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2016 DIGILAW 151 (ORI)

Sakuntala Mishra v. Raghunath Mishra

2016-02-23

B.P.RAY

body2016
JUDGMENT B.P. RAY, J. - Second Appeal No. 31/2002 and Second Appeal No. 32/2002 are the appeals from out of common Judgment passed in Title Appeal No. 49/1995 and Title Appeal No. 1/1996 respectively arising out of Title Suit No. 208/1989. First Appeal No. 153/1990 arose out of the Judgment passed in Title Suit No. 134/1979. For sake of convenience, in order to bring clarity and avoid confusion, the parties have been referred to as they have been arrayed in the Court below. 2.Defendant No. 2, Sakuntala Mishra had married defendant No. 1, Raghunath Mishra in the month of June, 1967 as per Hindu rites and customs, and during continuance of their relationship, they were blessed with a son namely Kishore Chandra Mishra, the plaintiff, in 1971. Subsequently because of dissention between husband and wife, Sakuntala Mishra and Kishore Chandra Mishra were forced to live separately from Raghunath Mishra. As because Raghunath Mishra neglected to maintain his wife and son, the plaintiff Kishore Chandra Mishra filed TS 208/89 before the Court of Sub-Judge, Kendrapara for partition of the ancestral property of Raghunath Mishra. By judgment dated 27.11.95 and Decree dated 02.12.95, the learned Sub-Judge, Kendrapara, preliminarily decreed the partition suit of plaintiff Kishore Chandra Mishra. Further, the learned Court below declared that defendant No. 9 Khirod Chadra Mishra (Natural son of elder brother of Raghunath Mishra) was not adopted son of Raghunath Mishra. Being aggrieved, Raghunath Mishra on his behalf as well as the Marfatdar of Nrushingh Nath Basudev Jew preferred Title Appeal No. 49 of 1995, and Khirod Chandra Mishra preferred Title Appeal No. 1 of 1996 before learned Addl. District Judge, Kendrapara, who heard both the Appeals together and by the judgment dated 08.10.2001 and Decree dated 20.10.2001 dismissed both the Appeal on contest and confirmed the judgment and the Decree of the trial Court passed in TS 208/1989, which are under challenge before this Court in Second Appeal Nos. 31 of 2002 respectively. 3.It is not out of place to mention that Sakuntala Mishra as the plaintiff had earlier filed TS 134/1979 against Raghunath Mishra and others for maintenance of herself as well as her minor son Kishore Chandra Mishra. By judgment dated 30.03.1990 and Decree dated 11.04.1990, the learned Sub-Judge, Kendrapara dismissed the suit which is under challenge in FA No. 153 of 1990 before this Court. By judgment dated 30.03.1990 and Decree dated 11.04.1990, the learned Sub-Judge, Kendrapara dismissed the suit which is under challenge in FA No. 153 of 1990 before this Court. The above disputes being inter-related and based on same subject matter, they have been heard together and are being disposed of by this common judgment. 4. The substantial questions involved in both the Second Appeals bearing nos. 31 of 2002 and 32 of 2002 are as follows: (i) Whether the concurrent finding of the learned Courts below preliminarily decreeing the suit of respondent Kishore Chandra Mishra ignoring the mandate of Sec. 35 of the Orissa Consolidation of Holdings and Prevention of Fragmentation of Land Act, 1972 regarding prevention of creating fragments of agriculture land and holding, for partition of the self acquired properties of Raghunath Mishra as well as joint family properties are sustainable in the eye of law? (ii) Whether the finding Khiord Chandra Mishra as not the adopted son of Raghunath Mishra for want evidence of giving and taking ceremony in presence of several documents describing Khirod as son of Raghunath Mishra, is sustainable in the eye of law? 5.On careful perusal of pleadings of both the parties as well as judgments of both the learned Court below, it is apparent that Raghunath Mishra was unmarried when the alleged adoption took place in the year 1964 on 21st day of the birth of Khirod Chandra Mishra. Admittedly deed of adoption or deed of acknowledging the adoption has not been done. In the above background, the claim of adoption is to be examined on the basis of subsequent documents and the oral evidence available regarding adoption ceremony. Ex. A-1 is the Matriculation certificate of Khiord Chandra Mishra, wherein date of birth has been reflected as 01.05.1962. The entry regarding date of birth is in conflict with other documents made by the defendant Raghunath Mishra and oral evidence given in this respect on behalf of the defendants. Both the Courts below have elaborately discussed in their respective judgments and correctly entertained doubt regarding actual date of birth of defendant Khirod Chandra Mishra. There is no pleading as well as positive evidence as per on whose version the date of birth of Khiord Chandra Mishra was