Orissa High Court
Jhatu Swain (Since Dead Through vs Jogi Swain And Another on 23 December, 2024
IN THE HIGH COURT OF ORISSA AT CUTTACK
S.A. No.366 of 1998
(In the matter of an appeal under Section 100 of the Code of Civil Procedure, 1908)
Jhatu Swain (since dead through .... Appellants
his LRs)
-versus-
Jogi Swain and another .... Respondents
Appeared in this case by Hybrid Arrangement
(Virtual/Physical Mode):
For Appellants - Mr.P.K. Singh,
Advocate.
Mr. R. Behura,
Advocate.
For Respondents - Mr. G. D. Kar,
Advocate.
CORAM:
HON'BLE MR. JUSTICE A.C.BEHERA
Date of Hearing :16.12.2024 :: Date of Judgment :23.12.2024
A.C. Behera, J. This second appeal has been preferred against the
confirming judgment.
2. The appellant in this 2nd appeal i.e. Jhatu Swain was the defendant
No.1 before the Trial Court in the suit vide T.S. No.140 of 1988 and sole
appellant before the 1st appellate Court in the 1st appeal vide T.A. No.58
of 1994.
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After the death of the appellant Jhatu Swain during the pendency of
this 2nd appeal, his legal heirs have been substituted as appellant Nos.1(a)
to 1(d) in his place.
The respondent No.1 in this second appeal was the sole plaintiff in
the suit vide T.S. No.140 of 1988 and respondent No.1 in the 1 st appeal
vide T.A. No.58 of 1994.
The respondent No.2 in this 2nd appeal was the defendant No.3 in
the suit vide T.S. No.140 of 1988 and respondent No.3 in the 1st appeal
vide T.A. No.58 of 1994.
3. The suit of the plaintiff (respondent No.1 in this second appeal,
Jogi Swain) vide T.S. No.140 of 1988 before the Trial Court against the
defendants (original appellant in this 2nd appeal i.e. Jhatu Swain and
respondent No.2 along with one Chanchala Dei) was a suit for partition.
4. According to the plaintiff, the defendant Nos.1 & 3 are his brother
and sister respectively. The defendant No.2 (Chanchala Dei) is the sister
of his father. The suit properties are his ancestral properties.
5. In order to have a better appreciation and so also for an instant
reference, the family pedigree of the parties according to the plaint is
depicted hereunder:-
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Genealogy
Bhagabat SwainFakira Swain
Dhobei Swain Chanchala Dei (deft. No.2)
Jhatu Swain (deft No.1) Jogi Swain (plaintiff) Rajani Dei (deft No.3)
6. As per the pleadings of the plaintiff, the parties to the suit are all
Hindus and they are guided and governed by Mitakshara School of Hindu
Law.
According to the aforesaid genealogy, Bhagbat Swain was his
common ancestor.
Bhagabat Swain died leaving behind his only son i.e. Fakira Swain
as his only successor. So, after the death of Bhagabat Swain, all the suit
properties left by him devolved upon his son Fakira Swain.
Fakira Swain died 35 years prior to 1988 i.e. in the year 1953
leaving behind his son Dhobei Swain and daughter Chanchala Dei
(defendant No.2).
After the death of Fakira Swain, all the suit properties left by him
(Fakira Swain) devolved upon his son Dhobei Swain, as, Fakira Swain
expired in the year 1953 prior to the coming into force of The Hindu
Succession Act, 1956, because, a pre-Act daughter like Chanchala Dei
(defendant No.2) had no right of succession by that time as per law. So,
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all the suit properties left by Fakira Swain devolved upon his son Dhobei
Swain and Dhobei Swain became the owner of the entire suit properties.
When Dhobei Swain was the owner of the entire suit properties,
the said Dhobei Swain died much after 1956 leaving behind his two sons
and one daughter i.e. defendant No.1 (Jhatu Swain), Jogi swain (plaintiff)
and Rajani Dei (defendant No.3).
So after the death of Dhobei Swain, the suit properties left by him
(Dhobei Swain) devolved upon his successors i.e. plaintiff, defendant
No.1 and defendant No.3.
