The High Court
Case Details
IN THE HIGH COURT OF ORISSA : CUTTACK RSA No.96 of 2023 In the matter of an Appeal under Section-100 of the Code of Civil Procedure assailing the judgment and decree dated 09.12.2022 and 22.12.2022 respectively passed by the learned Additional District Judge, Rairangpur, Mayurbhanj in RFA No.28/159 of 2022- 2009 in confirming the judgment and decree dated 31.03.2009 and 21.04.2009 respectively passed by the learned Civil Judge (Senior Division), Rairangpur in T.S. No.95 of 1999. ……… Sombari Naik @ Birua & Others :::: Appellants -:: VERSUS ::- Jemamani Purty & Others :::: Respondents
Legal Reasoning
Advocate(s) who appeared in this case by hybrid arrangement (virtual/physical) mode. ----------------------------------------------------------------------------------------- … Mr. Soumya Mishra, Advocate For Appellants For Respondents … ------------------------- ------ CORAM : MR. JUSTICE D.DASH --------------------------------------------------------------------------------------- Date of Hearing 07.12.2023 :: Date of Judgment: 20.12.2023 --------------------------------------------------------------------------------------- D.Dash,J. The Appellants, by filing this Appeal, under Section 100 of the Code of Civil Procedure, 1908 (for short, ‘the Code’), have assailed the judgment and preliminary decree dated 09.12.2022 and 22.12.2022 respectively passed by the learned Additional District Judge, Rairangpur in RFA No.28/159 of 2022-2009. {{ 2 }} One Menja Naik wife of Kanu Naik @ Birua with her two daughters, namely, Sunei and Rinduli as the Plaintiffs had filed the Title Suit No.95 of 1999 in the court of Civil Judge (Senior Division), Rairangpur. The suit was for partition of the lands described in schedule ‘C’ of the plaint. The suit being preliminarily decreed allotting half share to Sunei and Rinduli, the two daughters of Menja over schedule ‘C’ property towards their share, the predecessor-in-interest of Appellant Nos.1 to 6 and other two Appellant Nos.7 and 8 being the aggrieved Defendants had carried an Appeal under section 96 of the Code. That has been dismissed. Therefore, the present Second Appeal is at the instance of the present Appellants who as the Defendants are under the sufferance of the judgments and preliminary decrees passed by the Courts below. 2. For the sake of convenience, in order to avoid confusion and bring in clarity, the parties hereinafter have been referred to, as they have been arraigned in the Trial Court. 3. The parties are Kolhas by caste and as such members of the Scheduled Tribe community. They are governed by Mitakshara School of Traditional Hindu law. One Khudu Naik who died before the settlement of the year 1927 was having two sons, namely, Remokaniya @ Kaniya Naik and Kanu Naik. Kaniya Naik died leaving behind his widow Maduli and four sons who are Defendant Nos.1 to 5. Kanu died leaving Page 2 of 7 {{ 3 }} behind his wife Menja-Plaintiff No.1 and her two daughters- Plaintiff Nos.2 and 3. It be stated here that during pendency of the suit, the Plaintiff No.1 Menja died and her two daughters, who are the co-Plaintiffs prosecuted the suit. The landed properties of the party stood recorded jointly in the record of right of the year 1927 in the name of the two sons of Khudu. The sons of common ancestor remained in jointness though they were residing in separate houses till their death. They were dividing the paddy between themselves after keeping the paddy for to meet the agricultural expenses. After their death, their respective wives and children continued to live in that jointness. It is stated that in the year 1974, Plaintiff No.1 and Defendant No.1 being in urgent need of money for purchase of bullocks and for maintenance, sold a portion of schedule ‘B’ land by executing registered sale deed dated 09.04.1974 in favour of Khudu son of Supaie, Defendant No.6. Two to three years thereafter, the Plaintiff No.1 and Defendant Nos.1 to 5 for convenience started possessing the schedule ‘B’ land separately. However, there was no partition in metes and bounds and, therefore, in the current settlement, the land better described in schedule ‘B’ of the plaint continued to be recorded jointly in the name of the Plaintiffs and Defendants. During rainy season, the residential house of the Plaintiff became inhabitable. So, they being in need of money sold land described in schedule ‘D’ to Defendant No.7. For the said sale, the Defendants created trouble in the Page 3 of 7 {{ 4 }} possession of the Defendant No.7 for which a criminal case was registered. It was then the Plaintiff requested for partition. However, the Defendants did not come forward to do so. Hence, the suit for partition came to be filed. 