The High Court
Case Details
IN THE HIGH COURT OF ORISSA : CUTTACK RSA No.110 of 2023 : (A) & RSA No.122 of 2023 : (B) A.F.R. In the matter of Appeals under Section 100 of the Code of Civil Procedure, 1908 assailing the judgment and decree dated 26th December, 2022 & 5th March, 2023 respectively passed by the learned District Judge, Jajpur, in RFA No.40 of 2015 confirming the judgment and decree dated 10th April, 2015 & 18th April, 2015 respectively passed by the learned Civil Judge (Senior Division), Jajpur in C.S. No.313 of 2009. …. Appellants …. Respondents In RSA No.110 of 2023 1. Raghunath Sahu; 2. Biswanath Sahu; and 3. Gedua Sahu @ Sahoo In RSA No.122 of 2023 1. Jagabandhu Sahu @ Sahoo -versus- In RSA No.110 of 2023 1. Pramila Kumari Sahu; and 2. Jagabandhu Sahu In RSA No.122 of 2023 1. Pramila Kumari Sahu; 2. Raghunath Sahu; 3. Biswanath Sahu; and 4. Gedua Sahoo Advocate(s) who appeared in this case by hybrid arrangement (virtual/physical) mode. -------------------------------------------------------------------------------------- Mr. S.P. Mishra, Sr. Advocate Mr. S. Mishra, O. Panda, For Appellants - RSA Nos.110 & 122 of 2023 Page 1 of 20 A. Agarwal, R.K. Agrawal, M. Mishra & G.N. Parida (Advocates in RSA No.110/23) Mr.L.K. Maharana & R. Barik (Advocates in RSA No.122/23) For Respondents - Mr. K.C. Kar & P.K. Das (Advocates for R.1 in RSA No.110/23) Mr.L.K. Maharana & R. Barik (Advocates for R.2 in RSA No.110/23) Mr.P.K.Das & D.K. Sahoo (Advocate for R.1 in RSA No.122/23) Mr.S.Mishra, O. Panda, A.Agarwal & R.K. Agrawal (Advocates for R.2 to R.4 in RSA No.122/2023) CORAM : MR. JUSTICE D. DASH -------------------------------------------------------------------------------------- Date of Hearing : 29.02.2024 -------------------------------------------------------------------------------------- D.Dash,J. Since in both these Second Appeals, as at (A) and (B), filed Date of Judgment : 15.04.2024 : under section 100 of the Code of Civil Procedure, 1908 (for short, ‘the Code’), the judgment and decree dated 26th December, 2022 & 5th March, 2023 respectively passed by the learned District
Legal Reasoning
Judge, Jajpur, in RFA No.40 of 2015 have been challenged; those were heard together for being disposed of by this common judgment. RSA Nos.110 & 122 of 2023 Page 2 of 20 The Respondent No.1 in both the Appeals as at (A) and (B) as the Plaintiffs had filed the suit (C.S. No.313 of 2009) in the court of the Civil Judge (Senior Division), Jajpur, as then was. The suit is for partition and allotment of half share to herself with the rest half going to these Appellants (Defendant Nos.3 and 4) and Respondent No.2 (Defendant No.2) of the Appeal as at (A) who are the Appellant and Respondent of the Appeal as at ‘B’. The suit having been preliminarily decreed allotting half share over the suit land to the Respondent No.1 (Plaintiff); this Appellant (Defendant Nos.3 and 4) of the Appeal as at (A) had filed the Appeal under section 96 of the Code. The First Appeal has been dismissed. With the above result in the First Appeal, these Appellants of the Appeal as at (A) who are the Defendant Nos.3 to 4 in the suit when have questioned those judgments and preliminary decrees passed by the Trial Court, First Appellate Court confirming the judgment and preliminary decrees passed by the Trial Court, the Appellant (Defendant No.2) of the Appeal as at (B) who is the Defendant No.2 in the suit has also called in question, the said judgments and preliminary decrees passed by the Trial Court as well as the First Appellate Court. 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. RSA Nos.110 & 122 of 2023 Page 3 of 20 3. Plaintiffs case is that the suit property which is situated in Unit No.8, Jajatinagar in Jajpur Town under Plot No.875 appertaining to Khata No.303 is the joint ancestral homestead of the Plaintiff and Defendants. The suit land recorded in the name of Chanda Bibi, wife of Hari Sahu who happens to the grandmother of the parties. The father of the Plaintiffs and the father of the Defendants are uterine brothers. They are having their house over the suit properties. The Plaintiff’s father shifted to village Taramadan, Habeli Bazar by constructing a building there over his own purchased land. It is stated that he had executed a registered deed of gift on 24.01.1983 