The High Court
Case Details
IN THE HIGH COURT OF ORISSA AT CUTTACK S.A. No.441 of 2001 (In the matter of an appeal under Section 100 of the Code of Civil Procedure, 1908) Rajkishore Sahoo …. Appellant -versus- Dayanidhi @ Daitari Sahoo (dead) and others …. Respondents Appeared in this case by Hybrid Arrangement (Virtual/Physical Mode): For Appellant - Mr. Ramakanta Mohanty, Sr. Advocate. Mr. B.C. Panda, Advocate. For Respondents - Mr. Dillip Kumar Pradhan, Advocate. (for the respondent No.2) None (for other respondents) CORAM: HON’BLE MR. JUSTICE A.C.BEHERA Date of Hearing :03.07.2025 :: Date of Judgment :31.07.2025 A.C. Behera, J. This second appeal has been preferred against the confirming judgment. 2. The appellant in this second appeal was the defendant No.1 before the Trial Court in the suit vide T.S. No.199 of 1990 and appellant before the First Appellate Court in the First Appeal vide T.A. No.50 of 1996. The respondents in this second appeal were the plaintiff and defendant Nos.1(a) to 4 respectively before the Trial Court in the suit S.A. No.441 of 2001 Page 1 of 18 vide T.S. No.199 of 1990 and respondents before the First Appellate Court in the First Appeal vide T.A. No.50 of 1996. 3. The suit of the plaintiff (respondent No.1 in this second appeal) before the Trial Court vide T.S. No.199 of 1990 against the defendants was a suit for partition. 4.
Legal Reasoning
The case of the plaintiff as per the averments made by him in his plaint was that, the Schedule ‘A’ genealogy given in the plaint is his family pedigree and the properties described in Schedule ‘C’ are the suit properties for partition. As per the ‘A’ Schedule genealogy, Dama Sahu was the common ancestor of the plaintiff and defendants. The said Dama Sahu died leaving behind his widow wife Guri Dei and two sons, namely, Banamali Sahu and Anadi Sahu. After the death of Dama Sahu, Guri Dei died leaving behind Banamali Sahu and Anadi Sahu as her two sons as well as her successors. Banamali Sahu died in the year 1950 leaving behind his two sons i.e. Dinabandhu Sahu (defendant No.2) and Binod Sahu (defendant No.3). Anadi Sahu died in the year 1980 leaving behind his two sons and one daughter i.e. Dayanidhi @ Daitari Sahoo (plaintiff), Rajkishore Sahu (defendant No.1) and Arnapurna Mohapatra (defendant No.1/a). Defendant No.4 is the son of the plaintiff. S.A. No.441 of 2001 Page 2 of 18 The properties described in Schedule ‘C’ of the plaint is the part of the properties described in Schedule ‘B’. The properties described in Schedule ‘C’ i.e. A0.196 decimals of Plot No.1341 under Sabik Khata No.45 originally belong to Guri Dei wife of Dama Sahu. The suit properties were recorded in the name of Guri Dei in the R.o.R. published in the year 1931 settlement. Out of A0.196 decimals of suit Plot No.1341, Guri Dei sold A0.040 decimals to one Lalita Devi. After selling that A0.040 decimals, Guri Dei kept and possessed the rest properties of Plot No.1341 i.e. A0.156 decimals as owner of the same. After the death of Guri Dei, the said properties i.e. A0.156 decimals of Plot No.1341 left by Guri Dei devolved upon her two sons i.e. Banamali Sahu and Anadi Sahu. In its next settlement, the said A0.156 decimals was recorded jointly in the name of Banamali Sahu and Anadi Sahu and accordingly, Banamali Sahu and Anadi Sahu became the joint owners over the suit properties i.e. A0.156 decimals described in Schedule ‘C’ of the plaint. As such, Banamali Sahu had half share and Anadi Sahu had half share in the suit properties. When Banamali Sahu died in the year 1950 leaving behind his two sons i.e. Dinabandhu Sahu (defendant No.2) and Binod Sahu (defendant No.3), the half share of Banamali Sahu in the suit properties devolved upon his two sons i.e. defendant Nos.2 & 3 simultaneously. S.A. No.441 of 2001 Page 3 of 18 Father of the plaintiff i.e. Anadi Sahu was selling Ganja and opium without license. For which, police and excise officials were coming before Anadi Sahu and were giving threat to prosecute and arrest him. So, the plaintiff quarreled with his father for his said illegal business and by that time, he (plaintiff) had already married and he had a motor cycle repairing shop inside the suit premises. To which, his father i.e. Anadi Sahu forcibly locked up