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2021 DIGILAW 145 (ORI)

Siba Prasad Sunkari v. Shyama Sundar Sunkari

2021-03-24

D.DASH

body2021
JUDGMENT 1. The Appellants by filing this Appeal under section 100 of the Code of Civil Procedure (for short 'the Code') have assailed the judgment and decree passed by the learned Adhoc Additional District Judge, Gunupur in R.F.A. No.8 of 2006. By the said judgment and decree, the lower Appellate Court has confirmed the judgment and decree passed by the learned Civil Judge (Sr. Division), Gunupur in Title Suit No.17 of 1983. The Courts below have decreed the Suit for partition by passing a preliminary decree. 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. It is pertinent to state here that the Suit for partition had originally been filed by one Sisti Suryamani (Original Plaintiff No.1) with her two daughters, namely, Sashi Sunkari (Original Plaintiff No.2) and Sabitri Pradhan (Plaintiff No.3). The Original Plaintiff No.1, Sisti Suryamani having died during the pendency of the Suit, Shyama Sundar Sunkari claiming as the legatee to the share of Sisti Suryamani under a Will executed by her in his favour has been substituted in her place. This Shyam Sundar has been assigned with the position as Plaintiff No.1 and he is none other than the son of the Plaintiff No.2 i.e. the grandson of original Plaintiff No.1 (daughter's son). The original Plaintiff No.2 and 3 having died during Suit, their sons and daughters have come be substituted Plaintiffs. The Defendant No.1 and 2 having died, their legal representatives are arraigned as Defendants. The unsuccessful Defendants had preferred an Appeal under section 96 of the Code and that having been dismissed confirming the judgment and preliminary decree passed by the Trial Court under challenge, the present Appeal is at the instance of the Defendant Nos.2(a) to 2(c). 3. Plaintiffs case is that one Sisti Neelakanta died in and around the year 1953 leaving behind his widow Sisti Suryamani (original Plaintiff No.1) and three daughters, namely, Annapurna Sunkari (original Defendant No.1), Sashi Kunkari (original Plaintiff No.2) and Sabitri Pradhan (Plaintiff No.3). The suit land belonged to late Sisti Neelakanta and on her death, it came to be recorded in the name of her wife Sisti Suryamani, the original Plaintiff No.1. The houses are situated over the said land. The suit land belonged to late Sisti Neelakanta and on her death, it came to be recorded in the name of her wife Sisti Suryamani, the original Plaintiff No.1. The houses are situated over the said land. Defendant No.2 being the elder son-in-law of the original Plaintiff No.1 was assisting her in the management of the family properties as Sisti Neelakanta had no son and Sisti Suryamani, the widow of Sisti Neelakanta was a paradanasin illiterate lady. It is stated that in the year 1970, Sisti Suryamani and Defendant No.2 together obtained a loan of Rs.6,000/- from the Land Mortgage Bank, Rayagada for excavation of a tank and for the purpose, the land was required to be mortgaged. The tank although was excavated, it however did not serve the desired purpose. The Defendant No.2 then proposed to have a lift irrigation point there and for the purpose, he wanted further loan to be incurred. So, it is alleged that Defendant No.2 took a document from the original Plaintiff No.1 and Defendant No.2 installed one pump set. Defendant No.2 is said to have played the mischief in creating that document. In course of time, it came to be known that said Defendant No.2 by abusing his position and betraying the trust and confidence reposed on him by his motherin-law, misrepresenting the fact has practised fraud and obtained a document styled as 'Release/Relinquishment Deed' from Plaintiff No.1 on the score that she had relinquished her right over the suit property in favour of the original Defendant No.2. He then carried out mutation behind the back of everyone. The claim of the Plaintiffs is that by the said document and the consequential recording of the land, no right, title and interest in respect of the very same land has passed on to the hands of the original Defendant No.2 and the transaction being void is nonest in the eye of law. 4. The suit land since belonged to Sisti Neelakanta, after his death Sisti Suryamani and three daughters jointly succeeded to the same. 4. The suit land since belonged to Sisti Neelakanta, after his death Sisti Suryamani and three daughters jointly succeeded to the same. The mischief of the original Defendant No.2, who is none other than the son-in-law of Sisti Neelakanta and Sisti Suryamani (the husband of their eldest daughter-Annapurna) being detected, he had given in writing that his mother-in-law, his wife with two other sisters each have 1/4th share in the said property in respect of which he had obtained the Deed of Release/Relinquishment; in other words by said document, he disowned his right if any and abandoned his claim thereto. Sisti Suryamani filed one suit, i.e., C.S. No.6 of 1972 in the Court of the learned Munsif, Rayagada (as it was then). The suit was decreed on compromise. The Defendant Nos.2 to 7 in that suit was allowed to possess two cents of land each and the rest of Ac.0.58 cents was decreed in favour of Sisti Suryamani and the original Plaintiff No.1 and Defendant No.2. Said suit had been filed because of the fact that the land in question was erroneously recorded in the name of Sesadri Temple, Bissam Cuttack. It is the further case of the Plaintiffs that the gold ornaments as described in schedule 'D' of the plaint belonging to Sisti Suryamani and her family was given to original Defendant No.2 and he did not return the same. The old living house of Neelakanta had been sold away and the original Plaintiff No.1 had constructed a house in the front portion where she resided till September, 1981 and there the original Defendant Nos.1 and 2 were also residing. During that period they took away all the movables of the house and shifted to another house by leasing out the said house. It is also stated that Sisti Suryamani have given house sites to each of their daughters and they have constructed their own houses and residing over there. The Plaintiff No.1 having no house to live had to take shelter with the Plaintiff No.2. 