The High Court
Case Details
IN THE HIGH COURT OF ORISSA AT CUTTACK RSA NO.474 OF 2014 (From the judgment and order dated 25th June, 2014 passed by learned District Judge, Kalahandi, Bhawanipatna in R.F.A. No.24/2012 and the judgment and decree passed by learned Civil Judge (Sr. Division), Bhawanipatna, Kalahandi in C.S. No.61/2009. Udit Narayan Pradhan (Dead) through his legal representative and others … Appellants -versus- Seshadev Pradhan (Dead) through his legal representatives and others … Respondents Advocates appeared in the case through hybrid mode: For Appellants : Mr. U.K.Samal, Advocate -versus- For Respondents: Mr.Ashutosh Mishra, Advocate --------------------------------------------------------------------------- CORAM: JUSTICE SASHIKANTA MISHRA JUDGMENT 18.4.2023. RSA No.474 of 2014 Page 1 of 18 Sashikanta Mishra,J. The Appellants, who were defendants in the trial Court have preferred this appeal seeking to challenge the judgment and decree passed by learned District Judge, Kalahandi, Bhawanipatna on 25th June, 2014 and 10th July, 2014 respectively in RFA No.24/2012 whereby, the appeal was allowed in part by modifying the judgment and decree passed by the trial Court. The trial Court, being Civil Judge (Sr. Division), Bhawanipatna by his judgment and decree passed on 11th September, 2012 and 22nd September, 2012 respectively in C.S. No.61/2009 decreed the suit of the Plaintiff for declaration and partition of the schedule lands. For convenience, the parties are referred to as per their status in the trial court. Facts 2. The plaintiff9s case, briefly stated, is that the property under Schedule 8B9 was his self-acquired property though he had purchased the same in his RSA No.474 of 2014 Page 2 of 18
Facts
name along with the names of his brothers Defendant No.1, Defendant No.2 and Biswajit Pradhan (his deceased brother) vide R.S.D. No.2822 dated 22nd May, 1972. Plaintiff and the Defendant Nos.2,3 and 4 are all sons of Defendant No.1. 3. In so far as the property under Schedule 8A9 is concerned, it is claimed that the same is the ancestral property of the parties, which Defendant No.1 had received on partition from his brother Niranjan Pradhan. The said partition was effected as the size of family had increased and therefore, the co-sharers, being the plaintiff and his brother Niranjan Pradhan amicably partitioned the properties with each taking half share with the intervention of local gentries in the year 1970. It is further claimed that though the Schedule 8B9 property was purchased in the names of the Plaintiff and Defendant Nos.2, 3 and Biswajit Pradhan, the Plaintiff parted the said land to Defendant Nos.1 to 3 and Biswajit Pradhan in lieu of the share of Defendant RSA No.474 of 2014 Page 3 of 18 No.1 in Schedule 8A9 lands. The said exchange was reduced to writing. He further claims to have improved and developed the Schedule 8A9 lands by transplanting different trees and also earned income by selling mangos and cashew nuts. He incurred an agricultural loan of Rs.15980/- from Medinipur Service Cooperative Society by mortgaging Ac.4.00 decs. out of Schedule 8A9 lands and repaid Rs.1420/- till 30th June, 2008. In December, 2008 the Defendants asked the Plaintiff to part with cashew nuts, mangoes and teak trees from the Schedule 8A9 land, which being refused led to a quarrel. The defendants asked him to vacate the Schedule 8A9 land and forcibly trespassed thereupon. Further, in order to grab the Schedule lands the Defendants got the name of Defendant No.1 recorded in the R.O.R. in Khata No.1 in respect of Schedule 8A9 and the names of Defendant Nos.2 to 4 recorded in Khata No.38 under Schedule 8B9 behind the back of the Plaintiff in the current settlement by gaining over the settlement authorities. The Registered Sale Deed No.1921/2009 dated 28th May, 2009 showing sale of RSA No.474 of 2014 Page 4 of 18 land by Defendant No.1 in favour of Defendant No.4 is a manufactured document and the Mutation Case No.952/2009 and the order passed thereon is invalid. On such facts, the Plaintiff filed the suit seeking declaration of his right, title and interest over the schedule lands along with declaration that R.S.D. No.1921/2009 is not binding on him with the alternative prayer of partition of Schedule 8A9 land to the extent of half share and Schedule 8B9 land to the extent of 1/3rd share. 