The High Court
Case Details
IN THE HIGH COURT OF ORISSA AT CUTTACK RSA No. 11 of 2011 An appeal under Section 100 Code of Civil Procedure. Bhagyabati Mahakud ...… Appellant --------------- -Versus- Bhumi Mahakud (dead) her LR-Prafulla Mahakud ...… Respondent Advocate(s) appeared in this case:- _______________________________________________________ For Appellant : M/s. B.B. Mishra & S.K. Sahoo, Advocates For Respondent : M/s. P.K. Khuntia, M.M. Swain, M. Patra, S. Biswal H.K. Behera, H. Mohanty & J.S. Samal, Advocates _______________________________________________________ CORAM: JUSTICE SASHIKANTA MISHRA JUDGMENT 13th September, 2024 SASHIKANTA MISHRA, J. The defendant is the appellant against a reversing judgment. The judgment dated 25.10.2010 followed by decree passed by the learned Addl. District Judge, Boudh in RFA No. 1 of 2010 is impugned in the Page 1 of 16 present appeal whereby judgment dated 04.11.2009 followed by decree passed by the learned Civil Judge (Sr. Division), Boudh in C.S. Case No. 58 of 2006 was set aside and the right, title and interest and possession of
Legal Reasoning
the plaintiff over the suit property was declared. 2. For convenience, the parties are referred to as per their respect status before the trial Court. 3. Before adverting to the case of the parties it would be profitable to first reproduce the genealogy showing their relationship between the parties. Hara Karna Padma Mandili (wife of Mantri Mendili (wife of Sidheswar Danta) (wife of Abhi Mahakud Kadami Mahakud Golapi Danta Bhumi Mahakud (Plaintiff-appellant) 4. The case of the plaintiff, briefly stated, is that Hara Karna died in the year 1974 leaving behind her three daughters, Padma, Golapi and Kadami. Both Padma and Kadami died issueless. Therefore, Golapi being the sole surviving heir succeeded to the entire suit properties. The plaintiff is the daughter of Golapi and after death of her mother, she succeeded to the properties and continued to Page 2 of 16 possess it having her residential house thereon. On the other hand,, defendant is the daughter of one Sambhu Mendili, who is of the brother of husband of Padma and as such not related to the family. Two to three years prior her death, Padma was not mentally sound and was often ailing from various deceases. She was an illiterate rustic lady not accustomed to public life. The plaintiff applied for mutation though the Tahasildar, Kantamal vide Mutation Case No. 190 of 2005. The defendant also filed Mutation Case No. 191 of 2005 before the Tahasildar, Kantamal for mutation of the land in her favour on the strength of a Willnama purportedly executed by Padma in her favour. Said mutation case was allowed in favour of the defendant on 19.08.2005. The plaintiff contends that said order of the Tahasildar was passed behind her back. Moreover, the Tahasildar erred in holding that there was a partition of suit land between Padma and Golapi whereby the suit land fell to the exclusive share of Padma. On such erroneous premises Padma had managed to record the suit land in the settlement operation of the year 1993. It is further alleged that the Willnama is a forged document Page 3 of 16 obtained by the defendant by exercising undue influence, misrepresentation and fraud in connivance of her father. Even otherwise, Padma was not competent to bequeath the entire suit land under the Willnama as she has only 1/2 share thereon. Since the defendant, after obtaining the order of mutation tried to disposes the plaintiff on 25.09.2005, she was constrained filed the suit land. 5. The defendant contested the suit by filing written statement and also raised a counter claim over the suit land for declaration of title and possession with alternative prayer for recovery of possession in the event, she is found to have been dispossessed. According to the defendant, Hara Karna was also the owner in possession of another land measuring Ac.8.43 decimals out of Ac.16.87 decimals of land appertaining to Sabik Khata No.68 along with the suit land. She died leaving behind her three daughters one of whom Kadami also died issueless shortly thereafter. There was an amicable partition of the properties of Hara between her surviving daughters Padma and Golapi whereby the entire suit property fell to the share of Padma whereas the other property pertaining Page 4 of 16 to Sabik Khata No.68 fell to the share of Golapi. As such, both sisters filed mutation cases being M.C. No. 594 of 1999 and M.C. No. 166 of 1990 before the Tahasildar,
Decision
