Orissa High Court
Puspalata Nanda And Others vs Sarat Chandra Nanda And Others on 26 July, 2017
Author: D. Dash
Bench: D.Dash
IN THE HIGH COURT OF ORISSA, CUTTACK
R.F.A. NO. 48 OF 2008
From the judgment and decreed dated 24.03.2007 and 09.04.2007
respectively passed by learned Civil Judge (Sr. Division),
Bhubaneswar in Title Suit No. 302 of 1995.
.........
Puspalata Nanda & others :::: Appellants.
-:: VERSUS ::-
Sarat Chandra Nanda & others :::: Respondents.
For Appellants :::: M/s. Biren S. Tripathy,
M.K. Rath, J. Pati, R.
Behera, Mahadev Mishra,
Miss Mamata Mishra,
R.K. Sutar, G.C. Bhuyan,
S. Pradhan, B.S.
Tripathy, Advocates.
For Respondents :::: M/s. S. P. Mishra,
S. Dash, S. Mishra, S.
Nanda, Miss S. Mishra,
A.K. Dash, S.K. Mohanty,
S.S. Kashyap,
M/s. M.M. Sahu, Sk. H.
Reheman, T. Sethi,
M/s. A.R. Dash, S.K.
Nanda, B. Mohapatra,
S.N. Sahoo, K.S. Sahoo,
M/s. S. Mishra, B.
S.Panigrahi, S.K. Sahoo,
D. Priyanka, K. Kar, B.S.
Tripathi, S. Pradhan,
G.K. Bhuyan, R.K. Sutar,
Miss Mamata, A. Mishra,
Advocates.
.........
=2=
PRESENT:
THE HON'BLE MR. JUSTICE D.DASH
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Date of hearing 04.07.2017 : Date of judgment 26.07.2017
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This appeal has been filed by the unsuccessful plaintiffs
challenging the judgment and decree passed by learned Civil Judge
(Sr. Division), Bhubaneswar in Title Suit No. 302 of 1995 dismissing
their suit.
2. For the sake of convenience, in order to avoid confusion
and bring in clarity, the parties hereinafter have been referred to as
they have been arraigned in the trial court.
3. (a) The plaintiff no. 1 is the mother of plaintiff no. 2
to 5 and they are the legal heirs of late Ramesh Chandra Nanda.
The defendant nos. 1 to 5 are the brothers of Ramesh;
defendant no. 6 is their sister and defendant no. 7 is son of
defendant no. 6.
(b) The plaintiffs case is that the parties are the members of
Hindu joint family and descendants of Dasarathi who is their
common ancestor. It is stated that they had land in mouza
Lunighat, Gopinathpur in the District of Ganjam in the State which
is joint family properties, providing sufficient income. It is stated
that there was surplus income from the joint family properties after
meeting all such expenses and maintenance. Due to growing
importance of the State capital, the members of the family therefore
=3=
decided to acquire some properties there at Bhubaneswar. Then the
husband of the plaintiff no. 1 was serving at Bhubaneswar in one
Nationalised Bank as cashier. It is stated that the defendant no. 1
acted as the Karta of the family, sometime after Ganeswar grew old.
He continued to enjoy the status as before after Ganeswar's demise.
It is further stated that one Lalita Devi who is the sister of Ganeswar
had been divorced at her young age and was with them. The family
members having decided to acquire some property at Bhubaneswar;
in pursuant to the same, Dasarathi is said to have acquired
Schedule-A land from the State Government by way of lease. This
acquisition is said to have been made for and on behalf of the
family; the expense being met from out of the surplus of the income
from the joint family property. It is stated that Dasarathi got
Schedule -A land on lease from the Government on 02.06.1958.
