Orissa High Court
Kailash Chandra Barik & Others vs Smt. Kapura Das on 26 July, 2024
IN THE HIGH COURT OF ORISSA AT CUTTACK
SA No.395 of 1999
(In the matter of an appeal under Section 100 of the Code of Civil Procedure, 1908)
Kailash Chandra Barik & Others .... Appellants
-versus-
Smt. Kapura Das .... Respondent
For Appellants - Ms. P.P.Mohanty,Advocate
Appearing on behalf of
Mr. G.N.Mishra, Advocate
For Respondent - Mr. P.R.Barik,Advocate
CORAM:
MR. JUSTICE A.C.BEHERA
Date of Hearing :09.07.2024:: Date of Judgment :26.07.2024 A.C. Behera, J. This Second Appeal has been preferred against the reversing judgment.
2. The appellants of this Second Appeal were the defendants before the Trial Court in the suit vide T.S. No.69 of 1991 and they were the respondents before the 1st Appellate Court in the first appeal vide T.A. No.4 of 1994.
The respondent of this 2nd Appeal was the sole plaintiff before the Trial Court in the suit vide T.S. No.69 of 1991 and she was the appellant before the 1st Appellate Court in the 1st appeal vide T.A. No. 4 of 1994. Page 1 of 14 SA No.395 of 1999
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3. The suit of the plaintiff (respondent in this 2nd Appeal) vide T.S. No.69 of 1991 before the Trial Court against the defendants (appellants in this 2nd appeal) was a suit for partition and declaration.
4. The case of the plaintiff was that, Banthia Barik had married Benga, but he (Banthia Barik) had kept Padma as his concubine. Raya Barik was the son of Banthia Barik through Benga. The plaintiff is the sole child and daughter of Raya Barik. Raya Barik expired leaving behind plaintiff as his daughter and sole successor.
The concubine of Banthia Barik i.e. Padma had one son through Banthia Barik i.e. Kshetramohan Barik (defendant No.5). The defendant Nos.1 to 4 are the sons of the defendant No.5 (Kshetramohan Barik).
5. In order to have a better appreciation and so also for an instant reference, the aforesaid genealogy stated by the plaintiff in her plaint is depicted hereunder:-
Genealogy Banthia Barik (Husband) Benga (1st wife) Padma(concubine) Raya (Son) (KshetraD.5) (son) Kapura (Daughter) (plaintiff) Kailash Bhima Chandra Mohan Indra (D.1) (D.2) (D.3) (D.4) Page 2 of 14 SA No.395 of 1999 // 3 //
6. According to the plaintiff, the suit properties were originally belonged to Banthia Barik. After the death of Banthia Barik, the suit properties were recorded in the name of Raya Barik (father of the plaintiff) and Kshetramohan Barik (defendant No.5) jointly in the major settlement. Raya Barik gifted away the suit properties to the plaintiff through registered gift deed No.2527 dated 09.06.1983. As, the plaintiff was the only daughter of Raya Barik and as Raya Barik gifted away the suit properties to the plaintiff, for which, the plaintiff is the owner of the entire suit properties. But on dated 15.02.1991, she (plaintiff) came to know that, the defendant No.1 (Kailash Chandra Barik) has projected him as the adopted son of Raya Barik in a mutation case vide mutation case No.7778 of 1989 and also came to know that, the defendant No.1 has obtained a decree from the Court in T.S. No.42 of 1983 behind the back of Raya Barik declaring him (defendant No.1) as the adopted son of Raya Barik practizing fraud and suppressing the service of summon of that suit on her father Raya Barik. In fact, the defendant No.1 is not the adopted son Raya Barik. But, she (Plaintiff) is the only child and successor of Raya Barik.
Therefore, she (plaintiff) filed the suit vide T.S. No.69 of 1991 against the defendants praying for partition of the suit properties and for a Page 3 of 14 SA No.395 of 1999 // 4 // declaration that, the defendant No.1 is not the adopted son of Raya Barik and also to declare that, the judgment and decree passed in T.S. No.42 of 1983 by practicing fraud and through suppression of summons as null and void and to declare her half share in the suit properties.
7. Having been noticed from the Trial Court in the suit vide T.S. No.69 of 1991 filed by the plaintiff, the defendant Nos.1 to 5 contested the same by filing their joint written statement denying the allegations alleged by the plaintiff against them taking their stands inter alia therein that, the suit of the plaintiff is not maintainable. The same is barred by law of limitation. The suit is defective for non-payment of adequate Court fees.
According to them (defendant Nos.1 to 5), the mother of the defendant No.5 i.e. Padma Barik was not the concubine of Banthia Barik, but, she was the legally married wife of Banthia Barik. Because, Banthia Barik had married her (Padma) after the death of his first wife Benga. Raya Barik is not the son of Banthia Barik. Raya Barik is the adopted son of one Baidhar Barik. For which, Raya Barik had not inherited any property left by Banthia Barik including the suit properties.
