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Kani Bewa and anr. Vs. Krushna Behara and ors. - Court Judgment

LegalCrystal Citation
SubjectFamily;Property
CourtOrissa High Court
Decided On
Case NumberM.A. No. 19 of 1950
Judge
Reported inAIR1953Ori39
ActsHindu Law; Code of Civil Procedure (CPC) , 1908 - Order 1, Rule 10 - Order 6, Rule 17
AppellantKani Bewa and anr.
RespondentKrushna Behara and ors.
Appellant AdvocateB. Mohapatra and ;G.C. Das, Advs.
Respondent AdvocateP. Misra and ;P.V. Rao, Advs.
DispositionAppeal allowed
Cases ReferredRani Anand Kunwar v. Court of Wards
Excerpt:
.....india assurance co. ltd. v birendra mohan de, 1995 (2) gau lt 218 (db) and union of india v smt gita banik, 1996 (2) glt 246, are not good law]. - even the petition for amendment filed before the lower appellate court does not clearly make out that in fact the collusion was there prior to the institution of the suit......achut behera, the uncle of the plaintiff and gangadhar, and that gangadhar had a sister whose son halu behera is still living.the learned trial court, on this admission of the plaintiff, dismissed the suit on the preliminary issue that the suit is not maintainable inasmuch as the plaintiff is not the next reversioner of gangadhar, halu, the sister's son of gangadhar, being still alive. in appeal against the judgment of the trial court, a petition for amending the plaint was filed by krushna behera the appellant, before the lower appellate court alleging that halu behera, gangadhar's sister's son, who had deposed in favour of the present defendants, is colluding with the defendants and, as such, he being the next reversioner is entitled to bring the suit. he also prayed for an amendment.....
Judgment:

Mohapatra, J.

1. This is an appeal against the judgment dated 7-1-50 of Sri J. Mohanty, District Judge of Ganjam-Nayagarh, remanding the case for disposal on the merits by the trial Court, after having allowed the petition for amendment of the plaint filed on behalf of the plaintiff Krushna Behera. Krushna Behera brought a suit for declaration that he is the next reversioner to deceased Gangadhar, for setting aside the sales effected by Gangadhar's widow Kani Bewa (defendant No. 1) in favour of defendants 3 to 7 and for a declaration that the alleged adoption of defendant No. 2 to defendant No. 1 is not valid and binding on the plaintiff.

Plaintiff Krushna Behera's allegations in the plaint are that he is the uterine brother of Gangadhar Behera, the deceased husband of defendant 1; that they became separate by virtue of a registered partition deed dated 9-5-23; that after the death of Gangadhar, his widow (defendant 1) being in possession of the properties of Gangadhar, while enjoying widow's estate, in collusion with defendant 2 (who is her brother's son) alleged him as adopted son of late Gangadhar and brought about a few alienations in favour of defendants 3 to 7. In 1944, the present plaintiff had brought a suit in the Munsifs Court for a declaration that the decree obtained by defendant 3 against defendant 1 is not binding on him. During the course of that suit, the present defendant 1 asserted defendant 2 as the adopted son of Gangadhar. The plaintiff came to know this for the first time in that suit that defendant 2 asserted himself as the adopted son of Gangadhar. He withdrew the suit and instituted the present suit on 6-9-46.

2. The defence in the present suit mainly is that the suit is not maintainable inasmuch as the present plaintiff is not the next reversioner of late Gangadhar inasmuch as the present pltf. was adopted by Achut, the uncle of late Gangadhar &, as such, the suit is not maintainable. They had further pleaded that the alienations made by defendant 1 were all for legal necessity. The plaintiff, in his deposition in Court, had admitted that, in fact, he had been adopted by Achut Behera, the uncle of the plaintiff and Gangadhar, and that Gangadhar had a sister whose son Halu Behera is still living.

