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2018 DIGILAW 630 (ORI)

Shantilata Sahoo v. Suryamani Sahoo

2018-06-29

D.DASH

body2018
JUDGMENT The defendant Nos. 7 and 8 of Title Suit No.378 of 2001 have filed this appeal under Section 96 of the Code of Civil Procedure challenging the judgment and preliminary decree dated 25,06.2012 land 05.07. 2012 respectively passed by the learned 2nd Additional Civil Judge (Sr. Division), Cuttack. 2. The respondent Nos. 1 to 4 as the plaintiffs have filed the suit for partition of the properties described in schedule ‘B’ to ‘G’ of the plaint. The suit has been preliminarily decreed entitling 1/6th share each to the original respondent No.1 (plaintiff No.1), respondent No.5 defendant No.1), since dead and now represented by respondent No.6 to 8 together), the appellants (defendant Nos. 7 and 8 together) over the property described in Schedule ‘B’, ‘C’ and ‘D’; the respondent No.1 (the plaintiff No.1), respondent No.5 (defendant No.1, since dead and now represented by respondent No. 6 to 8 together) and respondent No.9 (defendant No.5) have been found entitled to 1/3rd share each over the property described in Schedule ‘E’. ‘F’ and ‘G’ of the plaint. 3. For the sake of convenience, in order to avoid confusion and bring in clarity, the parties hereinafter have been referred to as they have been arraigned in the trial Court. 4. Plaintiff’s case is that one Banchhanidhi Sahoo was the common ancestor of the parties. He had a son, namely, Balakrushna and Menaka is the wife of Balakrushna. They had three sons and three daughters who are the plaintiffs and defendants. It is stated that after the death of Banchhanidhi, Balakrushna being the only heir and successor succeeded to the said estate left by Banchhanidhi and he became the absolute owner of the same. Balakrushna died in the year 1989, leaving behind his widow (Menaka), three sons (Rabinarayan, Mahendra and Debendra) and three daughters (Basanti, Subashini and Shantilata). The eldest son Rabinarayan had died on 08.08.1994, he has been succeeed by his widow Charulata and two sons, namely, Santosh and Susanta and a daughter, namely, Soubhagya who are the defendant Nos. 1 to 4. The second son, namely, Mahendra died on 22.11.1994, leaving behind his widow Suryamani, a son, namely, Rakesh and two daughters namely, Baijyanti and Jayanti who are the plaintiffs. The only surviving son of Balakrushna, namely, Debendra and three daughters-Basanti, Shantilata and Subhasini are the defendant Nos. 5 to 8. 1 to 4. The second son, namely, Mahendra died on 22.11.1994, leaving behind his widow Suryamani, a son, namely, Rakesh and two daughters namely, Baijyanti and Jayanti who are the plaintiffs. The only surviving son of Balakrushna, namely, Debendra and three daughters-Basanti, Shantilata and Subhasini are the defendant Nos. 5 to 8. It is stated that Banchhanidhi had coparcenary properties at Mouza-Mathasahi which was inherited by his only heir and successor, Balakrushna along with the residential house situated at Chauliaganj. There being partition between the coparceners in a suit, Balakrushna became the owner of the suit properties and after him, his sons became the owners of the residential house described in schedule ‘B’ and the successors of Balakrushna became the owners of the property described in Schedule ‘C’. It is further stated that some agricultural property at Mauza-Deopur inherited by Balaksurhna came to the hands of the legal heirs which has been described in schedule ‘D’ Plaintiff’s further case is that Balakrushna during his life time has acquired some property in the name of his wife Menaka at Nayabazar, Malgodown and Bidyadharpur, better described in Schedule ‘E’, ‘F’ and ‘G’. After the death of Menaka, the dispute arose amongst the members of the family. During settlement operation, the properties described in schedule ‘B’ and ‘C’ had been recorded in the name of Balakrushna so also the agricultural property described in schedule ‘D’. The property having been purchased in the name of Menaka, the record of right in the settlement came out in her name in respect of such properties described in schedule ‘E’, ‘F’ and ‘G’ of the plaint. The plaintiffs when faced difficulties in enjoyment of the properties, they sought for an amicable partition by requesting the other members. The same being not paid any heed to, they filed the suit for partition. 4. The defendant Nos. 1 to 3 in their written statement without disputing the relationship of the parties and the genealogy given in the plaint as also the factum of death of the members of the family as have been averred, pleaded that all the properties described in different schedules are the ancestral property of the family which include the property acquired in the name of Menaka, wife of Balakrushna as described in schedule ‘E’, ‘F’ and ‘G’. They have stated that the said property has been acquired by Balakrushna in the name of Menaka who was having no independent source of income, from the joint family funds and since then those properties have been treated and utilized all along as the joint family properties being a wholly blended with the other properties of the family. They have further stated that defendant Nos. 6 to 8 who are the daughters of Balakrushna and Menaka have