Orissa High Court
Braja Behera And Ors. vs Gandaram Behera And Ors. on 10 August, 1989
Equivalent citations: AIR1990ORI94, AIR 1990 ORISSA 94
JUDGMENT S.C. Mohapatra, J.
1. Plaintiffs are the appellants against dismissal of the suit for partition. Relationship of the parties shall be clear from the following genealogy :--
Bharat (dead) _____________________________________________________________ Braja | | | | | | P.1 Gandaram Hemsagar Bhamro Bui Mistri Kunda | D. 1 D. 4 D. 6 D.7 (dead) D. 10 | | | Issueless | | | Bhagban Chandra- | | | D. 3 bati D. 9 | | | | | | ___________|______ | | | | __________________________________| | Daman Minketan | | | | | D. 2 D.3 Suban Kundan Jagmohan Thabir | D.11 D.12 D.13 D.14 | ___________________________|_______________ | | | | Mitrabhanu Nanda- Satya- Handu P. 2 bhanu P.3 nanda P.4 P.5
2. Plaintiffs claiming plaintiff No. 1 to be the son of Kubera through his second wife filed the suit for partition of his half share in the ancestral properties of Kubera Defendants claimed that plaintiff No. 1 being son of Kubera through his concubine is illegitimate and has no share in the ancestral properties. Kubera having given some properties to plaintiff No. 1 in a partition, suit for partition at the instance of plaintiff No. 1 and his sons is not maintainable. On the pleadings two main issues arose with regard to legitimacy of Braja (plaintiff No. 1) and previous partition of the properties. Trial Court held that plaintiff No. 1 is the legitimate son of Kuber. It, however, held that there being a prior partition, the suit for partition by the plaintiffs is not maintainable. Against this decision, plaintiffs have preferred this appeal. During pendency of the appeal, plaintiff No. 1 died leaving behind the other appellants as his only heirs and legal representatives to continue the appeal.
3. Mr. B. K. Naik, learned counsel appearing for the appellants submitted that on the finding that plaintiff No. 1 was the legitimate son, dismissal of the suit on account of prior partition is inconsistent. Trial Court ought to have held that the alleged partition having been claimed to be in the year 1916 when plaintiff No. 1 was a minor the same would not bind him when on the face of the materials it is seen that share of the plaintiff No. 1 is negligible as he was allotted 14 acres of land out of 109 acres. It is so disproportionate that the story of a prior partition cannot be believed. Mr. Naik relied upon a decision reported in AIR 1979 SC 1436 (Smt. Sukhrani (dead) by L.Rs. v. Hari Shanker) in support of his submission.
4. Mr. R. K. Mohapatra, learned counsel for the respondents on the other hand submitted that the finding of legitimacy of plaintiff No. 1 is based on a non-consideration of admissions of his father Kubera which have not been explained and as such is erroneous. Mr. Mohapatra further urged that respondent No. 4 in whose favour the decree has been passed having died on 23-9-1988, the decree has become final so far as he is concerned and in absence of substitution of his legal representatives, decree ought not to be interfered with since the same would lead to inconsistency.
5. To meet the objection with regard to abatement of the appeal as against respondent No. 4 resulting in the entire appeal to abate, applications for substitution and setting aside the abatement have been filed today.
6. Substitution of the legal representatives is a statutory provision in compliance of the principle of natural justice to afford adequate opportunity to the newly added legal representatives to be on record to defend their right being affected or burden being imposed. If substitution is allowed, in furtherance of the principle of natural justice, they are to get notice of the proceeding to get an opportunity to appear to be heard in the proceeding. Keeping the same in view, it is desirable to consider the merit of the application for substitution and the application for setting aside abatement.
7. On expiry of the period of ninety days from the date of death, the appeal automatically abates and a party who seeks to substitute legal representatives of the deceased is to satisfy the Court that there was sufficient cause for which he could not take steps for substitution within the time prescribed, In the present case, respondent No. 4 is claimed to be agnate of the appellants. Deceased is of the same village as of the appellants and no case has been made out that they did not know of the death of respondent No. 4. Only ground made out in the petition for setting aside abatement is that on receipt of intimation from his Lawyer that appeal is listed for hearing, he came arid intimated his Lawyer that respondent No. 4 died on 23-10-1988. In the petition counsel for respondent No. 4 has been blamed not to have intimated the death to the Court earlier.