Therefore, the suit properties are the joint and undivided properties
of the plaintiff, defendant Nos.1 & 3. The suit properties have not at all
been partitioned/divided between them (plaintiff, defendant Nos.1 & 3)
till yet through any metes and bounds partition.
After the death of Fakira Swain, the defendant No.1 being his
eldest son, he (defendant No.1) was managing the family and he was
looking after the possession and management of all the joint and
undivided suit properties as the manager of the joint family, but suddenly,
five days before filing of the suit, he (defendant No.1) declared in his
village that, the defendant No.2 (Chanchala Dei) has executed a gift deed
in respect of half of the suit properties in his favour on the strength of
joint recording of her name in the suit properties with her brother Fakira
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Swain in the major settlement R.o.R. In fact, the defendant No.2
(Chanchala Dei) had/has no interest in the suit properties being a pre-Act
daughter. So, he (plaintiff) searched for the so-called gift deed and came
to know that, the defendant No.1 has managed to execute a gift deed on
dated 07.10.1988 illegally and fraudulently in his favour in respect of part
of the suit properties only for his unlawful gain, though the cited donor of
that gift deed i.e. defendant No.2 (Chanchala Dei) had/has no interest in
the suit properties to transfer. For which, the said so-called gift deed
dated 07.10.1988 shown to have been executed by the defendant No.2 in
favour of defendant No.1 in respect of the suit properties is void ab initio
and non-est in the eye of law. Therefore, he (plaintiff) requested his
brother i.e. defendant No.1 for partition of his share from the joint and
undivided suit properties, to which, the defendant No.1 did not agree. For
which, he (plaintiff) approached the Civil Court by filing the suit vide
T.S. No.140 of 1988 against the defendants praying for partition of his
share from the suit properties.
7. The defendant No.3 (sister of the plaintiff and defendant No.1) was
set ex parte in the suit without filing written statement.
The defendant No.2 filed her written statement supporting the case
of the plaintiff stating that, the defendant No.1 has created the so called
gift deed dated 07.10.1988 practising fraud without her knowledge. In
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fact, she (Chanchala Dei-defendant No.2) has not executed the so called
gift deed dated 07.10.1988 within her knowledge in favour of defendant
No.1. She (defendant No.2) had/has no interest in the suit properties. She
(defendant No.2) is not entitled to get any interest from her father’s
ancestral properties i.e. from the suit properties, as her father Fakira
Swain expired much prior to 1956. For which, after the death of her
father Fakira Swain, her brother Dhobei Swain became the owner over
the entire suit properties being the sole successor of his father as per law,
but her name i.e. the name of defendant No.2 has been erroneously
recorded with her brother Dhobei Swain jointly in the Hal R.o.Rs of the
suit properties. In fact, she (defendant No.2) had/has no interest in the suit
properties.
The defendant No.1 challenged the suit of the plaintiff by filing his
written statement taking his stands inter alia therein that, his father’s
father i.e. Fakira Swain had expired after 1956, for which, Chanchala Dei
(defendant No.2) as the daughter of Fakira Swain had half share in the
suit properties, because, after the death of Fakira Swain, the suit
properties devolved upon Dhobei Swain and Chanchala Dei (defendant
No.2) equally. He (defendant No.1) was looking after Chanchala Dei
(defendant No.2). So, out of love and affection, Chanchala Dei (defendant
No.2) gifted away her half share in the suit properties in his favour by
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executing and registering the gift deed on dated 07.10.1988. For which,
he (defendant No.1) had/has been possessing more amount of suit
properties than the plaintiff getting the same in his share through
division/partition of the suit properties between him (defendant No.1) and
plaintiff. So, the question of re-partition of the suit properties through this
suit does not arise. For which, the suit of the plaintiff for partition of the
suit properties is not maintainable under law.
Therefore, the suit of the plaintiff is liable to be dismissed against
him (defendant No.1).
8. Basing upon the aforesaid pleadings and matters in controversies
between the parties, altogether 5 (five) numbers of issues were framed by
the Trial Court in the suit vide T.S. No.140 of 1988 and the said issues
are:-
ISSUES
(i) Whether the suit is maintainable?
(ii) Whether the plaintiff has any cause of action to file the suit?
(iii) Whether the Registered deed of gift deed dated 07.10.1988
executed by the defendant No.2 is valid, genuine and legal?
