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2023 DIGILAW 100 (JHR)

Dulal Dutta v. Puranjay Paul

2023-02-01

ANIL KUMAR CHOUDHARY

body2023
JUDGMENT : [Anil Kumar Choudhary, J.] 1. Heard the parties. 2. This second appeal under Section 100 of the Code of Civil Procedure has been preferred against the judgment and decree of concurrence dated 14.12.2017, passed by the District Judge-I, Jamtara, in Civil Appeal No. 09 of 2016 by which, the learned first appellate court dismissed the appeal after finding that the trial court has rightly passed the judgment and decree dated 05.01.2016, passed by the trial court being the Civil Judge (Sr. Div.) -III, Jamtara in Title (P) Suit No. 12 of 2007. 3. The case of the plaintiff in brief is that the parties to the suit are Hindus, governed by Dayabhaga School of Hindu Law and the suit property is the joint ancestral property of the parties to the suit and the same was recorded in the names of Rishi Dutta, Motilal Dutta and Gostha Dutta, all sons of Late Balai Dutta. Rishi Dutta died in or about 1959 leaving his widow Mohini Dutta and a daughter Sarojini and Sarojini had three daughters namely Bijala, Pramila and Padma and the plaintiff is the adopted son of Bijala Bala and the defendants are the legal heirs of the Pramila and Padma as well as the descendants of Gostha Dutta. Motilal Dutta and his wife died issueless and subsequent to their death, their interest in the joint family property devolved upon the daughter of his deceased brother Rishi Dutta and children of his another deceased brother Gostha Dutta. The defendant no. 1 is the descendant of Pramila Bala Dasi whereas Padma Dasi is the defendant no. 2 of the suit. The defendants-second party members are surviving legal representatives of Gostha Dutta. The plaintiff claimed 8/63 part of the share and asserted that the defendants-1st party are together entitled to 16/63 part of the share whereas the defendants-2nd party are together entitled to 13/21 part of the suit property and the plaintiff filed the suit for a preliminary decree for partition and consequential reliefs. 4. The defendant no. 1 though appeared but did not file cost of 248 written statement and the defendant no. 2 was debarred from filing the written statement consequent upon her non-appearance after service of summons. The defendant nos. 3, 4, 5, 7, 12, 13, 17, 18, 20, 24, 26, 27 and 30 were debarred from filing their written statement. The original defendant no. 1 though appeared but did not file cost of 248 written statement and the defendant no. 2 was debarred from filing the written statement consequent upon her non-appearance after service of summons. The defendant nos. 3, 4, 5, 7, 12, 13, 17, 18, 20, 24, 26, 27 and 30 were debarred from filing their written statement. The original defendant no. 13-Dugai Dutta appeared but he did not file his written statement and after his death, his wife was substituted. The defendant no. 14 - Behula Dutta appeared and filed her written statement. She challenged the maintainability of the suit on various technical grounds. She also admitted the adoption of the plaintiff by his adoptive parents. She further pleaded that the plaintiff is the son of Sudhakar Pal and is not the son of Bijala Dutta and he never resided in the family of Ratan Chandra Paul whom he claims to be his adoptive parents. Hence, he has no right in the suit property and he is not entitled to any partition. The defendant no. 13-Niyati Dutta, in her written statement challenged the maintainability of the suit on various technical grounds. She claimed that Rishi Dutta died in the year 1935 and his widow Mohini Bala died in the year 1953 leaving behind a daughter Sarojini Dutta who has not succeeded the property Rishi Dutta, hence the interest of Rishi Dutta over the property devolved upon his surviving brothers Motilal Dutta and Gostha Dutta equally. She also challenged the adoption of the plaintiff by Bijala and her husband Ratan Chandra Pal. 5. On the basis of the rival pleadings of the parties, the learned trial settled the following six issues: (i) Whether the suit is maintainable in its present form? (ii) Is there any valid cause of action for filing this suit? (iii) Whether plaintiff Puranjay Paul is legally adopted son of Ratan Paul and Bijala Bala and successor of recorded tenant Rishi Dutta? (iv) Whether Sarojini Dasi succeeded to the properties of her father Rishi Dutta? (v) Whether there is unity of title and unity of possession regarding suit properties among the parties to the suit? (vi) To what relief, the plaintiff is entitled to? 6. In support of their case, the plaintiff altogether examined seven witnesses and proved the documents which have been marked Ext. (v) Whether there is unity of title and unity of possession regarding suit properties among the parties to the suit? (vi) To what relief, the plaintiff is entitled to? 6. In support of their case, the plaintiff altogether examined seven witnesses and proved the documents which have been marked Ext. 1 to 5/a and from the side of the defendants, altogether thirteen witnesses were examined and they also proved the documents which have been marked Ext. A to D. The learned trial court first took up issue no. iv and after considering the law that female succession under Dayabhaga School of Hindu Law goes to show that daughter has been a successor to a male Hindu since long under Old Hindu Law and in this case, Rishi Dutta died in the year 1935 and his wife Mohini Dutta died in the year, 1953, hence Sarojini will succeed to the interest of her father and decided the issue no. iv in favour of the plaintiff and against the defendants. Thereafter, the learned trial court took up issue no. iii and after considering the evidence in the record came to the conclusion that the plaintiff is the adopted son of Bijala and Ratan Pal and decided the issue no. iii in favour of the plaintiff. The learned trial court thereafter took up issue no. v and after considering the evidence in the record