Bishnu Bhukta (Since Dead) vs Kar
2021 Latest Caselaw 11503 Ori

                 HIGH COURT OF ORISSA, CUTTACK
                               R.S.A. NO. 423 OF 2014

           From the Judgment and decree dated 23.07.2014 passed by the
     learned District Judge, Boudh in RFA No.12 of 2013 confirming the
     judgment and decree dated 29.06.2013 passed by the learned Civil
     Judge (Jr. Division), Boudh in Civil Suit No.76 of 2011.
                                    .........

Bishnu Bhukta (Since Dead) through his LRs. :::: Appellants.

-:: VERSUS ::-

Ananta Dehury & Another :::: Respondents.

Advocate(s) who appeared in this case by hybrid arrangement (virtual/physical) mode.

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For Appellant :::: M/s. Bhaktahari Mohanty, D.P. Mohanty, R.K. Nayak, T.K. Mohanty & P.K. Swain, M. Pal, Advocates.

For Respondents :::: M/s. A.P. Bose, N. Hota, B.P. Saho & V. Kar, Advocates.

.........

CORAM:

THE HON'BLE MR. JUSTICE D.DASH

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Date of Hearing and Judgment :: 10.11.2021

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D.Dash, J. The Appellant, by filing this Appeal, under Section-100

of the Code of Civil Procedure, 1908 (for short, 'the Code') has

{{ 2 }}

challenged the judgment and decree passed by the learned District

Judge, Boudh in RFA No.12 of 2013.

By the said judgment and decree, the First Appellate

Court while dismissing the Appeal filed by the present Appellant

(defendant) under section 96 of the Code has confirmed the judgment

and decree passed by the learned Civil Judge (Junior Division), Boudh

in under Civil Suit No.76 of 2011.

The Respondents as the Plaintiffs had filed the suit for

declaration of their right, title, interest and confirmation of their

possession in the suit land with further declaration that the registered

deed of gift dated 02.09.1967 said to have been executed by their

maternal grandmother, namely, Sapura Dehuri in favour of Bilasha

Dehuri is illegal and void, so also the Will dated 12.04.2011 purported

to have been executed by Late Biranchi Dehuri in favour of the

Appellant-Defendant. Further, relief of permanent injunction has also

been sought for.

The Suit having been decreed, this Appellant-Defendant

which has also been dismissed.

{{ 3 }}

2. For the sake of convenience, in order to avoid confusion

and bring in clarity, the parties hereinafter have been referred to, as

they have been arraigned in the Trial Court.

3. The Plaintiff's case in short is that the land described in

the schedule of the plaint belong to one Barsana Bhukta who died

leaving his widow Sapura and four daughters namely, Budhubari,

Asha, Nirasa and Bilasa. Budhubari and Asha died issueless in the

year, 1970 and 1980 respectively. In the year 1983, Nirasa died

leaving as heir heirs, her two sons, the Plaintiffs. After the death of

the daughters of Barsana, the Plaintiffs succeeded to the property.

The Plaintiffs had filed Civil Suit No.56 of 2009 for

partition of the suit land arraigning Bilasha as the Defendant.

Bilasha died during the said suit and then her husband Biranchi

came to be substituted. He filed the written statement claiming

exclusive right over the suit land on the strength of one registered of

deed of gift dated 02.09.1967 covering the entire property standing

in favour of his wife, Bilasha which he inherited upon Bilasha's

death. With that stand being taken by the Biranchi, he, however,

died before that suit came up for adjudication. At that juncture, this

Defendant who is the nephew of Biranchi (sister's son) filed an {{ 4 }}

application for being impleaded as party to that Suit. He claimed his

right, title and interest over the suit land on the strength of a Will

dated 12.04.2011 executed by said Biranchi who was the receipient

under the deed of gift executed by Sapura in favour of his wife and

then on her death by inheritance. It may be stated here Defendant is

the sister's son of Biranchi.

Plaintiffs state that they had performed the funeral right

of both Bilasha and Biranchi. After death of Bilasha, they became

the owners of the same and possessed the same all along Stating the

Biranchi had no right to bequeath the property by executing the

Will in favour of the Defendant. The recording of the suit land

during pendency of the Suit in the name of Biranchi is said to be in

collusion with the Revenue Authority behind the back of the

Plaintiffs which had been challenged by carrying Mutation Appeal.

