Rabindra Chandra Nayak vs Baidyanath Nayak (Dead) &
2023 Latest Caselaw 10493 Ori

        IN THE HIGH COURT OF ORISSA AT CUTTACK

                    SA No.229 of 1998

  Rabindra Chandra Nayak                 ....              Appellant
                                         Mr. K.C. Lenka, Advocate



                              -Versus-


  Baidyanath Nayak (Dead) &              ....          Respondents

Others Mr. D.P. Mohanty, Advocate CORAM:

JUSTICE R.K. PATTANAIK

DATE OF JUDGMENT:31.08.2023

1. Instant appeal under Section 100 of the Code of Civil Procedure, 1908 challenging the correctness of impugned judgment and decree dated 29th June, 1998 promulgated in Title Appeal No.74 of 1996 by the learned District Judge, Cuttack which confirmed the decision of the learned Civil Judge (Senior Division) Second Court, Cuttack in Title Suit No.256 of 1989 on the grounds inter alia that the same is not tenable in law being against the weight of evidence.

2. The appellant instituted the suit in T.S. No.256 of 1989 seeking partition of the schedule properties described in the plaint. The respondents contested the suit, filed WS and admitted immovable properties to be in jointness except to extent of Ac.0.657 decimal purchased by defendant No.1. It was pleaded that the properties under Schedule 'A' consist of both ancestral and self-acquired interest of the family. With respect to Ac.0.657 decimal of land of Schedule 'A', it was claimed to be the self- acquired interest of defendant No.1, hence, denying partition of

Rabindra Chandra Nayak Vrs. Baidyanath Nayak (Dead) & Others

the same. In other words, the claim of the appellant for a share in the land measuring Ac.0.657 decimal under Schedule 'A' was opposed and objected to on the ground that the same was acquired by defendant No.1 without any aid and assistance of the joint family. In respect of other schedule properties, stand was taken by the defendants with proper pleading. The learned court below with the pleadings on record framed as many as eight issues and answered it in chronology and preliminary decreed the suit in part on contest and directed the parties the effect partition of Schedule 'A' properties leaving aside Ac.0.657 decimals of land being the self-acquired interest of defendant No.1 with the allotment of 1/3 share each to the plaintiff, defendant No.1 and defendant No.2. The said judgment and decree dated 10th May, 1996 in T.S. No.256 of 1989 was challenged in appeal. However, the learned District Judge, Cuttack did not find any merit in the appeal and dismissed it. Being unsuccessful, the appellant approached this Court with the contention that the learned courts below committed serious illegality in passing the decree to the extent excluding the property in question by concluding it to be the self-acquired interest of defendant No.1.

3. Heard Mr. Lanka, learned counsel for the appellant and Mr. Mohanty, learned counsel for the respondents.

4. Mr. Lenka, learned counsel for the appellant submits that the contribution made by the appellant and also evidence on record prima facie proved that the alleged property is a joint interest of the family which was, however, excluded from partition treating the same as the self-acquired interest of defendant No.1 thereby leading to an erroneous finding. It is submitted that the impugned judgment and decree in appeal confirming said finding of the learned Trial Court with respect to the said property is not

Rabindra Chandra Nayak Vrs. Baidyanath Nayak (Dead) & Others

tenable in law and hence, liable to be set aside providing the appellant a share therein as well.

5. Mr. Mohanty, learned counsel for the respondents on the other hand submits that the decision of the learned Lower Appellate Court which confirmed the judgment and decree in the suit is perfectly justified and in accordance with which is based on the evidence on record. It is submitted that both the learned courts below did not find any evidence to accept the claim of the appellant that the property in question was acquired by defendant No.1 utilizing the joint family fund. Mr. Mohanty further submits that no evidence so adduced by the appellant could satisfy that the family had sufficient nucleus at the time of acquiring the property which is rather the self-acquired interest of defendant No.1, so therefore, such finding is to be confirmed again. In other words, Mr. Mohanty contends that there is no merit in the appeal and hence, it should be dismissed forthwith.

6. This Court by order dated 27th March, 1999 formulated the substantial question of law. The question which is chiefly to be considered by the Court is confined to the property left out of partition and whether the same to be the separate and self- acquired interest of defendant No.1 (deceased respondent No.1) or it belongs to the joint family?

