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2018 DIGILAW 714 (ORI)

Rama Chandra Das v. Subendu Kumar Das

2018-08-02

D.DASH

body2018
JUDGMENT This is an appeal under Section 96 of the Code of Civil Procedure. The unsuccessful plaintiff has assailed the judgment and decree dated 05.10.2005 and 27.10.2005 respectively passed by the learned Adhoc Additional District Magistrate (F.T.C.), Berhampur in C.S. No.08 of 2004 (T.S. No.91 of 1998). The appellant is the defendant No.1 in that suit, he is the father of the respondent No.1 (plaintiff). The respondent No.2 and 3 are two other sons of appellant (defendant No.1) and brothers of respondent No.1 (plaintiff). Respondent Nos.4 and 5 have been arraigned in the suit as the defendant No.4 and 5 for having purchased portions of the suit property. The suit filed by the respondent No.1 as the plaintiff is for partition claiming 1/4th share over the land described in the schedule-A and B of the plaint. That has been preliminarily decreed entitling the respondent No.1 (plaintiff) to 1/4th share so also appellant (defendant No.1) respondent No.2 (defendant No.2) and respondent No.3 (defendant No.3), 1/4th share each over the Schedule-A land after exclusion of the property sold to respondent nos. 4 and 5 (defendant No.4 and 2). 2. 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. 3. Plaintiff’s case is that the suit property originally belonged to his great grandfather Baikunthanath Das, father of defendant No.1. It is stated that he died leaving behind his widow, Ratnamani, and son the defendant No.1. It is further stated that after death of Baikunthanath Das, dissension arose between the mother and son i.e. Ratnamani and defendant No.1 mainly because Ratnamani in the year 1975, gifted some properties to the daughter of defendant No.1. This plaintiff then filed a suit i.e. T.S. No.74 of 1975 in the Court of the Sub-ordinate Judge, Berhampur claiming partition of the properties left of Baikunthanath Das against her mother, Ratnamani. After institution of the suit, some well wishers intervened in the matter for which the suit was finally disposed of in terms of compromise. It is categorically stated that in the said compromise, the defendant No.1 was allotted with the land which is the subject matter of the present suit for partition filed by his son as the plaintiff. After institution of the suit, some well wishers intervened in the matter for which the suit was finally disposed of in terms of compromise. It is categorically stated that in the said compromise, the defendant No.1 was allotted with the land which is the subject matter of the present suit for partition filed by his son as the plaintiff. It is stated that the suit property being the ancestral property coming down from the hands of the grandfather of the plaintiff i.e. namely Baikunthanath Das to the hands of the defendant No.1, the plaintiff is entitled to his legitimate share along with his father-defendant No.1 and brothers, defendant No.2 and 3 in the proportion of 1/4th share each. It has been further stated that the defendant No.1 with a view to harass the plaintiff and other sons has sold away some properties to defendant Nos. 4 and 5 and consideration amount received has been taken by him alone and no such benefit towards the sale has percolated to any of the members of the family by virtue of said sales. The plaintiff’s claim is that such sales are not valid and binding on him. Citing the cause of action for the suit as the date when the plaintiff’s demand for partition of the suit properties was declined by the defendant No.1, the suit has been filed. 4. The defendant No.1 to 3 coming to contest the suit by filing their written statement admit that the appellant-defendant No.1 had filed T.S. No.74 of 76 against her mother, Ratnamani and that this property in question had been allotted to defendant No.1 under the compromise effected between himself and his mother in that suit. The sales of some property out of the suit property is said to have been made by the defendant No.1 to defendant No.4 and 5 so as to meet the family need in tiding over the difficulties passing the situations as were then prevailing. More specifically, it is stated to be for repayment of loan incurred for meeting the expenses incurred in that suit as also the maintenance of the members of the family and their education and well being. 5. The trial Court on the above rival pleadings, has framed following issues :- 1. Whether the suit is maintainable ? 2. Whether the suit lands are the ancestral properties having been acquired by Baikunthanath Das ? 3. 5. The trial Court on the above rival pleadings, has framed following issues :- 1. Whether the suit is maintainable ? 2. Whether the suit lands are the ancestral properties having been acquired by Baikunthanath Das ? 3. Whether the decree in T.S. No.76/75 is valid and binding on the parties ? 4. Whether the plaintiff has 1/4th share in the suit properties ? 