Orissa High Court
Santanu Kumar Das And Ors. vs Bairagi Charan Das And Ors. on 13 March, 1995
Equivalent citations: AIR1995ORI300, II(1995)DMC227, 1995(I)OLR622, AIR 1995 ORISSA 300, (1995) 1 ORISSA LR 622, (1995) 2 CIVLJ 648, (1995) 3 CURCC 203, (1995) 79 CUT LT 808, (1995) 2 DMC 227, (1996) 1 HINDULR 351
JUDGMENT D.M. Patnaik, J.
1. Plaintiffs' suit for permanent injunction at the first instance being decreed by the Lower Court and thereafter reversed by the lower appellate Court, they are in appeal.
2. Plaintiffs' case is, their paternal grandmother Satchi Dasi, wife of Krushna, the common ancestor, purchased the disputed lands more fully described in the plaint measuring about 1.17 decimals in village Urunia by two sale-deeds dated 21-3-1935 and 8-3-1937 respectively for a total consideration of Rs. 138/-.
3. Plaintiffs are sons of Upendra and defendant No. 1 Bairagi is latter's younger brother. Satchi, mother of Upendra and Bairagi, was impleaded as defendant No. 3 but she died during the pendency of the suit. Dispute arose, according to the plaintiffs, when Satchi by way of a registered deed dated 21-6-1978 gifted away the property in favour of them. and it is alleged that, when the plaintiffs tried to carry on agricultural operation, defendant No. I with his men created disturbance in the possession. Hence, plaintiffs filed the suit for permanent injunction.
Defendant No. 1's case is, this property was the joint family property inasmuch as, this was purchased when the family members were living jointly and with a view to maintain goodwill in the family, this was so purchased in the name of Satchi but out of the common fund. That Satchi having her own Stridhan was denied. It was further pleaded that in the year 1968 when both the branches effected mutual partition by metes and bounds, defendant No. 1 since that year has been possessing half of the disputed land in his own right, title and interest. Therefore, he claimed dismissal of the suit.
4. Though extensive argument was advanced by Mr. U. N. Mishra, learned counsel for the appellants, and Mr. Y. S. N. Murty, learned counsel for the respondents, in support of their respective contentions and both of them referred to the evidence of the witnesses and the documents on record, yet it would be sufficient to discuss the following disputed points which are felt essential for the proper decision of the case at hand.
5. Admittedly, the property in question was purchased in the name of Satchi when the family members were living jointly and naturally Krushna, father of Upendra and Bairagi, was the manager and Karta of the family. The case of defendant Bairagi is that, the property in question was purchased from the joint family fund and it was so purchased in the name of Satchi to maintain good will with her. The lower Court found that there was no sufficient nucleus out of which the property in question could have been purchased. The reasons in arriving at such a conclusion are that, the joint family had only a little more than two acres of land, there was no evidence with regard to the actual income of the family, parties were also cultivating some lands of others on Bhag and, lastly, because of insufficient and inadequate income for the maintenance of the family, Krushna was compelled to work outside for about four to five months in a year.
6. The lower appellate Court reversed this finding and held that the joint family had sufficient nucleus. This finding is found to be not based on any evidence because the lower appellate Court was conscious that defendant Bairagi failed to state the income of the family from the agricultural lands. Though he admitted that Krushna was also sending money, he could not say what was the amount (even roughly that was being received from Krushna). The Court held that the family was also cultivating the lands of others on Bhag and it considered this as a reason to hold that the income of the family was sufficient. Secondly, its finding which was based on the admissioin of PW 1 that the family was meeting the expenses of Satchi from the common fund also led it to conclude the sufficiency of the joint family nucleus. These reasons can hardly be accepted as correct to hold that there was sufficient nucleus out of which the property in question was purchased. Its further finding, on the basis of the evidence of P W 5 and that of Bairagi (DW 1), that parties were jointly possessing the disputed land could have hardly any relevancy to judge sufficiency of the joint family nucleus. There is no evidence that by virtue of such joint possession the family was having an income which was sufficient to purchase the property in question after meeting the family expenses. The finding of the lower Court that rather there was no evidence with regard to 'sufficient nucleus' is correct and should not have been reversed by the lower appellate Court without assigning as to how the finding so arrived by Lower Court was wrong.
7. It has been authoritatively settled by various decisions of the apex Court including the one in the case of Kochadai Naidu v. Nagraja Swami Naidu reported in AIR 1980 SC 2026 that a well considered finding of a trial Court should not be reversed by an appellate Court without any valid ground. It is only when the question of probability of the story given by the witnesses clearly indicated that the view taken by the trial judge is wrong, the appellate Court can reverse the finding as has been held in the case of Radha Prasad Singh v. Gajadhar Singh reported in AIR 1960 SC 115. In the case of Narbada Prasad v. Chhaganlal reported in AIR 1969 SC 395 : 1969 All LJ 462 the apex Court ruled as follows:-
"......In an appeal the burden is on the appellant to prove how the judgment under appeal is wrong. To establish this he must do something more than merely ask for a reassessment of the evidence. He must show wherein the assessment has gone wrong. Where the Court of first instance relies upon probabilities alone, the appellate Court may be in as good position as the Court of trial in judging of the probabilities, but where the Court of trial relies upon its own sense of the credibility of a witness the appellate Court is certainly at a disadvantage, because it has not before it the witness but the dead record of the deposition as recorded....."
