Orissa High Court
Gourhari Das vs Smt. Santilata Singh And Ors. on 28 January, 1998
Equivalent citations: AIR1999ORI61, AIR 1999 ORISSA 61, (1998) 85 CUT LT 794
Bench: S.N. Phukan, P.K. Tripathy
JUDGMENT P.K. Tripathi, J.
1. In this Letters Patent appeal, the legal representatives of deceased respondent No. 6 have challenged the judgment dated 16-9-1989 in First Appeal No. 91 of i 975 of this Court, which had been preferred against the judgment and decree in Title Suit No. 28 of 1972-1 of the Court of Subordinate Judge, Bhadrak. Plaintiff in that suit was the appellant and now respondent No. 1 in this appeal. Defendant No. 6 was the respondent No. 6 in the First Appeal, but his widow and son filed this Letters Patent appeal and the widow being dead, out on prayer of the above appellant her name has been deleted from the record.
2. The brief narration of the background fact will reveal the dispute between the parties.
The plaintiff in title Suit No. 28 of 1972 of the Court of Subordinate Judge, Bhadrak has given the following genealogical table to show the inter se relationship between the plaintiff and defendants 1 to 8.
GENELOGY
__________
Waidhar
_________________/_______________
/ / /
Netra Chitan Nalu
/ / /
Ananda Bhaiga Basu
___/________ ________/________ _/_______________________________
/ / / / / / / /
Chandra- Tauh Bairagi Hari Gopinath Ganapati Digambar Jayakrushur.
sekhar Suma | / | / |
| Giridhari | 8 |
| sili, D-4 | |
| / | |
| Dola, D-5 | |
_______|_______ | |
/ / | |
Kalandi Gadadhar Banchhanidhi Sanatan - Adiri D-7
Padma, D-2 / D-6 |
_______/____________ 8. |
/ / |
Kishore Surabala |
D-1 D-2 ____________|________
/ /
Ekadasi Santilata
D-8 Singh alias Jadi
(Plff.)
The plaintiff filed the aforesaid suit for partition claiming herself to be the daughter of Sanatan, who admittedly died after the Hindu Succession Act, 1956 came into force. Admittedly, parties are Hindus governed by the Mitakshara School of personal law and Hindu Succession Act, 1956. Defendant No. 6 only contested the suit. In the written statement, inter alia, he stated that plaintiff is not the daughter of Sanatan, but the daughter of one Brundaban Bhanja of Sola Sahi who had married to the sister of Kalandi, who is the husband of defendant No. 2 and father of defendant Nos. 1 and 3 and that Tide puit No. 8/32 of 1966-64, a suit for partition in the Court of Subordinate Judge, Balasore, was decreed on compromise wherein Sanatan's branch was-duly represented by his widow Adiri Dei (defendant No. 7) and son Eakadasi Das (defendant No. 8). He further pleaded that plaintiff not being the daughter of late Sanatai was not a party in that suit. His further case is that after the final decree in the suit, at the stage of delivery of possession in accordance with that decree, this case has been foisted with false assertion at the instance of defendant Nos. 7 and 8 who are not related to the plaintiff as mother and brother.
Defendant No. 9, an outsider, also filed a written statement as the purchaser of lands from some of the persons described in the genealogy and prayed that in case the suit property is partitioned, a separate allotment should be made in respect of the properties which he had purchased from that family.
3. Except disputing inclusion of the name of the plaintiff as the daughter of Sanatan and omissions relating to the names of the wife and son of defendant No. 6 and the wives of defendant Nos. and 5, the correctness of the genealogy is not disputed.
4. In Title suit No. 8/32 of 1966-64 the present defendant Nos. 7 and 8 were figuring as defendant NOS. 1 and 2 and the present defendant No. 6 with his wife Rambhamani and son Gaurahari were the plaintiffs. The other branches were duly represented. In the present suit for partition. (Title Suit No. 28 of 1972) in answering issue No. 3 learned Subordinate Judge, Bhadrak held that plaintiff is the daughter of late Sanatan and Adiri (defendant No. 7). However, while answering issue No. 6 and consequentially issue No. 7 he held that in the previous suit for partition (T.S. No. 6/32 of 1966-64) the branch of Sanatan was sufficiently represented through his widow and son i.e., the present defendant Nos. 7 and 8. Accordingly, he dismissed the suit on context against defendant Nos. 6 and 9 and ex parte against the rest. Plaintiff challenged the said judgment and decree in F.A. No. 91 of 1975. During pendency of that appeal, defendant/respondent no. 6 died and was substituted by his legal representatives Rambhamani Dei and Gaurahari Das.