recorded at the time of admission. Both the Courts below have elaborately discussed in their respective judgments and correctly entertained doubt regarding actual date of birth of defendant Khirod Chandra Mishra. There is no pleading as well as positive evidence as per on whose version the date of birth of Khiord Chandra Mishra was recorded at the time of admission. Ignoring the variation regarding date of birth reflected in the Matriculation certificate, whether it would be appropriate to accept Khirod Chandra Mishra as the adopted son of Raghunath Mishra as because name of Raghunath Mishra as father of Khirod Chandra Mishra finds place in the Matriculation certificate as stated above. Besides Matriculation certificate, the defendants have also relied on a residential certificate, Ext. B.1, which was obtained on 22.12.1989 i.e. after commencement of dissention followed by litigation by Sakuntala Mishra against her husband Raghunath Mishra vide maintenance suit bearing T.S. No. 134/79. The defendants have also relied on voter list vide Exts. M and M-1, but the enumerators have not been examined to prove on whose version, the documents were prepared to inspire confidence regarding their correctness. Ext. E which is the LIC Policy bond is pressed into service by the defendants. This policy was opened by the defendant Raghunath Mishra in 1968, when defendant Sakuntala Mishra was shown as the nominee being his wife, but subsequently in 1969 defendant Khirod Chandra Mishra was substituted as the nominee. Besides that, money receipts have also been relied on by the defendants. By thread bare analysis, both the learned Courts below came to the same conclusion that the above documents by themselves were not sufficient to prove the adoption for want of evidence regarding actual giving and taking. The findings made by the learned Courts below in respect of above documents are based on settled principles of law and suffers from no infirmity. The defendants have not pleaded regarding the actual date of adoption in the written statement. Defendant Raghunath Mishra has given evidence that he was unable to say the date of adoption but it was in the month of Baisakha 1964. He has given evidence that Satya Narayan Pala was held on that day, but again he has stated that there was no Satya Narayan Pala or Puja, and there was no Datta Homo. No relation except the matrimonial uncle of Khirod attended the ceremony. He has given evidence that Satya Narayan Pala was held on that day, but again he has stated that there was no Satya Narayan Pala or Puja, and there was no Datta Homo. No relation except the matrimonial uncle of Khirod attended the ceremony. He could not remember the names of the villagers, who were present at that time. The priest, defendant No. 11, could not provide the Tithi of adoption. He categorically elaborated that the maternal uncle of Khirod brought the child to Puja place and gave the child. Immediately, he gave another version that it was the natural father Biswanath, who gave the child. The maternal Uncle Sarada Prasad has been examined as DW-3. According to him, he brought the child to the place of adoption, but in the cross-examination he has given contradictory statement that he was not present at the time of adoption. The independent witness DW-4 namely Kalpataru Jena, who was present at the time of adoption did not say if the natural mother of Khirod namely Kiranbala Mishra was present while handing over the child to Raghunath. Thus, virtually there is no evidence regarding participation of natural mother in the alleged giving and taking ceremony which took place on 21st day of the child. Strangely, the natural mother has been withheld from the witness box, for which adverse inference is naturally to be taken regarding actual giving and taking in the alleged adoption ceremony. It is not out of place to mention that defendant Raghunath Mishra has stated in evidence that he had not proposed his elder brother i.e. natural father of Khirod Chandra Mishra for adoption. Khirod was then the only child of his natural father Biswanath Mishra (defendant no. 3) and his mother Kiranbala Mishra. The Special ground for adoption of only child at so early stage has not been specifically pleaded in the written statement and no evidence has been given to that effect. The discrepancy found in respect of actual giving and taking has been vividly described by the learned Courts below and correctly concluded that there was no giving and taking ceremony. The Special ground for adoption of only child at so early stage has not been specifically pleaded in the written statement and no evidence has been given to that effect. The discrepancy found in respect of actual giving and taking has been vividly described by the learned Courts below and correctly concluded that there was no giving and taking ceremony. As per mandate of Section 11 (vi) Hindu Adoption and Maintenance Act, 1956, the child to be adopted must be actually given and taken in adoption by the parents or guardian concerned or under their authority, with intent to transfer the child from the family of its birth to the family of its adoption. In the case of Madhusudan Das Vrs. Narayani Bai, AIR 1983 SC 114 , it has been held by the Apex Court that for a valid adoption, the physical act of giving and taking is an essential requisite. The ceremony is imperative in all adoptions what-so-ever the caste. Thus both the learned Courts below correctly came to the conclusion that Khirod Chandra was not the adopted son of Raghunath Mishra. 