Orissa High Court
Shiba Prasad Barik & Others vs Satyabrata Barik & Others on 25 September, 2024
A.F.R
IN THE HIGH COURT OF ORISSA AT CUTTACK
SA No.465 of 2001
(In the matter of an appeal under Section 100 of the Code of Civil Procedure, 1908)
Shiba Prasad Barik & Others .... Appellants
-versus-
Satyabrata Barik & Others .... Respondents
Appeared in this case by Hybrid Arrangement (Virtual/Physical Mode):
For Appellants - Mr. P.R. Barik, Advocate.
For Respondents - Mr. P.K. Singh, Advocate
&
Mr. P. Das, Advocate.
CORAM:
MR. JUSTICE A.C.BEHERA
Date of Hearing :05.09.2024:: Date of Judgment :25.09.2024 A.C. Behera, J. This 2nd Appeal has been preferred against the partially reversing Judgment.
2. The appellants in this 2nd Appeal were the defendant Nos.1 to 5 before the Trial Court in the suit vide T.S. No.13 of 1991 and the appellants before the First Appellate Court in the 1st Appeal vide T.A. No.9 of 1996.
Page 1 of 30 SA No.465 of 2001
{{ 2 }} The respondent Nos.1 to 5 in this 2nd Appeal were the plaintiffs before the Trial Court in the suit vide T.S. No.13 of 1991 and respondent Nos.1 to 5 before the First Appellate Court in the 1 st Appeal vide T.A. No.9 of 1996.
The respondent Nos.6 to 10 in this 2nd Appeal were the defendant Nos.6 to 10 before the Trial Court in the suit vide T.S. No.13 of 1991 and respondent Nos.6 to 10 before the First Appellate Court in the 1 st Appeal vide T.A. No.9 of 1996.
3. The suit of the plaintiffs (respondent Nos.1 to 5 in this 2 nd Appeal) vide T.S. No.13 of 1991 against the defendants (appellants and respondent Nos.6 to 10 in this 2nd Appeal) was a suit for partition.
The parties to the suit are Hindus and they are guided and governed by the Mitakshara School of Hindu Law as well as Hindu Succession Act, 1956.
According to the pleadings of the plaintiffs, their common ancestor was Purnananda Barik. The said Purnananda Barik died 39 years back leaving behind his 4 (four) children i.e. Siba Prasad Barik (defendant No.1), Jogendra Nath Barik (defendant No.8), Laxmimoni Dei (defendant No.9) & Basantimoni Dei (defendant No.10). The plaintiff No.5 (Sabitri Page 2 of 30 SA No.465 of 2001 {{ 3 }} Barik) is the wife of Siba Prasad Barik (defendant No.1). The plaintiff Nos.1 to 4 are the children of defendant No.1 through plaintiff No.5 (Sabitri Barik). The defendant Nos.2 to 4 are the children of defendant No.1 (Siba Prasad Barik) through defendant No.5 (Saraswati Barik). The defendant Nos.6 & 7 are the purchasers of some of the suit properties.
4. In order to have an instant reference about the aforesaid genealogy stated by the plaintiffs in their plaint, their genealogy is depicted hereunder:
Genealogy Purnananda Barik Siba Prasad Barik(D-1) Jogendra Nath(Pro.D-8) Laxmi (D-9) Basantimoni (D-10) Sabitri (P-5) (1st wife) Satyabrata (P-1), Nityabrata (P-2), Priyabrata (P-3), Bharati (P.4) Saraswati (D.5) (2nd wife) Bijaya (D-2) Ajay (D-3) Sanjay (D-4) Page 3 of 30 SA No.465 of 2001 {{ 4 }} As per the pleadings of the plaintiffs, their common ancestor Purnananda Barik died prior to 1956 leaving behind Ac.21.95 Decimals of land. After his death, said Ac.21.95 Decimals of land left by him devolved upon his two sons i.e. Siba Prasad Barik (defendant No.1) and Jogendra Nath Barik (defendant No.8). Out of the said Ac.21.95 Decimals of land, some properties were acquired for construction of canal. After such acquisition, the remaining properties were Ac.21.22 Decimals. The said Ac.21.22 Decimals have been described in Item No.1 of Schedule "B" of the plaint.
In addition to the properties described in Item No.1 of Schedule "B", they (defendant No.1 & 8) had their some other joint and undivided properties at village Sridamachandrapur. Their said joint properties at Sridamachandrapur were sold by the defendant Nos.1 & 8 both, and out of the sold money thereof along with the income from Item No.1 properties of Schedule "B", the properties described in Item No.2 of Schedule "B" were purchased by the defendant Nos.1 & 8. For which, the properties of Sridamachandrapur have not been included in this suit for partition.Page 4 of 30 SA No.465 of 2001
{{ 5 }} After the death of Purnananda Barik, the defendant No.1 being his eldest major son, he (defendant No.1) was managing the family and he himself was keeping the entire income of the properties of Item Nos.1 & 2 of Schedule "B".