5. The original Defendant Nos.1 and 2 in their written statement while traversing the plaint averments took a specific stand that Defendant No.2 by dint of his own efforts and spending money from his own purse had purchased the land in suit and he was in possession of the same. 5. The original Defendant Nos.1 and 2 in their written statement while traversing the plaint averments took a specific stand that Defendant No.2 by dint of his own efforts and spending money from his own purse had purchased the land in suit and he was in possession of the same. But during the Settlement operation erroneously, the land has been recorded in the name of the original Plaintiff No.1. In view of the relationship, the Defendant No.1 did not attach any importance to such mistake in the record of right. However, in order to rectify the said mistake on 12.01.1977, the original Plaintiff No.1 executed a deed of relinquishment by relinquishing all her interest over the suit property in favour of the original Defendant No.2 by admitting therein the ownership of the original Defendant No.2 in respect of the suit land. The document was then registered. It is stated that the original Plaintiff No.1 had executed the said document out of her free will and volition and having full knowledge about the nature and character of the document as also its recitals. So, it is said that the plaint case to the effect that Sisti Neelakanta had acquired the property and after him it was inherited by his wife Sisti Suryamani and all their daughters who had their interest therein is not true and correct. According to the case of these Defendants that is a plea taken for the purpose of this Suit. The execution of any document on 12.01.1977 admitting the title of the Plaintiffs over the suit land has been denied. It is next stated that even if such a document is in existence, it is a forged and created one for the purpose as also is not valid and binding on the parties, further being not registered, the same is inadmissible in evidence. It is the further case of the Defendants that the properties described in schedule 'C' is the exclusive property of the Defendant no.2 and the Plaintiffs have nothing to do with the same. As regards receipt of the movables, the Defendants have gone to deny the said fact. It is the further case of the Defendants that the properties described in schedule 'C' is the exclusive property of the Defendant no.2 and the Plaintiffs have nothing to do with the same. As regards receipt of the movables, the Defendants have gone to deny the said fact. It is also the case of the Defendants that the Suit for partition without seeking any relief of declaration of title over the suit land and without taking any step in accordance with law to avoid the deed of relinquishment executed by Sisti Suryamani (original Plaintiff No.1) way back in the year 1977, is not maintainable. 6. On the rival case as above, the Trial Court has framed as many as nine issues. The crucial issues as to the ownership of the property, validity of the relinquishment as also the other document said to have been executed by the original Defendant no.2 on 12.01.1977 have been taken up together for decision as the decisions would accordingly lead to render the answers to the other issues as to whether the right, title and interest of the Plaintiffs in respect of the suit land and so as their entitlement of the share therefrom as prayed for. 7. Upon examination of oral and documentary evidence in great detail; the Trial Court has found the answers to those issues in favour of the Plaintiffs. Accordingly, the Suit has been preliminarily decreed. The lower Appellate Court being moved by the unsuccessful Defendants as it appears from the judgment on reappreciation of the evidence, both oral and documentary, has found no reason/ justification to accord any note of dissent to the findings of the Trial Court. 8. By order dated 03.09.2013, this Appeal has been admitted on the following substantial question of law:- 'Whether the suit for partition simplicitor without the prayer to declare the relinquishment deed (No.25/77) as void, is sustainable in law'? 9. Mr. R.K. Mohanty, learned Senior Counsel for the Appellants (Defendants) submitted that the deed of relinquishment being a registered document, which has been admitted in the evidence and marked as Ext.3, its due execution by the executant, i.e., original Plaintiff No.1 stands presumed as per law. 9. Mr. R.K. Mohanty, learned Senior Counsel for the Appellants (Defendants) submitted that the deed of relinquishment being a registered document, which has been admitted in the evidence and marked as Ext.3, its due execution by the executant, i.e., original Plaintiff No.1 stands presumed as per law. The plaintiffs thus ought not have been granted with the relief of partition in the Suit without any declaration from the competent Court that said document is void in the eye of law and thus not binding on the parties. He further submitted that this Ext.3 was required to be avoided by a decree/order of the Court of law so as to advance claim of title in respect of the interest of the original Plaintiff No.1 in the suit land. It was submitted that in this situation simple suit for partition is not maintainable in view of the provision contained in section 31 of the Specific Relief Act. According to him, the Plaintiffs being well aware that the right, title and interest over the suit land have been extinguished without levying any challenge to the said document, i.e., Ext.3, the present suit filed, being couched as one for partition simplicitor ought to have been dismissed. In support of his submission, he has strenuously placed reliance upon the decision of the Hon'ble Apex Court in case of Prem Singh & Ors. Vs. Birbal & Ors, (2006) 5 S.C.C. 353 . 