Calcutta High Court (Appellete Side)
Subimal Kumar Maity & Ors vs Jhareswar Maity & Anr on 26 April, 2019
Author: Bibek Chaudhuri
Bench: Bibek Chaudhuri
IN THE HIGH COURT AT CALCUTTA
CIVIL APPELLATE JURISDICTION
APPELLATE SIDE
The Hon'ble JUSTICE BIBEK CHAUDHURI
SA 378 of 1988
Subimal Kumar Maity & Ors
-Versus-
Jhareswar Maity & Anr.
For the Appellants: Mr. Mahendra Prasad Gupta, Adv.,
Mr. Asit Kumar Dey, Adv.,
Mr. Soujanya Bandyopadhyay, Adv.,
Mr. Debranjan Das, Adv.
For the Respondents: Mr. Santanu Das, Adv., Adv.,
Mr. Dhananjay Banerjee, Adv.
Heard on: March 06, 2019.
Judgment on: April 26, 2019.
BIBEK CHAUDHURI, J. : -
1. The defendants of Title Suit No.65 of 1983 are the appellants before this court assailing the judgment dated 20th June, 1985 and decree dated 15th July, 1985 passed by the learned Additional District Judge, 1st Court, Midnapur in Title Appeal No.2 of 1984 reversing the judgment dated 26th April, 1983 and decree dated 10th May, 1983 passed by the 2 learned Munsif [presently Civil Judge (Junior Division)], Additional Court Kathi in Title Suit No.65 of 1983.
2. At the outset, before embarking on the facts and circumstances leading to the instant appeal, I like to record that the Division Bench of this Court vide order dated 27th June, 1986 admitted the instant appeal for hearing, but no substantial question of law was framed.
3. However, by an order dated 12th April, 2013, a Coordinate Bench of this Court framed the following substantial questions of law:-
(i) Whether the learned Lower Appellate Court substantially erred in law by reversing the finding of the learned trial court that the family of the plaintiffs were governed by Mitakshara School of Hindu Law without any basis and not being based on evidence on record;
(ii) Whether the learned Lower Appellate Court substantially erred in law by not even discussing the finding of the learned trial court on the point that impugned sale of the suit property, by defendant No.1 in favour of defendant No.2 was neither for antecedent debt nor for any legal necessity.
4. Now, the facts.
5. One Subimal Kumar Maity and Tapas Kumar Maity, since deceased, both sons of one Bibhuti Bhusan Maity filed a suit for declaration and permanent injunction in the 1st Court of learned Munsif, Contai against their father Bibhuti Bhusan Maity and two other defendants, namely, Jhareswar Maity and Bomkesh Das stating, inter alia, that they and defendant No.1 originally hailed from Orissa. They are Karans by caste and governed under Mitakshara School of Hindu Law. The ancestors of the plaintiffs and defendant No.1 migrated to Midnapur 3 and started to reside there. The suit property, morefully described in the schedule 'Ka' of the plaint, was the ancestral coparcener property of the plaintiffs and defendant No.1. Defendant No.1 being the only son of the father inherited the suit property after the death of his father. The plaintiffs became joint coparceners in respect of the suit property by virtue of their birth.
6. The plaintiffs further pleaded that the defendant No.1 illegally and collusively entered into an agreement for sale of the suit property on or about 25th October, 1964 at a consideration price of Rs.1200/- and received a sum of Rs.900/- from defendant No.2. Defendant No.2 in turn filed a suit for specific performance of contract against defendant No.1 which was registered as O.S 353 of 1967 and the said suit was decreed on contest. It was pleaded by the plaintiffs that defendant No.1 had no right or authority to execute agreement for sale in favour of defendant No.2. The suit property being joint coparcener property of the plaintiffs and defendant No.1, the defendant No.1 alone had no right to transfer the suit property. Accordingly, the plaintiffs prayed for a declaration that the judgment and decree passed in OS 353 of 1967 was illegal, void and not binding upon the plaintiffs and permanent injunction and other consequential reliefs.
