The High Court
Case Details
IN THE HIGH COURT OF ORISSA AT CUTTACK RSA NO. 365 OF 2018 (From the judgment dated 11.05.2018 and decree dated 19.05.2018 passed by the District Judge, Dhenkanal in dismissing RFA No.17 of 2017 and confirming the judgment dated 18.02.2017 and decree dated 23.02.2017 passed by the Civil Judge (Senior Division), Dhenkanal in C.S. No. 06 of 2016) Smt. Anulekha Dash Bhatta Mishra…… Appellant -versus- Smt. Sreelekha Dash Bhatta Mishra & Ors. …… Respondents Advocates appeared in the case through hybrid mode: For Appellant : M/s A.C. Mohapatra, B. Beura, A.K. panda, H. Mohanty, R.K. Rout, A.K. Behera, M. Jati, S.K. Behera and K.M. Vani, Advocates For Respondents : M/s H.N. Mohapatra, A. Samantray, B.B. Padhi & J. Sahoo, Advocates [R-1, 10 & 11] Mr. P.K. Mishra, Advocate [R-2 to 6] M/s B.B. Mishra, A. Mishra, A.S. Patra & S. Acharya, Advocates (R-7) ___________________________________________________________ Page 1 of 22 CORAM: JUSTICE SASHIKANTA MISHRA JUDGMENT 23rd December, 2024 SASHIKANTA MISHRA, J. This is an appeal against a confirming judgment. The judgment dated 11.05.2018 followed by decree passed by the learned District Judge, Dhenkanal in RFA No. 17 of 2017 is impugned, whereby the judgment dated 18.02.2017 followed by decree passed by the learned Civil Judge (Senior Division), Dhenkanal in C.S. No. 6 of 2016 was confirmed. 2. For the sake of convenience, the parties are referred to as per their respective status in the trial Court. 3. The suit in question was filed by the respondent no.1 as plaintiff for a declaration that three sale deeds, as per details indicated in the plaint, executed by defendant nos. 6 and 7 in favour of defendant nos. 1 to 5 are illegal and invalid, besides the relief of injunction, and alternatively
Facts
for a direction to defendant nos. 1 to 5 to execute the sale Page 2 of 22 deeds in her favour on receiving the consideration amount as per the aforementioned sale deeds. 4. The case of the plaintiff is that she, defendant nos. 6 and 7 and proforma defendant nos. 8 to 12 are Hindus and Late Golak Bihari Dash Bhatta Mishra, being their father, was owner-in-possession of Ac. 2.98 dec. of land recorded in his name under Khata No. 199, as described under Schedule ‘A’ of the plaint. He had transferred Ac. 0.40 dec. of land to four persons in the year 2004 and delivered possession to the vendees. He remained in possession over the remaining land described under Schedule ‘B’. According to the plaintiff, she, along with defendant nos. 6 and 7 and the proforma defendant nos. 8 to 12, succeeded to Schedule ‘B’ property with each having 1/8th share after death of their father. No partition of the property has been effected by metes and bounds. While the matter stood thus, she was surprised to receive three notices in Mutation Cases in the month of September, 2015, being issued by the concerned R.I. asking her to appear. The plaintiff appeared and filed her objection challenging Page 3 of 22 alienation of the properties mentioned in the notices. On further enquiry, she came to know about execution of three sale deeds and applied for certified copies thereof, which she received in November, 2015. As such, she came to know that different portions of the suit land had been sold by defendant nos. 6 and 7 to defendant nos. 1 to 5. According to the plaintiff, there was no legal necessity for them to sell the land to outsiders. Accordingly, she filed the suit claiming the reliefs, as indicated above. 5. The defendants contested the suit by filing written statement. Defendant nos. 10 to 12, however, did not file any written statement. It is their case that sons and daughters of Late Golak Bihari Dash Bhatta Mishra were not in harmonious relationship, for which during his life time he and his wife Rupalekha Devi (defendant no.8) always insisted their children to enjoy their respective 1/7th share each of ‘B’ Schedule property. Accordingly, there was mutual partition. Further, in the year 2010 defendant no.8 relinquished her share from ‘B’ Schedule property in favour of her children. Therefore, defendant nos.6 and 7 alienated Page 4 of 22 their respective 1/7th share of properties under their exclusive possession by executing the three sale deeds in question in favour of defendant nos.1 to 5. It is their further case that such sale transaction was very much within the knowledge of all the legal heirs of the recorded owner, which is evident from the declaration of relinquishment made by defendant no.8 on 15.04.2015. After purchase of the properties, defendant nos.1 to 5 applied for mutation wherein the plaintiff appeared and filed her objection. It is also stated that delivery of possession was given in respect of the sold land to the vendees on 21.03.2014, whereupon they are in exclusive possession. Defendant nos. 6 and 7, being the co-owners, were fully competent to alienate their shares of the properties and did so in favour of defendant nos.1 to 5 lawfully to meet their legal necessities and with knowledge of all concerned. 