Orissa High Court
Hadiani Debi Alias Tiki Devi vs Kailash Panda And Ors. on 30 January, 2004
Equivalent citations: 97(2004)CLT545
Author: P.K. Mohanty
Bench: P.K. Mohanty
JUDGMENT P.K. Mohanty, J.
1. The plaintiff is the appellant against a reversing judgment in a suit for partition. Respondent No. 1 was the appellant in the Court below wherein the other two appellants were the respondent Nos. 2 and 3.
2. Briefly stated, the plaintiff-appellant filed a suit for partition for carving out her 10 annas share in lot No. 1 and 1/3rd share in lot No. 2 of the schedule a properties. The plaintiff claimed her title on the basis of the gift deed dated 19.4.1972 executed by her mother Kausali and on the basis of the record in the Hal Record of Rights noting her share. She also relies on an unregistered Panchayat Faisala (Ext. 6) dated 3.1.1965 and sale deed executed by Ananta in favour of Kausalya dated 18.7.1956.
The undisputed genealogy is as under :
GENEALOGY Fakir |
--------------------------------------
| | | |
Ananta Basu Gouranga Purusottam
(died) | (died in 1965) (died issueless)
issueless) Kailash Kausuli
(Respt. No. 1) (died in 1972)
|
--------------------------------------
| |
Buli Hadiani
(Respt. No.3) @Tiki
(Appellant)
3. The respondent No. 1 filed his written statement denying plaint allegation. It was claimed that the sale deed and the gift deed on the basis of which the plaintiff claims her share are illegal fraudulent and without any consideration and, therefore, cannot be acted upon. It was the specific case of the defendant that Ananta and Purusottam died issueless and, therefore, he had eight annas share and the plaintiff also had eight annas share in the suit property.
The trial Court framed as many as nine issues as under :
1. Is the suit maintainable according to law ?
2. Has the plaintiff any cause of action to file the suit against defendant No. 1 ?
3. Is the suit barred by law of limitation ?
4. Is the suit property valued and sufficient Court fees paid ?
5. Is the suit bad for misjoinder of parties ?
6. Is the sale deed executed by Ananta in favour of Kausalya Dibya valid, legal and bona fide ?
7. Is the deed of gift dated 19.4.1972 executed by Kausali in favour of the plaintiff, valid, legal and acted upon ?
8. Is the plaintiff anti led to get the share as it claimed for in the suit property ?
9. Is the plaintiff entitled to get any other relief under the law ?
4. The trial Court found the gift deed dated 19.4.1972 executed by Kausali Dibya in favour of the plaintiff as a valid and genuine document which was acted upon. The sale deed (Ext. X) dated 18.7. 1956 is a valid and genuine document and, therefore, the plaintiff was entitled to 10 annas share in the properties described in lot No. 1 and 3 of the plaint schedule and the other six annas share belongs to defendant No. 1, defendant Nos. 1 and 2 had half share each in the property described in lot No. 2 and in the other half plaintiff had ten annas share, whereas defendant No. 1 has got eight annas share. The suit being for a partition and the properties being joint family ancestral property, the trial Court held the suit was within the period of limitation. On such findings, the trial Court decreed the suit by a preliminary decree against defendant No. 1 and ex parte against defendant Nos. 2 and 3. The defendant No. 1, however, carried an appeal and the learned First Additional District Judge has allowed the appeal in part, the judgment and decree in respect of lot No. 2 in favour of defendant No. 2 was confirmed but with regard to allotment of share of appellant-defendant No. 1 and the plaintiff and defendant No. 3 has been set aside. The learned lower appellate Court recorded the findings that the gift deed cannot validly convey any title since a coparcener cannot dispose of his undivided interest in the coparcenary property by way of a gift. The certified copy of the sale deed dated 18.7.1956 was found not to have been proved. The learned lower appellate court also recorded a finding that the Panchayat Faisala is not admissible in law for want of registration.
5. Sri B. Rath, learned counsel for the appellant contended that since Gouranga died after 1965 leaving Kausatya his widow and two daughters namely, Hadiani and Buli, they are governed under Section 14 of the Hindu Succession Act which confers absolute right in respect of property left by Gouranga and Kausalya being the absolute owner was entitled to alienate such property. It is also contended that the gift deed (Ext. 5) executed by Kausalya dated 24.6.1972 and the alienation made thereunder in favour of the plaintiff, cannot be questioned, Kausalya being the absolute owner in respect of such property. The finding that the Panchayat Faisala (Ext.-7) dated 3.1.1965 determining the share of Gouranga, the father of the appellant as well as kailash respondent No. 1 could not be called in question since such Faisala has only recorded the existing set of facts and has not created nor extinguished any right, title and interest in any immovable property which otherwise would require registration under Section 17(1)(d) of the Registration Act. It is further contended that consideration of Ext. 1, the settlement Khatian of 1930, Ext. 2, Ext. 2(a) and Ext. 2(b), the Hal Record of Rights published in March, 1974 and consolidation Record of Rights (Ext. 3) finally published in the year 1981 with regard to the suit schedule property and the consolidation parcha under Section 18 of the Orissa Consolidation of Holdings and Prevention of Fragmentation of Land Act having recorded the share of the plaintiff as 10 annas and that of the defendant 6 annas, the learned Courts below ought to have held that such determination has been rightly made by the Consolidation Authorities who are empowered under law to decide the right, title and interest of the parties.
