Decided on February 06,1973



- (1.) THIS second appeal is by the plaintiffs from the confirming decision dated 10-4-1969 of Sri L. Mallik, Additional District Judge, Dhenkanal passed in T. A. No. 18/128 of 1967/1965.
(2.) THE plaintiffs sued for declaration of their title to a passage forming part of plot No. 976 (Sch. A), for recovery of possession of the same and for injunction restraining the defendant from interfering with the plaintiff's user of the said passage. THE plaintiffs also prayed for recovery of damages on account of damage caused to the ridge on plot No. 2789 (Sch. C) and for declaration of title to 0.01 decimal of land on plot No. 996 (Sch. B). The plaintiff's case may be shortly stated. The three sons of Ratnakar separated from each other in all respects during the lifetime of their father and got their names separately recorded in revisional settlement of 1923-24 in respect of properties which fell to their shares in that partition and some properties were left joint for the maintenance of their mother. The said undivided properties were recorded jointly in their names. Subsequently in 1927, when the defendant's father was dead, this joint property underwent a second partition. The allotments made in this partition was recorded in a document which was proved as Ext. 1. Dharani, shortly before his death, on 1-7-1943, executed a document, nomenclatured as Chuktipatra, (Ex. B) distributing his separate properties which he had acquired in the aforesaid partitions amongst his three nephews, namely, plaintiffs 1, 2 and defendant equally. Thereafter the defendant and the plaintiffs filed a petition in the Court of the District Judge, Dhenkanal on 1-3-1946 praying for sanction or ratification of the aforesaid settlement under Ex. 1. This proceeding terminated in a compromise to which Hara Dibya, a minor then, was a party as per compromise petition (Ex. 3). Thereafter the properties of Dharani, were possessed by his nephews in three equal shares since 1946 as per Ex. 1. In 1963, the defendant blocked the common passage as set out in Schedule A, dispossessed the plaintiffs from 0.01 decimal of land as described in Schedule 'B' and damaged the western ridge of the land allotted to the plaintiffs out of plot No. 2789 as per Schedule 'C'. Those overt acts of the defendant gave rise to the cause of action for the present suit. The plaintiffs and defendant are members of one family as would appear from the following genealogy : The defendant denied the two partitions pleaded by the plaintiff and impeached the genuineness of Exts. 1 and B. His case is that the parties are still in joint and undivided status. The trial Court while dismissing the suit, rendered the following findings; (a) The father of defendant died in 1928; (b) Ex. 1 being an unregistered deed of partition is inadmissible in evidence; (c) There was severance of joint status, but partition by metes and bounds had not taken place. The different members of the family possessed different portions of the land by amicable arrangement; (d) Ex. B was also held to be inadmissible on account of non-registration and that the properties dealt with under Ex. B being joint family properties could not be bequeathed or settled by Dharani, as if these were his separate properties. The appellate Court while confirming the decision of the trial Court came to the following conclusions; (i) Ex. B is inadmissible in evidence whether it be treated as deed of gift or as a Will. As a deed of gift it is not admissible for want of registration and as a Will it is also inadmissible for want of probate; (ii) Defendant's father died some time in 1925-26; (iii) Ex. 1 is inadmissible, being an unregistered deed of partition; (iv) The prior partitions pleaded by the plaintiffs are not true; (v) Hara Dibya being not a signatory to the compromise petition (Ex. 3) the same is not binding upon her. The main contention on behalf of the plaintiffs is that the findings of fact arrived at by the lower appellate Court are vitiated on account of discarding Exts. 1 and B from consideration as inadmissible pieces of evidence and also owing to non-consideration of two vital pieces of documentary evidence, Exts. 2 and 3. It is argued that if those pieces of documentary evidence had been given due weight along with other evidence and circumstances on record, the lower appellate Court would have reached different conclusions regarding the plaintiff's case of prior partition. It is true that the lower appellate Court has said; "As regards the alleged previous partition during the lifetime of Ratnakar, there is no documentary evidence", and this shows that he has rejected Exts. 1 and B from out of consideration altogether. His judgment does not indicate that he has given any judicial consideration to Exs. 2 and 3 except saying that Ex. 3 is not binding upon Hara Dibya. Even so, it is further argued, the final decision of the District Judge of Dhenkanal which was patently based on Ex. 3 would be voidable only and Hara Dibya, who was minor at the time, was entitled to avoid the same after attaining majority. The lower appellate Court should have further considered the effect of Hara Dibya having omitted to avoid the same before she remarried in 1950 thereby