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2016 DIGILAW 513 (ORI)

Tripati Sahu v. Kalu Ch. Sahoo

2016-07-12

D.DASH

body2016
JUDGMENT : This appeal has been directed against the judgment and decree passed by the learned 2nd Additional District Judge, Berhampur in Title Appeal No.5 /37 of 1994-93 confirming the judgment and decree passed by the learned Subordinate Judge, Berhampur in Title Suit No.59 of 1986. The respondent no.1 as the plaintiff had filed the suit arraigning this appellant as the defendant no.2 and their father, the respondent no.2 as the defendant no.1 as also another brother, the respondent no.3 as defendant no.3. It may be stated here that the defendant no.2 having died during pendency of the suit, rest of his legal representatives have been brought on record. 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. The plaintiff’s suit for partition in respect of the property described in the schedule of the plaint which is a house. It is stated that the plaintiff and defendants being members of the Hindu undivided family governed under Mitakshara School, father-Raghunath, the defendant no.1 was the Karta. It is also stated that he from out of the joint family funds had purchased the suit house in the name of defendant no.2 by registered sale deed dated 05.09.1979 since the defendant no.2 was the eldest of the sons and was the only educated member of the family. It is reiterated that the defendant no.1 had paid the consideration amount from out of the joint family funds. It is stated that the defendant no.1 till 1975 was working in a private shop and then the plaintiff was doing vegetable business and was earning profit and as such was having substantial savings with him. During that period, the defendant no.2 was prosecuting his studies. It is the further case of the plaintiff that his income as also the income of the defendant no.1 stood accumulated as the joint family funds. In the year 1975, the defendant no.1 had some difference of opinion with his employer. So, he left the service and started business for the benefit of the joint family. He began to run a grocery shop wherein the plaintiff also joined and the same gave good profit and substantial amount was earned thereby. All the sons and father were then living jointly. So, he left the service and started business for the benefit of the joint family. He began to run a grocery shop wherein the plaintiff also joined and the same gave good profit and substantial amount was earned thereby. All the sons and father were then living jointly. This defendant no.2 was not having any independent source of income and as such was dependent on the joint family. The suit house is thus claimed to have been purchased from Rahasa Sahuani, the mother-in-law of the defendant no.1 in the name of defendant no.2 by defendant no.1 from out of joint family funds. Thus, it is stated to be the joint family residential house where all the parties are residing. It is alleged that the defendant no.2 after his marriage in the year 1981 changed his attitude towards the other family members, more so, after the death of mother in the year 1984. Misunderstandings went to height when defendant no.2 wanted to misappropriate the joint family funds for his personal benefit. He then gave out to alienate the suit house asserting and claiming it to be his own. The plaintiff, therefore, requested for a partition of the said suit house. The request having been turned down, the suit has come to be filed. 4. The defendant no.1 in his written statement has supported the case of the plaintiff in toto. 5. The defendant no.2 contested the suit denying the plaint averments stating that the suit property is not the joint family property and was not at all purchased with the aid of the joint family income. He further stated to have paid the consideration on his own for the purchase of the said property from his maternal grandmother. It is stated that since the date of purchase, he has been in exclusive possession and enjoyment of the suit house. The same has also been mutated in his name and assessed to holding tax with assignment of holding number in his favour. It is his specific case that the maternal grandmother was living in the suit house with him for few months and thereafter she died and during that time, the plaintiff and other defendants were residing in a rented house situated nearby. It is his specific case that the maternal grandmother was living in the suit house with him for few months and thereafter she died and during that time, the plaintiff and other defendants were residing in a rented house situated nearby. When their landlord evicted them, they approached the defendant no.2 to permit them to reside in the suit house till alternative arrangement was made and to vacate the same then. It is next alleged that in spite of such promise they did not vacate the suit house. It is also his case that there was no joint family business and he himself was doing business independently. So, he has spent the money for purchasing the suit house from his own income and the suit house is said to have never been treated to be the joint family property. Thus, he asserts to be the exclusive owner of the suit house. 6. The trial court faced with such rival pleadings framed four issues. The crucial issue out of those is whether the suit house is the joint family property although acquired in the name of defendant no.2 or the self acquired property of defendant no.2 and as such whether is liable to be partitioned amongst the parties or not. The trial court upon examination of evidence and analysis of the same has recorded the finding that the suit house is the joint family property negating the claim of the defendant no.2 that it is his self acquired property. Answers to the other issues have accordingly been rendered in favour of the plaintiff. 