In view of all such developments coming to the notice of

the Plaintiffs as regards the claim based on the registered gift deed

and then again the Will, the said Suit being withdrawn by them,

with due permission, the present Suit claiming the reliefs as

aforesaid has been filed.

{{ 5 }}

4. The Defendant in his written statement traversing the

plaint averments has stated that the Plaintiffs as well as their

mother, Nirasa were well aware of the execution and registration of

the gift deed on 02.09.1967 and there was no objection from their

side at any point of time when they were also neither in possession

of the suit land nor paying the land revenue for the same. It is stated

that Biranchi after marrying Bilasha, stayed in the house of Sapura

as an illatom son-in-law and as such was cultivating suit land with

Bilasha. He and Bilasha were taking of the care of Sapura for which

being so satisfied Sapura had gifted away the suit land in favour of

Bilasha followed by delivery of possession. It is, thus, stated that

having obtained possession of the suit land by virtue of and under

that gift, Bilasha possessed the same. It is alleged that Nirasa was

residing in her in-laws house in a village standing at a distance of

70 kms. from the village where the suit land situates. She was not

taking care of her old parents. On the death of Bilasha, her husband

Biranchi with his nephew, the Defendant (Bishnu) had performed

her funeral ceremony. Bilash, during her lifetime as also Biranchi

out of love and affection and being satisfied with the care and

service of the Defendant, out of love and affection had decided to {{ 6 }}

bequeath the suit land in favour of the Defendant. But

unfortunately, Bilasha expired without executing the Will. So,

Biranchi, in a fit state of mind executed the Will on 12.04.2011

bequething the properties in favour of the Defendant. On the death

of Biranchi, the Defendant possessed the suit land as its absolute

owner and has been paying the rent. It is stated that no such fraud

has been practiced in preparation of the Will which had been

executed by Biranchi out of his own free Will and volition without

any influence whatsoever from any quarter in presence of witnesses

and as per law.

Thus, the Defendant has claimed his absolute right, title,

interest and possession over the suit land denying the claim of the

Plaintiffs over the same in any manner.

5. The Trial Court faced with above rival pleadings framed

as many as nine issues of which important are Issue nos. 6, 7 and 8.

Taking up all those for decision, on going through the evidence and

upon their examination, the finding has been rendered that the

registered gift deed dated 02.09.1967 and the Will dated 12.04.2011

are invalid and inoperative in the eye of law. It has finally been held {{ 7 }}

that the Plaintiffs have the right, title, interest and possession over

the suit land.

The defendants having thus suffered from the judgment

and decree passed in the Suit in decreeing the same granting the

reliefs to the Plaintiffs, had filed the First Appeal.

6. The First Appellate Court in addressing the rival

contentions raised before it, has firstly repelled the contention

raised from the side of the Defendant that the suit land devolved

upon the Sapura not by inheritance but by operation of law. Having

held so, it has been said that the devolution of the property on the

death of Barsana in the year 1959 would be governed under the

provision of Section-8 and Section-15(2) of the Hindu Succession

Act, 1956.

7. Next, it has been held that when Sapura with her four

daughters being Class-1 heirs together owned the properties having

equal shares; Sapura alone had no legal authority or competency to

gift away the entire property in favour of one daughter namely,

Bilasha without the consent of other three. So the action of Sapura

in gifting away the entire suit land over which her three daughter

had also equal right has not been found to be legal and within the {{ 8 }}

legal competency of Sapura. Accordingly, the finding of the Trial

Court that the registered gift deed dated 02.09.1967 is void and

inoperative has been accepted. Then coming to the Will, the testator

of Biranchi having been found to be having no right, title and

interest over the property covered under the Will, the said Will has

been held to be having no value in the eye of law and thus not even

worth the value of the paper written on.

With these findings, the First Appeal having been

dismissed the judgment and decree passed by the Trial Court

entitling the Plaintiffs to the reliefs claimed have been confirmed.

8. The Appeal has been admitted on the following

substantial question of law:-

"Whether on the face of the finding of the courts below that the deed of gift was duly executed by Sapura and it was also duly attested as per law, the courts below have fallen in error by not holding the said gift to be valid at least to the extent of the interest that the donor Sapura had over said property of Barsana?