5. In the judgment under challenge, this Court allowed the appeal and decreed the suit for partition recording the findings that plaintiff is the daughter of Sanatan and in Title Suit No. 8/32 of 1966-64 the present defendant Nos. 7 and 8 did not represent all the heirs of Sanatan and that is how plaintiffs interest was not safeguarded. Accordingly, it was held that plaintiff is entitled to l/9th share in the property of late Sanatan and in respect of the rest of the properties the compromise in the previous suit for partition would prevail by and would bind defendant Nos. 7 and 8.
6. A description of reference of the suit property is not necessary thus not stated in view of the limited points raised during the course of argument.
7. Mr. Ashok Mukherji, learned counsel for the appellant argued that it has not been proved that plaintiff is the daughter of Sanatan. He further argued that for the sake of argument if the plaintiff is regarded as the daughter of Sanatan then also she is not entitled to re-open the partition inasmuch as Sanatan's branch was sufficiently represented through defendant Nos. 7 and 8 as defendant Nos. 1 and 2 in the previous suit for partition and a decree for partition in favour of the plaintiff would lead to a confusing state relating to execution of valid compromise decree passed in the previous partition suit inasmuch as plaintiff has not prayed to set aside the compromise decree passed in Title Suit No. 8/32 of 1966-64.
8. Mr. R. K. Mohapatra, learned counsel appearing for the plaintiff/respondent No. 1 supporting the findings in the impugned judgment argued that evidence in record is sufficient to prove plaintiffs status and in that respect trial and first appellate Court having recorded concurrent finding, it is not required to be disturbed. He further argued that defendant Nos. 7 and 8 were not representing the interest of plaintiff in the previous suit for partition, therefore plaintiff is not bound by the compromise decree. She has claimed for her legitimate share and when law permits, she is entitled to get without praying to set aside the compromise decree in the previous suit for partition inasmuch she is not bound by that decree.
9. In view of the aforesaid argument, the issues are confined to the following points :--
i) Whether plaintiff is the daughter of late Sanatan;
ii) If she is held to be the daughter of Sanatan, whether her interest was safeguarded and duly represented in the previous suit for partition; and
iii) Whether she is entitled to a share without making a prayer to set aside the compromise decree in the previous suit for partition?
10. During the course of hearing, there was reference to facts and evidence relating to the aforesaid points. Mr. Mukherjee has cited the case of Smt. Asha Devi v. Dukhi Sao, AIR 1974 SC 2048 in which the apex Court has propounded that a single Judge deciding a First Appeal being not subordinate to the appellate court hearing a Letters Patent appeal, the restriction of not going into finding of fact as per the provisions in Section 100 of the Code of Civil Procedure does not apply. This position is not disputed at the Bar.
11. Point No. 1 as above is covered by issue No. 3 of the trial Court's judgment. To prove her status as daughter of Sanatan plaintiff examined five witnesses and relied upon Ext. 1, a copy of the plaint in T. S. No. 8/32 of 1966-64 wherein plaintiff has been mentioned as daughter of Sanatan. In challenging that evidence the original defendant No. 6 and the present appellant tendered their evidence as D.Ws. 2 and 1 and also Ext. G, a copy of the plaint in T. S. No. 8/32 of 1966-64, wherein plaintiffs name does not appear in genealogical table, and Ext. H, a copy of the written statement filed by defendants 1 to 4 and 6 in that suit giving genealogy of the family but not showing plaintiff as the daughter of Sanatan. Learned trial Court did not accept Ext. 1 on the ground that in the copy of the plaint, Ext.G, her name does not appear as the daughter of Sanatan. On a reference to the evidence of P.Ws. 1 to 6 vis-a-vis the evidence of P.Ws. 1 and 2, learned trial Court found that the evidence of P.Ws. 2 and 3 in particular is very much appreciable to prove the relationship of the plaintiff with late Sanatan. He also accepted the evidence of P.Ws. 4, 5 and 6 as the evidence of relations and neighbours in terms of section 50 of the Indian Evidence Act. In the First Appeal this Court concurred with the said finding.