7. In fact, the defendants admitted jointness of the family. The appellant is the son of deceased respondent No.1 and brother of respondent No.2, whereas, respondent No.3 is the latter's wife. All the respondents except respondent No.4 contested the suit, filed a joint WS, admitted the relationship, however, denied the claim of partition in respect of the property to an extent of Ac.0.657 decimal stating that the same was acquired by deceased respondent No.1 independently without utilizing the joint family

Rabindra Chandra Nayak Vrs. Baidyanath Nayak (Dead) & Others

fund. Apart from the principal question involved, the ancillary issues have been raised by the appellant which includes refusal to depute a Pleader Commissioner to make an inventory with respect to the homestead and other properties.

8. Schedule 'A' of the plaint relates to the immovable properties situate under Khata No.325 of village-Tilida under Salipur PS. So far as the property denied for partition is concerned, the same is claimed as the self-acquired interest of deceased respondent No.1 in respect of which a share is demanded by the appellant. Law is well settled that a Hindu family is presumed to be joint unless contrary is proved but not qua the properties. In the case at hand, there is no denial to the fact that the properties had not been partitioned previously. The bone of contention is over and in respect of the property to an extent of Ac.0.657 decimal only. Whether, said property was purchased by deceased respondent No.1 separately or it was acquired with the fund of joint family nucleus is to be examined. Law is also well settled that a decision as to whether a particular property was acquired with the assistance of the joint family fund or otherwise is essentially a question of fact and initial burden rests on the party claiming a share therein and once it stands discharged, the onus shifts to the other side to establish it to the contrary. Such a burden claiming a share in property having been purchased out of the joint nucleus is to be discharged by proving that the family had possessed of sufficient fund adequate for its acquisition. If there is evidence to show that the joint family was having sufficient nucleus to effectuate such purchase, a presumption may be attached it to be the property of the family and once proved, as earlier mentioned, the onus shifts to the other side to establish it as a self-acquired interest. The income of the joint family with evidence was considered by the learned Trial Court. The income from ancestral

Rabindra Chandra Nayak Vrs. Baidyanath Nayak (Dead) & Others

agriculture lands and other sources have also been taken judicial notice of. The claim of the appellant about his individual contribution could not, however, be proved by evidence. After a detailed discussion of evidence on the agricultural income on the basis of the annual yield, the learned Trial Court reached at a conclusion that the joint family did not have any surplus fund to purchase the said property. In other words, it was held by the court that the said property was acquired by deceased respondent No.1 out of his own income. In fact, the evidence revealed that deceased respondent No.1 was working at Kolkata and holding a Govt. post and retired in 1978 with a monthly pension. It is not a case that deceased respondent No.1, who is the father of the appellant, did not have any independent source of income. The agricultural yield and income detailed by the parties after spending towards the joint family was found inadequate so as to enable purchase of the property from any such common nucleus. The evidence could not establish as to the extent of surplus fund left with the joint family which could have been utilized for purchase of it. The evidence adduced by both the sides has been duly taken cognizance of by the learned Trial Court and finding on the property in question to be the self-acquired interest of deceased respondent No.1 has been found favour with by the learned Lower Appellate Court which, in the considered view of the Court, does not suffer from any serious legal infirmity. Furthermore, the Court finds that the request for deputing a Pleader Commissioner moved before the learned Trial Court was rejected. In fact, the court did not consider it necessary to engage a Pleader Commissioner for inventory purpose. The Court again does not find any error in the decision for not having appointed a Pleader Commissioner so requested by the appellant. The entire evidence was freshly looked into and examined by the learned Lower Appellate Court and the finding vis-a-vis the property not

Rabindra Chandra Nayak Vrs. Baidyanath Nayak (Dead) & Others

a part of partition was confirmed with a conclusion that the appellant cannot have any share therein being the independent and separate interest of deceased respondent No.1.

9. Being alive to the settled position of law and in absence of any such clear and unimpeachable evidence on record from the side of the appellant that there was surplus fund of the joint family after usual spending, the Court reiterates the view expressed by both the courts below that it has to be held as the separate and self-acquired interest of deceased respondent No.1 and not an ancestral coparcenary liable for partition with a share for the appellant therein. So, therefore, the conclusion is that the issues framed by the learned Trial Court have been correctly decided and confirmed in appeal. Consequently, the substantial question of law stands answered.

10. Hence, it is ordered.

11. In the result, the appeal sans merit and hence, dismissed.

(R.K. Pattanaik) Judge

TUDU

Signature Not Verified Digitally Signed Signed by: THAKURDAS TUDU Designation: Sr. Stenographer Reason: Authentication Location: OHC,CTC Date: 01-Sep-2023 18:27:47