Hatanagar Ghose And Others vs Durgamani Ghose And Others on 17 February, 2023

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Orissa High Court

Hatanagar Ghose And Others vs Durgamani Ghose And Others on 17 February, 2023

1. This appeal, by the legal representatives (LRs) of the unsuccessful Plaintiff in Civil Suit O.S. No.50 of 1974-I (Late Dayanidhi Ghose) is directed against a judgement dated 23rd June 1998 passed by the learned Single Judge of this Court dismissing the Plaintiff's appeal F.A. No.41 of 1979.

2. The said F.A. No.41 of 1979 was in turn filed by Dayanidhi Ghose against the judgment dated 30th October, 1978 and a Decree dated 9th November, 1978 passed by the trial Court, i.e., the Subordinate Judge, Balasore in Civil Suit O.S. No.50 of 1974- AHO. No.34 of 1998 Page 1 of 15 I. The trial Court negatived the challenge by the Plaintiff to the validity of a partition deed dated 27th March 1962 (Ext. N) and the consequential division of the properties thereunder between the Plaintiff Dayanidhi Ghose and his brother Baina Ghose (Defendant No.1). The trial Court however accepted the plea of the Plaintiff that the properties mentioned in Schedule 'Ga' to the partition deed (Ext. N) were kept joint and were to be partitioned in equal shares between the Plaintiff Dayanidhi Ghose and his brother Baina Ghose (Defendant No.1). F.A. No. 41 of 1979 filed in this Court by Dayanidhi Ghose against the trial Court judgment was limited to questioning its rejection of the Plaintiff's challenge to the validity of the partition deed dated 27th March 1962 (Ext. N).

3. By the impugned judgment dated 23rd June 1998 dismissing F.A. No.41 of 1979, the learned Single Judge of this Court reversed the finding of the trial Court that the 'Ga' Schedule properties were joint family properties and held that they were the self-acquired properties of Defendant No.1. The learned Single Judge held that the 'Ga' Schedule properties were not liable to be partitioned between the Plaintiff and Defendant No.1. That is how this appeal has been filed by the LRs of the original Plaintiff.

4. The principal question that arises in this appeal is whether a portion of the properties standing in the name of a male Hindu (Defendant No.1) who was the Karta of a joint Hindu family were his self-acquired properties or acquired under the joint family nucleus?

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5. The background facts leading to the filing of the suit were that Baina and Dayanidhi Ghose were the two children of the second wife of the son of late Nandi Ghose who was their common ancestor. Of the two sons Pahali and Dhinu, the latter branch was extinct. Pahali had two wives. Ganesh was the son of the first wife and Baina (Defendant No.1), Nandu and Dayanidhi (the Plaintiff) were the children of the second wife. Ganesh died leaving four sons Abhinash, Krutibash, Kailash and Srinibas.

6. Kailash died leaving behind his widow Dhira, Defendant No.5 and daughter Jema alias Katibudhi (Defendant No.6). Baina's sons were Subodh (Defendant No.7), Jhadeswar (Defendant No.8), Banishidhar (Defendant No.9) and Isaneswar (Defendant No.10). Nandu died leaving his wife Padmabati, who also died. Nandu's branch thereby became extinct. Baina Ghose was the karta of the joint Hindu family consisting of himself and his brother Dayanidhi Ghose.

7. The case of Dayanidhi Ghose in the suit O.S. No.50 of 1974-I was that in an earlier partition, Ganesh took Ac 4.40 dec of land and was separated from the joint family. The property described in Schedule 'Kha' of the plaint were ancestral and those in "Ga" were the properties acquired in the name of Defendant No.1 as karta of the joint family out of the joint family nucleus. Earlier Padmabati, the widow of Nandu, had filed a partition suit i.e., O.S. No.53 of 1959 and by compromise the suit was decreed with AHO. No.34 of 1998 Page 3 of 15 her getting Ac. 1.88 dec of land in schedule 'Uan', cash of Rs. 4,000 and paddy.

8. The further case of the Plaintiff was that by virtue of a partition deed dated 27th March, 1962, Baina Ghose took a larger share of the joint family properties than what he was entitled to. According to the Plaintiff the properties in Schedule 'Ga' measuring Ac 4.000, although stands recorded in the name of Defendant No.1 Baina Ghose, were in fact purchased out of the joint family nucleus and were therefore kept 'joint'. According to the Plaintiff the 'Ga' Schedule properties were liable to be partitioned between him and Defendant No.1.

9. After pleadings were completed in the suit, the trial Court framed the following issues for consideration:

"1. Whether the registered partition deed dated 27.3.62 is fraudulent illegal and not duly executed by the plaintiff?

2. Whether the 'Chha' schedule properties are the self acquired properties of the plaintiff?

3. Whether the plaintiff is entitled to the share claimed?

4. Has the plaintiff any right, title and interest over properties mentioned under lot Nos.36, 39, 40, 42 and 44 of 'Ga' schedule?

