Orissa High Court
Hari Sahu And Seven Ors. vs Dinabandhu Sahu And Ors. on 6 May, 2004
Equivalent citations: 98(2004)CLT87
Author: B.P. Das
Bench: B.P. Das
JUDGMENT B.P. Das, J.
1. This appeal is directed against the judgment and decree dated 30.8.1980 and 15.9.1980 respectively passed by the learned Subordinate Judge, Bhadrak in O.S. No. 123/1977-I. Respondent No. 1- Dinabandhu Sahu and respondent No. 2 - Suka Dei filed the suit as plaintiffs in the Court below. Respondent No. 2 having died during the pendency of this appeal, has been substituted by her legal heir as respondent No. 2(a).
2. The plaintiffs filed the suit for partition of the properties in Schedule "Ka" of the plaint and for allotment of 50% share thereof to them. As the case of the plaintiffs stands, the scheduled properties measuring Ac.7.51 decimals comprise of agricultural land as well as homestead land, some of which are ancestral properties and some are acquired properties of the family from out of the joint family nucleus. According to them, all the properties are partible. For the sake of convenience, the genealogy relied upon by the plaintiffs is given below :
Panu Sahu | Goura Sahu |
-----------------------------------
| | |
Makunda Gajendra Raja
=Kokila (D-2) =Suka (P-2) =Saria
| | |
Hari (D-1) Dinbandhu (P-1) 0
According to the plaintiffs, within a span of 14 days, Gajendra died first, then Saria, then Goura, then Raja and then Makunda died due to cholera for which the plaintiffs are entitled to 50% share and defendant Nos. 1 and 2 are entitled to balance 50%, Defendant No. 2 died during pendency of the suit and she was substituted by Defendant Nos. 2-Ka & 2-Kha who are appellant Nos. 2 and 8 respectively. According to the plaintiffs, there was no partition by metes and bounds as between Goura Sahu and his three sons, namely, Makunda, Gajendra and Raja as well as two grand sons, i.e., Hari and Dinabandhu. According to the plaintiffs, plaintiff No. 1 was 7 years' old at the time of death of his father - Gajendra, and defendant No. 1 - present appellant No. 1 is a posthumous child having born after five to six months of the death of his father namely, Makunda. Defendant No. 2 - Kokila Dei was looking after the family and managing all joint family properties and was the custodian of all the title deeds and documents. As there was no complete partition by metes and bounds in respect of the suit properties, they were possessing different portions of the suit properties as per their convenience. Plaintiffs' further case is that when they requested defendant Nos. 1 and 2 for amicable partition of the suit properties, they took a plea that Goura Sahu, the grand-father of the plaintiff No. 1, had sold the entire suit properties in favour of defendant No. 2 - Kokila Dei and Saria Dei by virtue of a sale deed dated 27.4.1940 for a consideration of Rs. 600/-. It was argued before the trial Court that the transaction was a collusive and nominal transaction in which the properties were grossly under-valued and there was no legal necessity for the said transaction. It was further argued that the aforesaid sale deed was never acted upon and Kokila Dei and Saria Dei have never acquired any right of possession over the suit properties. According to the plaintiffs', the parties are all along possessing the suit properties as their joint family ancestral properties. Since defendant No. 2 has sold away some portions of the suit properties to defendant Nos. 3 to 14, they were also impleaded as parties.
3. Defendant Nos. 1 and 2 filed a joint written statement. According to them, Plaintiff No. 1 - present respondent No. 1 is not the son of Gajendra nor has he any right or share in the properties of Goura Sahu. They disputed the plaint genealogy and relied upon another genealogy showing therein that plaintiff No. 1 - Dinabandhu Sahu belongs to another branch of their family, their common ancestor being one Bauri Sahu. The genealogy relied upon by defendant Nos. 1 and 2 is as follows :
Bauri Sahu |
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| |
Atanga Panu
| |
Ekadasi Goura alias Gouri
| |
Chintai ---------------------------------
| | | |
=Tauli Dei Makunda Gajendra Bhaja Raja
| =Kokila =Suke | =Saria
| D2 P-2 0
| | |
---------------- Hari Sahu 0
| | | D-1
Kali Bali Dinabandhu
| | p-1
0 0
According to Defendant Nos. 1 and 2, Dinabandhu- plaintiff No. 1 is completely belong to a separate family and he being the son of one Chintai Sahu has no right and share in the properties of Goura Sahu. They seriously disputed the story of the plaintiffs and averred that there was never any partition between the plaintiffs and the defendants five years back, as alleged. It was also disputed that the sale deed executed by Goura Sahu in favour of Defendant No. 2 and Saria is a nominal and collusive document. According to the defendants, the sale deed is a valid document and the same was duly acted upon. The transferees under the same remained in possession of the entire suit properties covered under the said document to the exclusion of all others. Saria died long 36 years back leaving Defendant No. 2 as the,exclusive owner in possession of the suit properties.
