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2017 DIGILAW 1106 (ORI)

Narayan Sahoo v. Khira Prava Sahoo

2017-09-22

D.DASH

body2017
JUDGMENT The appellants by filing this appeal are challenging the judgment and decree passed by the learned Civil Judge (Sr. Division), Jajpur in Title Suit No. 166 of 1999. The respondent nos. 1 and 2 as the plaintiffs had filed the suit for partition of the land described in schedule A,B & C of the plaint by allotment of 4/9th share to them. The trial Court has passed the preliminary decree for partition of the properties as above declaring 4/9th share of the plaintiffs 4/9th share of defendant no. 1 and 1/9th share of the defendant no. 2. Being aggrieved by the aforesaid judgment and preliminary decree, the defendant nos. 1 and 2 have filed the present appeal. 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. Plaintiffs case is that one Bairagi Sahu had three sons, namely, Madhu @ Madhusudan, Narayan and Jadu and a daughter called Sanjukta. Madhu predeceased Bairagi in the year 1983. Bairagi died in the year 1997. Plaintiffs are the widow and daughter of Madhu. It is further stated that Jadu also predeceased Bariragi on 20.11.1998. Jadu is said to have died unmarried. It is stated that the suit lands are the ancestral lands in the hands of the parties. It is next stated that after the death of Bairagi in the year 1997, the plaintiffs though are living separately the lands are still in joint and have never been partitioned. According to the case of the plaintiffs, the parties are in possession of some portions of the properties each as per their convenience without any partition in metes and bounds. The plaintiffs have filed the suit for partition claiming their 4/9th share over the suit property since the defendants refused to make any amicable partition even though so demanded by the plaintiffs. 4. The defendant nos. 1 and 2 in their written statement challenged the maintainability of the suit on the ground of non-inclusion of all the joint family property for the purpose of partition and thus being not brought to the hochpot and for non-joinder of necessary parties, namely, the vendees of the co-sharers, who have purchased property from them. 4. The defendant nos. 1 and 2 in their written statement challenged the maintainability of the suit on the ground of non-inclusion of all the joint family property for the purpose of partition and thus being not brought to the hochpot and for non-joinder of necessary parties, namely, the vendees of the co-sharers, who have purchased property from them. Though few names have been given, no further details have been provided as to who had sold which part/portion of the property to them either individually or jointly. It is stated that Bairagi died on 20.12.1998 and not in the year 1997. They state that the plaintiffs had never lived with Bairagi. Their specific case is that Madhu after his marriage being ill advised by his wife-plaintiff no. 1 had separated from the family in the year 1980 and had no connection with his father-Bairagi, two brothers, namely, Narayan and Jadu as also the sister named Sanjukta. It is their case that Madhu possessed out 1 1/4th of the properties by amicable arrangement till his death on 28.01.1983 and during that time Bairagi, Narayan, Jadu and Sanjukta were joint and even said jointness continued after the death of Bairagi and wife of Bairagi, namely, Sita died during the said jointness with Bairagi, Narayan and Jadu when Sanjukta had already married. It is stated that since Jadu had not married, he had adopted Jayamala, the second daughter of defendant no. 1 on the ‘Sripanchami’ day of the year 1988 when she was aged about six years. It is further stated that there was giving and taking ceremony for the said adoption and the natural parents, i.e., Narayan and his wife Sabitri had given Jayamala in said adoption and since then Jayamala was all along accepted and as such recognized and treated as the daughter of Jadu. The defendants further state that Jadu having died on 20.11.1990, his interest devolved upon Jayamala and Bairagi having died on 20.12.1998, his interest over the properties devolved on Narayan, Sanjukta and Jayamala as long before that then Madhu with his wife and daughter were separately living having severed their tie with the family. So it is stated that the plaintiffs have four annas of interest over the properties described in schedule ‘A’ whereas the defendant no. So it is stated that the plaintiffs have four annas of interest over the properties described in schedule ‘A’ whereas the defendant no. 1 has five annas four pahi interest; Jayamala have got five annas four pahi and Sanjukta has got interest one anna and four pahi. In respect of schedule ‘B’ property, it is stated that the plaintiffs have got tow annas four pahi interest Narayan has got three annas four pahi interest, Jayamala has got three annas four pahi interest, Sanjukta has got ten pahi interest and Baishnaba and others have got six annas of interest. Insofar as schedule ‘C’ property is concerned from out of Bairagi’s nine annas four pahi interest; the plaintiffs are said to be having two annas four pahi interest; Narayan three annas one pahi interest, Jayamal three annas one pahi interest and Sanjukta is said to be having ten pahi interest. They state that Sanjukta having alienated and gifted some properties, those would operate to the extent of her share and would go to the hands of her vendee and donee, namely, Narayan and Trilochan. 5. On the above pleadings, the trial Court has framed the following issues: ISSUES 1. Is the suit maintainable? 