12. During the course of argument reference has been made to the case of Bol Gobinda Paricha v. Nimai Charan Misra, AIR 1959 SC 914 relating to the principle under Sections 50 and 60 of the Evidence Act in assessing and evaluating the opinion evidence on relationship Apex Court has said that at page 918:
"...............It appears to us that the essential requirements of the section are -- (1) there must be a case where the Court has to form an opinion as to the relationship of one person to another; (2) in such a case, the opinion expressed by conduct as to the existence of such relationship is a relevant fact; (3) but the person whose opinion expressed by conduct is relevant must be a person who is a member of the family or otherwise has special means of knowledge on the particular subject of relationship; in other words, the person must fulfill the condition laid down in the latter pan of the section. If the person fulfils that condition, then what is relevant is his opinion expressed by conduct. Opinion means something more than mere retailing of gossip or of hearsay; it means judgment or belief, that is, a belief or a conviction resulting from what one thinks on a particular question. Now, the "belief" or conviction may manifest itself in conduct or behaviour which indicates the existence of the belief or opinion. What the section says is that such conduct or outward behaviour as evidence of the opinion held is relevant & may, therefore, be proved. We are of the view that the true scope and effect of Section 50 of the Evidence Act has been correctly and succinctly put in the following observations made in Chandu Lal Agarwala v. Khalilar Rahman, ILR (1942) 2 Cal 299 at p. 309 : (AIR 1943 Cal 76 at p. 80).
"It is only 'opinion as expressed by conduct' which is made relevant. This is how the conduct comes in. The offered item of evidence is 'the' conduct', but what is made admissible in evidence is 'the opinion', the opinion as expressed by such conduct. The offered item of evidence thus only moves the Court to an intermediate decision; its immediate effect is only to move the Court to see if this conduct establishes any 'opinion' of the person, whose conduct is in evidence, as to the relationship in question. In order to enable the Court to infer 'the opinion', the conduct must be of a tenor which cannot well be supposed to have been willed without the inner existence of the 'opinion'.
When the conduct is of such a tenor, the Court only gets to a relevant piece of evidence, namely, 'the opinion of a person'. It still remains for the Court to weigh such evidence and come to its own opinion as to the 'factum probandum' -- as to the relationship in question".
"also accept as correct the view that Section 50 does not make evidence of more general reputation (without conduct) admissible as proof of relationship; 'Lakshmi Reddi v. Venkata Reddi, AIR 1937 PC 201."
(From paragraph 6 at pages 918 and 919).
Considering the scope of section 60 of the Evidence Act and its import on Section 50, the Apex Court has further held that:
"...............It we remember that the offered item of evidence under Section 50 is conduct in the sense explained above, then there is no difficulty in holding that such conduct or outward behaviour must be proved in the manner laid down in Section 60; if the conduct relates to something which can be seen, it must be proved by the person who saw it; if it is something which can be heard, then it must be proved by the person who heard it; and so on. The conduct must be of the person who fulfils the essential conditions of Section 50, and it must be proved in the manner laid down in the provisions relating to proof. It appears to us that that portion of Section 60 which provides that the person who holds an opinion must be Called to prove his opinion does not necessarily delimit the scope of Section 50 in the sense that opinion expressed by conduct must be proved only by the person whose conduct expressed the opinion, Conduct, as an external perceptible fact, may be proved either by the testimony of the person himself whose opinion is evidence under Section 50 or by some other person acquainted with the facts which express such opinion, and as the testimony must relate to external facts which constitute conduct and is given by persons personally acquainted with such facts, the testimony is in each case direct within the meaning of Section 60. This, in our opinion, is the true interrelation between Section 50 and Section 60 of the Evidence Act........."