Therefore, he (defendant No.5) being the only son of Banthia Barik, he is the exclusive owner over the entire suit properties. For which, Raya Page 4 of 14 SA No.395 of 1999 // 5 // Barik had no interest in the suit properties. But, by exercising undue influence, Raya Barik had obtained some records fraudulently in respect of the suit properties in his name, though Raya Barik had no interest in the suit properties. For which, the so-called gift deed No.2577 dated 09.06.1983 executed by Raya Barik in favour of the plaintiff shall not create any interest in respect of the suit properties in favour of the plaintiff. As, by influencing settlement authorities, Raya Barik had managed to record his name in the Hal R.o.R. in respect of the suit properties with defendant No.5 jointly, though Raya Barik had no interest in the suit properties, for which, the plaintiff has no interest in the suit properties. Therefore, the plaintiff is not entitled to get any share in the suit properties.
That apart, when the plaintiff is a married daughter of Raya, for which, she is not entitled to get any interest in the suit properties. Therefore, the suit of the plaintiff is liable to be dismissed against them (defendants) with cost.
8. Basing upon the aforesaid pleadings and matters in controversies between the parties, altogether ten numbers of issues were framed by the Trial Court in the suit vide T.S. No. 69 of 1991 and the said issues are:-
Issues
1. Is the suit maintainable?Page 5 of 14 SA No.395 of 1999
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2. Is the suit barred by law of limitation?
3. Whether the plaintiff is entitled to the suit land on the basis of gift deed?
4. Whether Padma is the legally married wife of Banthia?
5. Whether Khetra (defendant No.5) is the exclusive owner of the suit land?
6. Whether summons were served on Raya Barik in T.S. No.42/83 and judgment and decree passed therein are binding on the plaintiff?
7. Whether defendant No.1 is the adopted son of Raya?
8. Whether Raya is the adopted son of Baidhar Barik?
9. Whether proper court fee has been paid by the plaintiff according to her prayer?
10. To what other relief, if any, the plaintiff is entitled?
9. In order to substantiate the aforesaid relief(s), sought for by the plaintiff against the defendants, she (plaintiff) examined altogether 5 numbers of witnesses on her behalf including her (plaintiff) as P.W.1 and exhibited two documents from her side vide Exts.1 and 2 respectively.
On the contrary, in order to nullify/defeat the suit of the plaintiff, the defendants examined six witnesses from their side including defendant Nos.1 and 5 as D.Ws.1 and 6 and relied upon the documents vide Exts.A, B, C and D on their behalf.
10. After conclusion of hearing and on perusal of the materials, evidence and documents available in the record, the Trial Court answered all the issues except issue Nos.6 and 8 against the plaintiff and in favour Page 6 of 14 SA No.395 of 1999 // 7 // of the defendants and basing upon the findings and observations made by the Trial Court in the issue Nos.1, 2, 3, 4, 5, 7, 9 and 10, the Trial Court dismissed the suit of the plaintiff vide T.S. No.69 of 1991 on contest against the defendants without cost as per its judgment and decree dated 30.11.1993 and 18.12.1993 respectively assigning the reasons that, as the three daughters of Banthia Barik have not been arrayed as a party in the suit, for which, in their absence, the suit of the plaintiff cannot be properly adjudicated, therefore, the suit of the plaintiff is not maintainable and also held that, the defendant No.1 is the adopted son of Raya Barik, but the Raya Barik is not the adopted son of Banthia Barik and declared that, the judgment and decree passed in T.S. No.42 of 1983 is not binding upon the plaintiff.
11. On being dissatisfied with the aforesaid judgment and decree of the dismissal of the suit of the plaintiff vide T.S. No.69 of 1991 passed by the Trial Court, she (plaintiff) challenged the same by preferring the 1st Appeal vide T.A. No.4 of 1994 being the appellant against the defendants arraying them (defendants) as respondents.