As per the defendants, Dinabandhu is the son of one Chintai, who had three sons, namely; Kali, Bali and Dinabandhu. Kali and Bali having died issueless, Dinabandhu became the owner in possession of all the properties of Chintai and is also managing the same. In a transaction of sale made by him, he has also described himself to be the son of Chintai. The further case of the defendants is that Dinabandhu is a posthumous child and that the mother of Dinabandhu, namely; Tauli Dei, resided in the house of Chintai and after her death, plaintiff No. 2, the widow of Gajendra came to the house of Chintai and resided there and looked after plaintiff No. 1 for which plaintiff No. 2 is living in the house of Chintai with plaintiff No. 1 since long.
Defendant Nos. 3 to 14, who are the admitted purchasers, did not file any written statement and they were set ex-parte.
4. In course of hearing, a misc. case was filed bearing Misc. Case No. 78 of 2000 with a prayer to adduce a sale deed dated 21.11.1914 and the R.O.R. in the name of Gouri Sahu as additional evidence. From the photocopy of the sale deed dated 21.11.1914 it appears that the properties under Khata No. 56, Plot No. 131 -Ac.0.04 decimals, (Bari) and Plot No. 132 Ac.0.04 decimals (house) of Mouza Sorisdihi P. S. Dhamnagar, was purchased from one Tara Bewa. Drawing my attention to the aforesaid document, the counsel for the appellants submitted that the properties indicated in the sale deed are the self-acquired properties of Gouri Sahu and that the said sale deed could not be produced before the trial Court as the same could only be traced out during the pendency of this appeal. Another misc. case was filed bearing Misc. Case No. 236 of 2000 for acceptance of the certified copy of the R.O.R. relating to Khata Nos. 73 and 190 of village Bramhapur under Dhamnagar P. S. as additional evidence. From the photocopy of the aforesaid document, it appears that the properties covered under Ext. 3, i.e., the sale deed dated 25.7.1956 executed by Dinabandhu Sahu in favour of Damodar Pani, belong to Kali Sahu and Bali Sahu, sons of Chintamani Sahu and the transferor, i.e., respondent No. 1, has transferred the same stating his father's name as Gajendra Sahu.
5. The trial Court framed as many as 12 issues and after analyzing the evidence and materials on record, inter alia, found as follows :
(a) The present respondent No. 1 is not the son of Chintai Sahu but the son of late Gajendra Sahu and his wife Suka Dei - plaintiff No. 2.
(b) Exhibit-A, the registered sale deed dated 27.4.1940 executed by Gouri Sahu in favour of his two daughters-in-law, viz., D. 2- Kokila Dei and Saria Dei, is a nominal and collusive document and it was executed without any consideration for nominal amount. The same was not given effect to and was created for avoiding the creditors of Gouri Sahu.
6. With these along with other findings, the suit was decreed and the parties were directed to partition the suit properties amicably within six months.
7. Challenging the aforesaid findings, the defendants have filed this appeal. It is argued on their behalf that despite overwhelming evidence before the trial Court to the effect that respondent No. 1 is not the son of Gajendra, but the son of one Chintai Sahu, the trial Court has not accepted the same. That apart, the documents sought to be adduced as additional evidence are enough to hold that plaintiff-respondent No. 1 - Dinabandhu is not the son of Gajendra but of Chintai and the genealogy given by the defendant-appellants is correct and the plaintiff-respondents have no locus standi to claim any share in the property of late Goura Sahu.