5. Whether the sale of some of the lands by defendant No.1 is valid and binding on the parties? 6. To what relief, if any, plaintiff is entitled ? 6. It is seen that rightly the court below has taken up issue Nos.2, 3 and 4 together for decision. Finding of the trial Court is that the plaintiff has 1/4th share over the property shown in the Schedule-A property. Next going to answer issue No.5 with regard to binding nature of the said sales made by the defendant No.1 in favour of the defendant Nos. 4 and 5, the answer has been recorded that those are valid and binding on all and consequent upon said finding, those sold properties have been kept beyond the purview of partition. 7. Heard Mr.S. Pattanayak, learned Counsel for the appellant and Mr.S.S. Rao, learned counsel for the respondent. 8. On going through the rival case projected by the parties in their pleadings and giving careful reading to the entire judgment rendered in the suit, I am also of the considered view that the appeal has to be allowed holding the suit at the instance of the plaintiff for the reliefs claim as not maintainable in the eye of law and accordingly the judgment and decree passed by the trial Court are liable to be set aside. The followings are the reasons in support of my above view finally giving the fatal blow upon the claim of partition at the instance of the plaintiff. (a) Admittedly, the property was in the hands of Baikunthanath, the grandfather of the plaintiff and the defendant No.2 and 3 and father of defendant No.1. (b) Admittedly, Baikunthanath, died leaving behind a female class I heir i.e. Ratnamani (widow) and a male class I heir i.e. Ram Chandra (defendant No.1) The plaint case is that after Baikuntha’s death, there arose dissention between defendant No.1 with his mother, Ratnamani. Its not denied. (b) Admittedly, Baikunthanath, died leaving behind a female class I heir i.e. Ratnamani (widow) and a male class I heir i.e. Ram Chandra (defendant No.1) The plaint case is that after Baikuntha’s death, there arose dissention between defendant No.1 with his mother, Ratnamani. Its not denied. Furthermore, it undeniably stands that for that reason Ram Chandra, the defendant No. 1 of the present suit had filed one suit i.e. T.S. No.76 of 1975, wherein finally the properties were partitioned in metes and bounds and this suit property had been allotted to this defendant No.1 (c) In the facts and circumstances as above, there was no longer the joint family and the property in question cannot be said to be the joint family property. Baikunthanath having died after coming into force of Hindu Succession Act which is not specifically stated by any party to be otherwise, a notional partition of the properties by operation of the provision of the section 6 of the Hindu Succession Act has to be presumed to have taken place soon before Baikunthanath’s death, with the assignment of 1/3rd to Baikunthanath, 1/3rd to Ratnamani and 1/3rd to Ram Chandra (present defendant no.1). That, 1/3rd share assigned to Baikunthanath, now again in the absence of any daughter or any other Class-I female heir, is assigned in equal half to Ram Chandra, the present defendant No.1 and his mother, Ratnamani. So at that point of time, the coparcenary stood vanished by operation of law and the properties lost their character as such. The property after such notional partition was inherited by the defendant No.1 and his mother by virtue of and in accordance of the provision of Section 8 of the Hindu Succession Act. Such property would devolve by intestacy and not by survivorship. This being the case, the ancestral property ceased to be joint family property on the death of Baikunthanath, defendant No.1 held the property as tenants in common and not as joint tenants. This being the state, the plaintiff cannot be said to having any interest over the suit properties during the life time of defendant No.1 and thus cannot maintain a suit for partition like the present one. This being the state, the plaintiff cannot be said to having any interest over the suit properties during the life time of defendant No.1 and thus cannot maintain a suit for partition like the present one. The trial Court having not at all applied its mind in this direction is found to have gone to decide the suit by remaining under an erroneous legal impression that the property having come to the hands of his father, the defendant No.1, from the grandfather of the plaintiff, the suit for partition at the instance of the plaintiff is maintainable, and the plaintiff is having equal share with his father (defendant No.1) and brothers (defendant No.2 and 3). 8. In the result, the appeal stands allowed. The judgment and preliminary decree passed by the learned Adhoc Additional District Judge, Berhampur in C.S. No.08 of 2004 (T.S. No.91 of 1998) are hereby set aside and the suit filed by the respondent No.1 as the plaintiff stands dismissed. In the facts and circumstances, the parties are to bear their respective cost of litigation throughout. Appeal allowed.