When, in the year 1967, the defendant No.1 brought the defendant No.5 to the house and kept her as his mistress in the house, then dissention arose in their family between the defendant No.1 and his mother Netramani. For which, there was an amicable partition of the properties described in both the lots (items) of Schedule "B" between defendant Nos.1 & 8 with the help of local gentries. In such amicable partition some properties of Schedule 'B' were given to defendant No.9, those have been described in Schedule 'C' and rest properties thereof were distributed between defendant Nos.1 & 8 as half and half.
Out of the surplus income of half share of Schedule "B" properties, the defendant No.1, purchased Schedule "D" properties in his name and Schedule 'E' properties in the name of defendant No.2, when, the defendant No.2 was minor and he (defendant No.2) had no income. Subsequently, the item No.8 of Schedule "D" have been sold by the Page 5 of 30 SA No.465 of 2001 {{ 6 }} defendant No.1 to the defendant Nos.6 to 7 on dated 14.07.1982, for which, the defendant Nos.6 & 7 have been made as parties in the suit.
Therefore, like Schedule "B" properties, the Schedule "D" & "E" properties are their joint and undivided properties, because, the said Schedule "D" & "E" properties have been purchased by the defendant No.1 out of the income from the half share of the joint family properties of Schedule "B". Therefore, the plaintiffs have their share in Schedule "D" & "E" properties like Schedule "B".
Their joint and undivided dwelling house i.e. building is on the properties described in Schedule "F". As per amicable partition between defendant Nos.1 & 8 in the year 1967, the portion marked as F-1, has fallen in the share of the defendant No.1, in which, they (plaintiffs) have their joint and undivided interest.
When, in the year 1967, there was disturbance between the plaintiff No.5 and her husband (defendant No.1) for keeping the defendant No.5 as his mistress, then, in order to solve that situation, the defendant No.1 executed a sale deed on dated 05.04.1967 in respect of the properties described in Schedule "H" (those are the part of the Schedule "B") in Page 6 of 30 SA No.465 of 2001 {{ 7 }} favour of the plaintiff Nos.1,2 & 4 without delivering the possession thereof to the plaintiff Nos.1,2 & 4.
When, the defendant Nos.1 & 5 ill-treated the plaintiff No.5 and her children in the house of the defendant No.1, then, since the year 1977, the plaintiffs have been residing in the father's house of the plaintiff No.5. In the year 1982, when the plaintiffs requested the defendant No.1 for metes and bounds partition of the suit properties, the defendant No.1 did not agree for the same, then, they (plaintiffs) filed a suit for partition vide T.S. No.137 of 1982 against the defendant No.1 and others for partition of the suit properties. So, the defendant Nos.1 & 8 requested them (plaintiffs) for division of the suit properties between them amicably outside the Court, to which, they (plaintiffs) agreed and accordingly, there was an amicable settlement between the plaintiffs and defendant No.1. On the basis of their such amicable settlement, the entire properties i.e. ancestral as well as the properties purchased from the surplus income of the joint family were blended/thrown into the common stock and in order to have such division of the suit properties outside the Court, they (plaintiffs) did not take any step in the suit vide T.S. No.137 of 1982 at the request of the defendant Nos.1 & 8. For which, that suit vide T.S. Page 7 of 30 SA No.465 of 2001 {{ 8 }} No.137 of 1982 filed by the plaintiffs was dismissed for default. So, there was a written amicable settlement between them on dated 18.07.1983 for divison of the suit properties, but the same could not be worked out later on. For which, they (plaintiffs) approached the Civil Court by filing the present suit vide T.S. No.13 of 1991 against the defendants praying for partition of their 4/10th share or any other share, to which, they are entitled from Item Nos.1 & 2 of Schedule "B" properties (excluding Schedule "C" therefrom), 4/5th share or any other share, to which, they are entitled in Schedule "D", "E", "F-1" & "G" of the plaint excluding Schedule 'I' properties, as the properties covered under Schedule "I" are coming under the Consolidation Area, stating that, the defendant Nos.2 to 5 have no interest in the suit properties, because, defendant No.5 is not the legally married wife of defendant No.1 and the defendant Nos.2 to 4 are the children of defendant No.5.