12. After hearing from both the sides, the 1st Appellate Court allowed that first appeal vide T.A. No.4 of 1994 of the plaintiff and set aside the judgment and decree of the dismissal of the suit as per its judgment and Page 7 of 14 SA No.395 of 1999 // 8 // decree dated 24.09.1999 and 07.10.1999 respectively passed in T.A. No.4 of 1994 and decreed the suit of the plaintiff preliminarily for partition on contest against the defendants entitling the plaintiff to get half share alone in the suit properties and also entitling the defendants to get half share jointly in the suit properties assigning the reasons that, the suit of the plaintiff is not bad for non-joinder of the daughters of Banthia Barik, because, it has been established that, Banthia Barik had died prior to the coming into the force of Hindu Succession Act, 1956 i.e. in the year 1943, for which, his daughters had no interest in the suit properties left by him (Banthia Barik). Therefore, the daughters of Banthia Barik are not the necessary parties to the suit and there is no material in the record to establish that, the defendant No.1 is the adopted son of Raya Barik. For which, the defendant No.1 is not the adopted son of Raya Barik, but plaintiff is the only child/daughter/successor of Raya Barik. It was also further held by the 1st Appellate Court that, Banthia Barik had married Padma after the death of his first wife Benga. The defendant No.5 is the son of Padma through Banthia Barik. The defendant Nos.1 to 4 are the children of defendant No.5. So, the plaintiff being the only child of the first son of Banthia Barik i.e. Raya Barik, She (plaintiff) alone is entitled to get half share in the suit properties left by Banthia. The defendant No.5 being the second son of Banthia and the defendant Nos.1 to 4 being the children Page 8 of 14 SA No.395 of 1999 // 9 // of defendant No.5, they (defendant Nos.1 to 5) are jointly entitled to get half share in the suit properties.
13. On being aggrieved with the aforesaid judgment and decree passed by the 1st Appellate Court in T.A. No.4 of 1994 in decreeing the suit of the plaintiff vide T.S. No.69 of 1991 preliminarily for partition on contest against the defendants entitling the plaintiff alone to get half share and entitling the defendant Nos.1 to 5 jointly to get half share in the suit properties, they (defendant Nos.1 to 5) challenged the same by preferring this 2nd appeal being the appellants against the plaintiff arraying her (plaintiff) as respondent.
14. This 2nd Appeal was admitted on formulation of the following substantial questions of law i.e.:-
1. Whether the suit of the plaintiff for partition of the suit properties including the joint family dwelling house of late Banthia Barik was barred under Section 23 of the Hindu Succession Act, 1956?
2. Whether the suit of the plaintiff was maintainable in the absence of three daughters of Banthia Barik?
15. I have already heard from the learned counsels of both the sides.
16. So far as, the first formulated substantial question of law i.e. whether the suit of the plaintiff for partition of the suit properties including Page 9 of 14 SA No.395 of 1999 // 10 // the joint family dwelling house of late Banthia Barik was barred under Section 23 of the Hindu Succession Act, 1956 is concerned;
Section 23 of the Hindu Succession Act, 1956 has been omitted from the Statute Book by the amended Act of 2005.
On this aspect, the propositions of law has already been clarified by the Hon'ble Courts and Apex Court in the ratio of the following decisions:-
(i) 2015(3) CCC 229 (Allahabad): Km. Prema Devi & Others Vrs.
Raja Ram--Hindu Succession Act, 1956--Section 23--Hindu Succession (Amendment) Act, 2005--Section 23--Second appeal is also considered as continuation of suit, and as such in view of Amending Act, 2005. (Para 8)
(ii) 2020(II) CLR (S.C.) 83: Vineeta Sharma Vrs. Rakesh Sharma--Hindu Succession Act, 1956-- Hindu Succession (Amendment) Act, 2005--Omission of Section 23--The amended Act of the Hindu Succession Act, 1956 (as amended vide amendment Act of 2005) has a retrospective effect.
(iii) 2009 (1) C.L.R. (S.C.) 957: G.Sekar vrs. Geetha & Others-- Hindu Succession (Amendment) Act, 2005--Omission of Section 23-- Female has absolute right to seek partition wholly in respect of the dwelling house occupied by joint family. Right of a female heir in the property of her father, who has died intestate is equal to her brother.
As per law, "when, a son continues to be a son both before and after his marriage, likewise, as per law, a daughter continues to be a daughter before or after her marriage. Because, marriage does not bring about a severance of relationship between father and mother and their son or between parents and their daughter. For which, marriage cannot be Page 10 of 14 SA No.395 of 1999 // 11 // regarded as a justifiable ground to define and exclude a married daughter from partition of the joint dwelling house of her parents, in which, she continues to be a member of the family due to adoption of social welfare policy by the State through omission of Section 23 of the Hindu Succession Act, 1956, on the ground of dependency."
So, in view of the principles of law enunciated in the ratio of the above decisions of the Hon'ble Courts and Apex Court, it is held that, the suit for partition vide T.S. No.69 of 1991 filed by the married daughter of Raya Barik i.e. plaintiff in respect of the joint and undivided suit properties including the joint and undivided dwelling house of her parents cannot be barred under Section 23 of the Hindu Succession Act. Because, Section 23 has already been omitted from the statute book of Hindu Succession Act, 1956 giving full right to the married daughter like the plaintiff for seeking partition of the joint family dwelling house of her parents family, in which, she has a share.
