Orissa High Court
Sri Rabindra Mohan Senapati vs Sri Budhiram Senapati & Others on 15 May, 2014
Equivalent citations: AIR 2014 ORISSA 152
Author: R. Dash
Bench: Raghubir Dash
ORISSA HIGH COURT: CUTTACK
F.A.O. NO.505 OF 2011
From the order dated 18.10.2011 passed by learned Civil Judge
(Senior Division), Bhadrak in I.A. No.395 of 2009 arising out of C.S.
No.310 of 2005-I.
__________
Sri Rabindra Mohan Senapati ...... Appellant
Versus
Sri Budhiram Senapati & others ...... Respondents
For Appellant : M/s. P.K. Rath, P.K. Satpathy
R.N. Parija, A.K. Rout, S.K. Pattnaik &
D.P. Pattnaik.
For Respondents : M/s. D.S. Mishra, D. Ray, S. Das,
G.K. Mohanty, G.P. Mohanty,
P.K. Panda & D. Mishra.
PRESENT :
THE HONOURABLE MR. JUSTICE RAGHUBIR DASH
Date of hearing : 07.05.2014 Date of judgment : 15.05.2014
R. DASH, J.This appeal is filed challenging the order dated 18.10.2011 passed in I.A. No.395 of 2009 arising out of C.S.No.310 of 2005-I by the learned Civil Judge (Senior Division), Bhadrak partly refusing the appellant's application under Order 39, Rules 1 and 2 C.P.C. There is no dispute that the appellant and the respondents belong to one family.
2. The appellant is the plaintiff-petitioner and the respondents are the O.Ps.-Defendant Nos.1 to 4 before the learned 2 lower court. The appellant as plaintiff has filed the suit for partition claiming that the plaint schedule landed properties which are recorded under Consolidation Khata Nos.329 and 576 are the ancestral property and rest of the properties have been acquired out of the joint family nucleus. But, respondent No.1, who is the father of the appellant and of respondent Nos.3 and 4, has managed to create some documents of acquisition in respect of some of the plaint schedule properties in his name. It is alleged that R.1 though was a State Government servant he was having no surplus personal income for acquisition of immovable properties. All the plaint schedule properties are under the joint possession and enjoyment of the family even though some properties have been acquired in the names of the appellant, the respondent No.1 and late Purusottam Senapati (father of respondent No.1). It is claimed by the appellant that he has got 1/5th share in the properties shown in the plaint schedule. It is alleged that respondent No.1 has illegally sold a portion of the plaint schedule property under Khata No.329 of Mouza Baikunthapur to outsiders who are arrayed as defendant Nos.7, 8 and 9 in the suit. It is further alleged that one of R-1's sons-in-law, taking advantage of the dispute between the appellant and his father (R.1), is trying to grab valuable suit properties. So far Cuttack suit property is concerned, it is claimed that the appellant is in occupation of the suit house standing on the suit schedule land under Khata No.330 of 3 Mouza Cuttack city, Unit No.38, Arunodaya Nagar. Being asked to vacate the house and being threatened to be evicted therefrom on the plea that respondent No.1 will transfer the property, the plaintiff has filed the suit and the interim application.
3. Respondents in their written statement have taken the stand that all the suit schedule properties are not the properties of the joint family. Some of them are self-acquired property of respondent No.1, acquired out of own income. The joint family nucleus was not sufficient to generate surplus income to be invested in the acquisition of the properties which have been acquired in the name of respondent No.1. Their specific plea is that the joint family had 4 to 5 acres of rain fed agricultural land usufructos whereof was not sufficient even for the maintenance of the family which consisted of as many as eight members. R-1 was a government servant and he has acquired some of the suit properties from his own income.
4. Learned trial court has asked the parties to maintain status quo in respect of the suit plot Nos.2256, 2258, 2262 and 2278 under Khata No.576 of Mouza-Brahmangaon and no interim protection has been granted in respect of rest of the suit properties.
5. On behalf of the appellant it is submitted that his limited prayer to restrain the respondents from creating any third party interest in a suit for partition should have been allowed by the learned trial court in order to avoid multiplicity of litigation. It is 4 further argued by the learned counsel for the appellant that while dealing with the interim application, the learned trial court should not have categorically observed that the suit property situate in Cuttack and Bhubaneswar are self-acquired property of respondent No.1.
6. Inviting attention to the respondents' application for vacation of the stay order (Misc. Case No.759 of 2012) and the additional affidavit filed by respondent No.1 it is submitted that the respondents have made it clear that respondent No.1 is all out to dispose of the plaint schedule properties which he claims to be his self-acquired property. So far the Cuttack property is concerned, it is submitted that R-1's plea that availing house building loan from the State Government he purchased the land at Cuttack is false in as much as the Government loan was sanctioned much after the land at Cuttack was purchased by R-1.
7. On behalf of the respondents it is submitted that the respondents have no objection if the joint family properties are protected till the end of the litigation but so far the self-acquired properties of R-1 are concerned, no interim order should be passed.
8. Though in the plaint there is averment that the joint family had a nucleus, there is nothing to show that it was such as out of it the properties acquired in the name of R-1 could be purchased. Since R-1, father of the appellant, was having his own 5 income and some of the suit properties have been acquired in his name, the appellant should come with a definite pleading as to what was the total income of the joint family property and what was the surplus after defraying the needs of the family. There is no presumption that a Hindu family, because it is joint, possesses nucleus and property acquired in the name of any of the members of the joint family has been acquired out of the income of the nucleus. Hindu law does not prohibit a member of a joint family from acquiring any property for his own benefit. Therefore, any property acquired in the name of an individual member is not presumed to be the property of the joint family or that it has been acquired for the joint family. Heavy onus lies on the plaintiff seeking partition of any property acquired in the name of a member of the joint family to prove that the property is joint. That being the position of law, the appellant cannot be said to have made out a strong prima facie case that the properties acquired in the name of his father are joint family properties. However, this being a partition suit, it stands in a separate footing. The respondent No.1 is the head of the joint family consisting of the appellant and the respondents. As already stated, respondent No.2 is R-1's wife and the appellant and R-3 and 4 are his sons. R-1 and his wife have grown old. It is submitted that both are suffering from serious ailments and for their treatment they need money. It is also submitted that though the appellant is in business, 6 R-1's other two sons (R-3 and 4) are unemployed and to support them financially to start their own business huge amount of money is necessary. That apart, being the head of the joint family, R-1 is entitled to dispose of joint family property for legal necessity or for the benefit of the joint family. On the other hand, this being a partition suit, if alienations are made during pendency of the suit it may adversely affect the rights of the appellant if he ultimately establishes his stand. It is also claimed by appellant that in the house standing on the land at Cuttack he is often staying to look after his small business.
9. Keeping all these facts and circumstances in mind, this Court considers it just and appropriate to direct the parties not to alienate any part of the property without leave of the Court.
10. In the result, the appeal is allowed in part. Parties are directed not to alienate the suit property or any part thereof without leave of the Court till final disposal of the suit.
..............................
R. Dash, J.
Orissa High Court, Cuttack The 15th May, 2014/D. Aech