5. Are the properties in all lots of 'Ga' schedule except 18, 19, 23 are self acquired properties of deft. No.1?

6. Whether all the properties have been brought to the hotch pot?

7. Is the suit bad for non-joinder of parties?

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8. Is the suit maintainable in the present form?

9. Is there cause of action for the suit?

10. What relief, if any, the plaintiff is entitled to?"

10. Taking up the Issue Nos.1 to 5, the trial Court on analyzing the evidence held that there was a partition between the Plaintiff and Defendant No.1 in the year 1961 which was reduced to writing. The deed registered in 1962 (Ext. N) was "valid, duly executed and is not fraudulent or illegal". Some properties were left joint which were given in the 'Ga' schedule of Ext N. The trial Court noted that Defendant No.1, who could have given the best evidence about the said properties having been purchased by him and his sons in their own names and the source of funds being traced to his wife who got some properties as gift from her mother, "has not chosen to come to the witness box". His son, DW-1 had stated that the lands kept joint in the partition deed in the year 1962 had been partitioned in 1963. However, the trial Court noted that there was no document to that effect and "DW-2 does not say anything about it". DW-5 also could not say "if the Pala lands, which were kept joint in the partition of the year 1961, were partitioned between them". The trial Court then concluded as under:

"Therefore, in absence of clear proof of subsequent partition of the 'Ga' schedule lands of the registered partition deed Ext.N plaintiff is entitled to hold share from out of it. These issues are therefore answered accordingly."

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11. On Issue No.6, it was held that the four acres and odd lands purchased by the Plaintiff from the year 1963 to 1976 were not brought into the hotch pot. Issue No.7 was not pressed at the time of hearing. On Issue Nos.8 to 10, it was held that while the suit was maintainable, the Plaintiff had cause of action for claiming partition of those lands kept joint in Ext-N and was therefore, entitled to the relief of the partition of the lands in 'Ga' schedule of Ext-N. The operative order was that the Plaintiff was entitled to get half of the properties described in schedule 'Ga' of Ext-N of the registered partition deed and Defendant No.1 is entitled to the other half.

12. As noted earlier, aggrieved by the above decree and judgment to the extent that it declined the prayer of the Plaintiff for revisiting the partition deed (Ext-N), the LRs of the Plaintiff preferred FA No.41 of 1979 in this Court.

13. Given the limited challenge in the first appeal, the only issue before the learned Single Judge was whether Ext-N, viz., the partition deed dated 27th March 1962 was legal. There was no occasion, particularly since Defendant No.1 had not filed any appeal, for the learned Single Judge to consider in the appeal whether the properties in Schedule 'Ga' were the self-acquired properties of Defendant No.1. This Court notes that while summarizing the findings of the trial Court in para-5 of the impugned judgment, the learned Single Judge wrongly noted that the trial Court found "that the properties in schedule 'Ga' of the plaint are the self-acquired properties of Defendant No.1" when in AHO. No.34 of 1998 Page 6 of 15 fact the trial Court found that the 'Ga' schedule properties were not proved to be the self-acquired properties of Defendant No.1 and were therefore, liable to be partitioned.

14. This error led the learned Single Judge to erroneously formulate an issue in regard to the 'Ga' schedule properties. The two questions framed for consideration in the first appeal by the learned Single Judge read as under:

"(1) Whether the deed of partition, Ext.N is legal, valid and binding on the plaintiff and if this question is answered in affirmative, whether the plaintiff is entitled to reopen partition in respect of the very same properties; and (2) Whether the properties described in schedule 'Ga' of the plaint are the self-acquired properties of defendant No.1 or the same were acquired out of the joint family nucleus?"

15. While question (1) above did arise from the first appeal of the Plaintiff, question (2) did not. In the discussion on Question No.1, the learned Single Judge noted that in order to prove the execution of the deed of partition (Ext.N), Defendant No.2 was examined. His evidence could not be shaken in cross-examination. He confirmed that the deed was presented for registration and he identified the parties to the Sub-Registrar. It was accordingly held that the deed of partition was valid and binding on the Plaintiff. Since there was amicable division of the properties between the Plaintiff and the Defendant No.1, the Plaintiff was not entitled to reopen the partition.