in faovur of the Plaintiff. So, the Plaintiff claims to have become the owner in possession of the gifted property to the extent of half of the suit property. Accordingly, it is stated that the rest half of the suit property remains as the entitlement of the Defendants. In the Major Settlement Record of Right, the suit land is recorded in the name of the Plaintiff and Defendants jointly. The Plaintiff is an unmarried helpless lady and taking advantage of that all the Defendants who are the legal heirs and successors of Madhu who is the brother of the father of the Plaintiff, namely, Sukadev are trying to take possession of more than their share over that property ignoring the demand of the Plaintiff for partition of the said property in two halves making her entitlement to half. Hence the suit. RSA Nos.110 & 122 of 2023 Page 4 of 20 4. The Defendant Nos.1,3 to 5 in their written statement while traversing the plaint averments have stated that one Hari Sahu was the common ancestor of the party and Chanda was his widow. They died leaving behind two sons, Sukadev and Madhu. Sukadev died leaving behind his wife Santilata and two sons, namely, Jagabandhu (Defendant No.2) and Ananta as also two daughters, namely, Pramila (Plaintiff) and Putuli. The branch of Madhu is represented by his wife Sukuti (Defendant No.1), three sons; Raghunath (Defendant No.3), Biswanath (Defendant No.4) and Gedu (Defendant No.5). It is stated that the Plaintiff has been falsely and purposely shown Jagabandhu (Defendant No.2) to be the son of Madhu when Jagabandhu is her own brother being the son of Sukadev. It has been further stated that the suit land is the ancestral joint family property and have never been partitioned. The thatched roofed house consisting of six rooms standing over the suit land was burnt to ashes on 15.04.2009. The Defendants having repaired two rooms are occupying the same. The Plaintiff and her family members do not reside over the suit land. The deed of gift standing in favour of the Plaintiff as claimed by her is stated to be void as gift of undivided share without the consent of other co-sharers is not legally permissible. Similarly, it is stated that the recording of the name of the Plaintiff in the Record of Right cannot create title over the suit land in her favour. These Defendants have also taken the plea that the suit as framed for the reliefs claimed is RSA Nos.110 & 122 of 2023 Page 5 of 20 not maintainable without the brothers, sister and mother of the Plaintiff, who are the necessary parties being so arraigned. 5. On the rival pleadings, the Trial Court framed in total six issues. Sitting over to answer Issue Nos.3 and 4 together which relate to the validity of the gift deed dated 08.01.1973 followed by the deed of rectification dated 24.01.1983 and accordingly, the partition of the suit land in accordance with same as prayed by the Plaintiff, upon examination of evidence and their evaluation as also taking note of the decisions as quoted in the judgment, the Trial Court ruled those issues in favour of the Plaintiffs. That has practically led to pass the preliminary decree in acceptance of the prayer of the Plaintiff. 6. The First Appellate Court on being moved by the Defendant Nos.3 to 5 being highly aggrieved by the said judgment and preliminary decree passed by the Trial Court has gone to affirm said important findings returned by the Trial Court and accordingly, the judgment and preliminary decree passed by the Trial Court have been confirmed and the following order thus has come out. “The appeal be and the same is dismissed on contest against the respondents, however, without cost. The judgment dated 10.04.2015 and decree dated 18.04.2015 passed by the Civil Judge (Sr. Division), Jajpur in C.S. No.313/2009 are hereby confirmed.” RSA Nos.110 & 122 of 2023 Page 6 of 20 7. These Appeals have been admitted to answer the following substantial questions of law: - “(i) Whether the gift deed under Ext.3 is valid?; and (ii) Whether there was valid acceptance of the gift by the Plaintiff under Ext.3?” For all essential purpose, both these above questions relate to the validity of the gift claimed by the Plaintiff to have been made in her favour by her father Sukadev and, therefore, those are required to be taken up together for being answered.
