Rama Chandra Nayak vs Kartika Behera And Others on 29 July, 2025

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Orissa High Court

Rama Chandra Nayak vs Kartika Behera And Others on 29 July, 2025

Sashikanta Mishra,J. This is a plaintiff's appeal against a reversing judgment. The suit filed by the plaintiff for declaration of his right, title, interest over the suit land with alternative prayer for partition being decreed was reversed in appeal.

R.S.A. No.285 of 2018 Page 1 of 18

2. For convenience, the parties are referred to as per their respective status in the trial Court.

3. The case of the plaintiff is that the suit land was originally jointly recorded in the names of three brothers namely, Bhagaban Behera, Nrusingha Behera and Banchhanidhi Behera, sons of Sadei Behera. Banchhanidhi died issueless leaving behind his widow Uma. Bhagaban died in the year 1950 leaving behind his widow Saria (Defendant No.2) and son Kartika (Defendant No.1). Prior to their deaths, Banchhanidhi and Bhagaban and the entire family was residing jointly with Nrusingha, being the eldest male member of their family was managing the family affairs. After their deaths, their shares devolved upon Defendant No.1 and Nrusingha, who is the predecessor of Defendant Nos.3 to 7. After death of Banchhanidhi, his widow Uma, who was young, went back to her parental house and married someone. In the year 1966, Nrusingha sold the suit land to the father of Defendant No.8 namely, Kusha Khillar vide R.S.D. No.3637 dtd.20.4.1966 for due consideration and delivered R.S.A. No. 285 of 2018 Page 2 of 18 possession. Nrusingha had sold the property for family maintenance and to meet the education expenses of Kartika, who was then a minor. Kartika was represented through his mother guardian Defendant No.2. Kusha mutated the suit property in his name. He died leaving behind Defendant No.8 as his only son. In 1991, Defendant No.8 sold the suit property to the Plaintiff through R.S.D. No.293 dated 18.1.1991 for consideration of Rs.13,000/- and delivered possession. It is the further case of the plaintiff that Defendant Nos.1 to 7 were initially interested to purchase the suit land from Defendant No.8, but as they did not agree to pay proper consideration money, Defendant No.8 sold the same to the plaintiff for which they bore grudge against him and disturbed his peaceful possession on 01.11.1991. Hence, the suit.

4. Though the Plaintiff had initially filed the suit for permanent injunction against Defendant Nos.1 to 7 but after filing of the written statement by the said defendants, he amended the plaint to incorporate the alternate prayer R.S.A. No. 285 of 2018 Page 3 of 18 for partition in the event the sale deed executed in his favour was not found valid in respect of the entire land.

5. Defendant Nos.1 and 3 to 7 contested the suit by filing joint written statement. Their case is that the sale deed executed by Defendant No.1 and Nrusingha in favour of the father of Defendant No.8 was not a sale deed but was obtained by Kusha cunningly on the pretext of a mortgage deed. He was a moneylender and as Nrusingha was in acute necessity of funds, he lent money to Nrusingha after insisting upon him to execute a sale deed for being kept as security. It was executed under such circumstances. The sale deed was never acted upon as the consideration money was never paid nor possession delivered. It is also their case that one of the vendors namely, Kartika was minor at the relevant time and therefore, not competent to enter into such transaction. It is also claimed that long before execution of the said sale deed, Uma Bewa, the widow of Banchhanidhi had sold her 1/3rd interest of his family property including the suit land in favour of Defendant Nos.1 and 3 vide R.S.D. dated 8.1.1953 and R.S.A. No. 285 of 2018 Page 4 of 18 delivered possession. Nrusingha had no authority therefore to alienate the entire suit plot in favour of Kusha Khillar for which the R.S.D. executed by him is an invalid document. Alternatively, the defendants took the plea of adverse possession claiming that they were in possession over the suit land despite execution of the sale deed on 20.4.1966 for more than the statutory period of 12 years. 6 Basing on the rival pleadings, the trial Court framed the following the issues for determination;

1.Is there any cause of action?

2.Is the suit maintainable?

3.Is the suit barred by limitation?

4.Is the plaintiff entitled for a decree of permanent injunction in respect of the suit land as prayed for?

5.To what relief?

6.Whether plaintiff has right, title and interest and possession over the suit land?

7.Whether the plaintiff is entitled for partition of the suit land as he has sought for?

