Orissa High Court
(In The Matter Of An Appeal Under ... vs Ramdhar Tandi And Others on 10 November, 2023
IN THE HIGH COURT OF ORISSA AT CUTTACK
SA No.281 of 1997
(In the matter of an appeal under Section 100 of the Code of Civil Procedure, 1908)
Pakhan Majhi and others .... Appellants
-versus-
Ramdhar Tandi and others .... Respondents
Appeared in this case by Hybrid Arrangement
(Virtual/Physical Mode):
For Appellants - Mr. B.Das,
Advocate.
on behalf of
Mr.N.C.Pati,
Advocate.
For Respondents - Mr. P.K.Swain,
Advocate.
CORAM:
MR. JUSTICE A.C.BEHERA
Date of Hearing :31.10.2023 :: Date of Judgment :10.11.2023
A.C. Behera, J. This Appeal has been preferred by the Appellants
against the reversing judgment.
2. The Appellants were the defendant Nos.1 to 5 in the suit vide T.S.
No.34 of 1991 and they were the Respondent Nos.1 to 5 in the First
Appeal vide T.A. No.10 of 1994.
The Respondent Nos.1 to 3 were the plaintiffs in the suit vide T.S.
No.34 of 1991 and they were the Appellants in First Appeal vide T.A.
No.10 of 1994.
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The Respondent Nos.4 to 8 were the defendants Nos.6 to 10 in the
suit vide T.S. No.34 of 1991 and they were the Respondent Nos.6 to 10 in
First Appeal vide T.A. No.10 of 1994.
3. The suit vide T.S. No.34 of 1991 of the plaintiffs was a suit for
declaration.
4. The case of the plaintiffs (those are the Respondent Nos.1 to 3 in
this Second Appeal) before the Trial Court in T.S. No.34 of 1991 against
the defendants was that, their common ancestor was Biswanath Tandi.
The said Biswanath Tandi died leaving behind his son Khageswar Tandi
as his successor. Khageswar Tandi died leaving behind the plaintiffs
along with Defendant Nos.6 to 10 as his successors.
The suit properties are the joint and undivided properties of the
plaintiffs and defendant Nos.6 to 10. The suit properties were originally
belonged to their predecessor Biswanath Tandi. After the death of
Biswanath Tandi, the suit properties devolved upon his son Khageswar
Tandi. After the death of Khageswar Tandi, the suit properties devolved
upon the plaintiffs and defendant Nos.6 to 10 by way of succession.
Accordingly, the suit properties are the joint and undivided properties of
the plaintiffs and defendant Nos.6 to 10. The suit properties have not been
partitioned among them through meets and bound partition. The suit
properties being the joint and undivided properties of plaintiffs and
defendant Nos.6 to 10, the same is under their joint possession. After the
death of Khageswar Tandi on 01.11.1989, the defendant Nos.1 to 5
created disturbance in the possession of the plaintiffs and defendant
Nos.6 to 10 over the suit properties calming that, their predecessor Abhi
Majhi has purchased the suit properties from the wife of Khageswar
Tandi (defendant No.6). But, the defendant No.6 neither had executed
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any sale deed for selling of the suit properties to the predecessor of the
plaintiff Nos.1 to 5 i.e. Abhi Majhi nor defendant No.6 had Authority to
sale the suit properties to Abhi Majhi without the consent and approval of
the plaintiffs and defendant Nos.7 and 10. Because, the plaintiff and
defendant Nos.7 to 10 are the co-owners of the suit properties with the
defendant No.6. So, any sale by the defendant No.6 in respect of the suit
properties in favour of the predecessor of the defendant Nos.1 to 5 i.e.
Abhi Majhi does not confer any right, title, interest and possession over
any portion of the suit properties in favour of Abhi Majhi or defendant
Nos.1 to 5. Therefore, the plaintiffs approached the Civil Court by filing
the suit vide T.S. No.34 of 1991 praying for declaration of the joint title
of the plaintiffs and defendant Nos.6 to 10 over the suit properties.
Out of the defendants, only the defendant No.3 i.e. one son of the
Abhi Majhi contested the suit of the plaintiffs by filing his written
statement. But, the other defendants were set ex parte.
