Orissa High Court
Surendra Kumar Patra And Ors. vs Arjun Charan Patra And Ors. on 14 May, 1992
Equivalent citations: 1992(II)OLR545
Author: A. Pasayat
Bench: A. Pasayat
JUDGMENT G.B. Pattnaik, J.
1. The order of the Consolidation Commissioner, annexed as Annexure 3, is being challenged by the petitioners in this writ application.
2. The disputed property appertains to Hal Khata Nos. 107, 16, 117 and Anabadi Khata No. 1299. Nabaghan, the common ancestor; had two sons, Baishnab and Adwait. Baishnab's son Surendra is petitioner No. 1 and Surendra's sons are petitioners 2, 3 and 4. Adwait's son Arjun is opp. party No. 1 and Arjun's wife. Ushamani is Opp.party No 2 and their children are opp. parties 3 and 4. Petitioners' case in a nutshell is that in 1945 Baishnab without the consent of his son Surendra executed a deed of gift in respect of the disputed property which was the joint family property in favour of opp. party No, 1 and his brother Ramesh. It is the further case that notwithstanding the gift, petitioner No. 1 and his family members continued to remain in possession over the property and when the consolidation operation started in the village, the petitioners . filed objection to record their names as they are the legal heirs of Baishnab and have succeeded to the entire joint family property of Baishnab and his children. It was also pleaded that the so called gift by Baishnab in favour of Arjun and Ramesh was void. The Consolidation Officer allowed the objection by order dated 11-8-1982, annexed as Annexure-1 and directed that the petitioners should be recorded in respect of the disputed property, Opp. parties 1, 2 and 4 being aggrieved by the said order preferred an appeal before the Deputy Director of Consolidation but the appeal was dismissed by order dated 21-7-1983, annexed as Annexure-2. The said opposite parties carried the matter in revision. The Commissioner having allowed the revision by his order dated 18-12-1986, annexed as Annexure-3, the petitioners have moved this Court.
3. Mr. Das appearing for the petitioners raises three contentions in assailing the order of the Consolidation Commissioner namely :
(i) The gift of the joint family property by the Karta without the consent of the other coparceners is void and the gift being void dons not confer any right on the donees and consequently opposite parties do not derive any right, title and interest on the basis of the gift.
(ii) The Commissioner committed' an error in holding that the claim is barred by limitation under Art. 109 of the Limitation Act since the said provision does not apply to the case in hand and
(iii) The finding of possession of Arjun and Ramesh is based on no evidence and, at any rate, a case of adverse possession , not having been pleaded, no title accrues in favour of Arjun and Ramesh even if they are found to be in possession and the Commissioner's order is vitiated on that score. Mr. Swamy appearing for the opposite parties submits that opp. party No. 1 Arjun is non else than the natural brother of petitioner No. 1 who was adopted to Adwait. The gift deed was executed both by Baishnab and Adwait & further in a partition between Arjun and Ramesh the properties including the gifted property were partitioned and both Arjun and Ramesh have sold parcels of the lands that had fallen to their respective shares and petitioner No. 1 himself has purchased some of these lands. This indicates that the gift was duly acted upon. Accoding to Mr. Swamy, the father of Hindu Joint Family has the right to make a gift of a reasonable portion of the joint family property in favour of son, daughther etc., and, therefore there is no illegality in the gift deed executed by Baishnab in favour of Arjun in respect of the disputed joint family proparty. Mr. Swamy further contends that the finding of possession of the revisional authority cannot be interfered with by this Court and if the gift is held to be void then opposite parties have acquired title by virtue of their long possession and, therefore, the order of the Commissioner cannot be interfered with.