7. The defendant no.2 being aggrieved by the same had carried the first appeal under section 96 of the Code of Civil Procedure. The lower appellate court sitting over first to examine and very rightly, the sustainability of the finding of the trial court on that crucial issue with regard to the nature of property whether it is the self acquired or the joint family property as is seen has gone for an elaborate discussion of evidence. Yet the ultimate conclusion has remained the same as that of the trial court. The finding of the trial court having accordingly been affirmed, the judgment and preliminary decree passed by the trial court have been confirmed. Therefore, the unsuccessful defendant no.2 has moved this Court carrying the second appeal under section 100 of the Code. 8. Yet the ultimate conclusion has remained the same as that of the trial court. The finding of the trial court having accordingly been affirmed, the judgment and preliminary decree passed by the trial court have been confirmed. Therefore, the unsuccessful defendant no.2 has moved this Court carrying the second appeal under section 100 of the Code. 8. This appeal has been admitted on the substantial questions of law as indicated in ground nos.1,3 and 4 of the memorandum of appeal which are the followings. “(1) Whether the impugned judgments are perverse for non-consideration of evidence led by the defendant nos.2 and 3 more particularly the evidence of D.W.3, an independent witness which clearly proves that the defendant no.2 was earning Rs.20 to 50/-per day from the rice business and the suit house was purchased by him from the income of that business? (2) Whether in view of the finding of the learned lower appellate court that the plaintiff has not adduced sufficient evidence to show that there was sufficient joint family nucleus to purchase the suit house, the impugned judgment of the learned lower appellate court is perverse? (3) Whether in absence of any documentary evidence to show that the defendant no.1 had sold the ancestral property and utilizing the said sale proceeds, the suit house was purchased, the impugned finding that with the aid of joint family nucleus the suit property has been purchased, is legal?” 9. In this appeal the plaintiff as well as the defendant no.2 have filed two separate applications under Order 41 Rule 27 of the Code for adduction of additional evidence. I have heard the learned counsel for the parties on the merit of those petitions. (A) The appellant’s application is numbered as Misc. Case No.635/2000 and that is to permit him to adduce an unregistered Will dated 16.06.1977 purported to have been executed by Rahas Sahuani, the original owner of the suit land. This is in the direction of setting up an alternative case at this stage that in the event, the finding of the courts below on the above stated issue as recorded stands, then also he has derived right, title and interest over the said property of Rahasa on her death since she had bequeathed the same in his favour. But interestingly, the petition does not disclose as to when Rahasa died. But interestingly, the petition does not disclose as to when Rahasa died. The execution of the sale deed dated 05.09.1979 by Rahasa is not denied and the controversy is whether by the same, the property solely came to the hands of the defendant no.2 or it became the joint family property being treated all along as such. I am at a loss to understand as to in which way the said Will even though held to have been validly executed by Rahasa and duly attested overruling the objection as regards its in validity, would help the defendant no.2 when the testatrix had herself sold away the property so wished to be bequeathed under the Will in favour of defendant no.2. The property having no more remained in the hands of the testatrix during her life time, the will cannot come to have its play in respect of said property on the death of testatrix. The application has also been filed in the year 2000 and the given explanation for the delay in respect of the same so as to be not in a position to adduce it in evidence in the suit of the year 1993 and during the first appeal. On a plain reading being tested with the pleadings clearly appears to be a cock and bull story. In view of aforesaid, the prayer clearly seems to be misconceived and accordingly, it stands rejected. The misc case no. 635/2000 is hereby dismissed. (B) The respondent no.1’s application is for permission to adduce in evidence an unregistered Will dtd.08.08.2000 said to have been executed by his father, Trinath, the defendant no.1 bequeathing his interest over the suit property. This Will subject to its genuineness and validity which have also been questioned by the appellant can only come into play after the substantial questions of law as formulated in the case are answered deciding the fate of the suit so far as the reliefs granted by the Courts below in allotting shares over the suit property to the parties as the Will concerns with defendant no.1’s interest. This Will has nothing to do with the decision in the present second appeal. This Will has nothing to do with the decision in the present second appeal. The same could have been projected in the final decree proceeding for drawal of another preliminary decree accordingly modifying the quantification of shares of the parties in case the Will is held to have been duly executed by the testator and attested as required under law after the attacks on those grounds are negated. However, that course has not been so adopted and the train has been missed as of now, as is seen from the order sheets filed that the final decree has already been drawn way back on 05.10.2009 whose fate of course would undoubtedly depend upon the result of this second appeal. Be that as it may, this document is of no relevance in so far as the present lis before this Court is concerned. In view of aforesaid, the prayer is rejected. The misc case no. 27/2004 is here by dismissed. 10. Learned Counsel for the appellant on merit while attacking the findings of the courts below that the suit property is the joint family property as wholly against the weight of evidence on record also contends that in the exercise of final evaluation of the evidence upon their examination, the courts below have totally ignored the important and relevant recitals of the sale deed in question, Ext-1 which when taken into consideration in their proper perspectives, a conclusion to the contrary as recorded by the courts below would emerge negating the nature of the property as has been held by the courts below to be the joint family property. Since, the courts below have omitted to take into account above evidence on record and its impact having not been considered it would certainly affect the final outcome and thus the concurrent findings on the score are liable to be set aside being perverse. He, thus contends that the consolidated answer to all the substantial questions of law thus need be in favour of the appellant and its enough to non suit the plaintiff - respondent no.1. 