The defendant No.3 challenged the suit of the plaintiffs by taking
his stands in his written statement that, after the death of the Khageswar
Tandi, the defendant No.6 being his widow, she was in possession over
the suit properties left by Khageswar Tandi. For the welfare and benefit
of the family, she defendant No.6 (widow of Khageswar Tandi) sold the
suit properties to the predecessor of the defendant Nos.1 to 5 i.e. Abhi
Majhi by executing and registering a sale deed on dated 27.01.1982 for
consideration of Rs.9,500/- after obtaining permission from the
Competent Authority for selling of the same. Accordingly, after
purchasing the suit properties from the defendant No.6, said Abhi Majhi
was the exclusive owner and in possession over the suit properties. Abhi
Majhi had also mutated the suit properties into his name. While Abhi
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Majhi was the exclusive owner over the suit properties, he (Abhi Majhi)
expired leaving behind the defendant No.1 to 5 as his successors. After
the death of Abhi Majhi, the suit properties devolved upon the defendant
Nos.1 to 5. Accordingly, the defendant Nos.1 to 5 are the joint owner of
the suit properties and they are possessing the same jointly. For which,
the plaintiffs and defendant Nos.6 to 10 have no right, title, interest and
possession over the suit properties. Therefore, the suit of the plaintiffs is
liable to be dismissed.
5. Basing upon the aforesaid pleadings and matters in controversies
between the parties, altogether 5 numbers of issues were framed by the
Trial Court and the said issues are:-
Issues
(i) Whether the registered sale deed dated 27.01.1982 executed by
Defendant No.6 in favour of the Abhi Majhi is valid, genuine and binding
on her legal heirs?
(ii) Whether the plaintiffs and defendant Nos.6 to 10 have got any
right, title and interest over suit land?
(iii) Is there any cause of action?
(iv) Is the suit maintainable?
(v) To what relief?
6. In order to substantiate the aforesaid reliefs sought for by the
plaintiffs against the defendant Nos.1 to 5, plaintiffs examined one
witness from their side i.e. to the plaintiff No.1 as P.W.1 and relied upon
one document, vide Ext.1. But, on the contrary, the contesting defendant
No.3 examined three witnesses from his side including him (Defendant
No.3) as D.W.1 and relied upon series of documents on his behalf vide
Exts. A to F.
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7. After conclusion of hearing and on perusal of the materials,
evidence and documents available in the Record, the Trial Court
answered all the issues against the plaintiffs and in favour of the
defendant Nos.1 to 5 and on the basis of the findings and observations
made by the Trial Court in the issues against the plaintiffs, defendant
Nos.6 to 10 and in favour of the Defendant Nos.1 to 5 dismissed the suit
of the plaintiffs on contest against the defendant No.3 and ex parte
against other defendants through its judgment and decree giving
observations in issue No.1 that, since the transaction through sale deed
dated 27.01.1982 as per Ext.A (which was made by the defendant No.6
in favour of Abhi Majhi) has been backed by legal necessities and the
defendant No.6 was the absolute owner over the suit properties as per
Section 14(1) of the Hindu Succession Act, 1956, for which, the sale deed
executed by the defendant No.6 vide Ext.A in respect of the suit
properties in favour of Abhi Majhi is valid and genuine. So, Abhi Majhi
was the absolute owner of the suit properties on the basis of the sale deed
vide Ext. A and after the death of Abhi Majhi, the suit properties have
been devolved upon defendant Nos.1 to 5, as such, the defendant Nos.1 to
5 are the owners of the suit properties.
8. On being dissatisfied with the aforesaid judgment and decree of
dismissal of the suit vide T.S. No.34 of 1991 passed by the Trial Court,
the plaintiffs preferred the First Appeal vide T.A. No.10 of 1994 being
the Appellants against the defendant Nos. 1 to 5 by arraying them as
Respondent Nos.1 to 5 and also arraying defendant Nos.6 to 10 as
Respondent Nos.6 to 10.
9. After hearing from both the sides, the First Appellate Court
allowed the Appeal of the Appellants and set aside the judgment and
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decree of dismissal of the suit of the plaintiffs passed by the Trial Court
and decreed the suit vide T.S. No.34 of 1991 on contest against the
defendant No.3 and ex parte against other defendants and declared right,
title and interest of the plaintiffs and defendant Nos.6 to 10 over the suit
properties and also declared the sale deed dated 27.01.1982 vide Ext.A as
void. Because, the defendant No.6 had no authority for alienation of the
joint and undivided properties i.e. the suit properties of the plaintiffs and
defendant Nos.6 to 10, which had devolved upon them after the death of
their father Khageswar Tandi.
