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2016 DIGILAW 859 (ORI)

Bhagirathi Sahu v. Manu Nayak

2016-09-23

A.K.RATH

body2016
JUDGMENT : A.K. RATH, J. 1. This is plaintiff’s appeal against a confirming judgment. 2. The case of the plaintiff is that she is the cousin sister of late Sadananda, who died issueless. Schedules A & B properties are the ancestral properties of Sadananda. After his death, the plaintiff being the sole successor-in-interest of Sadananda has succeeded to the ancestral properties left behind by him. The defendant is no way related to Sadananda. But he claims to have got one Willnama executed by one Basanti Naik bequeathing the suit properties in his favour. The defendant is the brother’s son of Basanti. Basanti was a full time maid servant engaged by Sadananda during his old age. Sadananda is “Sundhi” by caste, whereas Basanti is a scheduled tribe. Sadananda had married to one Sundhi woman. At one point of time, Sadananda became a “Sanyasi” and left home for a pretty long period. About 30 years before filing of the plaint, he returned home. But in the meanwhile his wife had left the village, whose whereabouts are not known till date. Basanti was a married woman. There was no marital relationship between Sadananda and Basanti, nor even any conjugal relationship between the two. Because of her long stay in Sadananda’s house as a full time maid servant, the people of the locality mistook her to be the ‘kept-wife’ of Sadananda. During life time of Sadananda, Basanti cunningly got her name entered in the voters list as the wife of Sadananda. Sadananda died in the year 1983. Taking advantage of the wrong entry in the voters’ list, Basanti could obtain a certificate from the local Tahasildar that she was the legal heir of Sadananda. Basanti died on 2.11.1990. Thereafter on 12.11.1990 the plaintiff applied for a legal heir certificate. The defendant also applied for a legal heir certificate. The Tahasildar considered both the applications and passed the final order on 27.5.1991 directing the parties to seek redress before a court of law as it was a disputed matter. At that time, it came to light that the defendant had claimed the suit property on the basis of a Willnama said to have been executed by Basanti Naik. The Tahasildar considered both the applications and passed the final order on 27.5.1991 directing the parties to seek redress before a court of law as it was a disputed matter. At that time, it came to light that the defendant had claimed the suit property on the basis of a Willnama said to have been executed by Basanti Naik. It is claimed that the defendant obtained the Will by putting undue influence on Basanti, who was an illiterate woman with an impression that she would execute a power of attorney in his favour to safeguard her properties. There was no proper attestation of the execution of the Will. With this factual scenario, the plaintiff has sought for a declaration that she being the sole successor of Sadananda is entitled to get the suit properties with further declaration that Basanti was not the legally married wife of Sadananda and the Willnama dated 6.1.1990 executed by Basanti is void and inoperative, besides seeking a direction to the defendant to give vacant delivery of possession of the suit schedule ‘A’ property. 3. Pursuant to issuance of summons, the defendant entered appearance and filed written statement denying the assertions made in the plaint. The specific case of the defendant is that the plaintiff is not related to Sadananda. The suit properties are self acquired properties of Sadananda. Basanti is the legally married wife of Sadananda. She had duly executed a Will on 6.1.1990 voluntarily and with free mind. It is further stated that from his childhood Basanti had kept him as her son and he had been looking after both Sadananda and Basanti as their son. On their demise, he had performed their obsequies. During pendency of the appeal before the court below the original plaintiff died, whereafter the appellants have been substituted. 4. On the interse pleadings of the parties, learned trial court framed eleven issues. They were:- “(1) Whether the suit properties are the ancestral properties of the plaintiff? (2) Whether the plaintiff is the successor of her brother late Sadananda Sahu and entitled to get ‘A’ and ‘B’ scheduled properties? (3) Whether late Basanti Nayak was the legally married wife of late Sadananda Sahu as per caste custom of Sundhi Samaj? They were:- “(1) Whether the suit properties are the ancestral properties of the plaintiff? (2) Whether the plaintiff is the successor of her brother late Sadananda Sahu and entitled to get ‘A’ and ‘B’ scheduled properties? (3) Whether late Basanti Nayak was the legally married wife of late Sadananda Sahu as per caste custom of Sundhi Samaj? (4) Whether late Kanhei Sahu and late Gopinath Sahu were two brothers and by the way Late Sadananda Sahu, son of late Gopinath Sahu is the cousin brother of the plaintiff (daughter of late Kanhei Sahu)? (5) Whether the plaintiff is entitled to be declared with right, title, interest and possession over the suit scheduled properties? (6) Whether late Basanti Nayak was the maid servant of late Sadananda Sahu and she had married for 3rd time to one Udaya Panda and as such continued conjugal life till her death? (7) Whether the Willnama dated 6.1.90 executed by late Basanti Nayak in favour of the defendant is a created one, ab initio void and inoperative under law and the same is not binding to the plaintiff? (8) Whether the suit is maintainable? (9) Whether the suit is barred by time? (10) Whether the plaintiff has got cause of action to file the suit against the defendant? (11) Whether the plaintiff is entitled to get the relief as claimed for?” 5. To substantiate the case, the plaintiff had examined five witnesses and on her behalf nine documents had been exhibited. The defendant had examined two witnesses and on his behalf seven documents had been exhibited. 