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2018 DIGILAW 474 (ORI)

Durga Madhaba Sahu v. Devraj Sahu

2018-04-27

D.P.CHOUDHURY

body2018
JUDGMENT : Dr.D.P.Choudhury, J. The parties are to be referred as plaintiff and defendants hereinafter in this judgment as they are in the trial Court, i.e, Civil Judge (Senior Division), Berhampur. 2. The unfolded story of plaintiff is that the plaintiff (Devaraj Sahu) is the younger brother of original defendant no.1 (Satyabadi Sahu). Late Balaram Sahu is their father and Jhara Sahu is their mother. Subsequently, defendant nos. 2 and 3, being their sister, were added as defendants to the suit vide order dated 28.12.2009. It is the claim of the plaintiff that the suit property is the ancestral property and their father Balaram Sahu was owner of the same, who died in 1964. Their mother was also died in 1987 and by that time, their sisters were already married. But since then, the parties are in possession of their respective share by convenience. There is no partition of the joint family property. So, the plaintiff demanded partition from defendant no.1 but the defendant no.1 refused to cause partition. So, the suit for partition was filed claiming half share in the suit property. 3. The defendant no.1 appeared in the suit and filed written statement submitting that the joint family suit property have already been partitioned by registered partition deed vide Ext.A in the year 1975 and accordingly respective parties are in possession of the same. According to defendant no.1, their mother Jhara Sahu died in 1987 after death of their father. Since there was an earlier partition and the plaintiff has suppressed the same in his plaint, the present suit for partition is not maintainable. 4. The sister (defendant no.3) has filed the written statement supporting defendant no.1. Her case is that the suit property is not a joint family property having an earlier partition thereon. It seems that she has no any claim over the suit property and prays for dismissal of the suit. 5. Learned trial Court, after considering the pleadings of both parties, has framed the following issues for determination: “1. Is the suit maintainable? 2. Is there any cause of action to bring the suit? 3. Is the plaintiff entitled to a decree declaring ½ share out of the suit properties? 4. Is the plaintiff entitled to mesne profit out of the suit properties? 5. To what relief, plaintiff is entitled to?” 6. Is the suit maintainable? 2. Is there any cause of action to bring the suit? 3. Is the plaintiff entitled to a decree declaring ½ share out of the suit properties? 4. Is the plaintiff entitled to mesne profit out of the suit properties? 5. To what relief, plaintiff is entitled to?” 6. While deciding the issues, learned trial Court found that there is an earlier partition under registered partition deed as alleged by defendant no.1. So, he dismissed the suit on contest against defendant no.1(1), 1(b) and defendant no.3 and ex parte against defendant no.2. 7. Thereafter, the plaintiff carried first appeal vide R.F.A No.58 of 2011 before the First Appellate Court, i.e, District Judge, Ganjam, Berhampur and the first appellate Court has reversed the finding of the learned trial Court by observing that in the earlier registered partition deed, share of their mother, as alleged, has not been defined. Further, he found that the defendants 2 and 3, being the sisters, after the amendment of Hindu Succession Act in the year 2009, have got also share in the suit property and accordingly, the first appellate Court directed for partition of the suit property between the parties. 8. The defendant no.1 (Durga Sahu) presented the second appeal before this Court and this Court, while admitting the second appeal on 11.3.2014, has framed the following substantial question of law: “(i) Whether the leaned lower Appellate Court is correct in law decreeing the plaintiff’s suit having held that the daughters are entitled to 1/4th interest over the ancestral joint family property applying amended Hindu Succession Act, which has prospective application with effect from 9.9.2005?” 