In the case at hand, the lower Court based its finding on appreciation of the evidence of the witnesses. It did not merely draw an inference to judge the probability of the case and, therefore, it was not open for the lower appellate Court to take a different view other than the one taken by the Lower Court, unless it found the view to be wholly unacceptable because of no evidence or appreciation of evidence which was against the established principle of law.
For the above reasons, the finding of the Lower Court that the family had no sufficient nucleus is rather affirmed.
8. It would be apposite to point at this stage that both the Courts were under the misconception of law that when a property is purchased in the name of a female member of the joint family and there is sufficient nucleus, the said property should be presumed to be joint family property. Such a presumption would be available only in the case of a male member of the family, but not a female member as has been held in the case of Manahari Devi v. Choudhury Sibanava Das reported in AIR 1983 Orissa 135, where this Court after referring to various decisions held that the presumptive doctrine available in respect of the property in the name of a male is not available as in the case of a female member. The party pleading a contrary case should establish the same adducing necessary evidence that the property so purchased was from the joint fund.
9. Admittedly the disputed property was purchased during 1935-39 when Krushna was serving outside and the family was joint. The finding of the lower appellate Court that Upendra and Satchi were jointly managing the family affairs is not correct because, Krushna being the eldest male member continued to be the Karta of the family and any management during his absence would be only on his behalf. There is evidence that he was sending money. But there is no evidence from the side of the defendants as to what amount he was sending and to whom and whether this was alone meant for the family expenses and there was surplus amount by which the property in question could have been purchased. It would be rather legitimate to presume and hold that money so sent by Krushna was his own money and the property purchased in the name of Satchi, his wife, in the absence of a case of benami, belonged to Satchi. This finding of the lower Court is affirmed.
10. The contention of Mr. Murty that a female can also be a member of the joint family is not disputed. What we are concerned presently is about drawing of a presumption in respect of the property purchased by a female member. A female may continue to be a member of the joint family, but the point as decided above is, if any property purchased in her name even though there may be sufficient nucleus, there can be no presumption that the property is joint family property.
11. The next question is, whether the gift deed dated 21-6-1978 conveyed a valid title in favour of the plaintiffs.
Both the Courts below without examining the pleadings of the defendants unnecessarily devoted a considerable part of their respective judgments with regard to the point whether the gift deed was validly executed by Satchi in favour of the plaintiffs.
The plaintiffs in para 5 of the plaint claimed that Satchi gifted away the property by registered deed dated 21-6-1978. Defendant No. 1 while controverting this assertion in para 9 of the written statement merely pleaded that Satchi never executed any gift deed. He did not plead that because of either physical or mental disability, or because of her illiteracy, Satchi did not have any knowledge about execution of such a deed. In other words, there is total absence of pleading of fraud, undue influence and/ or misrepresentation. In the absence of such pleadings, it was not proper for the trial Court to allow any evidence on that score. The learned lower appellate Court also became oblivious to such absence of pleadings.
So far as execution of the gift deed in question is concerned, it is suffice to say that the plaintiffs proved the document to have been duly executed through the evidence of PW 3, the scribe and the attesting witness, PW 2. Having gone through the evidence of these two witnesses it is amply proved that Satchi executed the document and the document validly conveyed title in favour of the plaintiffs.
12. So far as the possession is concerned, the learned Lower Court found the same with the plaintiffs. It further held that the witnesses DWs 2 to 5 for the defendants were inimically disposed of towards PW 1 and, so far as D W 5 is concerned, the Court held that he was an interested witness. The lower appellate Court merely relied on the admission of PW 5, the witness for the plaintiffs that they were possessing half and the defendants were possessing the other half of the land in question without giving any reason as to how the finding of the Lower Court with regard to possession was wrong. Though the defendants came forward with a case that they were possessing half of the family property including the suit land since 1968, they did not specifically prove as to which portion of the property they were possessing.
Since the lower appellate Court without any justifiable reason reversed this finding of the Lower Court, the judgment is liable to be set aside.
The defendants did not come forward with a case of acquisition of title by adverse possession. Possession having been rightly held with the plaintiffs, they have to succeed.
13. In the result, the appeal is allowed. The lower appellate Court judgment is set aside and that of the trial Court is affirmed, but in the peculiar facts and circumstances of the case, parties are to bear their own costs.