2. Whether the plaintiffs have any cause of action to file the suit? 3. Whether the suit schedule ‘A’, ‘B’ and ‘C’ are ancestral land of plaintiffs and defendant nos. 1 to 3? 4. Whether Bairagi Sahoo had three sons namely Narayan Sahoo, Madhu Sahoo and Jadu Sahoo and Jadu Sahoo has adopted one Jayamala, daughter of Narayan? 5. Whether Madhu is separated from joint family in the year 1980? 6. Whether the plaintiffs have 4/9th share each of ‘A’, ‘B’ and ‘C’ schedule land? 7. Whether the defendant no.1 has constructed as a house on the suit land bearing plot no. 1047 under Khata no. 258 out of his exclusive income? 6. First of all taking up issue nos. 3 and 4 together for decision, on analysis of evidence in the light of the pleadings, the properties described in schedule ‘A’, ‘B’ and ‘C’ have been held to be the ancestral properties of the parties. Secondly, going to the case of adoption of Jayamala, the second daughter of Narayan, the defendant no. 1 w/s Jadu, as set forth by the defendant nos. Secondly, going to the case of adoption of Jayamala, the second daughter of Narayan, the defendant no. 1 w/s Jadu, as set forth by the defendant nos. 1 and 2, in the absence of any document any evidence, embarking upon the exercise of microscopic examination of oral evidence on record and taking note of some facts and circumstances emanating therefrom as running against the factum of adoption, the finding has been recorded that Jayamala had not been adopted by Jadu as has been pleaded by the defendant nos. 1 and 2 and thus said case set up by the defendant nos. 1 and 2 has been rejected. With the above finding, the trial Court has gone to decide issue no.5 as to whether Madhu since the year 1980 was separate from other members of the joint family and the joint family thus continued to exist with Bairagi, his sons other than Madhu and daughter. The answer to this issue has also been recorded against the case projected by the defendant nos. 1 and 2. Next coming to issue no.8, the conclusion has been that the building standing over the land under Plot No. 147 has been constructed from out of the joint family income. Issue nos. 1 and 2 being taken together have been decided in favour of the plaintiffs. In deciding the suit, the trial Court has declared the share of the parties as afore-stated. 7. At this juncture, it may be stated that on 04.03.2016 said Jayamala as the petitioner had filed an application under Order-1 Rule-10 of the Code of Civil Procedure with a prayer to implead her as respondent no. 7 in this appeal. The respondent no. 1 filed her objection to the said petition serving the copy of the same upon learned counsel appearing on behalf of the said Jayamala, the petitioner. This has been numbered as Misc. Case No. 51 of 2016. However, on the two dates of hearing of the appeal, none appeared on behalf of the petitioner to move the said petition and accordingly it has stood dismissed for non-prosecution of the final date of hearing of the appeal. It may further be mentioned that the appellants has filed an application on 26.04.2016 which has been numbered as Misc. However, on the two dates of hearing of the appeal, none appeared on behalf of the petitioner to move the said petition and accordingly it has stood dismissed for non-prosecution of the final date of hearing of the appeal. It may further be mentioned that the appellants has filed an application on 26.04.2016 which has been numbered as Misc. Case No. 119 of 2016, for granting leave to take an additional ground in this appeal and that is as follows: “For that the learned Trial Court acted with material irregularity and in excess of jurisdiction in deciding the issue of adoption of Jayamala in her absence for which the plaintiff/Respondents No. 1 and 2’s suit based upon the assertion that Jayamala is not the adopted daughter of Jadu is not maintainable for her non-joinder, she being a necessary party in terms of Order 1 Rule 9 of CPC.” Another petition has been filed on the same day for amendment of the written statement by way of assertion of the following at sub-para of the paragraph-4 of the written statement which has been numbered as Misc. Case No. 120 of 2016. The proposed amendment is as under: “The instant suit at the behest of the plaintiff claiming relief on the allegation that Jayamala is not the adopted daughter of Jadu cannot be adjudicated in the absence of Jayamala who is a necessary party, for which the said suit is liable to be dismissed for non joinder of necessary party.” The respondent no.1 has filed objection to the above petitions. It may be stated here that both the additional ground in the appeal and the amendment sought to be introduced in the written statement relate to the contention that the trial Court could not have decided the issue concerning the adoption of Jayamala by Jadu in the absence and of Jayamala and behind her back she being a necessary party to the said suit, the same ought to have been dismissed. It is pertinent to state here that this appeal has been filed on 05.04.2013 and the prayer for taking the additional ground has been made after lapse of about thirteen years. Similarly, the written statement having been filed before the trial Court in the year, 2001, the amendment is sought for after lapse of a decade and half. It is pertinent to state here that this appeal has been filed on 05.04.2013 and the prayer for taking the additional ground has been made after lapse of about thirteen years. Similarly, the written statement having been filed