7. Taking up Issue Nos.4, 6 and 7 for consideration together at the outset, the trial Court, referring to the evidence on record, held that Uma Bewa was a pre-Act widow and therefore, the alienation made by her on 8.1.1953 (Ext.C) is void ab initio as a female had no absolute interest over the land of her husband except right R.S.A. No. 285 of 2018 Page 5 of 18 to residence and maintenance prior to commencement of the Hindu Succession Act, 1956. As regards the sale deed dtd.20.4.1966, the trial Court found no reason to disbelieve it as the same was a 30 year old document and produced from proper custody. Considering the age of Kartik as mentioned in Ext.6 and Ext.3, it was held that he being represented through his mother guardian, no prejudice was caused to him. As such, it was held that the sale deed vide Ext.3 was a valid document and the title of the suit land had passed in favour of Kusha Khillar through it. Consequently, it was held that Kusha Khillar being the title holder was succeeded by his sole successor Defendant No.8, who validly sold the suit land to the Plaintiff vide R.S.D. dtd.18.1.1991. The defendants had no manner of right in respect of the suit land. On the above findings, the suit was decreed by declaring the right, title, interest of the plaintiff over the suit land and by permanently injuncting the defendants from interfering in his peaceful possession.

R.S.A. No. 285 of 2018 Page 6 of 18

8. Being aggrieved, the defendants carried the matter in appeal. Considering the contentions raised, the First Appellate Court, taking note of the settled principle of law, held that the finding of the trial Court that Uma being a pre-Act widow had no alienable right in respect of the interest of her husband was erroneous. It was held that where a Hindu died in joint status before commencement of the Act, his widow was competent to alienate the interest that devolved on her on the death of her husband in the joint family property estate. Moreover, as per Articles 178 and 184 of the Mulla's Hindu Law, even a widow having limited interest could alienate the property either for legal necessity or with the consent of the reversioners. The First Appellate Court was of the view that both the requirements were satisfied in the sale by Uma. That apart, the reversioners had never challenged the sale deed executed by her at any point of time.

Coming to the question whether the plaintiff is entitled to 1/3rd share of Defendant Nos.1 and 2 in the suit property, the First Appellate Court held that Defendant No.1 being a major, execution of Ext.3 showing R.S.A. No. 285 of 2018 Page 7 of 18 him a minor is void. Even if it was held that the Defendant No.1 was a minor on 20.4.1966, then also the sale was void for want of permission under Section 8 of the Hindu Minority and Guardianship Act. It was thus held that 1/3rd share of Banchhanidhi and 1/3rd of Bhagaban were not transferred to Kusha vide Ext.3 for which the Plaintiff is not entitled to the same. On such findings, the appeal was allowed by setting aside the judgment and decree of the trial Court and declaring the defendant's right, title, interest and possession.

9. Being aggrieved, the plaintiff has preferred this Appeal, which was admitted on the following substantial questions of law;

(i) Whether the learned lower Appellate Court was correct in deciding the right, title, interest of the defendant with the relief of permanent injunction when there was no prayer for the same and neither there was any counter claim to that effect in their written statement?

(ii) Whether the learned lower Appellate Court was correct in holding the entire sale deed (Ext.3) to be in valid even though at best the share of Kartika could have been deleted from/carved out and partition could have been allowed which R.S.A. No. 285 of 2018 Page 8 of 18 was also the alternative prayer of the plaintiff?

10. Heard Mr.A.P.Bose, learned counsel for the Plaintiff- Appellant and Mr. D.P.Mohanty, learned counsel for the Defendant-Respondents.