17. So far as, the 2nd formulated substantial question of law i.e. whether the suit of the plaintiff was maintainable in the absence of three daughters of Banthia Barik is concerned;
Page 11 of 14 SA No.395 of 1999
// 12 // The 1st Appellate Court after taking the evidence of defendant No.5 (D.W.6) relating to the year of death of his father Banthia Barik into account, has held that, Banthia Barik died in the year 1943, which is prior to the coming into force of the Hindu Succession Act, 1956.
As, Banthia Barik had expired prior to the coming into force of Hindu Succession Act, 1956, for which, his daughters have no interest in the suit properties. Because, on the death of Banthia Barik, the suit properties left by him (Banthia Barik) had devolved only upon his two sons i.e. Raya Barik and the defendant No.5 (Kshetramohan Barik), but not upon any of his daughters as per the prevailing law of that time. For which, the daughters of Banthia Barik were/are not the necessary parties to the suit. Because, they had/have no interest in the suit properties. For which, the suit of the plaintiff cannot be held to be not maintainable under law due to non-joinder of the daughters of Banthia Barik as parties. Therefore, it is held that, in absence of the daughters of Banthia Barik, the suit of the plaintiff vide T.S. No.69 of 1991 against the defendants was maintainable under law.
The conclusion drawn above finds support from the ratio of the following decisions of the Hon'ble Courts and Apex Court:-
(i) AIR 2004 (Kerala) 16: Jose Vrs. Ramakrishnan Nair Radhakrishnan & Others--The expressions made in Section 14 (1) of the Hindu Succession Act regarding female Hindu, the same includes daughter also.Page 12 of 14 SA No.395 of 1999
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(ii) 2017(1) CLR (S.C.) 710:State of Gujarat Vrs. Maliben Nathubhai (D) Through LRs & Ors.--Property law--Share in ancestral property--Original owner of the property dying intestate in 1947-- Plaintiffs (daughters of the original owner) claiming their share in the suit properties through their mother (wife of original owner)--The suit filed by the daughters as plaintiffs is not maintainable, because their mother had no interest in the suit properties being a pre act widow of the original owner.
(iii) 2024(1) Civ.L.J. (S.C.) 314: M.Sivadasan (dead) through LRs. And others Vrs. A.Soudamini (dead) through LRs. And others-- Hindu law--Ancestral property--Hindu Succession Act, 1956, Section 14(1)--Suit for partition was filed by the daughters of owner i.e. "O" of property, who had died in the year 1942 (prior to coming into force of Hindu Succession Act), for which, after the death of "O" property left by him i.e. "O" devolved upon his male successor i.e. son "S". Therefore, the widow of "O" i.e. the mother of "S" had no right over it being a Pre- Act widow.
18. When, it is forthcoming from the materials on record that, Banthia Barik had died in the year 1943 (which is prior to the coming into force of Hindu Succession Act 1956), then, in view of the principles of law enunciated in the ratio of the aforesaid decisions, the suit properties left by Banthia Barik in the year 1943 had devolved upon his male successors i.e. Raya Barik and Kshetramohan Barik (defendant No.5), in which, the daughters of Banthia Barik had no right/interest. After, the death of Raya Barik, his half share in the suit properties had devolved upon his daughter i.e. plaintiff. As such, the plaintiff has half share in the suit properties.
As per law, when the daughters of Banthia Barik had/has no interest in the suit properties, for which, the daughters of Banthia Barik were/are not the necessary parties to the suit. Therefore, the findings and observations made by the Trial Court regarding the non-maintainability of Page 13 of 14 SA No.395 of 1999 // 14 // the suit of the plaintiff for non-impleadment of daughters of Banthia Barik was properly set aside by the 1st Appellate court in passing the decree for partition of the suit properties entitling half share alone to the plaintiff in the suit properties and also entitling the defendants to get half share jointly in the suit properties.
19. As per the discussions and observations made above, when the judgment and decree passed by the 1st Appellate Court in setting aside the judgment and decree of the Trial Court is not erroneous under law, then, at this juncture, the question of interfering with the same through this 2nd appeal filed by the appellants/defendants does not arise.
Therefore, there is no merit in the appeal of the appellants (defendants). The same must fail.
20. In result, the appeal filed by the appellants is dismissed on contest, but without cost.
The judgment and decree passed by the 1 st appellate Court in T.A. No.04 of 1994 setting aside the judgment and decree passed by the Trial Court in the suit vide T.S. No.69 of 1991 is confirmed.
(A.C. Behera), Judge Signature Not Verified Orissa High Court, Cuttack 26th of April, 2024/ Binayak Sahoo// Digitally Signed Junior Stenographer Signed by: BINAYAK SAHOO Reason: Authentication Location: High Court of Orissa, Cuttack Date: 08-Aug-2024 15:48:42 Page 14 of 14 SA No.395 of 1999