B.N. Misra, J.
1. Plaintiff is the appellant against the reversing judgment of the learned Subordinate Judge, Sonepur. Present respondent No. 1 was defendant No. 1 in the trial court. The late Gourhari Sahu was defendant No. 2. After the death of defendant No. 2 on 5-12-75, present respondent No. 3, the daughter and only heir, was substituted in place of deceased defendant No. 2. The name of the late Gourhari Sahu, who was inadvertently added as respondent No. 2 in this court has been deleted by Order No. 7 dt. 17-5-78 of this court.
2. The following genealogy which isadmitted describes the relationship between the plaintiff, the late defendant No. 2 and respondent No. 3.
The late Gourhari The late Gopal
(Defendent No.2) Jagannath(Plantiff)
Bhama (Respondent) No. 3)
The total extent of the suit land is Ac. 2.550 decimals. It appertains to plot No. 1132 with an area of Ac. 1.680 decimals and part of plot No. 1133 with an area of Ac.0.870 decimals under Khata No. 95 of Mouza Phulmuthi under Binka P.S. As described in the genealogy, the plaintiffs father and the late defendant No. 2 are the two sons of Subala. Plaintiffs father and Subala were dead at the time of filing of the suit. Plaintiffs family is governed by the Mitakshara School of Hindu Law. The suit land is the ancestral property of the plaintiff and defendant No. 2 and there has been no partition of the same between the plaintiff and (Sic) defendant No. 2, Gopal and defendant No. 2 or Subala and his sons. Till the filing of the suit the plaintiff and defendant No. 2 were the coparceners of the Hindu undivided family. In the current settlement the suit land has been recorded jointly in the name of the plaintiff and defendant No. 2 and Khatian has been issued to them. Defendant No. 2 by himself had no right to transfer any portion of the lands comprised under Khata No. 95 including the suit land. Defendant No. 1 claimed that she had purchased the suit land from defendant No. 2 by a registered deed of sale dt. 23-4-65 and applied for mutation of the said land in her favour. The plaintiff came to know of the invalid, inoperative and illegal sale by defendant No. 2 at the stage of enquiry in respect of the mutation case and in spite of the objection of the plaintiff, the learned Tahsildar recorded in the remarks column of the Khatian that defendant No. 1 was in illegal possession. It is asserted that defendant No. 1 has never been in possession of the suit land. However, in view of the wrong entry in the Khatian, the plaintiff was forced to take shelter of the court. Accordingly, he has prayed that the sale deed alleged to have been executed by defendant No. 2 in favour of defendant No. 1 should be declared to be invalid and inoperative, the right, title and interest of the plaintiff over the suit land should be declaredand possession of the plaintiff along with defendant No. 2 be declared, or, in case of dispossession, possession should be restored to the plaintiff through court.
3. Defendant No. 1 had denied the plaint allegations in the written statement filed by her. According to her, the lands appertaining to Khata No. 95 are not the ancestral property of the plaintiff and defendant No. 2. Some twenty years ago (1954) there was a partition between the two sons of Subala and the suit land along with other lands had fallen to the share of defendant No. 2 at the said partition. Since after the partition, Gourhari and his brother Gopal possessed their respective shares separately. Gopal died some fifteen years ago (1949) and since then the plaintiff has been separately possessing his share while defendant No. 2 had been possessing his share including the suit land separately until 23-4-65 when by a registered deed of sale for legal necessity he transferred the suit land to defendant No. 1 for a consideration of Rs. 1,000/-. Defendant No. 2 delivered possession of the suit land to defendant No. 1 and since then the latter has been possessing the suit land on her own right, title and interest. She has been paying rent in respect of the land purchased by her. Further, since after the partition, defendant No. 2 and the plaintiff have been independently dealing with their respective shares on the basis that they were their separate properties. Since about twenty years (1954), defendant No. 2's branch became completely separate from the plaintiffs branch in mess, estate and worship. It is denied that the plaintiff and defendant No. 2 were still undivided. It is admitted that the family is governed by the Mitakshara School of Hindu Law. It is asserted that the current settlement records are wrong, unfounded and baseless. It is explained that though the plaintiff and defendant No. 2 were separate in all respects, the settlement records show them as joint because the plaintiff did not give his consent to the splitting up of the records. Defendant No. 1 has further pleaded that she is a bona fide purchaser for value and effective title has passed to her in respect of the suit land on the basis of her purchase from defendant No. 1. It is reiterated that defendant No. 1 has remained in possession of the suit land since after her purchase and prior to that defendant No. 2 was in separate possession of the same to theknowledge of the plaintiff. It is also pleaded that the suit is defective for non-joinder of necessary parties and is also barred by the law of limitation. Accordingly, defendant No. I has prayed that the suit should be dismissed with costs.