4. The case of the Defendants, apart from admitting the relationship between the parties is that Defendant No.1 (since dead) has 8 daughters and 4 sons. The Schedule 8A9 land is ancestral land of Sundar Pradhan and during his life time there was an amicable family partition between Defendant No.1 and his brother Niranjan Pradhan prior to 1955-56 settlement Accordingly, the Sabik Settlement R.O.R. was recorded in their favour. Defendant No.1 purchased an area of Ac.30.32 decs. of land in Mouza-Sikerguda in the RSA No.474 of 2014 Page 5 of 18 name of his sons i.e., plaintiff, Defendant Nos.2 and 3 and his deceased son Biswajit Pradhan under R.S.D. No.2822 of 1972 out of his own income. In the OLR Revision Case No.141/1983 the plaintiffs did not raise any objection claiming that that he had purchased the land exclusively for which the Tahasildar, Bhawanipatna had recorded the land in the names of the Plaintiff and Defendant Nos.2 to 4. After marriage of the Plaintiff in the year 1972, there was amicable partition between the plaintiff and Defendants and accordingly ROR was prepared in the names of the brothers of the Plaintiff excluding Defendant No.1. When they were living in joint mess, the daughter of the plaintiff was given in marriage for which they spent Rs.3 lakhs. Further, to arrange money for establishing business at Bhawanipatna and Ambodala, Defendant No.1 sold Ac.4.00 decimals of land in Mouza Sujanpur in the year 1983 and lands measuring Ac.1.04 decs. in the year 1990 for establishing a photo studio. It is thus claimed that the Plaintiff has no right, title and interest or possession over the land under Khata No.38 RSA No.474 of 2014 Page 6 of 18 measuring Ac.25.24 decs. and due to financial difficulties Defendant No.1 being the exclusive owner of Schedule 8A9 lands sold it to Defendant No.4 on 28th May, 2009 by receiving consideration amount of Rs.3,09,500/- and delivered possession. Findings of the Courts below 5. Basing on the pleadings, the trial Court framed 11 issues for determination. After appreciating the evidence on record, the trial court decreed the suit in part by declaring that the Registered Sale Deed No.1921/2009 executed by Defendant No.1 in favour of Defendant No.4 is not binding on the Plaintiff. The trial Court further directed partition of Schedule 8A9 and 8B9 lands allotting half share in favour of the plaintiff and 3/4th share in favour of the Defendants. 6. Being aggrieved, the Defendants carried the matter in appeal. Learned 1st Appellate Court held that the findings of the trial Court except Issue No.5 warrants no interference. In so far as the finding on Issue No.5 RSA No.474 of 2014 Page 7 of 18 is concerned, the 1st Appellate Court held that the daughters of Defendant No.1 are also entitled to share in Schedule 8A9 lands only. The appeal was accordingly allowed to the extent of directing that the Plaintiff is entitled to 1/12th share in Schedule 8A9 lands. 7. Being further aggrieved, the Defendants have preferred the instant appeal, which was admitted on the following substantial questions of law; <(i)Whether the Courts below committed serious error/illegalities by declaring the execution of the Regd. Sale Deed No.1921 dated 28.5.2009 executed by Defendant No.1 favour of Defendant No.4 as illegal which was executed as the 8Karta9 of the joint family properties for the legal necessity of the family? in (ii)Whether the shares of the co-sharers was properly allotted?=
Legal Reasoning
12. Viewed in the light of the position of law as above, it is seen that the evidence on record does not at all support the plea taken by the Defendant No.1 that there was legal necessity to sell the property. Firstly, the sale was lis pendens and therefore, its validity, if at all, has to abide by the result of the suit. The First Appellate Court took pain to go through the certified copy of the plaint in the money suit (Ext.F) and found that a loan of Rs.4,69,000/- was obtained by Defendant Nos.1 and 4 in the year, 2006 in which the RSA No.474 of 2014 Page 13 of 18 plaintiff was the guarantor. Under such circumstances, the First Appellate Court expressed surprise and according to this Court rightly so, as to how Defendant No.4 could pay Rs.3,09,500/- as sale consideration without repaying the loan taken by both of them. In the recitals of the sale deed (Ext.A/Ext.10), it is mentioned that the Defendant No.1 was faced with the need to meet his medical and household expenses, but no evidence worth the name showing either the medical or household expenses was adduced. On such findings the First Appellate Court was persuaded to confirm the finding of the trial Court that the sale in question was not for any legal necessity. After perusing the evidence, this Court finds no reason to differ from the Courts below in this regard. 