Dismissed

Manorama Mohanty v. Gobinda Ch.Mohanty

Orissa HC18 Dec 2023RSA/333/2004

Case brief

AI extract

What is this about?

This is a second appeal challenging theLower Appellate Court's rejection of prior family partition and invalidity of a gift deed. The High Court held there was no prior partition by meets and bounds and the gift deed was invalid without co-owners' consent, dismissing the appeal.

What did the court decide?

The appeal stands dismissed and the decision of the lower appellate court is affirmed.

Manorama Mohanty Vs Gobinda Ch.Mohanty — Orissa HC (2023) — LawSathi Research

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IN THE HIGH COURT OF ORISSA AT CUTTACK

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R.S.A No. 333 of 2004

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Manorama Mohanty …. Appellant Mr. S. P. Mishra, Senior Advocate

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-Versus-

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Gobinda Chandra Mohanty &others …. Respondents

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Mr. B.B. Mishra(2), Advocate respondent Nos. 1& 2(a) to 2(i) Mr. S. Sahoo, Advocate for respondent Nos. 3&4

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CORAM:

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JUSTICE R.K. PATTANAIK

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DATE OF JUDGMENT:18.12.2023

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1 . Instant appeal under Section 100 of the Code of Civil Procedure, 1908 is at the behest of the appellant challenging the impugned judgment promulgated in Title Appeal No.7 of 2001 by the learned Additional District Judge, Malkangiri, whereby, the decision of the learned Civil Judge (Senior Division), Malkangiri in Title Suit No.10 of 2000 was set aside on the grounds inter alia that the same is against the weight of evidence on record and therefore, liable to be interfered with in the interest of justice.

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2 . The appellant as plaintiff instituted the suit against respondent No.1, predecessor-in-interest of defendant No.2, respondent Nos.3 and 4 for declaration of title in respect of suit schedule properties in her favour and entries in the RoRs to be erroneous with a direction to the Settlement Authority to make necessary corrections therein. The defendants except defendant No.3 contested the suit. Considering the pleadings on record, learned Civil Judge (Senior Division), Malkangiri framed as many as seven issues and after receiving evidence from both the sides, answered them and finally decreed the suit with a declaration of title in

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RSA No. 333 of 2004 Page 1 of 10

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favour of the appellant over and in respect of the properties in question and directed her to take necessary steps for correction of the RoRs. Being unsuccessful before the Court of 1^st instance, the defendants filed the appeal which was allowed. The learned Lower Appellate Court disbelieved the plea of the plaintiff vis-àvis prior partition and also about the Gift deed executed in her favour and concluded that the findings of the Trial court not to be sustainable in law. Being aggrieved of, the plaintiff has approached this Court in the second appeal with the contention that the conclusion reached at by the learned Lower Appellate Court are incorrect ignoring the evidence received on record.

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3 . This Court by order dated 1^st September, 2004 formulated the substantial questions of law which are as follows:

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(i) Whether the Lower Appellate Court was justified in casting doubt about the genuineness of the Gift deed (Ext.6), which is a registered document?

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(ii) Whether the Lower Appellate Court was correct and justified in holding that the plaintiff has failed to prove the previous partition even though it is the settled position of law that in case of an old partition, inference of legitimacy can be drawn from other materials on record?

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The Court is to examine pleadings on record with the evidence to find out whether the findings of the learned Lower Court can be sustained.

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4 . Heard Mr. Mishra, learned Senior Advocate appearing for the appellant and Mr. Bhuyan, learned counsel for the respondents.

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5 . As per the pleadings, the plaintiff’s father-in-law and the latter’s brother settled down at Malkangiri around the year 1960 and started doing business on their own and both partitioned their joint family properties in 1965, whereafter, they acquired properties separately out of respective income. It has been further pleaded that the plaintiff and defendant No.3 stayed at

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RSA No. 333 of 2004 Page 2 of 10

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Malkangiri and looking after latter’s mother, whereas, other defendants were staying outside and on account of discontentment among the members of the family, there was an amicable settlement with allotment of shares, which took place in 1982 and the said partition included the joint family properties situated at other places as well and in so far as the share allotted to the plaintiff’s mother-in-law, the same was gifted to her by a registered deed dated 22^nd January, 1986, however, despite the above settlement, RoRs were published incorrectly, hence, therefore, the suit.