(From paragraph 7 at pages 918-919) Applying the above test if the evidence in record is analysed, it is seen that PWs. 2 and 3 have claimed themselves respectively as the brother and mother of the plaintiff and that is how they claim their knowledge that plaintiff is the daughter of Sanatan. P.W. 4 has claimed himself to be an agnatic cousin of Brunda Bhanja and stated that defendant no. 6 had married the sister of Brunda Bhanja and that Brunda had no daughter. P.W. 4 has further stated that being a relation he knows that P.W. 3 is the widow and plaintiff is the daughter of Sanatan and that he had attended the marriage ceremony of the plaintiff. P.W. 5 has deposed that he is an agnatic relation of Brunda Bhanja and said Brunda had no daughter and that P.W. 3 is his agnatic sister. He has stated that plaintiff is the daughter of P.W. 3 and Sanatan and he had attended the 21st day ceremony after birth of the plaintiff. P.W. 6 has deposed as a neighbour of late Sanatan and stated that plaintiff and P.W. 2 are the daughter and son of P.W. 3 and Sanatan and that he had attended the marriage ceremony of the plaintiff. It is thus seen that each of P. Ws. 2 to 6 have special means to know about the relationship between plaintiff and late Sanatan. While speaking on such relationship, their opinion is based upon either the relationship or knowledge as neighbour to opine that plaintiff is the daughter of Sanatan and that Brunda Bhanja had no daughter; thereby rebutting to contention of the defendant no. 6 and the defence evidence.
Inviting attention to some contradictions in the evidence of plaintiff's witnesses, Mr. Mukherjee argued that such contradiclions conduct-wise prove that. P.Ws. 4 to 6 could not have any such special means of knowledge and they are untruthful witnesses. On a careful perusal of their evidence, the above argument is found not acceptable. The contradictions are of trifle nature and does not shake the credibility of plaintiffs witnesses. Trial court and the 1st appellate court have also accepted that evidence of plaintiff's witnesses. Thus, without quoting and making a detailed discussion; being not necessary, of such contradictions, one or two instances may be noted here to show justification on the above conclusion that; such contradictions have not affected credibility of the plaintiffs witnesses relating to plaintiffs status as the daughter of Sanatan.
Plaintiff as P.W. 1, in cross-examination has stated that she has been partitioned from her brother and mother, she is not pulling on well with them. P.Ws. 2 and 3, on the other hand, have stated that at regular intervals plaintiffs come to the suit village and at that time stay with them. This is not a contradiction of a serious nature so as to destroy the conduct of P.Ws. 2 and 3 to not to know the relationship of plaintiff with late Sanatan or with them. It cannot be deduced from that contradiction that, P.W. 2 who by means of his birth in the family knows plaintiff as his sister and P.W. 3, who gave birth and states plaintiff is her daughter, are not competent to speak about the relationship or that their evidence on the factum of relationship is not acceptable. Other contradictions in the evidence of P.Ws. 4 to 6, is of similar type and need no discussion. In the First Appeal this Court has rightly held that the evidence of P.Ws. 2 and 3 are the strongest piece of evidence under section 50 of the Evidence Act to prove the inter se relationship inasmuch as if the P.Ws. 2 and 3 claim plaintiff as the daughter of late Sanatan then their right over the property is proportionately minimised. Only with a view to create problem with the defendant no. 6,7 No. P.Ws. 2 and 3 could not have taken such a risk.
13. So far documentary evidence is concerned, plaintiff relied upon Ext. 1 but trial court rightly rejected the same because in another copy of plaint i.e. Ext. 6 and in the genealogy in written statement i.e. Ext. 11 plaintiff had not been shown in the genealogy. As rightly recorded by the trial court and not disturbed by the first appellate Court, the above position relating to Ext. 1 has not deteriorated the case of the plaintiff. Undoubtedly, the initial burden was with the plaintiff to prove that she is the daughter of Sauatan. Once she discharged that burden, the onus shifted to the other side i.e. the defendant no. 6 to adduce rebuttal evidence and also to prove that she is the daughter of Brunda Bhanja. In that context, except tendering the evidence of himself and his son as D.Ws. 2 and 1 respectively, the defendant no. 6 did not adduce any other evidence. Even no other co-defendants belonging to the same family have deposed in support of defendant no. 6. Nobody from the house of Brunda Bhanja was even examined. Trial court has discussed and did not find defendants' evidence credible and reliable. Like the first appellate court this court concurs with the said finding and decision on issue no. 3 i.e. point no. 1- as formulated in preceding paragraph to hold that plaintiff has proved her status as the daughter of late Sanatan.