6. Basing on the rival pleadings, the trial Court framed the following issues for determination:- “1. Is the suit maintainable? 2. Has the plaintiff cause of action to file the suit? Page 5 of 22 3. Is the schedule-A land is the joint property of the plaintiff and defendants 6 to12? 4. Have the defendant no.1to5 acquired exclusive right, title, interest and possession over the suit land by virtue of the RSD no.2044, 2045 and 2129? 5. Is the plaintiff entitled to avail a relief of pre- emption U/s-22 of the Hindu Succession Act for repurchasing the suit land from defendant no.1, if so, what are the mode and conditions of such re- transfer? 6. Is the plaintiff entitled to a relief of injunction in respect of the schedule-B land (suit land) against defendant no.1to5? 7. To what other relief or reliefs the plaintiff is entitled?” 7. The trial Court took up issue no.3 for consideration at the outset. After analyzing the pleadings and evidence adduced by the parties, the trial Court disbelieved the plea taken by the defendants that the property had been partitioned by metes and bounds. With regard to separate possession, it was held that the same was only for convenience and not indicative of complete partition by metes and bounds. On issue no.5, after analyzing the facts, evidence and the settled position of law, the trial Court held that the plaintiff and defendant nos. 8 to 12 have every authority to exercise the right of pre- emption in respect of the suit properties. On issue no.6, the Page 6 of 22 trial Court held that defendant nos. 1 to 5 could not prove their possession over any portion of the ‘B’ schedule land including the suit land. In view of the findings rendered on the main issues, as stated above, the remaining issues were answered against the defendants by holding that the sale deeds in question, having been executed without consent of the co-owners, are illegal, and defendant nos. 1 to 5 being stranger purchasers, are liable to be injuncted from jointly possessing the suit land. Further, the pre-emptory right of the plaintiff and defendant nos. 8 to 12 was also declared. The suit was thus decreed by declaring the three sale deeds as null and void and confirming the possession of the plaintiff and proforma defendants over ‘B’ schedule land. The plaintiff’s preferential right over the purchased land of defendant nos. 1 to 5 was also declared and they were permanently injuncted from disturbing the peaceful possession of the plaintiff and proforma defendants. The plaintiff was further directed to deposit the purchase money, as mentioned in three sale deeds, in Court and on receipt of the same defendant nos. 6 and 7 were directed to execute RSD in her favour within 15 (fifteen) days, failing Page 7 of 22 which the plaintiff’s suit shall be deemed to be dismissed with cost. 8. Being aggrieved, defendant no.6 carried the matter in appeal to the District Court. Upon consideration of the grounds raised and on appreciation of the evidence on record, the First Appellate Court held that the trial Court had rightly arrived at the conclusion that there was no partition of the suit ‘B’ schedule property, and that the said property was still joint. On the claim of pre-emption, the First Appellate Court noted the essential ingredients thereof and further held that such claim had been raised within the prescribed period of limitation. Further, considering the evidence and the settled position of law, the First Appellate Court held that the trial Court had rightly decided issue nos.4 and 5 to the effect that defendant nos. 1 to 5 have not acquired right, title and interest over any portion of ‘B’ schedule property by virtue of the sale deeds in question, and further held that the plaintiff is entitled to avail the relief of pre-emption contemplated under Section 22 of the Hindu Succession Act. Further, noting that the Page 8 of 22 trial Court had followed the proper procedure while passing the decree, the First Appellant Court found no merit in the appeal and dismissed the same, confirming thereby the judgment and decree of the trial Court. 9. Being further aggrieved, defendant no.6 has filed the present RSA, which was originally admitted on the following substantial questions of law:- “1) Whether the courts below are correct in saying that relief of repurchase under Sec.22 of Hindu Succession Act is maintainable when there is no relief of partition sought for by the plaintiff? 2) Whether the courts below are correct in holding that at the stage of decreeing the relief of repurchase under Sec. 22 of Hindu Succession Act, the valuation of the sale deeds vide Exts.6 to 8 could be accepted as the proper valuation?” However, at the time of hearing, the substantial question no.1 was modified as follows:- “(1) Whether the courts below are correct in saying that relief of repurchase under sec. 22 of the Hindu Succession Act is maintainable when there is no relief of partition sought for by the plaintiff & the impugned R.S.Ds. are declared as null & void & thereby reverted back the right to the vendors?” 10.