bringing about her civil death. I will now proceed to consider the question of admissibility of Ex. 1. The legal position is not controverted, that if Ex. 1. on construction, is found to be a partition deed in pursuance of which immovable properties have been partitioned it would become inadmissible in evidence because it being a document compulsorily registrable under Section 17 (1) (b) of the Registration Act, has not been registered. But if this document is found to be merely a record of partition which has preceded coming into being of this document, it would be admissible. The recitals of this document, when carefully perused, indicate that this document is a record of the allotments made in a partition by metes and bounds which preceded it. There are expressions in it like - "Bantankari diagala" "Bantan hela" and some properties were life joint. "Abasista Nije banti nebe" "Tutituti kiari samana ansare bantan hela" "Upare Upare two decimals Hari Tripathyku diagala" "Eka gadi choudare hida sakase jami diagala". These and similar other expressions found in this document unequivocally indicate that some properties were divided by metes and bounds, some were kept joint and partition by mates and bounds of some properties postponed to a future date. There is no doubt, in my mind, that this document does not contemporaneously split unity of title into severalty and does not extinguish or create title in specific items of joint family properties. It is a mere record of anterior acts creating exclusive title in favour of some members of joint family by extinguishing title of others in the same. It is an allotment list recording the allotment of properties as a result of partition by metes and bounds. This document should not have been rejected as inadmissible. I will now consider the document Ex. B. This document, it must be remembered, was produced from the custody of the defendant and the lower appellate court has missed this aspect in considering the genuineness of the document. I think it will not be open to the defendant to challenge the genuineness of this document after having proved it in the case merely because the effect of this document appears ultimately to be antagonistic to his case. I will now extract a portion from the document to determine its nature, in the first instance : "Moara Antesti Kriya moara thiba ethi samil panchayat bhadralokmananka swakharita talika mutabak sampati bidhimat karibe. Antesti kriya sesapar jaha baliba bidhaba putrabadhu tara chalachal sakase jaha abasyaka taha nela para jaha rahiba taha uperakto tiniputura saman ansare badhra lok mananka mukabilare bantan kari nebe. Anu moura Prana Prayana samayare panchayat bhadra lok mananka mukabilare a chuktipatra lekhi deluki darkar belo karmare asiba. Though the recital in the earlier portion of this document indicates a transaction by way of gift nevertheless, the concluding portion quoted above indicates very clearly that the intention of the executant was that the title to the property was not to pass in praesenti but would take effect in future on the death of executant. I am in agreement with view of the lower appellate Court that this document is in nature of a Will and not a deed of gift. This document (Ex. B) has not been probated under Section 213 of the Indian Succession Act, and accordingly it has been held that no right can be based on that document, in other words, the document is inadmissible in evidence. This view would be correct provided Section 213 of Indian Succession Act applies. Mrs. Padhi, the learned counsel for the appellant, has advanced two lines of argument in support of the admissibility of the document. The first is that this Section 213 of Indian Succession Act does not apply and reliance has been placed to sub-section (2) of S. 213 and Section 57 (a) of the Indian Succession Act. These provisions are quoted hereinbelow. "Section 213 (2) - This section shall not apply in the case of wills made by Muhammadans and shall only apply-" (1) in the case of wills made by any Hindu, Budhist, Sikh or Jaina where such wills are of classes specified in clauses (a) and (b) or Section 57." "57 (a) to all wills and codicils made by any Hindu, Budhist, Sikh or Jaina, on or after the first day of September, 1870, within the territories which at the said date were subject to the Lieutenant Governor of Bengal or within the local limits of the ordinary original civil jurisdiction of the High Courts of Judicature at Madras and Bombay; and (b) to all such wills and codicils made outside those territories and limits so far as relates to immovable property situated within these territories or limits." There is no dispute in this case that this will dated 1-7-1943 was executed inside the ex-state of Dhenkanal and related to immovable properties situated within its territory. Unless it is shown that the territory of the ex-state of Dhenkanal was subject to the Lieutenant Governor of Bengal or within the local limits of the ordinary original civil jurisdiction of the High Courts of Judicature at Madras and Bombay on the 1st day of September, 1870, the prohibition contained in Section 213 will not apply and the Will (Ex. B) would not be inadmissible for want of probate. It is argued on behalf of the