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6 . On the contrary, the defendants disputed any such prior settlement or partition of 1965 or 1982 as claimed by the plaintiff and instead, pleaded that a family partition had taken place in the year, 1996 with separation of shares and accordingly, the RoRs have been prepared. As regards, the execution of the alleged gift deed, the defendants except defendant No.3, who was set exparte, challenged the same by claiming that it has never been executed and rather a fabricated document. Hence, therefore, the contention was that the suit for declaration of title and correction of RoRs is not tenable in law and hence, to be dismissed.

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7 . As earlier mentioned, with the issues framed and considering the evidence on record, the suit was decreed which was overruled in appeal by the learned Lower Appellate Court disbelieving the prior partition and execution of the of the gift deed in favour of the plaintiff. The question is, whether, there was any evidence on record in support of earlier partition and if at all, the gift deed was executed validly?

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8 . In so far as, the partition in the year around 1965 is concerned, except the pleading and oral evidence of the plaintiff and defendant No.3 examined as P.Ws.1 and 4, no material in support of it was placed on record. In fact, by the time any such partition held in 1965, P.W.1 could not have had any knowledge about the

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RSA No. 333 of 2004 Page 3 of 10

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same, since she married defendant No.3 in 1969. In other words, it could not be expected from P.W.1 to divulge facts regarding such partition in 1965, she having joined the family of defendant No.3 about four years later. The only evidence, which can be examined on such partition, is of P.W.4, who in course of examination claimed that the family had separated in 1967. Except the above solitary testimony of P.W.4, there was no other material in support of partition which had allegedly taken place in 1965. No doubt, the partition took place long back and in such circumstances, its legitimacy may be drawn from other materials. There has been no other evidence on record regarding any such separation in or around 1965, instead, P.W.4 claimed partitioned between his father and uncle in 1967 and that apart, the RoRs stood jointly recorded. From the record, it is also made to appear that the property was jointly acquired in the year 1965 and recorded so vide Mutation Case No.28 of 1965, which rather suggested that there was no partition by then. By the conduct of the parties, inference of partition could be drawn but there has been no such material on record to show that any such separation or even amicable arrangement made prior to 1996. It has been claimed by the contesting defendants that the partition did take place in 1996. It was for the plaintiff to prove earlier partition. The settled legal position is that the burden proof lies on the person, who claims partition leaving the other side to rebut the same. In other words, a fact of prior partition, if pleaded, the party claiming so is required to discharge the burden and thereafter, onus shifts to the adversary to deny it. In the instant case, the plaintiff pleaded partition in 1965 and thereafter, in 1982 either by means of an amicable arrangement or settlement but except the oral evidence, no other material is available to prove the same. The evidence of P.W.4 is also shaky as he claimed separation in 1967, which is again not supported by any documentary evidence. Had there been separation and individual transactions by the parties taking place after any such separation RSA No. 333 of 2004 Page 4 of 10

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and partition, with the evidence on record in that regard, there would have been a conclusion otherwise believing the partition by meets and bounds. No credible and cogent evidence could be produced by the plaintiff in order to substantiate the partition in the families. In fact, the partition was questioned by the contesting defendants with a plea that some amicable arrangements were made prior to settlement in 1996. The learned Lower Appellate Court concluded that even assuming the said plea to have failed, it does not improve the case of the plaintiff, who is acquired to establish prior partition, which in the considered view of the Court, is correct. Neither there was any partition proved and established nor any such acceptable evidence brought on record in support of it. So, therefore, the learned Lower Appellate Court rightly held that there was no prior partition till 1996.