before the trial Court in the year, 2001, the amendment is sought for after lapse of a decade and half. Be that as it may, the trial Court in the present suit has framed an issue with regard to the acceptance of the case of the defendants as to whether Jadu had adopted Jayamala or not and after having answered the same holding that the defendants have failed to establish the said factum of adoption it has proceeded to dispose of the suit. Thus it is found that even in the absence of the partition sought to be in produced by amendment, an issue already been framed on the rival pleadings now all these are dependent on the sustainability of the answer to that issue. In the instant case, the contesting defendant no. 1 is none other than the natural father of the Jayamala and the other contesting defendant is the Jayamala’s paternal aunt (sister of natural as well as the so called adopted father). Law is fairly settled that merely because a party to the suit raises an issue of this nature, that a person is said to be the adopted daughter of one, the same is not readily to be taken as a necessary party to the suit in saying that in her absence the suit cannot be decided. The party taking such a plea has to establish the fact by evidence by preponderance of probability for its acceptance by the Court. Therefore, now it is necessary to examine as to whether the trial Court has rightly answered the said issue upon proper examination of evidence let in by the parties. Only in the event, the case of the defendants is accepted on that score, then only said Jayamala can be said to be a necessary party to the suit for being arraigned as such and for follow up consequential actions. 8. Only in the event, the case of the defendants is accepted on that score, then only said Jayamala can be said to be a necessary party to the suit for being arraigned as such and for follow up consequential actions. 8. Learned counsel for the appellants in course of hearing except reiterating the stand that the trial Court has erroneously decided the status of Jayamala as not the adopted daughter of Jadu in her absence has not been able to place any such clinching evidence on record to counter the finding so recorded. She submitted that Jayamala being the competent person to establish such fact by tendering evidence both oral and documentary, the trial Court without giving her the opportunity to have here say ought not to have gone to decide the issue. She has further placed the evidence of D.W. 1 (defendant no.1) and D.W. 4 at paragraph-8 and at paragraph-7 of their respective depositions in support of the stand. Learned counsel for the respondent nos. 1 and 2 submits that this plea of adoption of Jayamala by Jadu has been taken by none other than the natural father of Jayamala which has been supported by her sister. According to him, it is only with a view to somehow protract the litigation and take a chance in defeating the plaintiffs claim of partition. He submitted that important evidence with regard to adoption has to come from the lips of defendant no. 1 which he has tendered and the trial Court has refused to accept the said evidence with regard to the factum of adoption by assigning very good reasons which finding is free from any such factual or legal infirmity. Therefore, he submits that the trial Court has rightly answered that issue against the defendants. At the cost of repeatation, it may be stated that the said Jayamala although had filed an application for being impleaded as party to this appeal after lapse of 13 years has finally chosen to remain absent at the time of hearing and the application at her behest has therefore been dismissed. The contesting defendant no. 1 is none other than natural father of Jayamala and he is the elder brother of the so called adoptive father of Jayamala namely Jadu. The contesting defendant no. 1 is none other than natural father of Jayamala and he is the elder brother of the so called adoptive father of Jayamala namely Jadu. It has been pleaded in the written statement at para-12 that Jadu being unmarried had adopted Jayamala on the Shree Panchami Day of the year 1988. So, by the time, the suit had been filed, Jayamala was still a minor, her age being taken as six years in the year 1988 accepting the written statement version and therefore this defendant no. 1 was then the competent person to represent her in the suit itself and to take necessary steps in that regard which admittedly he has not done and instead he has simply remained satisfied by merely making an averment in the written statement. Let us now see the evidence adduced by the defendant no. 1 as against the overwhelming denial evidence being let in by the plaintiffs. He has clearly stated that Jayamala was residing with him even after her adoption by Jadu. He has also admitted to have not pleaded in the written statement with regard to the performance of any ceremony of giving and taking in presence of any of their relative or others. He has also not asserted that any document to that effect had been prepared. The evidence of D.W.4 is per se unbelievable if one simply goes through paragraph-7 of his deposition. In such state of affairs in the evidence, no fault is found with the finding of the trial Court that the defendant no. 1 and 2 have utterly failed to prove the factum of adoption of his daughter Jayamala by his brother Jadu except making bald statements to that effect which are per se not believable without any detail as also deriving no support from any other source. If we take even into consideration the