Hatanagar Ghose And Others vs Durgamani Ghose And Others
2021 Latest Caselaw 11319 Ori

              IN THE HIGH COURT OF ORISSA AT CUTTACK
                          A.H.O. No.34 of 1998



            Hatanagar Ghose and Others               ....            Appellants
                                                     Mr. Avijit Pal, Advocate
                                    -versus-
            Durgamani Ghose and Others               ....          Respondents
                                                                       None


                      CORAM:
                      THE CHIEF JUSTICE
                      JUSTICE A.K. MOHAPATRA


                                       ORDER

Order No. 05.11.2021

11. 1. This appeal is directed against an order dated 23rd June 1998, passed by the learned Single Judge in First Appeal No.41 of 1979. By the said impugned order, the learned Single Judge dismissed the appeal thereby affirming the judgment dated 30th October, 1978 and decree dated 9th November, 1978 passed by the Subordinate Judge, Balasore in O.S. No. 50 of 1974-I.

2. The unsuccessful Plaintiff in the above suit, Shri Dayanidhi Ghose, was the Appellant before the learned Single Judge of this Court. Even at the time of filling of the first appeal, the other brother Shri Baina Ghose had expired. Aggrieved that the Plaintiff's plea was only partly allowed by the trial Court, First Appeal No.41 of 1979had been filed. Against the dismissal of the said F.A. No. 41 of 1979 by the learned Single Judge by the impugned order dated 23rd June, 1998, the present appeal was filed by the three sons and daughter of late Dayanidhi Ghose.

3. The background facts are that Baina and Dayanidhi Ghose were the two children of the second wife of the son of late Nandi Ghose who was the common ancestor. Of the two sons Pahali and Dhinu, the latter branch was extinct. Pahali had two wives. Ganesh was the son of the first wife and Baina (Defendant No.1), Nandu & Dayanidhi (the Plaintiff) were the children of the second wife. Ganesh died leaving four sons Abhinash, Krutibash, Kailash & Srinibas.

4. Kailash died leaving behind his widow Dhira, Defendant No.5 and daughter Jema alias Katibudhi (Defendant No.6). Baina's sons were Subodh (Defendant No.7), Jhadeswar (Defendant No.8), Banishidhar (Defendant No.9) and Isaneswar (Defendant No.10). Nandu died leaving his wife Padmabati, who was also died and therefore Nandu's branch had become extinct.

5. The dispute was therefore between the Plaintiff/Appellant on the one hand i.e. the Defendants/Respondents Nos.1 and 7 to 10 on the other hand.

6. The case of the Plaintiff-Appellant was that in an earlier partition, Ganesh took Ac 4.40 dec of land and was separated from the joint family. The property described in Schedule 'Kha' of the plaint were ancestral and those in "Ga" were the properties acquired in the name of Defendant No.1 as karta of the joint family out of the joint family nucleus. Earlier Padmabati, the widow of Nandu, had filed a partition suit i.e., O.S. No.53 of 1959 and by compromise the suit was decreed with her getting Ac. 1.88 dec of land in schedule 'Uan', cash of Rs. 4,000 and paddy.

7. The Plaintiff's case was that Defendant No.1 Baina Ghose had obtained a deed of partition dated 27th March, 1962 (Ext. 'N') under which he allegedly took a larger share than what he was entitled to. It was alleged that land of an area of Ac 10.00 which was joint family property was left out of the partition deed. The Plaintiff was allotted Ac13.00 dec of land in Schedule 'Kha' and 'Ga' Schedule property of Ac 4.00 was kept joint.

8. The trial Court upheld the validity of the partition deed (Ext 'N'). 'Ga' Schedule properties having been kept joint under the partition deed Ext N, were directed to be partitioned. The Plaintiff then filed the aforementioned F.A. No. 41 of 1979.

9. Two questions that were formulated for consideration in the first appeal by the learned Single Judge read as under:

"(1) Whether the deed of partition, Ext.N is legal, valid and binding on the plaintiff and if this question is answered in affirmative, whether the plaintiff is entitled to reopen partition in respect of the very same properties; and

(2) Whether the properties described in schedule 'Ga' of the plaint are the self-acquired properties of defendant No.1 or the same were acquired out of the joint family nucleus"

10. In the discussion on Question No.1, the learned Single Judge noted that in order to prove the execution of the deed of partition (Ext.N), Defendant No.2 was examined. His evidence could not be shaken in cross-examination. He confirmed that the deed was presented for registration and he identified the parties to the Sub- Registrar. It was accordingly held that the deed of partition was

valid and binding on the Plaintiff. Since there was amicable division of the properties between the Plaintiff and the Defendant No.1, the Plaintiff was not entitled to reopen the partition.

11. On Issue (2) the learned Single Judge also held that 'Ga' Schedule properties were the self- acquired properties of Defendant No.1 in which the Plaintiff has no share. Accordingly, the first appeal was dismissed.

12. In the present second appeal, the only substantive question of law is whether the First Appellate Court was right in holding 'Ga' Schedule properties to be the self-acquired properties of Defendant No.1?

13. It must be noted at the outset that although several of the parties, even some of those brought on record as legal representatives (LRs) have themselves expired and have had to be substituted, the LRs of the main contesting parties viz., the sons of Dayanidhi Ghose (Appellant Nos. 1, 2 and 3) and the daughter (Appellant No.4) and the LRs of Baina Ghose, the main contesting Defendant have been brought on record. The theory of 'substantive representation' was explained by this Court in Sarat Chandra Deb v. Bichitrananda Sahoo AIR 1951 Ori 212 where it was held that once the representation was proper, the decree was binding and could not be reopened. Consequently, while all the LRs/all the Respondents may not be present in these proceedings, since the main contesting parties in the suit are represented in the Court applies the doctrine of substantive representation and proceeds with the hearing of the appeal.

14. Mr. Avijit Pal, learned counsel for the Appellant focused only the property in 'Ga' which he pointed out was directed to be apportioned between the parties by the learned trial Court and against which finding there was no cross appeal preferred by the Defendant/Respondents.

15. Indeed it is surprising that the first appellate Court framed such a question as arising out of the judgment and decree of the trial Court. While the validity of the partition deed (Ext. N) had been questioned by the Plaintiff in the appeal, there was no challenge by the Defendant, which could have only been by way of a cross first appeal, against the finding of the trial Court that the properties in 'Ga' Schedule were to be apportioned between the two main contesting parties since they were ancestral properties. In fact this finding of the trial court was a natural corollary to finding that the partition deed was valid, since the 'Ga' Schedule properties were kept joint in the partition deed.

16. With there being no contest to the above submission of the Appellants, the Court accepts the plea that the learned Single Judge ought not to have held the property in Schedule 'Ga' to be the self-acquired property of the original Defendant. Once it was clear that the properties in 'Ga' were to be apportioned between the parties i.e. between the two brothers, it was incumbent on the learned Single Judge to have acknowledged that position and not framed an issue as regards the said properties in the first appeal.

17. For the aforesaid mentioned reasons, the question framed in para 11 of this judgment is answered in the negative i.e. in favour of the Appellants. The appeal is partly allowed to the above extent by clarifying that the properties in 'Ga' will be treated a joint and be partitioned between the two main contesting parties (and their respective LRs) as per the preliminary decree of the trial Court.

18. There shall be no order as to costs.

(Dr. S. Muralidhar) Chief Justice

(A.K. Mohapatra) Judge S.K. Jena/P.A.