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9 . Mr. Mishra, learned Senior Advocate appearing for the appellant submits that the oral evidence on record was sufficient to establish previous partition of the suit properties. Moreover, all the contesting defendants admitted that defendant No.3 and plaintiff to be staying in the house at Malkangiri standing over the suit property. As earlier concluded, mere oral evidence would not suffice and notwithstanding any house constructed over the suit property by defendant No.3 and stay in the house at Malkangiri by the plaintiff and defendant No.3 by itself would not be sufficient to prove previous partition. It could be held that there was an amicable arrangement in the family till partition was held in 1996, which has been pleaded by the contesting defendants but such evidence in the considered view of the Court is inadequate to reach at a conclusion regarding prior partition. Much emphasis has been laid on Ext.7, a statement of defendant No.5 recorded in a proceeding under Section 144 Cr.P.C. while claiming the amicable family partition in 1982 which was believed by the civil court. In fact, defendant Nos.4 and 5 initiated the above

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RSA No. 333 of 2004 Page 5 of 10

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proceedings by stating that they remain in possession of the case land for eighteen years, which was after an amicable family arrangement. The suit has been instituted in 1998, whereas, the dispute related to the proceeding under Section 144 Cr.P.C. was in the year 2000. Such proceeding with a claim by defendant Nos.4 and 5 about their possession of the case land is on the basis of an amicable family arrangement, which again in the considered view of the Court cannot justify prior partition by meets and bounds. It has to be held that even admitting any such family arrangement referring to Ext.7, a presumption cannot be drawn in favour of partition. The evidence on record further proves that the family owned properties jointly. So therefore, considering the materials on record, it may be held that there was family arrangement with regard to properties or any part thereof to be possessed as per the convenience and hence, merely by referring to Ext.7, it cannot be conclusively held that there was partition in the family anytime before 1996. Rather, it proved some kind of a family arrangement. So therefore, the contention of Mr. Mishra, learned Senior Advocate in support of prior partition is unacceptable. Furthermore, the family settlement deed dated 20^th October, 1996 marked as Ext.A/1 and B/2 is challenged on the ground that the same is an unregistered document, hence, is not admissible in view of Section 17 of the Indian Evidence Act. Referring to the evidence of defendant No.2, it is contended that such family settlement dated 20^th October, 1996 is not established, rather, it casts a serious doubt on such claim. It is reiterated that the initial burden lies on the plaintiff, who cannot benefit from the defence. Even assuming for the sake of argument that the socalled family settlement is not established, the same is not to strengthen the case of the plaintiff, who was to discharge the burden and prove prior partition. The severance of joint family status in absence of partition of properties is not unusual which does not mean that there is partition. If the evidence on record from the side of plaintiff is to be believed, it is made to appear RSA No. 333 of 2004 Page 6 of 10

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that the parties enjoyed the properties separately by a family arrangement but without partition by meets and bounds.

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10 . Mr. Mishra, learned counsel for respondent Nos.1, 2(a) to 2(i) referring to a decision of this Court in the case of Brajananda Pradhan Vrs. Sachidananda Pradhan AIR 1990 Orissa 29 contends that the learned Lower Appellate Court rightly held that there was no partition in the family. In the decision (supra), the Court held that members of family living in different houses, separate payment of house taxes by each member with Record of Rights joint indicating specific shares is not evidence compatible with the theory of partition, rather, it shows the family to be living and cultivating separately for convenience. In the instant case, the Court finds that the members of the family possessed properties separately possibly on account of amicable arrangement and in absence of evidence in support of partition, learned Lower Appellate Court committed no wrong in dismissing the plea of plaintiff. Another decision of the Apex Court in the case of M.L.Subbaraya Setty and others V. M.L. Nagappa Sethy and others AIR 2002 SC 2066 is also referred to by Mr. Mishra, wherein, it has been held that whether there is severance of joint family status from a particular date and but properties not being partitioned, members of the family are treated as tenants-incommon of the family properties from the said date till the date of final partition of the properties in their respective possession.

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11 . Having regard to the above legal position, the Court is of the view that the conclusion of the learned Lower Appellate Court on family partition or otherwise is unassailable. In fact, Mr. Sahoo, learned counsel for respondent Nos.3 and 4 adopted the same line of argument of Mr. Mishra, learned counsel for respondent Nos.1 and 2(a) to 2(i) and claimed that partition by meets and bounds is not established. Having considered the evidence in its entirety, the inescapable conclusion of the Court is that the evidence on record, if at all proved anything is about the RSA No. 333 of 2004 Page 7 of 10

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possession of the properties as per convenience without final partition among the members of the family could possibility on account of family arrangement.