6. The plaintiff had based her claim on the basis of the purported sale deed marked Ext. 'X' (for identification). But the learned Addl.
District Judge had taken into consideration the evidence of P.W. 1, the husband of the plaintiff at the first instance that he would produce the sale deed executed in favour of Kausali by Ananta, which ('X') was lost but he does not know when the sale deed was lost and the statement of P.W. 1 in his examination in chief which did not disclose the loss of the sale deed and in absence of proof of such loss of the original sale deed and the fact that the certified copy of the sale deed has not put to proof and taking note of the statement of the scribe (P.W. 5) that he was not aware of the contents of the sale deed unless he goes through it and that he has no personal knowledge regarding passing of consideration, found on fact that there is no proof of the execution of sale deed by Ananta in favour of Kausali. It has been held that the finding of the trial Court regarding the sale of Ananta's interest in favour of Kausali on the basis of such sale deed is contrary to law. The learned appellate Court also found that the purported gift deed by kausali of the properties in favour of plaintiff was invalid and the plaintiff cannot acquire any right, title or interest on the basis of such invalid gift deed on the ground, that it is impermissible for a coparcener to dispose of his undivided interest in the coparcenary property by way of a gift.
The learned appellate Court further has found that the award of an Arbitrator appointed for dividing the joint family property amongst themselves require registration under Section 17(1)(b) of the Registration Act. He also found that since the value of the subject matter of the suit is more than Rs. 2,0007- and the award creates interest in immovable property exceeding Rs. 100/-, it needs registration and as such, the award (Ext. C/C) which is an unregistered document is inadmissible in evidence and invalid. The learned lower appellate Court allowed the appeal in part, confirmed the judgment and decree in respect of lot No. 2 in favour of defendant No. 2, but the allotment of share between the appellant, defendant No. 1 and the plaintiff and defendant No. 3 was set aside. The learned lower appellate Court ultimately held that the plaintiff and defendant No. 3 are jointly entitled to eight annas interest each in suit lot Nos. 1 and 3 and 4 annas share in suit lot No. 2. Defendant No. 1 was entitled to eight annas interest in suit lot Nos. 1 and 3 and four annas interest in suit lot No. 2.
7. It is the settled principle of law that a coparcener is not entitled to alienate the coparcenary property by way of a gift. Kausali even if acquired the property or interest over the joint family property left by her husband Gauranga in the year 1965 on his death, she has to be the owner in respect of that interest in the property which her husband Gauranga had and cannot acquire anything more than what her husband had in the said property. Gauranga, the deceased husband had he been alive, could not have alienated nor disposed of any coparcenary property by way of a gift. What right Gauranga did not have in the property, his widow on succession could not acquire. She, therefore, only had that right, title or interest admittedly this being a coparcenary property, she could not have gifted away the same and as such, the gift has rightly been held invalid. The Panchayat Faisala (Ext. 7) dated 3.1.1965 determining the share of Gauranga and Kailash has rightly been held to be a document requiring registration since the properties have been sought to be partitioned among the parties. A family settlement no doubt does not create or extinguish a right if the same acknowledges the respective right and possession the parties in respect of their respective shares already held. But if a document or a settlement creates a new right in any property which the parties never had nor possessed according to the mutual settlement, such a document cannot be construed as a family settlement as contended, and therefore, needs registration.
8. So far as the sale deed dated 18.7.1956 executed by Ananta Panda in favour of Kausali transferring his 1/3rd share in the property and the loss of original sale deed needs no consideration since the learned lower appellate Court has found on facts that the document has not been proved in accordance with law nor the loss of original of such sale deed has been established. A Division Bench of this Court in Paramananda Sahu v. Babu Sahu and Ors. reported in Vol. 36 (1970) CLT 1211, while considering a similar question have laid down that without taking any steps for production of the original or laying the foundation for secondary evidence, production of a certified copy by itself is not admissible in evidence. It has been held that in case no attempt has been made to establish any ground, which will entitle the parties to lead secondary evidence and what is sought to be proved by production of the certified copy, if any, the original entry to a copy of the document, the original of which must be in the custody of the either of the executant or some other person, in case it is proved to have been made over to the other by the executant, in that case only a secondary evidence by production of the certified copy thereof is admissible. A copy of a registered document or a sale deed maintained by the Sub-Registrar in his register is a public document and the same can be proved by a certified copy of the entry, but admissibility of the secondary evidence on the findings that the affidavit for leading a secondary evidence under Section 65 of the Evidence Act has to be led.
9. In the aforesaid view of the matter and in view of the finding of facts recorded by the learned Courts below, there is no scope for interference in the impugned judgment of the learned lower appellate Court and accordingly, the Second Appeal is dismissed. However, in the circumstances of the case, there shall be no order as to costs.