11. He, thus contends that the consolidated answer to all the substantial questions of law thus need be in favour of the appellant and its enough to non suit the plaintiff - respondent no.1. 11. The Learned Counsel for the respondents countering the above contends that the courts below having examined the evidence in great detail as also viewing the circumstances which have come out in evidence and are relevant for the purpose having rendered the concurrent findings on fact that the suit property is the joint family property, which is also seen to be keeping in view the settled position of law that the burden of proof in the case lies with the plaintiff and holding that to have been duly discharged, there remains no scope of interference. He also contends that the recitals of Ext.-1 as pointed out have got nothing to do with the present controversy and those can at best be said to be merely some expressions out of love and affection of the executants towards the defendant no.2 and nothing else having absolutely neither any factual nor legal impact in arriving at a decision on the core issue as regards the nature of the property. So, non-consideration of the same has in no way impacted the findings on that score and thus merely for that reason the findings cannot be termed as perverse. He lastly contends that the findings that the suit property is the joint family property is unassailable being based on just and proper appreciation of evidence and arrived at being alive to the settled law governing the field. 12. In order to answer the substantial questions of law and side by side address the rival submission, let us straight way proceed to search for the answers by applying the settled position of law governing the field. 13. At this juncture, this Court feels it proper to take note of the settled principles of law in the matter of the scope to interfere with a finding of fact recorded by the first appellate court being the final court of fact. In the case of Narendra Gopal Vidyarthi v. Rajat Vidyarthi, (2009) 3 SCC-287 it has been held that :- “xxx xxx xxx xxx xxx xxx (iii) The general rule is that the High Court will not interfere with the concurrent findings of the courts below. But it is not an absolute rule. In the case of Narendra Gopal Vidyarthi v. Rajat Vidyarthi, (2009) 3 SCC-287 it has been held that :- “xxx xxx xxx xxx xxx xxx (iii) The general rule is that the High Court will not interfere with the concurrent findings of the courts below. But it is not an absolute rule. Some of the well-recognized exceptions are where (i) the courts below have ignored material evidence or acted on no evidence; (ii) the courts have drawn wrong inferences from proved facts by applying the law erroneously; or (iii) the courts have wrongly cast the burden of proof. When we refer to “decision based on no evidence”, it not only refers to cases where there is a total dearth of evidence, but also refers to any case, where the evidence, taken as a whole, is not reasonably capable of supporting the finding”. 14. In the case in hand the plaintiff asserts the property to be the joint family property being purchased by the father, the defendant no.1 paying consideration from out of the joint family funds. The defendant no.1 supports the same and the sole fighter seeking a finding to the contrary is defendant no.2. Nonetheless, the concerned sale deed, Ext.1 proved by the plaintiff admittedly stands in favour of the defendant no.2 who is shown therein as the lone vendee. In those factual settings, the burden of proof that the property is the joint family property lies on the plaintiff. It has been the evidence of the plaintiff, P.W.1 that Rahas and their family were together staying in the suit house as only son of Rahas was dead and their mother was the only daughter. It is also in evidence that during the purchase, they were staying therein. Father, the defendant no.1 coming to depose has stated to have sold his house and property at his native place and shifted to Berhampur. He claims to have paid the consideration. In support of above sales Exts. 9 and 10 have been proved. He has stated that he was serving for some time and then got engaged in business and that defendant no.2 had no income of his own nor any separate business. He claims to have paid the consideration. In support of above sales Exts. 9 and 10 have been proved. He has stated that he was serving for some time and then got engaged in business and that defendant no.2 had no income of his own nor any separate business. The plaintiff having led evidence to the effect that the defendant no.2 had no income of his own during the relevant time, the evidence adduced from the side of the defendant no.2 on that aspect as claimed by him is unsatisfactory and the courts below have on detail discussion found it to be not acceptable. 15. With the above broad features emerging in evidence, the courts below have made detail analysis of evidence and viewing all the surrounding circumstances have concurrently held that the plaintiff’s case has been proved by preponderance of probability. The recitals of Ext.1 as shown clearly appear as mere expressions by the vendor, about the special love and affection that she was having towards the defendant no.2. Those recitals being given a close and careful reading do not appear to be of any help to the case of the defendant no.2 in arriving at a conclusion on the core issue as regards the nature of the suit property that the same was the property of defendant no.2 alone and also no inference in either way can be drawn from the same on the face of overwhelming evidence to the contrary. In that view of the matter, the submissions of the learned counsel for the appellant fails and the substantial questions of law thus accordingly receive their answers which do not favour the appellant. 16. In the result, the appeal stands dismissed. No order as to cost.