(iv) Whether the plaintiff is entitled to get the relief claimed?
(v) Whether there was any partition between the parties?
9. In order to substantiate the aforesaid relief i.e. partition sought for
by the plaintiff in respect of the suit properties, he (plaintiff) examined
four witnesses from his side including him as P.W.1.
On the contrary, the defendants examined three witnesses on their
behalf including defendant No.2 (Chanchala Dei) and defendant No.1
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(Jhatu Swain) as D.Ws.1 & 2 respectively and relied upon two documents
from their side vide Exts.A & B.
10. After conclusion of hearing and on perusal of the materials,
documents and evidence available in the record, the Trial Court answered
all the issues in favour of the plaintiff and against the defendant No.1 and
basing upon the findings and observations made by the Trial Court in the
issues in favour of the plaintiff and against the defendant No.1, the Trial
Court decreed the suit of the plaintiff on contest against the defendant
Nos.1 & 2 and ex parte against the defendant No.3 preliminarily for
partition of the suit properties between plaintiff, defendant Nos.1 & 3
ignoring the gift deed dated 07.10.1988 vide Ext.B shown to have been
executed by defendant No.2 (Chanchala Dei) in favour of defendant No.1
in respect of half of the suit properties observing/holding that, the gift
deed dated 07.10.1988 vide Ext.B as void and non-est as per its judgment
and decree dated 23.04.1994 and 30.04.1994 respectively assigning the
reasons that, the suit properties are the joint and undivided properties of
the plaintiff, defendant Nos.1 & 3, in which, the defendant No.2
(Chanchala Dei) had/has no interest. The suit properties have not at all
been partitioned/divided between plaintiff, defendant Nos.1 & 3 till yet
through any metes and bounds partition. When, the father of the
defendant No.2 i.e. Fakira Swain expired prior to the coming into force of
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The Hindu Succession Act, 1956, then as per law, she (defendant No.2)
had/has no interest in the suit properties being a pre-Act daughter.
Therefore, she (defendant No.2) was/is not competent under law to
transfer any interest in the suit properties in favour of any one including
defendant No.1, as she (defendant No.2) had/has no interest in the suit
properties. For which, the so called gift deed dated 07.10.1988 vide Ext.B
does not create any interest in respect of the suit properties in favour of
the defendant No.1, because the defendant No.2 (donor) had/has no
interest in the suit properties. In addition to that, due execution of the gift
deed vide Ext.B has also not been proved by the defendant No.1.
11. On being dissatisfied with the aforesaid judgment and decree dated
23.04.1994 and 30.04.1994 respectively passed by the Trial Court in T.S.
No.140 of 1988 ignoring the gift deed dated 07.10.1988 vide Ext.B with
specific findings and observations that, the gift deed dated 07.10.1988
vide Ext.B shown to have been executed by the defendant No.2 in favour
of the defendant No.1 is void ab initio and non-est in the eye of law, the
defendant No.1 challenged the same by preferring the first appeal vide
T.A. No.58 of 1994 being the appellant against the plaintiff and defendant
Nos.2 & 3 arraying them as respondents.
12. After hearing from both the sides, the First Appellate Court
dismissed that First Appeal vide T.A. No.58 of 1994 of the defendant
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No.1 and confirmed to the findings of the Trial Court that, the gift deed
dated 07.10.1988 executed by Chanchala Dei (defendant No.2) in favour
of the defendant No.1 in respect of the suit properties is void ab initio and
non-est in the eye of law, but modified the shares of the plaintiff,
defendant Nos.1 & 3 in the suit properties as per its judgment and decree
dated 28.10.1998 and 12.11.1998 respectively.
13. On being aggrieved with the said judgment and decree of the
dismissal of the First Appeal vide T.A. No.58 of 1994 of the defendant
No.1 passed by the First Appellate Court, he (defendant No.1 Jhatu
Swain) challenged only to the above specific/particular finding of the
Trial Court and 1st Appellate Court that, the gift deed shown to have been
executed by Chanchala Dei (defendant No.2) in favour of him (defendant
No.1) on dated 07.10.1988 vide Ext.B in respect of half of the suit
properties as void ab initio and non-est in the eye of law preferring this
2nd appeal being the appellant without challenging the other findings of
the 1st Appellate Court.