However, since, Lalita was very close to Dasarathi, Plaintiffs specific
case is that, despite the execution of one deed of gift by Dasarathi
gifting the suit land in favour of Lalita, she had never accepted the
same and on the other hand the property is said to have been
treated all along as joint family property and dealt as such. It is
further stated that from out of the surplus of the income from joint
family property and the earnings by members from their profession
as priests, pucca construction have been put up over schedule -A
land wherein the husband of plaintiff no. 1 has contributed in a big
=4=
way for the same. The building consists of three rooms in the
ground floor; one big size room in the first floor and other ante-
rooms. The plaintiffs state that after death of Ramesh, they felt
neglected and resided in one room in the ground floor of that
building. The defendants then began to create trouble with regard to
such occupation of the room by plaintiffs. So the well wishers of the
parties intervened. It is stated that after necessary discussion at the
intervention of those well wishers, a family arrangement was made,
one or two days before Dasshera in the year, 1992. The arrangement
is said to be oral followed by allotment of entire Schedule-A property
in favour of the plaintiffs with other conditions that the rent as
would be realized from the big room in the first floor would enure to
the benefit of all the members of the family and the rent from other
rooms would be taken by the plaintiffs. In the said arrangement
amongst the members of the family, the plaintiffs thus have been
conferred with all the rights as above in so far as the Schedule-A
property is concerned. It is also stated that the plaintiffs were not
given any share in the family movables described in Schedule-D and
other joint family properties in Schedule-B.
In view of the move by the defendants to dispossess the
plaintiffs despite the above family arrangement, the suit has been
filed claiming the following reliefs:-
=5=
a) Court may be pleased to declare that the family
arrangement has taken place allotting only 'A'
Schedule property in the plaintiffs share;
b) Possession of the plaintiff over the 'A' Schedule
property may be confirmed and in case of
dispossession, they may be restored with the
possession of the 'A' Schedule property through
court;
c) The defendants may be restrained permanently
from interfering in the possession of the plaintiffs
over the 'A' Schedule property;
d) Cost of the suit may be decreed in favour of the
plaintiffs;
e) The plaintiffs may be given any such other reliefs
to which that may be entitled to under the
provisions of law and circumstances of the case;
f) In case Court feels that the partition envisaged
under prayer 'a' has not taken place. Court may
be pleased to pass a preliminary decree of
partition in regard to 1/6th share of the plaintiff
over 'A', 'B', 'C' and 'D' Schedule property detailed
below and direct the defendants to partition by
metes and bounds within the time specified by
the court, failing which court may be pleased to
appoint a Civil Court Commissioner to prepare
allotment in regard to plaintiff's share having an
eye upon possession of plaintiffs and Final Decree
may be passed thereon and the plaintiffs may be
given possession through court. Since the suit in
effect is a suit for partition and part of the suit
=6=
property namely schedule-'A' is located and lies
within the jurisdiction of this court, the whole
suit is filed before this Hon'ble Court.
4. The defendant nos. 1 to 5 coming to contest, in their
written statement from the very beginning denied that the joint
family had any land in possession such as bagayat or agricultural
land at Lunaghat, Gopinathpur in the district of Ganjam except a
thatched house. The plaint averments to that effect have been
denied. It is their case that the joint family members were
maintaining themselves by their family profession as Purohit in the
houses of co-villagers and also the villagers of nearby villages. The
joint family was having no surplus income. The defendants state
that Dasarathi the common ancestor then decided to leave the
village and come to Bhubaneswar in order to eke out his livelihood
and help maintaining the members of joint family property. It is
stated that when Dasarathi came to Bhubaneswar, his three sons
were living separately. Having come to Bhubaneswar, Dasarathi
acquired Schedule-A land by way of a lease from the State. The said
acquisition is said to be with the spending from out of his own
income, when the joint family status was no more, there being
severance of said status since long. Dasarathi had taken loan under
L.I.G. Housing Scheme and that amount has been spent for
construction of the house. He had built two roomed house over
=7=
there and lived with his daughter, Lalita who was then a divorcee,
mostly remaining ill.
It is stated that Dasarathi as required under the conditions of
lease, after obtaining permission from the Lessor on 05.08.1974 had
gifted Schedule -A land to her daughter, Lalita by a registered deed
of gift on 16.08.1974 and had delivered the possession of the house
to Lalita who had so taken in token of acceptance of the gift. It is
stated that Lalita had got Schedule-A land and house by gift and
became the absolute owner, and as such remained in possession by
paying rent etc to the State. She is thus stated to have stepped into
the shoes of the Lessee being the done from the original Lessee who
had so gifted his lease hold interest to Lalita with due permission of
the Lessor and as required being a precondition for transfer in any
such manner.