4. The Defendant Nos.1 to 4 while filing the joint written statement also advanced a counter claim. They stated that Kaniya and Kanu have never divided the agricultural produce between themselves. They both died when they were in joint mess and estate. The genealogy furnished by the Plaintiffs and also the sale of the year 1974 as pleaded by the Plaintiffs have not been disputed. They state that there was no separation or partition for convenience and in fact there was no necessity for the same. It was also disputed that at no time the residential house of the Plaintiffs was damaged, putting them in need of money for sale of schedule ‘D’ land. It is stated that they could not have transferred the said property to Defendant No.7. They state that there was no severance of status among the Plaintiff No.1 and themselves. So, when the Plaintiff No.1 died in jointness and before the actual partition, the daughters could not have maintained the suit, anymore. 5. The Plaintiffs in their written statement to the counter claim reiterated what they had stated in the plaint and have denied those specific averments taken in the counter claim. They assert their right to claim partition. Page 4 of 7 {{ 5 }} 6. Mr. Soumya Mishra, learned counsel for the Appellants submitted that in view of death of Menja Naik, the widow of Kanu Naik, the suit for partition of the properties could not have further proceeded for its culmination in passing the preliminary decree allotting the shares to the Plaintiff Nos.2 and 3 as has been granted by the Courts below and, therefore, the judgments and preliminary decrees challenged in this Second Appeal are liable to be set-at- naught. 7. Keeping in view the submission made, I have carefully read the judgments passed by the Courts below. I have perused the plaint and written statement and have gone through the evidence let in by the parties. 8. The parties are members of the Scheduled Tribe community. The provisions of Hindu Succession Act, 1956 (in short “the HS Act”) have no applicability for them. They are governed by Traditional Mitakshara School of Hindu Law. The Hindu Women’s Right to Property Act, 1937 (for short, the HWRP Act) came into force in the area of Ex-State of Mayurbhanj with effect from 01.01.1949. The detail discussion as regards the history, objects and reasons of said legislation has been made in case of “Kuila Majhiani Vs. Salia Majhi & Others”, 2015 (I) CLR 581 which being rightly worth reading for the purpose, the same has been gone through by the First Appellate Court. Page 5 of 7 {{ 6 }} The provisions of the said HWRP Act brought about the concept of limited ownership of the females in respect of the interest of the males whose heirs they are, over the coparcenary property and it conferred them with the right to claim partition thereafter. The provisions of said Act came to be applied to all those Hindus governed under the Traditional Hindu Law and so also others who only come to be governed by HS Act brought into force on 17.06.1956. 9. Menja Naik, the original Plaintiff No.1 was having the limited ownership in so far as her husband Kanu’s interest in the property coming to the hands of the Remokaniya @ Kaniya Naik and Kanu Naik from their father Kudu is concerned. Without going to the facts as to how the two sons, namely, Remokaniya @ Kaniya and Kanu were living after the death of Khudu, by virtue of the provision contained in the HWRP Act, Menja, the original Plaintiff had all the right to seek for partition to carve out the share of her husband in the joint family ancestral property so as to be possessed and enjoyed by her having the limited interest over the same till her death. The suit having been filed by Menja, in the present case as her two daughters also joined as co-Plaintiffs, they have pursued the suit and contested the Appeal. True it is that at the time of institution of the suit, the two daughters, i.e., Plaintiff Nos.2 and 3 had no such right over the properties but then they could have very well come to be substituted in place of their mother, Menja when she died so as to pursue the suit. Page 6 of 7 {{ 7 }} The reason being the settled law that the very act of filing of the suit for partition by Menja amounted to severance of status and an unequivocal declaration of her intention to sever all her ties with the joint family and its properties and thereby get separated in every respect. So on her death, her daughters (Co-Plaintiffs) under the Traditional Hindu Law became entitled to the interest that had been claimed by Menja being the interest of her husband Kanu over the joint family properties. Therefore, after the death of Menja, no fault can be found with the suit, proceeding at the instance of the surviving Plaintiffs, i.e., Plaintiff Nos.2 and 3 for its culmination in passing the judgment and preliminary decree in the Trial Court. 10. In that view of the matter when during the First Appeal, the Plaintiff Nos.2 and 3, who had been arraigned as Respondent Nos.1 and 2 have died, their legal representatives have been rightly brought on record and they have been rightly held to reap the fruit of judgment and preliminary decree passed in the suit. The submission of the learned counsel for the Appellants thus being not accepted; the Appeal stands dismissed as this Court finds no such substantial question of law to be arising for being answered, meriting its admission. 11. Accordingly, the Appeal stands dismissed. No order as to cost. Signature Not Verified Digitally Signed Signed by: HIMANSU SEKHAR DASH Reason: Authentication Location: OHC Date: 03-Jan-2024 12:37:28 Himansu (D. Dash), Judge. Page 7 of 7