14. When, during the pendency of this second appeal, the appellant
(defendant No.1- Jhatu Swain) expired, then his legal heirs were
substituted in his place as appellant Nos.1(a) to 1(d).
15. This Second Appeal was admitted on formulation of the following
substantial questions of law i.e.:-
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(i) Whether the findings of the learned Court below is perverse
due to non-application of material evidence i.e. the settlement
records vide Ext.A, Ext.A/1 and Ext.A/2 recorded the name of
Chanchala (defendant No.2), which are sufficient to draw
presumption and is consistent with the theory that her father
Fakira died after 1956 and as such, she as a successor has been
recorded?
(ii) Whether the Courts below are correct to put the onus on the
defendant No.1 to prove death of Fakir after 1956, when the
plaintiff challenges the gift made by Chanchala on the ground that
Chanchala (defendant No.2) has no right to make gift as her father
died before 1956?
16. I have already heard from the learned counsels of both the sides.
17. In order to make the gift deed dated 07.10.1988 vide Ext.B shown
to have been executed by defendant No.2 (Chanchala Dei) in favour of
the defendant No.1 in respect of the half of the suit properties as valid and
lawful and in order to nullify the above concurrent findings of the Trial
Court and 1st Appellate Court that, the said gift deed dated 07.10.1988
vide Ext.B is void ab initio and non-est, the learned counsel for the
appellants relied upon the following decisions:
(i) 2020 (II) OLR (SC) 569–Vineeta Sharma Vs. Rakesh
Sharma & Others.
(ii) AIR 2004 Punjab & Haryana 353–Hazara Singh &
Another Vs. Faqira (D) by L.R. and Others.
18. According to the pleadings of the parties, judgments and decrees of
the Trial Court and 1st Appellate Court, when the above formulated
substantial questions of law are interlinked having ample nexus with each
other, then both the substantial questions of law are taken up together
analogously for their discussions hereunder.
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19. It is the concurrent findings of facts by the Trial Court and First
Appellate Court taking into account the pleadings and appreciating the
oral and documentary evidence of the parties that, the father of defendant
No.2 (Chanchala Dei) i.e. Fakira Swain expired much prior to the coming
into force of The Hindu Succession Act, 1956 leaving behind his one son
and one daughter i.e. Dhobei Swain and Chanchala Dei (defendant No.2).
Dhobei Swain is the father of the plaintiff, defendant Nos.1 and 3 and the
said Dhobei Swain expired much after coming into force of The Hindu
Succession Act, 1956.
It is the settled propositions of law that, High Court has no
jurisdiction to disturb the concurrent finding of facts made by the trial
Court and First Appellate Court, even, the said finding of facts are on
wrong appreciation of evidence. For which, the High Court has no
jurisdiction to entertain a Second Appeal on findings of facts, even
though, such finding of facts is erroneous. Because, re-appreciation of
evidence by the High Court in a 2nd appeal in order to arrive at a different
conclusion then the conclusion drawn by the Trial Court and First
Appellate Court is quite restricted as per mandate of Section 100 of the
CPC, 1908. Therefore, as per law, even a wrong finding of facts by the
Trial Court and 1st Appellate Court, the same is not sufficient to
constitute a point of law in the 2nd Appeal.
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On this aspect, the propositions of law has already been clarified
by the Hon’ble Courts and Apex Court in the ratio of the following
decisions.
(a) In a case between Ramathal And Ors. vs K.Rajamani (Dead)
Through Lrs And Anr. Reported in 2024(1)Civ.L.Judgment (SC) 243
(at Para No.31) it has been held by the Apex Court by appreciating the
provisions of law envisaged in Section 100(4) of the CPC, 1908 that,
High Court has no jurisdiction to disturb pure and concurrent findings
of facts, that too, on wrong appreciation of evidence.
(b) In a case between Mst. Kharbuja Kuer Vs. Jangbahadur Rai
And Others reported in AIR 1963 SC 1203 (at Para No.5) & Khitish
Chandra Bose Vs. Commissioner of Ranchi reported in (1981) 2 SCC
103 at Para No.11 that, High Court had no jurisdiction to entertain a
2nd Appeal on the ground of erroneous finding of fact.