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16. On Question (2), it was held by the learned Single Judge as under:

"It may be recalled, plaintiff an defendant no.1 effected partition of their properties under the deed of partition, Ext.N on 27.3.62. Assuming for the sake of argument that there was no partition between them and Ext.N was inoperative, it cannot be denied that the parties remained in separate mess and property at least from that day and enjoyed the properties separately without there being partition by metes and bounds. Out of the properties described in schedule 'Ga' of the plaint lot nos.28, 29, 30, 31, 32, 33, 34 and 39 had been purchased by defendant no.1 under various sale deeds (Exts. A/5, A/7, A/8, A/9, A/10, A/11, A/12, A/13, A/14 and A/15) much after execution and registration of the deed of partition Ext.N. Likewise defendant no.7, purchased lot nos.37 and 38 under the registered sale deed Ext.A/26 on 12.2.74 and he along with his brothers defendants 9 and 10 purchased properties in lot nos.40 and 41 under registered sale deeds Exts. A/24 and A/25 on 29.3.72 and 9.3.73. Since the family was separated by the time the aforesaid properties were acquired, plaintiff's claim that those had been purchased out of joint family nucleus cannot be accepted."

17. The learned Single Judge then referred to the stand of the Defendant No.1 in his written statement to the effect that the source of money for acquiring the 'Ga' schedule properties was the property given to his wife as dowry by her mother by way of a gift deed. The case of the Plaintiff, on the other hand, was that the 'Ga' schedule properties had been acquired out of the joint family nucleus. The learned Single Judge then observed as under:

"Since admittedly the sale deeds in respect of 'Ga' schedule properties stand in the name of defendant no.1, burden lies on the plaintiff to prove that those had been purchased by him as well as defendant no.1 out of their own income. This initial burden he has not discharged. He in his evidence has denied to have any knowledge as AHO. No.34 of 1998 Page 8 of 15 to how 'Ga' schedule properties were acquired. In paragraph 1 of his cross-examination he stated thus:

"xxx I also cannot say how 'Ga' schedule properties were acquired. I cannot say the total extent of property of my father. I cannot say what were the income from our ancestral land and what were expenses and what remained as surplus. xxx"

This being the evidence of the plaintiff, it cannot be said that 'Ga' schedule properties had been acquired by defendant no.1 out of joint family nucleus."

18. On the above basis, it was held by the learned Single Judge that the Plaintiff has no share in the properties in Schedule 'Ga' of the plaint which were the self-acquired properties of Defendant No.1. The appeal was accordingly dismissed.

19. This Court has heard the submissions of Mr. Avijit Pal, learned counsel appearing for the Appellants and Mr. Dwarika Prasad Mohanty, learned counsel appearing for the Respondents. Mr. Pal pointed out that there was a very limited scope of the appeal filed by the Plaintiff, viz., whether the Plaintiff was entitled to have the partition deed at Ext-N declared invalid and for a partition of those properties which had already been purportedly partitioned by the said deed? The Plaintiff had already succeeded as far as schedule 'Ga' properties were concerned. In other words, the trial Court had accepted the Plaintiff's plea that the 'Ga' Schedule properties were kept joint in Ext-N and had to therefore be partitioned between him and the Defendant no.1 in equal shares. With the Plaintiff already having succeeded in the AHO. No.34 of 1998 Page 9 of 15 said plea concerning the 'Ga' Schedule properties, and with the Defendant No.1 not having filed any appeal against the said finding of the trial Court, there was no occasion for the learned Single Judge to have reopened that question.

20. Mr. Pal further pointed out that Defendant No.1, who was in the best position to prove that he had acquired the 'Ga' schedule properties out of his own funds, did not step into the witness box. Further, the trial Court was not convinced with the evidence led by his sons to that effect.

21. On the other hand, Mr. Dwarika Prasad Mohanty, learned counsel appearing for the Defendants/Respondents submitted that the findings of the learned Single Judge that the Plaintiff had failed to discharge the burden of showing that the properties in Schedule 'Ga' were not the self-acquired properties of Defendant No.1, ought to be upheld by this Court. While he did not dispute that Defendant No.1 had not filed any appeal before the learned Single Judge to question the finding of the trial Court against Defendant No.1 in that regard, he submitted that the sale deeds were in the name of Defendant No.1 and his sons and, therefore, there was a presumption that they were self-acquired properties.

22. The above submissions have been considered. At the outset, it requires to be noticed that the trial Court in its judgment, partly decreed the suit in favour of the Plaintiff, i.e., the predecessor-in- interest of the Appellants. While the trial Court rejected the plea of the Plaintiff that the partition deed Ext-N was invalid, it AHO. No.34 of 1998 Page 10 of 15 accepted the plea of the Plaintiff that the 'Ga' schedule properties were joint and required to be partitioned, which is why the trial Court in the operative portion of the decree directed partitioning of the said 'Ga' schedule properties half each in favour of Defendant No.1 and the Plaintiff.

23. The important point to be noted is that the Defendant No.1 accepted the above decree of the trial Court. It is only the Plaintiff who filed an appeal in this Court and not the Defendant No.1. In the first appeal filed before this Court, it was clearly stated by the Plaintiff that the appeal is confined to questioning the trial Court judgment to the extent that the trial Court declined the prayer of the Plaintiff as regards the validity of the partition deed Ext-N.