6.Defendant, Raghunath Mishra has pleaded in the written statement that suit plot nos. 533 and 534 in Lot No. II are his self acquired properties, which cannot be the subject matter of partition in the present suit. However, he has not pleaded and given positive evidence from which source the actual consideration amount was paid. Admittedly the defendant Raghunath Mishra was working as a Lecturer and having 12 acres of land in his possession with good returns, as the Karta of the suit joint family. The necessary inference, therefore, is the consideration amount was paid from the joint family nucleus, and there is no material to conclude that the consideration was paid from his separate funds. Moreover, the defendant Raghunath Mishra had allowed the plaintiff and her mother to enjoy the so called self acquired properties for collective use of all the members of the joint family. There is no material on record that defendant Raghunath Mishra was dealing with those properties separately including other members of the joint family. Moreover, the defendant Raghunath Mishra had allowed the plaintiff and her mother to enjoy the so called self acquired properties for collective use of all the members of the joint family. There is no material on record that defendant Raghunath Mishra was dealing with those properties separately including other members of the joint family. Therefore, for the sake of argument, if those properties are treated as self acquired properties of defendant Raghunath Mishra, then it is apparent on record that by his own volition defendant Raghunath Mishra had surrendered his special right in those properties, and such intention can well be discovered from his act and conduct vide the case of G. Narayan Raju Vrs. Chama Raju, AIR 1968 SC 1276 . The necessary conclusion, therefore, is that both the Courts below correctly came to the conclusion that the above properties were not the self acquired properties of defendant, Raghunath Mishra. The defendant no. 11, Biswanath Mishra, who was the family priest, was claiming ownership over some properties through adverse possession, but led no evidence in support of such pleading and the learned trial Courts rightly came to the conclusion that the defendant no. 11 has not acquired any title over the properties in Lot No. V through adverse possession. Admittedly consolidation operation was over and therefore the suit agricultural lands were recorded in the name of defendant Raghunath Mishra along with other properties. As per Section 35 of the Consolidation Act, partition in contravention of provision of Section 34 shall be void. Section 34 of the Act is meant for prevention of fragmentation of agricultural land in a locality. In the preliminary decree the shares are determined, whereas in the final decree proceeding, the allotments are made as per the shares determined. The allotment is to be suitably made without making fragmentation of agricultural Chaka land. Both the learned Courts below had discussed these aspects in detail in their respective judgments. Therefore, it is reasonable to conclude that partition of Chaka land in the preliminary decree as held by both the learned Courts below is not violating the mandate of Section 34 of the Consolidation Act. Both the learned Courts below had discussed these aspects in detail in their respective judgments. Therefore, it is reasonable to conclude that partition of Chaka land in the preliminary decree as held by both the learned Courts below is not violating the mandate of Section 34 of the Consolidation Act. 7.From the above analysis, it is apparent that the findings of the learned Courts below regarding adoption as well as partition of the suit properties are based on materials on record and in conformity with the settled principles of law and therefore, they cannot be interfered with in the present Second Appeal nos. 31 of 2002 and 32 of 2002, as they do not suffer from any infirmity. 