Orissa High Court
Bhudubeda Proposed High School vs Dhusasan Naik And Others on 30 September, 2024
IN THE HIGH COURT OF ORISSA AT CUTTACK
S.A. No.150 of 1999
(In the matter of an appeal under Section 100 of the Code of Civil
Procedure, 1908)
Bhudubeda Proposed High School, .... Appellants
represented by its Secretary, District-
Mayurbhanj and another
-versus-
Dhusasan Naik and others .... Respondents
Appeared in this case:-
For Appellants : Mr. C.R. Nanda, Advocate
For Respondents : Mr. D.K. Misrha, Advocate
Appeared in this case:-
CORAM:
JUSTICE A.C. BEHERA
JUDGMENT
Date of hearing : 10.09.2024 / date of judgment : 30.09.2024 A.C. Behera, J. This 2nd appeal has been preferred against the reversing judgment.
2. The appellants in this 2nd appeal were the defendant nos.1 and 2 Signature Notbefore Verified the trial court in the suit vide T.S. No.41 of 1994 and respondents Digitally Signed Signed by: JAGABANDHU BEHERA before the 1st appellate court in the 1st appeal vide T.A. No.05 of 1997. Designation: Personal Assistant Reason: Authentication Location: OHC, CUTTACK Date: 30-Sep-2024 17:36:53 Page 1 of 23
3. The respondents in this 2nd appeal were the plaintiffs before the trial court in the suit vide T.S. No.41 of 1994 and appellants before the 1st appellate court in the 1st appeal vide T.A. No.05 of 1997.
4. The suit of the plaintiffs(respondents in this 2nd appeal) against the defendants (appellants in this 2nd appeal) vide T.S. No.41 of 1994 was a suit for declaration, recovery of possession and permanent injunction.
5. As per the averments made by the plaintiffs in their plaint, the plaintiffs and defendant no.2 belong to one family and their common ancestor was Ratha Naik. The said Ratha Naik died leaving behind his two sons, i.e. Fagunia Naik and Jadu Naik and the branch of Jadu Naik has extinct, because, Jadu Naik died issueless. Fagunia Naik died leaving behind his three sons, i.e., Jatia Naik, Naba Naik and Kusa Naik. Jatia Naik died leaving behind his only son, i.e., defendant no.2 (Lokanath Naik). Naba Naik died leaving behind his widow Marisa Naik and his three children, i.e., Dusasan Naik, (plaintiff no.1) Gobinda Naik (plaintiff no.2) and Indra Naik (plaintiff no.3). Thereafter, Marisa Naik died leaving behind the plaintiffs as her successors. Kusa Naik died issueless. Accordingly, the plaintiffs are the children of Naba Naik. The defendant no.2 is the son of Jatia Naik.
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In order to have a better appreciation, the aforesaid family pedigree of the plaintiffs and the defendant no.2 described in Schedule-A of the plaint is depicted hereunder for an instant reference :-
Genealogy Ratha Naik ________________________ Fagunia Jadu _________________________ O Jatia Naba Kusha Lokanath Marisa O (d-2) ___________________________ (M.S.) (M.S.) (M.S.) Dusasan Gobinda Indra (P.1) (P-2) (P-3)
6. The plaintiffs and defendant no.2 belong to Schedule Tribe community, having their Sub-caste "Saunti", but they(parties to the suit) are guided and governed by Mitakshara School of Hindu law.
The suit properties described in Schedule-B are Ac.0.60 decimals out of Ac.0.77 decimals of Plot No.522 under Khata No.17 in Mouza- Bhadubeda under Karanjia Police Station in the district of Mayurbhanj. The RoR of the suit Khata No.17 stands in the name of Jatia Naik (father of the defendant no.2), Dusasan Naik(plaintiff no.1), Gobinda Naik (plaintiff no.2) and Indra Naik (plaintiff no.3) and Marisa Naik (mother of the plaintiffs).