4. In view of the rival submissions made at the Bar and undisputedly the property being the ancestral property wherein Surendra. petitioner No. 1, gets right by birth, the first question that arises for consideration is whether Baishnab, the father, had the right to gift the joint family property in favour of Arjun, who happens to be the donor's natural son and was given in adoption to the donor's brother Adwait. Mr. Das, the learned counsel for the petitioners relying upon Art. 258 of the Mulla's Hindu Law contends that -no coparcener can dispose of his undivided interest in coparcenary property by gift and such transaction being void, there is no estoppel or other kind of personal bar which precludes the donor from asserting his right to recover the transferred property. He has, however, right to make a gift with the consent of other coparenners. Since consent of Surendre had not been obtained white executing the gift, the gift is void. The expression "no coparcener" used in Art. 253 does not include the father as a Hindu father has special powers with regard to alienation of coparcenary property. Aft. 256 of Mulla's Hindu Law indicates that a Hindu father as such has special powers: of alienating coparcenary property which no other coparcener has end in exercise of those powers he may make a gift of ancestral immovable property to the extent mentioned in Art. 226. Art. 226 clearly indicates that a Hindu father has the power to make a gift within reasonable limits of ancestral immovable property, but it must be by an act inter vives. The Supreme Court has examined the question in the case of Guramma Bhratar Chanbasappa Deshmukh and Ors. etc. v. Mallappa Chanbappa and Anr. etc., AIR 1964 Supreme Court 510 and has held that it was competent for a Hindu father to make a gift of immovable property to a daughter if the gift is of a reasonable extent having regard to the properties held by the family. This Court also in the case of Tara Sahuani and Ors. v. Raghunath Sahu and Anr., AIR 1963 Orissa 51, upheld the power of a Hindu father in making a gift of ancestral immovable property if the extent of gift is reasonable. In this view of the matter and in the absence of any finding of any forum below that the gift was of an unreasonable extent of joint. family property and the same having been made in favour of the donor's: natural son who was given in adoption, we are unable to accept the contention of Mr. Das for the petitioner's that the gift was void. That apart, at the time when the gift was executed, Surendra, petitioner No. 1 was only seven years' old. The question of his consent would not arise as he was not in a position to give consent. A minor obviously could not have given consent nor his consent could have been obtained. In the aforesaid premises, the gift deed executed by the father cannot be held to be void. The contention of Mr. Das on that score, therefore, cannot be accepted.
Further the gift having been' made by the father at a point of time when consent of Surendra could not have been obtained in law, the said gift would be voidable and not void. The decision of the Supreme Court reported in AIR .1964 Supreme Court, 510 wherein alienation of joint family property by the managing member of the family while another member was in existence in the womb of the mother at the time of alienation, was considered and it was held that the alienation would be voidable at the Instance of tire existing member or the member who was in the womb' but was subsequently born, unless the gift is otherwise valid having been made for a pious 'purpose to a limited extent of the joint family property, would apply with full force to the case in hand and, therefore, the gift would be voidable and has to be voided. The consolidation authorities have no jurisdiction to set aside any gift deed and in that view of the matter also the gift deed could not have been ignored by the consolidation authorities. The Commissioner, therefore rightly approached the problem and accepted the gift which has been acted upon since 1945. In view of the aforesaid conclusion, the order of the Commissioner, remains unassailable and cannot be interfered with.
5. Coming to the contention of Mr. Das with regard to the applicability of Section 109 of the Limitation Act, Section 109 applies to a suit which is filed to sat aside an alienation made by father of the ancestral property. Surendra is aggrieved by the alienation made by his father by way of gift deed in respect of the disputed property. Such a case, therefore, is sparely covered by Art. 109 of the Limitation Act and the Commissioner has not committed any error in coming to the said conclusion. The contention of Mr. Das on this score cannot be accepted. .
6. Coming to the question of possession, the Consolidation Commissioner has come to the finding that Arjun and Ramesh are in possession of the disputed property and he has recorded the said conclusion in the context of the question whether if the gift is held to be void, the donee can acquire title by way of prescription. The question of possession is a pure question of fact and the finding thereon cannot be interfered with by this Court in exercise of jurisdiction under Art. 226 of the Constitution. The Consolidation Officer had framed a positive issue on the question of adverse possession and after examining the relevant materialst has recorded his findings thereon. In that view of the matter, there is no substance in the contention of Mr. Das that there was neither any material nor any basis for coming to a conclusion on the question of adverse possession. We accordingly reject this submission of Mr. Das appearing for the petitioners. We have also carefully scrutinised he revisional order of the Commissioner and we do not find any error of law apparent on the face of it so as to be interfered with by this Court in exercise of extraordinary jurisdiction under Art. 126 of the Constitution.
7. In the result, the writ application fails and is dismissed, but in the circumstances, there would be no order as to costs.
A. Pasayat, J.
8. I agree.