Orissa High Court
Sri Edla Neelaya vs Edla Ram Das And Others on 27 August, 2021
IN THE HIGH COURT OF ORISSA AT CUTTACK
A.H.O. Nos.96 of 1994 and 69 of 1995
In A.H.O. No.96 of 1994
Sri Edla Neelaya .... Appellant
Mr. Ramakanta Mohanty, Senior Advocate
-versus-
Edla Ram Das and others .... Respondents
Mr. A.K. Mishra, Advocate
In A.H.O. No.69 of 1995
Smt. Ydla Balanagamma .... Appellant
Mr. Gautam Mukherji, Senior Advocate
-versus-
Edla Ram Das and others .... Respondents
Mr. A.K. Mishra, Advocate
CORAM:
THE CHIEF JUSTICE
JUSTICE B.P. ROUTRAY
ORDER
27.08.2021
Order No.
40. 1. Both these letter patent appeals challenge an order dated 6th
April 1994 of the learned Single Judge of this Court in First
Appeal No.316 of 1983.
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2. The above first appeal was filed by Defendant Nos.1, 2 and
4 to 6 in Title Suit No.10 of 1979 filed in the Court of Sub-
Judge, Paralakhemundi for partition of the properties of late
Sri Edla Neelaya.
3. The background facts are that the aforementioned Title Suit
No.10 of 1979 was filed by Respondent Nos.1 to 3 i.e. Edla
Ram Das, Edla Subba Rao and Edla Laxman Rao, the children
of the first wife of Edla Neelaya. It was stated that there was a
dispute between their parents which was settled and their
father Edla Neelaya had given some properties to their mother
towards her maintenance. The said properties were not
brought to the hotchpotch. They claimed that their father had
at different times purchased properties in the name of the
second wife i.e. Smt. Chinnammi and himself and that all
these were joint family properties. They claimed partition and
3/4th share in the properties described in Schedules 'A', 'B' and
'D' to the plaint.
4. The Defendants on the other hand claimed that the
aforementioned properties were the self-acquired properties of
Edla Neelaya-Defendant No.1. They claimed that as far as the
ancestral properties are concerned, after the partition effected
between himself and his brothers, Edla Neelaya had sold away
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0.80 cents of dry land. The remaining 0.57 cents of wet land
was given away to the first wife in 1967 itself.
5. The trial court by its judgment dated 26th April 1983
decreed the suit in part by holding that item 1 Schedule A was
a separate property as it was found to be self-acquired. The
trial court proceeded to hold that Defendant No.2-Smt.
Chinnammi was not a legally wedded wife of Edla Neelaya-
Defendant No.1 and that their sons were illegitimate. It
declared that the Plaintiffs had 3/4th share and Edla Neelaya
had 1/4th share in the remaining schedule properties.
6. Aggrieved by the above decree, Defendant Nos.1, 2 and 4
to 6 preferred First Appeal No.316 of 1983. The Plaintiffs also
preferred a cross-objection. In the impugned judgment dated
6th April 1994, learned Single Judge concluded as under:
"(i) Plaintiffs, defendant No.1 and mother of
plaintiffs would have equal share in the
properties mentioned in B and C schedule
properties and properties in A schedule
excepting item No.1 thereof and properties
covered under Ext.3;
(ii) Properties under Ext.3 shall be allotted to
defendant No.1 and plaintiffs with their mother
will have share in respect of the value of the
same to be adjusted from other properties falling
to share of defendant no.1;
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(iii) Item 1 of Schedule-A is self acquisition of
defendant No.1 which would be excluded from
partition;
(iv) Properties in Schedule-D are not available
for partition. However those properties would be
valued and plaintiffs with their mother will be
entitled to equal share in the consideration along
with defendant No.1. In lieu of such amounts
falling to the share of plaintiffs and their mother
they shall got land falling to share of defendant
No.1 in the final decree proceedings. It goes
without saying that plaintiff shall be entitled to
accounts of the properties to share profits arising
out of the same if applied for in the final decree
proceeding."