8. Let us now see how far the finding of the trial Court as regards the sonship of Dinabandhu is correct. The plaintiffs and defendants relied upon two different genealogies in support of their respective cases. The genealogy relied upon by plaintiffs that plaintiff No. 1 - Dinabandhu is the son of Gajendra and Goura Sahu, the common ancestor, is the son of Panu Sahu. The genealogy produced by the defendants indicates that Bauri Sahu is the common ancestor of all the parties and he had two sons, namely, Atanga and Panu. Chintai is the grand-son of Atanga and Goura @ Gouri is the son of Panu. Much emphasis was laid on Ext. 8, i.e., the certified copy of C.S. Khatian of Khata No. 37 comprising an area of Ac.0.76 decimals, which indicates that the names of Kali Sahu and Bali Sahu, sons of Chintai Sahu, have been recorded as tenants. Ext. 2 is a mortgage deed executed by plaintiff-respondent No. 1 in favour of one Mahendra Mallick wherein he has mentioned the name of Gajendra Sahu as his father. Respondent No. 1 has also described therein that even though the names of Kali Sahu and Bali Sahu have been recorded in the settlement records, the father of respondent No, 1 and the father of Kali and Bali are uterine brothers and after the death of Kali and Bali, who died issueless, and the father of respondent No. 1, respondent No. 1 was in possession of the said property. Due to financial necessity, the said property was mortgaged with the above named person. Learned counsel for the appellants also drew my attention to Ext. 13, a sale deed executed by respondent No. 1 in favour of one Sudama Sahu in which he has described himself to be the son of Gajendra Sahu and has sold the property under Khata No. 17 belonging to Kali and Bali after their death, Learned counsel for the appellants then drew the attention of the Court to Exts. M and P which are sale deeds executed by respondent No. 1. Therein he has described himself as the son of Chintamani Sahu. According to learned counsel for the appellants, if Exts. M and P are read along with the documents sought to be introduced as additional evidence, as described in the foregoing paragraphs of the judgment, it will reveal that respondent No. 1 is the son of Chintamani Sahu, The documents sought to be introduced were strongly objected to by the learned counsel for the respondents.
9. it is well settled that under Order 41, Rule 27(1), CPC., the appellate Court has the power to allow additional evidence not only because it requires such evidence "to enable it to pronounce the judgment" but also for "any other substantial cause". In the present case, though these documents were introduced for the first time before this Court, looking into the nature of the documents, I am inclined to consider the same vis-a-vis Exts. 8 & 13 and Exts. M & P. Needless to say, in the documents filed along with Misc. Case No. 78 of 2000 and Misc. Case No. 236 of 2000, respondent No. 1 has described himself as son of Chintamani Sahu.
10. Before going into the merits of the rival documents in support of the respective parties, so far as sonship of respondent No. 1 is concerned, let us go to the evidence of D.W. 4. D. W. 4 is a barber for both the parties. He said that his age during July, 1980 was 55 years and stated that Dinabandhu is the son of Chintamani and he used to go to the house of Dinabandhu as he is his 'Jajman'. He has further stated that Dinabandhu is living in the house of Chintamani Sahu. During the course of cross-examination, the said witness (D.W. 4) stated that he has seen Chintamani Sahu. When he was 7 to 8 years old, Chintamani Sahu died. He has not seen the last C. S. operation. He further stated that Dinabandhu, i.e., present respondent No. 1, would be 5 years younger to him and both Dinabandhu and D.W. 4 were born after the last C.S. operation was over. He has further stated that he has attended the marriage ceremony of Dinabandhu Sahu but he cannot say the name of the father-in-law of Dinabandhu nor can he speak about their 'Gotra'. From the statement of D.W. 4, as it appears, he was born after the last C.S. operation, i.e., 1928. In 1980, he states his age to be about 55 years, which means his date of birth is some time during 1925. That apart, his statement is that Dinabandhu is 5 years younger to him and when he was 7 to 8 years, Chihtamani died. According to this witness, Dinabandhu was 2 to 3 years old when Chintamani died. In view of such evidence, the plea of the present appellants that Dinabandhu is the posthumous child of Chintamani cannot be accepted. D.W. 1 is the present appellant No. 1 who was arrayed as Defendant No. 1 in the suit. He has stated his age to be 42 years in 1980. That means his date of birth is sometime during 1938. He has stated in the examination- in-chief that Kali, Bali and Dinabandhu are three sons of Chintamani. Dinabandhu inherited. and possessed all the properties of Chintai and sold away some properties of Chintai, Kali and Bali to one Baishnab Ojha, the