5. The defendant No.8 (Jogendra Barik) filed his written statement taking his stands interalia therein that, his grand father Shyama Barik had extensive landed properties under Sabik Khata No.46 as per Sabik Settlement of the year 1924-25. His grand father Shyama Barik died leaving behind his father Purnananda Barik. His father Purnananda Page 8 of 30 SA No.465 of 2001 {{ 9 }} Barik died in the year 1953, when he (defendant No.8) was an infant, at that time the defendant No.1 was much older than him. He (defendant No.1) was managing all the properties left by his father Purnananda Barik as the Karta of his family. The Government canal from Naya Rangamatia passed through some of their ancestral properties covering two mans, for which, two mans of their ancestral properties were acquired by the Government. At the time of partition in the year 1963 between him and defendant No.1, he (defendant No.8) was a minor and he had no knowledge about the acquisition of their ancestral properties for construction of canal, but he came to know later on that, the defendant No.1 himself has utlised the entire compensation amount of acquired two mans of land. The defendant No.1 has illegally transferred some properties to defendant No.9 in the year 1960 and he has received some money from the defendant No.9 for his own benefit. According to him (defendant No.8), the previous partition between him and defendant No.1 in respect of their joint properties cannot be reopened. For which, the suit of the plaintiffs must fail on that ground.
The defendant No.9 filed her written statement supporting the case of the plaintiffs that, she (defendant No.9) and her sister defendant No.10 Page 9 of 30 SA No.465 of 2001 {{ 10 }} are the daughters of Purnanda Barik. They (defendant Nos.9 & 10) are entitled to get their legitimate shares in the properties left by their father Purnananda Barik. Because, their father Purnananda Barik has expired after coming into force of the Hindu Succession Act, 1956.
The defendant Nos.1,2,4 &5 contested the suit of the plaintiffs by filing their joint written statement denying the allegations alleged by the plaintiffs against them taking their stands inter alia therein that, the plaintiffs have no cause of action for filing the suit against them. Purnananda Barik died in the year, 1959. His wife Netramani died in the year 1974. There was no sufficient surplus income from their joint family properties. He (defendant No.1) has not purchased any land out of any surplus income of their joint family properties. As, his wife i.e. plaintiff No.5 went away to her father's house abandoning him (defendant No.1), for which, he (defendant No.1) married to the defendant No.5 for the 2 nd time with the consent of the plaintiff No.5. The plaintiffs had filed one Misc. Case bearing No.83/66-67 in the Court of learned S.D.J.M., Udala claiming maintenance from him (defendant No.1), for which, there was a settlement between him and plaintiff No.5 and as per such settlement, he (defendant No.1) alienated some properties of item No.2 of Schedule "B" Page 10 of 30 SA No.465 of 2001
{{ 11 }} to plaintiff No.5. There was a partition of their all joint properties in the year 1967 between him (defendant No.1) and defendant No.8 through measurements by the Amin. After such partition, out of his own and independent income other than any income from the ancestral joint properties, he, (defendant No.1) purchased the Schedule "D" properties. His wife (defendant No.5) purchased the properties described in Schedule "E" in the name of the defendant No.2. He (defendant No.1) has sold away some properties to defendant No.9 for legal necessity. Therefore, the suit of the plaintiffs for partition is not maintainable. The same is liable to be dismissed.
6. Basing upon the aforesaid pleadings and matters in controversies between the parties altogether 6 numbers of issues were framed by the Trial Court in the suit vide T.S. No.13 of 1991 and the said issues are:
ISSUES i. Whether there was prior partition of the suit land in between the parties?
ii. Whether Purnananda died prior to 1956 or after? iii. Whether Saraswati Barik (defendant No.5) is the legal married wife of defendant No.1 Siba Prasad Barik? iv. Whether the registered sale deed dated 19.03.1960 in favour of defendant No.9 is valid and genuine? v. Whether the plaintiffs are entitled to the reliefs as claimed in this suit?Page 11 of 30 SA No.465 of 2001
{{ 12 }} vi. Whether plaint schedule "D" & "E" properties are the self-acquired properties of defendant No.1 or the same has been purchased out of the joint family nucleus?
7. In order to substantiate the aforesaid relief sought for by the plaintiffs in the suit vide T.S. No.13 of 1991 against the defendants, they (plaintiffs) examined altogether 3 numbers of witnesses from their side including the plaintiff Nos.5 and 1 as P.Ws.1 and 2 and relied upon the documents vide Exts.1 to 6.
On the contrary, in order to nullify/defeat the suit of the plaintiffs, the defendant No.8 examined himself and relied upon the documents vide Exts.A & B. The contesting defendant Nos.1 to 5 examined 4 witnesses on their behalf including the defendant No.1 as D.W.1 and exhibited series of documents from their side vide Exts.A/1 to L/1.