7. The defendant No.2/respondent contested the suit by filing written statement wherein and whereunder all material allegations made out in the plaint was denied. It is specifically pleaded by the defendant No.2/respondent that defendant No.1 executed an agreement for sale in 4 favour of him on 25th October, 1964 in respect of the suit property at a consideration price of Rs.1200/-. The defendant No.1 also received a sum of Rs.900/- from the contesting defendant/respondent. As the defendant No.1 neglected and refused to execute the sale deed in favour of the contesting defendant/respondent, he filed O.S 353 of 1967 against defendant No.1 and 3 for specific performance of contract. The defendant No.1 filed written statement but ultimately did not contest the suit. Defendant No.3 contested the said suit. The suit was decreed on contest against defendant No.3 and exparte against defendant No.1. Defendant No.3 preferred an appeal being O.A No.677 of 1969 against the aforesaid decree and the said appeal was dismissed on 23rd December, 1970. On the other hand, defendant No.1 filed a Misc Case being No.124 of 1969 for setting aside of the exparte decree passed in O.S No.353 of 1967 against him. The said misc case was allowed and the original suit being number O.S 353 of 1967 was restored. However, after dismissal of O.A 677 of 1969, the order of restoration of the suit passed in Misc Case No.124 of 1969 was recalled. The defendant No.1 filed a revision before this court against the said order passed in Title Suit No.353 of 1967 and a rule bearing No.2011 of 1972 was issued by this court. But the said rule was subsequently discharged on 20th May 1977. Thereafter, the plaintiffs have filed the instant suit to deprive defendant No.2/respondent from enjoying fruit of the decree passed in O.S No.353 of 1967.
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8. It is pertinent to mention here that Title Suit No.226 of 1977 which was renumbered as Title Suit no.65 of 1983 was previously dismissed by the learned Munsif, 1st Court at Contai.
9. The plaintiffs/appellants preferred an appeal against the said judgment and decree of dismissal before the learned District Just, Midnapur. The said appeal, being Title Appeal No.225 of 1979 was allowed on contest against the present respondent and exparte against the rest and the suit was sent back on remand for fresh adjudication in the light of the observation made by the learned District Judge, Midnapur in the body of the judgment.
10. Accordingly, Title Suit No.226 of 1977 was against heard by the learned trial judge and it was decreed on contest against defendant/respondent and exparte against rest. The contesting respondent preferred an appeal against the judgment and decree passed by the learned Munsif, 1st Court at Contai on 19th August, 1980 which was registered as Title Appeal No.16 of 1981.
11. The said appeal was allowed on contest and the suit was against sent back on remand for a fresh decision according to law.
12. Subsequently, the said suit was transferred to the Additional Court of the learned Munsif at Contai and was renumbered as Title Suit No.65 of 1983. The learned Munsif, Additional Court at Contai decreed the suit on contest against defendant No.2 and exparte against rest by a judgment and decree dated 26th April, 1983.
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13. The contesting respondent preferred an appeal being Title Appeal No.2 of 1984 in the 1st Court of the learned Additional District Judge, Midnapur. The learned Judge in 1st Appellate Court by a judgment and decree dated 28th June, 1985 allowed the appeal on contest against the contesting plaintiffs/respondents and exparte against the rest. Consequently, Title Suit No.226 of 1977 renumbered as Title Suit No.65 of 1983 stood dismissed on contest with costs.
14. Mr. Mahendra Prasad Gupta, learned Advocate for the appellants submitted that after judgment and order of remand passed in Title Appeal No.16 of 1981, the scope of the trial court was very limited. To substantiate his contention, Mr. Gupta refers to the judgment passed by the learned Subordinate Judge at Contai in Title Appeal No.16 of 1981. On careful perusal of the aforesaid judgment, it is found that the present respondent being the appellant of the said appeal prayed for bringing the agreement for sale, on the basis of which O.S 353 of 1967 was decreed, in evidence. The learned judge also observed that in paragraph 16 of the written statement filed by the defendant No.2, it was pleaded that the defendant No.1 who executed the agreement for sale in favour of defendant No.2 on 25th October, 1964 clearly stated that he had antecedent debt and also required money for bearing expenses of his family. Therefore, the learned Appellate Court observed in his judgment that the agreement for sale in question should be brought in evidence. He further observed that additional issue ought to be framed with regard to 7 the propriety of defendant No.1 to alienate the suit property in favour of the contesting respondent.