24. At this stage, it must be noticed that the trial Court held the Plaintiff had in fact not prayed for setting aside the entire partition deed but that this did not materially affect the prayer of the Plaintiff for claiming partition of lands in schedule 'Ga' which have been kept joint. The Plaintiff obviously was not aggrieved by this part of the trial Court decree since it was in his favour. It had granted the relief of partitioning of schedule 'Ga' properties. If at all, it was Defendant No.1 who would have been aggrieved by that portion of the decree of the trial Court and yet Defendant No.1 did not question it.

25. As a result, there was no occasion for the learned Single Judge to have framed any question regarding the validity of the decree AHO. No.34 of 1998 Page 11 of 15 of the trial Court in so far as it required partitioning of the Schedule 'Ga' properties. Such an issue did not arise in the appeal filed by the Plaintiff, which was the only appeal before the learned Single Judge. It must be noted here that the specific finding of the trial Court was that in the absence of clear proof of subsequent partitioning of the 'Ga' Schedule properties, "Plaintiff is entitled to half share from out of it".

26. Consequently, the learned Single Judge fell in error in reopening the question whether the 'Ga' Schedule properties were the self-acquired properties of Defendant No.1 and proceeding to answer the said question in favour of Defendant No.1, thereby reversing the trial Court on this point, despite the fact that Defendant No.1 never questioned to it. Even before this Court, learned counsel for the Respondents/Defendants did not dispute that the Respondents never filed any appeal challenging the finding of the trial Court as regards the 'Ga' Schedule properties, which finding was in favour of the Plaintiff. Consequently, this Court is unable to sustain the impugned order of the learned Single Judge in so far as it holds that the 'Ga' Schedule properties are the self-acquired properties of the Defendant No.1 and, therefore, not available to be partitioned.

27. The question is whether a coparcener of a Hindu joint family has brought into the hotch pot self-acquired properties has arisen in several cases before the Courts. What is clear is that where a person claims that a property is self-acquired, the burden is on such person to prove that it is a self-acquired. In this case, it was AHO. No.34 of 1998 Page 12 of 15 Defendant No.1 who contended before the learned Single Judge that the 'Ga' Schedule properties were self-acquired. The burden of proof in this regard was therefore on Defendant No.1. As held by the trial Court Defendant No.1 was unable to discharge that burden.

28. In P.N. Venkatasubramania Iyer v. P.N. Easwara Iyer AIR 1966 Madras 266, it was held that if there is a considerable 'nucleus of joint family estate and in proportion to such nucleus, the property claimed to be self-acquired is insubstantial' then "the presumption arises that the acquired property is joint property, and the onus certainly lies on the party alleging self-acquisition". The Court reminded that "the income yielding capacity of the nucleus is equally an important factor". It was observed in the said case as under:

"It is well settled that if in fact on the dale of acquisition by a member of a joint family of any particular item of properly the joint family had sufficient resources with the aid of which the property in question could have been acquired, the property should be presumed to be acquired from out of the joint family funds and so partible property of the family. Of course it is only a presumption, the person claiming the property as his own could show the contrary and establish that the acquisition was without the aid of joint family property."

29. It was further observed as under:

"A person standing in a fiduciary position to another cannot, by taking advantage of his position, gain exclusively for himself an advantage which he could not have obtained but for the position."

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30. In the present case, as already noticed the Defendant No.1 did not choose to come into the witness box at all, the claim of DW-1, that the lands kept joint in the partition deed had been partitioned in 1963 was not supported by any documentary proof. DW-2 did not say anything about it either. Again DW-5 could not say if those lands had been partitioned after 1961.

31. In other words, the finding of the trial Court was clear that notwithstanding that the sale deeds may have been in the names of Defendant No.1 and his sons, there was nothing to show that those properties, which had been shown as joint in the partition deed Ext-N, had in fact been partitioned.

32. Having accepted the finding of the trial Court that Ext-N was a validly executed partition deed, the learned Single Judge was in error in holding that the 'Ga' Schedule lands reflected in the said partition deed were not joint but were the self-acquired properties of Defendant No.1.

33. For all of the aforementioned reasons, the Court sets aside the impugned judgment of the First Appellate Court to the extent that it has observed that the 'Ga' Schedule properties were the self- acquired property of the Defendant No.1. The Court makes it clear that it is not interfering with the finding of the trial Court as well as the learned Single Judge as regards the validity of the partition deed Ext-N. This Court concurs with the said finding upholding the validity of the said document.

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34. The effect of this judgment is that the judgment and the decree of the trial Court is restored to file. The decree will now be drawn up accordingly.

35. The appeal is disposed of in the above terms.

(S. Muralidhar) Chief Justice (M.S. Raman) Judge S. Behera/ Jr. Steno.

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