The learned trial Court, on this admission of the plaintiff, dismissed the suit on the preliminary issue that the suit is not maintainable inasmuch as the plaintiff is not the next reversioner of Gangadhar, Halu, the sister's son of Gangadhar, being still alive. In appeal against the judgment of the trial Court, a petition for amending the plaint was filed by Krushna Behera the appellant, before the lower appellate Court alleging that Halu Behera, Gangadhar's sister's son, who had deposed in favour of the present defendants, is colluding with the defendants and, as such, he being the next reversioner is entitled to bring the suit. He also prayed for an amendment that Halu Behera be made a party to the suit. The learned lower appellate Court allowed the petition for amendment and the prayer for making Halu Behera a party-defendant in the suit and remanded the case to the trial Court for disposal on the merits having himself found that the suit is maintainable inasmuch as Halu is colluding with the defendants and that Halu is not in such a financial position to bring a suit as the present one. Against the judgment of the lower appellate Court, this Misc. Appeal has been filed by defendants 1 and 2.

3. It is to be noted here that Krushna Behera having died during the pendency of this appeal before the High Court, his legal representatives have been substituted in his place and have been allowed by an order of this Court to continue the appeal as respondents in-the place of deceased Krushna Behera.

4. Obviously, Krushna Behera, while filing the suit, had made deliberate false statements and also had committed some deliberate suppression of facts. He brought the suit as the next reversioner of Gangadhar Behera representing that he was the uterine brother of Gangadhar; but in his deposition in Court, he admitted that in fact he was adopted by Achut Behera, the uncle. As such, he is not really the uterine brother of Gangadhar. He had deliberately suppressed the fact that Gangadhar had a sister and that the sister's son Halu Behera is still living. This suppression was made clear in the cross-examination of Krushna Behera, He made deliberate false statements in the plaint that plaintiffs 2 and 3 were his sons, while he admitted in his examination that they were his daughter's sons.

5. The position of law, as contained in Act 2 of 1929, by virtue of which sister's son is a preferential heir to the uncle's son, is absolutely certain long before the institution of the present suit which was on 6-9-'46. The statements, indicated above, in the original plaint. are, therefore, deliberate falsehood and the suppression of fact regarding the preferential heir is equally deliberate. The learned lower appellate Court has found that Halu is colluding with the defendants merely from the fact that Halu was examined as a witness on the side of the defendants. It is not possible for us to accept the finding of collusion merely from the position that Halu was examined as a witness for the defence. The learned lower appellate Court has also found that Halu is not even in a financial position to bring such a suit as the present one. It is not clear from what material he has come to a finding of this nature. It is not also possible for us to accept this finding.

6. The principle, governing the cases of this nature as to the 'locus standi' of a distant reversioner to bring a suit for a declaration that the alienation made by the limited owner is not binding against him, is absolutely made clear ever since the time of the decision in the case of -- 'Rani Anand Kunwar v. Court of Wards', by their Lordships of the Privy Council in 6 Cal 764 (PC). Their Lordships observed as follows :

'Their Lordships are of opinion that although a suit of this nature may be brought by a contingent reversionary heir, yet that, as a general rule it must be brought by the person who would succeed if the widow were to die at that moment. They are also of opinion that such a suit may be brought by a more distant reversioner if those nearer in succession are in collusion with the widow, or have precluded themselves from interfering. They consider that the rule laid down in -- 'Bhikaji Apaji v. Jagannath Vithal', (10 Bom HCR 351) is correct. It cannot be the law that any one who may have a possibility of succeeding in the death of the widow can maintain a suit of the present nature, for, if so, the right to sue would belong to every one in the line of succession, however remote. The right to sue must, in their Lordships' opinion, be limited. If the nearest reversionary heir refuses, without sufficient cause, to institute proceedings, or if he has precluded himself by his own act or conduct from suing, or had colluded with the widow, or concurred in the act alleged to be wrongful, the next presumptive reversioner would be entitled to sue; see -- 'Kooer Goolab Singh v. Rao Kurun Singh', 14 Moo Ind App 176 (PC). In such a case, upon a plaint stating the circumstances under which more distant reversionary heir claims to sue, the Court must exercise a judicial discretion in determining whether the remote reversioner is entitled to sue, and would probably require the nearer reversioner to be made a party to the suit.'