Legal Reasoning
on a judgment of this Court in the case of Babaji Dehuri v. Biranchi Ananta,1 in this context. As regards valuation of the property, Shri Mishra also makes similar arguments as Shri Mohapatra noted above that the same has to be determined with reference to the date of final decree and 1 AIR 1996 ORISSA 183 Page 11 of 22 not prior to that date. In this regard, he has relied upon the judgment of the Supreme Court in the case of M.L. Subbaraya Setty v. M.L. Nagappa2. 13. Shri H.N. Mohapatra, learned counsel appearing for respondent nos.1, 10 & 11, on the other hand, would argue that defendant no.6-appellant never challenged the decree declaring the three sale deeds as void. Such finding is therefore final. Shri Mohapatra further argues that law is well settled that sale of joint property by a co-owner is valid to the extent of his share, but the same is invalid in respect of a specific portion of the land. In the instant case, the evidence on record clearly shows that multiple sub-plots from plot no. 1026 were sold showing their boundary description. This proves that specific portions of land were sold, which makes the sale illegal and, therefore, rightly declared void. On the right of pre-emption claimed by the plaintiff, Shri Mohapatra argues that the land in question being agricultural land, the right of pre-emption is applicable, for which there is no need for the purchaser to file a partition suit and the family 2 AIR 2002 SC 2066 Page 12 of 22 members can seek pre-emption. Shri Mohapatra has relied upon the judgment of the Supreme Court in the case of Babu Ram v. Santokh Singh (deceased) through his LRs3. 14. After carefully considering the contentions raised and on perusal of the impugned judgments, this Court finds that the issue to be determined at the outset is, whether the schedule property is joint family property? According to the plaintiff, defendant nos. 6 to 12 inherited the property, after the death of their father Golak Bihari Dash Bhatta Mishra, who was the recorded owner. In the written statement filed by the contesting defendants, it was claimed that the property had been partitioned by metes and bounds. The trial Court held and according to this Court rightly, that a Hindu family is presumed to be joint, unless the contrary is proved. Thus, the burden of proof was rightly placed on the contesting defendants to rebut the presumption of jointness. The trial Court as well the First Appellate Court, upon consideration of the evidence adduced by the parties found that the plea of partition was 3 2019 (Supp.II) OLR (SC) 899 Page 13 of 22 not established at all. Nothing has been demonstrated before this Court by the appellant to show that as to how such finding is wrong. This Court, therefore, holds that the finding of the court below, that the property continues to be joint does not warrant any interference in Second Appeal, being a concurrent finding of fact based on evidence. 15. This takes the Court to the claim of pre- emption raised by the plaintiff. Section 22 of the Hindu Succession Act deals with pre-emption and reads as follows:- “22. Preferential right to acquire property in certain cases.— (1)Where, after the commencement of this Act, an interest in any immovable property of an intestate, or in any business carried on by him or her, whether solely or in conjunction with others, devolves upon two or more heirs specified in class I of the Schedule, and any one of such heirs proposes to transfer his or her interest in the property or business, the other heirs shall have a preferential right to acquire the interest proposed to be transferred. (2)The consideration for which any interest in the property of the deceased may be transferred under this section shall, in the absence of any agreement between the parties, be determined by the court on application being made to it in this behalf, and if any person proposing to acquire the interest is not willing to acquire it for the consideration so determined, such person shall be liable to pay all costs of or incident to the application. Page 14 of 22 (3)If there are two or more heirs specified in class I of the Schedule proposing to acquire any interest under this section, the highest that heir who offers consideration for the transfer shall be preferred. Explanation.—In this section, “court” means the court within the limits of whose jurisdiction the immovable property is situate or the business is carried on, and includes any other court which the State Government may, by notification in the Official Gazette, specify in this behalf.” (Emphasis added) Though a feeble argument was made at the outset by the counsel appearing for the appellant that Sec.22 would have no application in case of completed sale, but applies only in case of proposed sale, the same was given up subsequently, in view of the settled position of law that even in case of complete sale a co-sharer can ask for pre-emption by approaching the competent civil court. Coming to the facts of the present case, both the courts below have concurrently held that the sale to defendant nos.1 to 5 by defendant nos.6 and 7 was without knowledge of the other co-sharers, including the plaintiff. Though a document was sought to be projected as a declaration of relinquishment (Ext A), the same was not relied upon and according to this Court rightly, as it was not a registered document. It is needless to mention that title in respect of a property Page 15 of 22 cannot be conveyed by an unregistered document, if the value of the property exceeds 100 rupees, which is the case at hand. Therefore, it is well established that the sale in question in respect of joint family property was effected without knowledge and consent of the other co-sharers. 