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2016 DIGILAW 485 (ORI)

Akula Nayak v. Sukanti Nayak

2016-07-04

D.DASH

body2016
JUDGMENT : In this appeal the appellant having been aggrieved by the judgment and decree passed by the learned Civil Judge (Sr. Division), Kamakhyanagar in C.S. No. 50 of 2007 as confirmed by the learned District Judge, Dhenkanal in R.F.A. No. 40 of 2009 calls in question all the concurrent findings as also the ultimate result in preliminarily decreeing the suit filed by the respondent no. 1 as the plaintiff allotting 1/6th share to her over the suit property and for partition accordingly. 2. For the sake of convenience, in order to avoid confusion and bring in clarity, the parties hereinafter have been referred to as they have been arraigned in the trial court. 3. Plaintiffs case is that the suit land originally belonged to her father, Bhagat Nayak who died in the year 1990 and on his death; the same was succeeded by his widow, the defendant no. 2; son, the defendant no. 1 and four daughters including herself (plaintiff) and defendant no. 3 to 5. It is stated that Bhagat had constructed a house over the land under Hal Khata No. 209 and was in cultivating possession of the land under Hal Khata No. 174. The suit properties are said to have never been partitioned by metes and bounds after the death of Bhagat and each of them have equal share over it. The plaintiff being the unmarried daughter is residing on a portion of the suit house and since the defendant no. 1 expressed to be the exclusive owner of the suit property and that the plaintiff had no share over it and as he lastly also attempted to drive her out which somehow got foiled due to intervention of local gentlemen since the threat still persisted, the suit for partition came to be filed. 4. The defendant no. 1 alone contested the suit pleading inter alia that he alone succeeded to the entire property of his father Bhagat, when other parties have no interest at all. It is stated that Bhagat during his lifetime having executed a Will bequeathing entire property in his favour, he has become the owner in possession of the same on the death of Bhagat. He has nonetheless placed a counterclaim on that score for a declaration to that effect and also in the alternative to allow him to purchase the suit land being the preferential owner in exercise of said right. He has nonetheless placed a counterclaim on that score for a declaration to that effect and also in the alternative to allow him to purchase the suit land being the preferential owner in exercise of said right. 5. The trial court faced with above rival case has framed in total six issues and rightly has taken up for decision, the two important issues as regards the claim of partition entitling her with 1/6th share over the suit property as also the claim of the defendant no. 1 based on said Will purported to have been executed by Bhagat during his lifetime. On discussion and taking into account the settled position of law, the decision has been rendered that the plaintiff is entitled to 1/6th share over the suit property and so also other parties to that extent, in simultaneously answering that the defendant no. 1 has failed to prove due execution of the will as is required in law and as such he has derived no right, title and interest whatsoever over the suit property by such will. The other prayer for his purchase has been declined since none of the parties have at all expressed the desire in that light of transfer and the trial court has thus not felt the need to proceed further in that direction. 6. The unsuccessful defendant no. 1 having next moved by filing the first appeal has also failed in setting at naught any of the finding of the trial court as also the judgment and preliminary decree as passed by trial court which have thus stood confirmed. Therefore, the present move is before this Court by filing this second appeal under section 100 of the Code of Civil Procedure. 7. The appeal has been admitted by order dated 03.02.2012 on the following substantial questions of law:- 1. Whether the courts below are correct in holding that the daughter-plaintiff is entitled in 1/6th share instead of 1/8th share in respect of suit schedule properties, left by her father when admittedly the succession opened immediately after the death of the father of the parties in the year 1990 and the properties stood vested upon the son, daughters and mother under the provisions of Hindu Law than in force prior to coming into force of the Hindu Succession (Amendment) Act, 2005? 2. 2. Whether the courts below are justified in entertaining the suit for partition of the coparcenery property preferred by a daughter taking advantage of Hindu Succession (Amendment) Act, 2005 when admittedly succession had been since the year 1990 the year of death of her father which is much prior to the cutoff date i.e., on 20.12.2004 as prescribed in the said Act? 3. Whether the courts below are entitled to reopen the question of succession under the provision of Hindu Succession (Amendment) Act, 2005 in the absence of any specific provision in the Amending Act? 4. Whether the courts below have acted contrary to law in examining the genuinity of the Will relied upon by the defendant no. 1 before the same has been probated? 8. At the outset, it may be stated that, in view of the admitted case of the parties that the properties were owned by Bhagat, the father of the plaintiff and defendant no. 1, 3 to 5 and the husband of defendant no. 2 and none of the parties when have not come to plead nor have said so during trial that the said property is the coparcenery property, the provisions of section-6 of the Hindu Succession Act do not at all come into play so far as succession to the said property is concerned. The succession is clearly governed by the provisions of section 8 of the Act which makes all the Class-I heirs of Bhagat under the schedule of the Act as entitled to equal share therein. The learned counsel for the parties are wholly in agreement with the above at the opening of the hearing. Therefore, I find that the substantial questions of law as stated under item no. 1, 2 and 3 do not at all arise in this case which perhaps have been so formulated viewing the judgment of the lower appellate court wherein all these aspects have been unnecessarily delved into by completely loosing sight of the admitted case. The said discussions of the first appellate court appear to have been so made without even giving a reading to the pleadings. When none of the parties project a case for attraction of the provisions of section 6 of the Act, I am at a loss to understand that where was such occasion to address the same. That should have been discarded at the threshold. When none of the parties project a case for attraction of the provisions of section 6 of the Act, I am at a loss to understand that where was such occasion to address the same. That should have been discarded at the threshold. In view of above, this Court proceeds only to answer the substantial question of law as at item no. (4) which is the only one that may surface in the case. 9. Admittedly, the Will is an unregistered and un-probated one. It has however been projected as the document of title to deprive the legitimate claim of the plaintiff and defendant no. 2 to 5 over the suit property. The lower appellate court has not at all gone to decide the genuineness or validity of the Will (Ext. A) for the simple reason that the property said to have been bequeathed there-under have no nexus with the subject matter of the suit as described. For the purpose, as the question had been raised, it is seen that there has been an elaborate examination and scrutiny as it appears with reference to the survey numbers etc of the land both as shown in the Will as also described in the schedule of the plaint. The defendant no. 1 being under legal obligation to establish said nexus has been held to have failed in that so as to persuade and pave the way for the court to take up the exercise of further examination as to the validity of the Will in support of his case. This basic and fundamental requirement having remained unsatisfied as discussed by lower appellate court and when nothing has been shown during hearing of this second appeal that such conclusion is erroneous to be standing against the evidence on record, this Court finding no such justifiable reason accords its approval to the same. In that view of the matter now it is found that even the substantial question of law as formulated at the time of admission indicated under item no. 4, does not survive in the case so as to be answered. The appeal has to fail. 10. In the result, the appeal stands dismissed. However, in the peculiar facts and circumstances, the parties would bear the respective cost of litigation throughout.