been gifted with some properties from those properties standing purchased in the name of Menaka, and that is for the purpose of evidence of future disturbance and enjoyment thereof by them. It is further stated that these defendant Nos. 6 to 8 have already transferred the said properties to outsiders. They state to have no objection for the suit to be decreed subject to the allotment of the gifted lands towards full and final settlement of the share of defendant Nos.6 to 8 in respect of the joint family properties. The defendant Nos. 4 and 5 have adopted with written statement filed by the defendant Nos. 1 to 4. The defendant Nos. 6 to 8 in their written statement have contended that the properties of Chauliaganj area under the Khata and stands recorded in the name of Balakrushna and Rabinarayan which measures A.c0.092 dec.; as the properties have been acquired by Balarushna in partition with co-sharers, the same are the self acquired properties. They further contended that the land described in schedule ‘D’ are all Chaka lands and those are partiable Chaka wise. They asserted that the properties described in schedule ‘B’ and ‘D’ are the self acquired properties of Balakrushna. They further stated that the properties described in schedule ‘E’, ‘F;’ and ‘G’ are the self acquired property of Menaka and the same is her Streedhan property. They deny the fact that Balakrushna had acquired the said property in the name of his wife. However, they stated to have no objection for partition of all the properties allotting 1/6th share each of them i.e. defendant Nos. 6 to 8). 8. The trial Court on such rival pleadings have framed as many as six issues which as the following : (1) Whether the suit is maintainable ? (2) Whether the plaintiffs have got any casue of action to bring this suit. 6 to 8). 8. The trial Court on such rival pleadings have framed as many as six issues which as the following : (1) Whether the suit is maintainable ? (2) Whether the plaintiffs have got any casue of action to bring this suit. (3) Whether the properties mentioned in Schedule-E, F and G were the self acquired properties of Menaka ? (4) Whether the gift by Menaka in favour of defendants No. 6, 7 and 8 in respect to E, F and G Schedule property are genuine ? (5) What is the quantum of share to be allotted to each of the parties ? (6) To what other relief, the plaintiffs are entitled ? 6. Going to answer most vital issues, i.e. issue Nos. 3 and 4 in the backdrop of the pleadings and upon analysis of evidence on record findings have been recorded by the trial Court that said suit property is the joint family properties of the parties and not the self acquired and exclusive property of Menaka. The genuineness of the gift deeds in favour of the defendant Nos. 6 to 8 executed by Menaka have been ruled in favour of the donees. With the above conclusion, further finding has been rendered that said part of the properties have been gifted to defendant Nos. 6 to 8 in order to avoid future misunderstanding and litigation, so that the parties can properly enjoy the said properties and deal with the same in any manner they like and, therefore, over the rest of the properties under those schedules, these defendant Nos. 6 to 8 have no further claim of share. 7. Learned Counsel for the appellants submitted that the trial Court has erred both in fact and law by recording a finding that the property standing in the name of Menaka, wife of Balakrushna are the joint family properties. According to him, on the basis of the evidence both documentary and oral on record, the Court below ought to have rendered a finding that the property in question is the property of Menaka absolutely resting upon her with the ownership, possession and enjoyment, as also the power to deal with the same in any manner she likes. He further submitted that the Court below has further committed error in passing an order that the defendant Nos. He further submitted that the Court below has further committed error in passing an order that the defendant Nos. 6 to 8 haviang already received the portions of the property out of the schedule ‘E’, ‘F’ and ’G’ by way of gift are not more entitled to get the share from out of the same and according to him, the trial Court ought not to have passed an order disentitling the defendant No. 6 to 8 from getting further share from the left over properties described in schedule ‘E’, ‘F’ and ‘G’ and confining their division amongst the sons of Menaka as their heirs. It was also submitted that the property being that of Menaka; the extent of gifted land in favour defendant No.6 to 8 ought to have been excluded and upon the left over properties all the heirs of Menaka ought to have been held entitled to shares as per law and therefore, he urges that they have to be so allotted. 