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2017 DIGILAW 132 (ORI)

SIBA SHANKAR SAHU v. UDAYANATH SAHU

2017-01-30

DEBABRATA DASH

body2017
JUDGMENT : Debabrata Dash, J. - The second appeal under section 100 of the Code of Civil Procedure having been decided by the judgment dated 17.06.2015 followed by the decree, the above two petitions for review of the judgment and decree have been filed. The petition under 'A' has been filed by the appellants where as the other one under 'B' has come to be filed by respondent no. 1(a) & 1(c). 2. Essential background facts may be sated as under:- The suit has been filed for partition. One Binayak died in the year 1952 and he had acquired the suit house during his lifetime and residing there with his family till his death. He had married Ratani and had two sons namely, Damodar and Purna Chandra as well as two daughters namely, Kundan and Sabitri. One of the daughters Kundan is the plaintiff. Ratani, the first wife of Binayak is stated by plaintiff to have died in the year 1956 without other relevant details. It is further averred that Binayak had married Subarni who died in the year 1958. Through Subarni, Binayak had no child. Purna Chandra died issueless in the year 1961 and his widow re-married thereafter when they had no child. Damodar died in the year 1971 and his wife Champa had pre-deceased him. The daughter of Binayak namely, Sabitri died in the year 1978 leaving behind her two sons namely, Biswanath and Kalu, this Kalu is defendant no. 1. Biswanath died and his wife Uma is defendant no. 3. Kalu's only sister Apurba is defendant no. 2. The suit being contested mainly on the ground that Binayak and his wife Ratani being the absolute owner of the suit house wherein peaceful enjoyment of the same and they had adopted Kalu, the defendant no. 1 who is none other than sister's son of Damodar and had executed a registered document styled as 'Nirupama Patra' in favour of Kalu on 27.01.1964 and had transferred the suit property to defendant no. 1 for his maintenance putting him in possession with further condition that all the three would enjoy the suit property jointly exercising right and would be so possessing. Alternatively, the defendant no. 1 has set up a case of acquisition by title by adverse possession. 3. 1 for his maintenance putting him in possession with further condition that all the three would enjoy the suit property jointly exercising right and would be so possessing. Alternatively, the defendant no. 1 has set up a case of acquisition by title by adverse possession. 3. The trial court decreed the suit preliminarily in part holding the property as liable to be partitioned amongst the plaintiff and defendants in equal shares and entitling the plaintiff to half share, whereas defendant no. 1 to 4, the rest half jointly. The first appeal carried by the unsuccessful defendants failed. So the second appeal was before this Court that has also been dismissed. 4. The review petition under 'A' is on the ground that this Court has committed error of law by giving a seal of approval to the concurrent finding of the courts below with regard to that Ext. H the so called deed of settlement as invalid and inoperative by erroneously holding that the burden of proof of execution of such document lies on the defendant who has projected the same as the trump card for his case and to thwart the suit. 4. (a) Mr. S. Mishra, the learned counsel for the petitioner contends that this court has lost sight of the settled position of law that in the absence specific challenge being made to the document, the party asserting right under said document is under no legal obligation to further prove the document i.e. Ext. H in the case. Accordingly to this Ext. H is a registered document and has been admitted in evidence and marked as exhibit in the trial without any objection. So, his contention is that it ought to have been accepted as valid and thus to have clothed right upon the defendant no. 1. (b) Mr. B. Panigrahi, learned counsel for the respondents contends that said concurrent finding of fact has been rightly held by this Court as not liable to be interfered with being based on proper appreciation of evidence in the backdrop of sound application of the settled position of law in so far as the correction of right over the suit property in favour of defendant no. 1 is concerned. 5. It is true that the document has been admitted in evidence and marked Ext. H without objection as regards its admissibility in evidence. This Ext. 1 is concerned. 5. It is true that the document has been admitted in evidence and marked Ext. H without objection as regards its admissibility in evidence. This Ext. H is the certified copy of the so called registered deed of settlement. So, as such it's a public document. The objection to its admissibility in evidence even if would have been taken, the same would not have withstood. However, the admissibility of a document in evidence and the evidentiary or the legal value which the document carries for the purpose for which it is said to have been executed followed by registration are altogether two different aspects. Merely because a registered document is produced being executed by one in favour of another, the court is not under legal obligation to accept the document as it is so far as the purpose for which it is said to have come into being, when it is questioned that the document has not clothed any right in respect of the subject matter with the beneficiaries under the same. Thus, I accept the contention of learned counsel for the appellants to the extent that once the party does not object to the admissibility of the document in evidence at the right point of time, when it is so admitted, the same is not liable to be questioned in any later stage that the mode of proof ought to have been different as per law. However, that does not compel the Court to accept the document as nomenclatured or to accept the purpose for which it is said to have been executed and as such the right flowing thereunder for the purpose. This aspect has to be decided looking to the rival case recording a finding on the basis of evidence as to whether the document is acceptable for the purpose for which it is sought to be used. This aspect has to be decided looking to the rival case recording a finding on the basis of evidence as to whether the document is acceptable for the purpose for which it is sought to be used. As for example, a registered sale-deed once being