11. Mr. Bose would argue that the First Appellate Court committed manifest error in ignoring the evidence that Uma, the widow of Banchhanidhi had left her matrimonial home after death of her husband and had remarried. As such, she was not entitled to inherit any property from her husband. In this regard, Mr. Bose has relied upon a judgment of this Court in the case of Hira Dei v. Bodhi Sahu and others1. Mr. Bose further argues that the evidence of P.W.1 in this regard was never assailed in cross-examination and therefore, ought to have treated as admitted. As regards the sale deed vide Ext.3, Mr. Bose would argue that the defendants admit execution of the sale deed. If the deed executed by Uma (Ext.C) is held to be void, said property would devolve on Nrusingha, the surviving brother of her husband, as by then the other 1 AIR 1954, Orissa 172 R.S.A. No. 285 of 2018 Page 9 of 18 brother Bhagaban had also died. So Nrusingha alone had 2/3rd share over the property. As regards Bhagban's 1/3rd share, the same would devolve on his wife (Defendant No.2) and son (Defendant No.1). The reasoning that the age of Kartika being recorded as 7 years in Ext.C implies that he was a major by the time of execution of Ext.3 cannot be accepted for the reason that Ext.C was executed by the vendor Uma whereas Ext.3, in so far as it relates to Kartika, was executed by his mother. Obviously the age mentioned by his mother should be accepted. Under such circumstances the share of Kartika must also be treated as being validly transferred vide RSD dtd.20.4.1966 (Ext.3). Nrusingha, being the head of the family had the right to sell the joint family property for legal necessity. Even otherwise, Kartika (Defendant No.1) never challenged the sale within the period of limitation. Defendant No.1 also never objected and died in the meantime. Mr. Bose further argues that the defendants having parted with the property since 20.4.1966 and not having reclaimed the same within the statutory period could not have been allowed to stake their claim at this belated stage. The suit, being O.S. R.S.A. No. 285 of 2018 Page 10 of 18 No.292/1991-1 filed by the defendants was dismissed for default and was never restored. Therefore, the claim of the plaintiff is barred by constructive res-judicata. Mr. Bose sums up his argument by submitting that the finding of the First Appellate Court regarding the age of Defendant No.1 is based on surmises. Further, there being no counter claim raised by the defendants, the First Appellate Court could not have declared their title over the suit property in the plaintiff's suit.

12. Mr.D.P.Mohanty, learned counsel for the defendant- respondents, on the other hand, submits that the First Appellate Court rightly held that the sale of interest of Uma's husband after his death as a widow even prior to commencement of the Act is valid as per Articles 178 and 184 of the Mulla's Hindu Law. The reversioners were well aware of the sale but had never challenged the same at any point of time. Mr. Mohanty further argues that the sale transaction effected in the year 1966 for the entire property including Uma's share, already sold in favour of Defendant No.1 way back in 1953, cannot be treated as entirely valid. R.S.A. No. 285 of 2018 Page 11 of 18 The same can only be held to be valid after deducting the share of Uma i.e., 1/3rd already sold under Ext.C. According to Mr. Mohanty therefore, the First Appellate Court committed no illegality in passing the impugned judgment.

13 In view of the rival contentions noted above, it is evident that the primary question that falls for determination in this appeal is, whether the alienation of her 1/3rd interest in the suit property by Uma, widow of Banchhanidhi, vide R.S.D. dated 08.1.1953 (Ext.C) can be treated as valid in law. In this regard, it has been urged that she being a pre-Act widow has no such right. That apart, she went back to her matrimonial home after death of her husband and remarried, which also a disentitles her from any right over the property of her husband. The trial Court has not referred to any evidence whatsoever but appears to have indirectly accepted the plea. In order to satisfy itself as to correctness of such finding, this Court has also scanned the evidence on record carefully. Though Mr. Bose, learned counsel for the plaintiff-appellant argued R.S.A. No. 285 of 2018 Page 12 of 18 that the evidence of P.W.1 in this regard remained unchallenged, yet this Court finds that P.W.1 has not whispered a word regarding the so-called remarriage of Uma in his evidence affidavit. It is therefore, to be seen whether as a pre-Act widow she had any alienable right over the property left behind by her husband. In this regard, reliance can be placed on Article 178 of the Mulla's Hindu Law as per which the widow having limited interest can alienate the property either for legal necessity or with the consent of the reversioners. Article 184 also speaks of the same thing. Such alienation, as per Article 205 can only be challenged by the reversioners. In the instant case, the reversioners being the defendants have never challenged the sale deed dtd.8.1.1953. On the contrary, defendant No.1 was one of the vendees and the other reversioner Nrushingha was also one of the vendees. There is thus no reason to question the validity of the sale deed executed by Uma in favour of Defendant Nos.1 and 3.

