Orissa High Court
Duryodhan Sahu .Since Dead. Through ... vs Janmajaya Sahu And Others on 16 August, 2017
Author: A.K. Rath
Bench: A.K. Rath
HIGH COURT OF ORISSA: CUTTACK
S.A. No.21 of 1988
From the judgment and decree dated 13.10.1987 and 23.10.1987
respectively passed by Sri K.C. Panda, learned Addl. District Judge,
Sambalpur in T.A. No.21/11 of 1984 reversing the judgment and
decree dated 30.3.1984 and 7.4.1984 respectively passed by Sri
P.B. Barik, learned Subordinate Judge, Deogarh in T.S. No.24/83.
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Duryodhan Sahu (since dead)
through L.Rs. and others ............... Appellants
---versus--
Janmajaya Sahu and others .................. Respondents
For Appellants : Mr. S.K. Samantaray, Advocate
For Respondents : Mr. S.K. Pattnayak, Advocate
JUDGMENT
P R E S E N T:
THE HON'BLE DR. JUSTICE A.K. RATH
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Date of Hearing :04.08.2017 │ Date of Judgment: 16.08.2017
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Dr. A.K. Rath, J.Plaintiff is the appellant against a reversing judgment in a suit for partition.
02. The following genealogy would show the relationship of the parties.
Baji (died 1970)
Brundaban Duryodhan (plaintiff)
Janma Kishori Murali Lochan
2
03. According to the plaintiff, the common ancestor Baji Sahu had lands at village Purunagarh and Sanabaliposhi. Schedule 'A' land was acquired in the name of defendant no.1 with the aid and assistance of the joint family fund. When the dissension cropped up in the family, the properties were partitioned in February, 1959 by the village gentries. Schedule 'A' property along with other ancestral properties were divided into two equal shares. Since then, schedule 'A' properties were possessed by the parties separately without any partition by metes and bounds. In the year 1981, the defendant no.1 stacked claim over 'A' schedule properties. According to the plaintiff, he is entitled to half share. With this factual scenario, he instituted the suit.
04. The defendants entered contest and filed written statement. They pleaded inter alia that schedule 'A' land was not acquired with the aid and assistance of joint family fund. The same was acquired by the defendant no.1 after partition. In the year 1959, the Panch members partitioned the joint family properties. Since then, each of the brothers was living separately in mess. The plaintiff had not been allotted any share out of schedule 'A' land. The defendant no.1 was in possession of the same throughout. It was further pleaded that the suit for partial partition is not maintainable.
05. On the interse pleadings of the parties, learned trial court struck twelve issues. Both the parties led evidence, oral and documentary, in support of their cases. Learned trial court decreed the suit preliminarily and allotted half share to the plaintiff in the schedule 'A' land. Assailing the judgment and decree, the defendants filed T.A. No.21/11 of 1984 before the learned Additional District Judge, Sambalpur. Learned appellate court came to hold that there was a partition of joint family properties between the 3 plaintiff and defendant no.1. The plaintiff had admitted in the evidence that the properties were partitioned in two equal shares. The same was reduced into writing in presence of his father and other local gentries. The plaintiff, defendant no.1 and panch members signed on the same. The recitals of partition deed, Ext.5/C shows that there was complete partition of the joint family properties including schedule 'A' property. The factum of previous partition is also crystal clear from the document vide Ext.E/6 signed by the parties. The recitals of Ext.E/6 shows that since there was quarrel between the brothers over their threshing floor, the same was divided into two equal shares and each brother was allotted a share. Further the panch faisala dated 21.6.62 Ext.F/1 shows that on the request of Baji Sahu some lands were allotted to defendant no.1. It further held that there was complete partition of all joint family properties including schedule 'A' properties between the parties. Thus the suit for partial partition is not maintainable. Held so, it allowed the appeal.
06. The second appeal was admitted on 13.7.1988 on the following substantial question of law.
"Whether on the pleading of the plaintiff that there has been no partition and of the written statement that the property in dispute is self acquisition not liable for partition there was scope for a finding of previous partition ?"
07. Heard Mr. S.K. Samantary, learned counsel on behalf of Mr. S.P. Mishra, learned Senior Advocate for the appellants and Mr.S.K. Pattnayak, learned counsel on behalf of Mr. P.K. Pattanaik, learned Senior Advocate for the respondents.