appellants that "Subject to the Lieutenant Governor" in Section 57 (a) would prima facie mean subject to the governance of the Lieutenant Governor of Bengal. Prior to the Indian Independence Act of 1947, Dhenkanal was a feudatory State and, as such, was not an integral part of the British India but was under the paramountcy of the British Crown. It was treated as a Sovereign State and the Ruler in Durbar made laws for its territory and the executive power vested in the Ruler. Thus Dhenkanal feudatory State cannot be said to be subject to the Lieutenant Governor of Bengal on 1-9-1870. This argument has considerable force. To meet this Mr. Mohanti, the learned counsel for the respondent read a portion from the Imperial Gazetteer of India to show that Ex-State of Dhenkanal was subject to the Lieutenant Governor of Bengal on the first day of September, 1870. I am not satisfied that there is anything in the gazetteer which conclusively establishes that fact. Accordingly Ex. B does not come within the clauses of wills enumerated in Section 57 (a) or (b) of the Indian Succession Act. As at present advised I must accept the contention of Mrs. Padhi on this point, that absence of probate will not debar the legatees or their successors-in-interest from claiming rights on the basis of the will and that Ex. B will be an admissible piece of evidence. The second line of argument is based on the Rules relating to Succession, Transfer, Leases, Relinquishment of Lands and Mutation of Names which were in operation in Dhenkanal at the time of execution of Ex. B i.e. 1-7-1943. It is well known that Dhenkanal State was integrated on 15-12-1947 and before that date it had its own laws and Rules and the Rules referred to above are accepted as prevailing in the ex-State of Dhenkanal before its merger. The relevant rules are extracted hereinbelow : "The provision of Indian Succession Act shall apply mutatis mutandis to all testamentary bequests in the State subject to the following conditions : I. All such bequests shall be made with previous permission of the State. II. When no previous permission has been obtained such bequests may be recognised by the State on proof of genuineness and payment of salami of Rs. 20/-per acre of Saradh land and Rs. 8/- per acre of Toila land. III. Such permission or recognition shall be considered equivalent to probate or letter of Administration and the Tahasildar shall grant mutation on the strength thereof, when legatee comes into possession on the receipt of the Salami (if any) prescribed above. Any claim or contest, after a bequest has been permitted or recognised, shall not be taken cognizance of by any Revenue Court. The party aggrieved if so advised may bring a regular suit in a Court of competent jurisdiction." IV. While (wills?) are not compulsorily registrable." It has been proved in the case that subsequent to the execution of the document Ex. B Misc. Case No. 21 of 1946-47 was initiated for getting sanction of the State in regard to this document Ex. B. This proceeding was contested by Hara Dibya and was disposed of in terms of compromise. The petition of compromise was signed by parties and also by the advocate for Hara Dibya who was a minor at the time. This compromise "was accepted by the District Judge on 26-4-1946. The order passed was "filed today." The order "filed today" should be construed as an order disposing of the Misc. Case 21/46-47 in terms of compromise, because no other order of the District Judge has been produced to show that it was disposed of in any other manner or that recognition was refused. Until contrary is shown it would be more reasonable to assume that bequest in Ex. B was recognised by the State and Ex. B may be treated as having been probated. For the aforesaid reasons, Ex. B should not have been rejected as inadmissible. Compromise petition (Ex. 3) has been signed by the Advocate for Hara Dibya and without anything more, it would be inappropriate to hold that Hara Dibya was not aware of the compromise or that she did not agree to it. At any rate the order of District Judge would be a voidable one at the instance of Hara Dibya who was a minor then. (See the principle in the case of Kaushalya Devi v. Baijnath Saval, AIR 1961 SC 790) and the said order not having been set aside before she died a civil death in 1950 must be held to be good and binding on all parties to the proceeding in Misc. Case No. 21/46-47. It is now clear that the lower appellate Court must reappraise evidence by taking into consideration Exts. 1, B, 2 and 3 and the case must, therefore, be remanded back to him for rehearing. Mr. Mohanti has also raised many other questions of legal complexion, but I am not going to refer to them because it will be open to him to raise the same before the lower appellate Court when he rehears the appeal afresh. In the result, therefore, I would set aside the judgment and decree of the lower appellate Court and remand the same back to the lower appellate Court for fresh disposal according to law, keeping in view the observations made above and taking into consideration all the relevant materials on records. Costs will abide the result. Appeal allowed and remanded. Case remanded. ;

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