came to the conclusion that there is unity of title and possession of the parties with regard to the suit property and decided issue no. v. in favour of the plaintiff as well. The learned trial court next took up issue nos. i & ii together and after considering the materials in the record, concluded that the suit is maintainable in its present form and there is valid cause of action for filing the suit and decided the issues in favour of the plaintiff and against the defendants. Lastly, the learned trial court took up issue no. vi and considering the fact that the property was jointly recorded in the names of Rishi Dutta, Motilal Dutta and Goshtha Dutta and accepting the contention of defendant no. 14-Behula Dutta that her husband Kamal Dutta was adopted by Motilal Dutta and relying upon the registered deed of adoption which has been marked Ext. B, came to the conclusion that the defendant nos. 14-Behula Dutta that her husband Kamal Dutta was adopted by Motilal Dutta and relying upon the registered deed of adoption which has been marked Ext. B, came to the conclusion that the defendant nos. 14, 15 & 16 are jointly entitled to 1/3rd share in the suit property on the basis of being the legal heirs of Motilal Dutta and the branch of recorded tenant of Gostha Dutta are jointly entitled to 1/3rd share and the branch of Rishi Dutta is entitled to 1/3rd share, so the plaintiff being the son of one of the three daughters of Sarojini is entitled to 1/9th share and accordingly ordered for preparation of the preliminary decree. 7. Being aggrieved by the said judgment and decree passed by the trial court, the defendants filed Civil Appeal No. 09 of 2016 in the court of Principal District Judge, Jamtara which was ultimately heard and disposed of by the learned first appellate court vide the impugned judgment and decree. 8. The learned first appellate made independent appreciation of the evidence in the record and formulated the following points for determination:— (A) Whether the lower court was justified in decreeing the suit of plaintiff? (B) Whether the Defendants Minors No. 9, 10, 15 and 16 were not properly noticed and they were not represented and any prejudice has been caused to them with the impugned judgment and decree? 9. The learned first appellate court first took up point for determination no. A and after considering the evidence in the record and also the principle of law regarding devolution of property under the Dayabhaga School of Hindu Law, wherein, the widow and daughter has been successor to a male Hindu since long under the Old Hindu Law, came to the conclusion that Sarojini Dasi will succeed to the interest of her father Rishi Dutta, in view of the principles of law regarding female succession under the Dayabhaga School of Hindu Law and concurred with the finding of fact of the trial court to the effect that Sarojini Dutta will succeed to the interest of her father and answered the point for determination no. A in the affirmative. The learned first appellate court thereafter took up point for determination no. B and after considering the evidence, answered the point for determination no. A in the affirmative. The learned first appellate court thereafter took up point for determination no. B and after considering the evidence, answered the point for determination no. B by observing that the minors were properly and effectively represented and answered the point for determination no. B in the negative and dismissed the appeal. 10. Mr. Nityanand Prasad Choudhary, the learned counsel appearing for the appellants submits that both the courts below have committed gross error in appreciating the evidence in the record and failed to appreciate that the original tenant Rishi Dutta and his wife Mohini Dutta having died prior to the enactment of the Hindu Succession Act, 1956, their daughter Sarojini Dasi was not entitled to inherit their property. Hence, it is submitted that the impugned judgment and decree be set aside by formulating appropriate substantial question of law but it is fairly submitted by Mr. Nityanand Prasad Choudhary, the learned counsel for the appellants that undisputedly, the parties belonged to the Dayabhaga School of Hindu Law and under the Dayabhaga School of Hindu Law, the wife and daughter of a deceased Hindu succeed to his property under the Old Hindu Law. 11. Having heard the submissions made at the Bar and after carefully going through the materials in the record, it is pertinent to mention here that both the courts below have returned the concurrent finding of facts regarding the validity of adoption of the plaintiff by Bijala Dutta and Ratan Chandra Paul and have rightly considered the law of succession applicable to the persons following the Dayabhaga School of Hindu Law under which the wife and daughters were entitled to succeed the property of their deceased husband and father respectively under the Old Hindu Law. As per Article 83 of the Mulla Hindu Law inter alia the widow and daughter are sapindas of the Hindu Marriage following the Dayabhaga School of Hindu Law and in the absence of male issue, the wife performs the funeral obsequies and daughter is also a sapinda for though she herself does not offer any pinda, her son does so. 12. 12. After carefully going through the materials in the record, this court finds that the finding of fact arrived at by the learned first appellate court has not been done by ignoring or excluding relevant materials or by taking into consideration the irrelevant materials nor the finding so outrageously defies the logic as to suffer from the vice of irrationality incurring the blame of being perverse. 13. After carefully going through the materials in the record, this Court finds that there is absolutely no substantial question of law involved in this appeal. 14. Accordingly, this appeal being without any merit is dismissed on contest, but under the circumstances without any costs. 15. Let a copy of this Judgment be sent to the learned court below forthwith.