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2016 DIGILAW 616 (ORI)

Ekabal Hussain v. Makasud Hussain

2016-08-09

D.DASH

body2016
JUDGMENT : This second appeal under section 100 of the Code of Civil Procedure has been filed calling in question the judgment and decree passed by the learned Adhoc Addl. Sessions Judge (FTC No. IV), Bhubaneswar in R.F.A. No. 18/104 of 08/05. 2. The respondent no. 1 as the plaintiff had filed the suit for partition of Schedule -A land and allotment of share to him as also to the others as indicated on para-4 of the plaint. The suit was preliminary decreed by order as under:- “The suit is preliminarily decreed in part on contest against the defendant No. 10 to 15, 29, 32 and 40 and Defendant Nos. 1 to 3, 18, 21 to 23 and 30 and Defendant Nos. 16, 24 to 28 and Defendant no. 43 and exparte against the rest of the Defendants without cost. Let the suit properties be partitioned between the parties wherein the plaintiff and Defendants No. 10 to 16 be allotted 2/10th share and Defendant nos. 34 to 39 be allotted 1/10th share. Defendant Nos. 31 to 33 be allotted 1/10th share and Defendant Nos. 40 to 42 be allotted 1/10th share out of the suit ‘A’ Schedule property within a period of one month ailing which the plaintiff is at liberty to partition the suit properties through a Civil Court Commissioner in due process of law and to make the preliminary decree final. It is to be kept in mind while allotting share that the ancestor of the plaintiff and defendant No. 10 to 16 and the ancestor of Defendant No. 34 to 39 along with two daughters of Md. Hussain had sold away some properties towards their share vide Ext. B out of the suit properties in favour of the father of Defendant no. 43 and a such the plaintiff and Defendant No. 10 to 16 and Defendant No. 34 to 39 are be allotted jointly 3/10th of the suit properties in a separate patch out of which Defendant No. 43 be given Ac. 0.16 dec. of land purchased vide Ext. b and the balance land if available be allotted in favour of the plaintiff and Defendant No. 10 to 16 jointly and Defendant No. 34 to 39 jointly in the ratio 2:1.” The respondent no. 1-plaintiff by the above order having only been partially aggrieved preferred an appeal under section 96 of the Code of Civil Procedure. b and the balance land if available be allotted in favour of the plaintiff and Defendant No. 10 to 16 jointly and Defendant No. 34 to 39 jointly in the ratio 2:1.” The respondent no. 1-plaintiff by the above order having only been partially aggrieved preferred an appeal under section 96 of the Code of Civil Procedure. The main ground of attack to the preliminary decree is with respect to the genuineness and validity of the registered sale-deed dated 16.07.1951, Ext. B and accordingly the relief sought is for necessary modification of the decree, consequential to that. The properties covered under the said sale-deed when had been excluded from the purview of partition, the lower appellate court holding to the contrary, has thus held the same as also liable for partition. So, now the defendants being aggrieved by the judgment and decree passed by the lower appellate court have filed this second appeal. 3. 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. 4. In view of the challenge, now the scope of the appeal centers round the finding of the trial court so far as the issue no. 2 and 3 are concerned which relate to the said registered sale-deed dated 16.07.1951 admitted in evidence and marked as Ext. B. The point remains whether the said sale-deed is genuine and valid in the eye of law and as such whether the property covered under the said sale-deed is liable to be partitioned or to be excluded from the purview of the partition. 5. The appeal has been admitted on the following substantial question of law:- Whether the lower appellate court has fallen in grave error, both in law and fact by ignoring the sale-deed, Ext. B and going to set aside the finding of the trial court that the property covered under it is not liable to be partitioned and by holding that it is also liable to be partitioned, when the document is more than 30 years old remaining unchallenged for all these period? 6. Learned counsel for the appellants submits that the sale-deed, Ext. B is a valid document in the eye of law and when that has remained unchallenged all through, the trial court has rightly decided issue no. 6. Learned counsel for the appellants submits that the sale-deed, Ext. B is a valid document in the eye of law and when that has remained unchallenged all through, the trial court has rightly decided issue no. 2 and 3 not only holding the sale-deed to be admissible in evidence but also that it is valid with the title under the said sale-deed to have passed on to the hands of the vendees. This finding according to him has been set aside without any legal justification and on flimsy ground. Learned counsel for the respondents, on the other hand supports the finding