Udit Narayan Pradhan (Dead) vs Seshadev Pradhan (Dead)
2023 Latest Caselaw 3610 Ori

      IN THE HIGH COURT OF ORISSA AT CUTTACK

                      RSA NO.474 OF 2014

(From the judgment and order dated 25th June, 2014 passed
by learned District Judge, Kalahandi, Bhawanipatna in R.F.A.
No.24/2012 and the judgment and decree passed by learned
Civil Judge (Sr. Division), Bhawanipatna, Kalahandi in C.S.
No.61/2009.

     Udit Narayan Pradhan (Dead)
     through his legal representative
     and others
                               ...     Appellants

                                  -versus-

      Seshadev Pradhan (Dead)
      through his legal representatives
      and others                ...     Respondents



  Advocates appeared in the case through hybrid mode:

         For Appellants : Mr. U.K.Samal,
                          Advocate

                                               -versus-

         For Respondents: Mr.Ashutosh Mishra,
                                       Advocate
  ---------------------------------------------------------------------------
         CORAM:

                        JUSTICE SASHIKANTA MISHRA

                                      JUDGMENT

18.4.2023.

Sashikanta Mishra,J. The Appellants, who were defendants in the

trial Court have preferred this appeal seeking to

challenge the judgment and decree passed by learned

District Judge, Kalahandi, Bhawanipatna on 25th

June, 2014 and 10th July, 2014 respectively in RFA

No.24/2012 whereby, the appeal was allowed in part

by modifying the judgment and decree passed by the

trial Court. The trial Court, being Civil Judge (Sr.

Division), Bhawanipatna by his judgment and decree

passed on 11th September, 2012 and 22nd September,

2012 respectively in C.S. No.61/2009 decreed the suit

of the Plaintiff for declaration and partition of the

schedule lands. For convenience, the parties are

referred to as per their status in the trial court.

Facts

2. The plaintiff9s case, briefly stated, is that the

property under Schedule 8B9 was his self-acquired

property though he had purchased the same in his

name along with the names of his brothers Defendant

No.1, Defendant No.2 and Biswajit Pradhan (his

deceased brother) vide R.S.D. No.2822 dated 22nd May,

1972. Plaintiff and the Defendant Nos.2,3 and 4 are all

sons of Defendant No.1.

3. In so far as the property under Schedule 8A9 is

concerned, it is claimed that the same is the ancestral

property of the parties, which Defendant No.1 had

received on partition from his brother Niranjan

Pradhan. The said partition was effected as the size of

family had increased and therefore, the co-sharers,

being the plaintiff and his brother Niranjan Pradhan

amicably partitioned the properties with each taking

half share with the intervention of local gentries in the

year 1970.

It is further claimed that though the Schedule 8B9

property was purchased in the names of the Plaintiff

and Defendant Nos.2, 3 and Biswajit Pradhan, the

Plaintiff parted the said land to Defendant Nos.1 to 3

and Biswajit Pradhan in lieu of the share of Defendant

No.1 in Schedule 8A9 lands. The said exchange was

reduced to writing. He further claims to have improved

and developed the Schedule 8A9 lands by transplanting

different trees and also earned income by selling

mangos and cashew nuts. He incurred an agricultural

loan of Rs.15980/- from Medinipur Service Cooperative

Society by mortgaging Ac.4.00 decs. out of Schedule 8A9

lands and repaid Rs.1420/- till 30th June, 2008. In

December, 2008 the Defendants asked the Plaintiff to

part with cashew nuts, mangoes and teak trees from

the Schedule 8A9 land, which being refused led to a

quarrel. The defendants asked him to vacate the

Schedule 8A9 land and forcibly trespassed thereupon.

Further, in order to grab the Schedule lands the

Defendants got the name of Defendant No.1 recorded

in the R.O.R. in Khata No.1 in respect of Schedule 8A9

and the names of Defendant Nos.2 to 4 recorded in

Khata No.38 under Schedule 8B9 behind the back of the

Plaintiff in the current settlement by gaining over the

settlement authorities. The Registered Sale Deed

No.1921/2009 dated 28th May, 2009 showing sale of

land by Defendant No.1 in favour of Defendant No.4 is

a manufactured document and the Mutation Case

No.952/2009 and the order passed thereon is invalid.

