Orissa High Court
Biswanath Nayak And Ors. vs Parbati Bewa And Ors. on 14 August, 2000
Equivalent citations: 2000(II)OLR629, 2001 A I H C 1220, (2001) 2 CURCC 274 (2000) 2 ORISSA LR 629, (2000) 2 ORISSA LR 629
Author: P.K. Misra
Bench: P.K. Misra
JUDGMENT P.K. Misra, J.
1. Defendants 1 to 5 have filed this appeal. Plaintiff-respondents filed the suit for partition of "A" Schedule and "B" Schedule properties. The genealogy is as follows :
Banka Naik | Bada Tanka Naik ___________________________|________________________________ | | | Bhagabata Bharat Fakir (w) Jasoda _____________________________|____________________________ | | | | Raghunath Chakradhar Jema Biswanath (w) Baiani (P2) (w) Budhei (D-7) (D-l) (Transposed as D-8) (D-6) | _______|_____________ | | | | | | | Kuntala Hari Bali Ahalya | (P-3) (w) (P-4) (P-5) | Parbati | (p.l) __________________________________________________|____ | | | | Balabhadra Shyama Damodar Nrusingha (D-2) Sunder (D-4) (D-5) (D-3) Subsequently, Baiani (original plaintiff No. 2) was transposed as defendant No. 3
2. According to the plaintiff's case, "A" Schedule properties were the ancestral joint family properties of the parties and had been allotted to Bharat Naik in a partition between Bharat and his two brothers. "B" Schedule properties were purchased from out of the income of the joint family lands as well as joint income from the profession of Bharat and his sons who are weavers by caste. Even though there was no partition between Bharat and his sons, different gift deeds in the names of defendants 2 to 5 were obtained from Bharat and such gift deeds being in respect of joint family properties were not binding on the parties.
3. Defendants 1 to 7 filed a joint written statement challenging the allegations made in the plaint. It was claimed that "A" Schedule properties were the ancestral as well as separate properties of Bharat and "B" Schedule properties had been purchased by Bharat from out of his own income, as apart from having his profession as a weaver, he was working as a Mechanic and earning some money. It was further claimed that in the year 1948, there was a partition between Bharat and his three sons. Out of 24 'maans' of joint family properties, six 'maans' were allotted to Biswanath (defendant No. 1) and in lieu of the shares of Raghunath and Chakradhar, Bharat had given each of them Rs. 500/-and a Loom and retained possession of 18 maans of land. The gift deeds were validly executed to the knowledge of Chakradhar, but during his life-time, Chakradhar never challenged the validity of the gift deeds and only after death of Chakradhar, a false case has been foisted.
4. Plaintiff No. 2, who was subsequently transposed as defendant No. 8, filed a written statement supporting the case of other defendants.
5. The trial Court found that "A" Schedule properties consisted of the self-acquired and ancestral properties of Bharat and "B" Schedule properties are the joint properties of all the parties and were not the self-acquired properties of Bharat. The plea of partition between Bharat and his sons was disbelieved. The properties being joint family properties could not have been gifted away by Bharat and as such the gifts were not binding. Accordingly, a preliminary decree for partition was passed in respect of "A" Schedule as well as "B" Schedule properties.
6. The learned counsel appearing for the appellants first contended that "B" Schedule properties which were admittedly acquired in the name of Bharat Naik cannot be treated as joint family properties. Before considering this aspect, a wrong conception regarding the nature of "A" Schedule properties is required to be cleared. It was claimed by the defendants that "A" Schedule properties consisted of ancestral and separate properties of Bharat. The trial Court concluded that "A" Schedule properties consisted of separate and ancestral properties of Bharat Naik. It is not disputed that "A" Schedule properties had been allotted to Bharat at the time of partition between Bharat and his two brothers. Property allotted to a member of the joint family is considered to be joint family property so far as such allottee and his sons are concerned, though vis-a-vis others such property becomes the separate property of such allottee. The trial Court without keeping in view the aforesaid principle of law has loosely characterised the "A" Schedule properties which had admittedly fallen to the share of Bharat as his ancestral and separate properties. There cannot be any doubt that so far as Bharat and his sons are concerned, the property obtained by Bharat in partition became joint family property so far as he and his sons are concerned. In other words, it must be held that "A" Schedule properties were the ancestral and joint family properties of Bharat and his sons and grandsons.