8. Death being on 23-10-1988, petition for setting aside the abatement filed on 10-8-1989 is also barred by limitation. An application for condonation of delay ought to have been filed. However, cause of delay being the same, I permitted the learned counsel for the appellants to make oral prayer for condonation of delay also.
9. Mr. B. K. Nayak, learned counsel for the appellants, submitted that under Order 22, Rule 10-A, C.P.C. duty has been caste on the learned counsel appearing for the deceased respondent to intimate the fact to the Court. It is so. However, no penalty has been provided for non-compliance of the provision. This provision is procedural. In absence of penalty for non-compliance of a procedural provision, the same is to be interpreted as directory and not mandatory. No doubt, non-compliance with such a provision would be a ground to condone the delay in case appellants satisfy the Court that the deceased having appeared, they remained assured and did not become vigilant to keep note of the whereabouts of the appearing respondent who died subsequently. This provision, however, does not absolve the appellants from taking steps for substitution non-compliance of which provides for a penalty. In this appeal, appellants did not rightly take a stand that they did not know the procedure since on earlier occasion, they had already taken steps for substitution of a deceased party. When the appellants had knowledge of the death and had been acquainted with the procedural law, non-compliance of Order 22, Rule 10-A, C.P.C. is not a sufficient cause either for condonation of delay or for setting aside abatement. Application for setting aside abatement has thus, no merit on the ground made out by the appellants and accordingly, petition for substitution is not entertainable.
10. Mr. Nayak, however, submitted that in the suit interest of Bharat is sufficiently represented by his other son and accordingly, there being sufficient representation a liberal view ought to be taken. I think this submission has some force. Accordingly, abatement is set aside and substitution of the deceased respondent No. 4 by his legal representatives is allowed.
11. Question on merit is whether Braja (plaintiff No. 1) is the legitimate son of Kuber or is his illegitimate son through concubine. There is no dispute that Braja is son of Kuber and in case he would be son of a concubine of Kubera, he would be illegitimate. Trial Court relied upon the circumstance that Kubera lived with Khadi, mother of Braja, for a long time as husband and wife and Braja was born out of the wedlock to come to conclusion that Khadi is married to Kubera. Trial Court relied upon the recital in Ext. O dt. 8-7-81 where it is said that Kubera had married Khadi in Bandhani form.
12. On merits Mr. B. K. Nayak, learned counsel for the appellants submitted that the finding that plaintiff No. 1 is the legitimate son of Kubera has become final in absence of any cross-objection by the respondents against this finding which is against them. He relied upon Order 41, Rule 22, C.P.C. in support of his submission. Reading Order 41, Rule 22, C.P.C. it is clear that cross-objection can be filed in respect of the decree against which the respondents could have filed an independent appeal. Where the decree is entirely in favour of a party though findings on some issues are against him, there is no scope for him to file an appeal against the decree and accordingly, he cannot prefer a cross-objection. In this case, the decree dismissing the suit for partition is entirely in favour of the defendants. Accordingly, they had no scope to prefer cross-objection. While supporting the decree when plaintiff files the appeal against the decree, defendants can assail the findings against them to support the decree passed. For this no cross-objection is required to be filed.