It is next stated that after the death of Dasarathi on
19.08.1974, his three sons in order to avoid future dispute relating to the ownership of schedule-A land and as a measure of abundant caution had further executed a deed of relinquishment on 30.04.1975 in favour of Lalita admitting therein that the property described in Schedule-A was the exclusive property of Dasarathi acquired by his own income without any contribution or help from their side either in acquiring the said property or in putting up any construction over there. Lalita having got the property on gift as its =8= owner has transferred the same to defendant no. 1 for a consideration of Rs. 35,000/- having again obtained the permission from the Leasor. The transaction had taken place under registered deed of sale dated 06.08.1982 and Lalita pursuant to the said sale delivered the possession of the property to defendant no. 1. So, the defendant no. 1 claims to be the absolute owner of schedule-A property and also to have repaid the entire loan incurred by Dasarathi for construction of the house over the schedule-A land. It is further stated that defendant no. 1 had obtained approval of the building plan from Bhubaneswar Development Authority and has constructed the first floor of the building availing loan. The land is said to have been mutated in his name and he is paying the rent and taxes for the said land.
These defendants have denied the factum of family arrangement as has been pleaded by the plaintiffs and all other arrangement as have been said to be flowing therefrom as projected by the plaintiffs. They further state that the defendant no. 3 to 5 had developed the Schedule-B property incurring loan from the Bank and had put up a building over there, wherein the plaintiffs are said to have been residing. They state that this Schedule-B property has been mortgaged with the Bank for obtaining a loan of rupees One Lakh and the plaintiff no. 1 has been repaying the said loan from out of her monthly salary. So, they refute that the =9= plaintiffs claim that Schedule-A property had been given to them and further assert that Schedule-B property had never been given to the defendants in lieu of that and according to them those are imaginary to suit the purpose.
5. The defendant no. 6 and 7 have stated that Ramesh had not invested any sum for acquisition of Schedule -A property. The property in Schedule-B was acquired in the name of Dasarathi from out of the income from Schedule-B and C properties. They state that Schedule-A property is the joint family property and the parties are having their shares over it. It is stated that defendant no. 1 having played mischief has got it recorded in his name and he is not the absolute owner in possession of the property.
6. The trial court on the above rival pleadings, has framed following issues:-
1. Whether there was cause of action to file the suit?
2. Whether the acquisition made by Dasarathi is of joint family nucleus of his self acquired property?
3. Whether the registered deed of gift executed by Dasarathi Swain in favour of Lalita is valid and acted upon by the parties?
4. Whether Lalita had executed a deed of sale in favour of defendant no. 1 in respect of 'A' Schedule?
= 10 =
5. Whether defendant no. 1 became the absolute owner of 'A' Schedule property after purchasing same from Lalita?
6. Whether there was any oral family arrangement between the parties in which the 'A' Schedule land fell to the share of the plaintiffs in lieu of X B, C and Schedule lands?
7. Whether the plaintiffs are alternatively entitled to the relief of partition of A, B, C and D Schedule properties as claimed for?
8. Whether the plaintiffs are entitled to the relief of confirmation of possession over 'A' Schedule land or in the alternative for recovery of possession if found to have been disposed during the pendency of the suit?
9. Whether the plaintiffs are entitled to the relief of permanent injunction restraining the defendants from disposing her from 'A' Schedule property?
10. Any other relief, the plaintiffs are entitled to?
7. At first taking up issue no. 2 for decision upon analysis of evidence, it has rendered the finding that the Schedule -A property is the absolute property of Dasarathi.
Next going to answer issue no. 6 as regards the oral family arrangement being the outcome of verbal discussion and deliberation, on examination of evidence let in by the parties, the finding has been that the plaintiffs have failed to prove that there was any family arrangement in the year, 1992, wherein Schedule-A = 11 = land and house had fallen to their share and that they in turn had relinquished their share over Schedule-B, C and D properties.
After that, proceeding to answer issue no. 3 as regards the acceptance of deed of gift and consequentially deciding upon the impeachment i.e. questioning its validity, the trial court's answer upon discussion of evidence as well as the facts and circumstances of the case is that the gift was duly made by Dasarathi and accepted by the donee, Lalita. So the answer on this issue has been recorded against the plaintiffs. Lastly, going to decide issue no. 4 and 5 together, the trial court's answer is that Lalita being the owner in possession of the property in Schedule-A had sold the same to defendant no. 1 and thus, defendant no. 1 is the owner in possession of the said property.
The issue in relation to the prayer for partition has received its answer in the negative on the ground that such partition of Schedule-B property cannot be ordered in the absence of the legal representatives of Bipra Charan; Schedule-C property is not in existence and so also the movables described in Schedule-D. Answers to the other issues have been consequential and have gone against the plaintiffs.
