Orissa High Court
Japamali Bhaisa And Others vs Harekrushna Ghusi And Others on 24 January, 2022
IN THE HIGH COURT OF ORISSA AT CUTTACK
RSA No.205 Of 2018
(Through video conferencing mode)
Japamali Bhaisa and others .... Appellants
Mr. A.K. Mohanty, Advocate.
-versus-
Harekrushna Ghusi and others .... Respondents
CORAM: JUSTICE ARINDAM SINHA
ORDER
Order 24.01.2022
No.
3. 1. Mr. Mohanty, learned advocate appears on behalf of appellants.
He submits, his clients were plaintiffs. They were unsuccessful in both
Courts below.
2. He submits, the short point is whether there could be made a
gift of a part of unpartitioned joint family property. He submits, the
common ancestor was Bati Bhaisa. Said ancestor left behind two sons,
Ujagar and Barun. Barun had one son Dinabandhu Bhaisa.
Dinabandhu had a daughter, who in turn had three sons. Dinabandhu
executed gift in respect of suit property in favour of one of the sons
(defendant no.1) of his daughter. Since there was no partition of the
ancestral property left behind by the common ancestor, no part of it
// 2 //
could have been transferred by way of gift. Hence, claim in suit for
declaration, cancellation and permanent injunction.
3. Issue nos. 3, 4, 5 and 6 as appearing in judgment of the trial
Court are reproduced below:
"(III) Whether there is any cause of action?
(IV) Whether the registered gift deed executed by
Dinabandhu Bhaisa and his wife on dtd. 02.06.72
and corrected on dtd.17.11.72 in favour of defendant
No.1 is valid one and is the gift duly accepted?
(V) Whether the ancestral properties are mutually
partitioned by metes and bounds among the Bati
Bhaisa and the co-shares possessed their respective
share separately?
(VI) Whether the plaintiffs have right, title and
interest over the suit land?"
4. The trial Court analyzed pleadings, evidence and arguments of
the parties before it. It appears from the judgment, inter alia, as
follows:-
(i) D.W.1 deposed that all ancestral properties
belonging to Bati Bhaisa were mutually partitioned
by metes and bounds amongst his successors, prior
to year 1940.
// 3 //
(ii) Said witness further deposed, Dinabandhu
Bhaisa and his wife executed gift deed in his favour
on 2nd June, 1972, registered on the same day in
respect of a portion of the lands that fell to share of
Dinabandhu's father (Barun) in the amicable
partition.
(iii) D.W.3 and 4 were independent witnesses, who
said that they have seen suit land and same is
possessed by defendant no.1 by virtue of the gift
deed.
(iv) On behalf of plaintiff it was argued that the suit
is not a suit for complete partition but is only in
respect of land corresponding to the gift deed.
(v) Exts. Q, R and S tendered by defendant no.1
clearly show there was amicable partition between
co-sharers and that they were possessing lands
separately. Furthermore, plaintiff no.1 admitted in
the plaint that after death of Bati Bhaisa, his next
successor as per the genealogy are possessing few
undivided, unequal parcel of lands respective of
quality and quantity, among themselves by amicable
settlement.
(vi) View expressed by judgment reported in 2014
(1) CLR 327 on presumption of partition was relied
upon.
// 4 //
5. Appellants on their own say they have not filed for partition.
On the contrary they have filed for declaration that the gift could not
have been made since there had not been partition. Both Courts below
appear to have concluded on presumption of amicable partition
asserted by defendant no.1 as supported by Exts. Q, R and S being
sale deeds executed individually by some co-sharers in respect of parts
of claimed undivided ancestral property. As such, there does not
appear to be any substantial question of law in relation to appreciation
of pleadings or evidence as made by the Courts below, involved for
admission of the appeal.
6. There is no substantial question of law involved in the appeal
and it is dismissed.
(Arindam Sinha)
Judge
Sks