9. Mr. D.P. Mohanty, learned Counsel for the Appellant

submits that Bilasha having executed the deed of gift which was {{ 9 }}

registered on 02.09.1967 (Ext.A) which has been proved by

leading, clear, cogent and acceptable evidence as to its execution

attestation and more importantly, the subsequent acceptance merely

because the entire suit property stood covered under the same, the

view cannot be taken that since the donor Sapura had no right over

the entire property; the gift deed so executed and proved is invalid.

He further submits that on the basis of the evidence on record, it has

to be held that Bilasha by the said gift of deed, Ext.A derived

interest of Sapura over the entire land of Barsana. He, thus, submits

that when Bilasha is found to have got the interest of Sapura that

she was having over the land of Barsana; notwithstanding the

validity of the Will executed by Biranchi whereby the Defendant

had been bequeathed with the property, the Defendant being the

heir of Biranchi is the owner of the said property as upon Bilasha's

death, the property had come to the hands of Biranchi as provided

in section 15(1)(a) read with section 16 of the Hindu Succession

Act and thus the Defendant being his sister's son stands to succeed

to the same. He thus submits that the suit of the Plaintiffs as laid

and for the reliefs claim ought to have been dismissed.

                                {{ 10 }}




10.              Mr.    A.P.    Bose,     learned   counsel    for   the

Respondents contends all in favour of the findings rendered by the

First Appellate Court. He submits that even without going to the

aspect of valid execution of the deed of gift, attestation and

acceptance as shown in evidence, it would be seen that on the date

of its execution by Sapura in the year, 1967, Nirasa, Asha and

Budhubari were alive. Thus she had no authority to gift away the

entire land that had come to her hands as well as upon the hands of

her four daughters. It is submitted that the equitable principle of law

that the sale of joint property made by one of the co-sharers, even if

that is not valid with respect to the land indicated in the sale-deed in

specific or even the entire joint property; it remains valid to the

extent of the share of the vendor has no applicability at all to a case

of gift and like a purchaser in case of farmer, the donor in case of

latter cannot institute a Suit for partition so as to carve out the share

of the donor and work out in adjusting up-to the extent of the share

of the donor and obtain a decree to that effect. He submits that the

impermissibility is because the most essential ingredient of gift as

to acceptance in such cases wholly lacks and is not at all legally

tenable. He further submits that in case of a gift, it cannot be held to {{ 11 }}

be valid in piecemeal, i.e., only with respect to part property or

some share that the donor has/had over the property as the case may

be. It has either to stand as a whole or not at all. He, therefore,

submits the finding that the gift deed, Ext.A is not cognizable in the

eye of law for any purpose whatsoever has to receive the

affirmation.

11. There stands no dispute with the factual position that the

property in suit originally belonged to Barsana Bhukta who died in

the year, 1959 leaving behind his wife-Sapura and four daughters.

On the death of Barsana, his widow Sapura and her four daughters

together inherited the property. Thus, on that date each had 1/5th

share over the suit property. It is said that Sapura in the year, 1967

had executed a deed of gift in favour of one of her daughters

namely, Bilasha who happens to be the wife of Biranchi. The first

question arises as to whether Sapura was competent and having the

authority to execute the entire land inherited by her with her four

daughters in favour of one of the daughters so as to clothe her with

the ownership over the entire property. The answer to this stands as

'No', with which of course Mr. Mohanty, learned counsel for the

Appellant has no disagreement. The next question stands whether {{ 12 }}

despite the fact that the deed of gift covering the entire property of

Barsana inherited by Sapura and her four daughters if has been duly

executed would stand valid and to the recognition in so far as

interest of Sapura over the suit land is concerned i.e. 1/5th of the

total extent of land.

There is a long catena of decision holding that the gift by

coparcener of his undivided interest in the coparcenary property is

void. It is not necessary to refer all these decisions instead it would

be suffice for the purpose in referring to the following statement of

law in Mayne's Hindu Law, 11th Edition Para 382:-

"382, Gift Invalid - It is now equally well settled in all the provinces that a gift or devise by a coparcener in a Mitakshara family of his undivided interest is wholly invalid. ..... A coparcener cannot make a gift of his undivided interest in the family property, movable or immovable, either to a stranger or to a relative except for purposes warranted by special texts."

Mulla's Hindu Law, 24th Edition Article-256 Para-405

which is as follows:-

"256, Gift of undivided interest- (1) According to the Mitakshara Law as applied in all the States, no coparcener can dispose of his undivided interest in {{ 13 }}

corparcenary property by gift. Such transaction being void altogether there is no estoppel or other kind of personal bar which precludes the donor from asserting his right to recover the transferred property. He may, however, make a gift of his interest with the consent of the other coparceners."