due to quarrel with the plaintiff for the aforesaid reason and threatened plaintiff that, unless he (plaintiff) execute a Nadabi deed in his favour in respect of the suit properties, he (Anadi Sahu) will not open the shop in the suit properties, in which, the plaintiff was running a motor cycle repairing shop. So, in order to release the articles from the said shop in the suit premises, the plaintiff executed a nominal deed of relinquishment in respect of his share in Plot No.1341 in favour of his father Anadi Sahu on dated 17.02.1971, though he (plaintiff) had no intention for execution of such deed of relinquishment in respect of the suit properties and such deed of relinquishment dated 17.02.1971 has not been acted upon. Before final publication of the R.o.R. of Hal settlement, the younger brother of the plaintiff i.e. defendant No.1 tried to create disturbances in the peaceful possession of the plaintiff over suit properties. For which, the plaintiff requested defendant No.1 on dated 06.11.1989 for partition of his share from the suit properties, to which, the defendant No.1 did not agree. So, the plaintiff approached the Civil Page 4 of 18 S.A. No.441 of 2001 Court by filing the suit vide T.S. No.199 of 1990 against defendant No.1 praying for partition of his share from the Schedule ‘C’ suit properties. 5. Having been noticed from the Trial Court in the suit vide T.S. No.199 of 1990, the defendant Nos.1, 1(a) and 4 filed their written statement, but whereas the defendant No.2 was set ex parte. Defendant No.4 filed his written statement in support of the claim of the plaintiff over the suit properties. Defendant No.1(a) filed her written statement claiming her 1/3rd share in the suit properties. Whereas the defendant No.1 (younger brother of plaintiff) seriously contested the suit of the plaintiff by filing his written statement taking his stands inter alia therein that, the plaintiff has no cause of action for filing the suit. The suit of the plaintiff is barred by limitation and the same is bad for mis-joinder of parties and the suit properties have not been valued properly and there is payment of inadequate Court fees. According to him (defendant No.1), he (defendant No.1) being the son of Anadi Sahu alone is entitled for half share in the suit properties. The defendant Nos.2 & 3 being the sons of Banamali Sahu, they are jointly entitled for half share. They (defendant Nos.2 & 3) are in separate possession in respect of their shares in the suit properties according to the amicable partition. In the Hal settlement, the suit properties have been recorded separately in his name vide Plot No.1902 A0.038 decimals and Page 5 of 18 S.A. No.441 of 2001 Plot No.1909 A0.047 decimals under Hal Khata No.23. The reason for non-entitlement of any interest in the suit properties by the plaintiff is that, his father Anadi Sahu died in the year 1980 leaving behind his two sons i.e. plaintiff and he himself (defendant No.1). During the life time of his father Anadi Sahu, the plaintiff had executed a registered deed of relinquishment in favour of his father Anadi Sahu on dated 17.02.1971 giving up his all rights, title, interest and possession whatsoever in the suit properties in favour of his father Anadi Sahu and after making such relinquishment, he (plaintiff) remained somewhere. As a result of which, he (defendant No.1) alone is residing in the suit properties being the owner as well as sole successor of his father Anadi Sahu. As such, the plaintiff has no manner of right, title, interest and possession over the suit properties. For which, the suit for partition filed by him (plaintiff) is not maintainable under law. The same is liable to be dismissed. 