13. As regards, the validity of such a sale i.e. by the Karta without legal necessity, Mr. Samal has argued that the same would be valid to the extent of the share of the Karta i.e., Defendant No.1. He has relied upon RSA No.474 of 2014 Page 14 of 18 the case of Sunil Kumar and another (supra) in this regard wherein it was held that; <xxx xxx xxx xxx is found the alienation to be If unjustified, then it would be declared void. Such alienations would be void except to the extent of Manager’s share in Madras, Bombay and Central Provinces. The purchaser could get only the Manager’s share. xxx xxx xxx=. On such basis Mr. Samal submits that since Kalahandi was part of the erstwhile Central Provinces, the above ratio would be applicable. 14. In the case of Karunakar Rout (supra), this Court has held that in a joint family governed by Banaras School of Mitakshara law, the transfer of property by an undivided co-parcener is void ab initio and is not even valid to the extent of his share. There is no dispute that the parties belong to the Banaras School of Mitakshara. Thus, while there can be no quarrel as regards the proposition laid down in Sunil RSA No.474 of 2014 Page 15 of 18 Kumar (supra), it must be noted that the same was rendered in general keeping in mind the principles followed in different regions of the country. The parties would however continue to be governed by the School of law to which they relate to irrespective of their place of residence. 15. In such view of the matter, the finding of the First Appellate Court that the sale was void ab initio is absolutely correct. Therefore, this Court would answer the substantial questions framed to the effect that the Courts below committed no illegality in declaring the execution of R.S.D. No.1921 dated 28th May,2009 by Defendant No.1 in favour of Defendant No.4 as illegal. 16. As regards the second substantial question of law framed in this appeal, it is seen that both the Courts below have held that Schedule 8A9 property, originally belonging to their common ancestor is coparcenary property having been received by Defendant No.1 on partition from his brother. In so far as Schedule 8B9 Property is concerned, both the Courts RSA No.474 of 2014 Page 16 of 18 below have held on the basis of evidence on record that the same was purchased by Defendant No.1 from out of his own funds with contribution from the Plaintiff. Since Defendant Nos.2, 3 and Biswajit Pradhan (deceased brother) were the sons of Defendant No.1, both the Courts below presumed that Defendant No.1 must have contributed their share in the purchase of the property and therefore, the property stood recorded jointly in their names. After scanning the evidence on record independently, this Court finds nothing wrong in the aforementioned findings of the Courts below. Thus, this Court also holds that the Schedule 8B9 property is joint family property in the hands of the Plaintiff and Defendant Nos.1 to 4. 17. Coming to the allotment of shares, in view of the finding that the property under Schedule 8A9 is coparcenary property the same is liable to be partitioned equally among all co-sharers. Since the Defendant No.1 has died in the mean time, the property under Schedule 9A9 shall be allotted to the RSA No.474 of 2014 Page 17 of 18 Plaintiff and other Defendants @ 1/12th share each. In so far as the property under Schedule 8B9 is concerned, it is seen that both the Courts below, despite observing that the property is joint family property, failed to allot any share to defendant No.4 whose name was subsequently recorded in the ROR. Thus, this Court holds that the Plaintiff, Defendant Nos.2, 3 and 4 are all entitled to 1/4th share each of Schedule 8B9. 18. In the result, the appeal is allowed in part. The impugned judgment and decree passed by the lower appellate Court is modified to the extent of allotment of shares in respect of the Schedule 8A9 and Schedule 8B9 properties in the manner depicted in paragraph-17 of this judgment. …………….…….……….. (Sashikanta Mishra) Judge Ashok Kumar Behera RSA No.474 of 2014 Page 18 of 18 RSA No.474 of 2014 Page 19 of 18 RSA No.474 of 2014 Page 20 of 18 RSA No.474 of 2014 Page 21 of 18
Arguments