12. It is also settled law that a Hindu father or other

managing member has the power to make a gift within reasonable

limits of ancestral immovable property for 'pious purposes'. In case

of R. Kuppaya -V- Raja Gounder (2004) 1 SCC 295, the Hon'ble

Apex Court, examining the whole question, has held that it was

competent for a father to make a gift of immovable property to a

daughter, if the gift is of reasonable extent having regard to the

properties held by the family. The emphasis has been that the gift

must be of a 'reasonable extent'. Thus, on facts, in order to say that

it is invalid, it has to be found that it is beyond the reasonable limit.

This Court, in Tara Sahuani -V- Raghunath; AIR 1963 Ori 59, has

held that a father can make a gift of a small portion of ancestral

immovable property to his daughter at or after her marriage if the

extent of gift is reasonable and particularly if she is in poor

circumstances. In the given case for a moment, even taking Sapura {{ 14 }}

as the head and manager of the family, we sit over to view the

matter, the gift itself being in respect of entire property in the hands

of the five class 1 heirs; under no circumstance can be held to be of

reasonable extent which could have been taken up consideration

had it been with respect to a specific portion of reasonable extent.

13. Indisputably, the property of Barsana had not been

partitioned at any time during the lifetime of Sapura. The suit land

was under the joint ownership of Sapura and her four daughters. By

said act of the Sapura in executing the deed of gift in favour of

Bilasha, the consent has not been given at least by her rest three

other daughters who all were then alive. Sapura had only 1/5th

interest over the said suit land. Bilasha died on 14.01.2010. When

Sapura and her four daughters had inherited the property upon

death of Barsana as the Class-1 heirs even if it is taken that the

entire property was in possession of the Sapura in the eye of law,

the same is for and on behalf of all. The legal position stands to

recognize that each of the owners would be deemed to be having

the right and possession over every inch of the property till the

same is partitioned amongst them in metes and bounds and so

worked out.

{{ 15 }}

14. Section-122 of Transfer of Property Act, 1982 defines the

gift. It is the transfer of certain existing movable or immovable

property, made voluntarily and without consideration, by one

person, called the donor, to another, called the donee, and accepted

by or on behalf of the donee. Such acceptance must be made during

the lifetime of the donor and while he/she is still capable of giving.

Sapura was only having 1/5th interest over the property

and there was no partition amongst the five. So, Sapura cannot be

said to be having any definite property, as of her share with her

which could have only been worked out in a partition with others,

which is not the case here. Thus, here the interest of the donor over

the property would not got covered under the definition of gift as

most importantly, here in such a case the acceptance of the same by

the done cannot be found out being faced with uncertainty as to

which portion would be wholly wanting that which portion of the

property, the donee would be accepting to be the property gifted to

her. The legislature, therefore, while enacting section 30 of the

Hindu Succession Act has confined its operation to the Will or

other Testamentary Dispositions which do not include 'Gift'. It

would have been permissible for Sapura to go for a sale for {{ 16 }}

valuable consideration or a testamentary dispossession and will

whereby the vendee of the beneficiary under the transaction as the

case may be could have been equitably fed with the grant as would

be falling to the share of the executants within the extent as that of

his/her; though not however to the exact property described in the

transaction. That is the reason the purchaser of a portion of a joint

family property or joint property equitable remedy for filing a suit

for partition in getting the share of his vendor craved out and finally

getting the extent of his purchased land adjusted towards share of

vendor to the extent as far as possible.

For the aforesaid discussion and reasons in my

considered view the registered deed of gift said to have been

executed by Sapura on 12.09.1967 gifting away the property in suit

in favour of one of her daughter namely, Bilasha is neither valid in

its entirety nor can it be said to be valid up to the extent of her share

over the entire property belonging to her and her four daughters.

Under the given circumstance, Sapura was neither competent nor

was having the authority to make a gift of the property inherited by

her and her four daughters either in whole or even to the extent of

her interest.

{{ 17 }}

The answer to the substantial question of law thus is

returned against the sustainability of the said deed of gift executed

by Sapura.

14. Resultantly, the Appeal stands dismissed. No order as to

cost.

..........................

(D. Dash), Judge.

Narayan