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The suit properties under Khata No.17 was originally belonged to Ratha Naik (common ancestor of plaintiffs and the defendant no.2) as per 1941-42 settlement. After the death of Ratha Naik, the suit properties along with other properties left by him devolved upon his only son Fagunia Naik, as his 2nd son Jadu died issueless. After the death of the predecessors of the plaintiffs and defendant no.2, i.e., Fagunia Naik as per their above genealogy, plaintiffs and defendant no.2 have been continuing their joint family and they have/had been enjoying their all joint and undivided properties left by Fagunia Naik without any metes and bounds partition between them and accordingly, they (plaintiffs and defendant no.2) have their joint ownership over the properties covered under suit Khata No.17 including the suit properties. In spite of their joint and undivided ownership over the suit properties, the defendant no.2 (Lokanath Naik), in order to achieve his mala fide intention for engaging his relatives in the defendant no.1(school), he (defendant no.2) executed and registered a gift deed on dated 25.01.1994 in respect of their joint and undivided suit properties for an area of Ac.0.60 decimals in favour of the defendant no.1(school) represented through its Secretary, even though, he(defendant no.2) was not legally capable/competent to donate the suit schedule undivided coparcenary properties through gift in favour of the defendant no.1(school). After execution and registration of the gift deed on dated 25.01.1994, the defendant no.1(school) hurriedly started Page 4 of 23 constructions over the suit properties with an ill-motive to pin down the plaintiffs to make any claim in future. The defendant no.1(school) has managed to snatch way such gift deed from the defendant no.2, for which, the said deed of gift dated 25.01.1994 executed by the defendant no.2 in respect of the suit properties in favour of the defendant no.1(school) is void. When the plaintiffs came to know about the execution of such gift deed by the defendant no.2 in respect of the suit properties in favour of the defendant no.1(school), then, they(plaintiffs) protested the illegal constructions of the defendant no.1 over the suit properties, for which, the defendant no.1(school) stopped further construction on the same temporarily, but, subsequently, the defendant no.1(school) hurried progressed construction works over the suit properties and completed the same and threatened the plaintiffs through its Secretary with dire consequences. As, such construction works over the suit properties by the defendant no.1 had completed during Puja Vacation, for which, without getting any way, the plaintiffs approached the civil court by filing a suit vide T.S. No.41 of 1994 against the defendants praying for a declaration that, the defendant no.1(school) has not acquired any title over the suit properties through the void gift deed dated 25.01.1994 executed by the defendant no.2 in favour of the defendant no.1(school) and also prayed for recovery of possession of the suit properties from the defendant no.1(school) and so also prayed for an Page 5 of 23 injunction in order to restrain the defendant no.1 permanently from carrying on further construction works over the suit properties.
7. Having been noticed from the trial court in the suit vide T.S. No.41 of 1994, the defendants contested the same by filing their joint written statement denying the allegations alleged by the plaintiffs in their plaint taking their specific stands therein that, when the villagers of Bhudubeda urgently felt that, there should be a High School in their village for better education of the children of their village as well as their neighbouring villages, then, for such noble purpose, some villagers of Bhudubeda including the defendant no.2 interested to transfer their properties through gift deeds to the defendant no.1(school). As, the site for the proposed High School had belonged to some members of Schedule Tribes including the defendant no.2, for which, the owners of the said landed properties including the defendant no.2 applied before the competent revenue authorities seeking permission for transferring their respective lands through gift deed to the defendant no.1(school) as required under Section 3(1) of Regulation-2, 1956 and its Rules-3(1) of 1959 thereof. The defendant no.2(Lokanath Naik) was the owner of the suit properties, to which, he was possessing exclusively after the death of his father Jatia Naik since last forty years, as there was partition between his father Jatia Naik and the father of the plaintiffs, i.e., Naba Naik in Page 6 of 23 respect of their all ancestral properties including the suit properties. In such partition, the suit properties along with some other properties had fallen in the share of the