4. Defendant No. 2 did not appear or contest the suit and hence was set ex parte.
5. At the trial three witnesses were examined on behalf of the plaintiff and nine witnesses on behalf of defendant No. 1. Both parties relied on documentary evidence as well. The learned Munsif found that the suit land was the ancestral property of defendant No. 2 and the plaintiff, the defendant No. 1 had failed to prove that there was partition between the two sons of Subala about twenty years ago and that the suit land had fallen to the share of defendant No. 2 at the said partition, that the sale deed dt. 23-4-65 executed by defendant No. 2 in favour of defendant No. 1 was not binding on the plaintiff, that the plaintiff was not in possession of the suit land on the date of the suit and that the suit had been filed within the prescribed period of limitation of twelve years and was not barred by the law of limitation. Accordingly, the learned Munsif decreed the plaintiff's suit on contest, but without costs. It was declared that the sale deed dt. 23-4-65 executed by the late Gourhari Sahu (defendant No. 2) in favour of Golapi Barik (defendant No. 1) in respect of the suit land was not binding on the plaintiff whose right, title and interest over the suit land were declared and he was held entitled to recover possession of the same through court.
6. Defendant No. 1 filed an appeal against the judgment and decree of the learned Munsif. The learned lower appellate court allowed the appeal on contest with costs throughout and set aside the judgment and decree of the trial court. The learned lower appellate court found that the father of the plaintiff and defendant No. 2 had been separately possessing and separately dealing with their respective properties since long, that the plaintiff had not filed any document nor led any oral evidence to show that the suit land was ancestral property and that the suit was barred by the law of limitation. The judgment and decree of the learned lower appellate court are under challenge in this appeal.
7. Mr. B. H. Mohanty, learned counsel appearing for the appellant, has urged that the findings of the learned lower appellate court that the suit land was not the ancestral property of the plaintiff and defendant No. 2 and that there was clear evidence on record to show that the father of the plaintiff and defendant No. 2 were separately possessing and dealing with the said property since long are vitiated as the said findings are based on documents which are inadmissible in evidence. On going through the records of the trial court, it is seen that on 22-7-75 D.W.8 (wrongly noted as D.W.7 in the trial court's order dt. 22-7-75), the Head Clerk of the Registration Officer, Sonepur, proved the registration fee book of the Registration Office which was marked as Ext. F. On 23-7-75 D.W.9 proved Ext.G, a hand note dated 22-2-58 purported to have been executed by defendant No. 2. Thereafter, defendant No. 1 moved the trial court to accept the certified copies of two registered sale deeds dated 23-4-65 and 27-1-65 purported to have been executed by defendant No. 2 in favour of Kanhu Meher and Mahab Pujhari respectively and certified copy of the registered mortgage deed dt. 25-6-75 purported to have been executed by the plaintiff in favour of Bijaya Kumar Dani, as in spite of summons the persons having the custody of the original documents had failed to produce the same in court. By its order dt. 1-9-75 the trial court admitted the aforesaid three documents with objections with the observation that the evidentiary value of the said documents would be considered at a later stage. In the said order the court further directed that the three documents be marked as Exts. F, G and H. As already noted, Ext.F, the registration fee book, and Ext.G, the hand note dt. 22-2-58, had already been marked as exhibits on 22-7-75 and 23-7-75 respectively. On examining the documents, it is seen that they have been actually marked by the court as Exts. H, I and J respectively. The trial court should have been more careful and correctly noted the documents in the order-sheet as Exts. H, I and J and not Exts. F, G and H.