On such facts, the Plaintiff filed the suit seeking

declaration of his right, title and interest over the

schedule lands along with declaration that R.S.D.

No.1921/2009 is not binding on him with the

alternative prayer of partition of Schedule 8A9 land to

the extent of half share and Schedule 8B9 land to the

extent of 1/3rd share.

4. The case of the Defendants, apart from admitting

the relationship between the parties is that Defendant

No.1 (since dead) has 8 daughters and 4 sons. The

Schedule 8A9 land is ancestral land of Sundar Pradhan

and during his life time there was an amicable family

partition between Defendant No.1 and his brother

Niranjan Pradhan prior to 1955-56 settlement

Accordingly, the Sabik Settlement R.O.R. was recorded

in their favour. Defendant No.1 purchased an area of

Ac.30.32 decs. of land in Mouza-Sikerguda in the

name of his sons i.e., plaintiff, Defendant Nos.2 and 3

and his deceased son Biswajit Pradhan under R.S.D.

No.2822 of 1972 out of his own income. In the OLR

Revision Case No.141/1983 the plaintiffs did not raise

any objection claiming that that he had purchased the

land exclusively for which the Tahasildar,

Bhawanipatna had recorded the land in the names of

the Plaintiff and Defendant Nos.2 to 4. After marriage

of the Plaintiff in the year 1972, there was amicable

partition between the plaintiff and Defendants and

accordingly ROR was prepared in the names of the

brothers of the Plaintiff excluding Defendant No.1.

When they were living in joint mess, the daughter of

the plaintiff was given in marriage for which they spent

Rs.3 lakhs. Further, to arrange money for establishing

business at Bhawanipatna and Ambodala, Defendant

No.1 sold Ac.4.00 decimals of land in Mouza Sujanpur

in the year 1983 and lands measuring Ac.1.04 decs. in

the year 1990 for establishing a photo studio. It is thus

claimed that the Plaintiff has no right, title and interest

or possession over the land under Khata No.38

measuring Ac.25.24 decs. and due to financial

difficulties Defendant No.1 being the exclusive owner

of Schedule 8A9 lands sold it to Defendant No.4 on 28th

May, 2009 by receiving consideration amount of

Rs.3,09,500/- and delivered possession.

Findings of the Courts below

5. Basing on the pleadings, the trial Court framed 11

issues for determination. After appreciating the

evidence on record, the trial court decreed the suit in

part by declaring that the Registered Sale Deed

No.1921/2009 executed by Defendant No.1 in favour of

Defendant No.4 is not binding on the Plaintiff. The

trial Court further directed partition of Schedule 8A9

and 8B9 lands allotting half share in favour of the

plaintiff and 3/4th share in favour of the Defendants.

6. Being aggrieved, the Defendants carried the matter

in appeal. Learned 1st Appellate Court held that the

findings of the trial Court except Issue No.5 warrants

no interference. In so far as the finding on Issue No.5

is concerned, the 1st Appellate Court held that the

daughters of Defendant No.1 are also entitled to share

in Schedule 8A9 lands only. The appeal was accordingly

allowed to the extent of directing that the Plaintiff is

entitled to 1/12th share in Schedule 8A9 lands.

7. Being further aggrieved, the Defendants have

preferred the instant appeal, which was admitted on

the following substantial questions of law;

<(i)Whether the Courts below committed serious error/illegalities by declaring the execution of the Regd. Sale Deed No.1921 dated 28.5.2009 executed by Defendant No.1 in favour of Defendant No.4 as illegal which was executed as the 8Karta9 of the joint family properties for the legal necessity of the family?

(ii)Whether the shares of the co-sharers was properly allotted?=

8. Heard Mr. U.K.Samal, learned counsel appearing

for the Appellants and Mr. Ashutosh Mishra, learned

counsel appearing for the Respondents.

Submissions

9. It is argued by Mr. Samal that both the Courts

below have committed material illegality in holding

that the sale effected by Defendant No.1 in favour of

Defendant No.4 vide R.S.D. No.1921 dated 28 th May,

2009 (Ext.A) was not for any legal necessity and that

the scheduled properties are joint family properties.

