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Kalandi Parida and ors. Vs. Sadhu Parida and ors. - Court Judgment

LegalCrystal Citation
SubjectProperty
CourtOrissa High Court
Decided On
Case NumberFirst Appeal No. 68 of 1963
Judge
Reported inAIR1967Ori74; 33(1967)CLT768
ActsHindu Law; Limitation Act, 1908 - Schedule - Article 141; Limitation (Amendment) Act, 1963 - Schedule - Article 65; Evidence Act, 1872 - Sections 3
AppellantKalandi Parida and ors.
RespondentSadhu Parida and ors.
Appellant AdvocateB.K. Pal and ;B.N. Biswal, Advs.
Respondent AdvocateK.M. Swain, Adv.
DispositionAppeal dismissed
Cases ReferredBaina Paida v. Indramani Paida).
Excerpt:
- motor vehicles act, 1988 [c.a. no. 59/1988]section 173(1) proviso; [d. biswas, amitava roy & i.a.ansari, jj] appeal without statutory deposit but within limitation/or extended period of limitation maintainability - held, if the provision of a statute speaks of entertainment of appeal, it denotes that the appeal cannot be admitted to consideration unless other requirements are complied with. the provision of sub-section (1) of section 173 permits filing of an appeal against an award within 90 days with a rider in the first proviso that such appeal filed cannot be entertained unless the statutory deposit is made. the period of limitation is applicable only to the filing of the appeal and not to the deposit to be made. it, therefore, appears that an appeal filed under section 173 cannot..........of the line of kesari, the other three branches are entitled to get one-third share in the family properties. narottam as the eldest member and the karta of the family was looking after the current settlement operations and managed to get recorded his share as six annas in some of the properties, though there was no partition by metes and bounds. padi the widow of keshari and neta the widow of aprati made some invalid alienations in respect of the properties allotted to kesari by amicable arrangement. the plaintiff's further case is that some sikimi land (plot no. 305) purchased by him by a registered sale-deed, ext. 2, dated 5-11-58 from one sauti baslia is his self-acquisition and the same is not liable to partition he also asserted that the plot no. 306 and 261/824 in mouza.....
Judgment:

Das, J.

1. Defendants 1 to 6 are the appellants. The appeal arises out of a suit for partition. The relationship of the parties will appear from the geneology given below:

GOPAL PARIDA

|

___________________________|___________________________

| | | |

Kesari Narottam Hari Bali

Widow-Padi Widow-Pata (D. 6) | |

| | Bauri Sadhu

Aprati Panu bandhu (Pltff.)

Widow-Neta Widow-Tila (D.5) | |

| Jaladha Natabar

| (D. 7) (D.8)

__________________|______________________________

| | | |

Kalandi Janamu Ghana Dhanu

(D.1) (D. 2) (D. 3) (D. 4)

2. It is the case of the plaintiff that after the death of Gopal Parida, his four sons. viz.. Kesari, Narottam, Hari and Bali became separate in status, but did not partition the properties by metes and bounds. Kesari died leaving his widow Padi and his son Aprati. Sometime after Aprati died leaving his widow Neta. After the extinction of the line of Kesari, the other three branches are entitled to get one-third share in the family properties. Narottam as the eldest member and the Karta of the family was looking after the current settlement operations and managed to get recorded his share as six annas in some of the properties, though there was no partition by metes and bounds. Padi the widow of Keshari and Neta the widow of Aprati made some invalid alienations in respect of the properties allotted to Kesari by amicable arrangement. The plaintiff's further case is that some Sikimi land (plot No. 305) purchased by him by a registered sale-deed, Ext. 2, dated 5-11-58 from one Sauti Baslia is his self-acquisition and the same is not liable to partition He also asserted that the plot No. 306 and 261/824 in Mouza Balapur and the half-constructed pucca house which he built at his own cost thereon may be allotted to his share in the partition.

3. The case of the defendants in substance is that there was a complete partition by metes and bounds and not a mere severance of status and that being so, the properties cannot be re-partitioned as claimed by the plaintiff. In the said partition Narottam got six-annas in the homestead and the other two brothers got five-annas each and it was so recorded in the current settlement. They further contend that the land purchased under Ext. 2 is liable to be partitioned as in fact it was the joint family property of the family, but by mistake, it was recorded in the current settlement as Sikimi in the name of Bali Bastia. They claimed a share in the pucca structure standing on Plot No. 306 and 261-824 at Balapur as it was constructed from out of the joint family funds. They also claimed some alienations made by Padi and Neta by way of gift or sale in favour of some of the defendants and also the Dhulibhag land under lot No. 9 and some plots in lot Nos. 15 and 16 as their self-acquisitions.