13. Since the prayer for the relief of partition depends upon the legitimacy of plaintiff No. 1, the said question is to be considered first. Trial Court relied upon the living together of Kubera and mother of plaintiff No. 1 for a long time and birth of plaintiff No. 1 as circumstances for drawing inference that they were married. Trial Court found corroboration from Ext. G dt. 8-7-1931 which, if read to have contained a statement of Kubera to have married Khadi mother of plaintiff No. 1 in Bandhani form. Plaintiffs have examined two witnesses, Plaintiff No. 1 as P.W. 1 stated that his parents had regular marriage according to caste custom. What was the caste custom has not been whispered by him. Trial Court is not correct in observing that according to plaintiffs Kubera married Khadi in Bandhani form. P.W.2 who is contemporary in age of Kubera does not speak about the marriage. There is no assertion in the plaint that marriage was in Bandhani form. Ext. G also does not support the story of marriage in Bandhani form. While describing mother of Bharat as married wife (Bibahita Patni), Khadi was described by Kunera to have been brought after 'Banda-pana'. It was not stated that he married Khadi in Bandhani form. Thus, finding of trial Court is based on erroneous consideration of facts. Trial Court discarded evidence of D.W. 1 a centenarian who expressed that Khadi was concubine of Kubera on the ground that he has no direct knowledge of the same. Trial Court did not give importance to his evidence that he heard from others that Khadi is the concubine. Relationship of Khadi with Kubera is, however, clinched by the statement of Kunera in EXt. A dt. 8-4-1941 which is a registered document more than thirty years old that Khadi is his concubine. In view of the aforesaid materials, I am not able to accept the finding of the trial Court. I am inclined to hold that Khadi the mother of plaintiff No. 1 was concubine of Kubera and plaintiff No. 1 was thus, the illegitimate son of Kubera.
14. Now coming to the question of partition, Mr. B. K. Naik, learned counsel for the appellants submitted that Bharat and Braja being two brothers, the share should have been equal. Referring to Ext. A dt. 8-4-1941 where it was mentioned by Kubera that there was partition 25 years back, learned counsel submitted that the shares were grossly disproportionate. Besides Braja was a minor when there was partition and accordingly the same is not binding on him. He relied upon a decision reported in AIR 1979 SC 1436 (Smt. Sukhrani (dead) by L.R's. v. Hari Shanker) in support of his contention where it has been observed that a minor coparcener on attaining majority can reopen a partition even though there was no fraud, misrepresentation or undue influence despite he being represented by his father if the partition was unfair or prejudicial to his interest. If plaintiff No. 1 would have been a coparcener of his father Kubera and brother Bharat, this decision might have some application. However, being illegitimate son he has no right by birth when his father was alive. Accordingly an illegitimate son is not a coparcener of his father and brother during lifetime of his father. This has been settled by a decision of the Suprerne Court reported in 1952 SCR 869 : (AIR 1952 SC 225) (Gur Narain Das v. Gur Tahal Das) where it has been observed (at p. 227 of AIR):
".......firstly, that the illegitimate son does not acquire by birth any interest in his father's estate and he cannot therefore demand partition against his father during the latter's lifetime; secondly, that on his father's death, the illegitimate son succeeds as a coparcener to the separate estate of the father along with the legitimate son(s) with a right of survivorship and is entitled to enforce partition against the legitimate son(s); and thirdly, that on a partition between a legitimate and an illegitimate son, the illegitimate son takes only one-half of what he would have taken if he was a legitimate son."
It has also been observed that an illegitimate son cannot demand partition where the father has left no separate property. Aforesaid principle laid down by the Supreme Court makes it clear that during lifetime of the father, illegitimate son cannot claim partition and even after his death he has no right to demand partition if his father has not left behind any separate estate. However, when father makes partition of his property, he has right to give to the share of his illegitimate son that much which he desires which cannot however be more than half of his share if he would have been a legitimate son. This was the legal position before coming into force of the Hindu Succession Act, 1956.
15. On the aforesaid analysis when 25 years before execution of Ext. A in 1951, father made a partition allotting only about 14 acres of land in favour of plaintiff No. 1 and did not keep any share for himself leaving the rest of his estate to the share of Bharat, after death of Kubera, plaintiff No. 1 could not have claimed partition by reopening the same. Principle laid down in AIR 1979 SC 1436 (supra) has no application to this case.
16. In view of my aforesaid conclusion, right of respondent No. 4 is not affected and though substituted no notice need be issued to the legal representatives of respondent No. 4.
17. In conclusion :
(a) Legal representatives of respondent No. 4 are substituted;
(b) Plaintiff is the illegitimate son of Kubers;
(c) No property having been left out in the hand of Kubera there was no scope for the plaintiffs to reopen petition.
18. In the result, appeal is dismissed. No costs.