8. After conclusion of hearing and on perusal of the materials, evidence and documents available on the record, the Trial Court answered all the issues in favour of the plaintiffs and against the defendants and basing upon the findings and observations made by the Trial Court in the issues in favour of the plaintiffs and against the defendants, the Trial Court decreed the suit of the plaintiffs on contest Page 12 of 30 SA No.465 of 2001 {{ 13 }} against the defendant Nos.1,2,4,5,8 and ex parte against other defendants and held that, Purnananda Barik died subsequent to the coming into force of the Hindu Succession Act, 1956 leaving behind his two sons i.e. defendant Nos.1 and 8 and two daughters i.e. defendant Nos.9 and 10 and consequent upon his death, there was a notional partition in respect of his ancestral properties, for which, defendant Nos.1 and 8 are entitled to get 5/12th share each, defendant Nos.9 and 10 are entitled to get 1/12th share each and in a partition in between defendant No.1 and his legitimate sons through his wife Sabitri each of them i.e. plaintiff Nos.1 to 3 and defendant No.1 entitled to get 5/48th share in the plaint schedule properties. The illegitimate sons of defendant No.1 i.e. defendant Nos.2 to 4 are not entitled to get any share in the suit properties. The plaintiff No.4 i.e. Kumari Bharati is only entitled to maintain and residence in the family properties till her marriage as per its Judgment and Decree dated 22.01.1996 and 05.02.1996 respectively assigning the reasons that, the defendant No.1 has purchased the properties described in Schedule "D" & "E" out of the nucleus of the joint family properties i.e. out of the surplus income of the joint undivided properties described in schedule "B". The defendant No.5 not being the legal married wife of defendant Page 13 of 30 SA No.465 of 2001 {{ 14 }} No.1 and the defendant Nos.2 to 4 being the illegitimate children of defendant No.1 through defendant No.5, they (defendant Nos.2 to 5) are not entitled to get any share in the suit properties.
09. On being dissatisfied with the aforesaid Judgment and Decree passed by the Trial Court in the suit vide T.S. No.13 of 1991 in favour of the plaintiffs and against the defendant Nos.1 to 5, the defendant Nos.1 to 5 challenged the same by preferring the 1st Appeal vide T.A. No.9 of 1996 being the appellants against the plaintiffs and defendant Nos.6 to 10 arraying them as respondents.
10. In that 1st Appeal vide T.A. No.9 of 1996, the respondent No.5 (Sabitri Barik, plaintiff No.5 in the suit) challenged the allotment of shares made by the Trial Court in her favour claiming her equal share with her husband (defendant No.1) and sons and also challenged the allotment of shares made by the trial court in favour of defendant Nos.9 & 10 claiming that, they (defendant Nos.9 & 10) have no share in the suit properties, as their father died prior to 1956 by filing a cross objection (cross appeal) under Order 41, Rule 22 of the CPC, 1908.
11. After hearing from both the sides, the 1st Appellate Court partly allowed that 1st Appeal vide T.A. No.9 of 1996 of the defendant Nos.1 to Page 14 of 30 SA No.465 of 2001 {{ 15 }} 5 and allowed in full to the cross appeal/objection of the plaintiff No.5 on contest as per its Judgment and Decree dated 25.09.2001 & 09.10.2001 respectively assigning the reasons that, Purnananda Barik has expired in the year 1950 prior to the coming into force of Hindu Succession Act, 1956, for which, the defendant Nos.9 & 10 being the pre act daughters, they have no interest in the properties left by their father Purnananda Barik and on the basis of such observations, the First Appellate Court modified the apportionment of shares made by the learned Trial Court between the plaintiffs and defendant Nos.1 & 8 entitling the defendant No.8 (Jogendra Nath Barik) to get 5/10th share, entitling the defendant No.1 along with the plaintiff Nos.1,2,3 & 5 to get 1/10th share each in Schedule "B" "D" "E" & "F-1" properties giving right of residence to the plaintiff No.4 in the joint family house as well as right of her maintenance out of the properties fallen in the share of the defendant No.1 and plaintiffs No.1,2,3 & 5 stating that, Schedule "C" properties are excluded from partition and Schedule "G" movable properties are not available for partition.
12. On being aggrieved with the aforesaid Judgment and Decree dated 25.09.2001 and 09.10.2001 respectively passed in T.A. No.9 of 1996 by Page 15 of 30 SA No.465 of 2001 {{ 16 }} the 1st Appellate Court, they (appellants in that 1st Appeal & defendant Nos.1 to 5 in the suit) challenged the same by preferring this 2nd Appeal being the appellants against the plaintiffs and defendant Nos.6 to 10 arraying them as respondents.
