Gouri Hansda Vs Dulla Majhi

Mana had two sons Debra and Dumuka. Debra had two sons and a daughter, one of them being Gura. Gura died leaving behind his widow Salma and his only daughter Gouri the Plaintiff. On the other hand, Dumka had one son, namely, Dulla, the Defendant No.1 and a daughter, Maka. Defendant No.2 and Defendant No.3 are the son and daughter respectively of Dulla (Defendant No.1). The Plaintiff’s case is that their common ancestor had Ac.14.27 decimals of land under Sabik Khata No.44 in

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Mouza Sialamundali. Said property was divided between Gura (father of the Plaintiff) and Dulla, son of Dumka orally in the year 1970. Accordingly, Gura got Ac.7.14 decimals whereas Defendant No.1 got Ac.7.13 decimals. Gura died in the year 1971 and thereafter, the Plaintiff and her mother possessed and cultivated the suit land. It is the further case of the Plaintiff that after death of her mother Salma, She has been possessing the land along with her husband. It is alleged that in the Hal Settlement operation, the entire suit land was recorded in the name of the Defendants for which the Plaintiff filed Objection Case No.616 of 1986 before the Assistant Settlement Officer for recording of her name in respect of her father’s share. Said case was dismissed on 02.08.1986. She preferred an appeal, being Appeal No.272 of 1986, before the Settlement Officer but the same was also dismissed on 12.03.1987. During the time of consolidation operation, Defendant No.1 managed to get the entire suit land recorded in his name and the names of hisson and daughter (D-2 and D-3). It is further claimed that Defendant No.1 executed a sale deed on 24.06.1975 in

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favour of Suryanada Majhi of her village, in the recitals of which, it is clearly admitted that the ancestral properties had been divided between him and Gura. As such, Defendants have got no right, title and interest over the land falling to the share of the Plaintiff’s father Gura.

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The Defendants contested the suit by filing written statement. Their plea was, Dumka and Debra were living jointly and after death of Dumka, Mana was managing the house-hold affairs. The second son Bhuju died unmarried followed by the death of Mana. As such, Dulla, (Defendant No.1) became the “Karta” of the family and managed the house-hold affairs. While living in joint family with Defendant No1, Gura died leaving behind his wife Salma and daughter, the Plaintiff. Salma thereafter married again to one Maha Majhi. The Plaintiff was therefore, raised by Defendant No.1 and given in marriage to one Masang Hembram. She however did not stay with her husband and remarried one Shyamsundar Hansda. She had filed a petition before the S.D.O. claiming her share, which was sent to the Sarpanch but her claim was turned down as being a daughter, she had no right in the joint

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family properties. Her further attempts before the settlement authorities also failed. Defendants also challenged maintainability of the suit, inter alia, on the ground of limitation. The claim of partition between Gura and Defendant No.1 was specifically denied. The possession of the Plaintiff was also denied. As regards the sale deed relied upon by the Plaintiff, it was pleaded that the scribe might have mentioned in the recitals of the deed concerning partition but it was not within the knowledge of the Defendants.

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Basing on the rival pleadings, the trial court framed

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the following issues for determination.

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“ 1. Has the plaintiff any cause of action to bring the suit?

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2. Is the suit maintainable in its present form?

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3. Is the suit barred by law of limitation, estoppels, waiver and acquiescence?

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4. Is the suit bad for non-joinder and misjoinder of necessary parties?

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5. Whether there was partition between Gura and Dulla and the suit land fell to be share of the father of the plaintiff-Gura.

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6. Whether the plaintiff is in possession of the suit land?

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7. Is the plaintiff entitled to the relief as claimed for?

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8. To what other relief or reliefs, the plaintiff is entitled?”

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The trial court took up Issue No.5 at the outset.