Deity Lord Jagannath Thakur and one Bhola Sahu. It is evident from the deposition of plaintiff No. 1 that his age was 46 years during 1980. That means his date of birth was sometime during 1934. The date of birth of Dinabandhu has not been rebutted in any manner by the present appellants whose claim is that Dinabandhu is not the son of Gajendra but the son of one Chintai. Heavy onus lay on the defendants to establish that the present respondent No. 1, who was the plaintiff, is the son of Chintai and not the son of Gajendra. The evidence adduced by the present appellant-defendant No. 1 would indicate that Dinabandhu was born in the year 1934 and Hari Sahu (D-1) in the year 1938. The case of the defendants that Dinabandhu is a posthumous child of Chintai absolutely gains no ground in view of the fact that Chintai had died prior to current settlement held in the year 1928 because of which the names of his sons, namely, Kali and Bali were entered in the records of rights. The evidence of D.W. 4 reaffirms the fact that Dinabandhu is not the posthumous child of Chintai because D.W. 4 has stated his age to be 55 years in the year 1980. He has also stated that Dinabandhu would be 5 years younger to him. If the date of birth of D.W. 4 would be sometime during 1925, then Dinabandhu would have born during the year 1930. This, to some extent, corroborates the claim of respondent No. 1 (plaintiff) that his age was 46 years in 1980, i.e., his date of birth was in 1934. In this regard, the evidence of D.W. 1 is to be looked into. D.W. 1, the present appellant, was the defendant No. 1. According to him, Chintamani died 10 to 15 years prior to C.S. operation and Dinabandhu's present age would be 50 to 52 years. As per Ext. 8, it is an admitted fact that the last C. S. operation was held in the year 1928. !f the statement of D.W. 1 is correct, then Chintamani Sahu died during the year 1918 or so and according to D.W. 1, the present age of respondent No. 1, i.e., the plaintiff No. 1 is about 50 to 52 years. So, from the evidence of D.W. 1, it is also clear that Dinabandhu was born much after the death of Chintamani Sahu and if Dinabandhu was born during the year 1918, there was no reason as to why his name would have been omitted in Ext. 8. That apart, Ext. 5, i.e., the voters' list of Mouza-Sorisidihi of the year 1973 di'scloses that Dinabandhu is the son of Gajendra Sahu and there is no evidence on record to show that the present appellant has ever objected to the said voters' list. The horoscope (Ext. 6) also shows that Dinabandhu is the son of Gajendra. There may be documents like Exts. M and P, but even in the document produced before this Court as additional evidence Dinabandhu has described himself as the son of Gajendra Sahu. Exts. M and P arid the document filed before this Court along with application for additional evidence may throw some light on the conduct of respondent No. 1 inasmuch as in some documents he has described himself to be the son of Chintamani whereas in others he has mentioned the name of his father as Gajendra. But that cannot set at naught the oral evidence of D.W. 4 and also the evidence of D.W. 1, who is appellant No. 1 himself, and the effect of Ext. 5, i.e., the'voters' list. It is a case where the present respondent No. 1 had filed a suit for partition and the defendants including the present appellant No. 1 had taken a plea that the present respondent No. 1 is not the son of Gajendra but the posthumous child of Chintamani. As I have observed earlier, it is for the defendant-appellants to discharge the onus and prove that the present respondent No. 1 is the son of Chintamani and not the son of Gajendra. The evidence of P.W. 5 is also relevant and vital. P. W. 5 is the brother of Suka Dei i.e., plaintiff No. 2, the wife of Gajendra Sahu. According to him, Dinabandhu is the son of Gajendra and Suka. During the course of cross-examination he has also given more details about the issues born from his sister. According to him, his sister had given birth to five children, out of whom two are alive. Prior to the birth of Dinabandhu, two issues - one daughter and a son, were born to Suka. The aforesaid statement on behalf of plaintiff No. 1 has not in any manner been dislodged by the defendant-appellants as rightly indicated by the trial Court. The defendants have not even suggested that P. W. 5 is not the maternal uncle of respondent No. 1. That apart, the fact that Suka is residing in the house of Dinabandhu for last 30 to 35 years remains unrebutted. There cannot be any other reason than that Suka was residing with Dinabandhu in the normal course of events, she being his mother. So, I have no hesitation to confirm the finding of the trial Court that the oral and documentary evidence adduced by both the parties clearly establishes that the present respondent No. 1 is not the son of Chintamani Sahu, but he is the son of Gajendra Sahu and Suka Dei. There is nothing to connect the parentage of Dinabandhu with Chintamani.