admitted in evidence by some evidence being let in for the same is certainly not liable to be questioned at later such so as to be altogether eschewed from the evidence and as such discarded from consideration because of the fact that the mode of proof as per law has not been followed or there has remained any such legal deficiency for its admission in evidence since it was not so raised at the time when the document was admitted in the evidence and marked exhibit. However, when the factum of passing of title under that very document in favour of vendee is under challenge, the court in order to give a finding on that has to examine the evidence let in by the parties looking at the ground of challenge made, as per the rival case and in that event the court is free to record a finding independently that the party claiming title under the said document if has so derived or not that in finally acting upon it so as to base the finding. Now coming back to the case simply because Ext. H the so called settlement deed has been admitted in evidence, the submission of the learned counsel for the appellants that it ought to have been so decided that by said document, the defendant no. 1 has got the right over the subject matter is not acceptable in the eye of law. Therefore, the ground of review bites dust. Thus, it is found that this ground for review of the conclusion of this Court in declining to interfere with the concurrent finding of the court below in so far as Ext. H is concerned is not liable to be reviewed within settled legal parameter. 6. Therefore, the ground of review bites dust. Thus, it is found that this ground for review of the conclusion of this Court in declining to interfere with the concurrent finding of the court below in so far as Ext. H is concerned is not liable to be reviewed within settled legal parameter. 6. Coming to the next review petition filed by the respondents, it is stated that this Court having come to finding that after death of Ratani in the year 1956, Subarni was having absolute interest and ownership to the extent of ?rd share over the suit land; so when Subarni died in the year 1958, the property is to go back to the heirs of Binayak and as per section 15(2) or (b) of Hindu Succession Act. Therefore, this Court ought not to have held that this ?rd interest of Subarni went again to the hands of Damodar and Purna Chandra to become owners with half interest remaining with each of them as the heirs of female Hindu under category B of section 15(a), and it's not permissible to go back to heirs as on the date of death of the Binayak to ascertain who were their heirs at that time. Thus, it is stated that Subarni having died in the year 1958, there Court has crept in a legal error by not holding that ?rd interest of Subarni to have devolved upon Purna Chandra, Damodar, Kundan and Sabitri who are the hairs of Subarni who became absolute owner of the property in the year 1958. Learned counsel for the appellant refutes the above in contending that the conclusion recorded by this Court at para -16 and judgment being not properly read and construed, this review application is misconceived. 7. In order to appreciate the rival contention, let me quote that very para which runs as under:- "16. The above being the law of the land when we advert to the case, it has to be said that after death of Ratani in the year 1958, Subarni was having absolute interest and ownership to the extent of ?rd over the suit land. When the rest was remaining equally with Damodar and Purna Chandra. The above being the law of the land when we advert to the case, it has to be said that after death of Ratani in the year 1958, Subarni was having absolute interest and ownership to the extent of ?rd over the suit land. When the rest was remaining equally with Damodar and Purna Chandra. Next when Subarni died in the year 1958, the property is to go back to the heirs of Binayak and that ?rd interest of Subarni came to the hands of Damodar and who became owners with half interest remaining with each of them. On the death of Purna Chandra, Damodar became the absolute owner of the entire property and lastly when Damodar died without any issue of his own and his wife Champa had predeceased him, he is found to be having left behind no Class-I heirs as given in the schedule of the Hindu Succession Act. Damodar had two sisters who were living by then and they are, namely, Kundan, the plaintiff and Sabitri, mother of defendant nos. 1, 2 and 3. They come in entry no. ii of Class-2 heirs as given in the schedule. Now by virtue of the provision of Hindu Succession Act, these properties are became the absolute property in the hands of two sisters with each of them having equal share and accordingly they succeed. Therefore, the plaintiff is entitled to half share over the suit house, whereas the children of Sabitri are entitled to the rest half. This is the position in my considered view so far as the resting of the ownership in respect of the properties of Binayak." Subarni after death of Ratani became the absolute interest holder and owner in respect of ?rd share over the suit property. Damodar and Purna Chandra being the two sons of Binayak had already ?rd share each to their credit which they had succeeded upon the death of Binayak while residuary ?rd going to Ratani and Subarni together. Damodar and Purna Chandra being the two sons of Binayak had already ?rd share each to their credit which they had succeeded upon the death of Binayak while residuary ?rd going to Ratani and Subarni together. So, Subarni having died in the year 1958, the conclusion of this Court that the property become the absolute properties in the hands of two sons of Binayak i.e., Damodar and Purna Chandra each having equal share and accordingly entitled to succeed appears to have been so rendered overlooking the legal position that here the succession upon death of Subarni so far her ?rd is concerned would stand to be governed as provided in section 15 of the Hindu Succession Act. At that juncture, the confusion appears to have arisen by again computing the interest of the parties as it was prior to the coming into force of the Hindu Succession Act. So, this legal flaw needs review that the ?rd interest of Subarni would go equally to Damodar, Purna Chandra, Kundan and Sabitri. The discussion as made in para -16 thus remain clarified to the above extent where rest remained as such. 8. Both the review petitions are accordingly disposed of. No order as to costs.