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Noting that the parties are tribals, the trial court held that the Plaintiff not being a coparcener is not entitled to any share, save and except by way of partition. As such, heavy onus lay on her to prove prior partition and that it was acted upon. After scanning the evidence on record, the trial court found that the Plaintiff relied heavily on the sale deed marked Ext.1 executed by Defendant No.1 in favour of an outsider wherein there was mention of prior partition. However, save and except the said document, there was no other convincing evidence otherwise to prove prior partition. The oral evidence adduced by the Plaintiff was also found to be inconsistent. On the other hand, the Defendants adduced evidence in the form of rent receipt to show his possession. Thus, the claim of prior partition between Gura and Dulla whereby the schedule ‘A’ land fell to the share of Gura was disbelieved. On Issue No.6 relating to possession, the trial court held that the

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Plaintiff had failed to prove the same. On the

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maintainability of the suit, the trial court, taking note of the provision under Sections 14/37/ and 41 of the Consolidation of Holdings Act, held that the Civil Court has no jurisdiction for which the suit was not maintainable. On the other issues, it was held that the Plaintiff’s appeal having been rejected on 22.03.1987, the suit was filed beyond the period of limitation. On such finding the suit was dismissed.

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Being aggrieved, the Plaintiff carried the matter in appeal. The 1^st Appellate Court, after noting the rival contentions, held that the appeal was not in consonance with Order 41 Rule 1 of C.P.C as the memorandum of appeal was not accompanied by certified copy of the judgment. Having held so, the 1^st Appellate Court thereafter, upon examining the findings of the trial court issue-wise, held that the Plaintiff had not taken any steps to call for the original sale deed nor laid any foundation for adducing secondary evidence like certified copy. Neither the scribe nor any witness to the sale deed has examined to prove the document. As such, the plea of

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estoppel would not lie against the Defendants. The 1^st Appellate Court further scanned the oral evidence and ultimately concurred with the finding of the trial court that there was no acceptable proof of prior partition. It was also held that the finding that the Plaintiff was not in possession was correct. It was however held that the Civil Court had jurisdiction to entertain the suit. On the question of limitation, the 1^st Appellate Court held that the Plaintiff’s objection before the Assistant Settlement Officer was dismissed on 02.08.1986. So, atleast from that date she was supposed to be aware that Defendant No.1 was displaying hostile animus and such the suit should have been filed within 12 years thereafter. Since it was not so filed, the Defendants had perfected their title by way of adverse possession or ouster as the case may be. The appeal was thus dismissed.

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Being further aggrieved, the Plaintiff has filed the present second appeal, which was admitted on the following substantial question of law:

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“i. Whether the learned lower Appellate Court has committed illegality in holding that the

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memorandum of appeal was liable to be rejected on the ground that the decree of the trial court was filed after filing of the memo of appeal along with the judgment and the appeal was admitted by accepting the decree.

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ii. Whether in the absence of any specific plea of ouster raised by the defendants, the learned courts below has committed an error in holding that the defendants have perfected their title by adverse possession over a joint family property.”

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Heard Mr. S.P. Misra, learned Senior Counsel assisted by Mr. Ramesh Agarwal for the Appellant. None appeared for the respondents despite repeated opportunities.

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Assailing the impugned judgment, Mr. Misra, learned Senior Counsel, would contend that the 1^st Appellate Court having admitted the appeal could not have subsequently held the same as not maintainable by referring to the provision under Order 41 Rule 1 at a subsequent stage. It is further contended that the finding of the 1^st Appellate Court that the Defendants perfected their title by way of adverse possession in respect of the joint family property is not tenable when no specific plea of ouster was taken

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nor the other ingredients of adverse possession were pleaded and proved. Mr. Misra further argues that admission being the best evidence, both the courts below committed gross illegality in not relying upon the recitals of the sale deed marked Exhibit-1 regarding prior partition. Further, the finding that the suit was barred by limitation also cannot be sustained since the period was reckoned only from the date of rejection of the settlement objection without taking into account the fact that the Plaintiff had also preferred an appeal. Mr. Misra would conclude his argument by submitting that even assuming that the plea of prior partition as mentioned in the recital of the deed was not proved, then also the Plaintiff has right over the share of her father through notional partition as otherwise the entire branch of Debra would be deprived of its lawful share of the ancestral properties.