father of the defendant no.2, i.e., Jatia Naik. After the death of his father, the said properties including the suit properties (those had fallen in the share of Jatia Naik) devolved upon him(defendant no.2), to which, he(defendant no.2) had been possessing. The said properties were demarcated in PFI Case No.914/1993. Although, the defendant no.2 and the plaintiffs have been separated since long and their all joint properties had already been partitioned, but, in the Hal Settlement RoRs, their separated properties including the suit properties have been jointly recorded in his name along with the plaintiffs erroneously. In spite of knowing the joint recording of the suit properties along with their other properties erroneously by the settlement authorities, still then, he (defendant no.2) had not challenged the same earlier for separate recording on a bona fide belief that, his separate possession and separate title in respect of the allotted properties including the suit properties in the earlier partition in favour of his father, to which, he has been possessing shall not be affected in any manner in view of the long partition as well as long separate possession. When the villagers requested him (defendant no.2) for donating his suit properties for Bhudubeda High School(defendant no.1), to which, he (defendant no.2) agreed and, to which, the plaintiffs did not object. Therefore, Page 7 of 23 he(defendant no.2) applied before the competent authority through S.R.C. No.157/1993 under Section 3(1) of Regulation-2 of 1956 and Rules-3(1) of 1959 thereof praying for granting permission in his favour in order to transfer the suit properties in favour of the defendant no.1(school) by executing and registering gift deed, for which, an enquiry was conducted by the revenue authorities, in which, the plaintiffs as well as their mother had agreed without raising any objection in spite of the invitation of objections from the general public including the plaintiffs through general citation. So, after due enquiry, the competent authority granted permission in favour of the defendant no.2 for transferring the suit properties through gift as voluntary donation in favour of the defendant no.1(school). As per such permission granted by the competent authority, the defendant no.2 executed and registered the gift deed in respect of the suit properties on dated 25.01.1994 in favour of the defendant no.1(school) and the defendant no.1(school) accepted the suit properties as gift from the defendant no.2 and took possession of the same and constructed buildings of the defendant no.1 (school) thereon and the defendant no.1(school) has been running on the same since the year 1994. For which, the plaintiffs have no right to claim the suit properties. Therefore, the suit of the plaintiffs for declaration of their title, recovery of possession and permanent injunction against the Page 8 of 23 defendants is not maintainable under law. For which, the suit of the plaintiffs is liable to be dismissed against them (defendants) with cost.
8. Basing upon the aforesaid pleadings and matters in controversies between the parties, altogether eight numbers of issues were framed by the trial court in the suit vide T.S. No.41 of 1994 and the said issues are:-
ISSUES i. Is the suit maintainable in its present form?
ii. Is the suit barred by law of limitation?
iii. Is there any cause of action for the plaintiffs to institute
the suit?
iv. Whether the suit land was the exclusive property of
defendant no.2 or the joint property of the plaintiffs and defendant no.2 prior to execution and Registration of Gift deed dated 25.01.1994 by the defendant no.2 in favour of the defendant no.1?
v. Is the Registered Gift deed dated 25.01.1994 executed by the defendant no.2 in favour of defendant no.1 relating to the suit land is void one?
vi. Are the plaintiffs entitled for the recovery of possession of the suit properties?
vii. Are the plaintiffs entitled for the permanent injunction as prayed for?
viii. What other reliefs, if any, the plaintiffs are entitled to?
9. In order to substantiate the aforesaid relief(s) sought for by the plaintiffs against the defendants, they (plaintiffs) examined altogether three numbers of witnesses from their side including plaintiff no.1 as P.W.1 and relied upon the documents vide Exts.1 to 4.
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On the contrary, in order to nullify/defeat the suit of the plaintiffs, the defendants examined three witnesses on their behalf including the Secretary of defendant no.1 (School) as D.Ws.1, 2 and 3 respectively and relied upon the documents vide Exts.A to D from their side.
10. After conclusion of hearing and on perusal of the materials, documents and evidence available in the record, the trial court answered all the issues against the plaintiffs and in favour of the defendants.
