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2016 DIGILAW 833 (ORI)

Ritu Sahu v. Gandadipa @ Ganadhipa Sahu

2016-09-19

D.DASH

body2016
JUDGMENT : The unsuccessful plaintiff in both the courts below has filed this second appeal challenging the judgment and decree passed by the learned District Judge, Kalahandi, Bhawanipatna in R.F.A. No. 11 of 2009 wherein the judgment and decree passed by the learned Civil Judge (Senior Division), Bhawanipatna in C.S. No. 19 of 2008 have been confirmed. 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 is the daughter of defendant no.1. Defendant no.2 is her brother, whereas defendant no.3 is her sister. Plaintiff’s case is that the property originally belonged to her paternal grandfather, Chandrasekhar Sahu, who died in the year 1976 leaving behind his two sons, namely Gandadipa @ Ganadhipa and Chuleswar. Some time thereafter, Gandadipa @ Ganadhipa, the defendant no.1 and his brother Chuleswar partitioned the property which they succeeded upon death of Chandrasekhar between them and the suit land described in schedule A fell to the share of defendant no.1. This plaintiff claimed that she being the granddaughter of Chandrasekhar through his son, the defendant no.1 is entitled to 1/4th share of the suit property. It is stated that defendant nos. 1 and 2 without her permission and consent sold away major portion of the property to defendant nos. 4, 5 and 6 to which she had raised protest. So, she claims partition of the properties. 4. Defendants in the written statement while traversing the plaint averments, assert that the plaintiff has no right to maintain the suit for partition claiming allotment of 1/4th share of the suit property as also for declaration that the registered sale deed standing in favour of the defendant nos. 4, 5 and 6 are void; in other words to challenge the registered sale deed executed by her father and brother. It has been stated that the suit land have been sold for the purpose of marriage of the plaintiff and the defendant no.1 being the karta of the family has done so perfectly within his legal rights and competence which are said to be unimpeachable. 5. It has been stated that the suit land have been sold for the purpose of marriage of the plaintiff and the defendant no.1 being the karta of the family has done so perfectly within his legal rights and competence which are said to be unimpeachable. 5. The trial court on such rival pleadings framed in total five issues and has answered all those against the plaintiff holding the suit as laid and for the reliefs claimed as not maintainable at the behest of the plaintiff; that she cannot be declared to have 1/4th share over the suit land at this stage, and the sale deeds executed in favour of the defendant nos. 4 to 6 cannot thus be impeached at her behest now in the eye of law. The order of dismissal of the suit being called in question in the first appeal, the lower appellate court as is seen from the judgment has made further discussion of the position of law holding the field and having applied those to the facts and circumstances of the case as borne out from evidence has accordingly held the plaintiff to be not entitled to get 1/4th share over the suit property and that the properties having been sold by his father, the defendant no.1 as the karta of the joint family being for legal necessity and benefit of family, those sales have been held to be valid and accordingly are immune from challenge. So, ultimately the dismissal of the suit having been upheld, the present second appeal is the next move by the unsuccessful plaintiff. 6. Learned counsel for the appellant contends that the ancestral character of the property has been proved, and so the plaintiff has got her share over the suit property. He also contends that in the absence of any partition, the defendant nos. 1 and 2 could not have sold any portion from out of their share over the said property and the plaintiff is not bound by such alienations. He further contends that when alienations made by the defendant nos. 1 and 2 have been challenged, the defendants have to plead and prove that such alienation is for the benefit of the family and that having not been done, the sales ought to have been held to be void. He further contends that when alienations made by the defendant nos. 1 and 2 have been challenged, the defendants have to plead and prove that such alienation is for the benefit of the family and that having not been done, the sales ought to have been held to be void. According to him, these are the substantial questions of law which surface in this appeal for their certification for admission. 7. Plaintiff has simply pleaded that the property belonged to Chandrasekhar Sahu and he died leaving behind his two sons namely, Gandadipa @ Ganadhipa Sahu who is defendant no.1 and none other than the father of the plaintiff and one Chuleswar. So, now the property in the hand of defendant no.1 is claimed to be the ancestral property and this plaintiff seeks partition of the same claiming her entitlement as of 1/4th share and also prays to set aside the sales made by the defendant no.1. So here the defendant no.1 inherited the property from his father. It is not the case of the plaintiff that the property in the hand of Chandrasekhar had come to be succeeded by Chandrasekhar from his father or ancestor. Thus it cannot for a moment be said that Chandrasekhar had a right by birth over it and over that property, his sons had the right as such, therefore, over the property in the hands of defendant no.1, his son and daughters also have any such right. This was the property of Chandrasekhar who admittedly died in the year 1976. So the property came to the hand of his two sons and devolved on them as per the provision of section 8 of the Hindu Succession Act, both being class-I heirs coming to succeed in moity. We are now concerned with this half share of defendant no.1 that he succeeded from his father. This under no circumstance can be taken to be the coparcenery property in the hand of defendant no.1 and it has to be taken as his separate property. The daughter thus has no right to claim partition of the same during the life time of father, the defendant no.1. Accordingly the plaintiff’s suit arraigning his father, defendant no.1 as a party claiming partition of property as above succeeded by him, is not maintainable. The daughter thus has no right to claim partition of the same during the life time of father, the defendant no.1. Accordingly the plaintiff’s suit arraigning his father, defendant no.1 as a party claiming partition of property as above succeeded by him, is not maintainable. Also, she has no right at present to challenge the sales made by her father on the ground of lack of power and competency, saying those to have not made been for legal necessity or for the benefit of the family. For the aforesaid discussion and reasons the submissions of the learned counsel for the appellant fails. 8. Resultantly, the appeal stands dismissed. No order as to cost.