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2016 DIGILAW 1007 (ORI)

Malli Sahuani @ Sahu v. Khadali Swain

2016-11-01

D.DASH

body2016
JUDGMENT : 1. The unsuccessful plaintiffs in the court below have filed this appeal challenging the judgment and decree passed by the learned Civil Judge (Sr.Divn.), Bhanjanagar in C.S. No. 26 of 2003 dismissing their suit. 2. For the sake of convenience, in order to bring in clarity and avoid confusion, the parties hereinafter have been referred to as they have been arraigned in the trial court. 3. Plaintiff no. 1 is the mother of plaintiff no. 2. They filed the suit seeking declaration that the Will said to have been executed by Mahadei bequeathing the suit land in favour of Sita Swain, the wife of defendant no.1 as null and void, not acted upon and binding on them and so also the consequential recording of the suit land in the consolidation operation in the name of said Sita with further declaration that the sale deeds executed by defendant no.1, the husband of Sita transferring the suit land in favour of defendant nos. 13, 14 and 15 are void. They also prayed for declaration of their right, title and interest over the suit land, confirmation of possession and in the alternative for recovery of possession followed by permanent injunction. 4. Plaintiff no. 1 is the widow of Arjun Sahu, being his second wife. The suit properties were purchased by Arjun Sahu under different sale deeds in the name of his first wife, Mahadei. Since no child was born to Arjun through Mahadei, Arjun married the plaintiff no. 1 again. So it is said that in order to appease Mahadei, the properties were purchased in her name when Mahadei had no source of income. Therefore the properties are said to be the absolute property of Arjun purchased benami in the name of his first wife Mahadei. The defendant no. 1 is Arjun’s sister’s son and he had no paternal property. It is said that at times he was coming to the house of Arjun and assisting him in the cultivation work. Thus it is said that the purchase of the properties in the name of Mahadei being known to him, he started to make plan for grabing the same. It is stated that since Mahadei was very much annoyed with Arjun for his second marriage, this defendant no. 1 took advantage of it and became very close coming to the confidence of Mahadei. It is stated that since Mahadei was very much annoyed with Arjun for his second marriage, this defendant no. 1 took advantage of it and became very close coming to the confidence of Mahadei. The allegation remains that on 18.03.1978, this defendant no.1 influencing Arjun created a registered deed of acknowledgement of adoption in his favour that he had been adopted by Arjun and Mahadei. This was not within the knowledge of Arjun. So subsequently when he came to know about it, he cancelled it. It is also next stated that in spite of such cancellation believing the document to an authority in favour of Khadali to look after the land and family affairs, he had been so permitted by the defendant no. 1. The next allegation comes that in order to grab the property standing in the name of Mahadei, said defendant no. 1 again managed to create a registered Will on 30.1.1979 wherein Mahadei purported to have bequeathed the suit land in favour of Sita Swain, the wife of defendant no. 1 describing her status as her daughter-in-law. It is alleged that the defendant no. 1 created the Will without the knowledge of Mahadei and hatching a plan got it registered although it was known to all that Mahadei had no absolute right over the property. On the basis of this Will after death of Mahadei, the defendant no. 1 made further progress in getting the record of right of the property covered under the said Will corrected and the recording was accordingly obtained. In the year 1986 Arjun received a notice and then appeared. It is alleged that the consolidation officer without due enquiry passed the order for change of recording basing on that fake Will without inviting any objections. In the meantime, said Arjun by a registered gift deed had gifted the land measuring Ac.1.08 decimals to the plaintiffs and delivered possession of the same. There was an appeal against the change of land record on the basis of the Will by the consolidation authority and that did not succeed. So a revision was filed wherein the order of the original authority confirmed by the appellate authority remained uninterfered with. It is stated that the consolidation authority erroneously placing the reliance on the fake Will created by defendant no. So a revision was filed wherein the order of the original authority confirmed by the appellate authority remained uninterfered with. It is stated that the consolidation authority erroneously placing the reliance on the fake Will created by defendant no. 1 in favour of his wife without the knowledge of Mahadei, did so which is having no legal force. Side by side, it has been placed that the defendant no. 1 on the claim of adoption, has also filed a suit claiming to 2/3rd share over the properties of Arjun with further prayer of the cancellation of the registered sale deed executed by Arjun in favour of plaintiff no.2. The suit having been dismissed, the first appeal filed by the defendant no. 1 is pending. 