8. Heard Mr. U.K.Samal, learned counsel appearing for the Appellants and Mr. Ashutosh Mishra, learned counsel appearing for the Respondents. Submissions RSA No.474 of 2014 Page 8 of 18 9. It is argued by Mr. Samal that both the Courts below have committed material illegality in holding that the sale effected by Defendant No.1 in favour of Defendant No.4 vide R.S.D. No.1921 dated 28th May, 2009 (Ext.A) was not for any legal necessity and that the scheduled properties are joint family properties. Mr. Samal has referred to the evidence of Defendant No.1(D.W.1) and of Defendant No.4 (D.W.2). He has also referred to the evidence relating to the decree passed in Bkg.P. 40/2010 by the learned Civil Judge (Sr. Division) for payment of Rs.6,41,062/-. Mr. Samal, therefore contends that the findings of the Courts below on the fact of such overwhelming evidence regarding absence of legal necessity for sale is perverse. Mr. Samal alternatively argues that even if it is held that the schedule properties are joint family properties then the allotment of shares as made by the Courts below is erroneous inasmuch as the property covered under the sale deed shall remain valid to the extent of the share of Defendant No.1. Mr. Samal has relied upon the decision of the Apex Court in the case RSA No.474 of 2014 Page 9 of 18 of Sunil Kumar and another vs. Ram Parkash and others; reported in (1988) 2 SCC 77 to contend that the district of Kalahandi being part of the erstwhile Central Province, the alienation even if found to be unjustified would not be void to the extent of the Karta9s share. As a corollary, the shares are required to be re-allotted to the extent of granting 1/13th share to the Plaintiff, Defendant Nos.1 to 4 and the 8 daughters in respect of the Schedule 8A9 land. Defendant No.4 shall get 2/3rd share from such land in respect of Schedule 8B9 land. It is contended that the share of Defendant No.4 has not been allotted, which is wrong. 10. Per contra, Mr. A. Mishra has argued that both the Courts below have, on appreciation of the oral and documentary evidence, arrived at the positive finding that there was no legal necessity for alienation of the joint family properties. Moreover, the sale was effected after institution of the suit and so also the Bank loan obtained in relation to the money suit referred to by the Appellants. Mr. Mishra further submits that since RSA No.474 of 2014 Page 10 of 18 the parties are governed by Banaras School of Mitakshara law the sale made by a co-parcener of an undivided property is void ab initio. Mr. Mishra has relied upon the decision of this Court in the case of Karunakar Rout @ Thatoi vs. Golak Bihari Biswal; reported in 78 (1994) CLT 397. Mr. Mishra further submits that presently Defendant No.1 having expired the Schedule 8A9 property has to be divided into 12 parts with each co-sharer being allotted 1/12th share. As regards Schedule 8B9 property Mr. Mishra fairly submits that the Plaintiff and Defendant Nos.2, 3 and 4 are entitled to 1/4th share each. Analysis and Findings: 11. In view of the rival submissions as noted above and the substantial questions of law framed for determination, it is evident that the question whether the Schedule 8A9 property is available in its entirety for partition among the co-sharers depends upon the correctness of the finding of the Courts below regarding the validity of the sale effected by Defendant RSA No.474 of 2014 Page 11 of 18 No.1 in favour of Defendant No.4 vide R.S.D. No.1921 dated 28.5.2009. Before proceeding further it would be significant to note that the suit was filed with presentation of plaint on 11.5.2009. The R.S.D. being executed on 28th May, 2009 is thus a post-litem transaction. Be that it may, according to Defendant No.1, the marriage of the plaintiff9s daughter namely, Jyotirmayee was solemnised and he being the Karta of the family had to incur the entire marriage expenses for which he executed the sale deed in question in favour of defendant No.4 for a consideration amount of Rs.3,09,050/-. He further stated that for the improvement and development of agriculture he mortgaged the Schedule 8A9 land with the State Bank of India, Bhawanipatna for financing a Tractor, but as the loan amount could not be repaid in time, the Bank instituted a suit against him for recovery of money being Bkg.P. 40/2010. The status of the Appellant as Karta of the family is not seriously disputed by any of RSA No.474 of 2014 Page 12 of 18 the parties. It is well settled that the Karta of the family can alienate the undivided joint family property for legal necessity. But then, existence or otherwise of legal necessity is a matter of fact that needs to be proved by the person claiming it by adducing cogent evidence. It is also trite that mere recital of legal necessity in the deed of sale would not, by itself, prove its existence particularly when challenged by the other side. The burden of proving the same is on the person claiming legal necessity.