11. Basing upon the findings and observations made by the trial court in the issues against the plaintiffs and in favour of the defendants, the trial court dismissed the suit of the plaintiffs on contest against the defendants as per its judgment and decree dated 04.03.1997 and 13.03.1997 respectively assigning the reasons that, on the basis of prior partition of all the ancestral properties between the father of the defendant no.2 and the father of the plaintiffs, the suit properties along with some other properties had fallen in the share of the father of the defendant no.2, i.e., Jatia Naik, to which, Jatia Naik was possessing as the owner thereof, then, after the death of the father of the defendant no.2, i.e., Jatia Naik, the defendant no.2 was possessing as the owner of the same being the sole successor of his father and accordingly, he (defendant no.2) being the exclusive owner of the suit properties, he has donated the same to Bhudubeda High School(defendant no.1) for the Page 10 of 23 education of the local students, i.e., for public benefit, which is a pious and charitable purpose by executing and registering the gift deed dated 25.01.1994 vide Ext.C after obtaining due permission for transfer of the same through gift in favor of the defendant no.1(school) from the competent authority as per the order passed in S.R.C. No.157/1993 vide Ext.B and accordingly, the defendant no.1(school) after receiving the suit properties as donation through gift from the defendant no.2, the defendant no.1 (school) constructed buildings on the same and the said school has been running over the same since the year 1994, in which, the plaintiffs have no interest.
12. On being dissatisfied with the aforesaid judgment and decree of the dismissal of the suit of the plaintiffs vide T.S. No.41 of 1994 passed by the trial court on dated 04.03.1997 and 13.03.1997 respectively, they(plaintiffs) challenged the same by preferring the 1st appeal vide T.A. No.05 of 1997 being the appellants against the defendants arraying the defendants as respondents
13. After hearing from both the sides, the 1st appellate court allowed that 1st appeal vide T.A. No.05 of 1997 of the plaintiffs and decreed the suit of the plaintiffs on contest against the defendant no.1(school) after setting aside the judgment and decree of the dismissal of the suit of the plaintiffs passed by the trial court in T.S. No.41 of 1994 as per its Page 11 of 23 judgment and decree dated 29.03.1999 and 09.04.1999 respectively and declared that, the gift deed dated 25.01.1994 vide Ext.-C executed by the defendant no.2 in favour of the defendant no.1(school) in respect of the suit properties is void and also declared that, the defendant no.1(school) has acquired no title over the suit properties on the strength of such gift deed vide Ext.-C, for which, possession of the suit properties appertaining Plot No.522 under Khata No.17 be recovered in favour of the plaintiffs and defendant no.2 and injuncted the defendant no.1(school) from creating any sort of disturbance in the peaceful possession of the plaintiffs and respondent no.2 over the suit properties assigning the reasons that, though the defendant no.2 is staying separately from the plaintiffs and possessing the properties separately according to the convenience, but, there is no metes and bounds partition of their all ancestral properties between the defendant no.2 and the plaintiffs, for which, the plaintiffs and defendant no.2 are treated as coparceners of the suit properties along with their other ancestral properties and the joint record of right of the suit properties proves that, there is no metes and bounds partition between the plaintiffs and the defendant no.2 in respect of the properties covered under suit Khata No.17 vide Ext.1 and as the defendant no.2 has gifted part of their coparcenary properties, i.e., suit properties in favour of the defendant no.1 (school), for which, the said gift deed vide Ext.C executed by the Page 12 of 23 defendant no.2 in favour of the defendant no.1(school) on dated 25.01.1994 in respect of the suit properties is void. Therefore, the plaintiffs and the defendant no.2 are entitled for the recovery of possession of the suit properties from the defendant no.1(school) along with other reliefs in their favour as prayed for by the plaintiffs. That apart, the execution of the gift deed vide Ext.C has not been duly/properly proved by the defendant no.1(school) and defendant no.2.
14. On being aggrieved with the aforesaid judgment and decree dated 29.03.1999 and 09.04.1999 respectively passed by the 1st appellate court in T.A. No.05 of 1997 in favour of the plaintiffs and against the defendants in decreeing the suit of the plaintiffs vide T.S. No.41 of 1994 after setting aside judgment and decree of the dismissal of the suit of the plaintiffs passed by the trial court, they(defendants) challenged the same by preferring this 2nd appeal being the appellants against the plaintiffs arraying them(plaintiffs) as respondents.
15. This 2nd appeal was admitted on formulation of the following substantial questions of law, i.e.:-
"(i) Whether there was necessary for calling upon the attesting witnesses for proving the execution of the gift deed, which has been registered and the execution of which has been admitted by the executor?
