Orissa High Court
Nilakantheswar Dev Of Ketakipatna And ... vs Nilakantha Dev Of Ketakipatna And ... on 4 May, 2018
Author: A.K.Rath
Bench: A.K.Rath
HIGH COURT OF ORISSA: CUTTACK
SA No.114 of 2000
From the judgment and decree dated 4.12.1999 and 18.12.1999
respectively passed by Sri Bijay K. Patel, learned District Judge, Puri in
Title Appeal No.64 of 1997 confirming the judgment and decree dated
17.5.1997and 26.6.1997 respectively passed by Sri S. Mohanty, learned Civil Judge (Senior Division), Puri in T.S. No.153 of 1991.
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Nilakantheswar Dev of Ketakipatna
& others .... Appellants
Versus
Nilakantha Dev of Ketakipatna
& others .... Respondents
For Appellants ... Mr.Satyabadi Mantry, Advocate
For Respondents ... Mr. Subhadutta Routray,
Mr. Saubhagya Ku. Samal, Advocates.
JUDGMENT
PRESENT:
THE HONOURABLE DR. JUSTICE A.K.RATH
Date of hearing: 17.04.2018 : Date of judgment: 04.05.2018
Dr. A.K.Rath, J This is a plaintiffs' appeal against confirming judgment. The
suit was for declaration that the registered gift deed dated 6.1.1984 is illegal and void.
2. The following genealogy would show the relationship of the parties.
Genealogy Iswar Naik /
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/ /
Raghu Jagu
/
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/ / /
Baidhar Sashimani Bilasini
= Satyabhama D-2 D-3
/ P-1
Narakahari P-2
2
Iswar Naik was the common ancestor of the parties. He died leaving behind him two sons, Raghu and Jagu. Baidhar, Sashimani and Bilasini are the son and daughters of Raghu. Satyabhama and Narakahari are the wife and son of Baidhar. Case of the plaintiffs is that Raghu lost his mental balance after death of his son. Taking advantage of the same, the husband of defendant no.2 prevailed upon Raghu to execute the gift deed, vide Ext.A, in favour of defendant no.2. The gift deed is illegal, invalid and not binding. No title was passed to defendant no.2. Plaintiff no.1 is in possession of the suit properties. After death of Raghu, his marfatdar right over the properties belonging to the deity Nilakantheswar Dev. has devolved upon plaintiffs and defendant nos.2 and 3. Defendants threatened the plaintiffs to dispossess them from the suit properties. With this factual scenario, they instituted the suit seeking the reliefs mentioned supra.
3. Defendant nos.2 and 3 filed a joint written statement denying the assertions made in the plaint. According to defendants, the suit lands were self-acquired properties of Raghu. During old age, Raghu was looked after by defendant no.2 and her husband. Defendant no.2 and her husband used to look after his properties and perform seva puja of the deity. Plaintiff no.1 abandoned Raghu and resided in her maternal home. Raghu executed the gift deed in favour of the defendant no.2 out of his free will. Defendant no.2 is in possession of the suit properties. Fraud had not been played on Raghu in execution of the gift deed. The suit is not maintainable in view of dismissal of earlier suit being T.S. No.28/129 of 88/84 for the same cause of action instituted by the plaintiffs in the court of Munsif, Puri.
4. On the inter se pleadings of the parties, learned trial court framed five issues. Parties led evidence, oral and documentary, to substantiate their case. Learned trial court decreed the suit in part holding that gift deed in respect of the land recorded under Ext.C 3 belongs to the deity defendant no.1 for which the same is not capable of being alienated by Raghu. Properties covered under Exts.B and C belongs to Raghu. Unsuccessful plaintiffs filed Title Appeal No.64 of 1997 before the learned District Judge, Puri, which was eventually dismissed.
5. The second appeal was admitted on the following substantial questions of law.
"A. Whether Ext.1 admittedly executed by the deity-plaintiff no.1 through its the then marfatdar, transferring the suit land by gift to D2 can be construed that some of the suit land belong to plaintiff No.1 and some of it belonging personally to the transferer-marfatdar ? B. Whether entire gift deed in Ext.1 is liable to be declared void when some of the suit property was held to the property of plaintiff No.1 ?
C. Whether marfatdar right can be legally transferred under the Hindu Law of Religious Endowments in favour of one legal heir ignoring the right of plaintiff No.2 as a lawful legal heir along with defendant Nos.2 and 3 ?
6. Heard Mr. Satyabadi Mantry, learned counsel for the appellant and Mr. Subhadutta Routray and Mr. Saubhagya Ku. Samal on behalf of Mr. B. Routray, learned Senior Advocate for the respondent.
