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2018 DIGILAW 153 (ORI)

Gopinath Dhal v. Sankarsan Dhal

2018-02-05

A.K.RATH

body2018
JUDGMENT : A.K.RATH, J. Defendant no.1 is the appellant against a reversing judgment. 2. Respondent nos.1 to 3 as plaintiffs instituted a suit for partition. The following genealogy would show the relationship of the parties. Genealogy Mana Dhal Jai Baldhar Bhobani Gopinath (D-1) Daughter Puni Dei w/o Sukadeb Malik Bhaktahari Nilamoni W-Subhadra (P-3) Kunjabihari W-Sudhala (D-2) Sanatan W-Inda (D-3) Sankarsan(P-1) Ekadushi (P-2) The case of the plaintiffs was that Mana Dhal was the common ancestor of the parties. He died leaving behind his three sons Jai, Baidhar and Bhobani. They were separated in mess some time after the revisional settlement. After settlement operation, Jai died leaving behind his sons Bhaktahari, Nilamani, Kunjabehari and Sanatan. Baidhar died leaving behind his son Gopinath, defendant no.1. Bhobani died leaving behind his daughter, Puni. Bhaktahari died leaving behind his sons Sankarsan and Ekadashi, plaintiff nos.1 and 2. Nilamani, Kunjabehari and Sanatan died leaving behind their wives Subhadra, plaintiff no.3, Sudhala, defendant no.2 and Inda, defendant no.3. The suit properties consist of eight lots described in the schedule of the plaint. The properties in lot nos. 1 and 2 were recorded in the names of Jai and Baidhar. The defendant no.1 had 8 annas interest therein. Lot nos.3 to 6 had been recorded in the names of Jai, Baidhar and Bhobani, each having 1/3rd share. The above three branches also had 1/3rd share in Lot nos.7 and 8 properties. The suit properties had not been partitioned by metes and bounds. The plaintiffs requested the defendants for amicable partition. But then, the defendants turned a deaf ear. With this factual scenario, the plaintiffs instituted the suit seeking the relief mentioned supra. 3. The defendant nos.1 and 7 filed separate written statements denying the assertions made in the plaint. According to defendant no.1, he got half interest in the properties in Lot nos.1 and 2, 2/3rd interest in Lot nos.3, 4 and 7 and 1/3rd interest in Lot nos.5 and 6. It was pleaded that during his minority, the defendant no.7 obtained a fraudulent and illegal sale deed in respect of Lot no.6 without his knowledge. He came to know of this during hearing of O.L.R. Case No. 638/76 filed by him for assessment of rent. The sale deed had not been acted upon. 4. It was pleaded that during his minority, the defendant no.7 obtained a fraudulent and illegal sale deed in respect of Lot no.6 without his knowledge. He came to know of this during hearing of O.L.R. Case No. 638/76 filed by him for assessment of rent. The sale deed had not been acted upon. 4. The case of the defendant no.7 was that after death of Bhobani, his brothers Jai and Baidhar, succeeded to the property of Bhobani. Jai and Baidhar had half share each in Lot no.6 properties. After the death of Jai and Baidhar, the plaintiffs and defendant nos. 1 to 3 were in possession of those properties. The defendant no.1 was entitled to half share in the Lot no.6. He sold Ac.022 dec. to the defendant no.7 by means of a registered sale deed dated 21.01.47 and delivered possession to him. He is in possession of the same. 5. On the inter se pleadings of the parties, learned trial court struck five issues. On a threadbare analysis of evidence on record as well as pleadings, learned trial court decreed the suit holding, inter alia, that defendant no.1 had 1/3rd share in the suit schedule properties in Lot no.6. The sale deed dated 21.01.47 executed by defendant no.1 in favour of defendant no.7 was invalid and void. Assailing the judgment and decree of the learned trial court, the defendant no.1 filed T.A. No. 90 of 1981 before the learned Additional District Judge, Jajpur in respect of other lots. Defendant no.7 filed cross objection in respect of Lot no.6. The appeal was dismissed for non-prosecution. The cross objection was allowed. Hence, this second appeal. 6. The appeal was admitted on the following substantial question of law:- “Whether the sale deed purported to be executed by the appellant in favour of the respondent no.9 (Ext.A-2) was a void document being without consideration as found by the learned trial court, but no finding on the same was recorded by the lower court ?” 7. Heard Mr. R.C. Rath, learned counsel for the appellant. None appears for the respondents. 8. Mr. Rath, learned counsel for the appellant argues with vehemence that Gopinath, defendant no.1, was 16 years old at the time of the execution of the sale deed. Thus the sale deed executed by defendant no.1 in favour of the defendant no.7 in respect of Ac.022 dec. R.C. Rath, learned counsel for the appellant. None appears for the respondents. 8. Mr. Rath, learned counsel for the appellant argues with vehemence that Gopinath, defendant no.1, was 16 years old at the time of the execution of the sale deed. Thus the sale deed executed by defendant no.1 in favour of the defendant no.7 in respect of Ac.022 dec. of land out of Lot no.6 is void. He places reliance on the School Leaving Certificate of defendant no.1 vide Ext.C/3. His alternative submission is that in the event this Court finds that the sale deed is genuine, then the same shall be confined the share of the defendant no.1 only. 9. The L.C.R. reveals that exhibited documents vide A-3 to J3 had been taken by the learned counsel appearing for the appellant on 24.09.85. Mr. Rath, learned counsel for the appellant expresses his disability to produce the same in Court. Thus in the absence of any material on record, it is difficult to hold that the defendant no.1 was minor at the time of execution of the sale deed. The learned appellate court disbelieved the School Leaving Certificate, since the original one was not called for. There is no perversity in the said finding. 10. The next question crops up as to the entitlement of the defendant no.7 ? Admittedly, defendant no.1 has executed a sale deed in respect of Ac.022 dec. of land out of Lot no.6. Lot no.6 consists of Ac.44 dec. of land. The learned trial court came to hold that defendant no.1 has 1/3rd share that means Ac.0.14 dec. 66 kadi. Thus excess alienation is void to that extent. The substantial question of law is answered accordingly. 11. In the result, the appeal is allowed to the extent indicated above. Consequently, the suit is decreed in part. There shall be no order as to costs.