w w w . L a w y e r S e r v i c e s . i n



Smt. Pakini @ Dalimba Naik & Others v/s Gajendra Patel (dead), Akshya Kumar Patel & Others

    F.A. No.18 of 1983 in Title Suit No.31 of 1978-1

    Decided On, 14 January 2011

    At, High Court of Orissa

    By, THE HONOURABLE MR. JUSTICE B.K. PATEL

    For the Appellants: U.C.Panda, S.S.Das, S.P.Mishra, B.Routray, K.B.Kar, R.C.Das, R.K.Das, D.P.Das, N.K.Sahu, B.Swain & P.Prusty, Advocates. For the Respondents: A.C. Mohanty, G.N. Rout, K.A. Guru, A.K. Mohanty, S.K. Mohapatra & T.K. Mohanty, Advocates.



Judgment Text

B.K.PATEL, J:

1. The unsuccessful Plaintiffs are in appeal against Judgment & decree passed by Learned Subordinate Judge (now Civil Judge, Senior Division), Sambalpur in T.S. No. 31 of 1978, a suit for partition.

2. It is not disputed that the suit land originally belonged to late Sriram Patel, the common ancestor of parties. Admitted genealogy of parties to the suit is as follows:

Sriram Patel1. Niranjan : Gajendra (D.1), Netrananda (D.2), Purna (D.3)

2. Sudarshan : Shyamsudar P.1, Biseswar, Mst. Sebati P.4, Mst. Surasti P.5, Kuber P.6

Biseswar : Wife- Mst. Mali P.2, Bhubaneswar P.3

3. Abhiram : Mst. Malabati P.7, Nrupalal P.8, Sobharam P.9, Gandhi Pr. D.4, Mst. Khira P.10, Mst.Kamala,P.11

During pendency of the suit Plaintiff No.1 died & was substituted by his daughter who is presently the Appellant No.1.

3. Plaintiffs filed the suit on the allegations that Plaintiffs’ predecessors of Plaintiffs & proforma Defendant No.4, namely, late Sudarshan & Abhiram were idiotic, simpletons, illiterate & of incomplete development of mind. The predecessor of the Defendants, namely, late Niranjan playing fraud, executed a document on 18.6.1924 (Ext.9), purported to be a deed of partition, allotting major share for himself & such partition was allegedly acknowledged ill another document executed on 13.10.1929 (Ext. E) wherein further partition of some other properties was also stated to have been effected. Plaintiffs further alleged that, due to such fraud, partition, if any, is inequitable & disproportionate on the face of the document. It was pleaded that late Niranjan kept the fact of inequitable partition made in Ext. 9 & Ext.E concealed & cleverly allowed Sudarshan & Abhiram to possesses larger parcels of lands, than what was mentioned in Ext.9. Plaintiffs could know about the fraud when Defendant No.1, Gajendra produced Ext.9 & Ext.E before the authorities in order to get most of the lands recorded in the name of Defendants during current Major Settlement operation. Defendant No. 1’s attempt failed due to objection raised by Plaintiffs. Defendants filed written statement denying plaint’s allegation that Plaintiffs’ predecessors, namely, late Sudarshan & late Abhiram were not the legitimate children of late Sriram Patel. It was averred that Ext.9 & Ext.E were duly executed effecting complete partition & the parties are in possession accordingly. Defendants also advanced the plea that suit is barred by limitation under Orissa Land Reforms Act.

4. Learned Trial Court framed the following issues for adjudication.

“1. Is the partition of 1924 evidenced by document on 18.6.1924 & 3.11.1929 is inequitable?

2. Are late Sudarsan & Abhiram legitimate sons of Sriram Patel?

3. Have Niranjan or the Defendants played fraud on the Plaintiffs or their fathers?

4. Is the suit barred by limitation?

5. Is the suit as framed maintainable?

6. Has the Court jurisdiction to entertain the suit for partition?

7. To what relief ?”

5. In order to substantiate their respective stands, Plaintiffs examined two witnesses including Plaintiff No.3 as P.W.1 & relied upon documents marked Exts.1 to 9 whereas Defendants examined four witnesses including Defendant No.1 as D.W.1 & relied upon documents marked Exts. A to G.