8. Learned Counsel for the respondents submitted all in favour of the findings of allotment of order given by the trial Court. According to him, the findings of the Court below that the properties is the joint family property is based on just and proper appreciation of evidence on record. He submitted that in the absence of slightest evidence to suggest that Menaka had any such earning from any source whatsoever, the inevitable conclusion when stands that she had no funds at her disposal to purchase the property; and when the property has been purchased during the life time of Balakrushna, the finding that it is the joint family property is unassailable. He further submitted that the evidence on record with regard to enjoyment of the property, if is seen, the picture becomes very clear that Menaka had never used these properties independently nor at any time asserted her exclusive ownership rather had never turned her eyes over the same leaving the same to be dealt like other properties of the family. He further submitted that the trial Court’s finding that Menaka had gifted those lands to these defendant Nos. 6 to 8 so as to settle their shares for all times to come in so far as those properties in schedule ‘E, ‘F’ and ‘G’ are concerned is unassailable. He further submitted that the trial Court’s finding that Menaka had gifted those lands to these defendant Nos. 6 to 8 so as to settle their shares for all times to come in so far as those properties in schedule ‘E, ‘F’ and ‘G’ are concerned is unassailable. It was further submitted that the longstanding conduct of the parties in dealing with the properties after the death of Balakrushna and also after the death of Menaka when are seen, the same leaves no room of doubt that the left over properties from out of schedule ‘E, ‘F’ and, ‘G were meant to the enjoyed by the heirs of Balakrushna to the exclusion of these defendant no. 6 to 8. He, therefore, urged before this Court to affirm the findings rendered by the trial Court and confirm the judgment decree passed in the suit. 9. The point now arises for consideration in this appeal is : (i) whether the properties described in schedule ‘E’, ‘F’ and ‘G’ are the joint family properties of the parties or it is the exclusive property of Menaka; and (ii) whether the defendant nos. 6 to 8 being the daughters of Menaka are entitled to get further share over the left over properties standing recorded in the name of Menaka after deducting the properties gifted by Menaka in their favour ? 10. Admittedly, Menaka was a house wife. The family had sufficient landed properties and husband of Menaka namely, Balakrushna was having other earning sources. These parties have no direct knowledge with regard to purchase of land in the name of Maneka. But the fact remains that the properties have been purchased when the Balakrushna was crowned as the head of the family in every respect. It is also borne out from the evidence that the properties since purchased have been dealt along with all other properties of the family as the joint family properties and have all along been treated as such. Constructions are over there and now also the heirs of Balakrushna and Menaka other than these defendant Nos. 6 to 8 and to their exclusion have been enjoying the left over properties whereas the portions of the properties gifted to the defendant nos. 6 to 8 are in peaceful enjoyment of the persons who have in turn purchased those from defendant nos. 6 to 8 without any resistance from other members. 6 to 8 and to their exclusion have been enjoying the left over properties whereas the portions of the properties gifted to the defendant nos. 6 to 8 are in peaceful enjoyment of the persons who have in turn purchased those from defendant nos. 6 to 8 without any resistance from other members. The defendant nos. 6 to 8 are not in enjoyment of any part of the properties which has remained after reduction to the extent of the gifted portion of the properties. These defendant nos. 6 to 8 for all these period have never staked any claim over the income which is derived from out of the left over properties of schedule ‘E’, ‘F’ and ‘ ‘G’ and more importantly, those are being enjoyed by heirs of Balakrushna and Menaka, other than these defendant nos. 6 to 8 that too separately. When the plaintiff has not stated in the plaint that Balakrushna had acquired schedule ‘E’, ‘F’ and ‘G’ properties in the name of Menaka, the defendant nos. 4 and 5 while supporting the same, have further averred that Menaka and Balakrushna during their lifetime had gifted away property to defendant nos. 6, 7 and 8 by executing gift deed in the year 1967 (one deed) and after a gap of four years in the year 1972 (two deeds) in order to finally settle their shares in so far as the properties are concerned so as to avoid any future disturbance. It is not denied that the defendant nos. 6 to 8 since the time of receiving the land under the gift deeds have been in enjoyment of those to the exclusion of others without any such hindrance that to, others have never caused any such obstructions either directly or indirectly. D.W. 2 who is none other than defendant no. 6 has clearly stated and that has also been the case of other defendants that the properties which they received from Menaka by way of gift have been sold away by them to outsiders who are in peaceful possession and enjoyment of the same. No such evidence on record surfaces to say that parties have never objected to the enjoyment of the properties gifted in favour of defendant nos. 6 to 8 in any manner. No such evidence on record surfaces to say that parties have never objected to the enjoyment of the properties gifted in favour of defendant nos. 6 to 8 in any manner. She has also stated that the rest portions are in possession