7. Aggrieved by the above decision, the aforementioned
Defendants have further filed the present appeals. The first
one i.e. A.H.O. No.96 of 1994 is by Edla Neelaya-Defendant
No.1 and his sons through his second wife and A.H.O. No.69
of 1995 is by Smt. Edla Chinnammi, the second wife of Edla
Neelaya. During the pendency of these appeals, many of the
parties have expired and have been substituted by their
respective legal representatives. The consolidated cause titles
of both the appeals have been filed upon such substitution.
8. The following substantial questions of law arise for
determination in the present appeal:
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(i) Did the trial Court and the first appellate Court err in
placing the onus of proof on the Defendants in the suit when
the Plaintiffs were seeking a declaration that the suit
properties (other than Item 1 in Schedule A to the plaint) were
not the self-acquired properties of the father but joint family
properties?
(ii) Were the trial Court and the first appellate Court right in
law in proceeding on the basis that the Defendants in the suit
were the illegitimate children and therefore disentitled to the
properties of the father?
9. This Court has heard the submissions of Mr. Gautam
Mukherji, learned Senior Counsel and Mr. Ramakanta
Mohanty, learned Senior Counsel appearing for the respective
Appellants and Mr. A.K. Mishra, learned counsel appearing
for the Respondents in both the appeals.
Question (i)
10. One of the first issues that arises for consideration in the
present appeals, which are effectively second appeals, is
whether the plaint 'A' schedule properties acquired under
Ext.5/Ext.B in the suit are the self acquired properties of Edla
Neelaya, the original Defendant No.1 in the suit or were they
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acquired through the joint family funds? On this aspect, the
finding of the trial court is relevant. These were addressed as
issue Nos.3, 4 and 5. The case of the Plaintiffs was that the
said properties had been acquired by them jointly with their
father i.e. Edla Neelaya with their joint help, labour and
assistance although the sale deeds stood in the name of their
father, who was the Karta of their family. The trial court
quoted the decision in Fakir Chand Das v. Jagabandhu Das
I.L.R. 1975 (Cuttack) 42 which correctly noted that the
members of a Hindu Mitakshara family consisting of father
and sons are presumed to be joint and that "the onus is upon
him who sets of a case of partition."
11. After noticing the above legal position, the trial court
inexplicably and erroneously proceeded to observe that "the
cause in this suit is definitely on defendant No.1 to prove that
the suit schedule properties both movable and immovable
exclusively belong to him which has been acquired by him by
his own labourer and his sons (plaintiffs) have not contributed
any labour nor they have assisted him in the acquisition of
those properties."
12. It appears to this Court that this is where the error first
crept in. Instead of placing the onus on proving that schedule
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A properties were in fact acquired on account of the joint
funds of the family, the trial court placed the onus wrongly on
Defendant No.1. The same error was carried into the judgment
of the first appellate court. Learned Single Judge held that
there was force in the contention of learned counsel for the
Appellants that the Plaintiffs were "minors when the
properties were acquired", and there was "acceptable evidence
that Defendant No.1 had independent source of income other
than the joint family properties." Yet, reliance was placed on a
so called admission in the suit for partition involving Edla
Neelaya and his brothers where Edla Neelaya is supposed to
have stated that "these properties are the acquisitions of
Defendant No.1-Edla Neelaya and his three sons." It was
erroneously held that 'admission' had not been explained by
the Defendants.
13. As rightly pointed out by both Mr. Mukherji and Mr.
Mohanty, learned Senior Advocates for the respective
Appellants, both the trial court as well as the first appellate
court appeared to have overlooked the source of acquisition of
the 'A' schedule properties which is the document at
Ext.B/Ext.5 which is in Telugu and which clearly states that
those properties have been paid for only by Edla Neelaya. It
was bestowed upon him personally without any mention of
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the involvement of the family of nucleus. A permanent right
of tenancy was created in favour of Edla Neelaya out of the
compromise in the Orissa Land Revenue Proceedings between
the landlord and the tenant. Clearly, such acquisition could not
have been equated with acquisition of land with the help of a
joint family nucleus. The document is of the year 1970 when
the Plaintiffs were not even born. The question of their
contribution to such acquisition simply did not arise.