6. Basing upon the aforesaid pleadings and matters in controversies between the parties, altogether 5 (five) numbers of issues were framed by the Trial Court in the suit vide T.S. No.199 of 1990 and the said issues are:- ISSUES (i) (ii) (iii) Is the suit maintainable? Has the plaintiff got cause of action to file the suit? Whether the deed of relinquishment dated 17.02.1971 executed by the plaintiff in favour of his father is genuine and valid and S.A. No.441 of 2001 Page 6 of 18 whether thereby any interest of the plaintiff over the suit properties have been transferred? Whether the plaintiff is entitled to half share in the suit schedule properties? To what relief, if any, the plaintiff is entitled? (iv) (v) 7. In order to substantiate the aforesaid relief i.e. partition sought for by the plaintiff in his plaint against the defendants in the suit vide T.S. No.199 of 1990, he (plaintiff) examined three witnesses from his side including him as P.Ws.1 to 3 and exhibited series of documents on his behalf vide Exts.1 to 4. Defendant No.1(a) examined one witness i.e. her husband as D.W.1 on her behalf and exhibited one document from her side as Ext.A/1. Defendant No.4 examined him as D.W.1 without proving any document. In order to nullify/defeat the suit of the plaintiff, the defendant No.1 examined three witnesses on his behalf including him as D.W.1 and relied upon series of documents from his side, vide Exts.A to K. 8. After conclusion of hearing and on perusal of the materials, documents and evidence available in the record, the Trial Court answered all the issues in favour of the plaintiff and against the defendant No.1 and basing upon the findings and observations made by the Trial court in all the issues in favour of the plaintiff and against the defendant No.1, the Trial Court decreed the suit vide T.S. No.199 of 1990 of the plaintiff preliminarily for partition on contest against the defendant No.1, 1(a) and Page 7 of 18 S.A. No.441 of 2001 4 and ex-parte against defendant No.2 entitling the plaintiff, defendant No.1 and defendant No.1(a) to get 1/3rd share each in the suit schedule properties as per its judgment and decree dated 26.04.1996 and 09.05.1996 respectively assigning the reasons that, “during the lifetime of father of the plaintiff i.e. Anadi Sahu, the father of the plaintiff had no right over the suit properties, for which, the question of relinquishment of his any right over the suit properties in favour of his father through the execution of the deed of relinquishment dated 17.02.1971 vide Ext.A/6 had not arisen. So, the so called deed of relinquishment dated 17.02.1971 vide Ext.A/6 executed by the plaintiff in favour of the defendant No.1 is not a genuine and valid document and after the death of Anadi Sahu, his half share in the suit properties left by him devolved upon his three children i.e. the plaintiff, defendant No.1 and defendant No.1(a) equally. For which, the plaintiff, defendant No.1 and defendant No.1(a) are entitled for equal share in the properties left by Anadi Sahu. So, it cannot be held that, the suit for partition filed by the plaintiff is not maintainable and ultimately held that, the suit for partition filed by the plaintiff is maintainable and he (plaintiff) and defendant Nos.1 and 1(a) are entitled for equal share in the suit properties.” 9. On being dissatisfied with the aforesaid judgment and decree dated 26.04.1996 and 09.05.1996 respectively passed by the learned Trial Court in T.S. No.199 of 1990 in favour of the plaintiff, the defendant No.1 challenged the same preferring the First Appeal vide T.A. No.50 of 1996 being the appellant against the plaintiff arraying him (plaintiff) as S.A. No.441 of 2001 Page 8 of 18 respondent No.1 and also arraying defendant Nos.2, 3 & 4 as other respondents. 10. After hearing from both the sides, the learned First Appellate Court dismissed that First Appeal vide T.A. No.50 of 1996 filed by the defendant No.1 concurring/confirming the findings and observations made by the Trial Court in T.S. No.199 of 1990 as per its judgment and decree dated 05.09.2001 and 19.09.2001 respectively. 11. On being aggrieved with the aforesaid judgment and decree of the dismissal of the First Appeal vide T.A. No.50 of 1996 of the defendant No.1 passed by the learned First Appellate Court, the defendant No.1 challenged the same preferring this second appeal being the appellant against the legal heirs of the plaintiff and defendant No.1(a) arraying them as respondents and also arraying other defendants and their legal heirs as respondents. 