4. The defendant no. 1, 13, 14 and 15 having taken the same stand admit the plaintiff no. 1 to be the second wife of Arjun and plaintiff no.2 to be their daughter. They dispute the claim of the plaintiffs and state that they are not the absolute owners of the property left by Arjun. It is again asserted that Arjun having no male issue had kept the defendant no. 1 who is his nephew (sister’s son) in his house to look after the family properties and he was subsequently adopted by Arjun and Mahadei by observing all required formalities including ‘datta homam’ and other ceremonies. The said adoption is also said to have been deriving support from the registered deed dated 18.3.78 which has come into being later. It is stated by them that the suit property has been purchased by Mahadei from out of her sridhan property and Arjun had not contributed anything for the purpose. It is further stated that Mahadei at the time of marriage had separate fund of her own which she had utilized for acquiring the property. Since Mahadei was having great love and affection towards defendant no. 1, on 30.1.79 she voluntarily executed the Will in favour of the wife of defendant no. 1 and got it registered. It is stated that the Will is genuine and valid and the consolidation authority basing upon the same have rightly recorded the suit land covered under the Will in favour of Sita. After the death of Sita the defendant no. 1 as her husband being competent to transfer the land has done so in favour of defendant nos. It is stated that the Will is genuine and valid and the consolidation authority basing upon the same have rightly recorded the suit land covered under the Will in favour of Sita. After the death of Sita the defendant no. 1 as her husband being competent to transfer the land has done so in favour of defendant nos. 13, 14 and 15. Here also the gift deed standing in favour of plaintiff no.2 has been challenged. 5. On such rival pleadings, the trial court framed as many as 12 issues. First of all going to take up issue no.(v) concerning the Will dated 30.1.79, the answer has been that it is a valid Will duly executed by Mahadei as decided by the consolidation authority who were competent to so adjudicate and decide, which is no more open to be decided once again. Then going to issue no. (vii), the finding has been recorded that the preparation of the record of right in the consolidation operation has been rightly made and consequentially, the sales made by defendant no. 1 have been upheld. In view of these findings, the gift deed in favour of plaintiff no. 2 in respect of land under Khata no. 217 has been found to be invalid whereas it has been found valid in respect of the property covered under Khata no. 1. The trial court has also recorded the finding that the challenge to the Will in the suit is barred by time. Consequentially, the answers to the other issues having been given, the suit has been dismissed. 6. Learned counsel for the appellants submits that the finding of the trial court upon the Will is wholly unsustainable. It has failed to take into consideration that when said Will has been on the assumed fact of adoption of defendant no. 1 and as such clothing the status upon the beneficiary as the son’s wife (putrabadhu) and since that adoption has not been proved and in fact has been held in the negative in Title Suit No. 23 of 1987, the Will ought to have been eschewed from consideration simply for that reason. It is also his submission that the evidence with regard to execution of the Will are not at all satisfactory. It is also his submission that the evidence with regard to execution of the Will are not at all satisfactory. According to him, the consolidation authorities have no jurisdiction to decide the issue with regard to genuineness and validity of the Will and therefore, the record of right prepared in the consolidation operation holding the Will to be the valid and genuine cannot sustain in the eye of law being dependent upon the finding on the disputed Will that whether there has been a valid bequeath of the property covered under it by Mahadei in favour Sita. Going to the merit, placing the evidence, he contends that the finding on all the crucial issues ought to have been recorded in favour of the plaintiffs and the suit accordingly ought to have been decreed by the trial court. 7. Learned counsel for the respondent nos. 1, 13, 14 and 15 submits all in favour of the findings recorded by the trial court. He first of all contends that Arjun Sahu, the husband of Mahadei having admitted before the consolidation authority regarding valid execution of the Will, the consolidation authority accepting the said Will to be genuine and valid has rightly acted upon it. Therefore, it is his submission that here it cannot be said that no jurisdiction was vested with the consolidation authority to record the suit land on the basis of the Will which does not mandatorily require probate in the area where the property situate and where the testatrix was last residing. So also he contends that the consolidation authority has examined the Will from all angles as a document of title and that has been the right approach and within the jurisdiction vested under the statute. According to him, the recording of the land having thus been made, the same is no more open to challenge in a later suit. He next contends that the question of adoption of defendant no. 1 does not have any bearing in this suit which solely revolves round the Will. It is his contention that having regard to the objectives of the enactment i.e. Orissa Consolidation of Holding and Fragmentation Land Act, 1972, this particular nature of dispute with which we are concerned being the question of right, title, interest and liability in the land the consolidation authorities were competent to adjudicate and decide. It is his contention that having regard to the objectives of the enactment i.e. Orissa Consolidation of Holding and Fragmentation Land Act, 1972, this particular nature of dispute with which we are concerned being the question of right, title, interest and liability in the land the consolidation authorities were competent to adjudicate and decide. He contends that when the Will has been projected as a document of title in order to decide the right, title and interest of the land, the consolidation authority has rightly examined the Will in the touchstone of the provision of law. Thus, according to him, it is not open to challenge in view of the legal bar provided under section 51 read with section 4(4) of the Act having been done during the period when the civil court had no jurisdiction to decide the same. According to him, the trial court has thus not committed any error by going to say that the issue is no more open for adjudication and decision afresh. Therefore, he argues that the appeal has to fail since the trial court has also further found that the fraud as alleged by the plaintiffs has not been established. 