The High Court
Case Details
IN THE HIGH COURT OF ORISSA AT CUTTACK SA No.4 of 2000 (In the matter of an appeal under Section 100 of the Code of Civil Procedure, 1908) Kalakanhu Bariha & Others -versus- Artatrana Meher & Others …. …. Appellants Respondents For Appellants - Mr.Budhiram Das,Advocate On behalf of Mr.N.C.Pati,Advocate For Respondents - Mr.D.P.Dhal,Sr.Advocate Mr.M.K.Agarwal,Advocate CORAM: MR. JUSTICE A.C.BEHERA Date of Hearing :09.07.2024:: Date of Judgment :19.07.2024 A.C. Behera, J. This Second Appeal has been preferred against the confirming judgment. 2. The appellants of this Second Appeal were the plaintiffs before the Trial Court in the suit vide T.S. No.30 of 1986 and they were the appellants before the 1st Appellate Court in the first appeal vide T.A. No.20 of 1996. The respondents of this 2nd Appeal were the defendants before the Trial Court in the suit vide T.S. No.30 of 1986 and they were the Page 1 of 18 SA No.4 of 2000 // 2 // respondents before the 1st Appellate Court in the 1st appeal vide T.A. No. 20 of 1996. 3. The suit of the plaintiffs vide T.S. No.30 of 1986 before the Trial
Legal Reasoning
Court was a suit for declaration, confirmation of possession, in alternative recovery of possession. 4. The plaintiffs and defendant Nos.3 and 4 are the members of one family. The defendant Nos.3 and 4 are two brothers. The plaintiff No.3 is the wife of defendant No.3. The plaintiff Nos.1 and 2 are the two sons of the defendant No.3 and plaintiff No.3. 5. In order to have an instant reference, the genealogy (family pedigree) of the plaintiffs and defendant No.3 is depicted hereunder:- Genealogy Bhaktaram Bariha (dead) Yudhistira Bariha (D.3) Wife-Yamuna Bariha (P.3) Krishna Ch. Dev. Bariha (D.4) Kalakanhu Bariha (P.1) Lokanath Bariha (P.2) SA No.4 of 2000 Page 2 of 18 // 3 // 6. According to the case of the plaintiffs, they (plaintiffs) and defendant Nos.3 and 4 belong to Scheduled Tribe Community having their sub caste Binjhal. They are guided and governed by Mitakshara School of Hindu Law. The suit properties described in the schedule of the plaint is the part of their ancestral properties. They (plaintiffs) along with the defendant No.3 have been possessing the suit properties along with their other properties jointly, those were allotted in their share during the partition of their all ancestral properties. But, in course of time, the defendant No.3 (husband of the plaintiff No.3 and father of plaintiff Nos.1 and 2) became a habitual drunkard and ganja smoker and failed to manage their family properly, by which, the economical condition of their family ruined day by day gradually. In order to, save their family from economic disaster, in the year 1978, the wife of the defendant No.3 i.e. plaintiff No.3 took over the charge of management of their family as Karta by the consent of her husband i.e. defendant No.3. Taking the advantage of the drunkardness of the defendant No.3 and his necessity of money for consumption of liquor and for smoking ganja, the defendant Nos.1 and 2 managed to execute a sale deed on dated 23.06.1979 for a consideration of Rs.6000/- in respect of the suit properties from the defendant No.3. The said sale of the joint properties of the plaintiffs and SA No.4 of 2000 Page 3 of 18 // 4 // defendant No.3 to the defendant Nos.1 and 2 by the defendant No.3 was neither for legal necessity nor for the benefit of the family members or the estate of their family or for repayment of any debt of the family. The said sale was carried out without the knowledge of the plaintiffs. Whatever amount, the defendant No.3 might have received from the defendant Nos.1 and 2 as consideration for the execution and registration of the sale deed in respect of the suit properties on dated 23.06.1979, the same has been spent by him (defendant No.3) towards his drinking and smoking. As such, the said sale transaction between the defendant No.3 and the defendant Nos.1 and 2 in respect of the suit properties is out and out a paper transaction without delivery of possession of the suit properties indicated in that sale deed in favour of the defendant Nos.1 and 2. They (plaintiffs) are in possession over the suit properties as usual. In fact, the defendant No.3 was not the Karta of their family and he has not sold the suit properties to the defendant Nos.1 and 2 in the capacity as a Karta of their family. He has sold the suit properties in his personal capacity as a mere coparcener of the family. So, the sale of the suit properties by the defendant No.3 in favour of the defendant Nos.1 and 2 on dated 23.06.1979 through sale deed without the consent of the plaintiffs renders the said sale deed as null and void. The suit land being SA No.4 of 2000 Page 4 of 18 // 5 // their ancestral properties, the same have been recorded in the current settlement jointly in the names of defendant Nos.3 and 4 in spite of their separation through metes and bound partition. Therefore, the defendant No.4 has been made as proforma defendant in the