11. The next ground taken by the defendants, i.e., the appellants, is that the sale deed (Ext. A) executed by Goura Sahu in favour of defendant No. 2 and Saria in the year 1940 is a valid document and for legal necessity and there was due payment of consideration which was also duly acted upon by defendant No. 2 and Saria who remained in possession of the suit property covered under the said document to the exclusion of others. Saria died about 36 years back leaving defendant No. 2, namely, Kokiia in possession of the said property. Therefore, it is defendant No. 2 and Saria and after the death of Saria, defendant No. 2 alone is the rightful owner of the suit property. She has also transferred some of the suit properties for legal necessity and on receipt of due consideration money in favour of defendant Nos. 3 to 14. In order to decide the issue, it is worthwhile to mention here that Ext. A is a registered sale deed dated 27.4.1940 executed by Gouri Sahu in favour of his two daughters-in-law, namely, Kokiia and Saria. The sale consideration under Ext. A is Rs. 600/-. According to defendant No. 2, i.e., Kokiia, after death of Saria, she became the sole owner of the property. To this, the plea of plaintiff-respondent No. 1 is that Ext. A is a nominal document, which was executed by Gouri at the instance of the husbands of said Kokiia and Saria. The said document was without any consideration and legal necessity and it was never acted upon. According to the plaintiff-respondent No. 1, the suit properties being the ancestral and joint family properties of Gouri Sahu, Gouri Sahu had no authority to alienate the same and the said document under Ext. A was only a nominal document created to avoid the creditors. A bare perusal of the recitals made in Ext. A indicates that the property in question was sold by Gouri to his daughters-in-law. It was stated that since the income of the sons of Gouri Sahu, who were serving at Calcutta, was reduced to a great extent and there was necessity of money for payment of land revenue and for meeting the family expenses, and the purchasers, namely, Kokiia Dei and Saria had repeatedly pledged their ornaments for the aforesaid purposes and a sum of Rs. 200/- was required to redeem the said pledged ornaments and also to repay the loan incurred from one Narayan Das of Chandar Bazar, the land was being sold. It was further recited that from ou of the said consideration of Rs. 600/-, Rs. 200/- was adjusted towards;
the redemption of the pledged ornaments of Kokila and Sana. The rest Rs. 400/- was paid by their brother Khetra Sahu and uncle Ratan Sahu who were in a better position at that point of time.
12. In Paragraph- 15 of the evidence of D.W. 1, i.e., the present appellant No. 1, there is an admission that the suit properties are the ancestral properties and Gouri was heavily indebted. In Paragraph-17, it is further stated that the mother of Dinabandhu has never cultivated the said land. So, that the value of the land would be Rs. 200/- by then, as claimed by respondent No. 1, has not been challenged by the present appellants. Further, the evidence of D.W. 1 is contrary to the recitals made in Ext. A. In paragraph - 16 of his evidence he has stated that the said daughters-in-law sold away their ornaments and paid the consideration money, whereas the recital in Ext. A goes to show that as Rs. 200/- was adjusted towards redemption of the pledged ornaments and cash of Rs. 400/- was paid by the brother and uncle of the vendee -daughters-in-law. Apart from that, Ext. 14, a registered sale deed dated 5.9.1944, would indicate that Gouri Sahu, after executing the aforesaid document in Ext. A in the year 1944, has again sold away a portion of the said property measuring Ac. 1.09 decimals in favour of Khetramani Dei. The genuineness of Ext. 14 goes unchallenged as subsequently the said Khetramani Dei has sold the said property to defendant No. 13. This clearly indicates that Ext. A has never been acted upon, otherwise Ext. 14 would not have been executed by Gouri Sahu, who was the vendor in respect of the self-same property under Ext. A. A perusal of Ext. 14 shows that Gouri Sahu was the vendor, who was in uninterrupted possession of the said land till execution of the sale deed, and for legal necessity in order to repay some loans, the aforesaid property was being sold. Therefore, a combined reading of all these documents establishes that Ext. A is a nominal and collusive document and it was executed without due consideration. The document was never acted upon and it was created for avoiding the creditors of Gouri Sahu. Such documents cannot have binding effect on the plaintiffs.
13. In this case, though several issues were raised, but the moot questions which decide the fate of the appeal are as follows :
(a) Whether plaintiff No. 1, i.e., the present respondent No. 1 is the son of Gajendra as claimed by him or he is the son of Chintai ?
(b) Whether Ext. A reveals any legal necessity for sale of the land ?
14. In view of the discussions made in the foregoing paragraphs, I concur with the findings of the Court below on the above questions raised by the appellants. This being the position, I do not feel any necessity to delve into the other points.
15. In the result, the appeal is dismissed being devoid of any merit. Parties to bear their own costs.