below has discarded such document holding it to be unworthy of credence to solely base such an important finding and that too out weighing the clinching oral evidence. Of course this tendency of parents or guardians in lowering the age of children cannot be taken to be the universal phenomenon and when the documents is free from suspicion the Court below is free to take it into consideration with other evidence. Another disturbing feature stands here which cannot be over looked. As per the evidence of P.W.3, the maternal uncle of Fulamani who was guardian was living then and he has been withheld from the witness box although he would have been the best witness to dispose with regard to these facts and also in removing the said suspicion. The plaintiff has provided no explanation whatsoever so to why he was not made to stand as a witness to unfurl the truth. So for that adverse inference squarely stands to be drawn. Thus even on independent assessment of evidence, this Court do not find any justifiable reason whatsoever to differ with the trial Court, when it has eschewed Ext.I and 2 from consideration, For the aforesaid discussion this Court affirms the said finding. 13. Coming to the evidence of possession in support of the case of severance of status, the overwhelming evidence from the side of the defendants remain on the score that plaintiff, had been residing outside since the death of Suna. No such acceptable evidence is thereon record to show her physical possession. In the absence of any such direct evidence the record of right simply containing note to possession which is seriously challenged cannot lead to render a finding on that score. No such acceptable evidence is thereon record to show her physical possession. In the absence of any such direct evidence the record of right simply containing note to possession which is seriously challenged cannot lead to render a finding on that score. Thus, the answer to issue no.2 as has been rendered against the plaintiff is hereby confirmed. 14. To sum up, in view of the admitted genealogy, with the findings that Suna died prior to the coming Hindu Women’s Right to Property Act, 1937 in the Ex State area of Mayurbhanj where the properties situate. and where’ the parties are domiciled and thus the plaintiff being pre-Act widow with the claim of severance of status as pleaded from the side of the plaintiff being negatived, the undivided interest of Suna in the joint family property devolved upon the surviving members of the coparcenary by way of survivorship. 15. Having concluded as above, a question strikes to mind as to if the plaintiff, for the aforesaid would be simply non-suited for the relief claimed or if she can be made entitled to the claim of maintenance. Provision of Order 7, Rule 7 CPC clearly empowers the Court to grant proper relief according to the circumstances of the case. Such power is wide enough to grant relief of general nature or other relief. But it has to be read in the context of the plaint averments and the cause of action made therein. The test is to see whether the defendant will be taken by surprise or if the parties knew the case which had to be tried. The relief can always be granted even if not prayed if it is not inequitable to do so and it should not be larger than what prayed for. The rule is rooted in a larger principle, namely that on the one hand, no party at the trial should be taken by surprise and, on the other, in case of an alternative relief, the same should not be such as to constitute any embarrassment, at least to the party pleading it. 16. In this case the defendants have pleaded that they were giving paddy annually in lieu of maintenance thereby projecting a case that the plaintiff was to get so which is the right of a pre-Act widow. 16. In this case the defendants have pleaded that they were giving paddy annually in lieu of maintenance thereby projecting a case that the plaintiff was to get so which is the right of a pre-Act widow. So, absolutely there is no difficulty in the present case to pass a decree for maintenance to be paid by the defendants from out of the Hindu joint family property. The question of defendants being put to surprise does not arise when also the relief is much lesser than claimed and as an alternative it will not at all be an embarrassment to the parties. Thus in the instant case in my considered view such a relief is permissible to be granted. 17. As regards the quantum of maintenance for a Hindu widow the leading decision of the Privy Council in “Mt. Ekradeshwari Bahuasin vrs. Homeswar Singh, AIR 1929 PC 128 , has laid down the various factors to be taken into consideration in fixing maintenance. I am tempted to quote the same. “Maintenance depends upon gathering together of all the facts of the situation, the amount of free estate, the past life of the married parties, a survey of the conditions, necessities and rights of the members, or a reasonable view of change of circumstances possibly required in the future regard being of course had to the scale and mode of living, and to the age, habits, wants and class of life of the parties. In short, it is out of a great category of circumstances, small in themselves, that a safe and reasonable induction is to be made by a Court of law in arriving at a fixed sum.” This again cannot remain static and has to vary regard being had to the increase and decrease in the total income from the joint family property but also to the additions to the burden on the family when the abnormal increase in the cost of living in the present days is too notorious: It has to be borne in mind that the position of a maintenance holder cannot be equated to the position of a co-sharer in all respects and she cannot claim any increase in the maintenance in the same proportion in which a co-sharer may claim an increase in his share if the number of other co-sharers gradually dwindles down. The limitation of course, remains that the maximum maintenance which a widow can claim cannot exceed the share which her husband would have had if he had lived. This should be the ceiling. 18. In the instant case, looking at the extent of property with their classification and viewing all those factors in the light of aforesaid discussion, this Court declare the plaintiffs right to maintenance at Rs.5,000/- per annum and one fifth of the properties described in schedule ‘B’ attached to the plaint except ten plot numbered as 135, 136, 137, 193/316, 241, 242, 243, 244, 245 and 246 are made subject to the charge for securing the maintenance with effect from the date of institution of suit i.e 31.03.1988. 19. In the wake of aforesaid, the appeal succeeds in part and in the circumstances without cost. The dismissal of the suit for partition as done by trial Court while being confirmed, the . plaintiffs right to maintenance as indicated in the foregoing para is hereby declared and decreed with the other stipulations as stated above. Appeal succeeds in part.