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2017 DIGILAW 1353 (ORI)

Sukanti Dei @ Samantara v. Chhabirani Majhi

2017-11-24

A.K.RATH

body2017
JUDGMENT : A.K. RATH, J. This appeal is directed against the judgment and decree passed by the learned Ad hoc Additional District & Sessions Judge, Khurda dismissing the appeal and thereby confirming the judgment and decree passed by the learned Civil Judge (Sr. Division), Khurda, whereby the learned trial court decreed the suit in part. 2. The plaintiff-respondent no.3 instituted T.S.No.56 of 1991 in the court of the learned Civil Judge (Sr.Division), Khurda for declaration that the registered sale deed dated 30.4.1985 executed by Manda Bewa, widow of Kashi, defendant no.1 in favour of defendant no.26, sale deed dated 13.10.1989 executed by defendant no.26 in favour of defendant no.27 as well as the gift deed dated 1.11.1983 executed by defendant no.1 in favour of defendant no.26 are void, inoperative and not binding on her, for recovery of possession and permanent injunction. 3. The following genealogy depicts the relationship between the parties. Baidhar Kanhu (dead) Khetra (dead) Upendra (dead) Bhima (dead) Rama (dead) Sahadeb (dead) D.7 Maguni Baraju (dead) Chandra D.18 Indra D.19 Banambar D.20 Bira Udia Nidhi D.11 Manu D.17 Subani D.8 Paban (dead) Kalandi D.23 Pabani D.9 Tuni D.10 Jhari D.21 Anirudha D.22 Gurei Rajan (dead) (wife) Subani (dead) Issueless Kashi (dead) Hajari D.4. Charan D.5. Sukuta D.6 Munda D.1 Nath died Issueless Surender Died Panchu died Pandaba died Padi D.3 Badani D.2 Ratani (Plaintiff) Phula D.12 Ashamani D.16 Tara D.13 Kulamani D.14 Nilamani D.15 4. Case of the plaintiff was that Baidhar was the common ancestor. He had six sons, namely, Kanhu, Khetra, Upendra, Bhima, Rama and Sahadeb. Defendant nos.1, 2 and 3 and the plaintiff are the widow and daughters of Kashi. Rajan and Kashi are the sons of Sahadeb. Gurei is the daughter of Sahadeb. Subani, wife of Rajan died issueless. Defendant nos. 4 to 6 are the sons of Gurei. The four sons of Kanhu, namely, Natha, Surendra, Panchu and Pandab are all dead. Natha died issueless. Defendant no.12 is the daughter of Surender. Defendant nos.13 to 15 are wife and sons of Panchu (Tara Bewa, Kulamani Majhi & Nilamani Majhi). Defendant no.16 (Ashamani Dei) is the daughter of Pandab. Baraju and defendant nos.18 to 20 are the sons of Khetra. Defendant no.17 is the son of Baraju. Maguni-defendant no.7 is the son of Upendra. Bira, Udia and Nidhi are the sons of Bhima. Defendant nos.9 and 10 are the widow and daughter of Udia. Defendant no.16 (Ashamani Dei) is the daughter of Pandab. Baraju and defendant nos.18 to 20 are the sons of Khetra. Defendant no.17 is the son of Baraju. Maguni-defendant no.7 is the son of Upendra. Bira, Udia and Nidhi are the sons of Bhima. Defendant nos.9 and 10 are the widow and daughter of Udia. Paban and Kalandi are the sons of Rama. Jhari and Anirduha-defendant nos.21 and 22 are the daughter and son of Paban. Schedule-A property has been recorded in the names of Rajan and Kashi. They have 8 annas share each. After the death of Rajan and his wife, defendant nos.1 to 3 succeeded to the property. Accordingly, each have 1/4th share. Schedule-B property is the homestead land. The same has been recorded in the names of Kashi, Rajan, Maguni, the branch of defendant nos.8 to 11 i.e., Bhima branch, branch of Kanhu and one Kamala Bewa. Defendant no.7 purchased the share of Khetra and, as such, the names of Khetra and defendant nos.17 to 20 have not been recorded in the record of right. Thus, the plaintiff, defendant nos.1 to 3, 7 to 16, 22 and 23 became the joint owners of Schedule-B property. Schedule-C property has been recorded in the names of branch of Kanhu, Khetra, defendant no.7, branch of Bhima, Rama, Kashi and Rajan. The plaintiff and defendant nos.1 to 3 have 1/6th share each and the plaintiff has 1/24th share. Munda-widow of Kashi, defendant no.1 being instigated by defendant no.22, transferred some properties of schedule A, B & C by registered sale deeds in favour of defendant no.26 on 4.2.1986. On 1.11.83, she fraudulently gifted some properties as per Schedule-B in favour of defendant no.26. Defendant no.1 has no right to alienate the land. On 13.10.1989, defendant no.26 executed a nominal sale deed in favour of defendant no.27. The deeds are void and in-operative. The sale deeds had been presented for registration with properties situated outside the jurisdiction of the Sub-Registrar, Begunia i.e., mentioning false properties of Mouza-Simore. There was no legal necessity to alienate the land. Similarly the property sold by defendant no.26 to the wife of defendant no.22 was without any consideration and had not been acted upon. Gurei was given in marriage much prior to the death of Sahadeb. The marriage took place about 40 years back. There was no legal necessity to alienate the land. Similarly the property sold by defendant no.26 to the wife of defendant no.22 was without any consideration and had not been acted upon. Gurei was given in marriage much prior to the death of Sahadeb. The marriage took place about 40 years back. She executed a gift deed on 30.4.85 in respect of Schedule-D land in favour of defendant nos.24 and 25. The gift deed is illegal. The wife of Rajan had not adopted defendant no.24 nor gave her in marriage to defendant no.25. They were not residing in the house of Rajan and, as such the gift deed executed in their favour is illegal. By virtue of the gift deed and the sale deeds, defendant nos.24 to 27 are in illegal possession of schedule-A, B & C properties. With this factual scenario, the suit was filed seeking the relief mentioned supra. 