7. Mr. Satyabadi Mantry, learned counsel for the appellants argued with vehemence that the court below misconstrued the gift deed, vide Ext.1, which had been executed by the deity through Raghu as marfatdar. The admission of Raghu takes away the presumption of correctness of Exts.D and E. Though defendants claimed that the lands in village Ketakipatna was the self-acquired property of Raghu, but no ROR had been filed. In gift deed, vide Ext.1, Raghu stated that the land belongs to the deity. The courts below failed to consider the ROR of the year 1977, vide Ext.2, in respect of Khata No.296 of village Ketakipatna, ROR of Khata No.40 of Alandapada, vide Ext.3, ROR of Khata No.39 of village Alandapada, vide Ext.4, and ROR of 1928 settlement in respect of Khata No.283 of village Alandapada, vide Ext.5. The name of the deity has been recorded in Exts.2 to 5, except Ac.0.13 dec., vide Ext.C. When 4 one property mentioned in Ext.1 is held to be void, the gift of balance property shall be held to be void since the gift deed had been executed by the deity through Raghu as marfatdar. Transfer of marfatdari right, i.e., seva puja and nitikranti can not be made in favour of one of the legal heirs ignoring the remaining legal heirs.
8. Conversely, Mr. Subhadutta Routray, learned counsel for the respondents submitted that the onus lies on the parties who alleged fraud. It must be pleaded and proved. In the present case, the plaintiffs have not pleaded the manner in which fraud was practised by defendant no.1 at the time of execution of the gift deed in favour of defendant no.2. The learned trial court held that the plaintiffs have not adduced any evidence that prior to the execution of the gift deed, Raghu was not in a sound state of mind. The plaintiffs have failed to prove the manner in which the fraud was practised by defendant no.2 at the time of execution of deed of gift. Raghu was the owner of the suit property. Therefore, the gift deed was validly executed by Raghu in favour of defendant no.2 on 6.1.1984. The learned trial court held that Raghu delivered possession of the suit land in favour of defendant no.2. Rent receipt, vide Ext.F, would show that defendant no.2 is in possession of the suit land. The consolidation authorities have decided the right, title and interest of the suit land in favour of Raghu under Exts. D and E. He further submitted that the learned lower appellate court confirmed the judgment passed by the learned trial court and held that there was no pleading of fraud in the plaint and no evidence has been adduced in that respect. In O.S. No.28/129 of 1988/1984, the plaint was returned due to enhancement of valuation of suit. In the said suit, Raghu was arrayed as defendant no.1 along with defendants 2 and 3. Raghu filed written statement jointly. In the written statement, vide Ext.3, the execution of gift deed was admitted by Raghu. He further submitted that in T.S. No.28/129 of 1988-84, the plaintiff was examined as P.W.1. In her cross-examination, she stated that the lands are self-acquired 5 property of Raghu. Ext.D is the ROR issued after conclusion of consolidation proceeding. Ext.D clearly indicates that Raghu had the exclusive title over the suit land. Therefore, learned courts below have rightly decided that the suit properties, vide Ext.D and E, were the exclusive properties of Raghu. The properties covered vide Exts.D and E are the exclusive properties of Raghu, which has been decided by the consolidation authorities. Raghu being the exclusive owner of the properties vide Exts.D and E, was competent in all respect to gift such properties in favour of his daughter defendant no.2.
9. There is no pleading that the suit schedule property belongs to the deity. In the absence of any pleading it is difficult to hold that the property belongs to the deity. Neither any issue has been framed, nor such a contention was advanced in the courts below. Thus the contention of Mr. Mantry, learned counsel for the appellants must fail. Learned appellate court, on a vivid analysis of the evidence on record and pleadings, held that there is no pleading about the particulars of fraud in the plaint. Evidence has not been adduced on that score. In the written statement, vide Ext.B filed in the previous suit, execution of the gift deed had been admitted by Raghu. Raghu was capable of looking after his own affairs till his death. It concurred with the findings of the learned trial court that the plaintiffs have absolutely no scope to urge that the gift deed executed by Raghu by playing fraud. It negatived the contention of the plaintiffs that the suit properties are ancestral properties of Raghu. There is no pleading on that score. Such a plea was an after-thought. Plaintiff no.1 in the previous suit as P.W.1 deposed that she had testified in her cross-examination that the lands are the self-acquired property of Raghu. ROR vide Ext.D had been prepared by the consolidation authorities. Thus Raghu had exclusive title over the same. There is no specific pleading that the suit property belongs to the deity Sri Sri Nilakantheswar. The plaintiff had not adduced any evidence that the suit property recorded in the ROR, vide 6 Exts.D and E, belongs to the deity. There is no perversity or illegality in the said finding. The substantial questions of law are answered accordingly.
10. In the wake of the aforesaid, the appeal, sans merit, deserves dismissal. Accordingly, the same is dismissed. There shall be no order as to costs.
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DR. A.K.RATH, J Orissa High Court, Cuttack.
Dated the 4th May, 2018/pks