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Chhinu Kare and anr. Vs. Kata Kare and anr. - Court Judgment

LegalCrystal Citation
SubjectFamily;Property
CourtOrissa High Court
Decided On
Case NumberSecond Appeal No. 180 of 1968
Judge
Reported inAIR1972Ori153
ActsHindu Law; Code of Civil Procedure (CPC) , 1908 - Sections 100
AppellantChhinu Kare and anr.
RespondentKata Kare and anr.
Appellant AdvocateR.C. Patnaik, Adv.
Respondent AdvocateS.C. Mohapatra, Adv.
DispositionAppeal dismissed
Cases Referred(Ekoba Parashram v. Kashiram Totaram
Excerpt:
.....new 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]. - this is a matter in which both the courts below have concurred and even though the lower appellate court may have failed to deal in detail any particular oral testimony, it would not affect such finding, because, the same evidence has been thoroughly discussed by the trial court......a suit for declaration of title and recovery of possession of 'kha' schedule property. this 'kha' schedule property which is in dispute is a part and parcel of the 'ka' schedule lands given in the plaint.2. the plaintiffs case is that the entire 'ka' schedule lands belong to dasaru kare, the father of the plaintiff no. 2 and grand-father of plaintiff no. 1, the latter being the son of the former. dasaru had two sons namely fate singh and plaintiff no. 2. upon dasaru's death 'kha schedule land fell to the share of plaintiff no. 2 who possessed the same along with his son plaintiff no. 1. the balance of 'ka' schedule lands which fell to the share of fate singh was assigned by him in favour of his daughters. in the year 1963, defendant no. 1 claimed an interest in schedule 'kha' alleging.....
Judgment:

S.K. Ray, J.

1. This appeal is by the defendants who have lost in both the courts below. It arises out of a suit for declaration of title and recovery of possession of 'Kha' schedule property. This 'Kha' schedule property which is in dispute is a part and parcel of the 'Ka' schedule lands given in the plaint.

2. The plaintiffs case is that the entire 'Ka' schedule lands belong to Dasaru Kare, the father of the plaintiff No. 2 and grand-father of plaintiff No. 1, the latter being the son of the former. Dasaru had two sons namely Fate Singh and plaintiff No. 2. Upon Dasaru's death 'Kha schedule land fell to the share of plaintiff No. 2 who possessed the same along with his son plaintiff No. 1. The balance of 'Ka' schedule lands which fell to the share of Fate Singh was assigned by him in favour of his daughters. In the year 1963, defendant No. 1 claimed an interest in schedule 'Kha' alleging himself to be the adopted son of Dasaru's brother Mute Kare and thereby a dispute arose regarding the properties between him and the plaintiffs resulting in a proceeding under Section 145, Cr. P. C. This proceeding terminated in favour of defendants on 2-3-64. Hence the suit.

3. The case of the contesting defendants is that Dasaru and Mute were two brothers. 'Ka' schedule property is the property of the joint family comprising of these two brothers. These two brothers had separated long before by an amicable settlement, i.e., before Hamid Settlement in 1925 in which 'Kha' schedule property fell to the share of Mute. It was, however, solely recorded in the name of Dasaru in R.O.R. of Hamid Settlement because he was the head of the family. Reliance is placed on an unregistered document (Ext. C) which is purported to have been executed by plaintiff No. 2 in favour of defendants 1 and 2. This document appears to be a deed of relinquishment and is said to substantiate the case of the defendants that Mute and Dasaru were two brothers.

4. Both the courts below have concurrently come to conclusion that Dasaru and Mute are not brothers. While the trial Court excluded this Ext. G totally from consideration as inadmissible on the ground that it being a deed of relinquishment conveying title or interest in property and thus being a compulsorily registrable document, has not been registered, the lower appellate Court held that though such document is admissible for collateral purpose and yet on consideration of its recitals it rejected the contention of the defendants that this document proved that Dasaru and Mute were two brothers born of the same father. Disagreeing with the trial Court, the lower appellate court has held that the 'Kha' schedule property is the self acquired property of Dasaru.

5. The only point raised is that the finding of the lower appellate Court that Dasaru and Mute are not brothers born of the same father is vitiated on account of the misconstruction and misunderstanding of the recitals containing the admission of plaintiff No. 2 in Ext. C.

I have perused this document and I find that there is a statement of plaintiff No. 2 admitting that Dasaru and Mute are uterine brothers (Sahodar Bhai). The expression 'sahodar' as appears from Bhasakosh means 'born of the same womb'. It has also given its English equivalent as uterine. In Hindu Law, in the matter of succession, a consanguine brother is entitled to succeed in preference to an uterine brother. Mulla's Hindu Law (13th Edn.) at page 111 expressly states that brothers of the whole Wood succeed before those of the half blood and that sons of the same mother by different fathers are not entitled to succeed as brothers. In the case of (Ekoba Parashram v. Kashiram Totaram) reported in AIR 1922 Bom 27 (1), it has been said:--

'..... Under the Hindu Law a consanguine brother is entitled to succeed in preference to a uterine brother. The word 'Sodara' used in the Mitakshara is not indicative of the brothers born of the same mother, though not of the same father. In the Mitakshara, Chapter II, Section IV, paragraphs 5 and 6 (Stokes' Hindu Law Books page 445) where the subject of the brother's right to inheritance is dealt with, nothing beyond the difference between brothers of the whole blood and brothers of the half blood is indicated. The brothers there referred to are all sons of the same father. For the purpose of inheritance sons of the same father are brothers, and there is a distinction made between sons by different mothers. But the sons of the same mother by different fathers though born of the same womb belong to a different family and as such are entirely outside the category of the class of heirs under' the heading of 'brothers.'

In view of this legal position, Dasaru and Mute being sons of the same mother, but not the sons of the same father cannot succeed as brothers to the properties of Bhuti, the admitted father of Dasaru, assuming that the property in question is the ancestral property of Dasaru. But the lower appellate court has categorically found that the property is the self-acquired property of Dasaru and in that view also the suit must succeed irrespective of whether Dasaru and Mute are full blooded brothers or not. This point, therefore, fails.

6. Though at the outset, only one point was raised as indicated above, it was also contended that the lower appellate court has not dealt with all the oral evidence on record relating to Mute's relationship to Bhuti or in other words, whether Mute is the full-blooded brother of Dasaru. Apart from Ext. C some oral evidence has been adduced in support of respective cases on both sides. I am not convinced that any error of law has been committed in this regard by the lower appellate court. He has noticed all the evidence in the matter and has not been able to come to a conclusion contended for by the defendants on the basis of such oral evidence. This is a matter in which both the Courts below have concurred and even though the lower appellate court may have failed to deal in detail any particular oral testimony, it would not affect such finding, because, the same evidence has been thoroughly discussed by the trial court. In my view, this contention has no substance.

In the result, therefore, this appeal fails and is dismissed with costs.


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