suit, though any relief has not been prayed against him. The defendant Nos.1 and 2 have never come into the possession of the suit properties at any point of time by virtue of the said so-called sale deed dated 23.06.1979 executed by the defendant No.3 in their favour. In fact, the plaintiffs are enjoying the suit properties as the rightful owners thereof. As the defendant Nos.1 and 2 have managed to execute and register the sale deed dated 23.06.1979 in respect of the suit properties from the defendant No.3, then, the plaintiffs approached the Civil Court by filing the suit vide T.S. No.30 of 1986, praying for a declaration that, the sale deed dated 23.06.1979 executed by the defendant No.3 in favour of the defendant Nos.1 and 2 as null and void and to declare that, the said sale deed is not binding upon them (plaintiffs) and to confirm their possession over the suit properties, in alternative to recover the possession of the suit properties from the defendant Nos.1 and 2, in case, they (plaintiffs) are found to be dispossessed therefrom during the pendency of the suit by the defendant SA No.4 of 2000 Page 5 of 18 // 6 // Nos.1 and 2 along with other reliefs, to which, they (plaintiffs) are entitled for. 7. Having been noticed from the Trial Court in the suit vide T.S. No.30 of 1986, the defendant Nos.3 and 4 filed one joint written statement, whereas, the defendant Nos.1 and 2 filed another joint written statement. 8. The defendant Nos.3 and 4 filed their joint written statement admitting the case of the plaintiffs by stating therein that, taking the opportunity of the ill mental condition of the defendant No.3, they (defendant Nos.1 and 2) have managed to execute and register the sale deed dated 23.06.1979 in respect of the suit properties from the defendant No.3 practising fraud with a condition to return the said sale deed to him (defendant No.3), after repayment of the consideration money thereof to them (defendant Nos. 1 and 2). As such, they (defendant Nos.1 and 2) had not taken the delivery of the possession of the suit properties from the defendant No.3. The defendant No.3 along with the plaintiffs are in joint possession of the suit properties as usual till date. For which, the plaintiffs are entitled for the reliefs as prayed for by them in their plaint against the defendant Nos.1 and 2. SA No.4 of 2000 Page 6 of 18 // 7 // 9. The defendant Nos.1 and 2 contested the suit of the plaintiffs, denying all the allegations alleged by the plaintiffs in their plaint against them by taking their stands/pleas in their joint written statement that, the defendant No.3 was/is never a habitual drunkard or ganja smoker. The defendant No.3 being the son of a Gountia, he was/is leading a comfortable life being the owner of vast landed properties. Due to drought and other natural calamities, the defendant No.3 incurred loans from Grain Gola, Tendapadar along with others as well as from the Land Development Bank of Patnagarh. At the time of transfer of the suit properties by the defendant No.3 in their favour on dated 23.06.1979, there was outstanding loan dues of local Grain Gola against him (defendant No.3). In order to repay the outstanding loan dues before local Grain Gola and to meet the other expenditures of the family, the defendant No.3 gave the proposal for selling the suit properties to the defendant Nos.1 and 2 for a consideration amount of Rs.6000/-, to which, they (defendant Nos.1 and 2) accepted, as the defendant No.3 showed the loan demand notice of Grain Gola issued to him (defendant No.3). As such, they (defendant Nos.1 and 2) had agreed for purchasing the suit properties from the defendant No.3 on being satisfied that, the defendant No.3 is wanting to sell the suit properties for legal necessities. As, the SA No.4 of 2000 Page 7 of 18 // 8 // defendant No.3 is a member of Scheduled Tribe community and the defendant Nos.1 and 2 are the members of General Caste community, for which, in order to sell the suit properties in favour of the defendant Nos.1 and 2, the defendant No.3 sought for permission for sell U./s 22 of the OLR Act through Revenue case No.8/82 of 1979 from the Competent Authorities to meet the legal necessities of his family and after obtaining permission for sale from the Competent Authority, he (defendant No.3) executed and registered the sale deed in respect of the suit properties in favour of the defendant No.3 on 23.06.1979 after receiving the due consideration amount i.e.Rs.6000/- thereof for repayment of the debts and for meeting the other expenditures of the family and delivered the possession of the suit properties in favour of the defendant Nos.1 and 2 with the full knowledge of the plaintiffs. As such, they (defendant Nos.1 and 2) are the bona fide purchasers of the suit properties through that sale deed dated 23.06.1979. So, they (defendant Nos.1 and 2) are the lawful owners and they (defendant Nos.1 and 2) are in possession over the suit properties, in which, the plaintiffs and defendant Nos.3 and 