Mr. Samal has referred to the evidence of Defendant

No.1(D.W.1) and of Defendant No.4 (D.W.2). He has

also referred to the evidence relating to the decree

passed in Bkg.P. 40/2010 by the learned Civil Judge

(Sr. Division) for payment of Rs.6,41,062/-. Mr. Samal,

therefore contends that the findings of the Courts

below on the fact of such overwhelming evidence

regarding absence of legal necessity for sale is

perverse. Mr. Samal alternatively argues that even if it

is held that the schedule properties are joint family

properties then the allotment of shares as made by the

Courts below is erroneous inasmuch as the property

covered under the sale deed shall remain valid to the

extent of the share of Defendant No.1. Mr. Samal has

relied upon the decision of the Apex Court in the case

of Sunil Kumar and another vs. Ram Parkash and

others; reported in (1988) 2 SCC 77 to contend that

the district of Kalahandi being part of the erstwhile

Central Province, the alienation even if found to be

unjustified would not be void to the extent of the

Karta9s share. As a corollary, the shares are required to

be re-allotted to the extent of granting 1/13th share to

the Plaintiff, Defendant Nos.1 to 4 and the 8 daughters

in respect of the Schedule 8A9 land. Defendant No.4

shall get 2/3rd share from such land in respect of

Schedule 8B9 land. It is contended that the share of

Defendant No.4 has not been allotted, which is wrong.

10. Per contra, Mr. A. Mishra has argued that both

the Courts below have, on appreciation of the oral and

documentary evidence, arrived at the positive finding

that there was no legal necessity for alienation of the

joint family properties. Moreover, the sale was effected

after institution of the suit and so also the Bank loan

obtained in relation to the money suit referred to by

the Appellants. Mr. Mishra further submits that since

the parties are governed by Banaras School of

Mitakshara law the sale made by a co-parcener of an

undivided property is void ab initio. Mr. Mishra has

relied upon the decision of this Court in the case of

Karunakar Rout @ Thatoi vs. Golak Bihari Biswal;

reported in 78 (1994) CLT 397. Mr. Mishra further

submits that presently Defendant No.1 having expired

the Schedule 8A9 property has to be divided into 12

parts with each co-sharer being allotted 1/12th share.

As regards Schedule 8B9 property Mr. Mishra fairly

submits that the Plaintiff and Defendant Nos.2, 3 and

4 are entitled to 1/4th share each.

Analysis and Findings:

11. In view of the rival submissions as noted above

and the substantial questions of law framed for

determination, it is evident that the question whether

the Schedule 8A9 property is available in its entirety for

partition among the co-sharers depends upon the

correctness of the finding of the Courts below

regarding the validity of the sale effected by Defendant

No.1 in favour of Defendant No.4 vide R.S.D. No.1921

dated 28.5.2009. Before proceeding further it would be

significant to note that the suit was filed with

presentation of plaint on 11.5.2009. The R.S.D. being

executed on 28th May, 2009 is thus a post-litem

transaction.

Be that it may, according to Defendant No.1, the

marriage of the plaintiff9s daughter namely,

Jyotirmayee was solemnised and he being the Karta of

the family had to incur the entire marriage expenses

for which he executed the sale deed in question in

favour of defendant No.4 for a consideration amount

of Rs.3,09,050/-. He further stated that for the

improvement and development of agriculture he

mortgaged the Schedule 8A9 land with the State Bank

of India, Bhawanipatna for financing a Tractor, but as

the loan amount could not be repaid in time, the Bank

instituted a suit against him for recovery of money

being Bkg.P. 40/2010. The status of the Appellant as

Karta of the family is not seriously disputed by any of

the parties. It is well settled that the Karta of the family

can alienate the undivided joint family property for

legal necessity. But then, existence or otherwise of

legal necessity is a matter of fact that needs to be

proved by the person claiming it by adducing cogent

evidence. It is also trite that mere recital of legal

necessity in the deed of sale would not, by itself, prove

its existence particularly when challenged by the other

side. The burden of proving the same is on the person

claiming legal necessity.