14. After recording the aforesaid finding, the problem on point no. 2 becomes easier. Mr. Mukherjee has led great stress on the plea of substantial representation from the family of late Sanatan in the previous partition suit. In support of his argument, he relied upon the cases of N. K. Mohd. Sulaiman Sahib v. M. C. Mohd. Ismail Saheb, AIR 1966 SC 792, Dplai Maliko v. Krushna Chandra Patnaik, AIR 1967 SC 49 and Amrit Sagar Gupta v. Sudesh Behari Lal, AIR 1970 SC 5. In the case of N. K. Mohd. Sulaiman Sahib (supra) a suit for redemption of mortgage was decreed against two out of three mortgagors and the widows and daughter of the deceased mortgager (third mortgager). In execution of that decree the mortgaged property was sold. One of the two sons of the deceased mortgager filed suit for partition with other ancillary and consequential relief on the ground that being not impleaded in the previous suit, he is not bound by that decree and execution sale. The decree holder-defendant in contesting the suit took the plea that after making bona fide enquiry he impleaded the legal representatives of deceased mortgager. In that context, after analysing the provision of procedural law, the Apex Court has held that the decree holder had made bona fide enquiry and the estate was duly represented by the widows and daughter, hence there was substantial representation.
In the ca. e of Dolai Maliko (supra) while considering the question of abatement due to bona fide omission in impleading one of the legal representatives of the deceased defendant, Apex Court, under the facts and circumstances of that case held that after a bona fide enquiry if some legal representatives were brought on record and some were left over, it need not result in abatement and apart from that, in the context under reference, there was sufficient representation.
In the case of Amrit Sagar Gupta (supra) a gift made by the deceased owner to the family of the plaintiff was accepted by the father and the Karta. In a suit brought by person claiming the property to have been gifted in his favour, he impleaded that Karta as the defendant and not the other family members. While considering that aspect, apex Court has held that there was substantial representation.
It is thus clear that the facts and the circum-
stance in the cited cases are quite distinguishable from the facts and circumstance of the present case. In that context, it may be noted that defendant no. 6 did not plead that on a bona fide belief that plaintiff is not the daughter of Sanatan, she was not arrayed as a party. Apart from that, when the plaintiff is adaughter in that family belonging to the branch of Sanatan defendant no. 6 could not have lost sight of her existence as well as relationship with late Sanatan. It might have so happened that by the date of institution of the suit, plaintiff being a married daughter and residing in her in-law's house at Midnapur, might not have been impleaded as a party. But that is not the case of defendant No. 6. Without making a venture to make out a third case from the pleadings of the parties, it may be noted here that defendant No. 6 does not come with any explanation, save and except denying the relationship, as to why plaintiff as the daughter of. Sanatan was not added as a party. The copy of the plaint -- Ext. 1 (Ext. 6) of the previous partition suit goes to show that widow and son of Sanatan were not added as a party with a view to represent all the legal representatives of late Sanatan. While deciding the First Appeal, this Court has taken note of that fact and circumstance to hold that the defendant nos. 7 and 8 while appearing as defendant nos. I and 2 in the previous suit for partition were not representing the interest of plaintiff who has a legitimate share in the property of late Sanatan. In that view of the matter, finding recorded by the 1st appellate court is found to be correct and accordingly confirmed.
15. Coming to the third point, there is no necessity to make any further discussion in view of the cogent and reasoned order in the following terms passed by the Hon'ble single Judge in the impugned judgment.
"16.......... After Sanatan's share is carve dout, plaintiff would get her l/9th share in Sanatan's property and in respect of rest of the properties, compromise in Ext. J would prevail and would bind defendant Nos. 7 and 8. Thus, they would not get any higher interest in the present case. Their right under the compromise decree would be reduced after giving plaintiff her legitimate share..........."
17. On the aforesaid findings, trial court is required to determine the share of plaintiff in the disputed properties. Accordingly, the decree is to be set aside and the matter is to be remitted back to the trial court to pass a fresh preliminary decree after hearing the parties on the materials available on record and giving opportunity to parties to adduce further evidence if so advised."
In the result, the letters patent appeal is dismissed with costs.
S.N. Phukan, C.J.
16. I agree.