6. Learned Trial Court, on appraisal of evidence on record & on consideration of rival contentions, held that though Ext. 9 is not admissible for want of registration, as the fact of partition is acknowledged in Ext.E, there was complete partition among the predecessors of the parties. Learned Trial Court also held that the predecessors of Plaintiffs were not illegitimate children. Learned Trial Court also disbelieved the allegation of fraud & the assertion that Plaintiffs’ predecessors were idiotic, simpletons, illiterate & of incomplete development of mind. However, it was held by the Learned Trial Court that though the Court has jurisdiction to decide the suit, the same is barred by limitation.

7. Learned Counsel for the Appellants contended that in Ext. 9 the properties were stated to have been partitioned among the predecessors of the parties but the document was executed solely by Defendants’ predecessor Niranjan. Also, admittedly, Ext.9 has not been registered. Ext. E is also an unregistered document wherein some properties were again partitioned among the predecessors of Plaintiffs & Defendants & there was an acknowledgement by the predecessors of the parties of the partition as mentioned in Ext. 9. Learned Trial Court held that Ext.E is a document wherein Niranjan had admitted the partition effected on 18.6.1924 & it contained description of properties which fell to share of the 3 brothers. In addition, it is mentioned in Ext. E that some more properties were given to Sudarshan & Abhiram. Therefore, Ext.E is a document acknowledging the previous partition & it described definitely the properties which fell to the shares of the 3 brothers for which the document was not compulsorily registerable. It was also held by the Learned Trial Court that fact of partition of the year 1924 has been mentioned in Ext.E for which both the documents are evidence of partition of the year 1924. Before coming to such conclusion, Learned Trial Court held that Ext. 9 is not admissible in evidence as it is coming under the mischief of Section 17 of the Registration Act. Learned Counsel for the Appellants argued that as both the documents are unregistered, the contents thereof cannot be taken into consideration. It was further argued that at the worst the unregistered documents Ext. 9 & Ext.E would be considered for a limited purpose to show severance of joint status & it is inadmissible to prove the actual partition of specific properties to the different shares. In this connection, Learned Counsel for the Appellants relied upon the decisions of the Hon’ble Supreme Court in Siromani vrs. Hemkumar: AIR 1968 SC 1299 & Puttrangamma & ors vs. M.S. Ranganna & ors: AIR 1968 SC 1018. It was also argued that D.W.1 in his evidence admitted that Niranjan & Sudarsan were illiterate for which documents were read over &, after understanding the contents to be true, they put their signatures. However, the Defendants neither pleaded such fact nor led any evidence to that effect. It was strenuously contended that in absence of any certificate under Ext.E to the effect that the executants put their signatures after understanding the contents thereof, the document is not capable of being acted upon. It was further contended that on the face of Defendants’ admission that Sudarsan was illiterate, even though the Learned Trial Court held that plea of fraud had not been proved by the Plaintiffs, Defendants were required to discharge the onus to prove the factum of due execution of Ext.E.

8. Learned Counsel for the Respondents supported the impugned Judgment & argued that the Learned Trial Court has rightly held that prior partition among the predecessors of the parties cannot be reopened in a suit which is barred by limitation.

9. Respondents having not filed any cross objection or cross appeal, their contentions regarding lack of jurisdiction of the Court in view of bar contained under Orissa Land Reforms Act & their assertions regarding legitimacy of Plaintiffs’ predecessors need no adjudication. Controversy between the parties in the appeal is confined to resolution of the following two questions:

(a) whether there was any prior partition? &

(b) whether suit is barred by limitation?

10. On perusal of the impugned Judgment it is found that while deciding issue No.3 it has been held by the Learned Trial Court that though in Ext.E all the three predecessors of the parties had put their signatures & L.T.I., execution of the document is not proved as .there is no presumption that executants understood the contents of the document. It is well settled that burden lies on a party to prove execution of a document on which he relies. D.W.1 testified that Niranjan & Sudarsan were illiterate whereas Abhiram was literate to the extent of reading Bhagabat. In order to prove due execution of a document, it is required to be proved that the executant, being illiterate, put his signature after understanding the contents to be true. Otherwise, the mind of the signatory cannot be said to have accompanied the signature. In other words, it cannot be said that he intended to sign which means the executant has not signed in the eye of law. On considering the entire evidence on record, it is found that there has not been any attempt to duly prove that Ext. E was executed as required under law. Ext.E does not contain any certificate indicating that contents of the document was read over & explained to the executants who put their signatures after understanding the contents to be true. In Makha Bewa -vrs.- Bimbadhar Kandi : XLI (1975) CLT 978, it has been held:

“In Ext.A there is no certificate to the effect that the Plaintiff executed the said deed after understanding the contents of the same. It is merely stated therein that the said deed was read over & explained to her. D.W.1, the scribe of the deed, has not stated that the contents of the deed were understood by the executant & after understanding the same she executed the said deed. D.W. 1 merely stated in examination-in­chief that the document was read over & explained to the executant & she admitted its contents. Even if the above mentioned evidence of D.W.1 in his examination-in-chief is taken on its face value, that would not satisfy the required test that the illiterate executant of the deed executed the same after clearly understanding the contents & the nature of that document.’’

Therefore, evidence on record does not sustain the finding of the Learned Trial Court that Ext.E was duly executed.

11. Specific case of the Plaintiffs is that fraud was played by Niranjan on their predecessors. Learned Trial Court has rightly held that Plaintiffs have failed to establish the allegation of fraud due to want of proper pleadings & adequate evidence. However, fact remains that when it is admitted that executants were illiterate, the parties’ relying on the document has to prove due execution. In Sri Kishore Ray Thakur Bije -vrs.- Smt. Basanti Kumar Das & ors: AIR 1994 Orissa 113 it has been held by this Court:

“The rule evolved for the protection of paradanasin ladies in relation of execution of document should not be confused with the other doctrines such as fraud, duress & actual undue influence, which apply to all persons whether they be paradanasin ladies or not. This being the position of law, if the Plaintiff alleges fraud, then Plaintiff must establish the same but if Plaintiff is an illiterate or paradanasin lady & alleges fraud & fails to establish fraud, yet the Defendant must establish the fact that the Plaintiff executed the document after the document was read over & explained to her & after she understood the contents thereof. This protection which law affords to a paradanasin or illiterate lady must be borne in mind by the Court.”

12. While deciding issue No.1 Learned Trial Court on a plain reading of Ext.9 held that Niranjan alone executed the document stating that he effected the partition of the joint family property & allotted shares to Sudarsan & Abhiram respectively. Therefore, Ext.9 is a document purporting to create partition coming under the mischief of Section 17 of the/Registration Act being a compulsorily registerable instrument. When registration has not been effected, Ext.9 cannot be admitted. However, in the later part of the Judgment Learned Trial Court came to a finding that Ext.E is a document where Niranjan had admitted partition effected on 18.6.1924 mentioning the properties which fell to the shares of brothers & it is also mentioned in Ext.9 that some more properties were given to Sudarsan & Abhiram. Ext.E is, therefore, a document acknowledging the previous partition in which definite description of properties which fell to the shares of brothers have been given. According to the Learned Trial Court, In such circumstances, Ext.E is not compulsorily registerable. It was observed that in Ext.E the fact of partition of the year 1924 is also admitted & therefore, both the documents are evidence of partition of 1924. Such an inconsistent conclusion arrived at by the Learned Trial Court is wholly erroneous. Ext. 9 & Ext.E cannot be admitted for the purpose of proving the partition between the predecessors of the parties. It has been held in M/s. Bajaj Auto Limited -vrs.- Behari Lal Kohli: AIR 1989 SC 1806 that “if a document was inadmissible for non-registration, all its terms were inadmissible xx xx xx xx”.

13. Section 49 (c) of the Registration Act provides that no document required by Section 17, or by any provision of the Transfer of Property Act, to be registered shall be received as evidence of any transaction affecting such property or conferring such power, unless it has been registered. In Dandapani Sahu vrs.- Kshetra Sahu & ors: AIR 1965 Orissa 37, it has been held by this Court:

“There is no dispute over the proposition that the unregistered partition deed can be used as evidence to show severance of joint status & it is inadmissible to prove the actual allotment of specific properties to the different shares. The only interesting question for consideration is whether the statement in the unregistered partition deed that there was a partition by metes & bounds amongst the members of the joint family is admissible in evidence. On a plain reading, such a statement appears to be clearly hit by Sec. 49(c) of the Act. Partition is a “transaction” which affects the immoveable property comprised in the partition deed as what was a joint ownership is converted into separate ownership of the different members in specific shares. Such a statement in the unregistered partition deed is therefore inadmissible in evidence. Xx xx xx xx.”