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12 . Regarding the execution of the Gift deed, Mr. Mishra, learned Senior Advocate for the appellant submits that it has been duly proved in consonance with Section 123 of the Transfer of Property Act read with Section 63 of the Indian Evidence Act and therefore, no doubt should be entertained over its genuineness. It is contended that the circumstances under which the Gift deed i.e. Ext.6 was executed proves that the same was in favour of the plaintiff in respect of the property in possession. The claim is that the mother-in-law of the plaintiff executed Ext.6 out of her own free will and coupled with the possession of the property in question supported by oral evidence, its execution stands validly proved, a transaction which has taken place after the amicable partition. Mr. Sahoo, learned counsel for respondent Nos.3 and 4 would submit that a female coparcener like the plaintiff’s motherin-law could not have had any authority to gift away a portion of the joint family property, hence, Ext.6 is invalid and that apart, the executant was an illiterate lady and therefore, a serious doubt is cast upon such execution. Mr. Mishra, learned counsel for respondent No.1 and 2(a) to 2(i) cited a decision of this Court in the case of Bishnu Bhukta Vrs. Ananta Dehury & another 2022 (I) OLR 280 to contend that under Mitakshara law, no coparcener can dispose of his undivided interest in coparcenary property by gift without the consent of other coparceners. In the instant case, admittedly, the Gift deed has been executed by the mother of defendant No.3. Since, it has been held that there was no prior partition rejecting the claim of the plaintiff, the property gifted away under Ext.6 becomes a joint interest of the family, so therefore, it has to be held that the same was invalid due to want of consent of other coparceners. In the aforesaid decision, it has been held that the registered gift deed disposed of with a share or

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RSA No. 333 of 2004 Page 8 of 10

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interest over the property in absence of any partition amongst the surviving owners is neither valid nor it can be said to be valid even up to the extent of the share. In the said case, the land succeeded by the executant and her daughters was gifted away by her in favour of one of the daughters with respect to 1/5^th share and under such circumstances, the Court held that the same is not valid even to the extent of such share disposed of. Referring to a decision of the Apex Court in R. Kuppaya Vrs. Raja Gounder (2004) 1 SCC 295 and references to the statement of law under Article 256 of Mulla’s Hindu Law regarding gift of undivided interest with respect to Mitakshra family, this Court in Bishnu Bhukta (supra) concluded that gift of a share of an undivided coparcenary without the consent of other coparceners stands vitiated.

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13 . In the instant case, when earlier partition has failed and the conclusion that the members of the family possessed the properties either by an amicable family arrangement or convenience, gift of the property in question exclusively in favour of the plaintiff becomes invalid In absence of any consent of other co-owners. It is also settled position of law that a gift either with the consent of the coparcener or by Karta for a specific purpose and to a reasonable extent is permissible. In the case at hand, Ext.6 is stated to have been executed since the plaintiff and defendant No.2 looked after the wellbeing of the executant. The evidence on record suggested that the mother of defendant No.3 resided at different places before her death in 1992. It is claimed that out of affection towards the plaintiff and defendant No.3, the properties were gifted away. The circumstances leading to the execution of the gift deed i.e. Ext.6 does not appear to be usual. There has been no specific mention regarding prior partition in Ext.6. Mother of defendant No.3 died while staying with her eldest son, namely, defendant No.1 at Bhubaneswar. Considering the entire evidence and having regard to the fact that the family

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RSA No. 333 of 2004 Page 9 of 10

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was joint, the Court is not inclined to accept the plea of the plaintiff, rather, to hold that learned Lower Appellate Court rightly proceeded to reject the same and when, it is not in respect of a share or interest that Ext.6 was executed. Having concluded that there was no separation yet and such plea of prior partition stood disbelieved, it has to be held that the view expressed by learned Lower Appellate Court is not erroneous. Hence, therefore, the conclusion of the Court is that no case is made out by the appellant to interfere with the impugned decision in appeal. Consequently, the substantial questions of law stand determined.

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14 . Hence, it is ordered.

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15 . In the result, the appeal stands dismissed, however, under the
circumstances without any order as to costs.
(R.K. Pattanaik)
Judge
Balaram

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RSA No. 333 of 2004 Page 10 of 10

Manorama Mohanty v. Gobinda Ch.Mohanty

Case brief

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Manorama Mohanty v. Gobinda Ch.Mohanty

Case brief

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