6. Learned trial court came to hold that the suit properties are not the ancestral property of Sadananda and answered the issue No. 1 in negative. It further held that the plaintiff could not prove herself to the cousin sister of Sadananda and accordingly answered issue No. 4. The plaintiff has failed to adduce satisfactory evidence to establish the correctness of the genealogy and issue No. 2 answered in negative against the plaintiff. In issue nos.3 and 6, learned trial court held that Basanti and Sadananda were deemed as husband and wife. Though the marriage between them was not proved, but Basanti was recognized by the Society to be the wife of Sadananda and accordingly answered issue nos.3 and 6. Issue No. 7 is on due execution of the Will. In issue nos.3 and 6, learned trial court held that Basanti and Sadananda were deemed as husband and wife. Though the marriage between them was not proved, but Basanti was recognized by the Society to be the wife of Sadananda and accordingly answered issue nos.3 and 6. Issue No. 7 is on due execution of the Will. Learned trial court held that the Willnama dated 18.1.1990 executed by Basanti Sahu in favour of the defendant is not a void one and answered issue No. 7 in negative. It further held that the suit was not maintainable and there was no cause of action for the plaintiff to institute the suit. Issue nos.8, 9 and 10 were answered in negative. Held so, learned trial court dismissed the suit. The plaintiff was unsuccessfully challenged the same before the learned District Judge, Phulbani in T.A. No. 1 of 2002, which was eventually dismissed. 7. Heard Mr. B. Mohanty, learned counsel for the appellants. Learned counsel for the appellants submits that Basanti was not the wife of Sadananda and as such the Willnama dated 18.1.1990 executed by her in favour of the defendant is void. The same was obtained by the defendant fraudulently. Due execution of the Willnama was not proved. He further submits that the genealogy given in the plaint has neither been challenged by the defendant in the written statement nor the defendant has adduced any evidence to disprove the genealogy. The plaintiff has successfully proved that she is the cousin sister of Sadananda Sahu. The learned courts below erred in answering issue No. 4 in negative. Sadananda was issueless. He accepted the plaintiff as her daughter. Since the plaintiff was bed ridden, she executed the power of attorney vide Ext.-1 in favour of her son P.W.2. Thus learned trial court erred in drawing adverse inference against the plaintiff. 8. Admittedly, the plaintiff was not examined as witness. She executed a power of attorney in favour of the son of P.W.2. The question does arise as to whether the power of attorney holder can depose for the principal for the acts done by the principal? 9. In Sankarsan Mohapatra (dead) vs. Smt. Sailabala Mishra, 2015 (II) CLR 820, this Court held that: “6. She executed a power of attorney in favour of the son of P.W.2. The question does arise as to whether the power of attorney holder can depose for the principal for the acts done by the principal? 9. In Sankarsan Mohapatra (dead) vs. Smt. Sailabala Mishra, 2015 (II) CLR 820, this Court held that: “6. The question does arise as to whether a power of attorney holder in exercise of power granted by the instrument can depose for the principal for the acts done by the principal? 7. The subject of dispute is no more res integra. The apex Court in the case of Janki Vashdeo Bhojwani and another v. Indusind Bank Ltd. and others, AIR 2005 SC 439 , in paragraph-13 held as follows:- “13. Order III, Rules 1 and 2, CPC, empowers the holder of power of attorney to “act” on behalf of the principal. In our view the word “acts” employed in Order III, Rules 1 and 2, CPC, confines only in respect of “acts” done by the power of attorney holder in exercise of power granted by the instrument. The term “acts” would not include deposing in place and instead of the principal. In other words, if the power of attorney holder has rendered some “acts” in pursuance to power of attorney, he may depose for the principal in respect of such acts, but he cannot depose for the principal for the acts done by the principal and not by him. Similarly, he cannot depose for the principal in respect of the matter which only the principal can have a personal knowledge and in respect of which the principal is entitled to be cross-examined.” 8. In view of the authoritative pronouncement of the apex Court in the case of Janki Vashdeo Bhojwani (supra), the learned trial court fell into patent error of law in holding that the power of attorney holder can adduce evidence on behalf of the party. But then the power of attorney holder may depose for the principal in respect of such acts, if he has done some acts pursuant to power of attorney.” 10. The original plaintiff was not examined as a witness. No application was filed in the court below to examine her through a commission. But then the power of attorney holder may depose for the principal in respect of such acts, if he has done some acts pursuant to power of attorney.” 10. The original plaintiff was not examined as a witness. No application was filed in the court below to examine her through a commission. In view of the authoritative pronouncement of this Court in the case of Sankarsan Mohapatra (supra), the courts below are justified in drawing adverse inference against the plaintiff. 11. Learned lower appellate court held that the suit properties are self acquired properties of Sadananda and affirmed the findings of the learned trial court. It further held that R.M.C. Case No. 963/91 filed for issuance of legal heir certificate, the plaintiff has claimed herself to be the own sister of Sadananda (and not cousin). The same is contrary to the stand taken in the suit. In the plaint, the plaintiff has described as the daughter of Kanhei Sahu. Sadananda is the son of Gopinath Sahu. Kanhei Sahu and Gopinath Sahu are two sons of Dangi Sahu, the common ancestor. The plaintiff has filed an affidavit Ext.2 in RMC No. 963/91 before the Tahasildar, G. Udaygiri. She stated herself to be the daughter of Gopinath Sahu. Learned lower appellate court further held that in the affidavit it has been consistently and repeatedly stated that the plaintiff and Sadananda are the daughter and son of Gopinath Sahu. Referring the affidavit vide Ext.2, it held that the plaintiff has not only admitted that Basanti was ‘kept-wife’ of Sadananda, but also she has acknowledged that she is the legal heir of late Basanti and that except her there is no other legal heir of Sadananda and Basanti. In view of the same, the plaintiff waited till death of Basanti to make an application for legal heir certificate. Sadananda and Basanti, who had been living together as husband and wife for a pretty long time and accepted as such by the people in the locality. Learned lower appellate court concurred with the finding of the learned trial court with regard to the execution of the Will. 12. These are essentially finding of facts. There is no perversity or illegality in the finding of the courts below. The second appeal does not involve any substantial question of law. Accordingly, the same is dismissed.