Kantamal. Both the cases were disposed of on 26.02.1991 with mutation being allowed as claimed by the parties. Thereafter, the suit land was recorded exclusively in the name of Padma under Hal Khata No. 32 whereas, Hal Khata No. 77 was recorded in the name of Golapi with other co-sharers which corresponds to Sabik Khata No.68. After publication of Hal Settlement ROR on 30.08.1993, the plaintiff filed Mutation Case being 978 of 1999 before Tahasildar Kantamal as per orders passed therein, the name of the plaintiff and Sidheswar were substituted in place of Golapi. Thus, the plaintiff and her mother Golapi have no right, title over the suit land. It is the further case of the defendant that she is the daughter of the younger brother of Padma’s husband and was accepted as her foster daughter since her childhood as Padma was issueless. Being satisfied with her Padma executed a Registered deed of Will in respect of the suit land in favour of the defendant on 12.03.2003 vide document No. Page 5 of 16 12 of 2003. Padma died on 14.12.2004 and since then the defendant has been possessing the suit land and regularly paying revenue in respect thereof. She also mutated the suit land in her favour on the strength of the Willnama vide order dated 12.08.2005 passed by the Tahasildar in M.C. No. 191 of 2005. 6. The plaintiff filed her written statement to the counter claim disputing the averments and also questioning the validity of the Willnama said to have been executed by Padma in favour of the defendant. She further disputed the claim of possession of the defendant over the suit properties. 7. Basing on the rival pleadings the trial court framed the following issues for the determination:- “1. Is the suit maintainable? 2. Is there any cause of action for the plaintiff to bring the suit against the defendant? 3. Is the suit had for non-joinder of necessary parties? 4. Is the suit and joint family property? 5. Is there any previous partition between Padma and Golapi and the same is binding on the plaintiff? 6. Whether the plaintiff has got any right, title, interest or possession over the suit land? 7. Whether the registered deed willnama vide document No. 12/2003 is genuine and binding on the plaintiff ? 8. Whether the defendant is entitled for counter claim? 9. To what other relief ?” Page 6 of 16 ADDITIONAL ISSUE 10. Whether Padma Mendili was competent to bequeath the properties covered in Willnama in favour of Bhagyabati Mendili?” 8. Issue Nos. 1 and 2 were answered in favour of the plaintiff. On Issue Nos. 4 and 5, the plaintiff after relying upon the orders passed by the Tahasildar, Kantamal in the mutation proceedings held that in view of the partition between Padma and Golapi and subsequent recording of the suit land in the name of the defendant, the same cannot be treated as joint family properties but the exclusive property of Padma. The trial Court specifically held that in the previous partition between Padma and Golapi, the suit land fell to the share of Padma. On Issue Nos. 7 and 10, the trial Court basing on the oral and documentary evidence held that the Will was duly executed by Padma in favour of the defendant and is a genuine document binding on the plaintiff. It was further held that in view of the ancient partition followed by mutation, Padma was competent to bequeath the properties in favour of the defendant. It was thus held that the plaintiff has no manner of right, title and interest Page 7 of 16 or possession over the suit land. On issue Nos. 8 and 9, the trial court held that the defendant has right, title and interest over the suit land and entitled to possess the same. On such finding the suit was dismissed but the counter claim of the defendant was decreed by directing her title and entitlement to possess the suit land. 9. The Plaintiff carried the matter in appeal. The First Appellate Court first took note of the fact that the defendant is a stranger to the family. The suit property stood recorded originally in the name of Hara Karna, who also had some other properties along with other co- sharers in Sabik Khata No. 68. But there is no evidence as to what was the extent of share of Hara in Sabik Khata No. 68. Under such circumstances, the plea of the defendant regarding partition between Padma and Golapi to the effect that the suit Sabik Khata No. 69 was given to Padma and Golapi was given the properties of Hara to Sabik Khata No.68 was disbelieved since the share of Hara in respect of Sabik Khata No. 68 was not defined, the First Appellate Court held that the Tahasildar could not have accepted the plea that Golapi was given the Page 8 of 16 share of Hara in Sabik Khta No. 68. It was also held that there is no acceptable proof of amicable partition and that the defendant failed to discharge the burden cast upon her in this regard, as the Hindu Family is presumed to be joint unless proved otherwise. Having held as above, the First Appellate Court did not give any importance to the Willnama on basis of which the defendant rested her claim. It was thus held that Padam was not competent to execute the Willnama in respect of the suit property in its entirety in favour of the defendant. Thus upon her death, the suit property would devolve upon the sole survivor of Hara, namely, the plaintiff being the daughter of Golapi. On such finding, the appeal was allowed by setting aside the judgment and decree passed by the trial Court. 