and enjoyment of the heirs of Balakrushna and Menaka to their exclusion and they are deriving the income separately. When we glance at the first deed of gift dated 01.07.1967 i.e. Ext. D, it is seen that the properties have been gifted to Subhasini, the defendant no.8, who is the youngest amongst the three daughters. It is there in the recital that Balakrushna and Menaka having promised to give that extent of land as described under deed, Menaka had executed the said deed of gift and the promise is said to have been made at the time of betrothal ceremony. This having been done in the year 1967, the rest two gift deeds have come to be executed on 05,.01.1972 in favour of the Shantilata, defendant No.7 and Basanti, defendant no.6 which are Exts. H and J respectively. Defendant no. 6 is four years elder to defendant no.8 and defendant no. 7 is two years elder to defendant no. 8 and two years younger to defendant No.6.Again in those two subsequent deeds of gift, the recitals are here that during the marriage of defendant nos. 6 and 7, importantly the parents i.e. Balakrushna and Menaka had given those lands to these daughters and in view of the requirement of the deed to confer title upon them exclusively, the gift deeds have been so executed. It may now be taken note of that Balakrushna died in the year 1989 and Menaka died in the year 2000. All these factual settings being judged in proper perspective rather lead to the drawal of the inference that the daughters at least, the defendant nos. 6 and 7 having so demanded lands later, have been given under the deeds of gift which cannot be taken that it was not a measure of settlement of their shares. Had the intention of Menaka and Balakrushna been not so, the gifts could have been for the entire land to the total deprivation of the sons therefrom. The intention thus appears that the residue was meant for the sons and not along with the daughters. Had the intention of Menaka and Balakrushna been not so, the gifts could have been for the entire land to the total deprivation of the sons therefrom. The intention thus appears that the residue was meant for the sons and not along with the daughters. That apart in case of marriage of a daughter in the joint family, such property being given to the daughters so as to see her well being in her in-laws place, the giving rather is to be treated towards their share and not to provide further encroachment of the shares of others over the rest. It has been deposed by P.W. 1 who is the plaintiff no.2 and son of late Mahendra Kumar Sahoo, son of Balakrushna that there are four godowns of Schedule – ‘F’ properties and he is possessing one, whereas defendant no.5 who is his uncle is possessing another and defendant no.2 and 3 are in possession of two other godowns. Defendant no.5 has been examined as D.W. 1. He has stated that defendant nos. 1 and 4 are using part of the lands standing recorded in the name of Menaka by running their own business. D.W. 3 is the son of defendant no.8. Although, he has stated that her mother and aunts had not been given the land from out of the schedule ‘E’, ‘F’ and ‘G’ towards settlement of their shares over the said properties for all times to come, yet he has not offered any such explanation whatsoever as regards the dealing of the property by the heirs of Balakrushna and Menaka to the exclusion of his mother and aunts for all these long period. He has also stated that as to how since the death of Balakrushna and Menaka, they have completely slept over the matter despite the fact that the heirs of Balakrushna and Menaka other than defendant no. 6 to 8 have been enjoying the properties and earning thereof by such user without parting any part of it to these defendant nos. 6 to 8 as also there had never been the advancement of any such demand. 6 to 8 have been enjoying the properties and earning thereof by such user without parting any part of it to these defendant nos. 6 to 8 as also there had never been the advancement of any such demand. The conduct of the parties in dealing with the said properties described in schedule ‘E’, ‘F’ and ‘G’ for all these years since 1967 and even after the death of Balakrushna and Menaka being cumulatively viewed with the recitals in the deeds of gift as also culling out the intention of the parties, in my considered view establishes a case that the properties under schedule ‘E’, ’F’ and ‘G’ recorded in the name of the Menaka are the joint family properties and that, part from those properties had been given to defendant nos. 6, 7 and 8 completely leaving at their disposal for their enjoyment and dealing with the same in any manner they like and in furtherance thereof, they have in fact done so in selling the properties with a view to avoid future dispute over those properties leaving those left over in the hands of the rest, of the heirs of Balakrushna and Menaka who are sons and their heirs, in any manner they like to do which in fact they have been so doing. For the aforesaid discussion, this Court is led to affirm the findings recorded by the trial Court as well as the order relating to the allotment of shares in favour of the parties. 11. In the result, the appeal stands dismissed. The parties are to bear their respective cost of litigation throughout. Appeal dismissed.