08. Mr. Samantaray, learned counsel for the appellants submitted that there was a partition in the joint family properties. The same was reduced into writing. Schedule 'A' properties were 4 acquired by defendant no.1 with the aid and assistance of the joint family fund. The same is the joint family property. The property was not partitioned between the parties. There was a clause in the partition deed that after death of father, the same would be partitioned between the parties. He further contended that the joint family had sufficient fund by the time when the suit property was purchased. Learned appellate court is not correct in holding that there was partition of schedule 'A' properties. He further contended that initial burden lies upon the person who claims that the joint family has sufficient nucleus to acquire the joint family property with the aid and assistance of joint family fund and labour as effort. Thereafter the onus shits to the opponent who claims that the property has been acquired independently out of self acquisition and the same is independent of joint acquisition. The plaintiff proved his case that the joint family had sufficient nucleus by the time when the suit property was purchased. Learned trial court has rightly come to a conclusion that the suit property is joint family property. The suit land was also the subject matter of partition along with the other properties of the joint family. However, there was a condition in the Panchayat faisala nama of the year 1959, Ext.5/C that the suit property shall be partitioned after the death of their father. In view of such condition, it cannot be said that the said property had been partitioned between the parties. Rather the same was left open for the parties to be given effect to a later stage. The finding of the learned lower appellate court to the extent that there was previous partition is perverse and illegal. When the defendant himself admits that the recital of the Panchayat faisala nama is correct, under such circumstances, there should not be any course open to the defendant to challenge or question a part of the recital of such document, saying that the same is incorrect. Hence, there was no 5 previous partition in respect of such particular property and therefore there is no question of reopening of the partition as held by the learned lower appellate court. He further contended that there may be a severance of joint family, but the joint family properties may not have lost its joint character as the same still remains under joint and the same can be divided/partitioned in future either through amicable arrangement or through metes and bounds. Further the joint family may also retain some of the properties for future partition. He further contended that partial partition in certain circumstances is also maintainable in the event certain properties were left out from the subject matter of partition for the welfare of the family and for the purpose of legalizing the inequal distribution of the properties. The defendant has not produced any relevant documents in order to prove his case regarding the self acquisition of the suit land in question. He relied on the decision of the apex Court in the cases of Kashinathsa Yamosa Kabadi, etc. vs. Narsingsa Bhaskarsa Kabadi, etc., AIR 1961 SC 1077, Kalyani (dead) by L.Rs. vs. Narayanan and others, AIR 1980 SC 1173 and this Court in the cases of Brajananda Pradhan vs. Sachidananda Pradhan and others, AIR 1990 Ori. 29 and Biswanath Chowdhury and others vs. Shyam Sundar Chowdhury and after him Narayan Chowdhury and others, 1993 (I) OLR--249, Giridhari Rautray and Prahallad Rautray vs. Sarat Chandra Rautray and Netamani and 3 others, 1996 (II) OLR--649.
09. Per contra, Mr. Pattnayak, learned counsel for the respondents submitted that there was complete partition of properties including the suit schedule properties by metes and bounds in the year 1959. The same attained its finality. Referring to Article 327 of Mulla Hindu Law (21st Edition of Mulla Hindu Law), he submitted that after a partition is effected, if some of the properties 6 are treated as common properties, it cannot be held that such properties continued to be joint properties. The plaintiff is estopped to bring the present suit for partial partition. To buttress his submission, he relied on the decision of the apex Court in the case of Kesharbai @ Pushpabai Eknathrao Nalawade (D) by L.Rs. and Anr. Vs. Tarabai Prabhakarrao Nalawade and Ors., AIR 2014 SC 1830.
10. Before proceeding further, it is apt to refer the decisions cited at the Bar. In Kashinathsa Yamosa Kabadi, etc. (supra), the apex Court held thus:
"xxx xxx xxx It is always open to the members of a joint Hindu family to divide some properties of the family and to keep the remaining undivided. By the reference to the Panchas, the parties ceased to be members of the joint Hindu family. If thereafter the assets of the family were divided and that division was accepted by the parties, the properties reduced by the parties to their possession must be deemed to be of the individual ownership of the parties to whom they were allotted, and the remaining properties as of their tenancy-in-common.
xxx xxx xxx"
11. Brajananda Pradhan (supra) is distinguishable on facts. In Biswanath Chowdhury and others (supra), the Division Bench of this Court had the occasion to consider the properties covered by the deed of Sevasamarpana Patra which stood recorded in the name of the deity was the subject matter of consideration. The said decision is distinguishable on facts. In Giridhari Rautray and Prahallad Rautray (supra), the question arose after vesting intermediary estate if a land is settled in favour of one of the co- sharers, whether the same will enure to the benefit of other co- sharers. It was held that any settlement of property in favour of a member of that family except otherwise proved, would enure to the 7 benefit of all the co-sharers. The said case is also distinguishable on facts.
12. In Kesharbai @ Pushpabai Eknathrao Nalawade (D) by L.Rs. and Anr. (supra), the apex Court held that the burden of proof that certain property was excluded from the partition would be on the party that alleges the same to be joint property.
13. There is no quarrel over the aforesaid proposition of law. The sheet anchor of Mr. Samantaray's submission is the unregistered deed dated 15.2.1959. Counsel for both the parties relied on the same. According to Mr. Samantaray, learned counsel for the appellants, schedule 'A' property had not been partitioned. There was a clause in the partition deed that after death of father, the same would be partitioned between the parties. Countering the submission of Mr. Samantaray, Mr. Pattnayak, learned counsel for the respondents submitted that all the properties had been partitioned between the parties. There is no such clause in the partition deed.
14. On a cursory perusal of the deed vide Ext.5/C, it is evident that the same was not registered. Under Sec.17 of the Registration Act, partition deed requires registration. The unregistered deed can be utilized for the collateral purpose. The relevant clauses of the partition deed are extracted below:
"All the lands or immovable properties of Purunagada and Sanabaliposhi mouza, recorded in the name of Baji Sahu, shall be divided into two equal shares between Brundaban and Duryodhan Sahu for cultivation purpose and after the death of Baji Sahu, they will get it recorded to their names as per rule. It is to be stated here that the lands acquired through permission in the name of Brundaban Sahu at Mahanipur and Golakadhanda shall be divided equally between the two brothers."
15. The schedule of the property has not been mentioned. The clause in the deed provides that the plaintiff and defendant no.1 8 shall cultivate the properties situated in Purunagada and Sanabaliposhi in equal share. After death of Baji Sahu, they shall record the same in their names. The property situated at Mahanipur and Golakadhanda standing in the name of Brundaban Sahu, defendant no.1 shall be divided equally between the two brothers. By stretch of imagination, it can be said that Ext.5/C is a partition deed.
16. The irresistible conclusion is that there was no partition of the joint family property between the parties by metes and bounds. Each of the parties was in possession of the joint family property including schedule 'A' property according to their convenience.
17. In the result, the appeal is dismissed. No costs.
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Dr. A.K. Rath,J.
Orissa High Court, Cuttack The 16th August, 2017/Basanta