14. Indeed, the trial court has contradicted itself. On the one
hand, it has held 'A' schedule property is not amenable to
partition as it is the self-acquired property of Defendant No.1.
Items 1 and 3 of the A schedule property are in fact identical.
It is therefore anomaly that the trial court has allowed the
partition of Item No.3 and not of Item No.1.
15. It appears that the evidence on record has been completely
overlooked and even the wrong principle has been applied by
the trial Court as well as the first appellate Court by shifting
the burden of proof from the Plaintiffs who set up a case of a
joint family property to the Defendants who had throughout
maintained that they were self-acquired properties.
16. Question (i) is accordingly answered in the affirmative.
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Question (ii)
17. Before proceeding to discuss Question (ii) it must be
noticed that it was wholly unnecessary for the trial court to
have ventured into this issue. The discussion hereafter
proceeds on the demurer that even if the validity of the
marriage of Defendant No.1 with the second wife were to be
doubted, it would not affect the right interest and title of the
present Appellants.
18. In Smt. Parayankandiyal Eravath Kanapravan Kalliani
Amma v. K. Devi 1996 (I) OLR (SC) 598, the Supreme Court
has held that both legitimate and illegitimate children are to
get shares of the property. The question of depriving children
born of a voidable marriage in terms of Section 16 of the
Hindu Marriage Act does not, after the clear exposition of the
law in the above judgment, arise. While upholding the vires of
Section 16 of the Hindu Marriage Act, the Supreme Court
observed as under:
"80. Section 16 contains a legal fiction. It is by a
rule of fictio juris that the legislature has
provided that children, though illegitimate, shall,
nevertheless, be treated as legitimate
notwithstanding that the marriage was void or
voidable.
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81. When an Act of parliament or a State
Legislature provides that something shall be
deemed to exist or some status shall be deemed
to have been acquired, which would not have
been so acquired or in existence but for the
enactment, the Court is bound to ascertain the
purpose for which the fiction was created and the
parties between whom the fiction was to operate,
so that full effect may be given to the intention
of the legislature and the purpose may be carried
to its logical conclusion. (See: M/s JK Cotton
Spg. and Wvg. Mills Ltd. v. Union of India: JT
1987 (4) SC 421: AIR 1988 SC 191: American
Home Products Corporation v. Mac
Laboratories: (1986) 1 SCC 456: AIR 1986 SC
137).
82. Lord Asquith in East End Dwellings Co. Ltd.
v. Finsbury Borough Council: (1952) AC 109 B:
(1951) 2 All ER 587 observed that when one is
bidden to treat an imaginary state of affairs as
real, he must surely, unless prohibited from
doing so, also imagine as real the consequences
and incidents which inevitably have flowed from
it- one must not permit his 'imagination to
boggle' when it comes to the inevitable
corollaries of that state of affairs. [See also M.
Venugopal v. Divisional Manager, LIC (1994) 2
SCC 323.]
83. In view of the legal fiction contained
in Section 16, the illegitimate Children, for all
practical purposes, including succession to the
properties of their parents, have to be treated as
legitimate. They cannot, however, succeed to the
properties of any other relation on the basis of
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this rule, which in its operation, is limited to the
properties of the parents."
19. Question (ii) is accordingly answered in favour of the
Appellants by holding that the trial Court and the first
appellate Court were wrong in law in proceeding on the basis
that the Defendants in the suit were the illegitimate children
and therefore disentitled to the properties of the father.
20. Consequently, the judgments of the trial court and the first
appellate court are erroneous both in law as well as in fact and
are required to be set aside.
21. It may be noted here that both Edla Neelaya and his two
wives are no more and they have been substituted by the
children of both wives and their legal representatives.
Therefore, all children both the legitimate and illegitimate of
Edla Neelaya and his wives are entitled to their respective
shares in accordance with law.
22. For all of the aforementioned reasons, the judgments of
the trial court and the first appellate court to the above extent
are set aside. The appeals are allowed. But, in the
circumstances, with no order as to costs.
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23. An urgent certified copy of this order be issued as per
rules.
(Dr. S. Muralidhar)
Chief Justice
( B.P. Routray )
Judge
S.K. Guin