4 have no interest and possession. Therefore, the sale made by the defendant No.3 in favour of them (defendant Nos.1 and 2) is neither null, void or illegal. The suit is a SA No.4 of 2000 Page 8 of 18 // 9 // collusive one and the same has been filed by the plaintiff No.3 in collusion with the defendant No.3, at the instance of some persons, those are enmically disposed of with them (defendant Nos.1 and 2), in order to, garb the suit properties by setting the plaintiffs against them (defendant Nos.1 and 2). As, they (defendant Nos.1 and 2) are the owners and they are in possession over the suit properties and as, they (plaintiffs and defendant Nos.3 and 4) have no interest in the same, for which, the suit of the plaintiffs is liable to be dismissed against them (defendant Nos.1 and 2) with costs. 10. Basing upon the aforesaid pleadings and matters in controversies between the parties, altogether seven numbers of issues were framed by the Trial Court in the suit vide T.S. No.30 of 1986 and the said issues are:- I s s u e s Whether the plaintiffs have title over the suit land and if therein possession of the same? Whether the defendant No.3 was way ward and the plaintiff No.3 was managing the family as Karta? Whether there was legal necessity and benefit to the estate for sale of the suit land? Whether the sale dated 23.06.1979 is null and void and not binding on the plaintiffs? Whether there is any cause of action for the suit? To what relief, if any, the plaintiffs are entitled? 1. 2. 3. 4. 5. 6. SA No.4 of 2000 Page 9 of 18 // 10 // 7. Whether the plaintiff No.3 is the legally married wife and the other plaintiffs are legitimate sons of defendant No.3? 11. After conclusion of hearing and on perusal of the materials, evidence and documents available in the record, the Trial Court answered all the issues except issue No.7 against the plaintiffs and in favour of the defendant Nos.1 and 2. Basing upon the findings and observations made by the Trial court in issue Nos.1 to 6 against the plaintiffs and in favour of the defendant Nos.1 and 2, the trial Court dismissed the suit of the plaintiff with cost, as per its judgment and decree dated 27.01.1996 and 15.02.1996 respectively assigning the reasons that, the sale deed dated 23.06.1979 vide Ext.A executed by the defendant No.3 in favour of the defendant Nos.1 and 2 in respect of the suit properties is a valid sale deed and the same is binding upon the plaintiffs, because, the defendant No.3 being the Karta of their joint family, he (defendant No.3) has sold the suit properties through that sale deed vide Ext.A to the defendant Nos.1 and 2 for legal necessity of the family i.e. for repayment of loan and for meeting the expenditures of the family and the possession of the suit properties was delivered to the defendant Nos.1 and 2 through that sale deed vide Ext.A and accordingly, the defendant Nos.1 and 2 are the SA No.4 of 2000 Page 10 of 18 // 11 // lawful owners of the suit properties. As such, the defendant Nos.1 and 2 have their title and possession over the suit properties, for which, the plaintiffs have no interest in the same. Therefore, the plaintiffs are not entitled for any relief as prayed for by them. 12. On being dissatisfied with the aforesaid judgment and decree of the dismissal of the suit of the plaintiffs vide T.S. No.30 of 1986 passed on dated 27.01.1996 and 15.02.1996 respectively by the Trial Court against them (plaintiffs), they (plaintiffs) challenged the same by preferring the 1st Appeal vide T.A. No.20 of 1996 being the appellants against the defendant Nos.1 & 2 including the defendant Nos.3 and 4 arraying them as respondents. 13. After hearing from both the sides, the 1st Appellate Court dismissed that first Appeal vide T.A. No.20 of 1996 of the plaintiffs as per its judgment and decree dated 25.11.1999 and 02.12.1999 respectively on contest concurring/accepting the findings and observations made by the Trial Court in its judgment and decree for the dismissal of the suit of the plaintiffs. 14. On being aggrieved with the aforesaid judgment and decree of the dismissal of the 1st Appeal vide T.A. No.20 of 1996 of the plaintiffs passed on dated 25.11.1999 and 02.12.1999 respectively by the 1st SA No.4 of 2000 Page 11 of 18 // 12 // Appellate Court in T.A. No.20 of 1996, they (plaintiffs) challenged the same by preferring this 2nd appeal being the appellants against the defendants arraying them (defendants) as respondents. 15. This 2nd Appeal was admitted on formulation of the following substantial questions of law i.e.:- i. Whether the sale deed (Ext.A) is binding on the plaintiff Nos.1 and 2 in absence of any permission granted under Section 8 of Hindu Minority and guardianship Act, 1956? ii. Whether the finding of the learned courts below to the effect that the sale was for legal necessity is sustainable in absence of any material or finding as to whether the loan was incurred by the defendant No.3 for the benefit of Joint Family or for the benefit of the minors? 16.