Legal Reasoning
8. Heard Mr. Soumya Mishra, learned Counsel for the Appellants in the Appeal as at ‘A’ and Mr. N.K. Maharana, learned Counsel for the Appellants in the Appeal as at ‘B’. None appeared on behalf of the Respondent No.1 (Plaintiff), when called on 29.02.2021 and taken up for hearing and also providing one more opportunity when brought under the heading of ‘To be Mentioned’ on 02.04.2024. 9. Learned Counsel for the Appellants of the Appeal as at ‘A’ and “B” sail in the same boat since their main defence is to bulldoze the deed of gift besides of course challenging the sonship of Defendant No.3 as shown by the Plaintiff from the beginning. Before proceeding further at this stage, it is stated that as per the case of the Plaintiff, the Defendant No.1, Jagabandhu is the son of Madhu and that had been shown in the cause title of the plaint that he is the full blooded brother of Defendant Nos.3,4 RSA Nos.110 & 122 of 2023 Page 7 of 20 and 5. On the contrary, the case of the Defendants is that Jagabandhu is the son of Sukadev, the father of the Plaintiff and as such is the full blooded brother of the Plaintiff. The Trial Court as well as the First Appellate Court on this issue upon examination of evidence and their evaluation have returned the concurrent finding that Jagabandhu is the son of Madhu, what the Defendants asserted has been accepted and what has been the case of the Plaintiff in the plaint has been turned down. Said concurrent finding is not facing any challenge in these Appeals from the side of the Plaintiffs and the substantial question of law are also not touching upon that. It is also seen that she has neither filed any cross-appeal or cross-objection. When the fact also stands that such finding against the Plaintiffs having been given by the Trial Court, she had not also filed any cross-appeal or cross-objection before the First Appellate Court, in the Appeal carried by the Defendant Nos.3, 4 and 5. Therefore, the finding that the Defendant No.2 is the son of Sukadev has attained finality. So, the Plaintiff when was claiming that Madhu had four sons, that stand has been rejected. So, we proceed with the factual setting that the Plaintiff as well as Defendant No.2 are the heirs and successors of Sukadev standing to succeed his properties. RSA Nos.110 & 122 of 2023 Page 8 of 20 10. The relevant pleading in the plaint as to the nature of the property are first of all required to be gone into and the relevant portions, therefore, are reproduced herein below:- “(i) That the suit land fully described in schedule of the plaint is the joint family ancestral homestead of the Plaintiff and Defendants; and (ii) That the suit schedule land stood recorded in the name of late Chanda Dei, grandmother of the parties. Chanda is the mother of Sukadev and Madhu ad the wife of Hari, who is the father of Sukadev and Madhu.” 11. The Plaintiff claims half share over the suit schedule property basing upon the gift said to have been made by her father, Sukadev in her favour in respect of the half interest that he was having over the suit schedule property with the rest half resting with Madhu. It is, thus, the case of the Plaintiff that her father as the donor had executed the deed of gift which was registered in gift away his half interest over the suit schedule property to the Plaintiff. In fact, as per the admitted case, Sukadev had half interest over the suit schedule property and therefore, when as per the case of the Plaintiff she is the only daughter of Sukadev who had no other heir of Class-I surviving at that time, then there was no necessity at all for executing the registered deed of gift except to facilitate that the Plaintiff gets the property immediately without waiting till the death of Sukadev or for the reason that the donor Sukadev was apprehending that it would not be safe for him anymore to hold the property as he was RSA Nos.110 & 122 of 2023 Page 9 of 20 unable to maintain and preserve etc. and, therefore, the Plaintiff , who is his daughter should step into look after. Here the fact remains that the Plaintiff having got the deed of gift, Ext.3 in her favour has not filed the suit immediately but it is after more than about three and half decades of that deed coming into being. The deed of gift is 08.01.1973 and the suit has been filed on 10.06.2009. That apart the prayer in the suit filed by the Plaintiff is for a preliminary decree for partition of the suit land entitling her to half share over the suit schedule property. The legal implication of that is quite significant in the sense that either the said donee was not in possession of any part of the property or if the part of the property was in her possession, she was not certain as to if which would be enjoyed by her as the gifted property and, therefore, in seeking partition, she claims any part notwithstanding her possession, if any but saving the extent, i.e., half interest/share. One more disturbing feature appears here in that after