14. In Siromani & anr V. Hemkumar & ors: AIR 1968 S.C. 1299, the Hon’ble Supreme Court was considering the question as to whether unregistered deed Ext. D-4 was admissible in evidence in view of provision u/s 17 of the Registration Act. It was held:

“In view of the recitals in Ext. D-4 we are of opinion that there is allotment of specific properties to individual coparceners & the document therefore falls within the mischief of Section 17(1)(b) of the Registration Act. It follows that Ext. D-4 is not admissible in evidence to prove the title of any of the coparceners to any particular property or to prove that any particular property has ceased to be joint property. Of course, the document is admissible to prove an intention on the part of the coparceners to become divided in status; in other words, to prove that the parties ceased to be joint from the date of the instrument dated 27.12.1943.”

It was further pointed out in the above said decision that the principle of Hindu Law is equality of division & the exceptions to that rule have almost, if not altogether, disappeared. As between brothers or other relations, absolute equality is now the invariable rule in all the States, unless perhaps, where some special family custom to the contrary is made out.

15. Thus, Ext. 9 & Ext.E cannot be considered except for the purpose of proving severance of joint status of the predecessors of the parties. In spite of execution of Ext.9 & Ext.E, they would be treated as tenant-in-common. Neither of the documents can be considered to prove complete partition. In fact, while deciding issue No.6 Learned Trial Court has held that partition suit is maintainable.

16. In deciding issue No.5 Learned Trial Court has held that the suit is barred by limitation. Averment made by the Respondents at paragraph 6 of the written statement reads:

“Since 1924 (nineteen twenty-four) Niranjan & the Defendants 1 to 3 (one to three) openly & exclusively have been possessing the lands which fell to Niranjan’s share & have prescribed their title thereto by adverse possession. Similarly Sudarsan & Abhiram & their sons possessed their shares of lands as evidenced by the documents of 13.11.29 (thirteenth November twenty-nine). It is false to say that Sudarsan & Abhiram over possessed the extent of lands mentioned in Sch. ‘C’ & Sch. ‘D’ of the plaint”

The limitation for partition suit starts from the date when a co­owner or tenant-in-common claims adversely to others. As has been discussed above, the parties are still tenant-in-common for which in order to claim adverse possession among themselves, they have to establish ousters from others, otherwise possession of one has to be treated as possession of other. Pleading as well as evidence of the Defendants lack such requirement for which the suit cannot be treated as barred by limitation. In fact, in course of hearing it was fairly conceded by the Learned Counsel for

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the Respondents that in case it is held that no partition was effected by virtue of Ext. 9 & Ext.E, the suit would not be barred by limitation. 17. Admittedly shares allotted to the three brothers in the partition stated to have been effected on the strength of Ext. 9 & Ext.E were unequal. Defendants have not pursued their stand to the effect that Sudarsan & Abhiram were illegitimate for which Niranjan allotted smaller shares to them. Therefore, there is no basis for allotting unequal shares. Also, both the deeds Ext. 9 & Ext. E being unregistered, & Ext. 9 being a unilateral instrument also, there is no basis to uphold the plea of prior partition. Thus, in any event Defendants stand of prior partition as a bar to the present suit is not tenable. Moreover, it is well settled that an unjust & unfair partition can be reopened by a minor at any time. Original Plaintiff No.1 late Shyamsundar was a minor when the alleged partition was effected. In Ratnam Chettiar & ors V. S.M. Kuppuswami Chetiar & ors: AIR 1976 S.C 1, it has been held: “Where however, a partition effected between the members of the Hindu Undivided Family which consists of minors is proved to be unjust & unfair & is detrimental to the interests of the minors the partition can certainly be reopened whatever the length of time when the partition took place.” 18. For the reasons stated above, impugned Judgment is not sustainable in law under the facts & circumstances of the case. Therefore, the impugned Judgment is set aside. Title Suit No.31 of 1978-1 of the Court of Learned Subordinate Judge now Civil Judge (Senior Division), Sambalpur is decreed. Plaintiff Nos. 1 to 6 are held to be entitled to 1/ 3rd share, & Plaintiff Nos. 7 to 11 & proforma Defendant No.4 are held to be entitled to 1/3rd share of the joint family properties. Accordingly, the appeal is allowed with cost.
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