7. The plaintiffs claimed that apart from "A" Schedule properties, there was joint family business as weavers' and from out of such income, properties in "B" Schedule had been purchased. Though there is some material on record to indicate that Bharat and his sons were weavers by caste and were engaged in the business of selling clothes, there is no material on record to come to a conclusion that, in fact, it was their joint family business. That apart, there is specific evidence on record including admission of some of the witnesses examined on behalf of the plaintiffs to the effect that Bharat was working as a Mechanic and earning some income, though there is dispute relating to exact extent of such income. For example, P.W.I has stated that Bharat was working at times for one month or two months in a year in repairing sugarcane crusher. Similar statement had been made by P.W.3. D.W.8, the brother of Bharat, has stated that Bharat served under Chiranjilal for three years on monthly pay of Rs. 30/- which became Rs. 300/- ultimately. Similarly, Biswanath, defendant No. 1, while being examined as D.W.9 stated that his father was serving under Chiranjilal as a Mechanic and was earning Rs. 30/-which was enhanced to Rs. 300/- per month. Such statements of D.Ws. 8 and 9 having not been shaken in cross-examination and in view of admission of some of the plaintiffs' witnesses that Bharat was working as a Mechanic, it is reasonable to conclude that Bharat had his own separate source of income. Besides, as already indicated, Bharat was carrying on profession as a weaver. Even though admittedly Bharat had about five acres of land including some homestead properties, practically there is no evidence to indicate about the income from such land and the expenditure so as to come to any conclusion regarding any surplus income from the joint family properties. It is, of course, true that Bharat was Karta of the family. However, in the absence of any specific evidence of any surplus from joint family properties and in view of specific evidence that Bharat had substantial separate source of income, no presumption can be raised that the properties purchased by Bharat in his own name had been purchased out of the joint family property. In such view of the matter, differing from the conclusion of the trial Court, I conclude that plaintiffs have failed to prove that "B" Schedule properties were the joint family properties and such properties must be taken to be the self-acquired properties of Bharat.
8. The learned counsel for the appellants then submitted that there was a partition between Bharat and his three sons in the year 1945 and at such partition, six maans of land had been given to Biswanath (defendant No. 1) and eighteen maans of lands were retained by Bharat and one loom and Rs. 500/- each were given to Raghunath and Chakradhar. In other words, it is contended that "A" Schedule properties had already been partitioned and question of seeking further partition did not arise. The trial Court had negatived such plea on the ground that there is no convincing materials on record to prove that there was any previous partition between Bharat and his three sons. The evidence relating to partition between Bharat and his three sons appears to be quite shaky and contradictory. It is, of course, true that defendant No. 6 being examined as D.W.7 has stated that there had been partition between Bharat and his three sons and prima facie such statement being contrary to her own interest can be considered as an admission. However, there are certain materials on record which indicate that the parties had remained joint and were enjoying the property jointly and there had been no partition. Defendant No. 1 examined as D.W.9 has stated in evidence that the wives of Raghunath and Chakradhar were being maintained by him and were residing in the suit rooms. Similarly, defendant No. 6 examined as D.W.7 has stated that she was being maintained by defendant No. 1. She has further stated that the wife of Raghunath was being maintained out of the suit properties after death of Raghunath and she was also residing in the same house. These witnesses have stated that no Bhadralog had attended the partition. On the other hand, D.W.8, who is the brother of Bharat, claims to have attended the partition as a Bhadralog. If there had been a partition between Bharat and his three sons, it is not understood as to how after death of Raghunath, his wife would still be maintained by Bharat and Biswanath (defendant No. 1), the surviving son of Bharat, out of the joint properties under the possession of Bharat. Similarly, after death of Chakradhar some times in the year 1948, there would be no occasion for his widow to be maintained from out of the properties under the possession of Bharat and Biswanath. Such statements of D.W.7 and D.W.9 clearly indicate about the joint possession in respect of joint family properties. Thus, apart from the evidence of P.Ws. 1 to 4, statements made by some of the witnesses including defendant No. 1 himself and defendant No. 6 disprove the story of partition between Bharat and his sons. It is stated that in the partition, Rs. 500/- each had been given to the two sons Raghunath and Chakradhar. However, some of the defendants' witnesses contradicted such statement by saying that Rs. 300/- each had been paid. Besides, there is contradiction as to whether such alleged partition had taken place in presence of Bhadralogs or otherwise. Law presumes against separation. There is a presumption that members of joint family continue as joint and such presumption is stronger in respect or brothers. Evidently, it would be very difficult to visualise that during life-time of Bharat, his three sons had separated from their father. For the aforesaid reasons, I am unable to accept the submission of the appellants that there had been partition between Bharat and his three sons.
9. Once it is found that "A" Schedule properties were the joint family properties and there was no partition in respect of "A" Schedule properties, the parties would be entitled to claim partition. However, the question of validity of the gift deeds is to be considered before deciding about the extent of the shares of the parties. The trial Court did not give any effect to the deeds of gift on the ground that those were in respect of joint family properties and as such invalid. It has been now concluded that though "A" Schedule properties were the joint family properties, "B" Schedule properties were the separate properties of Bharat. The four deeds of gift under Exts. A, B, C and D were in respect of some of the properties described in "A" Schedule as well as "B" Schedule properties. As "A" Schedule properties have been found to be joint family properties, any deed of gift in respect of such "A" Schedule property cannot be binding on other members of the joint family. However, the question arises whether such gift deeds can be held to be valid in respect of separate property of Bharat as per "B" Schedule properties.