16. It has been argued that the sale deeds, being executed by defendant nos. 6 & 7 in excess of their share, having been declared void the property ought to have reverted to them. Reading of the judgments of the trial Court as well as the First Appellate Court, however, does not reveal that there was any such finding. In answering issue no.4, the trial Court observed as follows:- “25. Issue No.4 :- As per my answer to the foregoing issues, the schedule-B’ land is still the joint property of the plaintiff as well as the defendants 6 to 12. The suit land is a part of this property, which is purported to have been transferred under Ext. 6 to 8. Law of co- ownership enjoins that unless and until a full-fledged partition takes place amongst them, the co-owners are deemed to have every right over every inch of land. In absence of any such partition, no one of them has any right to alienate or part with any specific portion of the joint land, as is found to have been done by the defendants 6 and 7 through Ext.6 to 8 There is no doubt over the fact that the vendors of this document were competent to transfer their interest, but they do not have any right to confer upon their vendee, the exclusive right and possession over the subject matter of such transfer. Applying this principle to the instant case, I can simply say that the Page 16 of 22 defendant no.1 to 5 have not acquired any exclusive right over the suit land on the basis of Ext.6 to 8 though he seems to have acquired an interest over the same. There is no doubt over the fact that the vendors of this document were competent to transfer their interest, but they do not have any right to confer upon their vendee, the exclusive right and possession over the subject matter of such transfer.” (Emphasis added) This Court does not find anywhere in the judgment of the trial Court or the First Appellate Court that the sale in question was invalidated on the ground that the same was in excess of the share of defendant nos. 6 & 7 (vendors). The First Appellate Court concurred with the above finding of the trial court. The highlighted portion in the above finding however, need to be addressed vis-(cid:224)-vis the finding that the defendant nos. 1 to 5 have not acquired right, title and interest over any portion of ‘B’ schedule property by virtue of the sale deeds. 17. Section 44 of the TP Act deals with the rights of a transferee and safeguards his rights. The transferee steps into the shoes of his transferor and becomes as much a co- owner as his transferor was before the transfer and derives all the rights subject to all the liabilities of his transferor. Page 17 of 22 Thus, a transferee cannot be in a better position than becoming a co-owner himself. Being a co-owner by purchase he shall be only entitled to enforce partition of the joint estate. He has the right of joint possession in property except a dwelling house in view of the restriction imposed by the second part of section 44 of the TP Act. A co-owner or his transferee can sue for partition for getting possession of specific part of the joint land as per the share, his transferor is entitled to. Until then the claim of exclusive parcel cannot be accepted. This is what virtually has been observed by the learned trial court at Para 25 of the judgment (supra) while deciding Issue No.4. This finding has been affirmed by the learned First Appellate court. But even while observing so both the learned Courts below have invalidated the sale deeds simply on the ground that the defendant nos. 6 & 7 had no right to confer upon their vendees, the exclusive right and possession over the subject matter of such transfer. These findings are self-contradictory inasmuch as the status of the defendant nos.1 to 5 as the co-owners by purchase cannot be denied regardless of the fact that the share of their vendors over the joint properties, in absence of Page 18 of 22 a claim for partition, which is also not asked for in the suit, cannot be determined. But, as stated above the findings of the learned trial court on the character of the sale deeds in question have not been challenged. Therefore, this concurrent finding of the Courts below on the above score cannot be interfered with in the Second Appeal. 