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As already stated, the 1^st Appellate Court held that the judgment of the trial court was passed on 17.11.2000 followed by decree on 24.11.2000. The memorandum of appeal was presented on 03.03.2001 and certified copy of the judgment was filed on 31.08.2001 but while

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presenting the memorandum of appeal, the appellant had not sought for leave of the Court for dispensing with filing of the copy of the judgment. Thus, the appeal was imperfectly constituted. Further, no prayer was made for condonation of delay in filing the certified copy of the judgment. As such, the memorandum of appeal was liable to be rejected. To appreciate the contentions advanced visà-vis the above finding, it would be apposite to refer to the relevant statutory provision, i.e. Order 41 Rule 1 CPC, which is quoted herein below:-

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“ 1. Form of appeal-What to accompany memorandum- (1) Every appeal shall be preferred in the form of a memorandum signed by the appellant or his pleader and presented to the Court or to such officer as it appoints in this behalf. The memorandum shall be accompanied by a copy of the [judgment]

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[Provided that where two or more suits have been tried together and a common judgment has been delivered therefore and two or more appeals are filed against any decree covered by that judgment, whether by the same appellant or by different appellants, the Appellate Court may dispense with the filing of more than one copy of the judgment.]

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(2) Contents of memorandum-The memorandum shall set forth, concisely and under distinct heads, the grounds of objection to the decree appealed from without any argument or narrative, and such grounds shall be numbered consecutively.

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(3) Where the appeal is against a decree for payment of money, the appellant shall, within such time as the Appellate Court may allow, deposit the amount disputed in the appeal or furnish such security in respect thereof as the Court may think fit.”

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From the above provision it emerges that it is necessary that the judgment appealed against has to accompany the memorandum of the appeal. The Appellate Court is to fix a date for hearing on the question of admission of the appeal under Order 41 Rule 11. If however, the appeal is not dismissed, Rule 12 provides that the Appellate Court is to fix the date for hearing of the appeal. These provisions were interpreted by a coordinate Bench of this Court in the case of Satyabhama Pattnaik vs. Bijendra Mohapatra and

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Others ,¹ and it was held as follows.

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“21 . It is therefore, clear from the provisions of Order XLI CPC that once an appeal is not dismissed under the provisions of Rule 11 thereof, the appeal is to be admitted and a date of hearing is to be fixed and notice of such date of hearing is to be served on the respondent. The only provision, which authoritized the Appellate Court to dismiss the appeal thereafter is under Rule 17 of order XLI CPC which provides in sub-rule (1) thereof that where on

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12012 SCC Online ORI 411

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the day fixed, or on any other day, to which the hearing of an appeal is adjourned, the appellant does not appear when the appeal is called on for hearing, the Court may make an order that the appeal is dismissed. In the explanation to this rule, it has been provided that nothing in the said subrule shall be constructed as empowering the Court to dismiss the appeal on merit. When appeal is dismissed sub-rule (1) of Rule 17 the provision for restoration of the appeal commonly called as readmission of the appeal dismissed for default is prescribed under Rule 19.

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22. In the facts of the present case, the appeal being admitted by the learned Lower Appellate Court and summons having been issued to the respondent, the learned Lower Appellate Court was not authorized under law to dismiss the appeal on the ground that there was no proper presentation of the appeal, as the certified copy or the decree was not filed along with the memo of appeal.”

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Thus, the legal position which emerges is that once an appeal had been admitted and summons issued to the Respondents, the Appellate Court is not authorized under

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law to dismiss the appeal on the ground that it was not properly presented for non-filing of certified copy of the judgment in appeal. The finding of the 1^st Appellate Court on this score is therefore, unsustainable.

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The next point to be considered is the ground of limitation. The 1^st Appellate Court fell into apparent error in reckoning the period of limitation from 02.08.1986, i.e.,

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the date on which the Objection Case No. 616 of 1986 filed by the Plaintiff before the Assistant Settlement Officer was dismisseḍ. The fact that the Appellant had preferred an appeal against such order, being Appeal Case No.272 of 1986 before the Settlement Officer which came to be dismissed on 12.03.1987, was not taken into account at all. The suit being filed on 02.01.1999 was therefore, well within the period of limitation of 12 years. Thus, the finding of the 1^st Appellate Court on the point of limitation is also unsustainable.