8. As found the First Appeal no. 153/1990 has been preferred against the order of dismissal passed by the learned Sub-Judge, Kendrapara in T.S. No. 134/1979, which was filed by the plaintiff Skuntala Mishra against her husband Raghunath Mishra and others for maintenance of the mother and the son. The basic stand of the plaintiff Sakuntala Mishra is that her husband Raghunath Mishra neglected her and her minor son Kishore Chandra Mishra, and for that reason, she came up with the suit claiming maintenance. She has also alleged that her husband neglected her as because he had illicit relation with the wife of his elder brother. Defendant nos. 1, 2 and 5 contested the suit by filing separate written statement. The essence of their pleading is that the plaintiff had married the defendant Raghunath Mishra and they were blessed with a son i.e. plaintiff no. 2 Kishore Ch.Mishra. they have flatly denied the alleged illicit relation of the defendant Raghunath Mishra with his elder brother’s wife, and the allegation of ill-treatment and torture on plaintiff. According to them, the earlier adoption of the defendant Khirod Chandra Mishra by defendant Raghunath Mishra could not be acceptable to plaintiff, she also wanted to reside outside the joint family and deserted on her own, and the quantum of maintenance was very high and excessive. With these, they pleaded for dismissal of the suit with costs. 8. Upon the pleadings of the parties, the learned Court below framed as many as eight issue which are as follow- ISSUES i) Is the suit maintainable? ii) Has the plaintiff any cause of action to file this case? iii) Is the suit barred by limitation ? With these, they pleaded for dismissal of the suit with costs. 8. Upon the pleadings of the parties, the learned Court below framed as many as eight issue which are as follow- ISSUES i) Is the suit maintainable? ii) Has the plaintiff any cause of action to file this case? iii) Is the suit barred by limitation ? iv) Is the suit bad for non-joinder and misjoinder of parties? v) Has the suit land been correctly defined? vi) Is the plaintiff entitled to get any maintenance from defendant no. 1 and whether the claim of maintenance is high. vii) Is the genealogy given in the plaint correct or the genealogy given in the W.S. is correct? Viii) To what relief, if any? 9.On examination of the evidence on record, oral as well as documentary, the learned Court below came to the conclusion that the plaintiff Sakuntala Mishra has no locus standi to represent her minor son to bring the suit, and as she could not prove the illicit relation of her husband and ill-treatment on her by him, she is not entitled to any maintenance. 10.Learned counsel for the appellant submitted that the judgment and decree of the learned Court below are not based on material fact on record and being contrary to law are liable to be set aside and her suit is to be decreed. Learned counsel for the respondent on the other hand submitted that the judgment and decree passed by the learned Court below as lawful and the appeal having devoid of any merit is liable to be dismissal with costs. 11.The marriage of the plaintiff Sankuntala Mishra with defendant Raghunath Mishra is not dispute. The marriage took place in the year 1967 and thereafter plaintiff no. 2 Kishore Ch. Mishra was born to them. Initially Kishore Ch. Mishra had not been impleaded as a party to the suit but subsequently he was added through amendment. The learned Court below came to the conclusion that as per Section 6 of the Hindu Minority and Guardianship Act, 1956, father is the guardian and therefore Sakuntala Mishra, mother of the plaintiff no. 2 had no locus standi to bring the suit on behalf of her minor son. As apparent from our foregoing discussions that after the birth of Kishore Ch. 2 had no locus standi to bring the suit on behalf of her minor son. As apparent from our foregoing discussions that after the birth of Kishore Ch. Mishra, the relationship between the husband and wife had worsened and the mother and son started living separately from the defendant Raghunath Mishra. Because of such inimical relationship, Kishore Chandra Mishra as the plaintiff filed the partition suit against his father. Thus, it is apparent on record that Raghunath Mishra was not looking after the welfare of his minor son Kishore Chandra Mishra and in that view of the matter, it was reasonable on the part of plaintiff Sakuntala Mishra to file maintenance suit on behalf of her minor son as well. Therefore, the view of the learned Court below that the suit instituted by Sakuntala Mishra on behalf of her minor son is bad in law is not acceptable. Further the learned Court below has held that inclusion of Kishore Chandra Mishra as plaintiff no. 2 at a subsequent stage through amendment was an after thought. It is settled law that once amendment is allowed, it relates back to the date of the institutions of the suit vide 2002 J T Vol. 7 Page 182: 2002 SCC Vol. 7 Page . 