(c) In a case between V. Ramachandra Ayyar And Another Vs.
Ramalingam Chettiar And Another reported in AIR 1963 SC 302
(Para No.12) that, High Court cannot interfere with the conclusions of
fact recorded by the lower Appellate Court however erroneous, the said
conclusions may appear to be to the High Court because, as the privy
council has observed, however, gross or inexcusable the error may seem
to be, there is no jurisdiction under Section 100 of the CPC, 1980 to
correct that error.
(d) In a case between P. Prathap Goud Vs. N.P. Yerriswamy &
Others reported in 2024 (4) Civ.C.C. 719 (A.P) at Para No.15 that,
wrong finding of fact is not sufficient to constitute a question of law.
(e) In a case between Mahavir Prasad Vs. Balveer Singh &
Another reported in 2024 (4) Civ.C.C. 515 (Allh.) (at Para No.21) that,
re-appreciation of evidence to arrive at a different conclusion is quite
restricted in exercise of jurisdiction under Section 100 of the CPC,
1908.
20. When, it is the concurrent findings of facts by the Trial Court and
1st Appellate Court after appreciation of oral and documentary evidence
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of the parties that, the father of the defendant No.2 i.e. Fakira Swain
expired much prior to the coming into force of The Hindu Succession
Act, 1956, but the father of the plaintiff, defendant Nos.1 and 3 i.e.
Dhobei Swain expired much after coming into force of The Hindu
Succession Act, 1956, then, at this juncture, in view of the principles of
law enunciated in the ratio of the aforesaid decisions of the Hon’ble
Courts and Apex Court, the question of disturbing such concurrent
findings of facts arrived by the Trial Court and First Appellate Court
through this 2nd Appeal does not arise. For which, it is held being agreed
with the concurrent findings of facts made by the trial court and 1st
Appellate Court that, as the father of the defendant No.2 (Chanchala Dei)
i.e. Fakira Swain expired much prior to the coming into force of The
Hindu Succession Act, 1956, for which, Chanchala Dei (defendant No.2)
being a pre-Act daughter has/had no interest in the ancestral suit
properties left by her father Fakira Swain. So, after the death of Fakira
Swain, the suit properties left by him (Fakira Swain) devolved upon his
son Dhobei Swain i.e. father of the plaintiff, defendant Nos.1 and 3, but,
not upon Chanchala Dei (defendant No.2) as per prevailing law of that
time.
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On this aspect the propositions of law has already been clarified by
the Hon’ble Courts and Apex Court in the ratio of the following
decisions.
(a) In a case between Jose Vrs. Ramakrishnan Nair
Radhakrishnan & Others reported in AIR 2004 (Kerala) 16 that, The
expressions made in Section 14 (1) of the Hindu Succession Act
regarding female Hindu, the same includes daughter also.
(b) In a case between State of Gujarat Vrs. Maliben Nathubhai
(D) Through LRs & Ors reported in 2017(1) CLR (S.C.) 710 that,
Property law–Share in ancestral property–Original owner of the
property dying intestate in 1947–Plaintiffs (daughters of the original
owner) claiming their share in the suit properties through their mother
(wife of original owner)–The suit filed by the daughters as plaintiffs is
not maintainable, because their mother had no interest in the suit
properties being a pre act widow of the original owner.
(c) In a case between M.Sivadasan (dead) through LRs. And others
Vrs. A.Soudamini (dead) through LRs. And others reported in 2024(1)
Civ.L.J. (S.C.) 314 that, Hindu law–Ancestral property–Hindu
Succession Act, 1956, Section 14(1)–Suit for partition was filed by the
daughters of owner i.e. “O” of property, who had died in the year 1942
(prior to coming into force of Hindu Succession Act), for which, after
the death of “O” property left by him i.e. “O” devolved upon his male
successor i.e. son “S”. Therefore, the widow of “O” i.e. the mother of
“S” had no right over it being a Pre-Act widow.
21. As per law, when after the death of Fakira Swain, the suit
properties left by him devolved upon his only male successor and son
Dhobei Swain, then, at this juncture, it is safely concluded that, the
defendant No.2 (Chanchala Dei) had/has no interest in the suit properties.