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Coming to the main point of dispute between the parties, i.e., the claim of prior partition by the Plaintiff, according to the Plaintiff her ancestors Mana, Dumka and Debra all died in jointness. The ancestral properties were partitioned equally between her father Gura and Defendant No.1 in the month of January, 1972. No deed of partition was effected in writing but the same was done in the presence of local gentries. The Defendants, on the other hand, dispute such claim and claim that Gura died while living in joint family with Defendant No.1 and the entire joint family property devolved on Defendant No.1

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after his death. As has already been narrated hereinbefore, the Plaintiff heavily relies upon the recitals of the registered sale deed executed on 24.06.1975 by Defendant No.1 in favour of Suryananda Majhi. Said document was admitted into evidence as Exhibit-1. Perusal of the document reveals that it has been mentioned that about five years back there was a partition of the ancestral properties between Sunia Dei, GauriDei and Defendant No.1 in the presence of the village Panchayat and that co-sharers were possessing the respective shares without any dispute. According to the Plaintiff, this is a clear admission by Defendant No.1 of the prior partition and the recitals being clear and unambiguous, no further evidence is necessary. Both the courts below have rejected such contention and according to this Court, rightly so. This is being said for the reason that even accepting Exhibit-1 to be a valid document, its recitals alone, in the absence of other corroborative evidence cannot lead to a definite inference of prior partition. Firstly, the Plaintiff herself was a minor child aged about seven years at the time of partition and hence,

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cannot be expected to have any personal knowledge of it. Secondly, it has not been given out by the Plaintiff in her plaint or otherwise as to who were the members of the Panchayat in whose presence the partition had supposedly been made. The witnesses examined by the Plaintiff, namely, P.Ws. 1 to 3 have at best given vague and non specific statements relating to allotment of shares but the same is inconclusive. Furthermore, the Plaintiff’s objection, filed before the settlement authorities, was rejected and so also her appeal. She had otherwise not taken any steps to mutate the property in her name after coming of age. The consolidation authority also took note of the possession of the Defendant No.1 over the lands and therefore, recorded the same in his favour. The Defendant No.1 has otherwise adduced evidence to show his possession over the suit land. Therefore, the claim of prior partition cannot succeed only on the basis of the recitals of the sale deed (Exhibit-1). This Court therefore, finds nothing wrong in the findings of both the courts below so as to be persuaded to interfere.

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Mr. S.P. Misra has alternatively argued that even if

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the Court finds no evidence of prior partition then also the right of the Plaintiff over the ancestral properties, though limited, cannot be ignored as otherwise, it would amount to the Defendant No.1 usurping the entire ancestral property debarring thereby the other branch of the family from the properties. Mr. Misra relies upon the principle of notional partition in this regard. According to him, Debra and Dumka being the sons of Mana had 1/2 share each of his properties. In so far as Debra is concerned, a small coparcenery was formed comprising him and his son Gura and Bhuju. Under such circumstances, had a partition taken place just before the death of Debra, the half share falling to his branch, would have been divided between him, Bhuju and Gura, each getting 1/3^rd share from the half share, i.e. each getting a total of 1/6^th share in the ancestral property. Further, on death of Debra, his 1/6^th share would devolve by succession on Gura, Bhuju and his daughter Sunia in equal share .i.e. 1/3^rd out of Debra’s share. But Bhuju died issueless and hence, his 1/6^th share would be redistributed between his brother

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Gura and sister Sunia. Thus, Gura would be entitled to

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1/3^rd share and Sunia to 1/6^th share. This share of Gura would devolve on his death on his widow and daughter (Plaintiff) in equal share. Thus, the Plaintiff would be entitled to 1/6^th share of Mana through Debra and Gura.

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Admittedly, the parties are tribals and as such, the old Hindu Law applies to them. The concept of notional partition is that the shares of coparceners are determined as if an actual partition took place just before the death of eldest member of the coparcenery. In actual partition there is physical division of the property during life time of all coparceners whereas in notional partition the shares of coparceners are determined presuming the partition as if partition had taken place just before the death of the eldest member. Reference in this regard may be had to the

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case of Gurupad Khandappa Magdum v. Hirabai Khandappa Magdum² , wherein the Supreme Court held as follows:

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“13. … The assumption which the statute requires to be made that a partition had in fact taken place must permeate the entire process of ascertainment of the