10. On being aggrieved with the aforesaid judgment and decree passed
by the First Appellate Court in T.A. No.10 of 1994 reversing the
judgment and decree of the suit vide T.S. No.34 of 1991 passed by the
Trial Court, the defendant Nos.1 to 5) challenged the same by preferring
this Second Appeal being the Appellants against the plaintiffs and
defendant Nos. 6 to 10 by arraying them as Respondents. This Second
Appeal was admitted formulating the substantial questions of law
indicated in ground Nos.2, 3 and 7 of the Appeal memo of the Appellants.
11. I have already heard from the learned counsel for the Appellant and
the Respondent.
12. It is the undisputed case of the parties that, the suit properties were
originally belonged to Biswanath Tandi. Biswanath Tandi died leaving
behind his only son Khageswar Tandi. Khageswar Tandi died leaving
behind his widow Balika Tandi (defendant No.6) along with his sons and
daughters i.e. plaintiffs and defendant Nos.7 to 10.
As per the sale deed vide Ext.A dated 27.01.1982, the widow of
Khageswar Tandi i.e. Balika Tandi (defendant No.6) alone has sold the
suit properties to the predecessor of the defendant Nos.1 to 5 i.e. to Abhi
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Majhi. The plaintiff and defendant Nos.7 to 10 have not sold the suit
properties to the Abhi Majhi. The sale deed vide Ext.A has been executed
by the defendant No.6 individually, but not as a representative of the
plaintiffs and defendant Nos. 7 to 10, because, there is no reflection about
the same in the sale deed vide Ext.A.
It is also the undisputed case of the parties that, the defendant No.6
alone has executed and registered the sale deed vide Ext.A dated
27.01.1982 in respect of the suit properties in favour of the Abhi Majhi.
It is clearly and unambiguously forthcoming from the oral and
documentary evidence of the parties that, the suit properties devolved
upon the plaintiffs and defendant Nos.6 to 10 simultaneously after the
death of Khageswar Tandi. Therefore, after the death of Khageswar
Tandi, the suit properties were the joint and undivided properties of the
plaintiffs and defendant Nos.6 to 10. But, the defendant Nos.6 has
alienated the entire suit properties to Abhi Majhi (predecessor of the
defendant Nos.1 to 5).
13. The law concerning the alienation of joint family properties by one
of the co-sharers like the defendant No.6 in this suit at hand and the effect
of such alienation has already been clarified by the Hon'ble Courts and
Apex Court in ratio of the following decisions:-
(i) AIR 1997 SC--1251 (SC)--Municipal Council Mandaspur
Vrs. Fakir Chand--Hindu Succession Act, 1956-Section 8--Where
brothers become owners of property only on death of their father, that,
indicates that, the property was not coparcenary property, but
undivided property of joint owners, who had inherited father's
interest.
(ii) AIR 1973 (SC) 2451-- Gorakh Nath Dubey Vrs. Hari
Narayan Singh and others, 1974(1) CWR-- 222---- Gana Nath
Sahu and another Vrs. Smt. Bulli Sahu and others-- Section 486 of
the T.P. Act, 1882--Section 54 and 44--Transfer of property more
than transferors interest in lands jointly held with others is not invalid
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in toto. It would be valid and operative to the extent of the transferor's
interest in the lands. Any alienation made in excess of power to
transfer would be to the extent of the excess of power is void.
(iii) 2021 (I) Civil Court Cases--62 (All) Smt. Geeta Devi Vrs. Om
Prakash and others--T.P.Act, 1882--Section 44 & 55 (6)--Transfer
by one co-owner--outsider, who has purchased share of co-sharer in
an undivided estate can seek possession of his share only through
partition.
14. Here in this suit at hand, the owner of the suit properties i.e.
Khageswar Tandi died leaving behind his four sons i.e. plaintiffs along
with defendant Nos.10 and three daughters (defendant Nos.7, 8 and 9)
along with his widow wife (defendant No.6).