about 12 (twelve) years of execution of the gift deed, the same donor has executed a rectification deed when it is not said as to why that necessity arose or that how for 12 years, the mistake went unnoticed and if so what necessitated to go for a subsequent deed. 12. In the above situation, if the judgments and decrees passed by the Courts below would stand confirmed, then the Plaintiff RSA Nos.110 & 122 of 2023 Page 10 of 20 would be getting half share over the suit schedule property, that is total share which her father had, as otherwise also if the deed of gift is held invalid, the Plaintiff would be getting 1/4th share, when 1/4th share would also stand as the entitlement of the Defendant No.2. The Plaintiff in the entire plaint does not state to have been in possession of any portion of the land or house standing over on the suit schedule property. She rather states that the Defendants have constructed a building over the suit lands and the old kacha (thatched)house existing on the suit land had been raised to ground. It is next stated that the Defendants taking advantage of jointness of the suit land even now are trying to take more land than their legitimate share. At the same time, we find the averments in the plaint to be there in clear terms that the father of the plaint namely, Sukadev having purchased a piece of land in village Taramadan (Habeli Bazar) had constructed a building over there and was residing with his family on the said plot and premises which was his self- acquired property. 13. The Trial Court as well as the First Appellate Court have concurrently held that since the deed of gift was executed by Sukadev for pious purpose, it is not void and instead it is valid to the extent of share of Sukadev and as such the Plaintiff has half share over the suit land. The reasons in support of the same, is that the purpose behind execution of the gift deed Ext.3 since RSA Nos.110 & 122 of 2023 Page 11 of 20 shows that the Plaintiff was taking care of her Sukadev and being satisfied with such care, bestowed upon Sukadev, he had executed the deed of gift to the extent of his share and therefore, the purpose was pious. This Court now taking a pause here is constraint to ask a question to itself that if we say the above to be the pious purpose then when a gift is made out of love and affection for the service rendered, for what purpose it can be said to have been made. A father gifting away his property in favour of the daughter excluding the son being satisfied with the service that the daughter had been rendering and by saying that the daughter used to take his care by paying proper attention can never be said to be a gift backed with pious purpose. The term pious purpose is a gift for charitable and/or religious purpose. In case of Guramma Bhratar Chanbasappa Deshmukh and Others vs. Mallappa Chanbasappa and Another; AIR 1964 SC 510, the principle of law has been laid down as under:- “It may, therefore, be conceded that the expression "pious purposes" is wide enough, under certain circumstances, to take in charitable purposes though the scope of the latter purposes has nowhere been precisely drawn. But what we are concerned with in this case is the power of a manager to make a gift to an outsider of a joint family property. The scope of the limitations on that power has been fairly well settled by the decisions interpreting the relevant texts of Hindu law. The decisions of Hindu law sanctioned gifts to strangers by a manager of a joint Hindu family RSA Nos.110 & 122 of 2023 Page 12 of 20 of a small extent of property for pious purposes. But no authority went so far, and none has been placed before us, to sustain such a gift to a stranger however much the donor was beholden to him on the ground that it was made out of charity. The Hindu law permits him to do so only within strict limits. We cannot extend the scope of the power on the basis of the wide interpretation given to the words "pious purposes" in Hindu law in a different context. In the circumstances, we hold that a gift to a stranger of a joint family property by the manager of the family is void”. In case of Ammathayi @ Perumalakkal and Anr. Vs. Kumaresan @ Balakrishnan and Ors.; AIR 1967 SC 569, whereeven the donor stated that as wished by his father, he was making the gift to his wife which was in discharge of pious obligation; the Court rejected the ground. It then had taken a view that if that was the father’s desire, since the father-in-law could not have done so at the time of marriage of his daughter-in-law, he would not be competent to do so in so far as ancestral immovable properties are concerned. 