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2 (1978) 3 SCC 383

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ultimate share of the heirs, through all its stages. To make the assumption at the initial stage for the limited purpose of ascertaining the share of the deceased and then to ignore it for calculating the quantum of the share of the heirs is truly to permit one's imagination to boggle. All the consequences which flow from a real partition have to be logically worked out, which means that the share of the heirs must be ascertained on the basis that they had separated from one another and had received a share in the partition which had taken place during the lifetime of the deceased. The allotment of this share is not a processual step devised merely for the purpose of working out some other conclusion. It has to be treated and accepted as a concrete reality, something that cannot be recalled just as a share allotted to a coparcener in an actual partition cannot generally be recalled. The inevitable corollary of this position is that the heir will get his or her share in the interest which the deceased had in the coparcenary property at the time of his death, in addition to the share which he or she received or must be deemed to have received in the notional partition.”

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The parties, being tribals, are said to be excluded from the application of Hindu Succession Act, 1956 in view of Sec 2(2) of said Act but are governed under the Old Hindu Law.The case record indicates that both the first appellate court and the trial court have noted that the parties are governed under the old Hindu law being members of Santhal tribe.

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Thus, this court would not like to re-agitate the issue as to the law applicable to the parties especially when the parties have not pleaded or proved any local custom in

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practice among their families or tribes being at variance.

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Therefore, prima facie, the parties are governed under the old Hindu law and so long as any custom is not pleaded for being at variance to them, the principles of Hindu law would be applicable to them. Such proposition has been explained in the case of Chunkku Manjhi v. Bhabani

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Manjhian³ , wherein the Patna High Court held as follows:

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“16. There cannot be any doubt that it is possible that aboriginals of non-Hindu origin can become sufficiently Hinduised so that in the matter of inheritance and succession they are prima facie governed by the Hindu Law, except so far as any custom at variance with such law is proved.

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17. However, the question as to whether the parties are “Hinduised out and out or have ‘became’ sufficiently Hinduised” are questions of fact. The burden of proof is initially upon the plaintiff to show that the parties have become “Hindus out and out” or “have become sufficiently Hinduised” so as to be governed in the matter of succession and inheritance by any School of Hindu Law ”

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On the contrary, the dissenting opinion of Justice K. Ramaswamy in Madhu Kishwar v State of Bihar⁴ and subsequently explained in Kamla Neti v LAO⁵ , that the provisions of the Hindu Succession Act and the Indian Succession Act would apply to the Scheduled Tribes, the

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3AIR 1946 Pat 218.

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4 (1996) 5 SCC 1864

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5 (2023) 3 SCC 528

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general principles contained therein being consistent with

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justice, equity, fairness, justness and good conscience would apply to them, appeals to judicial conscience. In Kamla Neti (Supra), the Supreme Court decided on the challenge of a daughter claiming parity with the sons on the amount of compensation awarded upon an acquisition. However, the question of line of succession was neither raised nor considered. In Madhu Kishwar(Supra) , the challenge was to the constitutionality of inclusion of “Male Descendants” in the Chotanagpur Tenancy Act and leaving out female descendants from its interpretation. This also is a case of females claiming parity with the males, which is distinguished from the facts of the present case as the appellant in the present case, claims a notional partition that has crystallized into respective shares upon the death of the eldest coparcener. Hence, notwithstanding the fact that the Hindu Succession Act in toto does not apply to the tribals, yet the principles of notional partition as well as intestate succession would still be applicable.

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Further, while computing the specific interest of the

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coparceners’ successors, reliance may be placed on

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Mulla’s Hindu Law (12 Edn. Vol. II), wherein methodology for determining successor’s interest in the ancestral property has been described at page-336, which is reproduced as below:-

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“ The undivided share of the deceased coparcener for the purpose of giving effect to the rule laid down in the proviso, as already pointed out, is to be ascertained on the footing of a notional partition as on the date of his death. The determination of that share must depend on the number of persons who would have been entitled to a share in the coparcenary property if a partition had in fact taken place immediately before his death and such person would have to be ascertained according to the law of joint family and partition. The rules of Hindu law on the subject in force at the time of the death of the coparcener must, therefore, govern the question of ascertainment of the persons who would have been entitled to a share on the notional partition.