8. After closure of hearing, learned counsel for the parties have submitted their respective written notes of submission which have been taken on record.
= 12 = Learned counsel for the appellants assailing the findings of the trial court as aforesaid submitted that the existence of joint family property being proved through evidence and so also the existence of joint family property, the trial court ought to have held the burden of proof to have shifted to the defendant nos. 1 to 5 to prove that such acquisition of Schedule-A property was not with the help of surplus income from the joint family property. According to him that having not been proved by the defendant nos. 1 to 5 the property in question as described in Schedule-A ought to have been held to be the joint family property available for partition amongst all the members of the family in accordance with their entitlements of their shares therein. Buttressing the above submission, he had taken the pain of placing the oral evidence touching the point in contending that the assessment of evidence, if would have been properly made, a finding by preponderance of probability could have well been rendered on the issue no. 2 in support of the case of the plaintiff and that be so recorded in this appeal.
He further submitted that the finding on issue no. 6 is based on unjust and improper appreciation of evidence on record without proper evaluation through the legal spectrum. According to him, the plaintiffs having set forth a case of oral family arrangement, the court ought to have given maximum stress upon the enjoyment of the properties by the parties and therefrom, the = 13 = inference ought to have been drawn in support of the family arrangement. He submitted that the oral evidence on record being overwhelming to record a finding that the family arrangement had been made in the year 1992 by the allotment of Schedule-A property in favour of the plaintiffs simultaneous to the relinquishment of share of the plaintiffs over Schedule-B, C and D properties by them, the finding of the trial court on that score cannot sustain.
He also contended that the registered deed of gift executed by Dasarathi, first of all ought to have been held to be invalid in respect of the entire property purported to have so gifted to Lalita in view of the finding that the property is not the exclusive property of Dasarathi, the donor which has to be the proper conclusion as already argued. Next in respect of validity of the so called gift in favour of Lalita, he contends that there being absolutely no evidence as regards acceptance of the gift which is the legal mandate and condition for recording a finding in favour of the gift, the trial court has erred both in fact and law by giving the seal of approval to the said registered deed of gift holding it to have its full play in the field. He further submitted that the trial court ought not to have held that since Lalita was staying in the suit house, the possession of the gifted property had been so delivered to her, in the absence of any such evidence relating to the conduct of the parties soon after the purported gift or within such time having reasonable proximity to = 14 = the transaction. He next contended that the trial court ought to have held that Lalita had no power to execute the sale-deed since he had not derived the title over the property in question by virtue of the gift and therefore consequentially, it ought to have been held that defendant no. 1 is not the absolute owner of the property under Schedule-A by virtue of his purchase from Lalita.
9. Learned counsel for the respondents while supporting the findings of the trial court urged that each limb of the contentions raised on behalf of the appellants in assailing the finding of the trial court on issue no. 2; 6; 3; and 4 & 5 is untenable. According to him, the findings are not contrary to the evidence on record and are based on just and proper analysis. According to him, the position of law holding the field on each of the above issues being well settled, the findings on each of those above noted issues are wholly inconsonance with the same and further keeping in view the burden of proof lying upon the plaintiffs in establishing their case and holding that the evidence let in by plaintiffs being not sufficient enough, on the score of discharge of burden of proof. He contended that when the trial court upon proper evaluation of evidence on record has held that the plaintiffs have failed to discharge the burden of proof that the Schedule-A property is the joint family property, the question of shifting of onus upon the defendant nos. 1 to 5 has been rightly answered as 'No'. According = 15 = to him, the trial court on a bare perusal of the evidence let in by the plaintiffs though ought to have non-suited them in refusing to grant the reliefs as prayed for; nonetheless it has gone for a detail analysis of evidence which in fact was not necessary as there has been totally failure on the part of the plaintiffs to establish the foundational fact in laying down the claim to put up the structure over it in furtherance thereto. He contended that the evidence being examined critically from all possible angle, the findings on all the above issues as recorded by the trial court are unassailable. He submitted that it's a speculative suit which has been filed by the plaintiffs either to take a chance in some way or other or to satisfy their urge of harassing the defendant nos. 1 to 5 through long drawn litigation. He further submitted that despite the dismissal of the suit; for its continuance for more than nine years by now; the defendants have greatly suffered from the brunt of the fire of the litigation.