18. Coming back to the question of preferential right or the right of pre-emption of the plaintiff, the same was dealt with by the trial Court under Issue No.5. The trial Court, taking note of the judgments of other High Courts, accepted the plea of the plaintiff for pre-emption by holding that the sale of the schedule property by defendant nos.6 & 7 to defendant nos.1 to 5 being invalid, she would acquire such right. This finding has been concurred with by the First Appellate Court, more or less on the same ground. According to the considered view of this Court, both the courts below have committed manifest error in arriving at such finding for the reasons to be indicated hereinafter. Firstly, if the sale is invalidated, which this Court has concurred with, it is not a sale in the eye of law. Thus, to apply the principle of pre-emption on the ground of a Page 19 of 22 completed sale would be contrary to the above finding. Secondly, once the sale is invalidated and the property there under gets back its character which it had before the sale that is to say, it would revert to the co-sharers and reassume its character as joint property, as no partition by metes and bounds has as yet taken place. Thirdly, when the case of the plaintiff that the sale deeds are illegal has been accepted, the Courts below should not have considered the alternative prayer for pre-emption. Fourthly, the right of pre- emption u/s 22 of the Hindu Sucession Act would arise only if the individual shares are defined and any of the co- sharers proposes to sell the property. But once the property reverts to the common stock of the family, the proposal to sell by a co-owner cannot be presumed. Thus, by granting the relief of pre-emption to the plaintiff, both the courts below have, in effect proceeded on the erroneous presumption that defendant nos. 6 & 7 propose to sell the suit property. This is where the Courts below appear to have fallen into error by granting the relief of pre-emption to the plaintiff after invalidating the sale in favour of defendant nos.1 to 5. It is stated at the cost of repetition that the Page 20 of 22 findings of both the Courts below, in this regard, are contradictory and, therefore, not sustainable in the eye of law. In such view of the matter, the substantial question no.1, as modified at the time of hearing, is answered in favour of the appellant by holding that the relief of pre- emption cannot be granted to the plaintiff in the facts and circumstances of the case. 19. Such being the finding on substantial question no.1, it is not necessary to consider the second substantial question of law, as in absence of right of pre-emption, the question of valuation of the property does not arise. 20. For the foregoing reasons therefore, and for the reasons indicated, this Court holds that the impugned judgment, in so far as it relates to grant of relief of declaration of the three sale deeds in question as invalid, does not warrant any interference. However, the grant of relief of pre-emption in respect of the suit property in favour of the plaintiff is held to be illegal and thereby warrants interference. Page 21 of 22 21.
Arguments
Heard Shri A.C. Mohapatra with Shri Harekrushna Mohanty, learned counsel for defendant no.6- Page 9 of 22 appellant; Shri H.N. Mohapatra, learned counsel appearing for respondent nos.1, 10 & 11; Shri P.K. Mishra, learned counsel appearing for respondent nos. 2 to 6; and Mr. B.B. Mishra, learned counsel for respondent no.7. 11. Shri A.C. Mohapatra would argue that the finding of the trial Court, as confirmed by the First Appellate Court, that the sale by defendant nos. 6 & 7 in favour of defendant nos. 1 to 5 is illegal being in excess of their 1/7th share, implies that the property in question would revert to the vendors, but granting the relief of pre- emption by directing defendant nos.6 & 7 to execute sale deed in favour of the plaintiff, is untenable, as she has not claimed partition. It is further argued that even otherwise, the direction to pay the purchase money, as indicated in the deeds in question, is unjustified, in view of the fact that the deeds were executed in the year 2014 and by efflux of time the market value of the lands have increased manifold. It is settled law that determination of valuation of the property has to be made on the date of final decree and not before that. Page 10 of 22 12. Shri B.B. Mishra, learned counsel appearing for respondent no.7 has advanced similar arguments as Shri A.C. Mohapatra noted above. He submits that the finding of the courts below, that defendant nos. 6 & 7 sold the property in excess of their share, has not been questioned by the plaintiff, which is, therefore, binding on her. Under such circumstances, it is illegal to direct defendant nos. 6 & 7 to execute sale deed in favour of the plaintiff beyond their share, as it would perpetuate the illegality. Shri Mishra further argues that in such view of the matter the property would revert to defendant nos. 6 & 7. He also submits that even though defendant no.7 did not specifically file appeal against the judgment of the trial Court, the finding of the appellate Court in appeal filed by the co-defendant would also enure to his benefit. He relies
Decision
In the result, the appeal is allowed in part. The impugned judgment and decree in so far as it relates to declaring the three sale deeds as invalid are hereby confirmed. However, the decree of the trial court, in so far as it relates to the grant of preferential right to the plaintiff in respect of the purchased land of defendant nos.1 to 5 and other consequential reliefs flowing there from are hereby set aside. The parties to bear their own costs. ……..……………………. Sashikanta Mishra, Judge Orissa High Court, Cuttack. The 23rd December, 2024/ GDS Signature Not Verified Digitally Signed Signed by: GAYADHAR SAMAL Designation: Joint Registrar-cum-Principal Secretary Reason: Authentication Location: HIGH COURT OF ORISSA, CUTTACK Date: 24-Dec-2024 11:20:36 Page 22 of 22