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The quantum of the share to be allotted to the heirs of the deceased coparcener will be on the footing of the coparcenary property existing at the date of his death, when the partition is deemed to have taken place and not the property as it may exist at the date of the actual allotment and delivery of that share to the heirs. The heirs would not be subject to the hazard of the fluctuations in the fortunes of the family between the two dates unless of course, any agreement or unequivocal conduct of the parties has given rise to some special equities between them.”

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inheritance, as mentioned above, to the present case, it is seen that admittedly the property in question belongs to the common ancestor Mana who had two sons Debra and Dumka, each having half share.

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Fig above: indicates the interest of each person in the ancestral property in the Branch of Debra

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In the branch of Debra, the coparcenery would be formed

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comprising Debra and his sons Gura and Bhuju, each having equal share, i.e. ½ share among 3 persons therefore each receiving 1/6^th share. On death of Debra, his share would have devolved upon Gura, Bhuju and Sunia, as being his successors thereby, entitling them to equal shares out of Debra’s 1/6^th share, i.e. 1/6 among 3 children each receiving an additional 1/18^th share. But then Bhuju died unmarried, so his halfshare of the

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property in the coparcenery would be distributed between Gura and Sunia, as being his brother and sister. Thereby Bhuju’s share, i.e. 1/6^th from Coparcenary and 1/18^th from Debra, totaling 2/9^th of share, would be redistributed between Gura and Sunia, each receiving 1/9^th of the share.

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Therefore, the total interest accrued in favor of Gura is 1/6 (interest from coparcenary formed with Debra & Bhuju) + 1/18 (interest received upon Debra’s death) + 1/9(interest received upon Bhuju’s death) = 1/3^rd of the interest in the ancestral property. This is the interest which his heirs should receive upon his death. Additionally, Sunia (Debra’s daughter) would be entitled to 1/18 (interest received upon Debra’s death) + 1/9 (interest received upon Bhuju’s death) = 1/6^th of the interest in the ancestral property. On death of Gura his1/3^rd share would devolve on his widow Salma and daughter (Plaintiff) in equal share. Thus, the Plaintiff would be entitled to 1/6^th share. On the death of Salma, her 1/6^th share would also revert back to the Plaintiff, and

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thus the total share of the Plaintiff would be 1/3^rd .

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In other words, the half share falling to the branch of Debra out of the properties of Mana would in the end devolve upon his daughter Sunia to the extent of 1/6^th and to the Plaintiff (granddaughter) to the extent of 1/3^rd . As against this, the Defendant’s claim or right over the entire property of Mana thereby seeking to entirely debar the branch of Debra is not permissible in law.

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From the foregoing narration, it is evident that though this Court has found nothing wrong in the findings of the Courts below per se, yet it feels persuaded to interfere for the reason that the while rejecting the claim of the Plaintiff over the suit property, the concept of notional partition, as discussed in detail hereinbefore was not considered at all. As such, the Plaintiff representing the branch of Debra has been completely deprived of its legitimate and lawful share over the ancestral properties. In this context, this Court is constrained to observe that both the Courts below have proceeded only on the notion that female successors of tribal families are not entitled to any share whatsoever in the ancestral properties. From

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what has been narrated and discussed earlier, it is evident

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that such a view cannot be countenanced in law.

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From a conspectus of the analysis made thus, it is clear that the impugned judgements warrant interference by this Court. Resultantly, the appeal succeeds and is, therefore, allowed. The impugned judgments are set aside. The suit of the Plaintiff is preliminary decreed by holding her entitled to 1/3^rd share out of 1/2 share falling to the branch of Debra. Parties are directed to effect partition of the suit properties accordingly amicably and in the event of their failure to do so, they shall be at liberty to effect the same through the process of the Court.

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……..…………………..

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Sashikanta Mishra, Judge

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B.C. Tudu

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Signature Not Verified

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Digitally Signed Signed by: BHIGAL CHANDRA TUDU Designation: Senior Stenographer Reason: Authentication Location: Orissa High Court, Cuttack Date: 27-Aug-2024 20:11:49

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Gouri Hansda v. Dulla Majhi

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Gouri Hansda v. Dulla Majhi

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