8. Generally speaking, the normal status of every Hindu family is joint in the absence of proof of division; such is the legal presumption. In other words, given a joint Hindu family, the presumption is, until the contrary is proved, that the family continues joint. The strengthof the presumption, however, varies in every case. The learned trial court on a scrutiny of the oral and documentary evidence filed by the parties came to the definite conclusion that the suit land was the ancestral property of the family and that defendant No. 1 had failed to prove that there was a partition between defendant No. 2 and the plaintiffs father around the year 1954. The documentary evidence relied on by the parties has been discussed by the learned lower appellate court in paras 6. 7 and 8 of its judgment. In para 6 of its judgment, the learned lower appellate court has rightly observed : --
'..... In the present case it is for the defendant appellant to establish that there was partition of the joint family property some times in the year 1954 between defendant No. 2 and the plaintiffs father.....'
Having made this observation it is surprising that in para 10 of its judgment, the learned lower appellate court observed that the plaintiff had not filed any document or led any oral evidence to show that the suit land was the ancestral property of the family. It may be recalled that while the case of the plaintiff is that he and defendant No. 2 were coparceners of a Hindu joint family at the time of institution of the suit, the case of defendant No. 1 is that t here was a partition between defendant No. 2 and the plaintiff's father around the year 1954. So, it is nobody's case that the suit land was not originally joint family property. So fur as the documentary evidence is concerned, the plaintiff relies on Exts. 1 to 3 and defendant No. 1 relies on Exts. A to J. Ext. 1 is the Khatian of the year 1969 in respect of Khata No. 95 which includes the suit land and therein the name of the plaintiff and defendant No. 2 are jointly recorded. Ext. 2 is the certified copy of the order dated 27-3-72 passed by the learned Additional Tahsildar, Sonepur in Misc. Case No. 2184 of 1971 between defendant No. 1 and the plaintiff. In this order it is noted that defendant No. 1 could not acquire a valid title by her purchase as the land had been sold by one of the recorded raiyats, defendant No. 2, without the consent of the other co-sharer, the plaintiff. However, it is further noted in the order that defendant No. 1 was in physical possession of the land in question without a valid title. Ext. 3 series are the rent receipts in which rent has been paid in the name of Subala Sahu, the common ancestor.Ext. A series are the rent receipts filed on behalf of defendant No. 1. These receipts also show payment by defendant No. 1 in the name of Subala Sahu. Ext, C series are receipts alleged to have been granted by defendant No. 2 in favour of defendant No. 1. These receipts filed by the parties do not show conclusively that they relate to the suit land. In these circumstances the learned trial court was correct in its assessment that these receipts do not help defendant No. 1 to prove the fact of partition. Exts. B and B/1 are the voter-lists of the years 1970 and 1973 respectively. These lists show that the plaintiff's house was 37-Kha and the house of defendant No. 2 was 37-Ka. As these entries relate to the years 1970 and 1973, they cannot be held to establish that defendant No. 2 and the plaintiffs father had partitioned their properties in 1954. Ext.D is the registered sale deed dated 23-4-65 whereunder defendant No. 2 has sold the suit land to defendant No. 1 for a consideration of Rs. 1,000/-, Ext. E is a plain paper document purported to have been executed by defendant No. 2 and the plaintiff on 8-11-63 admitting previous partition of the joint family property. Ext. E has been proved by D.W.5 who has stated that it was signed by the plaintiff and defendant No. 2 in his presence. In cross-examination, D.W.5 has stated that the partition had taken place between defendant No. 2 and the plaintiff's father. This, however, is not borne out in Ext. E. D.W.5 further says that Subala was alive at the time of partition and yet he was not given any share. It may be noted that D.W,5 is neither the scribe nor a witness to the document. The document does not show who scribed it and in whose presence it was scribed. The plaintiff has denied his signature on Ext.E and defendant No. 2 was not examined to clarify the position. Further, as pointed out by the learned counsel for the appellant, the date of execution written in Oriya does not indicate that it is a document of the year 1963. The number '3.' following '6' in 1963 does not at all look like '3'. On the contrary, it looks like '7'. In this deed, the age of the plaintiff is described as 28 years and this is corroborated by Ext. J, a certified copy of the registered deed of mortgage dt. 25-6-75, filed by defendant No. 1, where the age of the plaintiff is stated to be 35 years. If in 1975 the plaintiff was 35 years, he would have been 27 or 28 years' old in 1967 and only 23 years' oldin 1963. Therefore, Ext.E appears to be of the year 1967. Ext.E and Ext.J are two documents which are subsequent to the alleged date of severance of joint status between defendant No. 2 and the plaintiffs father in 1954 and as such they are inadmissible for determination of the question of partition in 1954. This conclusion is supported by a decision of this court reported in AIR 1967 Orissa 139 (Udayanath Sahu v. Ratnakar Bej) wherein it was inter alia held :