Legal Reasoning
I have already heard from the learned counsels of both the sides. 17. As the above two formulated substantial questions of law are interlinked having ample nexus with each other, for which, both the substantial questions of law are taken up together analogously for their discussions hereunder. It is the own case of the plaintiffs that, the suit properties were their ancestral properties. According to them (plaintiffs), during partition SA No.4 of 2000 Page 12 of 18 // 13 // of their all ancestral properties including the suit properties between two brothers i.e. between defendant Nos.3 and 4, the suit properties along with other properties had fallen into the share of the defendant No.3. The defendant No.3 is the father of the plaintiff Nos.1 and 2 and the husband of the plaintiff No.3. Therefore, by the time of execution and registration of the sale deed on dated 23.06.1979 vide Ext.A by the defendant No.3 in favour of the defendant Nos.1 and 2 in respect of the suit properties, the suit properties were the joint and undivided properties of the defendant No.3 along with the plaintiffs. At the time of execution and registration of the sale deed vide Ext.A on dated 23.06.1979 by the defendant No.3 in favour of the defendant Nos.1 and 2, the plaintiff Nos.1 and 2 were minors. 18. It is the concurrent findings of the Trial Court and 1st Appellate Court through appreciation of oral and documentary evidence as well as pleadings of the parties that, at the time of execution and registration of the sale deed vide Ext.A on dated 23.06.1979 in respect of the suit properties by the defendant No.3 in favour of the defendant Nos.1 and 2, he (defendant No.3) was the Karta of his family and he (defendant No.3) being the Karta of his family, he was managing the entire family SA No.4 of 2000 Page 13 of 18 // 14 // including his minor children and wife i.e. plaintiffs and he (defendant No.3) has sold the suit properties to the defendant Nos.1 and 2 for the legal necessity i.e. for repayment of loans of his family before local Grain Gola as well as to meet the necessary expenditures of the family, which is for the benefit of the family and the defendant Nos.1 and 2 had accepted the proposal for sale of the suit properties given by the defendant No.3 after being satisfied that, he (defendant No.3) is wanting to sell the suit properties for no other reason, but for the benefit of his family i.e. for repayment of the loan of the family as well as to meet the necessary expenditures of the family and then, after obtaining the permission for sale from the statutory revenue authority u/s 22 of the OLR Act, 1960, he (defendant No.3) executed and registered the sale deed on dated 23.06.1979 in favour of the defendant Nos.1 and 2 after receiving the due consideration amount thereof i.e. Rs.6000/- and delivered the possession of the suit properties to the vendees i.e. to the defendant Nos.1 and 2 and accordingly since 23.06.1979, the defendant Nos.1 and 2 have been possessing the suit properties being the owners thereof, in which, the plaintiffs and the defendant Nos.3 and 4 have no interest. 19. Now the question arises for consideration, whether permission u/s 8 of the Hindu Minority and Guardianship Act, 1956, from the SA No.4 of 2000 Page 14 of 18 // 15 // Competent Authority by the defendant No.3 (father) was necessary for alienation of the joint and undivided interest of his minor sons i.e. plaintiff Nos.1 and 2 in the suit properties in favour of the defendant Nos.1 and 2 or not? 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. 2020 (I) Civil Court Cases 622 (Gujarat):Shashiben Vrs. State of Gujrat—Guardians and Wards Act, 1890,Section 29, Hindu Minority and Guardianship Act, 1956, S.8—Joint Hindu Family Property—Undivided share of minor—Sale by Karta/natural guardian—Without permission of Court—Where property in question is Joint Hindu Family Property in which minor had undivided share, previous permission of Court before disposing of property by Karta is not required. (Para 11) ii. AIR 1982 (Raj) 229:Girdhar Singh and Another Vrs. Anand Singh and Others—H.U.F. constituted by minor and his mother—Undivided interest of minor in immovable property can be alienated by mother as natural guardian of minor—Such alienation would not be hit by Section 8 