4. The learned trial Court rejected the story of the defence of a prior complete partition by metes and bounds. He also rejected the defence claim of self-acquisition. He upheld the contention of the plaintiff that the pucca building al Balapur was constructed solely at the expenses of the plaintiff and not from out of the joint family funds He also accepted the case of self-acquisition of the plaintiff in respect of the Sikimi lands purchased under Ext. 2 He accordingly decreed plaintiff's case in full and directed an allotment of one-third share to him The land and the pucca building standing on plot Nos. 306 and 261/824 were directed to be allotted to the share of the plaintiff and the Sikimi plot No. 305 covered under Ext. 2 was to be excluded from partition as he held the same to be self-acquisition of the plaintiff

5. It is admitted by both parties that there was a severance of status sometime about 1920 prior to the settlement in the year 1931. Both Narottam and Aprati died sometime before 1924 and in respect of some of the family properties possession has been separately recorded in the current settlement

6. The main controversy between the parties is in respect of the question of prior partition by metes and bounds and the self-acquisition In support of the story of partition, the defence relied mainly on some of the settlement entries which specifically mention the shares of the parties in respect of some of the properties. The total extent of the family properties is 18.48 acres, but it is only in respect of a very small portion, e.g., 1.32 acres specific shares of parties have been mentioned in the settlement entries.

Further, there is some evidence to show that Narottam was looking after the family properties during the current settlement in 1931 and it is not unlikely as contended on behalf of the plaintiff, that he might have got the names of the parties separately recorded in respect of some of the properties to support the story of prior partition. Moreover, merely such entries in the record-of-rights cannot be taken as a conclusive evidence of partition. The defendants in support of the story of a complete partition adduced oral evidence of D. Ws. 3, 4 and 5 on the point. It is, however, clear from their evidence that they were never present at the time of the alleged partition. Reliance was also placed on some alienations (Exts. A to F) made by some members of the family in respect of some properties said to have been in their specific possession. The learned trial Court after an elaborate discussion of the oral and documentary evidence rightly rejected the story of prior partition by metes and bounds. We see no reasons to differ from his findings.

7. The defendants laid a claim of self-acquisition of some properties including lots 10, 11 and 12 covered by Exts. D, E and F. These were alienations made by Padi and Neta in their favour. These alienations, it was contended by Mr. Pal, were made for the Sradha expenses of Keshari and Aprati and for their spiritual benefit and the widows were legally competent to make such alienations. There cannot be any dispute about the legal position that Hindu widow in possession of the estate of her deceased husband can make alienations of the whole of the property for such essential and obligatory acts such as for the funeral and Sradha ceremonies of the deceased owner and a reasonable portion of the same for such acts which are pious and conducive to the bliss of the deceased husbands soul. But in the present case, the recitals in Ext. 1) do not show that the alienations were made for any of such purpose. From Ext. D it appears that the alienation was made for the benefit of the donors themselves. The English translation of the relevant portion of the recitals runs thus:

'The donee shall maintain us till we live. After our death, he shall according to the prevalent custom and usage perform our funeral and obsequies and Sradha ceremonies and would also take care of the daughter of the 1st donee who is the sister-in-law of the 2nd donor.'

It is thus absolutely clear that the purpose of the document was to benefit the donors, that is, for their own maintenance and also for performance of their obsequies after their death and to look after the daughter of the first executant. Clearly, therefore the alienation was not meant for the benefit of the soul of the deceased owners or for the funeral or Sradha expenses of either Keshari or Aprati. No doubt, there is reference to the Sradha and Sudhikriya of Aprati, but that is only incidental and has nothing to do with the purpose of the alienation Thus, the alienation made under Ext. D must be held to be invalid and inoperative.

Ext. E is a registered sale-deed executed by Nela and Padi in favour of Dhobei, Panu and Damei, the three sons of Narollam in respect of 0.77 acres. Ext. F is another registered sale-deed executed by Nela and Padi in favour of Pata Dei (D-6) wife of Narottam in respect of 0.21 acre of land. All these documents were executed on the one and the same day that is, 6-8-24. The purpose of the sale-deeds was to raise money to pay some loans and land rents etc. and to meet the maintenance expenses of the vendors. The learned trial Court has, after discussion of the evidence, rightly found that the alienations have not been proved to be for any legal necessity. Both Neta and Padi have died admittedly within 12 years of the suit and the plaintiff's right to challenge these sale-deeds cannot be questioned. The properties covered under Exts. D, R and F must, therefore, be available for partition and the plea of self-acquisition put forth by the defence must be rejected.