10. Mr. B. Das, learned counsel for the Respondents (Plaintiffs) submitted that here Ext.3 being completely a void document, the submission of the learned Senior counsel for the Appellants (Defendants) that it was required to be avoided under a decree/order in setting aside/cancelling the same is not acceptable. He further submitted that the very foundation of the document that the property was the property of the original Defendant No.2, which had been erroneously recorded in the name of original Plaintiff No.1, when has not been found to be the correct position and rather false and that when has again been admitted by the Defendant No.2 detriment to his interest by executing the document which has been admitted in evidence and marked as Ext.4 (Chuktinama), the contention raised to non-suit the Plaintiffs for not avoiding that document Ext.3 in accordance with law does not hold water. 11. 11. In order to find out the answer to the formulated substantial question of law by addressing the rival submission, some essential facts and circumstances as those emanate from the rival pleadings and evidence require narration. The so-called relinquishment deed in question has been admitted in evidence and marked as Ext.3. It has been nomenclatured as ('Stabar Sampanti Haak Parityaga Patra'). The English translation of the said nomenclature would stand as 'Deed of Release/Relinquishment of the Right over the Immovable Property'. This deed has been executed on 12th January, 1997. The foundational facts providing the base on which said deed stands is that although the property in question is the property acquired by the Defendants no.2 from his own funds, the same has been wrongly recorded in the name of the executant, the original Plaintiff No.1. It does not appear that this Defendant No.2 is the beneficiary under that document in question, i.e., Ext.3 whereas he appears to have received the acknowledgement/recognition of his own and independent right, title and interest over the property in question from the Plaintiff No.1 in whose name the land had been recorded. She thus has recognized the right, title and interest of the Defendant No.1 over the land involved in that deed in stating further that she had no right nor has any such right. By saying so and on that premises, the original Plaintiff No.1 is seen to have proceeded to execute the document. This fact as to the Defendant no.1 having the right, title and interest over the land in question, which he had acquired on his own and independently is in dispute in the Suit. Thus this document, Ext.3 is not the one by which the Defendant No.2 is deriving any right, title and interest over that land but here it can be said that his preexisting or subsisting right over the land as per his claim has been acknowledged. Fact, however, remains that no document to show that the original Defendant No.2 had acquired the property has been put forth in evidence in course of trial and that essential fact, the Defendants have failed to establish. On a plain reading of the entire document, it does not at all reveal to be one by which the executant, i.e., original Plaintiff No.1 has either released/relinquished her right. On a plain reading of the entire document, it does not at all reveal to be one by which the executant, i.e., original Plaintiff No.1 has either released/relinquished her right. Rather, accepting the document as placed, she is said to have declared that she and her daughters have no right over the property since it is the property of Defendant No.2. It is thus seen as a document of acknowledgement of right, title and interest of the Defendant No.2 over the property in question which he had got all along since beginning. For non-establishment of the very fundamental facts, which are in dispute and from the base of this document being found to have not been established by the Defendants through evidence, the document, in my considered view, has no such value or effect in the eye of law in creation of right with respect to the land in favour of the Defendant No.2 as also relinquishment of the right of the original Plaintiff No.1 even up-to the extent of interest, she had over it. In that view of the matter, the suit having the prayer for partition ignoring that Ext.3 cannot be dismissed for not avoiding that document Ext.3 under a decree/order of the court or in this Suit the Plaintiffs having made no prayer to the effect, the same would not entail any fatal consequence. In that view of the matter, the document (Ext.3) when is not found to be a deed of relinquishment/release and it being as a document of recognition/acknowledgement of the existing/ subsisting title of the beneficiary under the deed, i.e., the Defendant No.2, it has nothing to do with the passing of right, title and interest in respect of the property by changing hands or bestowing the beneficiary, i.e., the Defendant No.2 with the right, title and interest over the property in question. The Defendants having utterly failed to establish that it is the property of Defendant No.1 who had absolute right, title and interest over it, also the question of acknowledgement of the same by the original Plaintiff No.1 does never arise. Therefore, the deed (Ext.3) has been rightly eschewed from consideration and not taken cognizance of in this suit for partition of the property. Therefore, the deed (Ext.3) has been rightly eschewed from consideration and not taken cognizance of in this suit for partition of the property. Thus the suit for partition as instituted is maintainable in law and based on evidence, the Courts below ultimately allowing the same and passing the preliminary decree did commit no such error. The facts and circumstances as also the position/setting/construction as to the document (Ext.3) being quite distinguishable from the factual settings and construction of the document in the cited case, i.e., Prem Singh & Other (supra), the principle of law laid down therein does not come to the aid of the Defendants in saving the property involved under that document (Ext.3) from being partitioned by non-suiting them. The answer to the substantial question of law as at para-8 is accordingly returned in favour of confirmation of the judgments and preliminary decrees passed by the Courts below which runs against the Defendants. 12. Accordingly, the Appeal stands dismissed. No order as to costs.