14. Coming to the claim of the Plaintiff of having purchased 1/3rd share of Bhagaban vide RSD R.S.A. No. 285 of 2018 Page 13 of 18 dtd.18.1.1991 from Defendant No.8, it is noted that vide RSD dtd. 08.01.1953 defendant No. 1 and Nrusingha together purchased the 1/3rd share of Uma. Much has been argued as regards the validity of the subsequent sale made by Defendant No.1 and Nrusingha to the father of Defendant No.8-Kusha Khillar. The First Appellate Court has brushed aside such sale on the ground that Defendant No.1 was a major at that time but was projected as a minor in the sale deed. This finding appears to be based entirely on presumption inasmuch as the First Appellate Court was swayed away by the fact that in the sale deed executed in the year 1953, the age of Defendant No.1 was mentioned as 7 years and therefore, by the time Ext.3 was executed i.e, on 20.4.1966, he must have become a major. It is to be noted that the 1953 sale deed was executed by Uma as the vendor wherein the Defendant No.1 being one of the vendees, was represented through his uncle Nrusingha. On the contrary, in the 1966 sale deed, Defendant No.1 was represented by his mother guardian and his uncle Nrusingha. Nothing has been placed on record to doubt the bonafides of the mother of Defendant No.1 or her motive in R.S.A. No. 285 of 2018 Page 14 of 18 deliberately projecting her son's age wrongly in the sale deed. Therefore, the finding of the First Appellate Court based entirely on presumption cannot be sustained. Such being the position, the sale transaction effected in the year 1966 (Ext.3) cannot be entirely invalidated.

15. It is worth mentioning that vide RSD dtd. 08.01.1953 defendant No. 1 & Nrusingha together purchased the interest of Uma which devolved on her following the death of her husband and therefore, defendant No. 1 was entitled to 1/6th share. Vide RSD dtd. 20.04.1966, defendant No. 1 through his mother guardian and Nrusingha sold the entire Ac.1.28 dec. under Suit Khata No. 394 to Kusha Khillar. This sale deed can be held valid to the extent of the share of Nrusingha and the share of defendant No. 1 which he acquired as the son of Bhagaban and as a co-purchaser vide RSD dtd. 08.01.1953. It is significant to note that except acting as the mother guardian of defendant No. 1, the deceased defendant No. 2 (Saria) had not sold her own interest which she, as the widow of Bhagaban, inherited on the death of her husband. It is nobody's case that R.S.A. No. 285 of 2018 Page 15 of 18 Nrusingha had no right to sell the interest of defendant No. 2. Thus, Kusha Khillar vide RSD dtd. 20.04.1966 had acquired the interest of Nrusingha (including the interest of defendant Nos. 3 to 7) and the interest of defendant No. 1. In other words, RSD dtd. 20.04.1966 is found valid to the extent of 5/6th share as the 1/6th share inherited by Saria remained untouched. Saria having died in the meantime, her 1/6th interest would pass on to defendant No. 1. Therefore, the RSD executed by defendant No. 8 in favour of the plaintiff in respect of the suit land is valid to the extent of 5/6th share and the rest 1/6th share is of defendant No.1.

16. The First Appellate Court however, has proceeded on an entirely erroneous notion by ignoring the alternative prayer of the plaintiff for partition of the suit properties. Defendant No.1 and Nrusingha having sold their shares to Kusha Khillar, father of Defendant No.8 and the latter having sold the same to the plaintiff, it must be held that the plaintiff is competent to ask for partition. Instead of considering the plea of partition raised by the plaintiff in R.S.A. No. 285 of 2018 Page 16 of 18 the plaint by way of amendment, the First Appellate Court went on to declare the title of the defendants even without any counter-claim. Such approach cannot therefore, be accepted as correct.

17. Thus from a conspectus of the analysis of facts, law and the discussion made thereon, this Court is of the considered view that declaring the title of the Defendants by the First Appellate Court without considering the plea of partition raised by the plaintiff is legally incorrect. Further, the finding that the plaintiff acquired no title by virtue of Ext.3 also cannot be sustained as he must be held to have acquired 5/6th interest over the suit vide Ext.C as per the discussion made above. The substantial questions of law framed by this Court are answered accordingly.

18. In the result, the appeal is allowed. The impugned judgments and decrees are hereby set aside. The alternative prayer for partition is allowed. The suit is preliminarily decreed by holding that the plaintiff is entitled for 5/6th share and defendant No.1 is entitled to 1/6th share over the suit properties. The parties are R.S.A. No. 285 of 2018 Page 17 of 18 directed to effect partition of the suit properties amicably in accordance with the above noted shares failing which, they are at liberty to approach the trial Court for partition through the process of law. There shall be no order as to costs.

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Sashikanta Mishra, Judge Ashok Kumar Behera Signature Not Verified Digitally Signed Signed by: ASHOK KUMAR BEHERA Reason: Authentication Location: High Court of Orissa, Cuttack Date: 30-Jul-2025 16:10:00 R.S.A. No. 285 of 2018 Page 18 of 18

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