For which, in other words, it is held that, the inclusion or recording of the
name of defendant No.2-Chanchala Dei in the Hal R.o.R of the suit
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properties after the death of her father Fakira Swain jointly with his
brother Dhobei Swain cannot create her any interest in the suit properties,
because, mere recording of name in the R.o.R, neither creates title nor
extinguishes title in whose favour the same is recorded, because, title in
the suit properties is created through inheritance/succession or through
document/conveyance or through adverse possession.
As out of the above three modes for creation of title, no one is
available in favour of the defendant No.2 (Chanchala Dei) for creation of
her interest in the suit properties, then at this juncture, it is safely
concluded that, the inclusion/insertion/reflection of the name of
Chanchala Dei (defendant No.2) in the R.o.R. of the suit properties
had/has not created any interest in her favour in the suit properties, as she
(Chanchala Dei-defendant No.2) had/has no interest in the suit properties.
22. When it is held that, the defendant No.2 (Chanchala Dei) had/ has
no interest in the suit properties, then, she had no power under law to
transfer any interest in the suit properties in favour of the defendant No.1
either through the so-called gift deed dated 07.10.1988 vide Ext.B or
otherwise.
It is the settled propositions of law that, a donee cannot get a better
title through a gift, than his/her donor.
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When, the defendant No.2 (Chanchala Dei) had/has no interest in
the suit properties, then the question of creation of any interest in favour
of the so-called donee i.e. defendant No.1 through the gift deed dated
07.10.1988 vide Ext.B does not arise.
23. As per the discussions and observations made above, when it is
held that, the defendant No.2 had/has no interest in the suit properties,
then, at this juncture, the so-called gift deed dated 07.10.1988 vide Ext.B
said to have been executed by her (defendant No.2) in favour of the
defendant No.1 in respect of the suit properties is void ab initio and non-
est in the eye of law. Because, the said gift deed vide Ext.B does not
convey any title or interest in favour of the so-called donee (defendant
No.1). For which, the said so-called gift deed vide Ext.B is to be ignored
simply as per law holding the same as not worth the paper written on.
24. When, it is held that, the papers of the so-called gift deed vide
Ext.B said to have been executed by the Defendant No.2 (Chanchala Dei)
in favour of the defendant No.1 are not worth the papers written on and
when it is held that, after the death of Fakira Swain, the father of the
plaintiff, defendant Nos.1 and 3 i.e. Dhobei Swain was the sole successor
of the suit properties, then, as per law, after the death of Dhobei Swain,
the suit properties left by him devolved upon the plaintiff, defendant
Nos.1 and 3, for which, the suit properties are the joint and undivided
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properties of the plaintiff, defendant Nos.1 and 3. Therefore, the decisions
relied upon by the learned counsel for the appellants indicated in
paragraph No.17 of this judgment have become inapplicable to this 2 nd
appeal on facts as discussed above.
When, the Trial Court and First Appellate Court both have decreed
the suit of the plaintiff vide T.S. No.140 of 1988 preliminarily for
partition of the suit properties between the plaintiff, defendant Nos.1 and
3 ignoring the so-called gift deed dated 07.10.1988 vide Ext.B relied
upon by the defendant No.1 holding/observing that, the said Ext.B is void
ab initio and non-est in the eye of law and when such concurrent findings
of the Trial Court and First Appellate Court are not held to be erroneous
for the reasons assigned above, then, at this juncture, the question of
interfering with the same through this 2nd appeal filed by the defendant
No.1 does not arise.
Therefore, there is no merit in this 2nd appeal filed by the defendant
No.1. The same must fail.
25. In result, the 2nd Appeal filed by the defendant No.1 (substituted
his L.Rs.) is dismissed on contest, but without cost.
(A.C. Behera),
Signature Not Verified Judge.
Digitally Signed Orissa High Court, Cuttack.
Signed by: RATI RANJAN NAYAK
Designation: Senior Stenographer
Reason: Authentication
//23.12.2024//
Location: High Court of Orissa,
Cuttack, India. //Rati Ranjan Nayak//Sr. Stenographer//
Date: 23-Dec-2024 18:05:15
//Utkalika Nayak//Jr. Stenographer
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