10. Being aggrieved, the defendant has filed the present appeal which was admitted on the following substantial questions of law:- “1. Whether the learned lower appellate court has in disbelieving the earlier committed an error amicable partition between two daughters of Hara Bewa by discarding the settlement arrived at during mutation proceeding on the ground that the entries made by the revenue authorities do not create or extinguish title and can only be considered Page 9 of 16 to be piece of evidence on possession? the question of 2. Whether the learned lower appellate court was justified in holding that in absence of narration with regard to amicable partition, the willnama cannot be taken into consideration?” 11. Heard Mr. B.B. Mishra, learned counsel for the defendant–appellant and Mr. P.K. Khuntia, learned counsel appearing for the plaintiff-respondent. 12. Mr. Mishra assails the impugned judgment by arguing that the trial court had rightly relied upon the orders passed by the Tahasildar in the mutation proceeding which had gone unchallenged. The properties were accordingly recorded in the names of the parties, the Will in question was also registered and duly proved as a genuine document by adducing appropriate evidence. There is clear evidence of prior partition for which the trial court rightly held that Padma was competent to bequeath her share of the properties in favour of the defendant. According to Mr. Mishra, the First Appellate Court committed gross error in not accepting the unchallenged orders passed in the mutation proceeding, which was based on evidence relating to prior partition as well as Page 10 of 16 execution of the Willnama. Moreover, the First Appellate Court overlooked the specific plea of the defendant that Ac. 8.43 decimals of land under Sabik Khata No.68 fell to the share of Golapi and therefore, it was erroneous to hold that Hara’s share had not been defined. 13. Mr. P.K. Khuntia, learned counsel appearing for the plaintiff–respondent would argue that there is a presumption in law that a Hindu Family is joint unless it is cogently proved to have been partitioned along with the co-sharers. In the instant case, the defendant despite claiming prior partition could not prove the same by any oral or documentary evidence. On the contrary, the plaintiff adduced oral evidence to the effect that there was no partition. Moreover there is no mention of such partition in the Willnama. As regards the Willnama Mr. Khuntia would argue that the same is a fraudulent document, which is apparent from the fact that all the pages have not been signed by the two attesting witnesses. There is no certificate by the scribe that the executant had affixed her LTI after understanding its contents. It is also not shown that the testator and the Page 11 of 16 witnesses had signed on the Will in the presence of each other. Since Padma was an old, illiterate rustic lady and suffering from various diseases, the execution of the document is naturally shrouded with suspicion, which the defendant failed to dispel. 14. Before proceeding to answer the substantial question framed at the time of admission of the appeal it would be apt to first refer to the suit property as described in the plaint schedule, which is as follows:- “Ac.2.564 dec. of land comprised under Pre-Sabik Khata No. 69 of village Tabada previously recorded in the name of Hara Bewa@Karna corresponding to same Khata No. 69 measuring Act.2.564 Dec. record in the name of Padma Mendili andn now the same land is recorded under Hal Khata No. 32, Area Ac.2.64 Dec. in the name of Bhagyabati Mendili.” It would also be apt to refer to the other property, which is intrinsically connected to the dispute between the parties, which is as follows:- “Ac. 16.087 decimals under Sabik Khata No. 68 of village Tabada recorded in the names of Hadi Karna, Karuna Karna, Ratna Karna son of Sridhari Karna and Hara Karna daughter of Debara Karna.” 