'Ex.G is a simple mortgage bond dt. 2-6-52 executed by plaintiff 1 in favour of Madha Bej (D.W.2). Lot No. 1 in Ext. E corresponds to lot No. 5 in Ex.G. On the aforesaid fact it is contended that when plaintiff 1 himself mortgaged his one-third interest in some lands conveyed by Ex. E, severance of joint status is established. It is unnecessary to go into the details. It would be sufficient to say that Ex.G is subsequent to the impugned sale deed. The subsequent act of the plaintiffs is inadmissible for determination of the question of severance of joint status in the family on the crucial date. Ex.G must, therefore, be ruled out of consideration.'
Exts. H, I and J are the certified copies of the registered sale deeds dt. 23-4-65 and 27-1-65 and the registered deed of mortgage dt. 25-6-75 respectively. The learned lower appellate court seems to have lost sight of the fact that though these certified copies could be admitted on compliance with the provisions contained in Section 65 of the Evidence Act, proof of execution of the said documents could not be dispensed with. This aspect was considered by the trial Court, but not by the lower appellate Court. In AIR 1951 Nag 255 (Kashinath Shankarappa v. New Akot Cotton G inning and Pressing Co. Ltd.) it was held that it would be absurd to contend that a private sale deed or a mortgage deed could be proved by the production of a certified copy obtained from the Sub-Registrar's Office and nothing more. Similarly, in a decision of this court reported in AIR 1962 Orissa 40 (Subudhi Padhan v. Raghu Bhuvan) it was held that even if the certified copy of the suit mortgage deed was admissible in evidence, that would not dispense with the proof of execution of the same. Proof of actual execution is necessary. In the present case, there is absolutely no proof of execution of Exts. H, I and J. Further, the learned lowerAppellate Court failed to notice that in Exts. H and I, the express consent of the plaintiff has been taken and noted in the deeds for the transfers made by defendant No. 2. It is well known that such consent of adult coparceners is necessary in order to validate transfers of joint family properties and make them binding on all the coparceners. It is significant to note that Ext. H and Ext. E (the impugned sale deeds) were executed by defendant No. 2 on the same day, i.e. 23-4-65. In Ext H, the express consent of the plaintiff has been obtained, but no such consent has been obtained in respect of Ext. D. If consent of the plaintiff was necessary for the transfer under Ext. H, it is not understood how such consent of the plaintiff was not necessary for transfer of the property under Ext. D. In any case, as already stated, since execution of Exts. H, I and J has not been proved, they must be ruled out of consideration. Ext. G is a plain paper mortgage deed dt. 22-2-58 purported to have been executed by the plaintiffs father and countersigned by the plaintiff. It was produced in court by defendant No. 1 and proved by D. W. 9. It appears that the plaintiff who examined himself as P. W. 1 was not confronted with this document. It is not known whether the valuation of the property under Ext. G was more or less than Rs. 100/-. However, Mr. J. P. Misra, learned counsel appearing for respondent No. 1, submitted that the benefit of doubt with regard to nonregistration of the document should go to respondent No. 1 particularly when the document is an old document. In support of this contention, reliance has been placed on AIR 1922 Lahore 43 (Attra v. Mangal Singh) and AIR 1969 Andh Pra 131 (Garuda Satyanarayana v. Grandhi Venkatchalapathi Rao). In the former case it was held :
'Now, it is a well established rule of construction that Section 17 of the Registration Act being a disabling section must be strictly construed, and that unless a document is clearly brought within the purview of that section its non-registration is no bar to its being admitted in evidence. If there is any doubt on the subject, the benefit of the doubt must be given to the person who wants the Court to receive the document in evidence. Bearing this principle in mind we have carefully scrutinised the terms of the document, and are unable to hold that it is a lease for a period exceeding one year.....'