15. Thus, according to the learned Counsel for the appellants, in view of the judgment passed in Title Appeal No.16 of 1981 by the learned Subordinate Judge, Contai on 15th May, 1981, the scope of trial was limited only to allow the respondent to prove the original agreement for sale by adducing evidence and secondly, to frame and decide an issue touching upon the power of the defendant No.1 to alienate the suit property in favour of the defendant No.2 and the existence of legal necessity and also antecedent debt.
16. It is pointed out by Mr. Gupta, learned Advocate for the appellants that after remand the trial court framed the following issue:-
"Were there the existence of legal necessity and antecedent debt for alienation of the suit property by the defendant No.1 in favour of defendant No.2?"
17. It is submitted by Mr. Gupta that the learned trial judge on careful scrutiny of entire evidence on record came to the finding that the family of the plaintiffs/appellants are governed under Mitakshara School of Hindu Law. The appellants specifically pleaded that the suit property along with other landed properties originally belonged to the grand-father of plaintiff No.1 and deceased plaintiff No.2 and father of defendant No.1. Therefore, the suit property was ancestral joint Hindu property of the plaintiffs and defendant no.1. Since the plaintiffs are governed under Mitakshara School of Hindu law, they have acquired coparcenery interest by birth 8 over the suit property. Therefore, the defendant No.1 had no authority to execute agreement for sale in respect of the suit property in favour of the contesting respondent leaving behind other coparceners, i.e., plaintiffs/appellants.
18. Learned Advocate for the appellants, referring to a decision of Hon'ble Supreme Court in the case of Santosh Hazari vs Purushottam Tiwari reported in (2001) 3 SCC 175 submits that the power and scope of the 1st Appellate Court in reversing the finding of fact arrived at by the trial court has been explained with ample lucidity in the aforesaid judgment. The relevant portions of the aforesaid judgment relied on by the learned Counsel for the appellants are reproduced below:-
"While writing a judgment of reversal the appellate Court must remain conscious of two principles. Firstly, the findings of fact based on conflicting evidence arrived at by the trial Court must weigh with the appellate Court, more so when the findings are based on oral evidence recorded by the same presiding Judge who authors the judgment. This certainly does not mean that when an appeal lies on facts, the appellate Court is not competent to reverse a finding of fact arrived at by the trial Judge. As a matter of law if the appraisal of the evidence by the trial Court suffers from a material irregularity or is based on inadmissible evidence or on conjectures and surmises, the appellate Court is entitled to interfere with the finding of fact"
19. Coming to the instant case, it is submitted by the learned Counsel for the appellants that the learned Judge, 1st Appellate Court passed the impugned judgment and decree of dismissal of the suit without considering the material evidence on record while discussing the question as to whether the family of the plaintiffs/appellants and defendant No.1 is 9 governed by Mitakshara School of Hindu Law. The learned Judge in 1st Appellate Court failed to consider the evidence on record, specially the oral evidence of plaintiff No.1 who deposed in the suit as PW1. He clearly stated on oath that their ancestors used to reside in Orissa and they are Karans by caste and are governed by Mitakshara School of Hindu Law. PW2, Sripati Pattanayak and PW3, Sridhar Mahapatra are residents of Keonjhar, Orissa. Both of them claimed in their oral evidents that the defendant No.1 and the plaintiffs were original inhabitance of Orissa and they are governed by Mitakshara School of Hindu Law. PW5, Dhirendra Nath Mishra is a priest by profession. He candidly deposed that customary rites in the family of the plaintiffs/appellants were/are governed by Mitakshara customs. He also illustrated that marriage ceremony in the plaintiff's family takes place in day time and in shradh ceremony offerings are made on the leaves of jack fruit tree. According to the learned Counsel for the appellant, the learned Judge, 1st Appellate Court did not consider the above mentioned material oral evidence, but reversed the finding of the trial Court on the ground that the appellants are residents of Contai in the State of West Bengal for a long time. The learned trial Judge followed the principles of Law as laid down in the case of Pitambar Chandra Shaha Chowdhury vs. Nishi Kanta Saha reported in 24 CWN 215, wherein it was held that:-
"A Hindu family residing in a particular province of India is presumed to be governed by the law of the place where it resides, but where a Hindu family is shown to have migrated from one province to another, the presumption is that it carried with it the 10 laws and customs as to succession and family relation prevailing in the province from which it came and this presumption, however, is rebuttable by proof that the family has adopted the laws and usages of the place to which it has migrated."