document which has been filed by said Jayamala with the petition, the same makes the entire projected case as regards the adoption of Jayamala by Jadu as unacceptable. It is stated in the written statement filed by the defendant no. 1, the natural father of Jayamala that he had given Jayamala in adoption of Jadu in the year 1988 when Jayamala was six years old. The filed copy of the voter identity card of Jayamala now shows her age as on 01.01.2002 to be 20 years. It is stated in the written statement filed by the defendant no. 1, the natural father of Jayamala that he had given Jayamala in adoption of Jadu in the year 1988 when Jayamala was six years old. The filed copy of the voter identity card of Jayamala now shows her age as on 01.01.2002 to be 20 years. Furthermore, the document is a post litem one which has been filed after 14 years. There is no explanation for the same. In this connection, the submission of the learned counsel for the respondent no. 1 and 2 that only after creating this document, the projected case of adoption is being seriously pressed by the defendants is found to be having the force. 9. That aforesaid conclusion, now leads me to take up the next contentious issue with regard to allotment of the share to the parties. It may be stated that there remains no controversy as to the nature of property involved in the said to be the ancestral properties in the hands of the parties. The pleas has been taken by the defendants that since the predecessor in interest of the plaintiffs i.e. Madhu had separated from the joint family when his father, two brothers and sister were alive, the plaintiffs are not entitled to more than the 1/4th share over the properties. Learned counsel for the appellants submits that the trial Court has completely ignored the overwhelming evidence on the score of separation of Madhu, the predecessor in interest of the plaintiffs from the joint family when remaining members constituted the joint family and continued as such. According to her, the trial Court ought to have held that Madhu having separated from the coparcenary, he was not entitled to any share more than 1/4th share for which these plaintiffs have succeeded to the same being his Class-I heirs and to that extent, not more. Learned counsel for the respondent no. 1 and 2 submits that the evidence on record are wholly insufficient on the score of complete separation of Madhu from the coparcenery during the lifetime of his father Bairagi who remained joint with other two sons i.e. the defendant no. 1 and Jadu. Therefore, he submitted that the trial Court’s order of allotment of share is in accordance with law. 10. The case of the defendants is that Bairagi died a month after his son Jadu died. 1 and Jadu. Therefore, he submitted that the trial Court’s order of allotment of share is in accordance with law. 10. The case of the defendants is that Bairagi died a month after his son Jadu died. The Explanation-2 of Section 6 of the Hindu Succession Act as it then stood, in order to come into play, there has to be a clear finding that Madhu had separated himself from the coparcenary. The defendants in the suit claim the application of the Explanation-2 to the Section -6 of the Hindu Succession Act. In view of that, the burden of proof lies upon them to establish through evidence by preponderance of probability that Madhu had separated himself from the coparcenary and after separation Madhu was no longer entitled to any right over the property remaining in the hands of his father Bairagi, brothers Narayan and Jadu. If we read the Explanation, the word separated himself certainly can’t be under stated. The separation as intended is to be proved to be as per the volition, will and desire of Madhu. From the written statement averment, we find that said separate possessions by an amicable arrangement and by that Madhu was possessing 1/4th property of the Bairagi. This itself suggests that there was no separation in the strict since of the term as the case demands to come within the Explanation. Moreover, the clear averment in the written statement is that Madhu was separated from the family in the year 1980. So, if that is accepted, it can’t be said that Madhu himself separated and that the separation took place at his instance and desire. One more important piece of evidence which stands against said case of the defendants that is Ext. 5. It shows that after death of Bairagi, the plaintiff no. 1 and defendant no. 1 have jointly sold the properties for the purpose of meeting the expenses towards the obsequies ceremony of Bairagi and in that document, there is no whisper that there was any such separation as is now pleaded. This document gives a fatal blow to the said plea taken by the defendant no. 1 and 2. So the defendant no. 1 and 2 have failed to establish their case as projected in the written statement. For all these reasons, this Court finds absolutely no fault with the said findings of the trial Court. This document gives a fatal blow to the said plea taken by the defendant no. 1 and 2. So the defendant no. 1 and 2 have failed to establish their case as projected in the written statement. For all these reasons, this Court finds absolutely no fault with the said findings of the trial Court. All other relevant aspects relating to the partition having been found to have been duly taken care of by the trial Court, the judgment and decree assailed in this appeal stand confirmed. 11. Resultantly, the appeal stands dismissed. In the facts and circumstances, there shall be no order as to cost. Appeal dismissed.