In view of the principles of law enunciated in the ratio of the
aforesaid decisions, the plaintiffs and defendant Nos.6 to 10 had become
the joint owners over the entire suit properties left by Khageswar Tandi.
As plaintiffs and defendant Nos.7 to 10 have not alienated the suit
properties to Abhi Majhi, but, the suit properties have been alienated
through Ext.A only by defendant No.6 in favour of Abhi Majhi, then by
applying the principles of law enunciated ratio of the aforesaid decisions,
it is held that, the alienation of the entire suit properties made by the
defendant No.6 through Ext.A (sale deed dated 27.01.1982) in favour of
the Abhi Majhi is valid only to the extent of the share of defendant No.6
and invalid in excess of her share in the said properties. Because, as per
law, defendant No.6 had power to make alienation of the suit schedule
properties only to the extent of her share, but not more than that.
Therefore, the sale deed, vide Ext.A executed by the defendant
No.6 in respect of the entire suit properties cannot be held as invalid/void
in toto. Because, the sale made by the defendant No.6 in respect of the
suit properties through Ext.A is valid only to the extent of the share of the
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defendant No.6 in the suit properties, but not beyond her share therein.
Therefore, the findings and observations made by the First
Appellate Court declaring the sale deed vide Ext.6 as void in toto cannot
be sustainable under law. Because, that sale made by the defendant No.6
through the sale deed vide Ext.6 is valid only to the extent of the share of
the defendant No.6 over the properties covered under that deed. As per
law, the purchaser Abhi Majhi had become the co-owner over the suit
properties along with the plaintiffs and defendant Nos.7 to 10 by
purchasing the share of the defendant No.6 from the suit properties. So,
the successors of Abhi Majhi i.e. defendant Nos.1 to 5 have become the
joint owners over the suit properties with the plaintiffs and defendant
Nos.7 to 10 being the purchasers in respect of the undivided share of the
defendant No.6. Therefore, the declaration of the right, title and interest
of the plaintiffs over the total suit properties by the First Appellate Court
setting aside the judgment and decree of dismissal of the suit of the
plaintiffs passed by the Trial Court cannot be held entirely correct.
Because, as per the discussion and observations made above, the sale
deed vide Ext.A (executed by defendant No.6 in favour of Abhi Majhi in
respect of the suit properties) is not invalid/void in toto. But, that sale
deed vide Ext.A is valid only to the extent of share of the vendor i.e.
defendant No.6 over the properties covered in that deed and invalid/void
in respect of the alienations made therein in excess of her share.
Therefore, the plaintiffs are entitled for the decree of declaration of their
right, title and interest over the suit properties jointly along with the
defendant Nos.7 to 10 and defendant Nos.1 to 5. Because, the Defendant
Nos.1 to 5 have become the co-sharers of the suit properties with the
plaintiffs and defendant Nos.7 to 10 being the purchasers of the share of
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defendant No.6. So, the Appeal of the Appellants (defendant Nos.1 to 5)
is to be allowed in part, but, not in full.
15. In the result, the Appeal filed by the Appellants is allowed in part
against the Respondents, but without cost.
The judgment and decree passed by the First Appellate Court in
T.A. No.10 of 1994 are set aside in part and the same are partially
modified/ altered.
The judgment and decree of the dismissal of the suit of the
plaintiffs passed in T.S. No.34 of 1991 by the Trial Court is set aside.
The suit of the plaintiffs vide T.S. No.34 of 1991 is decreed in part
on contest against the defendant No.3 and ex parte against the defendant
Nos.1, 2, 4, 5 & 6.
The right, title and interest of the plaintiffs, defendant Nos.7 to 10
and defendant Nos.1 to 5 are declared jointly over the suit properties with
the clarification that, the defendant Nos.1 to 5 are the joint owners with
the plaintiffs and defendant Nos.7 to 10 over the suit properties only in
respect of the share of their vendor i.e. defendant No.6 Balika Tandi in
the suit properties.
(A.C. Behera),
Judge.
Orissa High Court, Cuttack.
10th November, 2023//Utkalika Nayak//
Junior Stenographer
Signature Not Verified
Digitally Signed
Signed by: UTKALIKA NAYAK
Designation: Junior Stenographer
Reason: Authentication
Location: High Court of Orissa
SA No.281 of 1997