8. The present suit with the reliefs as claimed centers round the controversy as regards the Will said to have been executed by Mahadei, bequeathing her properties in favour of Sita, the wife of defendant no.1. At the cost of repeatation, it may be stated here that basing upon this Will, the property covered under it have been recorded during consolidation operation in the name of said Sita and that having been challenged in appeal and revision has yielded no fruitful result in getting it upset. 9. The trial court has recorded a finding that said aspect of validity of the Will is no more open to challenge. This is said in view of the provision contained in section 51 of the OCH & PFL Act and banking upon it. The challenge in this suit is as regards the execution and attestation of the said Will on the ground that it had not been so executed by Mahadei and its a created one. During consolidation operation, this Will had been projected as the document of title and right over the property had been claimed on that basis. 10. The challenge in this suit is as regards the execution and attestation of the said Will on the ground that it had not been so executed by Mahadei and its a created one. During consolidation operation, this Will had been projected as the document of title and right over the property had been claimed on that basis. 10. At this place, it be stated that the Testatrix was a native of the part of the erstwhile district of Ganjam which now after bifurcation has been Gajapati. The properties situate there. So for the same, the bar contained in section 213 of the Indian Succession Act that no right on the basis of a Will as its executor or legatee can be established in any court unless a court of competent jurisdiction in India has granted a probate of the Will under which the right is claimed or has granted letter of administration with the Will or with a copy of an unauthenticated copy of the Will annexed has no applicability although it may remain an option for the legatee or executor as the case may be. Thus the beneficiary under those Wills without any probate can seek establishment of a right which stands as the effect of combined reading of section 213 (2) (i) and section 57 of the Indian Succession Act. 11. With this, we face the situation which now becomes more subject centric that whether the consolidation authority can decide the right of the beneficiary on the basis of Will over the property covered under it falling under the notification under section 3 (3) of the Act. Its no more debatable that in case of such Wills without probate, a suit can be filed by the beneficiary in the Civil Court to establish the right, title and interest over the property bequeathed under it and also that a defence can be taken projecting it to have given the right and title over the property so bequeathed so as to thwart the claim of the suitor. The legal position thus emerges that when it is so projected or challenged,, the party is to prove the said Will as such and certainly as required under the provision of section 66 of the Indian Succession Act read with section 68 of the Evidence Act. In other words, the validity of the Will with regard to its due execution, attestation etc. In other words, the validity of the Will with regard to its due execution, attestation etc. as per law has to be established so as to get the right declared under it. The question thus arises that whether this legal exercise can be taken up by the consolidation authority so as to decide the right, title and interest over the property in question covered under those Wills for which the bar under section 213 of the Indian Succession Act for obtaining the probate as the condition precedent to claim right under those Wills does not get attracted and merely stand optional. 12. To address the above, now let us keep in mind the objects and purpose of the enactment i.e. OCH and PFL Act. The legislature have made provision that the questions relating to right, title, interest and liability in any land are to be decided by the consolidation authorities except those which can be decided only by the Civil Court and therefore, out of bounds to them. In deciding questions of right, title and interest and liability in land, questions and issues relatable thereto arise for decision. The decisions on the questions of right, title, interest and liability depend and hinges on the decision on the connected questions, the questions which have to be decided ancillarily or incidentally. Sometimes in order to secure the relief, the suitor has to clear the hurdles and impediments standing on the way. Those hurdles may be judgment or order of the court or document. So long as the hurdle stands on the way, the grant of relief is not possible and permissible. It has to be removed. The Civil Court alone has the jurisdiction to set aside the judgment or order or a document of transfer. This has been authoritatively held by the Division Bench of this Court in the case of Jairam Samantray vs. Baikuntha Samantray and others; 1991 (I) OLR 29. 13. Going to consider a case of similar nature in “Somanath Bhataria vrs. Punanada Bhataria and others; 1991(I) OLR 445, again this Court has held that the question of validity of adoption can be decided by the consolidation authorities, if the same is incidentally necessary for the purpose of effecting partition of the joint holding. Therefore, it has been held in the said case that the question of locus standie of the petitioner not being the grandson of opp. Therefore, it has been held in the said case that the question of locus standie of the petitioner not being the grandson of opp. party no.1 in maintaining the suit for partition can be adjudicated upon by the authorities in order to decide as to whether or not, the relief of partition as claimed by the petitioner is available to be granted. 