5. Defendant nos.1, 22, 27, 24 and 25 filed a written statement. Their case is that defendant nos.22 and 27 have their residential house over Schedule-B land. The plaintiff’s father is not the son of Sahadeb. He was not in possession of Schedule-A land. Schedule-B land was never the joint property of the father of the plaintiff and other co-sharers. Transfer of land by defendant no.1 to defendant no.26 is genuine. The gift deed executed by defendant no.1 is also genuine. Defendant no.1 executed the sale deed for legal necessity. In an amicable partition in the year 1963, the suit properties had been allotted to Kashi. He had incurred loan for marriage of his three daughters and sold his properties to different persons to repay the loan. Kashi adopted defendant no.26 with consent of defendant no.1, who performed his funeral. So defendant no.1 to fulfill her husband’s desire gifted some properties to him and delivered possession thereof. Defendant nos.24 and 25 in their written statement stated that Kashi died one year prior to Rajan and two years thereafter his wife died. Transfer of 8 annas share of Rajan in favour of plaintiff and defendant nos.1 to 3 is illegal. After the death of Rajan and his wife-Subani, the property was inherited by Gurei. She was the owner. She gifted the said land to defendant nos.24 and 25. Subani adopted Sukanti-defendant no.24 since her childhood and had given in marriage to defendant no.25. After the death of Rajan and his wife-Subani, the property was inherited by Gurei. She was the owner. She gifted the said land to defendant nos.24 and 25. Subani adopted Sukanti-defendant no.24 since her childhood and had given in marriage to defendant no.25. They were residing in the house of Subani as her illatom son-in-law and looking after her properties. After the gift, defendant nos.24 and 25 developed the land. There was amicable partition between Rajan and Kashi. They were not in joint possession of the suit properties. 6. Stemming on the pleadings of the parties, the learned trial court struck nine issues. The parties led evidence, both oral and documentary, to substantiate the case. The learned trial court held that the sale deeds and the gift deed executed by defendant no.1 are illegal. It further held that Gurei had absolute right to execute the gift deed. The gift deed had been acted upon. Held so, it decreed the suit in part. Felt aggrieved, defendant nos. 1 & 27 filed appeal before the learned District Judge, Khurda in Title Appeal No.4 of 2000, which was subsequently transferred to the court of the learned Ad hoc Additional District and Sessions Judge, Khurda and renumbered as Title Appeal no. 27/4 of 2003/2000. The plaintiff filed cross-appeal. The learned appellate court came to hold that there was no partition between the parties. The properties are still joint. Gurei had no right to execute the gift deed in favour of defendant nos.24 and 25. Held so, it dismissed the appeal. 7. Mr. Swayamjit Rout, learned Advocate on behalf of Mr. S.K. Mishra, learned Advocate for the appellants submits that Sahadev died leaving behind his two sons and one daughter. Rajan was issueless. After death of Rajan, his widow adopted Sukanti, defendant no.24 and had given her in marriage to defendant no.25. Defendant no.25 was residing in the house as illatom son-in-law. Out of love and affection, Gurei executed a gift deed in favour of defendant no.24 on 30.4.1985. The gift deed had been acted upon. The findings of the courts below that the gift deed had not been acted upon are perverse. He further submits that Gurei has interest over the property. 8. Out of love and affection, Gurei executed a gift deed in favour of defendant no.24 on 30.4.1985. The gift deed had been acted upon. The findings of the courts below that the gift deed had not been acted upon are perverse. He further submits that Gurei has interest over the property. 8. The sole question that hinges for consideration in this appeal is as to whether Gurei had right to execute a gift deed in respect of her undivided interest in the coparcener property ? The subject matter of dispute is no more res integra. 9. In Thamma Venkata Subbamma (dead) by L.R. v. Thamma Rattamma and others, AIR 1987 SC 1775 . The apex Court held that a gift by a coparcener of his undivided interest in the coparcener property is void. The personal law of the Hindus governed by Mitakshara School of Hindu Law, is that a coparcener can dispose of his undivided interest in the coparcenary property by a will, but he cannot make a gift of such interest. 10. In Trilochan Naik and others v. Sukuru Sethi and others, 1992 (I) OLR-296, this Court held that gift of coparcener property by a coparcener is void. The same view was rejected in China Sahuani and after her, Kishore Chandra Sahu and another v. Rukuna Sahu and another, 1988 (I) OLR-309. 11. The decisions cited (supra) apply proprio vigore to the instant case. 12. A priori, the appeal fails and is dismissed since the same does not involve any substantial question of law. No costs.