of Hindu Minority and Guardianship Act. (Hindu Minority and Guardianship Act (32 of 1956, Section 8). (Para 12) iii. iv. 2024(1) Civil Court Cases 620 (Rajasthan):Umesh Soni Vrs. Smt.Kamla—Hindu Minority and Guardianship Act, 1956,S.8—Sale of minor’s property by mother—Sale deed came to be executed by mother of plaintiff for family necessity and not to fulfill her unjustified or unworthy desire—No prior permission u/s 8 of the Act was required for sale—Suit filed by plaintiff for declaring sale deed null and void rightly dismissed. (Para 8) 2024 (I) Civil Court Cases (S.C.) 56:N.S.Balaji Vrs. The Presiding Officer Debt Recovery Tribunal & Ors.—Hindu Law—Joint family property—Alienation by Karta—Karta has right to sell/dispose of/alienate HUF property, even if a minor of family has undivided interest. (Para 2) SA No.4 of 2000 Page 15 of 18 // 16 // 20. In view of the clarified propositions of law enunciated in the ratio of the above decisions, permission of the father i.e. defendant No.3 U/s 8 of the Hindu Minority and Guardianship Act, 1956 from the Competent Authority was not necessary under law for selling the undivided interests of his minor son’s i.e. plaintiff Nos.1 and 2 in the suit properties in favour of the defendant Nos.1 and 2, because, the defendant No.3 being the natural father guardian of minor plaintiff Nos.1 and 2 as well as Karta of the joint family of the plaintiffs, he (defendant No.3) has sold the suit properties to the defendant Nos.1 and 2 for the benefit of the family i.e. for the legal necessity of the family in order to repay the debts of the joint family and to meet the necessary expenditures of the family. 21. When, it is the concurrent findings of fact by the Trial Court and 1st Appellate Court on proper appreciation of materials, documents and evidence available in the record that, the defendant No.3 being the Karta of the family of the plaintiffs, he (defendant No.3) has sold the suit properties to the defendant Nos.1 and 2 on dated 23.06.1979 executing and registering the sale deed vide Ext.A after receiving the due consideration amount for the sale of the same from the defendant Nos.1 and 2 for the benefit of the family in order to repay the debt of the family as well as to meet the necessary expenditures of the family after SA No.4 of 2000 Page 16 of 18 // 17 // obtaining necessary permission for sale of the same in favour of the defendant Nos.1 and 2 U/s 22 of the OLR Act, 1960 from the Competent Revenue Authority and had delivered the possession of the suit properties to the defendant Nos.1 and 2 and the defendant Nos.1 and 2 have purchased the same from the defendant No.3 after being fully satisfied that, the defendant No.3 was selling the same to meet the above legal necessities of his family i.e. for the benefit of the family and when there is no material in the record to show that, the Trial Court and 1st Appellate Court have ignored any vital evidence in the record from consideration or they have considered some inadmissible evidence and when the reasonings/findings of the Trial Court and 1st Appellate Court are not inacceptable or perverse, then at this juncture, by applying the principles of law enunciated in the ratio of the decisions of the Hon’ble Courts and Apex Court reported in 1996 (II) OLR 541:Arabinda Panda Vrs. State of Orissa & (1989) 3 Supreme Court Cases 287:Smt. Annapoorani Ammal Vrs. G.Thangapalam (Para 7 and 8), it is held that, the concurrent findings of the Trial Court and 1st Appellate Court regarding the dismissal of the suit of the appellants (plaintiffs) are not required to be disturbed or interfered with in this 2nd appeal. SA No.4 of 2000 Page 17 of 18 // 18 // As such, there is no merit in the appeal of the appellants (plaintiffs). The same must fail. 22. In result, the 2nd appeal filed by the appellants (plaintiffs) is dismissed on contest, but without cost. The judgment and decree passed by the Trial Court as well as 1st Appellate Court in T.S. No.30 of 1986 and T.A. No.20 of 1996 are confirmed. Orissa High Court, Cuttack 19th Of July, 2024/ Binayak Sahoo// Junior Stenographer (A.C. Behera), Judge Signature Not Verified Digitally Signed Signed by: BINAYAK SAHOO Reason: Authentication Location: High Court of Orissa, Cuttack Date: 16-Aug-2024 12:59:06 SA No.4 of 2000 Page 18 of 18