20. According to Mr. Gupta, learned Advocate for the appellant, the learned Judge in 1st Appellate Court absolutely misdirected himself in placing reliance upon the principles laid down in Pitambar Chandra Shaha (supra). Pitambar Chandra Shaha (supra) clearly lays down that where a Hindu family is shown to have migrated from one place to another, the presumption is that it carried with it the laws and customs as to succession and family relation prevailing in the province from which it came. It is the specific case of the plaintiffs/appellants that they had migrated from Orissa. PW2 and PW3 who are residents of Keonjhar, Orissa and having no interest over the dispute between the contesting parties, stated on oath that they are governed by Mitakshara School of Hindu Law. Without considering such evidence on record the learned Judge in the 1st Appellate Court held that the plaintiffs failed to prove that they were originally residents of Orissa and are governed under Mitakshara School of Hindu Law.
21. It is submitted by the learned Advocate for the appellants that generally in second appeal there is no scope for the appellate Court to reappraise the finding of fact on the basis of evidence on record. But the 2nd Appellate Court can look into the evidence on record when the impugned judgment is passed absolutely without considering material evidence on record and is based on conjectures and surmises. 11
22. In order to substantiate his contention that the impugned judgment passed by the learned 1st Appellate Court was perverse due to non consideration of material evidence on record, learned Counsel for the appellant draws my attention to the evidence adduced by the witnesses on behalf of the plaintiffs/appellants in the trial court. Plaintiff/appellant No.1 deposed during the trial of the suit as PW1. He stated on the oath that his ancestors were originally residents of Orissa and subsequently they migrated to Contai in the District of Midnapur. He also stated in his evidence that they are Karans by caste and governed under Mitakshara School of Hindu Law. The evidence of PW1 was corroborated by PW2, Sripati Pattanayak who was a resident of village Anandapur of District Keonjhar, Orissa. It is found from his oral evidence that PW2 knew Bibhuti Bhusan Maity, father of PW1 and original defendant No.1 of the suit. The said Bibhuti Bhusan Maity was the agnate of the father-in-law of PW2. He corroborated that Bibhuti Bhusan Maity was Karan by caste, originally resident of Orissa and governed under Mitakshara School of Hindu Law. PW3, Sridhar Mahapatra was a zamindar of Radhanagar who also claimed that he knew the defendant No.1, Bibhuti Bhusan Maity. However, the said PW3 did not state anything about the caste of the plaintiffs and defendant No.1 or under which school of Hindu Law they are governed. PW4, Pashupati Maity also corroborated the evidence of PW1 as to the applicability of Mitakshara School of Hindu Law in respect of the plaintiffs' family. According to the learned Counsel for the appellants, PW5 Dhirendra Nath Mishra is the most important witness in 12 the instant case. He is a priest who used to perform customary rites and functions in the house of Bibhuti Bhusan Maity and the plaintiffs. He also stated on oath that Bibhuti Bhusan Maity was governed under Mitakshara School of Hindu Law and marriage ceremony in the family of the said Bibhuti Bhusan Maity was performed in the early morning before dawn and during Shraddh ceremony, offerings to the deceased soul were made on the leaves of jack fruit. It is urged by Mr. Gupta, learned Advocate for the appellants that performance of marriage in the early morning and offerings on jack fruit leaves to the deceased soul are two typical rites performed by the Hindus governed under Mitakshara Law. The learned Judge in the 1st Appellate Court failed to appreciate the evidence adduced by the witnesses on behalf of the plaintiffs and passed the impugned judgment without considering the material evidence on record. According to him, evidence of PW1 and PW5 are sufficient enough to prove that the plaintiffs and defendant No.1 were/are governed by Mitakshara School of Hindu Law.