(ii) Whether, as per wrong notion of law, the 1st appellate court disbelieved the partition of the suit properties Page 13 of 23 between the father of the defendant no.2 and the father of the plaintiffs?
(iii) Whether there is failure on the part of the 1st appellate court to consider the important materials in support of the partition between the father of the defendant no.2 and the father of the plaintiffs?
(iv) Whether the judgment and decree passed by the 1st appellate court in setting aside the judgment and decree of the trial court is otherwise bad under law and the same is liable to be set aside?"
16. I have already heard from the learned counsels of both the sides.
17. When, all the formulated substantial questions of law are inter- linked having ample nexus/connection with each other as per the judgment and decree passed by the 1st appellate court (which is under challenge in this 2nd appeal) according to the pleadings and evidence of the parties, then, all the formulated substantial questions of law are taken up together analogously for their discussions hereunder:
It is the specific / definite findings of the 1st appellate court in Para No.8 of its judgment and decree for setting aside the judgment and decree passed by the trial court in T.S. No.41 of 1994 are that, "though the Respondent No.2 is staying separately and possessing the properties separately according to the convenience, but, that cannot be treated as partition between plaintiffs and defendant no.2 through metes and bounds partition, unless there is partition by metes and bounds, the same cannot be treated as a complete partition. Thus, the suit land is to be treated as Page 14 of 23 the joint family property of the plaintiffs and the defendant no.2. Since the suit land is the joint and undivided family properties of the plaintiffs and defendant no.2, then, the defendant no.2 cannot transfer the same through gift without the consent of the other coparceners, i.e., the plaintiffs, for which, gift deed vide Ext.-C executed on dated 25.01.1994 by the defendant no.2 in favour of the defendant no.1(school) in respect of the suit properties is void. That apart, when the due/proper execution of the said gift deed vide Ext.C has not been proved by the defendant nos.1 and 2, for non-examination of any attesting witness thereof, then the findings in issue nos.4 and 5 made by the trial court in favour of the defendants are found to be wrong. So, the appellants/plaintiffs are entitled to get the reliefs as prayed for by them in their plaint against the defendants."
It is the own case of the plaintiffs that, the suit properties along with other properties had originally belonged to their common ancestor Ratha Naik. The said Ratha Naik died leaving behind his two sons, i.e., Fagunia Naik and Jadu Naik. Jadu Naik died issueless, for which, Fagunia Naik became the owner of the entire properties including the suit properties left by Rath Naik. The said Fagunia Naik died leaving behind his three sons, i.e., Jatia Naik, Naba Naik and Kusa Naik. Father of the defendant no.2 was Jatia Naik. The father of the plaintiffs was Naba Page 15 of 23 Naik. When Kusa Naik died issueless, then, Jatia Naik and Naba Naik became the co-owners over their entire ancestral properties including the suit properties. Therefore, as per law, the properties left by Fagunia Naik including the suit properties, (those had devolved upon his three sons, i.e., Jatia Naik, Naba Naik and Kusa Naik) cannot be held as the coparcenary properties of Jatia Naik, Naba Naik and Kusa Naik.
Likewise, when after the death of Jatia Naik and Naba Naik, the properties including the suit properties left by them devolved upon the defendant no.2 and the plaintiffs, then, at this juncture, it cannot be held that, the said properties including the suit properties are their coparcenary properties. Because, as per law, after death of Jatia Naik and Naba Naik, when the suit properties along with other properties devolved upon the plaintiffs and defendant no.2, then, the said properties along with suit properties had become their joint and undivided properties, but, not their coparcenary properties.
18. On this aspect, the propositions of law has already been clarified by the Apex Court in the ratio of the following decision:-
(i) AIR 1997 (S.C.)-1251 : Municipal Corporation, Mandsaur vrs. Fakirchand and another--Where brother become owners of the property only on death of their father, that, indicates that, property was not coparcenary property, but the undivided properties of joint owners, who had inherited father‟s interest.(Para-6) Page 16 of 23 So, in view of the propositions of law enunciated in the ratio of the above decision, the suit properties were not the coparcenary properties of the plaintiffs and defendant no.2, but, the same were the joint and undivided properties of the plaintiffs and defendant no.2.
