Orissa High Court
Srustidhar Ash vs Smt. Chinmayee Ash And Ten Ors. on 19 January, 2006
Equivalent citations: AIR2006ORI138, 101(2006)CLT444, AIR 2006 ORISSA 138, 2006 (6) ABR (NOC) 972 (ORI), 2006 (5) AKAR (NOC) 726 (ORI), (2006) 3 CIVILCOURTC 413, (2006) 101 CUT LT 444, (2006) 4 RECCIVR 165, (2006) 41 ALLINDCAS 872 (ORI), (2006) 1 CLR 396 (ORI)
Author: P.K. Tripathy
Bench: P.K. Tripathy
JUDGMENT P.K. Tripathy, J.
1. The appeal has come on the list as "to be mentioned". Heard further argument. The First Appeal is disposed of in the following manner.
2. Plaintiff-appellant challenges to the judgment and decree passed by Learned Additional Sub-Judge, Balasore in O.S. No. 3/92 of 1979/72-1.
3. Plaintiff instituted that suit for partition of the suit property. According to him, he and defendant Nos. 2, 3, & 4 and the father of the defendant No. 6 are the five sons of late Subal Chandra Ash. Defendant Nos. 7 to 10 are the four daughters of late Subal Chandra Ash. Defendant No. 1 is the widow of late Subal Chandra Ash and mother of the plaintiff and the defendants except defendant Nos. 5 & 6. Defendant No. 5 is the widow and defendant No. 6 is the son of late Aswini Ash, a deceased son of Subal. Plaintiff's case is that he was a minor by the date of execution of registered partition deed dated 24.12.1958 (Ext. A). He executed that document during such minor hood on good faith and having trust and faith on defendant Nos. 1 to 4. After his marriage when he was compelled to leave the house in the year 1972 he took shelter in his father-in-law's house since 2.7.1972 and thereafter instituted the suit for partition.
4. It may be noted here that in the original plaint, plaintiff described his date of birth to be 21.4.1941 (April 21st, 1941). On 16.8.1979, on the basis of his application for amendment of the plaint that date was changed to 16.10.1943 (October 16th, 1943).
5. Defendant Nos. 1 & 4 filed two separate written statements. In each of the written statements similar plea has been advanced. It is stated by such defendants that the actual date of birth of the plaintiff is 8.7.1939. From the childhood he was a boy with notorious character and did not undertake his study sincerely, mixed with wayward sources and therefore his father compelled him to be with him in his book-store. After death of his father in the year 1950, plaintiff was allowed to work in that book shop under the management of defendant No, 3 but he still indulged in misappropriation. Under such circumstance, when the plaintiff became matured in 1956 defendant No. 1 provided him capital to start a separate book store with a hope that by shouldering responsibility he would change his attitude and adopt the way of improvement, Defendant No. 1 did not achieve any success in that respect and the conduct and attitude of the plaintiff became a constant source of disturbance in the family and under such circumstances she got a partition effected amongst the children on 21.12.1958 and got that registered on 27.12.1958 (Ext. A). Both the defendants have pleaded that the assertion of minor hood of the plaintiff is false and that he was not driven out in the month of July, 1972, but because of his bad habits that he had to take shelter in the father-in-law's house. Defendant No. 1 further stated that otherwise also the suit for partition is not maintainable.
6. Trial Court framed the following issues to decide the suit :
Issues
1. Has the plaintiff any cause of action to bring the suit ?
2. Is the suit maintainable in the present form ?
3. Was the plaintiff a minor on 14.12.1958 when the alleged partition deed was registered ?
4. Is the plaintiff bound by the partition deed dated 14.12.1958 ?
5. Are the suit properties liable for partition ?
6. What relief, if any, the plaintiff is entitled to ?
It be noted here that the date '14.12.1958' noted in issue Nos. 3 & 4 is actually 27.12.1958 and be read as such in view of Ext. A which was marked on admission.
