The High Court
Case Details
IN THE HIGH COURT OF ORISSA AT CUTTACK RSA No. 143 of 2023 [In the matter of an appeal under Section 100 read with Order 42 of the Code of Civil Procedure, 1908] --------------- Sanjukta Biswal ...… Appellant -Versus- Jenamani Samal (since dead) Narmada Samal @ Behura & Others ….. Respondents Advocate(s) appeared in this case :- ______________________________________________________________ For Appellant : M/s. Tusar Kumar Mishra & P. Bastia, Advocates For Respondent : M/s. N.P. Parija, A.K. Mohanty, S. Parija, I. Khan, Advocates. [For R1(a), 1(b) and R2] M/s. P. Das Mohapata, P.M. Dasmohapatra, S.S. Sahoo, Advocates. [ R. 3, 4 & 6] ______________________________________________________________ CORAM JUSTICE SASHIKANTA MISHRA JUDGMENT 5th April, 2025 SASHIKANTA MISHRA, J.
Legal Reasoning
This is a plaintiff’s appeal against a confirming judgment. The plaintiff’s suit for declaration of RSD dated 05.10.2013 as null and void, for partition, Page 1 of 11 permanent injunction and other consequential relief was decreed in part by granting only the relief of partition. In appeal, the Lower Appellate Court confirmed the judgment of the trial Court. 2. For the sake of convenience, the parties are referred to as per their respective status in the trial Court. 3. The following genealogy describes the relationship between the parties. GENEOLOGY (Sanjukta - Plaintiff) Bairagi Dolagobinda Gokuli (Dead) Bikali (Dead) Kumati Kanhu (Dead) (Both died issueless) Jenamani (D/1) (Dead) (D-1(b)) (D-1(a)) Malati(w) Narmada-D Pramoda (Married) (Married) Bhanu Sanjukata Susanta Dhananjaya (D-4) (Plaintiff) (D-5) (D-6) 4. The plaintiff’s case, briefly stated, is that one Bairagi Biswal being the common ancestor of the parties except defendant No.2, was the original owner of the suit Page 2 of 11 schedule properties. After his death, the properties were succeeded by his three sons, Dolagobinda, Gokuli and Bikali. The plaintiff and defendant Nos. 3 to 6 relate to the branch of Gokuli while defendant No.1 relates to Bikali Branch. Dolagobinda and his wife died issueless transferring their interest in favour of Kanhu, the father of plaintiff. Defendant No.1 sold some property under her separate possession to Kanhu. The properties being joint family homestead have not been partitioned by metes and bounds. Defendant No.2, being a stranger managed to purchase a portion of the suit land by exerting undue influence on defendant No.1, who is a rustic and illiterate woman vide RSD dated 05.10.2013. Having done so, he tried to enter upon the suit land and to change its nature and character. Hence, the suit. 5. Defendant Nos. 1 & 2 contested the suit, inter alia, pleading that the suit properties had already been partitioned on 01.04.1980 by way of oral arrangement, whereby specific shares were allotted to co-sharers. The father of the plaintiff purchased the share of Dolagobinda Page 3 of 11 from his widow by paying a nominal consideration. He also managed to purchase the share of defendant No.1 prior to alienation to defendant No.2. Defendant No.1 offered the plaintiff to sell her share over the suit property as per market value but she refused. As such, the defendant No.1, on payment of proper consideration purchased the suit land and is in peaceful possession. The suit land is not a homestead land but being used as a bari. As such, the bar under Section 4 of the Partition Act and Section 44 of the T.P. Act is not attracted. 6. Defendant Nos. 3 to 5 filed their written statement supporting the claim of the plaintiff. 7. On the rival pleadings the trial Court framed the following issues for determination. “i) Whether the suit is maintainable in its present form? ii) Whether there is a cause of action to institute the suit? iii) Whether there is any previous partition of the suit schedule property among the co- sharers on dated 01.04.1980? iv) Whether is possessed by the parties separately as per convenience? the suit schedule property Page 4 of 11 Whether the plaintiff has right of pre-emption in respect of the properties sold by Jemamani Samal to Kanakalata Biswal, the defendant по.2? vi) Whether the sale deed executed by Jema Samal in favour of Kanaklata Biswal is ’liable to be declare as null and vald? vii) Whether the plaintiff is entitled for a decree of permanent injunction against the defendant no.2 viii) Whether is partiable in nature and if so what are the shares of the parties? the suit schedule property ix) To what other plaintiff is entitled to?” relief or reliefs the 8. Be it noted that defendant No.1(b) also filed a suit being C.S. No. 44 of 2018 claiming the relief of partition of the self-same properties. Both the suits were heard analogously and by the common impugned judgment, said C.S. No. 44 of 2018 was dismissed while the plaintiff’s suit, as already stated, was decreed in part by allotting shares to the parties. 9. The plaintiff carried the matter in appeal mainly contending that her preferential right under Section 22 of the Hindu Succession Act was wrongly turned down by the trial Court. Further, the sale deed executed by defendant No.1 in favour of defendant No.2, who is a Page 5 of 11 stranger to the family, is hit by the provision of Section 44 of the T.P. Act, which the trial Court failed to appreciate. 10. The first appellate Court after going through the oral and documentary evidence on record found that no evidence was adduced to show that a dwelling house of any of the co-sharers existed over the suit plots. It was therefore, held that Section 44 had no application. As regards the competence of defendant No.1 to transfer portion of the suit land prior to partition by metes and bounds, the First Appellate Court held that though the ROR stands jointly yet the parties are in separate mess and possession of their ancestral properties and severance of joint family status is admitted by the plaintiff herself. The First Appellate Court thus, found that the family had lost its joint character and the ancestors have transferred their respective shares among themselves. The First Appellate Court further found that the plaintiff not being a class-I heir of Bikali, father of defendant No.1, the benefit of Section 22 of the Hindu Succession Act cannot be claimed by her. The appeal was thus, dismissed. Page 6 of 11 11. Being further aggrieved, the plaintiff has filed the present second appeal, which was admitted on the following substantial question of law. “Whether one co-sharer can alienate a portion of the joint homestead property in favour of a stranger taking advantage of severance of status of coparceners in absence of separation of jointness of property by any form of partition and that, whether Section 44 of the T.P. Act would be considered as a bar for the same? 12.