10. The facts and circumstances as those reveal from the rival pleadings being taken together for consideration in the touchstone of the submissions of the learned counsel for the parties as aforesaid, what it appears to me is that the fate of the suit mainly hangs upon the findings on issue nos. 2 and 6. In the event, the answer to those issues are given in the negative, the finding on other issues would follow as sequel.
= 16 = In the above premises, let us first begin with the exercise of examination of sustainability of the finding of the trial court on issue no. 2 which would in great way provide answer to the issue no. 6 that follows issue no.2.
11. Indisputably, Dasarathi is the common ancestor. He had three sons namely, Ganeswar, Kurtibas and Bipra Charan and a daughter Lalita. Six sons of Ganeswar are:- Sarat (defendant no.1), Ramesh (the husband of plaintiff no. 1 and father of plaintiff no. 2 to
5), Bibhuti (defendant no.2), Subash (defendant no.3), Jagadish (defendant no.4) and Prakash (defendant no.5). Dasarathi died in the year 1974. His daughter Lalita is dead prior to the institution of the suit and so also Ramesh, the predecessor in interest of the plaintiffs. The defendant no. 6 & 7 are the wife and son of Kurtibas coming to be arraigned in the suit subsequently. The members of the branch of Bipra Charan have gone unrepresented being not arraigned as parties. Before proceeding for analysis of the evidence qua the issue no. 2 in ascertaining as to if the case set forth by the plaintiffs in Schedule-A property is the joint family property of the parties, or not, the settled law holding the field need be kept in mind.
12. The position of law stands well settled that mere proof of the existence of joint family does not carry with it the presumption that the property held by the any member of the said = 17 = family which has some joint family property are the joint family property. There is thus no presumption that the family, because it is joint, possesses joint property. When in a suit for partition, a party claims any particular item of property held by any individual member is joint family property, the burden of proving that it is so, rests upon the party asserting the same.
13. In order to raise a presumption that property acquired by a member of joint Hindu Family is joint property not only that the nucleus be established to be sufficient for the acquisition of the property but it should be further established that it was so available to the acquirerin his hands at the relevant time. If in fact at the date of acquisition of a particular property, the joint family had sufficient nucleus for acquiring it, the property in the name of any member of the joint family should be presumed to have been acquired from out of the joint family funds so as to form part of the joint family property, unless the contrary is shown and the presumption is accordingly rebutted by the acquirer. In other words, when it is proved that the family possessed sufficient nucleus with the aid of which said property could be acquired then presumption would arise that such acquired property is joint family property and the onus would shift unto the person claiming it to be self-acquired.
14. In case of a joint family, thus, mere existence of a nucleus is not enough to raise a presumption that all the properties = 18 = in the hands of various members are as such joint family property available for all the members. The presumption comes to have its play only if the nucleus is found substantial in the factual settings and is such that its yield could provide in whole or at any rate in considerable part, the money necessary for acquiring the property in question. Where, therefore, the facts established are that the family was joint and that it had some nucleus of joint ancestral property, and it being not established that the yield of the nucleus was sufficient for acquiring an item of property, the plaintiffs cannot be held to have discharged the initial burden that lay upon them to prove the jointness and the onus, therefore, would never get shifted unto the shoulders of the defendants to prove affirmatively that the item of property was the self-acquired property. The question of presumption can arise only when the facts are not known or there are gaps in the evidence which have been filled in with their aid. Where the facts and the circumstances leading to the acquisition of the properties and the extent and the manner in which the aid of ancestral and self-acquired properties were taken in their acquisition are known, there is no question of applying any presumption.