13. This 2nd Appeal was admitted on formulation of the following substantial questions of law:
i. Whether, the learned courts below are justified in bringing the self-acquired properties of defendant No.1 for partition, at the instance of the plaintiffs, excluding Schedule "H" property, which the plaintiffs claim to be in the possession of the defendant No.1?
ii. Whether the learned courts below are justified in holding that there was no previous partition on the face of Exts.1,2 and Ext.A?
14. I have already heard from the learned counsels of both the sides.
In support of the impugned Judgments and Decrees, the learned counsel for the respondent Nos.1 to 5 (plaintiffs) relied upon the following decisions:
I. 2020 (II) OLR (SC) 569:Vineeta Sharma Vs.
Rakesh Sharma & Others (Para No.129)
Page 16 of 30
SA No.465 of 2001
{{ 17 }}
II.
AIR 1992 A.P. 291:Jagarlamudi Sujata &
Others Vs. Jagarlamudi Jadadish Krishna
Prasad & Others (Para No.8)
When, the above both the substantial questions of law are interlinked having ample nexus with each other, according to the Judgments and Decrees of the Trial Court and First Appellate Court as per the pleadings and evidence of the parties, then, both the substantial questions of law are taken up together analogously for their discussions hereunder:
It is the undisputed case of the parties that, the properties described in Item No.1 of Schedule "B" stands in the name of Purnananda Barik as per the R.o.R vide Ext.3.
As per the pleadings of the parties that, the properties described in Item No.2 of Schedule "B" have been purchased in the name of the defendant Nos.1 & 8 jointly.
15. It is the unchallenged findings of the 1st Appellate Court that, Purnananda Barik died in the year 1950, which is prior to the coming into force of Hindu Succession Act, 1956 leaving behind the properties described in Item No.1 of Schedule "B". So, the defendant Nos.9 & 10 have no right of succession to the properties left by their father Page 17 of 30 SA No.465 of 2001 {{ 18 }} Purnananda Barik, as their father Purnananda Barik died before 1956. So, the Item No.1 properties of Schedule "B" left by Purnananda Barik devolved upon his two sons i.e. defendant Nos.1 & 8.
When, the R.o.R of Item No.1 properties of Schedule "B" stands in the name of Purnananda Barik (father of the defendant Nos.1 & 8) and when the Item No.2 properties of Schedule "B" have been purchased jointly in the names of defendant Nos.1 & 8 and when there is no document in the records to show about the metes and bounds partition of both the Items i.e. Item No.1 and Item No.2 properties of Schedule "B" between the defendant Nos.1 & 8 at any time, then at this juncture, it is held that, the entire properties described in Schedule "B" have not been partitioned between the plaintiffs and defendant Nos.1 & 8 previously through metes and bounds partition, for which, all the properties covered under Item Nos.1 & 2 of Schedule "B", which includes the properties described in Schedule "C", "F" & "H" are liable for partition. Because, the properties covered under Schedule "C", "F" & "H" are the parts of Schedule "B" properties.
16. Now, it will be seen, whether the findings and observations made by the Trial Court and First Appellate Court that, the properties described Page 18 of 30 SA No.465 of 2001 {{ 19 }} in Schedule "D" & "E" are the self-acquired properties of defendant Nos.1 & 2 as per the purchase made in their names through different sale deeds or the said properties are the joint and undivided properties of the plaintiffs being the outcome of purchase from the joint nucleus i.e. from the surplus income of Schedule "B" properties.
17. As per the pleadings of the plaintiffs, the defendant No.1 has purchased the Schedule "D" properties in his name and Schedule "E" properties in the name of his illegitimate son i.e. defendant No.2, while he (defendant No.1) was living separately from his brother i.e. defendant No.8 out of the surplus income of the half of his allotted properties from Schedule "B" through amicable distribution.
The defendant Nos.1 to 5 have seriously disputed/denied the above pleadings of the plaintiffs stating that, he (defendant No.1) has purchased Schedule "D" properties out of his own income and the properties described in Schedule "E" have been purchased in the name of defendant No.2 through the money provided by his mother i.e. defendant No.5, for which, the properties described in Schedule "D" & "E" have not at all been purchased out of the joint family nucleus. So, the properties described in Schedule "D" & "E" are not liable for partition. Because, the Page 19 of 30 SA No.465 of 2001 {{ 20 }} Schedule "D" properties are the self-acquired properties of defendant No.1 and the Schedule "E" properties are the properties of defendant No.2.
