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2017 DIGILAW 379 (ORI)

Epili Kora v. Epili Papama

2017-04-07

A.K.RATH

body2017
JUDGMENT : DR. A.K. RATH, J. 01. Defendant is the appellant against a confirming judgment. 02. The respondent as plaintiff no.2 instituted the suit for partition of the suit schedule properties and to grant maintenance. The case of the plaintiffs is that one Saibo had three sons, namely, Budhia, Mangala and Kora. Mangala was adopted to another family. Budhia married to plaintiff no.2. They constituted a Hindu undivided joint family. Sarasamma is the daughter of Budhia and plaintiff no.2. Budhia died on 18.10.70 leaving behind his wife plaintiff no.2 and daughter Sarasamma. Thereafter, plaintiff no.2 married to the defendant, younger son of Saibo, in the year 1971. Out of their wedlock, plaintiff no.1 was born on 8.3.1972. Thereafter the defendant started ill-treating the plaintiffs and developed extra-marital relationship with another woman. While the matter stood thus, Saibo executed a registered settlement-cum-partition deed on 26.7.77 and partitioned the joint family properties between the plaintiff no.2, the wife of his elder son, her daughter Sarasamma and the defendant wherein plaintiff no.1 was allotted a share described in ‘Kha’ schedule property. Out of income of the joint family properties, the defendant purchased some lands in his name and benami in favour of others in order to deprive the plaintiffs from their shares. The partition deed dated 26.7.77 is not valid and binding on plaintiff no.1. The plaintiffs demanded partition and maintenance. But then, the defendant maintained a sphinx like silence. 03. The case of the defendant is that he had not married to plaintiff no.2. Plaintiff no.1 is not his son. Plaintiff no.1 is the son of his elder brother, late Budhia and plaintiff no.2. He married Parama, daughter of Pujari Shama of village Chudungapur. Since the plaintiff no.2 is a quarrelsome lady, his father, Saibo partitioned his self-acquired properties between them by means of a registered partition deed dated 26.07.1977, Ext.3. 04. On the interse pleadings of the parties, the learned trial court framed as many as five issues. To prove the case, the plaintiffs had examined six witnesses and on their behalf, five documents had been exhibited. The defendant had examined five witnesses and on his behalf, four documents had been exhibited. The learned trial court came to hold that plaintiff no.2 married to the defendant, but plaintiff no.1 is not the son of plaintiff no.2 and defendant. To prove the case, the plaintiffs had examined six witnesses and on their behalf, five documents had been exhibited. The defendant had examined five witnesses and on his behalf, four documents had been exhibited. The learned trial court came to hold that plaintiff no.2 married to the defendant, but plaintiff no.1 is not the son of plaintiff no.2 and defendant. He is the son of plaintiff no.2 and Budhia, the elder brother of the defendant. Thus plaintiff no.1 cannot claim for partition of the properties. It further held that marriage between plaintiff no.2 and the defendant took place after death of Budhia as per the provisions of Hindu Widows Re-marriage Act, 1856. It was a valid marriage. After marriage, plaintiff no.2 and the defendant lived as husband and wife to the knowledge of the society. Held so, the learned trial court directed the defendant to pay maintenance of Rs.200/- per month to plaintiff no.2 and decreed the suit in part. 05. The defendant challenged the said judgment and decree before the learned District Judge, Berhampur in T.A. No.81 of 1993, which was subsequently transferred to the court of the learned Additional District Judge, Bhermapur and renumbered as T.A.No.54 of 1998. The learned appellate court negatived the findings of the learned trial court and held that plaintiff no.1 is the son of defendant. Shares have been properly allotted to the parties, vide Ext.3, the certified copy of settlement deed and as such, the plaintiff no.1 is entitled to share in the property as per the said deed. It further held that plaintiff no.2 is entitled to maintenance in addition to the share allotted to her. Held so, the learned appellate court dismissed the appeal. 06. This appeal was admitted on the substantial questions of law as enumerated in para (1), (3) & (5) of the Grounds of Memorandum of Appeal. The same are: “(1) Whether the learned courts below have committed errors of law by entertaining the suit of the plaintiffs making substantial prayer for partition of defendant’s property, which was subject of partition under the Registered Deed Ext.3 in the year 1977 concluding the partition as per section 19 (c) of the Orissa Land Reforms Act? The same are: “(1) Whether the learned courts below have committed errors of law by entertaining the suit of the plaintiffs making substantial prayer for partition of defendant’s property, which was subject of partition under the Registered Deed Ext.3 in the year 1977 concluding the partition as per section 19 (c) of the Orissa