23. It is further submitted by the learned Counsel for the appellants placing reliance on a decision of the Hon'ble Supreme Court in the case of Hardeo Rai vs. Sakuntala Devi & others reported in (2008) 7 SCC 46 that "According to the Mitakshara School of Hindu Law all the property of a Hindu joint family is held in collective ownership by all the coparceners in a quasi- corporate capacity. The textual authority of the Mitakshara lays down in express terms that the joint family property is held in trust for the joint family members then living and thereafter to be born (See 13 Mitakshara, Chapter I. 1-27). The incidents of coparcenership under the Mitakshara law are: first, the lineal male descendants of a person up to the third generation, acquire on birth ownership in the ancestral properties of such person; secondly, that such descendants can at any time work out their rights by asking for partition; thirdly, that till partition each member has got ownership extending over the entire property conjointly with the rest; fourthly, that as a result of such co- ownership the possession and enjoyment of the properties is common; fifthly, that no alienation of the property is possible unless it be for necessity, without the concurrence of the coparceners, and sixthly, that the interest of a deceased member lapses on his death to the survivors. A coparcenery under the Mitakshara School is a creature of law and cannot arise by act of parties except in so far that on adoption the adopted son becomes a co- parcener with his adoptive father as regards the ancestral properties of the latter."
24. The property in question which was the subject matter of the agreement for sale executed by defendant No.1, Bibhuti Bhusan Maity, since deceased in favour of the respondent was recorded in CS Record of Rights in the name of Panchanan Maity, father of Bibhuti Bhusan Maity. The said CS Record of Rights were marked as exhibit-1 series during trial of the suit. It is submitted by Mr. Gupta that the disputed property was not self acquired property of Bibhuti Bhusan Maity. He inherited the property from his father. Therefore, the disputed property was ancestral property of Bibhuti Bhusan Maity and following the principles of 14 Mitakshara School of Hindu Law, the sons of Bibhuti Bhusan Maity being the original plaintiffs of Title Suit No.226 of 1977 acquire on birth ownership over the said ancestral properties and Bibhuti Bhusan Maity had no right and authority to transfer the disputed property in favour of the respondents.
25. Thus, Mr. Gupta concludes that the agreement for sale which was executed by Bibhuti Bhusan Maity in favour of the respondents on 25th October, 1964 was void, abinitio and the decree passed in O.S 353 of 1967 is not binding on the plaintiffs.
26. Mr. Santanu Das, learned Advocate for the respondents, on the other hand, submits that Bibhuti Bhusan Maity since deceased executed an agreement for sale on 25th October, 1964. As the said Bibhuti Bhusan Maity failed and neglected to execute the deed of sale in favour of respondents in terms of the said agreement for sale, the respondents filed O.S 353 of 1967 against the said Bibhuti Bhusan Maity and another for specific performance of the said agreement. The said suit was decreed by the trial court. An appeal being Title Appeal No.677 of 1969 was preferred by defendant No.2 of the said suit which was also dismissed on contest. Neither in the said suit nor in appeal, Bibhuti Bhusan Maity claimed himself to be governed under Mitakshara School of Hindu Law. In order to frustrate the respondent from enjoying the fruit of the decree passed in O.S No.353 of 1967 the present appellants instituted Title Suit No.226 of 1977 in collusion with the said Bibhuti Bhusan Maity impleading him as defendant No.1 in the suit.
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27. It is urged by Mr. Das that the plaintiffs/appellants claimed that they hailed from Orissa and migrated to a village in the sub-division of Contai at Midnapur. They are Karans by caste and they are governed under Mitakshara School of Hindu Law. For the purpose of the suit and in order to frustrate the respondent, the appellants concocted a story of being governed under Mitakshara School of Hindu Law. Mr. Das also submits that the mother of the original plaintiffs (PW7) was the best witness to state about the customary rites performed in their family but she did not state anything about performance of customs and rituals in religious functions of their family to prove that they belong to Mitakshara School of Hindu Law.