This principle has been uniformly followed by the High Courts in India, Vide--'Mt. Bigna Kuer v. Radha Prasad Rai', AIR 1940 Pat 585; -- 'Sethurayar v. Karuppayammal', AIR 1946 Mad 159 and -- 'Lalta Prasad v. Dwarka Prasad', AIR 1941 All 313. It is clear that the allegation of collusion or any other disqualification on account of which the presumptive reversioner or the nearer reversioner had precluded himself from bringing a suit and thereby making a more distant reversioner competent to bring a suit, has got to be made in the plaint itself and that this disqualification of collusion in order to give competency to the remoter reversioner the right to sue must be existing prior to the institution of the suit. Even the petition for amendment filed before the lower appellate Court does not clearly make out that in fact the collusion was there prior to the institution of the suit. The learned lower appellate Court has misdirected himself in having completely ignored this aspect of the case.

7. The learned lower appellate Court has relied upon a Full Bench decision of the Madras High Court reported in -- 'Lakshmi Ammal v. Anantharama Ayyangar', AIR 1937 Mad 699 (FB). In that case, the last male owner died in 1922. He was succeeded by his mother Lakshmi Ammal, against whom the action has been brought by the plaintiff's claiming to be the presumptive reversioners, with a view to obtain reliefs in regard to the deceased son's estate. The plaintiffs' right was challenged by the sister and the sister's son who alleged that. under Act 2 of 1929 they had a preferential right to succession. The question before their Lordships to be determined finally was whether the succession to Venkatdkrishna, who died in 1922, that is, before the Act, leaving his mother as his immediate heir, was governed by that Act or by the law in force previously. The question, in turn, depends on the question, when does the succession to a Hindu male open -- whether on the death of the last male owner, or on the death of the limited heir? The decision was 'succession opens to the heirs of the last male owners after the death of the limited owner.' On that view of law, which was in a doubtful position till then, their Lordships allowed the plaintiffs to proceed with, the suit making the sister's son a party. Their Lordships had in fact relied upon the principle laid down in the decision of the Privy Council reported in -- 'Rani Anand Kunwar v. Court of Wards', 6 Cal 764 (PC), and also-observed that if the new party insists that the case must go on afresh, the case will have to be heard and tried de novo. The facts of the Full Bench case of the Madras High Court are distinguishable from the present one on ac-count of the doubtful position of law as to whether the sister's son would be a preferential heir or not and the plaintiffs in that case were not really guilty of any deliberate false statements and deliberate suppression of facts.

8. Moreover, on the principle laid down in that case, if Halu Behera now insists that the whole case is to start afresh, the trial Court is bound to try the case de novo. In that contingency, there would be absolutely no advantage in getting the plaint amended instead of a fresh suit being instituted. It was merely suggested by Mr. P. V. B. Rao, appearing on behalf of the respondents, that if Halu Behera is not made a party, the suit can go on and there will be no necessity for a fresh trial, and the plaint having been amended the plaintiff may be allowed to continue the suit with the whole evidence already taken. But he did not come with a definite prayer for expunging, Halu Behera from being made a party to the suit as has been allowed by the lower appellate Court. Moreover, as we find from the decision of their Lordships of the Privy Council and the Full Bench decision of the Madras High Court, referred to above, that he is a proper party, in our opinion inasmuch as the question of collusion has got to be investigated in the present case in order to disentitle him to bring a suit and that the finding will be ultimately binding against him, we do not think it proper to expunge Halu Behera from being made a party in the suit.

9. On a consideration of the above circumstances, we are definitely of the view that the lower appellate Court has acted illegally and improperly in having allowed the amendment.

We would, therefore, allow the appeal, set aside the order of remand of the lower appellate Court and confirm the judgment of the trial Court and dismiss the present suit. But this would not affect the rights of the present plaintiffs or any other reversioner to bring a properly constituted suit if they are so advised. In the circumstances of the case, there will be no order as to costs.

Jagannadha Das C. J.

10. I agree.


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