18. In the impugned Judgments and Decrees, both the Courts i.e. Trial Court and First Appellate Court have held that, all the properties described in Schedule "D" & "E" are the joint and undivided properties of the plaintiffs being the outcome of purchase from the joint family nucleus i.e. from the surplus income of the half of the Schedule "B" properties in the name of defendant Nos.1 & 2 separately only on the ground/reason that, "except oral evidence, he (defendant No.1) did not file any documentary evidence to show that, his income from the half of the properties of Schedule "B" (which was allotted in his favour) was insufficient for the management of the family and properties and there was no surplus income to purchase the "D" and "E" Schedule properties, for, which, as per the presumptions provided under Hindu law, "D" and "E" Schedule properties have been acquired by the defendant No.1 in his name and in the name of the defendant No.2 out of joint family nucleus, therefore, the same are partible between the plaintiffs and defendant No.1."
19. The aforesaid findings of the Trial Court & First Appellate Court on the ground for non-discharging the burden, (which was lying upon the defendant No.1) by the defendant No.1 to prove that, his income was not Page 20 of 30 SA No.465 of 2001 {{ 21 }} sufficient for the management of his family and properties and there was not any surplus income of his own from any source have brought an automatic presumption that, the plaint "D" and "E" Schedule properties were purchased by the defendant No.1 out of the joint family nucleus cannot be acceptable under law.
Because, as per law, in a suit for partition, when a party claims that, a particular item of property held by an individual member is a joint family property, then, the burden to prove the same rests upon the said party, who asserts the claim that, a particular item of property like the "D" and "E" schedule properties of the suit at hand purchased by the defendant Nos.1 & 2 in their names separately are the joint family properties.
On this aspect the propositions of law has already been clarified in the ratio of the following decisions:-
(i) AIR (34) 1947 (Privy Council) 189:Appalaswami Vs. Suryanarayanamurti & Others--Proof of the existence of a joint family does not lead to the presumption that property held by any member of the family is joint. (Para No.11)
(ii) 2007 (I) CLR 604:Ananda Parida Vs. Muchiani Swain & Others--Hindu Law--Property acquired in the name of one individual member of the family--Presumption would be that the property is the self-acquired property of that person unless it is proved that the said property was Page 21 of 30 SA No.465 of 2001 {{ 22 }} purchased for the joint family from the family fund--
Burden of proof that the property is joint family property lies on the persons who claim it to be so.
(iii) 2015 (I) CLR 88:Snehalata Khuntia Vs. Bidyutlata Sahoo & Others--Evidence Act, 1872--Section 101-- Burden of proof--Party asserting that the property was purchased from out of joint family nucleus--Burden lying on him to discharge the same.
(iv) 70 (1990) CLT 269:Kunja Prusti & Others Vs. Harekrushna Prusti & Others--Evidence Act, 1872-- Section 103--Status of joint family property--Burden of proof is on him who so alleges in a suit for partition.
There is no presumption that a family because it is joint, possesses joint property or any property whatsoever. Therefore, in a suit for partition, a party, who claims any particular item of property to be an item of joint family property, the burden proving that it is so rests on him.
(v) 2023 (1) Civ.C.C. 411 (Allh.):Nirankar Prasad Vs. Deputy Collector, Consolidation, Faizabad & Others--Joint Family Property--In absence of any cogent and relevant evidence to indicate existence of common nucleus, joint family, use of funds to create suit property, it cannot be said that suit property is of a joint family merely because parties are related to each other that too in second degree. (Para No.19)
20. Here, in this suit/appeal at hand, when the suit properties described in Schedule "D" and "E" have been purchased in the names of defendant Nos.1 and 2 separately through separate sale deeds and when, the plaintiffs are asserting that, the Schedule "D" & "E" properties are the joint family properties being the outcome of purchase from joint family nucleus, even though the Schedule "D" & "E" properties have been Page 22 of 30 SA No.465 of 2001 {{ 23 }} purchased in the names of defendant Nos.1 & 2, when, they (plaintiff) were not staying with the defendant Nos.1 and 2, but they (plaintiffs) were/are living in the father's house of the plaintiff No.5, then in view of the principles of law enunciated in the ratio of the above decisions, burden was on the plaintiffs to establish the existence of nucleus bringing materials into the record to show that, the family of the defendant Nos.1 to 5 had sufficient surplus income from the half of Schedule "B" properties as well as the nature and value of the nucleus, by which, the plaint Schedule "D" and "E" properties were purchased by defendant No.1 in his name and in the name of defendant No.2, instead of which, the Trial Court and 1st Appellate Court both have placed burden wrongly upon the defendant No.1 to discharge that, his income from half of Schedule "B" properties was not surplus and he has purchased the Schedule "D" & "E" properties from his own and independent income from other sources than the source from half of Schedule "B" properties.