Legal Reasoning
Heard Mr. T.K. Mishra, learned counsel for the plaintiff appellant and Mr. N.P. Parija, learned counsel for the defendant respondents. 13. Mr. Mishra would argue that both the courts below have lost sight of the principle that while a co- sharer has the right to alienate his/her share of the undivided property but he/she has no right to sell specific portion of the undivided property. Mr. Mishra further argues that both the Courts below also committed error in not granting the relief of injunction against the stranger purchaser, who could have sued for partition. As such, the plaintiff’s right of pre-emption survives more so as the property is a dwelling house. Page 7 of 11 14. Per contra, Mr. Parija would argue that the evidence on record did not support the claim of existence of a dwelling house over the suit properties. Both the courts below further found that the property is no longer joint and that the parties have transferred their respective shares. He further argues that the stranger purchaser not having sued for partition, the plaintiff cannot lay a claim for pre-emption. 15. From the substantial question of law framed at the time of admission of the appeal, is evident that the lis involves two aspects- (i) whether the sale of a portion of the suit land by defendant No.1 in favour of defendant No.2 without partition of the joint family property by metes and bounds, is valid and (ii) whether the plaintiff is entitled to the relief of pre-emption as per section 44 of the T.P. Act. 16. On the first point it is seen that both the Courts below have meticulously analysed the oral and documentary evidence to find that even prior to the disputed sale transition, the parties had transferred their Page 8 of 11 respective shares among themselves. This, by itself suggests that the co-sharers were independently dealing with their respective shares of the property. True, the ROR stands recorded jointly, which would suggest that the property is held jointly but then, the evidence clearly shows that the family had actually lost its joint character. It is also borne out from the evidence on record that the parties were separate in mess and possession of their respective shares of the suit property. As noted by the First Appellate Court in its judgment, the plaintiff admitted in her evidence about severance of the joint family status since the time of their ancestors. While jointness is to be presumed but on the face of clear evidence showing transfer of respective shares of the ancestral properties by the co-sharers among themselves, the property can no longer be held to be joint property of an undivided family, as rightly held by the First Appellate Court. It is not the case of the plaintiff that defendant No.1 sold property in excess of her share to defendant No.2 as per the RSD, vide Ext.4. There is no bar in law for a co- Page 9 of 11 sharer to transfer his or her share of the joint family property but the same would be valid only to the extent of his share. Such right is however, qualified in the case of a dwelling house where a stranger purchaser cannot claim joint possession as per Section 44 of the T.P. Act and Section 4 of the Partition Act. It has been held by both the Courts below basing on the evidence on record that no dwelling house exists over either of the suit properties. Therefore, the fundamental ingredient necessary to attract the bar under Section 44 is absent. It is common ground that the purchaser defendant No.2 has not yet asked for partition. Under such circumstances, the right of the plaintiff to claim pre-emption cannot be said to have accrued. 17. From a conspectus of the analysis made hereinbefore, this Court finds no reason to interfere with the concurrent findings of fact rendered by the courts below. The substantial question of law framed is answered accordingly. Page 10 of 11 18. In the result, the appeal fails and is therefore,
Decision
dismissed. There shall be no order as to costs. ………….……………. Sashikanta Mishra, Judge Orissa High Court, Cuttack The 5th April, 2025/ A.K. Rana, P.A. Signature Not Verified Digitally Signed Signed by: AJAYA KUMAR RANA Designation: Personal Assistant Reason: Authentication Location: HIGH COURT OF ORISSA, CUTTACK Date: 05-Apr-2025 14:54:05 Page 11 of 11