15. Hara had three daughters, Padma, Golapi and Kadami. It is common ground that Kadami died issueless. Page 12 of 16 Golapi filed Mutation Case No. 166 of 1990 with prayer to record Ac. 4.010 decimals comprising 10 plots out of Khata 68 in her favour by effecting partition along with the co-sharers. On notice being issued, one of the co- sharers, namely, Hadi Karna and the sister of Golapi, namely, Padma appeared. But at the time of hearing, the other co-sharers, namely, Hadi Karna, Ratna Karna etc. were absent and did not give consent to the proposed amicable partition. As such, the Tahasildar in his order dated 26.02.1991 passed in MC. No.166 of 1990 held that the claim for partition had lost its merit. However, he considered the claim of succession of the share of Hara, who died in 1979. The Tahasildar held that Hara left behind Padma and Golapi as his legal heirs and after her death, both of his aforementioned daughters were enjoying her properties after making mutual partition. Accordingly, the land described under plaint schedule pertaining to Khata No.69 are under the exclusive possession of Padma while the land recorded in Khata No. 68 “towards the share of deceased Hara” are under the peaceful possession over the same. The Tahasildar has Page 13 of 16 not specified as to what exactly is the share of the deceased Hara out of Sabik Khata No.68. 16. True, being one of the four co-owners Hara would ordinarily have 1/4th share but then the same has to be specified and defined with precision. By means of the will Golapi bequeathed Ac.2.64 decimals in favour of plaintiff. But there is nothing in the evidence to show as to how such extent of land out of the khata came to be allotted to her. This link is missing. The Tahasildar therefore, must be held to have committed gross error of law in overlooking this vital aspect while accepting the claim of Padma regarding her exclusive share over the scheduled property and exclusive share of Golapi over Khata No.68. There is no other acceptable evidence regarding such partition between Padma and Golapi. Therefore, the properties must be presumed to be held jointly by both Padma and Golapi. Once the primary plea of partition falls to the ground, the subsequent Will of exclusive possession raised by the defendant in respect of the suit schedule property, that too on the basis of a Will would have no legs to stand. Obviously, Padma alone cannot Page 14 of 16 succeed to the suit schedule property excluding her sister Golapi, the same being admittedly ancestral property. It would rather be reasonable to hold that both Golapi and Padma would have equal share over both the properties namely, Sabik Khata No.68 (relating to the share of Hara) as well as 69. This is what the First Appellate Court held after analyzing the oral and documentary evidence on record. In view of what has narrated hereinbefore, this Court fully concurs with such finding. 17. It is also borne out from the evidence that on the basis of orders passed by the Tahasildar in the mutation proceedings, Padma got the suit property recorded in her name in Hal settlement. But then it goes without saying that mere entry in the revenue record can hardly confer title. It is reiterated that in the absence of specification of the share of deceased Hara in respect of the properties under Sabik Khata No.68, it cannot be held that there was a mutual partition between Padma and Golapi at the relevant time relating thereto. Such being the finding, the Willnama has to be treated as a document having no sanctity of law. It is therefore, not necessary to go into the Page 15 of 16 contentions raised to question the mode of execution of the Will and its proof in the trial Court in view of the legal position that the testator, Padma had no authority to bequeath the entire ancestral property in favour of the defendant, who admittedly is a stranger to the family. On the other hand, the plaintiff being the sole surviving heir of Golapi has a rightful claimed of title over the properties recorded in Khata No.68 (relating to the share of Hara) as well as 69. The First Appellate Court has must therefore, be held to have correctly decided the appeal. Both the substantial questions of law framed are therefore, answered accordingly. 18. From the foregoing discussion, it is evident that the grounds raised by the defendant to assail the impugned judgment are not valid so as to pursuade this Court to interfere therewith. 19. In the result, the appeal fails and is therefore, dismissed. There shall be no order as to costs. Signature Not Verified Digitally Signed Signed by: BHIGAL CHANDRA TUDU Designation: Senior Stenographer B.C. Tudu Reason: Authentication Location: Orissa High Court, Cuttack Date: 17-Sep-2024 19:22:05 ……..………………….. Sashikanta Mishra, Judge Page 16 of 16