12. This Second Appeal was admitted on formulation of the following substantial questions of law i.e.:- (i) Whether plaintiff, who had relinquished the suit land, can inherit after the death of his father, in whose favour the Registered Deed of relinquishment was made? (ii) Whether the plaintiff has right to claim the property of his father, when he had relinquished his present and future claims over the same in favour of his father through a registered deed of of relinquishment relinquishment of the plaintiff is invalid, illegal & void? and whether registered deed such 13. I have already heard from the learned senior advocate for the appellant (defendant No.1) and the learned counsel for the respondent S.A. No.441 of 2001 Page 9 of 18 No.2 (defendant No.1/a), as none had appeared for other respondents for participating in the hearing of this 2nd appeal. 14. As both the above formulated substantial questions of law relate to Section 43 of the T.P. Act, 1882, then both the formulated substantial questions of law are taken up together analogously for their discussions hereunder. 15. Here in this suit/appeal at hand, the defendant No.1 (appellant in this 2nd appeal) has claimed to defeat the interest of his elder brother Dayanidhi@Daitari Sahoo (plaintiff) applying the provisions of Section 43 of the T.P. Act, 1882 on the ground that, he (plaintiff- Dayanidhi@Daitari Sahoo) had relinquished his interest in the suit properties described in Schedule ‘C’ of the plaint in favour of his father Anadi Sahu through a registered deed of relinquishment dated 17.02.1971 vide Ext.A/6, for which, according to him (defendant No.1) after the death of his father-Anadi Sahu, the interest of his father Anadi Sahu left in the suit properties has devolved upon him (plaintiff) only in view of the provisions of Section 43 of the T.P. Act, 1882. Because, he (defendant No.1) had transferred/relinquished his interest in the suit properties in favour of his father through the registered deed of relinquishment i.e. 17.02.1971 vide Ext.A/6 projecting erroneously about his having interest therein, though in fact, by the time of execution and registration of such deed of relinquishment vide Ext.A/6 on dated Page 10 of 18 S.A. No.441 of 2001 17.02.1971, he (plaintiff) had no interest in the suit properties. For which, after the death of his father-Anadi Sahu, the plaintiff is not entitled to get any share/interest in the suit properties. Because, his subsequently acquired interest in the suit properties through inheritance after the death of his father Anadi Sahu has automatically been transferred in favour of his father as per the provisions of law envisaged in Section 43 of the T.P. Act, 1882. Therefore, he (defendant No.1) alone is entitled to succeed the interest in the suit properties left by his father. For which, the plaintiff is not entitled to get any interest in the suit properties left by his father. 16. Now the question arises, whether as per law, the defendant No.1 (younger brother of the plaintiff) can use the provisions of Section 43 of the T.P. Act, 1882 against his elder brother (plaintiff) to estop/debar him (plaintiff) from getting his right of inheritance in the suit properties left by his father on the ground of execution of a deed of relinquishment dated 17.02.1971 vide Ext.A/6 in favour of his father Anadi Sahu, when his father Anadi Sahu had not chosen to exercise his options provided under Section 43 of the T.P. Act, 1882 against the plaintiff during his life time using the so called deed of relinquishment dated 17.02.1971 vide Ext.A/6? 17. As per the provisions of Section 43 of the T.P. Act, 1882, when the transferee is aware about the absence of right of his vendor at the time of execution of a deed like Ext.A/6 in this case at hand, then in such a Page 11 of 18 S.A. No.441 of 2001 situation, the provisions of Section 43 of the T.P. Act, 1882 has no applicability. Section 43 of the T.P. Act, 1882 provides an option to the so called transferee of a deed to claim or not to claim the benefits provided in that Section 43 of the T.P. Act, 1882. Unless such options provided in Section 43 of the T.P. Act, 1882 is exercised by the so called transferee of a deed, the newly acquired interest in the suit properties through creation of interest in favour of the transferor subsequent to its execution does not automatically pass to the transferee. The said options provided in Section 43 of the T.P. Act, 1882 available to the so called transferee of a deed is required as per law to be exercised