12. Viewed in the light of the position of law as above,

it is seen that the evidence on record does not at all

support the plea taken by the Defendant No.1 that

there was legal necessity to sell the property. Firstly,

the sale was lis pendens and therefore, its validity, if at

all, has to abide by the result of the suit. The First

Appellate Court took pain to go through the certified

copy of the plaint in the money suit (Ext.F) and found

that a loan of Rs.4,69,000/- was obtained by

Defendant Nos.1 and 4 in the year, 2006 in which the

plaintiff was the guarantor. Under such circumstances,

the First Appellate Court expressed surprise and

according to this Court rightly so, as to how Defendant

No.4 could pay Rs.3,09,500/- as sale consideration

without repaying the loan taken by both of them. In

the recitals of the sale deed (Ext.A/Ext.10), it is

mentioned that the Defendant No.1 was faced with the

need to meet his medical and household expenses, but

no evidence worth the name showing either the

medical or household expenses was adduced. On such

findings the First Appellate Court was persuaded to

confirm the finding of the trial Court that the sale in

question was not for any legal necessity. After perusing

the evidence, this Court finds no reason to differ from

the Courts below in this regard.

13. As regards, the validity of such a sale i.e. by the

Karta without legal necessity, Mr. Samal has argued

that the same would be valid to the extent of the share

of the Karta i.e., Defendant No.1. He has relied upon

the case of Sunil Kumar and another (supra) in this

regard wherein it was held that;

<xxx xxx xxx xxx

If the alienation is found to be unjustified, then it would be declared void. Such alienations would be void except to the extent of Manager's share in Madras, Bombay and Central Provinces. The purchaser could get only the Manager's share.

xxx xxx xxx=.

On such basis Mr. Samal submits that since

Kalahandi was part of the erstwhile Central Provinces,

the above ratio would be applicable.

14. In the case of Karunakar Rout (supra), this

Court has held that in a joint family governed by

Banaras School of Mitakshara law, the transfer of

property by an undivided co-parcener is void ab initio

and is not even valid to the extent of his share. There

is no dispute that the parties belong to the Banaras

School of Mitakshara. Thus, while there can be no

quarrel as regards the proposition laid down in Sunil

Kumar (supra), it must be noted that the same was

rendered in general keeping in mind the principles

followed in different regions of the country. The parties

would however continue to be governed by the School

of law to which they relate to irrespective of their place

of residence.

15. In such view of the matter, the finding of the First

Appellate Court that the sale was void ab initio is

absolutely correct. Therefore, this Court would answer

the substantial questions framed to the effect that the

Courts below committed no illegality in declaring the

execution of R.S.D. No.1921 dated 28th May,2009 by

Defendant No.1 in favour of Defendant No.4 as illegal.

16. As regards the second substantial question of

law framed in this appeal, it is seen that both the

Courts below have held that Schedule 8A9 property,

originally belonging to their common ancestor is

coparcenary property having been received by

Defendant No.1 on partition from his brother. In so far

as Schedule 8B9 Property is concerned, both the Courts

below have held on the basis of evidence on record that

the same was purchased by Defendant No.1 from out

of his own funds with contribution from the Plaintiff.

Since Defendant Nos.2, 3 and Biswajit Pradhan

(deceased brother) were the sons of Defendant No.1,

both the Courts below presumed that Defendant No.1

must have contributed their share in the purchase of

the property and therefore, the property stood recorded

jointly in their names. After scanning the evidence on

record independently, this Court finds nothing wrong

in the aforementioned findings of the Courts below.

Thus, this Court also holds that the Schedule 8B9

property is joint family property in the hands of the

Plaintiff and Defendant Nos.1 to 4.

17. Coming to the allotment of shares, in view of the

finding that the property under Schedule 8A9 is

coparcenary property the same is liable to be

partitioned equally among all co-sharers. Since the

Defendant No.1 has died in the mean time, the

property under Schedule 9A9 shall be allotted to the

Plaintiff and other Defendants @ 1/12th share each. In

so far as the property under Schedule 8B9 is concerned,

it is seen that both the Courts below, despite observing

that the property is joint family property, failed to allot

any share to defendant No.4 whose name was

subsequently recorded in the ROR. Thus, this Court

holds that the Plaintiff, Defendant Nos.2, 3 and 4 are

all entitled to 1/4th share each of Schedule 8B9.

18. In the result, the appeal is allowed in part. The

impugned judgment and decree passed by the lower

appellate Court is modified to the extent of allotment of

shares in respect of the Schedule 8A9 and Schedule 8B9

properties in the manner depicted in paragraph-17 of

this judgment.

.................................. (Sashikanta Mishra) Judge

Ashok Kumar Behera