28. It is submitted by the learned Counsel for the respondents that there is no reason to interfere with the findings of the learned 1st Appellate Court and the instant appeal should be dismissed.
29. Having heard the submissions made by the learned Advocates for the appellants and the respondents and on perusal of the impugned judgment as well as on due consideration of entire materials on record, the following undisputed facts and circumstances are ascertained:-
i) One Panchanan Maity was the father of Bibhuti Bhusan Maity.
ii) Bibhuti Bhusan Maity is the father of the appellants.
iii) In RS Record of Rights, the property in question was recorded in the name of Bibhuti Bhusan Maity.
iv) Bibhuti Bhusan Maity had entered into an agreement for sale with the respondent on 25th October, 1964.16
v) The properties that were agreed to be transferred by Bibhuti Bhusan Maity in favour of the respondent were 22 decimal of land in dag No.269 of mouza Paschim Purusattampur and 13 decimal of land in dag No.180 and 10 decimal of land in dag No.179 of mouza Uttar Adaberia, total being 45 decimal of land. The nature of the land as per the agreement for sale was mercy land in respect of plot No.269 and dhoba land in respect of plots No.180 and 179.
vi) The respondent filed a suit for specific performance of the said agreement for sale dated 25th October, 1964 being OS 353 of 1967 and the said suit was decreed and the decree was affirmed in appeal.
30. Under the aforesaid undisputed factual background, the appellants instituted Title Suit No.226 of 1977 for declaration that the judgment and decree passed in OS 353 of 1967 was not binding upon them and other incidental reliefs.
31. Learned Judge in 1st Appellate Court correctly framed the point for determination in the impugned judgment and observed that cardinal point in the appeal is whether the plaintiffs' family is governed by the principles of Mitakshara School of Hindu Law or not. Learned Judge in 1st Appellate Court on appreciation of evidence found that the plaintiffs/appellants failed to prove that they are governed under Mitakshara School of Hindu Law. Accordingly, the appeal filed by the defendant No.2/respondent was allowed and the judgment and decree passed in Title Suit No.226 of 1977 renumbered as Title Suit No.65 of 1983 were set aside.
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32. Well settled is the law that where a Hindu family migrates from ones state to another, the presumption is that it carries with it, its personal law, that is, the laws and the customs as to succession and family relations prevailing in the state from which it came. However, this presumption may be rebutted by showing that the family has adopted the law and usage of the province to which it has migrated. The principle is illustrated in Mulla's Hindu Law, 22nd Edition at page 95 in following words:- A Hindu family migrates from north eastern provinces, where Mitakshara Law prevails, to Bengal, where Dayabhaga law prevails. The presumption is that it continues to be governed by Mitakshara Law, and this presumption may be supported by previous instance of succession in the family according to Mitakshara Law after its migration and by evidence relating to ceremonies performed in the family at marriages, births and Shraddhs, showing that the family continued to be governed by Mitakshara Law after its migration. If the migration is proved, and it is also proved that the family followed the customs of the Mitakshara Law, it is not necessary to prove also that the family immigrated to Bengal after the establishment of Dayabhaga system of Law."
33. Thus, the issue as to whether a particular person or a family is governed by Mitakshara Law or not can be proved. (1) By proving instances of succession in the family according to Mitakshara Law after its migration and (2) By evidence relating to ceremonies performed in the family at marriages, births and Shraddha.