during the period, in which, the contract of transfer subsists. On this aspect, the propositions of law has already been clarified by the Hon’ble Courts and Apex Court in the ratio of the following decisions:- (i) In a case between Jumma Masjid, Mercara Vrs. Kodimaniandra Deviah and others reported in AIR 1962 (SC) 847 that, where the transferee knows as a fact that, the transferor does not possess the title which he represents he has, then he cannot be said to have acted on it when taking a transfer. Section 43 would then have no application, and the transfer will fall under Section 6(a) of the T.P. Act, 1882. (Para 15) (ii) In a case between Hyder Valli and another Vrs. G. Venkatramana and another reported in 2014 SCC OnLine S.A. No.441 of 2001 Page 12 of 18 (Hyderabad) 1476 that, the transferee has an option to claim or not to claim the benefit under Section 43 of the T.P. Act, 1882. Therefore, unless the option is exercised, the newly acquired interest does not automatically pass. This option should be exercised during a period in which the contract of transfer subsists. 18. Here in suit/appeal at hand, the contents of the so called deed of relinquishment dated 17.02.1971 vide Ext.A/6 (said to have been executed by the plaintiff in favour of his father Anadi Sahu) is clearly and unambiguously going to show that, the suit properties originally belong to Guri Dei and after the death of Guri Dei, the said properties devolved upon her two sons i.e. Banamali Sahu and Anadi Sahu, wherein Banamali Sahu had 50% share and Anadi Sahu had 50% share, which indirectly shows that, the plaintiff had no interest in the properties covered under the deed of relinquishment vide Ext.A/6 and the said matter regarding the absence of any interest of the plaintiff in the properties covered in the deed of relinquishment vide Ext.A/6 was known very well to his father Anadi Sahu. When, the contents of the deed vide Ext.A/6 is going to show that, the so called transferee of the said deed of relinquishment vide Ext.A/6 i.e. Anadi Sahu had known about the absence of the right and interest of the so called transferor i.e. the plaintiff in the suit properties covered under the deed vide Ext.A/6 at the time of execution of that Ext.A/6, then S.A. No.441 of 2001 Page 13 of 18 at this juncture, in view of the principles of law enunciated in the ratio of the above decisions indicated in Para No.17 of this judgment, after the death of the father of the plaintiff i.e. Anadi Sahu, the defendant No.1 cannot use the provisions of Section 43 of the T.P. Act, 1882 against his elder brother i.e. plaintiff to debar him (plaintiff) from getting/succeeding the suit properties, which accrued in his favour through inheritance and succession as per law after the death of his father simultaneously upon him (defendant No.1) along with his elder brother (plaintiff) and his sister (defendant No.1/a). That apart, when the father of the plaintiff (so called transferee in Ext.A/6) has not exercised the options provided in Section 43 of the T.P. Act, 1882 to claim the right in the suit properties against the plaintiff during his life time, then at this juncture, in view of the principles of law enunciated by the Hon’ble Courts in the ratio of the decision reported in 2014 SCC OnLine (Hyderabad) 1476, the newly acquired interest of the plaintiff in the suit properties after the death of his father Anadi Sahu by way of succession cannot automatically pass to his brother i.e. defendant No.1, who has also been entitled to get his interest in the suit properties in the same process of law only after the death of his father. 19. As per the discussions and observations made above, when it is held that, the defendant No.1 is not authorised under law to use the provisions under Section 43 of the T.P. Act, 1882 against the plaintiff to Page 14 of 18 S.A. No.441 of 2001 prevent the right of inheritance of the plaintiff in respect of the suit properties (which has been devolved upon as per law after the death of his father), then at this juncture, the concurrent findings of the Trial Court and First Appellate Court that, after the death of the father of the plaintiff i.e. Anadi Sahu, his interest left in the suit properties devolved upon his 3 children i.e. plaintiff, defendant No.1 and defendant No.1(a) equally cannot be held as erroneous. 