14. The consideration as to the daughter’s love and affection to the father and that of the daughter to father as also the service for the care and attention given to father by the daughter, if would fall within the ambit of pious purpose, then it would not be impermissible to say that the gift to any one backed by the reasons such as a love and affection etc. can also be said to be a gift having the backing of pious purpose. The term pious purpose RSA Nos.110 & 122 of 2023 Page 13 of 20 is a gift for charitable or religious purpose. A Hindu father or any other managing member of a Hindu undivided family have the power to gift the ancestral property only for pious purpose. A gift with regard to the ancestral property executed out of love and affection does not come within scope and ambit of the term ‘pious purpose’. The gift of ancestral immovable property to a daughter by the father up to a reasonable extent at the time of marriage even though is permissible, yet that is not so permitted as one for pious purpose but for the reason that in the ancient days as the right of the daughter in presence of son over the father’s property that too ancestral was not there at all and even without the son their interest was limited and it was then that the daughters were taken as liabilities for the father, and they were given on ‘Kanyadaan’, such reasonable extent of immovable property of ancestral in nature was permitted. Therefore, the finding of the Courts below to that effect cannot be sustained. The gift by a father/ mother/ guardian and even grandfather/grandmother in favour of their children or grandchildren cannot be said to be in the direction of exhibiting the piousness of the donor. The Plaintiff herself in the plaint even though states that the land was recorded in the name of her grandmother but has very pin pointedly projected the case that the suit schedule property was the ancestral joint family homestead. Therefore, the gift by RSA Nos.110 & 122 of 2023 Page 14 of 20 Sukadev in her favour is impermissible in the eye of law and as such is void as the donor had no power. In the present case, when the gift was made by Sukadev, the Plaintiff was not having any interest over the suit schedule property and she has been conferred with the interest that her father had over the suit property. It is not stated that the same had the consent of the Defendants or the predecessor-in-interest of Defendant Nos. 3 to 5 and also the mother of the Plaintiff, if she was then alive. 15. There is a long catena of decision holding that the gift by coparcener of his undivided interest in the coparcenary property is void. It is not necessary to refer all these decisions instead it would be suffice for the purpose in referring to the following statement of law in Mayne’s Hindu Law, 11th Edition Para-382:- “382, Gift Invalid – It is now equally well settled in all the provinces that a gift or devise by a coparcener in a Mitakshara family of his undivided interest is wholly invalid. ….. coparcener cannot make a gift of his undivided interest in the family property, movable or immovable, either to a stranger or to a relative except for purposes warranted by special tests.” Mulla’s Hindu Law, 24th Edition Article-256 Para -405 is as follows:- “256, Gift of undivided interest- (1) According to the Mitakshara Law as applied in all the States, no coparcener can dispose of his undivided interest in coparcenary property by gift. Such transaction being RSA Nos.110 & 122 of 2023 Page 15 of 20 void altogether there is no estoppel or other kind of personal bar which precludes the donor from asserting his right to recover the transferred property. He may, however, make a gift of his interest with the consent of the other coparceners.” 16. It is the settled law that a Hindu father or other managing member has the power to make a gift within reasonable limits of ancestral immovable property for ‘pious purposes’. In case of R.Kuppaya vs. Raja Gounder (2004) 1 SCC 295, the Hon’ble Apex Court, examining the whole question, has held that it was competent for a father to make a gift of immovable property to a daughter, if the gift is of reasonable extent having regard to the properties held by the family. The emphasis has been that the gift must be a ‘reasonable extent’. Thus, on facts, in order to say that it is invalid, it has to be found that it is beyond the reasonable limit. This Court, in Tara Sahuani vs. Raghunath; AIR 1963 Orissa 59, has held that a father can make a gift of a small portion of ancestral immovable property to his daughter at or after her marriage if the extent of gift is reasonable and particularly if she is in poor circumstances. 17. In the given case, gift being in respect of the whole interest that the donor namely, Sukadev was having over the suit schedule property where at that point of time, the Defendant No.2 who has been found to be the son of Sukadev was also RSA Nos.110 & 122 of 2023 Page 16 of 20 having the interest by the birth as a coparcener, the gift under circumstances cannot be held to be the either of reasonable extent. Nor it is the case that the Defendant No.2 had at least the consent if not the Defendant Nos. 3 and 5. 