Neither any oral nor any documentary evidence has been adduced on behalf of the plaintiffs either relating to the amount of income of the defendant No.1 from the half of Schedule "B" properties after meeting all Page 23 of 30 SA No.465 of 2001 {{ 24 }} the expenditures of the cultivation or relating to any amount of surplus income after meeting all the expenditures of the family.
In view of the clarified propositions of law enunciated in the ratio of the aforesaid decisions indicated in Para No.21 of this Judgment, though, as per law, the burden of proof lies upon the plaintiffs to prove that, the properties described in Schedule "D" & "E" have been purchased in the names of defendant Nos.1 & 2 out of the surplus income of the half of the properties of Schedule "B", as they (plaintiffs) have asserted the same, but not upon the defendant Nos.1 & 2, but by misplacing such burden upon the defendant No.1 instead of the plaintiffs, the trial court and 1st Appellate Court have given their findings that, the properties described in Schedule "D" & "E" have been purchased in the names of the defendant Nos.1 & 2 out of the surplus income of the half of the Schedule "B" properties.
When in view of the observations made above, it has been held that, the plaintiffs have not been able to discharge their burden lawfully by bringing materials into the record for establishing that, the properties covered under Schedule "D" & "E" have been purchased in the names of defendant Nos.1 & 2 out of the surplus income of the joint family Page 24 of 30 SA No.465 of 2001 {{ 25 }} nucleus, then, at this juncture, it is held reversing the findings and observations of the Trial Court and 1st Appellate Court that, the properties covered under Schedule "D" & "E" are not the joint family properties of the plaintiffs, but the same are the individual properties of the respective purchasers thereof i.e. defendant Nos.1 and 2. For which, the properties covered under Schedule "D" & "E" are not liable for partition.
21. It is the undisputed case of the parties that, the defendant Nos.2 to 4 are the sons of the defendant No.1 through the 2nd wife of the defendant No.1 i.e. defendant No.5 during the life time of the 1st wife of the defendant No.1 i.e. plaintiff No.5.
As the 1st wife of the defendant No.1 i.e. plaintiff No.5 is alive, then the children of the defendant No.1 i.e. defendant Nos.2 to 4 through his 2nd wife i.e. defendant No.5 are the illegitimate children of the defendant No.1.
The law relating to the right of inheritance and succession of the illegitimate children like the defendant Nos.2 to 4 in the ancestral properties of their father i.e. defendant No.1 has already been clarified by Page 25 of 30 SA No.465 of 2001 {{ 26 }} the Hon'ble Courts and Apex Court in the ratio of the following decisions:-
(i) 2023 (4) CCC 64 (S.C.)--Revanasiddappa and another Vrs. Mallikarjun and others--Hindu Marriage Act, 1955--Sections 11 & 16--Hindu Succession Act, 1956--A child born from a voidable marriage which has been annulled, such a child will have rights to or in property of parents and not in property of any other person.
(ii) 2024 (2) Civil Court Cases 031 (S.C.)--Raja Gounder & Ors. Vrs. M. Sengodan & Ors.--(Para 16)--
Hindu Marriage Act, 1955--Section 16--Children born out of void and voidable marriage--Once the status of children is established as extended family of propositus, irrespective of whether the marriages of mothers of children with propositus is void or voidable, children are entitled to a share in the property of notional partition in favour of the propositus.
(iii) 2022 (1) CCC 41 (Patna)--Sunita Devi @ Ankush Kumari and Ors. Vrs. State of Bihar and Ors.--Section 16--Children of void marriage are legitimate for the purpose of inheritance of property of their ancestors.
(iv) 2020 (1) Civil Court Cases 147 (Kerala)--Padmini Amma Vrs. Karthiyani Amma--(Para 7)--Hindu Marriage Act, 1955--Section 16--Legitimacy of children of void and voidable marriages--Benefit of legitimacy extended to all illegitimate children born out of wedlock even in absence of decree of nullity of marriage or a void marriage.
(v) 2024 (2) CCC 430 (Jharkhand):Chinta Devi Vs. State of Jharkhand & Others--Illegitimate child is also entitled to a share in property of his father.