7. Both the parties adduced oral and documentary evidence in support of their respective claim. The documentary evidence adduced by plaintiff are entry in Admission Register - Ext. 1/a and Transfer Certificate - Ext. 2 and 2/a indicating his date of birth as 16.10.1943. Document relied upon by the defendants is the registered deed of partition - Ext. A.
8. Learned Addl. Sub-Judge considering issue No. 3 as the fist issue and taking note of the prevaricating stand of the plaintiff in changing his date of birth and non- production of the horoscope though he claims that to be in his possession, found that to be adverse to the contention advanced by him regarding his actual date of birth. Accordingly the Trial Court held that petitioner has failed to prove that he was a minor by the date of partition. The Trial Court then considered issue No. 4 and held that since no evidence is forthcoming from plaintiff's side the vitiate the registered deed of partition, therefore, that document is not going to be interfered with. In other words, plaintiff is bound by the partition deed Ext. A. Consequentially the other issues were decided against the plaintiff and the suit was ultimately dismissed on contest against defendant Nos. 1 & 4.
9. Mr. Pal, Learned Counsel for the plaintiff-appellant criticizes the impugned judgment on the ground that when the plaintiff has produced the Admission Register in support of his plea to prove the date of birth and thereby proved his minor hood on the date of execution and registration of the partition deed Ext. A, Learned Addl. Subordinate Judge was completely wrong in not accepting such evidence on filmsy ground of non-production of horoscope by the plaintiff. He thus argues that if that finding is set aside, then on the basis of Exits. 1 & 1/a plaintiff's minor hood being proved, he is entitled to reopen the case of partition notwithstanding agreement by other defendants to Ext. A .
10. That being the crucial issue, though not the issue to decide the consequence of the suit, therefore, that is considered by duly analyzing the logic explained by the Trial Court and the justification advanced by the appellant. After going through the pleadings and the evidence on record, this Court finds that the finding recorded by the Trial Court is correct inasmuch as what the Trial Court has taken note of is the prevaricating stand of the plaintiff about shifting the date of birth on the date of institution of the suit and again in 1979, i.e. after seven years of filing of the plaint. In other words, plaintiff has not inserted the date of birth in the plaint with reference to the date of birth in his horoscope, which according to him, is in his possession, reflecting the correct and actual date of birth. Plaintiff being not the author of the entry in Ext. 1 series, that document itself does not prove his actual date of birth. Mr. Pal is absolutely correct that such a document is admissible under Section 35 of the Indian Evidence Act, but mere admissibility of such document does not automatically acquire the character of proof. Therefore, even if the document Exts. 1 & 2 series is admissible under Section 35, but because of the reasons assigned by the Trial Court and also noted as above, that document does not prove the actual date of birth of the plaintiff. That is why Learned Addl. Subordinate Judge has commented that plaintiff should have produced the horoscope to corroborate to the aforesaid evidence on the actual date of birth. When such corroborative evidence is available according to his own version but plaintiff failed to produce the same, therefore Addl. Subordinate Judge was not wrong in drawing adverse inference in view of the conduct of the plaintiff in blindly inserting one after another date of birth in the plaint. Once the finding on issue No. 3 recorded by the Trial Court is confirmed, there is no need to go into the other issues, because by the date of execution of the registered partition deed plaintiff being held to be a major, he is bound by the document in the absence of proof of any adverse circumstance. That to plaintiff has also not prayed to declare void or to set aside the deed of partition. The partition in a joint family ipso facto is not going to be set aside only on the ground of minor-hood of one of the several coparceners/persons entitled to get share unless it is pleaded and proved by the claimant that during his/her minor hood such a partition was effected to deprive him/her of a legitimate share or that there has been inequitable distribution of property so as to deprive him/her a legitimate share. Therefore, in this case the minor hood of the plaintiff alone may not be adequate to set aside the partition in the absence of proof of such aspect.
11. For the reasons indicated above, the impugned judgment and decree is confirmed and the appeal is dismissed. Since the respondents have not entered appearance in this Court, therefore, I do not pass any order as to cost.