9. SUBMISSIONS Mr.Rath, learned counsel for the appellant submits that the lower appellate Court has erred in law by brought out a third case about the share of the mother and sisters whereas none of the parties have pleaded so. According to the pleadings, plaintiff has suppressed about the earlier partition deed which is effected by registered partition deed in 1975 vide Ext.A. 10. Mr.Rath, learned counsel for the appellant further submits that even if amended act of Hindu Succession act came into force but it is prospective in nature and there is clear-cut proviso to Section 6 of the said Act to the effect that the registered partition deed, if at all effected, before 20.12.2004, the same cannot be reopened. Mr.Rath, learned counsel for the appellant further submits that even if amended act of Hindu Succession act came into force but it is prospective in nature and there is clear-cut proviso to Section 6 of the said Act to the effect that the registered partition deed, if at all effected, before 20.12.2004, the same cannot be reopened. Since the plaintiff and defendant no.1 are signatory to such partition deed, the same cannot be ignored. Accordingly, the finding of the learned trial Court is correct and the learned first appellate Court committed error by entering into a case where none of the parties have pleaded so. 11. Mr.Rath, learned counsel for the appellant further contends that the provisions of amended Hindu Succession Act only apply to the partition which effected after 20.12.2014. In this regard, he relies upon the decision of the Hon’ble Supreme Court in the case of Prakash and others –V- Phulavati and others and Jayendra Awad –V- Nivedita Sharma and others; (2016) 2 SCC 36 . 12. Relying on the aforesaid decision of the Hon’ble Supreme Court, Mr.Rath, learned counsel for the appellant submits that since the suit property has already been partitioned by metes and bounds under registered partition deed, the judgment and decree passed by the first appellate Court should be set aside and the judgment and decree passed by the trial Court should be restored. 13. Mr.Tripathy, learned counsel for the respondent no.1 submits that defendant nos.2 and 3, being the sister and being alive by the time of execution of registered partition deed and not being given the share, said registered partition deed should be taken into consideration. According to him, said registered partition deed only shows the signature of plaintiff but the original plaintiff is unaware of such deed. According him, after the death of the father Balaram Sahu, in the registered partition deed, the mother should have given a share, who is also entitled to a share. Also he submits that the property in the name of the mother has also been partitioned under that document, but the same is not liable for partition as long as mother is alive. 14. Also he submits that the property in the name of the mother has also been partitioned under that document, but the same is not liable for partition as long as mother is alive. 14. Mr.Tripathy, learned counsel for the respondent no.1 further submits that according to the amended provision of Hindu Succession Act, 1956, when there is no such registered partition deed really implemented or it is fraudulent, the daughters are also entitled to the share. So, he supports the judgment and decree passed by the first appellate Court and strenuously objects to the argument advanced by the learned counsel for the appellant. 15. Mr.Rath, learned counsel for the appellants, while refuting the argument of the learned counsel for the respondent no.1, submits that property recorded in the name of the mother has been partitioned at her desire being relinquished by such deed vide Ext.A in which she is also a signatory with plaintiff and defendant no.1. 16. DISCUSSIONS It is admitted by both the parties during course of argument and from the pleadings of both parties, it is revealed that the property of the mother has been included in the registered partition deed. Apart from this, the defendant no.3, who is the sister of plaintiff and defendant no.1, has categorically admitted in the written statement that the suit properties have already been partitioned by metes and bounds and the suit property is never a joint family property. 17. The document, i.e., the registered partition deed exhibited as Ext.A is clear enough to show the share of respective parties. That document is found to have been executed on 25.08.1975. Not only this but also the mother is also a party to it. However, the mother being a party to the partition, agreed to partition of joint family property including the property recorded in her name between two sons. Thus, the contention of the learned counsel for the appellants has got force to the effect that the mother has relinquished her share in the joint family property including the property recorded in her favour. Moreover, such Ext.A has not been set aside till date. The mother is no more to claim any share in the property as she expired admittedly in 1987 and the suit is filed in 2002. 18. Now the question comes about the share of defendant nos.2 and 3. Moreover, such Ext.A has not been set aside till date. The mother is no more to claim any share in the property as she expired admittedly in 1987 and the suit is filed in 2002. 