559 Sampath Kumar Vrs. Ayyakannu. In that view of the matter, addition of plaintiff no. 2 at a subsequent stage cannot be said to be fatal to the case of the plaintiff. 12.Admittedly the plaintiff Sakuntala Mishra has alleged illicit relation of his husband Raghunath Mishra with wife of his elder brother but that has not been successfully proved through positive evidence and this has been correctly concluded by the learned Court below through detailed discussion in the judgment. The allegation of physical assault on Sakuntala Mishra by the defendant Raghunath Mishra has not been believed by the learned Court below for inadequate evidence, contradictory statements of the witnesses and belated medical document obtained from a private doctor. This conclusion has also been correctly arrived at by the learned Court below. 13.The crux of the matter is whether failure of the plaintiff to prove illicit relation of her husband and physical assault on her would disentitle her to maintenance along with her son. This needs close scrutiny of the materials on record, which will be apparent in the subsequent discussions. 13.The crux of the matter is whether failure of the plaintiff to prove illicit relation of her husband and physical assault on her would disentitle her to maintenance along with her son. This needs close scrutiny of the materials on record, which will be apparent in the subsequent discussions. The pleading of the plaintiff read as a whole is unambiguously pointing to the cruelty and ill-treatment inflicted on her by her husband Raghunath Mishra, and that Raghunth Mishra neglected his wife Sakuntala Mishra and son Kishore Chandra Mishra from maintaining without any satisfactory reason. The plaintiff Sakuntal Mishra has pleaded and given positive evidence that after birth of her son in 1971, defendant Raghunath Mishra started ill-treating her and manhandled her on several occasions. The witnesses examined on behalf of the plaintiff have given corroborative evidence in this regard. No doubt there are some contradictions in their statements, which are natural to find in such a situation. The witnesses were not remaining in the matrimonial house of the plaintiff. Besides that, this is an affair between the husband and wife, which in most occasions had taken place in isolated surrounding in the house and away from public view. Therefore, the reason of the learned Court below doubting the testimony of the plaintiff for want of corroboration from independent trustworthy witness is not acceptable being unnatural in the circumstances of the case at hand. The evidence of the plaintiff read as a whole shows that she was suffering from trauma as because she was manhandled by her husband Raghunath Mishra on several occasions. Ultimately she was driven out of the house on 13.11.76 by Raghunath Mishra. The learned Court blow could not accept the date of such incident as because there was some inconsistent statements, but it is reflected in several places of the statement of the plaintiff as well as other witnesses including that of the DWs that the plaintiff Sakuntala started living in her parents’ house with her minor son. From close scrutiny of the evidence, it is found that Sakuntala was a nominee in LIC policy being opened by her husband Raghunath Mishra, but subsequently Raghunath Mishra introduced Khirod Chandra Mishra, the son of his elder brother as the nominee. From close scrutiny of the evidence, it is found that Sakuntala was a nominee in LIC policy being opened by her husband Raghunath Mishra, but subsequently Raghunath Mishra introduced Khirod Chandra Mishra, the son of his elder brother as the nominee. This might have raised apprehension in the mind of the plaintiff Sakuntala Mishra that her husband was not very much conscious of the welfare of her son, and such apprehension in the given circumstances is not completely baseless. 14.Even though assault on the plaintiff Sakuntala Mishra has not been adequately proved through independent corroboration, still then her evidence that she was continuously harassed and there was no congenial environment for her to live with her husband under one roof along with her minor son remained undemolished in the cross-examination. When atmosphere around the plaintiff Sakuntala Mishra was artificially created by defendant Raghunath Mishra, and when atmosphere was not palatable as well as dignified, it cannot be said that defendant Raghunath Mishra was really maintaining the marital obligation for sustenance of healthy relation with his wife and son. There is no material on record to show that Raghunath Mishra ever tried to bring back his wife Sakuntala Mishra along with her son to the matrimonial home to lead a happy and blissful conjugal life. It is out of place to mention that defendant Raghunath Mishra was highly qualified and working as a lecturer in a local college, but did not care to take