14. Now adverting to the case of hand, here the Will was projected as the document of title before the consolidation authority. The settled position of law is that the Will so as to be accepted by a court of law has to be proved in accordance with the provisions of section 66 of the Indian Succession Act and Section 68 of the Evidence Act as regards its due execution and attestation by repelling any such suspicious circumstances if any so surrounding the Will. The burden of proof is upon the propounder. These aspects as regards the Will are concerned with the genuineness of the Will said to have been executed by the deceased testator/testatrix as the case may be. For a court of law to accept such Will to put upon it, the final legal seal that it is such said act of the testator/testatrix who is no more, the court must be satisfied that it is the Will by the testator/testatrix, as the case may be and made out of his/her free will and voluntarily being in a sound state of disposition. For the purpose, law even mandates to provide opportunity to remote relations or any other to raise their objection if they so feel. The acceptance of a Will by a court of law, be it in a probate proceeding or in a civil suit is a judgment in rem which binds the whole world. So here is a case where first of all, the genuineness of the Will has to be found out by the court and thereafter scope comes to decide as to whether the testatrix had the right, title and interest over the property so bequeathed under the said Will which is claimed so by the beneficiary. In the case in hand, thus to answer the question of right, title, interest and liability of the land, it does not stand to be so decided all those aspects as regards the Will, incidentally or ancilliarily. In the case in hand, thus to answer the question of right, title, interest and liability of the land, it does not stand to be so decided all those aspects as regards the Will, incidentally or ancilliarily. The acceptance of the Will stands as the principal decision so as to provide foundation that basing upon it further adjudication as regards the claim of the beneficiary under the Will would either stand or fall. Therefore, in my considered view, the consolidation authorities have no jurisdiction to decide such a case where right, title and interest over the land is founded and based upon a Will and they are not the competent authority to rule on the question of validity of the Will which is out of their bounds. Therefore, the decision of the consolidation authorities on the said Will as regards its acceptance and the consequential preparation of the record of right on the basis of the same in respect of the land covered under the Will in favour of Sita are without jurisdiction and nullity. In that view of the matter, those should not have at all weighed in the mind of the trial court in recording the finding on issue no.(v). 15. Adverting to the judgment of the trial court, I find that in recording a finding that the Will is valid and has been acted upon, much emphasis has been given and in fact time and again, it has been referred to and reliance has been placed on that very decision of the consolidation authorities assuming that they had the jurisdiction to so rule on the Will in accepting the claim upon that. It has also been said that there remains no other option but to accept the decision of the consolidation officer in view of the legal bar under section 51 read with section 4(4) of the Act. However, going to again examine the validity of the Will in the light of the challenge, the trial court has therefore merely confined its examination with regard to the allegation of fraud. But then again in so far as Mahadei’s execution of the Will, the decision of the consolidation authorities has been accepted and it has been said that there arises no necessity to further go to examine that aspect. But then again in so far as Mahadei’s execution of the Will, the decision of the consolidation authorities has been accepted and it has been said that there arises no necessity to further go to examine that aspect. Thereafter, the trial court has gone to record findings on the other issues which are certainly dependent on the answer to the issues as already discussed. Thus when it is found that the trial court is not right in holding the consolidation authorities to have the jurisdiction to decide the validity of the Will by placing the legal seal over the same which is projected as the document of the title before them in claiming right under it over the property covered under the consolidation notification and when that has already been held by me to be unsustainable, the findings on all other issues depending upon the same also cannot stand as the decision on this issue has definite impact over the others requiring further discussion so as to be answered. So all those also cannot be said to have been rightly decided. In the case, the trial court is called upon to decide whether the Will has been validly executed and attested in accordance with law as aforesaid and then that the testatrix if had the right over the property so as to bequeath under the Will in favour of Sita, the wife of defendant no. 1 and thereby Sita had been clothed with the title in respect of the said land which have been succeeded by her legal heirs and successors. With said finding, the fate of other issues would stand decided in accordance with law. In view of above discussion and reasons, thus I find that the judgment and decree passed by the trial court are liable to be set aside and it is a fit case for remand of the suit to the trial court to decide all the issues in the light of above and in accordance with law by giving further opportunities to the parties to lead evidence if they are so advised and after hearing. 16. In the wake of aforesaid, the appeal stands allowed and the suit is remanded to the trial court for decision afresh in accordance with law keeping in view the observations. 16. In the wake of aforesaid, the appeal stands allowed and the suit is remanded to the trial court for decision afresh in accordance with law keeping in view the observations. However, it is made clear that any expression/s, if any, made herein above barring the legal positions will carry no such influence in the mind of the court below in answering the issues In the facts and circumstances, however no order as to cost is passed.