The same principle has been reiterated in the latter decision. However, in the present case apart from the question of registration, the other circumstances accompanying the document require careful scrutiny. The mortgagee under the deed is one Arjun Barik who has not been examined. The scribe and the attesting witnesses have not been examined D. W. 9 has explained that the scribe was ill for the past eight months and the attesting witnesses were dead. D. W. 9 has not signed Ext. G as a witness. There is no explanation as to how and why he was present at the time of execution of Ext. G. Moreover, D. W. 9 has stated that Arjun Bank was possessing the land under mortgage even up to the date of which D. W. 9 was examined in court. This statement would mean that the mortgage had not yet been discharged. In these circumstances, it is not understood how Ext. G came to the custody of defendant No. 1. At least there is no statement from defendant No. 1 to explain her custody of the document. In these circumstances, the learned trial Court rightly observed that it was difficult to construe the document in favour of defendant No. 1. Thus, on a consideration of the documentary evidence, I agree with the learned trial court that these documents do not establish the fact of partition between defendant No. 2 and the plaintiff's father around the year 1954.
9. Coming to the oral evidence, P. Ws. 1, 2 and 3 of whom P. W. 1 is the plaintiff, have stated that the suit land is the joint family property of the plaintiff and defendant No. 2. On the other hand, D. Ws 1, 2, 5, 6 and 7 have stated that defendant No. 2 and the plaintiff's father were separately in possession of their respective lands. It may be noted that D. W. 6 is defendant No. 1 and D. W. 7 is her husband. While the learned trial Court had discussed the oral evidence of both sides, the learned lower appellate court has discussed only the evidence of the witnesses examined on behalf of defendant No. J, There is no discussion at all of the evidence of P. Ws. 1, 2 and 3. The learned trial court did not accept the evidence of P. Ws. 2 and 3 and D. Ws. 1, 2, 3 and 5. As already noted, D. W. 6 is defendant No. 1 and D. W. 7 is her husband. On a consideration of the entire evidence adduced in the case, the learned trial Court came to the conclusion that defendant No. 1 had failed to establishthat there was a partition between defendantNo. 2 and the plaintiffs father around the year 1954 and that at the said partition the suit land had fallen to the share of defendant No. 2. On consideration, I agree with the finding of the learned trial Court.
10. On the issue of limitation, I accept the concurrent finding of fact arrived at by both the courts below that the plaintiff was not in possession of the suit land. The learned lower appellate Court was right in refusing the relief sought for by the plaintiff to cancel the sale deed, Ext. D, in view of the provisions contained in Article 59 of the Limitation Act. I notice that rightly the learned trial Court had not granted this relief to the plaintiff. However, the plaintiff is entitled to the relief of declaration of right, title and interest and recovery of possession. The learned trial Court was right in declaring that the sale deed, Ext. D, in respect of the suit land is not binding on the plaintiff. In this case, defendant No. 1 has not established loss of plaintiff's title on account of her adverse possession for more than twelve years and therefore the plaintiff is entitled to succeed on the basis of his title (See 1972(1) Cut WR 102 -- Kulwantrai Goel v. Johan Christian).
11. In the result, this appeal is allowed. The judgment and decree of the learned lower Appellate Court are set aside and those of the trial court restored. In the circumstances of this case, parties will bear their own costs throughout.