(vi) 2024 (3) Civ.L.J. 580 (Mad.):Lalitha & Others Vs. Mariyammal & Another--Hindu Succession Act, 1956-- Children born out of void marriage--Equally entitled to claim succession on par with the legitimate children of the deceased. Page 26 of 30 SA No.465 of 2001
{{ 27 }} In view of the propositions of law enunciated in the ratio of the aforesaid decisions of the Hon'ble Courts and Apex Court, the illegitimate children of the defendant No.1 through his 2nd wife (defendant No.5) i.e. defendants Nos.2 to 4 are entitled to succeed the ancestral properties of their father i.e. defendant No.1 like his legitimate children i.e. plaintiff Nos.1 to 4. For which, the decision relied by the learned counsel for the respondent Nos.1 to 5 (plaintiffs) reported in 2020 (II) OLR (SC) 569:Vineeta Sharma Vs. Rakesh Sharma & Others & AIR 1992 A.P. 291:Jagarlamudi Sujata & Others Vs. Jagarlamudi Jadadish Krishna Prasad & Others to debar/exclude the defendant Nos.2 to 4 from inheriting the ancestral properties of the defendant No.1 have become inapplicable.
22. As per the discussions and observations made above, when, the defendant Nos.2 to 4 are entitled for equal share in both the Items of Schedule "B" properties like the plaintiffs and defendant No.1 and the Schedule "B" properties includes the properties of Schedule "C", "F" & "H" and the Schedule "D" and "E" properties are not liable for partition being the independently acquired properties of defendant Nos.1 and 2 and when the Trial Court and First Appellate Court have passed their Page 27 of 30 SA No.465 of 2001 {{ 28 }} Judgments and Decrees for partition of both the Items of Schedule "B" along with Schedule "D", "E", "F" & "H" properties excluding Schedule "C" properties without allotting any share in favour of the defendant Nos.2 to 4, then, at this juncture, there is justification under law for making some interference with the Judgments and Decrees passed by the Trial Court and First Appellate Court through this 2nd Appeal preferred by the appellants (defendant Nos.1 to 5). So, there is some merit in this 2nd Appeal filed by the appellants (defendant Nos.1 to 5). The same must succeed in part.
23. In result, this 2nd appeal filed by the appellants (defendant Nos.1 to
5) is allowed in part on contest against the respondents, but without cost. The judgments and decrees passed by the Trial Court and 1st Appellate Court in T.S. No.13 of 1991 and T.A. No.9 of 1996 respectively are set aside in part.
24. The suit be and the same vide T.S. No.13 of 1991 filed by the plaintiffs is decreed preliminarily for partition only in respect of Schedule "B", "C", "H" & "F" properties, but dismissed in respect of Schedule "D", "E", "G" & "I" properties on contest against defendant Nos.1, 2, 4, 5 and 8 Page 28 of 30 SA No.465 of 2001 {{ 29 }} and ex-parte against other defendants, but, under the circumstances without cost.
25. Out of all the suit Schedule properties, only the properties described in Schedule "B", "C", "H" & "F" are liable for partition between the plaintiffs & defendant Nos.1 to 4 & 8.
From the properties covered under Schedule "B", "C", "H" & "F", the defendant No.8 alone is entitled to get half share and all the plaintiffs and defendant Nos.1 to 4 being nine in numbers, they (plaintiffs and defendant Nos.1 to 4) entitled to get 1/18th share each.
The defendant Nos.9 & 10 being the Pre-Act daughters, they are not entitled to get any share from the Schedule "B", "C", "H" & "F" properties.
26. The parties i.e. the plaintiffs, defendant Nos.1 to 4 and 8 may amicably effect partition of the suit properties described in Schedule "B", "C", "H" & "F" in proportion to their respective shares as indicated above within a period of three months hence, failing which, any one of the parties among the plaintiffs, defendant Nos.1 to 4 and 8 may apply the Trial Court for making the decree final.
Page 29 of 30 SA No.465 of 2001
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27. In the final decree proceeding, the Civil Court Commissioner to be appointed by the Court shall make division of the suit properties described in Schedule "B", "C", "H" & "F" amongst the plaintiffs and defendant Nos.1 to 4 & 8 by allotting their respective shares in their favour in accordance with the apportionments made above and while so partitioning, he shall respect to the possession and convenience of the parties i.e. plaintiffs, defendant Nos.1 to 4 and 8.
(A.C. Behera), Judge.
Orissa High Court, Cuttack.
Rati Ranjan Nayak// Senior Stenographer Date:25.09.2024 Signature Not Verified Digitally Signed Signed by: RATI RANJAN NAYAK Reason: Authentication Location: High Court of Orissa, Cuttack, India Date: 30-Sep-2024 16:01:33 Page 30 of 30 SA No.465 of 2001