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Orissa High Court
B. N. MISRA, J.
Brundaban Misra - Appellant
Versus
Iswar Swain - Respondents
Second Appeal No.86 of 1978
Decided On : 21 February 1983
GIFT DEED - VALIDITY - EXECUTION BY PURDANASHIN AND ILLITERATE LADY - BURDEN OF PROOF - HINDU SUCCESSION ACT, 1956 - SECTION 14 - APPLICABILITY.
Fact of the Case:
Plaintiff filed a suit for declaration of his right, title and interest and confirmation of possession over the disputed lands. Plaintiff claimed that the lands belonged to his late father, who died leaving behind three sons. After the death of one of the sons without issue, the remaining two sons amicably partitioned the properties. Plaintiff's father received the Ga schedule properties, while the other son received the Ka schedule properties. Plaintiff's father died in 1938, leaving behind his widow, Keli Dibya, who possessed the Ga schedule property as a limited owner until 1956, when the Hindu Succession Act came into force and she became the full and absolute owner. After the death of the other son in 1942, his sons, including the plaintiff, divided the Ka schedule property between themselves in 1965. Plaintiff received the eastern half of the Ka schedule lands, which is described as schedule Kha in the plaint. Keli Dibya executed a registered deed of gift in favor of the plaintiff in 1969, conveying the Ga schedule property to him. Plaintiff claimed that he amalgamated the Ga and Kha schedule lands and remained in possession of the entire area. However, in 1969, defendant No. 10, who was in possession of the western half of the Ka schedule land, executed a sham and collusive deed of sale in favor of defendants 1 to 9, purporting to transfer the entire Ka schedule property. Plaintiff alleged that defendants 1 to 9 removed paddy crops grown by him on the Kha schedule lands in 1970 and 1971, causing him a loss of Rs. 1000/-.
Finding of the Court:
The trial court decreed the plaintiff's suit, holding that Keli Dibya's limited interest in the Ga schedule property ripened into an absolute right after the passing of the Hindu Succession Act, 1956, and that the deed of gift executed by her in favor of the plaintiff was valid. The lower appellate court reversed the trial court's judgment, holding that the deed of gift was invalid and that the plaintiff had no right, title, or interest in the Ga schedule property.
Issues: 1. Whether the deed of gift executed by Keli Dibya in favor of the plaintiff was valid. 2. Whether the plaintiff had any right, title, or interest in the Ga schedule property.
Ratio Decidendi: 1. The court held that the deed of gift executed by Keli Dibya in favor of the plaintiff was invalid because: (a) Keli Dibya was an illiterate and purdanashin lady, and the plaintiff failed to prove that she knew the contents of the deed and executed it with full knowledge of its effects and consequences; (b) there was no independent evidence to corroborate or support the evidence of the attesting witness who testified on behalf of the plaintiff; (c) the deed of gift did not mention that Keli Dibya was executing it in exercise of her independent judgment without any coercion or undue influence from any quarter. 2. The court held that the plaintiff had no right, title, or interest in the Ga schedule property because the deed of gift executed by Keli Dibya in his favor was invalid.
Final Decision: The court dismissed the plaintiff's appeal and confirmed the judgment and decree of the lower appellate court.
Judgement
JUDGMENT :- The plaintiff has filed this appeal against the reversing judgment of the learned Additional Subordinate Judge, Puri. Respondents 1 to 9 and pro forma respondent No.10 were defendants 1 to 10 respectively in the trial court. The lands described in schedule Kha appended to the plaint are in dispute. The following genealogy describes the relationship between the plaintiff and defendant No. 10.
2. According to the plaintiff, the lands described in Schedules Ka and Ga appended to the plaint belonged to the late Krutibas who died leaving behind him three sons, Balabhadra, Hadibandhu and Narasingha. Hadibandhu died issueless around 1926 while he was in a state of jointness with his brothers Balabhadra and Narasingha. After the death of Handibandhu, Balabhadra and Narasingha amicably partitioned their properties. Balabhadra received the Ga schedule properties and Narasingha received the Ka schedule properties. Ever since the amicable partition Balabhadra and Narasingha separately possessed their respective shares and lived in separate mess and estate. Balabhadra died around 1938 leaving behind his widow Keli Dibya who possessed the Ga schedule property as a limited owner till 1956 when the Hindu Succession Act came into force and thereafter she became the full and absolute owner of the self-same property. After Narasingha s death around 1942, his sons defendant No. 10 and the plaintiff divided the Ka schedule property between themselves into two equal shares at an amicable partition in 1965. Defendant No. 10 took the western half and the plaintiff took the eastern half of the Ka schedule lands at the partition and this half share of the plaintiff in the Ka schedule property is described as schedule Kha in the plaint. Schedule Ga property lies to the east of schedule Ka property. The Ka and Ga schedule lands measure 1.40 1/4 decimals each and schedule Kha lands measure 0.70 1/4 decimals. Keli Dibya who was in possession of the Ga schedule lands as the absolute owner voluntarily executed a registered deed of gift on 25-9-1969 and conveyed schedule Ga property to the plaintiff and since then the plaintiff has been in possession of the same. The plaintiff amalgamated the Ga schedule lands which he received by way of gift from Keli Dibya and the Kha schedule lands which he received as his share in the partition between him and defendant No. 10 and he remained in possession of the entire area. However on 28-10-1969 defendant No. 10 who was in possession of the western half of the Ka schedule land executed a sham and collusive deed of sale in favour of defendants 1 to 9 purporting to transfer the entire Ka schedule property though he had no right over the Kha schedule lands. On the strength of the aforesaid collusive deed of sale defendants 1 to 9 removed paddy crops grown by the plaintiff on the Kha schedule lands in the years 1970 and 1971 as a result of which the plaintiff suffered a loss of Rs. 1000/-. In these circumstances the plaintiff filed the present suit against defendants 1 to 10 and has prayed for declaration of his right, title and interest and confirmation of possession over the Kha schedule lands, for damages of Rs. 1000/- and for declaration that the sale-deed dated 28-10-1969 executed by defendant No. 10 in favour of defendants 1 to 9 is illegal, inoperative and void.
3. Defendant No. 10 did not file any written statement or contest the suit and accordingly he was set ex-parte. Defendants 1 to 9 have filed a joint written statement. According to these defendants, defendant No. 10 was no doubt the natural born son of Narasingha, but he had been adopted by Hadibandhu. The three brothers Balabhadra, Hadibandhu and Narasingha died in that order and till their respective deaths they were joint in mess and estate. Balabhadra died in the year 1933 while he was in a state of jointness with his brothers Hadibandhu and Narasingha upon whom the entire property devolved after Balabhadra s death. Subsequently Hadiba
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