any step to repair the wounded feelings of Sakuntala Mishra, who equally hail from a good family. When the reasonable hope and dream of the plaintiff Sakuntala Mishra to have a happy and blissful marital life was systematically annihilated by continuous overt act of defendant Raghunath Mishra, it is simply absurd to expect the plaintiff Sakuntala Mishhra to reside with defendant Raghunath Mishra in hostile atmosphere without marital happiness. Nobody came to her rescue. The relations were silent spectators, and omissions of defendant Raghunath Mishra in dealing with plaintiff Sakuntala Mishra was beyond description. Finding no other alternative, Sakuntala Mishra was forced to reside in her father's house alongwith her minor son and faced hardship to maintain herself and her minor son. Therefore, she was compelled to file the maintenance suit to live in the society with some dignity. Finding no other alternative, Sakuntala Mishra was forced to reside in her father's house alongwith her minor son and faced hardship to maintain herself and her minor son. Therefore, she was compelled to file the maintenance suit to live in the society with some dignity. 15.As per Section 18-A of Hindu Adoption and Maintenance Act, a Hindu wife shall be entitled to live separately from her husband without forfeiting the claim of maintenance, if she is guilty of willfully neglecting her. In the instant case, there are materials on record to come to the conclusion that the defendant Raghunath Mishra really willfully neglected the plaintiff Sakuntala Mishra and her son. Even though cruelty has not been established as held by learned Court below, the willful neglect, which is apparent on record should have been considered to be a sufficient ground to decree the suit of maintenance of mother and son for their survival with dignity. 16.In view of above discussion, the necessary conclusion, therefore, is that the conclusion of the learned Court below refusing entitlement of the plaintiff Sakuntala Mishra and her son to get maintenance is not based on materials on record, and being contrary to law, is not sustainable in the eye of law. It is not out of place to mention that it is the marital obligation of the defendant Raghunath Mishra to provide maintenance to his wife and son, and he should not have allowed to them depend on the mercy of others to lead a disgustful life in the society. 17.On perusal of the judgment of the learned Court below, it is found that the income of the Raghunath Mishra has not been considered as because Sakuntala Mishra was not entitled, as per view of the learned Court below, to get the maintenance. The plaintiff has pleaded and has given evidence regarding income earned by the defendant Raghunath Mishra as a Lecturer of the college, and his income from landed properties and other sources. Thus, the income is adequate to meet the claim of the plaintiff for maintenance of mother and son. In the given circumstances, the claim is apparently reasonable and should be granted in her favour for survival of mother and son. Thus, the income is adequate to meet the claim of the plaintiff for maintenance of mother and son. In the given circumstances, the claim is apparently reasonable and should be granted in her favour for survival of mother and son. 18.In view of above analysis, it is apparent that the judgment decree passed by the learned Court below in TS No. 134 of 79 are not sustainable in the eye of law and liable to be set aside in the present appeal being F.A. no. 153/1990. In the ultimate analysis, it is found that both the Second Appeals being S.A. Nos. 31 of 2002 and 32 of 2002 are dismissed being devoid of any merit. 19.It is found that the judgment and decree dated 30.03.90 and 11.04.90 respectively passed by the learned Sub-Judge, Kendrapara in TS 134/79 being contrary to the settled principles of law are hereby set aside and the suit of the plaintiff is hereby decreed. It is ordered that the plaintiff Sakuntala Mishra is entitled to maintenance of Rs 750/- per month towards her maintenance, and Rs. 250/- per month towards maintenance of her minor son Kishore Chandra Mishra till he attains majority from the date of institution of the suit. The defendant, Raghunath Mishra is directed to made payment of the arrear maintenance due within 3 months of this order failing which the defendant Raghunath Mishra is liable to pay the same with 6% interest per annum and the plaintiff Sankuntala is entitled to recover the same through process of law. Further it is directed that the defendant Raghunath Mishra is to make payment of present and future maintenance to plaintiff Sakuntala within 1st week of succeeding month positively. 20.In the result, First Appeal 153/90 is accordingly allowed and Second Appeal nos. 31 and 32 of 2002 are dismissed but without any cost. Ordered accordingly.