20. It is fundamental in law that, in a suit for partition, the status of all the parties are as good as plaintiff. As this 2nd appeal at hand has arisen out of a suit for partition, for which, in the suit for partition vide T.S. No.199 of 1990, the status of the plaintiff and defendants in the suit vide T.S. No.199 of 1990 is treated as plaintiff. 21. When, it is the undisputed case of the parties that, Banamali Sahu and Anadi Sahu had half share each in the suit properties being the successors of their mother Guri Dei, for which, after the death of Banamali Sahu, his half share in the suit properties devolved upon his two sons i.e. Dinabandhu Sahu (defendant No.2) and Binod Sahu (defendant No.3) equally. Therefore, the defendant No.2 has 1/4th share and defendant No.3 has 1/4th share. 22. When after the death of Anadi Sahu, his half share in the suit properties has devolved upon his three children i.e. plaintiff, defendant Page 15 of 18 S.A. No.441 of 2001 No.1 and defendant No.1(a), for which, the plaintiff, defendant No.1 and defendant No.1(a) has 1/6th share each in the suit properties. But, at the time of carving out of the share of the parties, the Trial Court as well as 1st Appellate Court has erroneously held that, the plaintiff, defendant Nos.1 and 1(a) has 1/3rd share each instead 1/6th share each. 23. So, as per the observations and discussions made above, though the concurrent findings of the Trial Court and 1st Appellate Court that, the plaintiff, defendant Nos.1 and 1(a) are entitled to get equal share is not interferable, but the extent of the share of the plaintiff, defendant No.1 and 1(a) as 1/3rd share each as carved out by the Trial Court and 1st Appellate Court is interferable through this 2nd appeal. Because, they (plaintiff, defendant No.1 and 1/a) are entitled for 1/6th share each in Schedule ‘C’ properties out of A0.156 decimals of C.S. Plot No.1341 instead of 1/3rd share each. 24. On analysis of the formulated substantial questions of law, as per the discussions and observation made above, this 2nd appeal filed by the appellant (defendant No.1) has no merit. The same must fail. 25. In result, this 2nd appeal filed by the appellant (defendant No.1) is dismissed on contest modifying the extent of shares of the plaintiff, defendant Nos.1, 1(a), 2 & 3 in the suit properties as follows:- The judgment and decree passed by the Trial Court and First Appellate Court entitling the plaintiff, defendant Nos.1, 1(a), 2 & 3 to get Page 16 of 18 S.A. No.441 of 2001 share in the suit properties is confirmed. But, whereas the determination of the extent of shares of the plaintiff, defendant Nos.1 and 1(a) in the suit properties is modified and they are entitled to get 1/6th share each instead 1/3rd share each. The suit be and the same vide T.S. No.199 of 1990 filed by the plaintiff is decreed preliminarily for partition on contest against defendant No.1, 1(a) and 4 and ex parte against defendant No.2, but under the circumstances without cost. Out of the suit properties described in Schedule ‘C’ of the plaint i.e. out of A0.156 decimals of C.S. Plot No.1341 corresponding to its Hal plots, the plaintiff, defendant Nos.1 & 1(a) are entitled to get 1/6th share each. The defendant Nos.2 & 3 are entitled to get 1/2 share each. 26. The parties may amicably effect partition of the properties in proportion to their respective shares as indicated above within a period of 3 months hence, failing which, any one of the parties may apply to the Court for making the decree final. In the final decree proceeding, Civil Court Commissioner to be appointed by the Court shall make division of the suit properties amongst the parties by allotting their respective shares in their favour in accordance with the apportionments made above and while so S.A. No.441 of 2001 Page 17 of 18 partitioning, he shall respect to the possession and convenience of the parties. Orissa High Court, Cuttack. 31.07.2025//Utkalika Nayak// Junior Stenographer (A.C. Behera), Judge. Signature Not Verified Digitally Signed Signed by: UTKALIKA NAYAK Reason: Authentication Location: High Court of Orissa, Cuttack Date: 01-Aug-2025 18:09:02 S.A. No.441 of 2001 Page 18 of 18