When there is no definite material in the record on behalf of the defendant no.2 to show that, there was metes and bounds partition of their all joint and undivided ancestral properties including the suit properties between the plaintiffs and defendant no.2 and when there is joint recording of the RoR of the suit properties, vide Ext.1 in the name of the plaintiffs and defendant no.2, then, at this juncture, it is held that, the suit properties along with their other ancestral properties were the joint and undivided properties of the plaintiffs and defendant no.2, but, the said properties were not their coparcenary properties.
19. The 1st appellate court has held in its judgment and decree reversing the findings of the trial court that, the execution of the gift deed vide Ext.C has not been duly proved due to non-examination of its attesting witnesses by the defendants.
20. It is the settled propositions of law as per Section 58 of the Indian Evidence Act, 1872 (Section 53 of BSA Act, 2023) that, facts admitted need not be proved.
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Here in this suit/appeal at hand, when the donor and donee, i.e. the defendant nos.2 and 1 both have admitted the execution and registration of the gift deed vide Ext.C and there is no dispute between them about the execution and registration of the same, then at this juncture, for non- examination of any attesting witness of the said gift deed, it cannot be held that, that gift deed vide Ext.Cwas not executed by the defendant no.2 in favour of the defendant no.1(school). For which, such findings and observations made by the 1st appellate court that, the execution and registration of the gift deed vide Ext.C has not been duly proved due to non-examination of the attesting witnesses thereof cannot be sustainable under law.
21. When, as per own admissions of the defendant nos.1 and 2, he(defendant no.2) has executed and registered the gift deed in respect of the suit properties in favour of the defendant no.1(school) after obtaining due permission from the competent authorities under Section 3(1) of the Regulation-2, 1956 and Rule-3(1) of Rule, 1959 thereof, as per the order passed in S.R. Case No.157 of 1993 in order to transfer the suit properties through gift and when the defendant no.1(school) has been running over the suit properties since the year 1994, then, at this juncture, it will be seen, whether the execution of the said gift deed in respect of the suit properties by the defendant no.1 was for a pious purpose or not. Page 18 of 23
22. It is settled proposition of law that, a Hindu father or any other managing member of a Hindu undivided family has power to make a gift of ancestral immovable property within reasonable limits for pious purposes, even without the consent of the other members of the family.
An object, i.e., pious purpose includes charitable and / or religious purpose.
On this aspect, the propositions of law has already been clarified by the Apex Court in the ratio of the following decisions:-
(i) AIR 1967(S.C.)-569 : Ammathayee alias Perumalakkal and another vrs. Kumarsen alias Balakrishnan and others--Gift of undivided property by Hindu father or managing member of the family--
Pious purpose--Hindu undivided property--A Hindu father or any other managing member of the family has power to make a gift of ancestral immovable property within reasonable limits for "pious purpose."
(ii) (2022) SCC Online (S.C.)-471--K.C. Laxmana vrs. K.C. Chandrappa Gowda and another(Para-15)--
It is well settled that, a Hindu father or any other managing member of a HUF has power to make a gift of ancestral property only for a „pious purpose‟ and what is understood by the term „pious purpose‟ is a gift for charitable and/or religious purpose.
(iii) AIR 1990 (S.C.)-816 : P.C. Raja Ratanam Institution vrs. Municipal Corporation of Delhi and others--Charitable Purpose--Meaning--The test of charitable purpose is satisfied by the proof of any of the three conditions, namely, relief of the poor, education or medical relief.
(iv) AIR 1980(Patna)-138 : Md. Yunus vrs. The Inspector General of Registration and others --
Charitable purpose--The expression „charitable Page 19 of 23 purpose‟ must be a purpose which has some of element general public benefit.
23. As per the ratio of the aforesaid decisions of the Hon‟ble Courts and Apex Court, the law permits to the Hindu father or any managing member of a Hindu undivided family for donating the Hindu undivided family property within reasonable limits for pious purpose even without the consent of the other members of the Hindu undivided family.