8. With respect to the gift deed Ext. C, by Narottam in favour of his grand-son (D-1), no doubt, the land covered by this document was recorded in the name of Narottam alone in the current settlement records. But as already said, similar other properties also stand recorded in the names of Hari and Bali as would appear from Ext. 3. There is only one rent-receipt filed in respect of this land (Ext. G/3) to support possession. From the said receipt it appears that the rent was paid on behalf of Kalindi and others. The mere fact that it was recorded alone in the name or Narottam will not under the circumstances of the case, make it his separate property. There is no evidence of his separate acquisition of this property. On the other hand evidence discloses that it is a part of the joint family property. Thus, the properties covered under Exts. C, D, E and F, must be held to be joint family properties, liable to be partitioned.

The defendants also claimed lot No. 9 as Dhulibhag from the zamindar and some plots from lot Nos. 15 and 16 on the ground that these are their self-acquisitions. Here again reliance was placed on the settlement entries. There is no document in support of acquisition of any of such properties. The onus of proof is on the person who alleges such acquisition. We have already seen that the major part of the family property still stands jointly recorded and in respect of some properties where the parties have been separately recorded, it still continues to be joint family property. Thus, the settlement entry alone cannot be taken as evidence of self-acquisition (See 1956-22 Cut LT 602, Baina Paida v. Indramani Paida).

9. Mr. Pal urged that the plaintiff cannot challenge the alienations by the widows in view of Article 141 of the Limitation Act. But the question of limitation was not taken as a ground by the defendants in their pleadings. That apart, there is evidence to show that Neta and Padi died within 12 years from the date of the suit. This contention of the appellants must therefore be rejected.

10. New we shall revert to the claim of the plaintiff in respect of the two items of property, viz., the pucca building which he claims to have constructed at his own cost on plot No. 306 and 261/824 in Mouza Balapur and the purchase of the Sikimi land covered under the sale-deed, Ext. 2 which he claims as his self-acquisition. With respect to the first item, the plaintiff has examined a number of witnesses, including P. W 1 the mason who was engaged in the construction of the house. It is the evidence of P. W. 1 that about five years back he constructed the pucca structure for the plaintiff. Plaintiff alone spent for the construction and the defendants never spent any money for the purpose.

The evidence of P. Ws. 2, 3, 5 and ft also supports the plaintiff's case on the point. P. W. 2 has land at Balapur. Even if we ignore the evidence of P. W. 2 on the ground that he is a vendor of the plaintiff, we have the evidence of the other witnesses such as P. Ws 3, 5 and 6. P. W 3 has stated that it was the plaintiff who constructed the house. The evidence of P. W. 5 discloses that he supplied twenty bags of cement to the plaintiff. P. W. 6 is the plaintiff himself. His case is that he constructed the pucca building on the land of the joint family, but with the permission of the defendants who gave him to understand that at the time of actual partition the said land with the house standing thereon will be allotted to his share.

To counteract this evidence of the plaintiff, the defendants examined D W 1. Dhadi Swain who came to depose that he prepared about forty thousand bricks for the purpose. He works as a mason. As the parties fell out, the house has remained in an incomplete condition. In cross-examination this witness was unable to say as to the number of bricks required even for a wall of 100' x 10'. He was even unable to say the length and breadth of the house where he is said to have been working as a mason. On consideration of his evidence, the learned trial Court was right in not accepting the evidence adduced by the defence He held that it was the plaintiff who met the expenses of construction of the pucca structure We see no reason to differ from him.

11. With respect to the sale-deed Ext. 2, it appears that this properly was sold by Krishna Bastia, son of Bali Bastia in favour of Sauti Bastia, P. W. 2, on 24-6-1958 under Ext. 1, and on 5-11-58 this was again sold by Sauti to the plaintiff under Ext. 2. The case of the defendants is that the property covered under Ext. 2 is their ancestral property and Bali Bastia was a mere Benamidar for the family and Sikimi right was by mistake recorded in his name. It was, however, elicited in cross-examination of P. W. 2 that Krishna Basia, his vendor was paying the rent to the landlords that is, the parties to this suit. P. W. 4 asserts that he and before him his vendor, were in possession of the land. There is no other evidence on behalf of the defendants to show that the property under Ext. 2 was held at any time by the joint family or that Bali Bastia in whose name the Sikimi plot No. 305 stood recorded (Ext. H-10) in the current settlement was a mere Benamidar for the family, and it was recorded by mistake. The said property must, therefore, be excluded from partition and must be held to be the self-acquired property of the plaintiff.

12. In the result, therefore, the plaintiff is entitled to one-third share in the suit-properties including the properties covered by the deeds, Exts. C, D, E and F While making the allotment the plot No. 306 and 261/824 and the pucca structures standing thereon in Mouza Balapur shall be allotted to the share of the plaintiff, and the property covered under sale-deed Ext. 2 shall be excluded from partition. If any of the parties have made any alienation in respect of such properties, they shall be allotted to their respective shares. The possession of the parties shall, as far as practicable, be maintained.

The appeal has no merit and it is accordingly dismissed with costs.

Misra, J.

13. I agree.


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