18. We may now refer to Mulla’s Hindu law of Article- 258 of 15th Edition, it has been stated as follows:- “Gift of undivided interest- (1) According to the Mitakshara law as applied in all the States, no coparcener can dispose of his undivided interest in coparcenary property by gift. Such transaction being void altogether there is no estoppels or other kind of personal bar which preclude the donor from asserting his right to recover the transferred property. He may, however, make a gift of his interest with the consent of the other coparceners.” 19. The Supreme in case of Thamma Venkata Subbamma (dead) by L.R. v. Thamma Rattamma and Others, AIR 1987 SC 1775 has held:- “The Supreme Court held that an individual member of the joint Hindu family has no definite share in the coparcenary property. By an alienation of his undivided interest in the coparcenary property, a coparcener cannot deprive the other coparceners of their right to the property. The object of this strict rule against alienation by way of gift is to maintain the jointness of ownership and possession of the coparcenary property. It is true that there is no specific textual authority prohibiting an alienation by gift and the law in this regard has developed gradually, but that is for the purpose of preventing a joint Hindu family from being disintegrated. RSA Nos.110 & 122 of 2023 Page 17 of 20 The rigor of this rule against alienation has been to some extent relaxed by the by gift Hindu Succession Act, 1956, Section 30 of the Act permits the disposition by way of will of a male Hindu in a Mitakshara coparcenary property. The most significant fact which may be noticed in this connection is that while the Legislature was aware of the strict rule against alienation by way of gift, it only relaxed the rule in favour of disposition by a will the interest of a male Hindu in a Mitakshara coparcenary property. The Legislature did not, therefore, deliberately provide for any gift by a coparcener of his undivided interest in the coparcenary property either to a stranger or to another coparcener. Therefore, the personal law of the Hindu, governed by Mitakshara School of Hindu Law, is that a coparcener can depose of his undivided interest in the coparcenary property by a will, but he cannot make a gift of such interest.” In the wake of aforesaid discussion and reasons, the answer to the substantial questions of law is so provided by holding that the deed of gift, Ext.3 is invalid in the eye of law and as such cannot hold the field that the Plaintiff as the donee under the said deed of gift had acquired the right over half share out of suit schedule property which was the share of her father, donor. 20. Having said so, now it has been conclusively found that Sukadev has not sold her interest over the suit schedule property in favour of anyone else, nor it is said that he had executed any Will or made any other testamentary disposition as regards her interest over the suit schedule property. RSA Nos.110 & 122 of 2023 Page 18 of 20 The Plaintiff and Defendant No.2, being the Class-I heirs of Sukadev, are legally entitled to 1/4th share each over the suit schedule property and the entitlement of the Defendant Nos.3, 4 and 5 together stands to the extent of ½ half share. It is be stated here that in view of the total omission of the provision contained in section 23 of the Hindu Succession Act, 1955 by the Amendment Act, 2005 coming into force on 9th September 2005 which has the effect of being never in the statute at all and can even be taken into account in pending suits, appeals etc., the impediment as to partition of the same does no more stand and that right is no more to remain under suspension abeyance till happening of the contingent as found place in that section 23 of the Act. In that view of the matter, this Court is of the view that instead of non-suiting the Plaintiff, she has to be favoured with the preliminary decree as afore-stated. 21. The suit is thus preliminarily decreed for partition of the suit property declaring 1/4th share of the Plaintiff and Defendant No.2 each and 1/6th share of Defendant Ns.3, 4 & 5 each over the suit land. The parties are directed to make amicable division of the property in accordance with their above allotted share amongst themselves within one month hence and in the event of failure, final decree be passed after deputing the Civil Court Commissioner to make the division by allotment of the specific land to the parties as per their share as aforesaid and acceptance RSA Nos.110 & 122 of 2023 Page 19 of 20 of the report that effect as per law. It is further directed that the Civil Court Commissioner, while making the division, shall give due regard to the possession of the parties and their convenience as far as possible and practicable. 22. Accordingly, both the Appeals stand disposed of. There shall, however, be no order as to cost. Sd/- (D. Dash), Judge. True Copy P.A. Himansu Signature Not Verified Digitally Signed Signed by: HIMANSU SEKHAR DASH Reason: Authentication Location: OHC Date: 29-Apr-2024 19:09:15 RSA Nos.110 & 122 of 2023 Page 20 of 20