24. It is the clarified propositions of law in view of the ratio of the aforesaid decisions that, object/purpose of any gift to an educational institution for the benefit of the general public shall come within the purview of charitable purpose, which is a part of pious purpose.
It appears from the Ext.A, i.e., an order passed in S.R No.157 of 1993 for granting permission in favour of the defendant no.2 for transferring the suit properties through gift in favour of the defendant no.1 that, objections were invited from the general public including the plaintiffs to object, if any, against the proposed transfer of the suit properties by the defendant no.2 in favour of the defendant no.1(school) through gift for running of Bhudubeda High School thereon for general public benefit, but, none including the plaintiffs objected the same. That too, in spite of knowing about the granting of permission for transferring the suit properties by the defendant no.2 in favour of the defendant no.1(school) through gift as per the order passed in S.R. No.157/1993, Page 20 of 23 the plaintiffs did not challenge such order, i.e., granting of permission either before any higher forum of the revenue authorities or in the present suit at hand vide T.S. No.41 of 1994 making prayer either to declare the said permission granted in S.R. No.157 of 1993 as illegal/void or to set aside the same.
25. When, the law provides to a Hindu father or any managing member of a Hindu undivided family to make a gift of ancestral property within reasonable limits without the consent the other members of his family for a pious purpose and when an object, i.e., pious purpose includes charitable purpose and when the gift of Hindu undivided property to a school like gift of the suit properties to Bhudubeda High School(defendant no.1) comes within charitable purpose, which includes pious purpose and when since the date of execution of the gift deed dated 25.01.1994 vide Ext.C by the defendant no.2 in favour of the defendant no.1(school) in respect of the suit properties, the defendant school/institution has been running over the suit properties for 30 years imparting free educations to the students of the locality for general public benefit, then at this juncture and under the above circumstances / situations, the execution of the gift deed vide Ext.C on dated 25.01.1994 in respect of a little part of the joint and undivided properties by the defendant no.2 in favour of the defendant no.1(school) even without the Page 21 of 23 consent of the other members of his family, i.e., plaintiffs cannot be held as void under law in view of the propositions of law enunciated by the Hon‟ble Courts and Apex Court, in the ratio of the aforesaid decisions.
When, the law empowers/authorizes any managing member of the Hindu undivided family to transfer the Hindu undivided family property within reasonable limits for pious or charitable purpose without the consent of other members of the family and when there is no specific material in the record on behalf of the plaintiffs to establish that, the defendant no.2 was not a managing member of their Hindu undivided family, although as per law, the onus for proving the same is lying upon the plaintiffs, as they(plaintiffs) are challenging the gift deed vide Ext.C on the ground of lack of their consent and when the defendant no.2 has transferred only sixty decimals of properties, i.e., suit properties as per Ext.C out of the vast areas of properties of their Hindu undivided family and when, the defendant no.1(school) has been functioning / running over the suit properties since the year 1994 for 30 years imparting education to the students of the locality for general public benefit, then, at this juncture, the gift deed vide Ext.C executed by the defendant no.2 in favour of the defendant no.1(school) on dated 25.01.1994 in respect of the suit properties cannot be held as void. For which, the findings and observations made by the 1st appellate court reversing the findings and Page 22 of 23 observations of the trial court by holding that, the gift deed vide Ext.C as void cannot be sustainable under law. Therefore, there is justification under law, for making interference with the same through this 2nd appeal preferred by the appellants.
26. So, there is merit in this appeal of the appellants(defendants). The same must succeed.
27. In result, the appeal filed by the appellants (defendants) is allowed on contest against the respondents(plaintiffs), but, without cost.
The judgment and decree dated 29.03.1999 and 09.04.1999 respectively passed by the 1st appellate court in T.A. No.05 of 1997 is set aside.
The judgment and decree dated 04.03.1997 and 13.03.1997 respectively passed by the trial court in T.S. No.41 of 1994 is confirmed.
( A.C. Behera ) Judge Orissa High Court, Cuttack The 30th of September, 2024/ Jagabandhu, P.A. Page 23 of 23