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34. During trial of the suit, the plaintiffs could not produce any evidence of previous instances of succession in their family or in other words, acquisition of ownership of ancestral properties by any person of the family of the plaintiffs/appellants on birth. It is the case of the appellants that the properties which were agreed to be sold by their father in favour of the respondent way back in 1964, are ancestral properties of their father and they have acquired on their birth coparcenery interest in the ancestral properties of their father. However, it is found from the record that the disputed properties were originally owned by the father of defendant No.1, Bibhuti Bhusan Maity, since deceased and grand-father of the appellant No.1. In CS Record of Rights the name of Panchanan Maity was recorded in respect of the said properties. It is important to note that in RS Record of Rights the name of only Bibhuti Bhusan Maity was recorded. If the family was governed under Mitakshara School of Hindu Law, the names of the sons of Bibhuti Bhusan Maity being the coparceners of ancestral joint property ought to have been recorded. Therefore, it is ascertained without any reservation that the plaintiffs/appellants failed to produce any evidence of previous instances of succession in the family according to Mitakshara Law.
35. Now, let me consider as to whether the appellants were able to produce satisfactory evidence relating to ceremonies performed in the family at marriages, births and shraddhs showing that the family continued to be governed by Mitakshara Law.
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36. While deciding the issue as to whether the plaintiffs/appellants are governed under Mitakshara School of Hindu Law, the learned trial judge relied upon the evidence of PW5 Dhirendra Nath Mishra who is a priest of the plaintiffs' family for a long time. He stated on oath that the appellants' family were governed under Mitakshara School of Hindu Law. Marriage of the plaintiffs family takes place in the day time and shraddh ceremony of a departed member of the plaintiffs family is performed on the leaves on jack fruit tree. In cross examination he asserted that the father of the appellants namely, Bibhuti Bhusan Maity called him to perform various customs and rituals in their family and such rituals and ceremonies were performed under Mitakshara Law. It is also found from his cross examination that he acted as priest in the marriage of the daughter of Bibhuti Bhusan Maity on being engaged by the said Bibhuti Bhusan Maity.
37. The evidence on record is clear and sufficient to hold that the appellants were the original residencts of Orissa where Mitakshara School of Hindu Law is applicable they are Karans by caste and in their religious ceremonies, rituals are performed under Mitakshara School of Hindu Law. I do not find any reason as to why the learned Judge in 1st Appellate Court disbelieved the evidence of PW5 and came to a finding contrary to the finding of the learned trial judge.
38. In view of the above discussion, I hold that the learned Judge in 1st Appellate Court erred substantially in law in appreciating the evidence on record and decided the issue as to whether the appellants are governed 20 under Mitakshara School of Hindu Law or not in the negative. The impugned judgment is of course perverse on this score.
39. Admittedly, the original plaintiffs are the sons of Bibhuti Bhusan Maity, original defendant No.1. When I have already held that the family of the appellants are governed under Mitakshara School of Hindu Law, I can safely hold that Bibhuti Bhusan Maity was the karta of joint Hindu family and as karta he had the exclusive authority to manage ancestral joint property on behalf of himself and of the coparceners. It is true that a coparcener takes by birth an interest in the ancestral property, but he is not entitled to separate possession of the coparcenary estate. His rights are not independent of the control of the karta. It would be for the karta to consider the actual pressure on the joint family estate. It would be for him to foresee the danger to be averted and it would be for him to examine as to how best the joint family estate could be beneficially put into use to subserve the interests of the family. A coparcener cannot interfere in these acts of management. Apart from that, a father-karta in addition to the aforesaid powers of alienation has also the special power to sell or mortgage ancestral property to discharge his antecedent debt which is not tainted with immorality. If there is no such need or benefit, the purchaser takes risk and the right and interest of coparcener will remain unimpaired in the alienated property. No doubt the law confers a right on the coparcener to challenge the alienation made by karta, but that right is not inclusive of the right to obstruct alienation. Nor the right to obstruct alienation could be considered as incidental to the right to 21 challenge the alienation. These are two distinct rights. One is the right to claim a share in the joint family estate free from unnecessary and unwanted encumbrance. The other is a right to interfere with the act of management of the joint family affairs. The coparcener cannot claim the latter right and indeed, he is not entitled for it. Therefore, he cannot move the court to grant relief by injunction restraining the karta from alienating the coparcenary property. The above principle relating to the rights of karta in management of ancestral joint property vis-a-vis the right and interest of the coparcener has been laid down by the Hon'ble Supreme Court in Sushil Kumar & Anr vs. Ram Prakash & Ors reported in AIR 1988 SC 576.