of the lower appellate court in saying that the properties covered under the Ext. B has been rightly brought into the arena of partition. This registered sale-deed dated 16.07.1951, Ext. B has been executed by the plaintiff’s father, Jamal Hussain and his three sisters namely, Taharun Nisa Begum, Meherun Nisa Begum and Mayamun Nisa Begum. The sale has been made in favour of Md. Kasim, the father of defendant no. 43. The plaintiff has averred the year of birth of his father to be 1939. So, it is stated that by the time of execution of sale-deed he was a minor and thus legally incapaciated and lacking competency in executing the sale-deed. The defendants have pleaded that Jamal and three sisters had sold the land to Md. Kasim by executing registered sale-deed on 16.07.1951 for valuable consideration and pursuant to the said sale; there had been delivery of possession of the suit property to Md. Kasim. More interestingly, the plaintiff had not initially made any averments in the plaint regarding execution of said sale-deed. The plaint has come to be amended after written statement. There has been insertion of one paragraph in that respect. It is stated therein that the plaintiff has no knowledge about it. Next it is also said that in case the said sale is proved and it is established that there had been delivery of possession of the said land to the Md. Kasim, no objection would remain on his part for exclusion of the said property. Then again at a later stage, the plaintiff has challenged the said sale on the ground of minority of his father. The trial court had rightly taken note of all these features. Kasim, no objection would remain on his part for exclusion of the said property. Then again at a later stage, the plaintiff has challenged the said sale on the ground of minority of his father. The trial court had rightly taken note of all these features. Firstly, that such sale was totally suppressed and secondly, it was not put to challenge on any legally tenable ground even after made known in view of the claim in the written statement and lastly it has been resisted on the ground that father of the plaintiff as the vendor had no legal competency to so execute the sale-deed being a minor. The trial court has adversely viewed such developments in the pleading centering the said sale-deed. When the plaintiff seeks for partition of the properties described in the sale-deed, Ext. B, it is really interesting to note that even that was not pleaded and then after the pleading came from the side of the defendants, it was not challenged on any ground as void and at a late stage, it is being resisted. It is stated that the father was born in the year 1939 and as such was a minor at the time of execution of the sale-deed, Ext. B and that is projected as the sole ground for declaring the sale void so as not to exclude the property covered by it from the purview of partition. 7. The trial court has gone through the evidence as also considered the entry of the year of birth of the plaintiff’s father in the family pension book which has been proved as Ext. 5 from the side of the plaintiffs and cumulatively viewing all those had found that the ground of challenge to the sale is untenable. The lower appellate court as is seen giving maximum stress upon the year of birth of the father of the plaintiff as mentioned in Ext. 5 and the custody of the document which has the impact on that ground of challenge has held it to be invalid. The sale being of the year 1951, had not received any challenge from any quarter till the institution of the suit on any ground whatsoever. It is not said that the vendor had no right to sale. 5 and the custody of the document which has the impact on that ground of challenge has held it to be invalid. The sale being of the year 1951, had not received any challenge from any quarter till the institution of the suit on any ground whatsoever. It is not said that the vendor had no right to sale. One of the executants of the saledeed being a minor, he has not challenged the sale-deed within a period of 3 years of his attaining majority. It is also not stated that he had repudiated the same on attaining majority by way of his conduct. Admittedly, the very purpose of making defendant no. 43 as a party to the suit is but for that transaction. The possession of the property is stated to have been delivered to the vendee. In view of the above, the lower appellate court is held to have erred in law by going to hold the sale-deed as void and on that basis going to include the property covered therein within the purview of partition. The substantial question of law as framed receives its answer accordingly in favour of the appellant. 8. Resultantly, the appeal stands allowed and the judgment and preliminary decree as passed by the lower appellate court are hereby set aside and those passed by the trial court are hereby restored. In the facts and circumstances, there shall, however, be no order as to cost.