Land Reforms Act? (3) Whether the learned first appellate court has wrongly decided the question of law that under the Mitakshayara School of Hindu Law the plaintiff no2, who had married Epili Budhia, the elder brother of the defendant and who along with her son, Plaintiff no.1 and daughter had got sufficient properties under Ext.3 of the year 1977, would again reopen partition by alleging that the defendant had married to plaintiff no.2 in the year 1971 and the plaintiff no.1 is the son of the defendant? (5) Whether the learned first appellate court has committed errors of law and jurisdiction by discarding Ext.3, which has been accepted by the learned trial court giving cogent reasonings and whether the learned first appellate court has committed errors of jurisdiction while deciding the said issue in appeal by discarding the evidenciary value and title determining factors in Ext.3 considering the oral evidence of the P.W.’s in violation of the Rule of Evidence in section 59 of the Evidence Act?” 07. Heard Mrs. P. Nayak, learned Advocate for the appellant and Mr.P.K.Das, learned Advocate for the respondent. 08. Mrs. Nayak, learned Advocate for the appellant submitted that the suit for partition as well as maintenance is not maintainable since the cause of action for partition of the suit properties and maintenance is wholly different. She further submitted that in the voters list, vide Ext.B, plaintiff no.1 has been described as the son of Budhia. The same is a public document and is admissible in evidence. Thus, plaintiff no.1 is the son of plaintiff no.2. In the partition deed, vide Ext.3, a share was allotted to plaintiff no.1 along with her mother-plaintiff no.2. In the absence of any fraud, the same cannot be reopened. 09. Per contra, Mr. Das, learned counsel for the respondent submitted that plaintiff no.2 was the wife of Budhia. After death of Budhia, she remarried to defendant in Thua Thui form, a custom prevailed in the locality. Both the courts below held that plaintiff no.2 married to defendant. In the absence of any fraud, the same cannot be reopened. 09. Per contra, Mr. Das, learned counsel for the respondent submitted that plaintiff no.2 was the wife of Budhia. After death of Budhia, she remarried to defendant in Thua Thui form, a custom prevailed in the locality. Both the courts below held that plaintiff no.2 married to defendant. All the witnesses of the plaintiffs deposed that plaintiff no.1 is the son of plaintiff no.2 and defendant. Voter list, Ext.B, is a public document and admissible in evidence. But the context of it was required to be proved. When the context of Ext.B was not proved, the same cannot rebut the oral evidence of the plaintiffs. He further submitted that Budhia died in the year 1970. Marriage between plaintiff no.2 and defendant was solemnized in the year 1971. Plaintiff no.1 was born in the year 1972. If the plaintiff no.1 is the son of Budhia, then in the partition deed Ext.3, he would have been allotted a share along with his mother plaintiff no.2 and not along with defendant. The defendant has not challenged the maintainability of the suit in the court below. The same cannot be urged for the first time in the second appeal. 10. Admittedly, plaintiff no.2 married to Budhia. The plaintiffs assert that after death of Budhia in the year 1970, she remarried to defendant, second son of Saibo, under the custom “Thua Thui”. Neither the alleged custom, nor the essential ceremonies of marriage were pleaded or proved. After coming into force of the Hindu Marriage Act, the marriage can be solemnized in accordance with the provisions of the said Act. 11. Relying upon the plaintiffs evidence, both the courts below held that plaintiff no.2 remarried to the defendant. On untenable and unsupportable grounds, the evidence of the defendant has been discarded. There is ample evidence on record that defendant married to one Parama. The next question arise with regard to the sonship of plaintiff no.1. Since marriage between the plaintiff no.2 with the defendant has not proved, the inescapable conclusion is that the plaintiff no.1 is the son of plaintiff no.2 and Budhia. 12. The property was partitioned between the parties by means of a registered sale deed. The same has been marked as Ext.3 by the plaintiffs. Shares have been allotted to plaintiffs, daughter of plaintiff no.2 and defendant. Plaintiff no.2 is the signatory. 12. The property was partitioned between the parties by means of a registered sale deed. The same has been marked as Ext.3 by the plaintiffs. Shares have been allotted to plaintiffs, daughter of plaintiff no.2 and defendant. Plaintiff no.2 is the signatory. There is no pleading with regard to fraud. There is also no prayer to set aside the registered partition deed. In view of the same, the question of further partition of the suit does not arise. Thus, the substantial questions of law are answered accordingly. 13. In the result, the plaintiffs’ suit must fail. The appeal is allowed. But in the circumstance of the case, parties are to bear their own cost throughout.