40. The agreement for sale in question executed by Bibhuti Bhusan Maity in favour of the respondent was marked during trial of the suit as exhibit-I. Recital of exhibit-I shows that Bibhuti Bhusan Maity decided to sale out the property in question to discharge his debt and also for maintaining the family. It is now well settled that the father of Hindu joint family enjoys full right to sell or mortgage the joint family property including son's interest therein to discharge antecedent debt and for necessity. Before contracting a sale, a father-karta of a joint family must satisfy the following three conditions: (a) The debt, for which alienation is made must be antecedent in time. (b) The debt must not have been taken for an illegal or immoral purpose. (c) The alienation is necessary for discharging family duties and obligations.
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41. The agreement for sale in favour of respondent was executed in the year 1964. From the evidence of the plaintiff/appellant No.1 (PW1) it is found that at the relevant point of time he was aged about 11 years. Original plaintiff No.2, since deceased was younger to him. They have an elder sister. Thus the family of Bibhuti Bhusan Maity consisted of himself, his wife and three children. PW1 stated in his evidence that at the relevant point of time their family was solvent. Her mother had some cows and she used to maintain her children with the money earned by her by selling milk. Apart from the oral evidence, no document is forthcoming in support of the claim of the appellants that they had a solvent family. On the other hand, father of the appellants had documents that he had antecedent debt and in order to discharge from antecedent debt as well as to maintain his family he agreed to sale the property in question. No contrary documentary evidence was produced by the appellant to disbelieve the recital of the agreement for sale. Therefore, the recital of the said agreement for sale would prevail and the said agreement for sale cannot be held to be executed by Bibhuti Bhusan Maity for illegal or immoral purpose.
42. It is important to note that Bibhuti Bhusan Maity was the best person to explain if the recital in the agreement for sale was false or not. The plaintiffs/appellants could have examined him as a witness in support of their case but Bibhuti Bhusan Maity preferred to hide himself out during the entire litigation. It is on record that the respondent instituted OS 353 of 1967 for specific performance of contract against the 23 said Bibhuti Bhusan Maity and one Byomkesh Das. Bibhuti Bhusan Maity did not contest the said suit and disappeared after filing written statement. After the said suit was decreed exparte against Bibhuti Bhusan Maity, he filed an application under Order 9 rule 13 of the Code of Civil Procedure for setting aside the exparte decree passed in OS 353 of 1967. On the other hand, the said Byomkesh Das filed Other Appeal No.677 of 1969 against the judgment and decree passed in OS 353 of 1967. The said appeal was dismissed on contest by the learned Additional District Judge, 2nd Court at Midnapur on 23rd December, 1970. The defendant No.1 Bibhuti Bhusan Maity filed Civil Rule No.2011 of 1972 before this High Court challenging an order dated 22nd April, 1972 passed in OS No.353 of 1967. The said rule was however discharged by this Court on 22nd May, 1977. Subsequently, the sons of Bibhuti Bhusan Maity filed this suit to obstruct the respondent from enjoying the fruit of the decree passed in OS 353 of 1967 impleading their father as a defendant. From the facts and circumstances of the case, it is clear to this Court that Title Suit No.226 of 1977 renumbered as Title Suit No.65 of 1983 is absolutely a collusive suit to frustrate the respondent from enjoying the fruit of the decree passed in OS 353 of 1967. The agreement for sale clearly depicts that Bibhuti Bhusan Maity executed the said agreement for discharging antecedent debt and to meet the expenses to maintain his family. As karta of ancestral family property has the power and authority to alienate joint family property or a part thereof for discharging antecedent debt or for maintainance of his family and a 24 coparcener cannot raise any question as to such authority of the karta of joint family property.
43. In view of the above discussion I do not find any merit in the instant appeal. Substantial questions of law involved in the appeal are answered on the basis of the observation made hereinabove against the appellants.
44. As a result the instant second appeal be and the same is dismissed on contest without cost.
Urgent photostat certified copy of this order, if applied for, be given to the parties as expeditiously as possible.
(Bibek Chaudhuri, J.)