15. Evidence of P.W. 1 is that the members of family are Priests (Purohits) by profession and it has been continuing since the time of their ancestors. In the instant case, though the plaintiffs = 19 = have pleaded that the joint family had bagayat, agricultural and homestead lands, no such documents have either been produced or proved so as to take a view over the nature and extent of the property and to infer even the relative value. Mere oral evidence coming from the lips of P.W. 1 that the father and grandfather were working as 'Purohit' and they had sufficient surplus income from their profession as well as landed properties, won't suffice the purpose of the claim as laid. It is seen that the sale-deed dated 21.03.1990 showing purchase of the interest of other co-sharers over Schedule-B by Ramesh, being put to P.W. 1 during cross- examination; she has gone to deny it. The document has been marked as Ext. E which shows that the sons of Ganeswar have sold landed property with a thatched house in the year 1990. P.W. 1 does not also give any explanation on that score. She has frankly expressed her inability to produce any document with regard to the cultivable land. The averments made in the plaint that the joint family was having the nucleus and there was surplus out of the same which was remaining in the hands of Dasarathi has gone without being established through evidence. The acquisition is by way of lease from the Government. It is not stated that the application for grant of lease made by Dasarathi was for and on behalf of all the members of the family. Nothing has been shown that the lease was so granted to Dasarathi being a member of the = 20 = joint family and not alone in his individual capacity so as to enure to the benefit of all the members of the joint family and not the applicant i.e. Dasarathi alone. No evidence has been tendered also as regards contribution towards the premium etc. coming from other quarters. Admittedly, that Dasarathi has got it on lease and has constructed a house over there. He has also taken loan for that . In this situation simply to say that Dasarathi had acquired property by way of lease from the State with the help of joint family funds can't stand to acceptance without strong proof of the fact that Dasarathi did everything for the purpose of getting the lease not for himself but for all the members of the family and that it was not within the reach of Dasarathi to meet the expenditure for the purpose, for which he had taken the aid and assistance of the joint family funds. In the instant case on the laid evidence, the presumption does not get raised. It being a lease by the State, the lessee would be he/she who has been so recognized and accepted by the Lessor-State unless there appears any intention contrary thereto in the lease in express term. The evidence is wholly insufficient and that apart on the face of the proof of the documents from the side of the defendant nos. 1 to 5, particularly the deed of mortgage, Ext. F and the other document, most importantly, the deed of relinquishment Ext. V executed by three sons of Dasarathi containing the recital that the suit land is exclusive property of Dasarathi which when stands as = 21 = admission, has also not in any way been explained away differently, this Court is having no option but to affirm the finding of the trial court as regards the exclusive ownership of Schedule-A land. The evidence let in by the plaintiffs fall far short of the requirements in getting a finding on this issue in their favour and that can't be made good of by the mere averments in the written statement of defendant no. 6 and 7 which they have not chosen to prove later.
16. The plaintiffs have next projected the case family arrangement. The settled position of law stands that there is no provision of law requiring family settlement to be reduced to writing and registered. But only when it is reduced to writing the question of registration may arise according to its construction as to if by the said writing the arrangement has been made or after the arrangement being made and given effect to, for the sake of evidence the document is created. If after arrangement being made, its terms are reduced to the form of writing with the purpose that the arrangement with the terms should be evidenced by it, legal requirement of registration would not come in. The registration as mandated under section 17 of the Registration Act would stand on the way of its admissibility in evidence for that purpose, if construction of the terms and conditions as embodied in the document leads to take a view that by such document, the arrangement has been so effected and has thereafter been acted = 22 = upon. That family arrangement however can be used as a piece of corroborative evidence for showing or explaining the conduct of the parties, if, it is admitted in evidence after being duly impounded and marked as exhibit as such and can be looked into for the collateral purpose to the extent as permissible in law.
17. Family arrangement is basically arrived at and entered into by the members of the family for settlement of the family disputes already running or likely to arise in future i.e. in anticipation. Also arrangement for preservation for family property or in the direction of maintenance of peace or security of the family is also regarded as family arrangement. Thus, for the validity of the family arrangement, there need not always be the existence of a family dispute and it is enough if such a dispute is anticipated and further, the settlement of some doubtful claim between the members of the family may provide a good consideration for a family arrangement.
The law is equally settled that the family arrangement is based on the assumption that there is an antecedent title of some sort in the parties and the agreement acknowledges and defines what that title is, each party relinquishing all claims to property other than that falling to his share and recognizing the right of others as they had previously asserted it to be the portions allotted to them respectively. That explains why no conveyance is required in = 23 = this case to pass title from the one in whom it resides to the person receiving it under the family arrangement.
18. Be that as it may, the fundamental aspect remains that the parties must be having pre-existing right over the property and by the said arrangement none is going to be conferred with altogether a new right except of course in case of blending which must be pleaded in that way and proved first which is not the case here. The family arrangement must be the declaration on pre- existing right and not the creation of right, title and interest in present, in which event it is required to be reduced to writing seeking compulsory registration. However, in that event it would only be standing consideration for collateral purpose within the limited scope and meaning, but can't be used for the purpose of giving a finding of ownership as indicated therein.