10. The learned counsel for the contesting respondents submitted that there is evidence on record to show joint possession of all including Bharat even after the deeds of gift were executed and as such it should be held that the gift deeds had not been acted upon. A gift in order to be valid must be by a registered document and duly attested and should be accepted during the life-time of the donor. Though the plaintiffs had raised doubt regarding the due execution of the gift deeds, the evidence on record including that of the scribe and the attesting witnesses clearly establishes the due execution of the gift deeds. The only question is whether the gifts had been accepted during the life-time of the donor. There is no dispute that the donees, namely defendants 2 to 5 were minors at the time the gift deeds were made by their grandfather. It has to be remembered that defendants 2 to 5 were the grandsons of Bharat and it is not unnatural for a grandfather to have special affection and consideration for the grandsons. Therefore, the gift deeds cannot be characterised as unnatural. Since defendants 2 to 5 were minors acceptance of deeds of gift by their father-defendant No. 1 can be held to be valid acceptance. It is, of course, true that defendant No. 1 on his own showing was not present at the time of execution of the gifts. However, it is not necessary that the gifts must be accepted immediately. The gifts can be accepted during life-time of the donor. The gift deeds have been produced by contesting defendants' including defendants 1 to 5. Merely because the parties remained in joint possession, it cannot be assumed that the gifts had not been accepted during life-time, as acceptance of the gift deeds can be considered to be valid acceptance, particularly when the donor, the donees are close relations and were living together. In this connection, the decisions of this Court reported in AIR 1964 Ori. 212 (Adhikari Narayanamma v. Adhikari Thabitinaidu) and AIR 1971 Ori. 49 (Vaikuntam Mamikyamma v. Puppala) are quite relevant.
11. In such view of the matter, differing from the decision of the trial Court, I hold that the gift deeds are valid so far as they relate to the separate properties of Bharat. In other words, the gift deeds so far as they relate to properties in "B" Schedule are valid. However, the gift deeds are invalid in so far as "A" schedule properties are concerned.
12. In view of the aforesaid, the decree of the trial Court is required to be modified. So far as joint family properties as described in "A" Schedule are concerned, at the time of death of Raghunath, his interest in the said properties would devolve upon his heirs. At the time of his death, Raghunath had ¼th interest which devolved upon plaintiffs 1, 3 and 4 and original plaintiff No. 2 (subsequently transposed as defendant No. 8) in equal proportion. In other words, plaintiffs Nos. 1, 3, 4 and defendant No. 8 each had 1/16th share in "A" Schedule properties.
Similarly, ¼th share of Chakradhar had devolved upon defendant No. 6 by virtue of Hindu Women's Right to Property Act, 1937, which became her absolute property in view of Section 14(I) of the Hindu Succession Act. Thus, defendant No. 6 had ¼th share in "A" Schedule properties and Biswanath (defendant No. 1) had ¼th share. On death of Bharat. his ¼th share is to again devolve on the heirs in accordance with Section 6 of the Hindu Succession Act out of which the branches of Raghunath, Chakradhar, Jema (defendant No. 7) and Biswanath (defendant No. 1) would each get ¼th out of such ¼th share of Bharat. Thus, Jema would get 1/16th from out of "A" Schedule properties; Ahalya (plaintiff No. 5) would get 1/32nd share; Budhei (defendant No. 6) would be entitled to 1/16th plus 1/32; Biswanath (defendant No. 1) would be entitled to 1/16th plus 1/16th and similarly, heirs of Raghunath would be entitled to balance 1/16th. It appears that defendant No. 6 has died during pendency of the First Appeal leaving behind plaintiff No. 5 as the only legal heir. As such, the shares of defendant No. 6 would devolve upon plaintiff No. 5.
It appears that in "B" Schedule properties after deducting the properties already gifted under Exts. 1, 2, 3 and 4, the balance properties are available to be inherited by the heir. Such separate property of Bharat would be inherited by heirs of Raghunath; heirs of Chakradhar, Jema (defendant No. 7) and Biswanath (defendant No. 1) in equal proportion. In other words, each branch would have ¼th share in the balance property available from "B" Schedule. Needless to point out that defendants 2, 3, 4 and 5 shall have right over the gifted properties so far as they relate to "B" Schedule properties and they shall have no right over the gifted properties so far as they relate to "A" Schedule properties.
13. Subject to the aforesaid observations and directions, the First Appeal is allowed in part. There will be no order as to costs.