18. Now the question comes about the share of defendant nos.2 and 3. As observed above, defendant no.3 does not claim any share in the suit property as per the written statement filed by her and. Defendant no.2 has been already set ex parte in view of the registered partition deed between the plaintiff and defendant no.1. 19. In the case of Prakash and others –V- Phulavati and others and Jayendra Awad –V- Nivedita Sharma and others; (2016) 2 SCC 36 , their Lordships have observed as under: “22. In this background, we find that the proviso to Section 6(1) and sub-section (5) of Section 6 clearly intend to exclude the transactions referred to therein which may have taken place prior to 20th December, 2004 on which date the Bill was introduced. Explanation cannot permit reopening of partitions which were valid when effected. Object of giving finality to transactions prior to 20th December, 2004 is not to make the main provision retrospective in any manner. The object is that by fake transactions available property at the introduction of the Bill is not taken away and remains available as and when right conferred by the statute becomes available and is to be enforced. Main provision of the Amendment in Section 6(1) and (3) is not in any manner intended to be affected but strengthened in this way. Settled principles governing such transactions relied upon by the appellants are not intended to be done away with for period prior to 20th December, 2004. In no case statutory notional partition even after 20th December, 2004 could be covered by the Explanation or the proviso in question. 23. Accordingly, we hold that the rights under the amendment are applicable to living daughters of living coparceners as on 9th September, 2005 irrespective of when such daughters are born. Disposition or alienation inluding partitions which may have taken place before 20th December, 2004 as per law applicable prior to the said date will remain unaffected. Any transaction of partition effected thereafter will be governed by the Explanation.” The relevant amended provisions, i.e, Section 6 of the Hindu Succession (Amendment) Act, 2005 (hereinafter called as “the Act”) is as follows: “6. Any transaction of partition effected thereafter will be governed by the Explanation.” The relevant amended provisions, i.e, Section 6 of the Hindu Succession (Amendment) Act, 2005 (hereinafter called as “the Act”) is as follows: “6. Devolution of interest in coparcenary property:- (1) On and from the commencement of the Hindu Succession (Amendment) Act, 2005, in a Joint Hindu family governed by the Mitakshara law, the daughter of a coparcener shall,- (a) by birth become a coparcener in her own right in the same manner as the son; (b) have the same rights in the coparcenary property as she would have had if she had been a son; (c) be subject to the same liabilities in respect of the said coparcenary property as that of a son, and any reference to a Hindu Mitakshara coparcener shall be deemed to include a reference to a daughter of a coparcener: Provided that nothing contained in this sub- section shall affect or invalidate any disposition or alienation including any partition or testamentary disposition of property which had taken place before the 20th day of December, 2004. Xx xx xx xx (5) Nothing contained in this section shall apply to a partition, which has been effected before the 20th day of December, 2004. Explanation.- For the purposes of this section" partition" means any partition made by execution of a deed of partition duly registered under the Registration Act, 1908 (16 of 1908 ) or partition effected by a decree of a court.” With due regard to the aforesaid decision and provision of law, it appears that since the registered partition deed has been already executed in 1975 prior to 20.12.2004, it must be held that there is already a partition of the suit properties between the plaintiff and defendant no.1 and fresh partition of the same is not possible in view of the restriction in the amended provision of Section 6 (1) of the Act. Thus, the finding of the first appellate Court that the defendant nos.2 and 3 are entitled to share the joint family property is indefensible and as such, contention of the learned counsel for the respondent is untenable. 20. In terms of the above discussion, it is found that the lower appellate Court has erred in law by setting aside the order of dismissal of suit passed by the learned trial Court. 21. 20. In terms of the above discussion, it is found that the lower appellate Court has erred in law by setting aside the order of dismissal of suit passed by the learned trial Court. 21. In the result, the judgment dated 19.02.2013 passed by the learned District Judge, Ganjam, Berhampur in R.F.A. No.58 of 2011 is set aside and the judgment dated 18.04.2011 passed by the learned Civil Judge (Senior Division), Berhampur in Title Suit No.20 of 2002 is restored. The RSA is disposed of accordingly.