19. Coming to the answer on issue no. 6, it is seen that the discussion of evidence has been made by the trial court in great detail. Admittedly, in the absence of any writing evidencing the family arrangement, the evidence relating to the conduct of the parties and enjoyment of the properties are the main factors to be looked into and banked upon. An oral family arrangement is no doubt permissible but for its acceptance evidence must be there on record to show that in fact it had taken place and the parties accordingly accepted the said arrangement as evident by their = 24 = conduct and dealing of properties as also on all other aspects overruling or explaining all those circumstances standing in the negative. Besides the oral evidence of P.W. 1 on that score; the evidence of P.W. 2 has been tendered. However, the evidence of P.W. 2 as it appears does not inspire confidence in the mind since P.W. 2 has feigned his ignorance to state other material facts on being put to him. He has not verified any document relating to any landed property; he has no idea about the value of the suit property and he has not been able to state the total extent of the property that the parties had/have. There has been no change of record basing upon the so called family arrangement nor any attempt shown to have been made at any point of time. This factum of family arrangement had been denied by defendant nos. 1 to 5. The solitary evidence of P.W. 1 is in a general manner. On the other hand, in order to show that the assertion is false, the contesting defendants have proved the registered sale-deed, Ext. W and have tendered evidence on the score that the husband of the plaintiff no. 1 had obtained loan by mortgaging B Schedule property and constructed pucca house over the Schedule-B land which is in possession of the plaintiffs which cannot be discarded as neither those have been shaken during cross-examination nor there stands any other factual aspects to take a view to the contrary or even to so infer. This evidence has gone totally un-countered and it thus cuts across the evidence of = 25 = P.W. 1 as regards the so called family arrangement, at the very root. Moreover, when the property has been held to be the self acquired property of Dasarathi, there is neither any pleading setting up a case of blending nor any proof on that score. In that way, if we consider, this type of family arrangement as not permissible in the eye of law as the parties had no pre-existing right over the property and by the arrangement since they are going to get the right conferred, its not permissible to be so made orally and the claim on that basis is not visible in the eye of law. This touches the very fundamental concept of family arrangement. As is seen, the trial court has made an elaborate discussion of evidence on this score and their impact from all angles in recording a finding that the plaintiffs have failed to prove such oral family arrangement.
Having carefully gone through the evidence on record and upon their critical examination, which do not score well to pass through and sent up as discussed above in the light of the settled law, this Court does not find any such reason to take a different view in so far as the issue no 6 is concerned.
20. With the above answer on issue no. 2 and 6, before going to examine the sustainability of the finding on issue no. 3 it may at first be taken note of that the finding of the trial court stands that Dasarathi had validly executed the deed of gift. Dasarathi has executed deed of gift in favour of his daughter who was a divorcee = 26 = since her younger days. The gift has been made by execution of registered deed as is required under law. It is stated by P.W. 1 who is the plaintiff no. 1 that it was a nominal deed of gift and has never been acted upon. The certified copy of the deed of gift has been admitted in evidence and marked as Ext. H with proper and acceptable explanation in laying foundation for acceptance of secondary evidence. For this deed of gift, Dasarathi has taken the permission from the lessor. That again shows that the lessor has accepted the donee as its lessee for all purposes and the donee has accordingly stepped into the shoes of the original lessee, Dasarathi. Three sons of Dasarathi after death of Dasarathi have further executed a deed of relinquishment of their interest over this Schedule-A property in favour of Lalita. In otherwords they have admitted the gift and have rather stated to be having no further claim. The evidence remains that Lalita was staying in the house till her death. With such state of affair in the evidence, this Court finds all the reasons to accord concurrence to the finding returned by the trial court.
21. Next proceeding to the answer on issue no. 4 and 5, a careful reading being given to the entire evidence on record both oral and documentary and in the back drop of the pleadings, no fault is seen to be on the part of the trial court in rendering the finding that Lalita being the owner in possession of the Schedule-A land has = 27 = executed the sale-deed in favour of defendant no. 1 on 17.04.1982 for valuable consideration and had delivered the possession of the same, thus clothing the defendant no. 1 with right, title, interest and possession over the Schedule-A land.
With the affirmation of above findings as recorded by the trial court, this Court confirms the judgment and decree passed by the trial court.
22. Resultantly, the appeal stands dismissed. In the facts and circumstances of the case, the parties are directed to bear their respective cost throughout.
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D. Dash, J.
Orissa High Court, Cuttack Dated the 26th day of July, 2017/ Narayan