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HIGH COURT OF ORISSA
G. K. Misra, J.
SRI GOPINATH DEB - Appellant
Versus
JAGANNATH BARAL - Respondent
Second Appeal 289 Of 1964
Decided On : AUGUST 13, 1968
HINDU LAW - JOINT FAMILY - SEVERANCE OF STATUS - TRANSFER BY ONE COPARCENER WITHOUT CONSENT OF OTHERS - VALIDITY - EVIDENCE ACT (1 OF 1872), SECTION 32(3) - ADMISSIBILITY OF STATEMENT AGAINST INTEREST - PROBATIVE VALUE - POSSESSION - EVIDENCE - RENT-RECEIPTS - EVIDENTIARY VALUE.
Fact of the Case:
Pira, Madhab, and Luxman were members of an undivided joint family. Luxman sold the suit property to Haridas without the consent of the other coparceners. Haridas sold the property to defendant 1, a deity. Plaintiffs, the sons of Pira, Madhab, and Luxman, filed a suit for declaration of title, confirmation of possession, or recovery of possession.
Finding of the Court:
The trial court dismissed the suit, holding that Luxman was separate from his brothers and that he validly transferred the suit property. The lower appellate court reversed both the findings and decreed the suit.
Issues: 1. Whether Luxman was separate from his brothers at the time of the transfer. 2. Whether the plaintiffs have successfully proved possession within 12 years of the suit.
Ratio Decidendi: 1. The finding of the lower appellate court that there was no severance of joint status amongst the three brothers is a pure finding of fact not assailable in second appeal. 2. The statement of Madhab in Ex. C that Luxman was separate from the (family?) is admissible under Section 32 (3) of the Evidence Act. However, the statement has no probative value as it was a false statement made by him for success in the criminal case. 3. As a result of the aforesaid discussion, the finding that Pira, Madhab, and Luxman were members of an undivided joint family cannot be assailed. It follows as a corollary that Ex. E cannot transmit a valid title to Haridas. 4. The evidence of possession on behalf of the plaintiffs is worthless. The evidence of defendant-2 (D. W. 2), corroborated by the rent-receipts Ex. A series, is better than that of P. W. 1. Plaintiffs' suit therefore, fails. 5. The finding of fact recorded by the lower appellate court on the question of possession should be disturbed in second appeal as it committed an error of record in relying on the evidence of P. W. 2 as if she deposed to the factum of possession, accepted the evidence of P. W. 3 as an independent witness without perusing his evidence that he had no idea of possession, and discarded the rent-receipts Ex. A series pertaining to the suit land as having no evidentiary value.
Final Decision: The judgment of the lower appellate court is set aside and the plaintiffs' suit is dismissed. The second appeal is allowed with costs throughout.
G. K. MISRA, J.
( 1 ) HARI Baral had three sons, Pira, Madhab and Luxman. Plaintiffs 1, 2 and 3 are the sons of Pira, Madhab and Luxman respectively. Plaintiffs 2 and 3 are natural born sons of plaintiff 1 (sic ). The suit was for declaration of title, confirmation of possession, or, in the alternative, for recovery of possession on the following averments; Pira, Madhab and Luxman were members of an undivided joint family and so also the plaintiffs. The suit land appertains to Khata No. 271 of village billipada and is their ancestral property. The three brothers were in joint possession as members of the undivided family. In 1953 the defendants threatened to forcibly cut and remove paddy from the disputed land raised by the plaintiffs. On an inquiry into the matter, the plaintiffs came to learn that Luxman had executed a registered sale deed (Ex. E) in respect of the suit property in favour of one Hari Das of Kundheibentasai, Puri town, on 8-8-32, and that one panchu Das, describing himself as the son of Hari Das, executed another sale deed (Ex. D) in respect of the very property to defendant 1 on 10-11-53. Both the registered documents were colourable and fraudulent transactions without receipt of consideration and were not for legal necessity. All through the property was in possession of Pira, Madhab and Luxman. The last two brothers died in 1944. The sale deed executed by Luxman in respect of the joint family property without the consent of other coparceners, cannot convey any title to the vendee. Defendant-1 is the deity Sri Gopinath Deb. Defendants 2 to 4 are the Marfatdars of the deity. Ex. D has been purchased in the name of the deity through the marfatdars defendants-2 to 4. The defence case is that Pira, Madhab and Luxman separated in mess in or about 1930. There was severance of joint status though there was no partition by metes and bounds. The three brothers, however, continued to cultivate their lands jointly and enjoyed the usufructs by dividing the same fin three equal shares. Luxman sold Hie suit land under Ex. E to meet certain necessities of his own. Similarly Ex. D was for consideration. Hari Das remained in possession of the land, got Ms name mutated in the landlord's sherista and cultivated the land through bhag tenants. After Ms death, his widow Chandramani and son Panchu Das remained in possession as owners. After the death of chandramani. Panchu sold the disputed property to defendant 1 for a consideration of Rs. 375. Defendants 2 to 4 are in possession of the disputed land on behalf of the deity. The trial Court dismissed the suit holding that Luxman was separate from his brothers and that he validly transferred the suit property. It, however, found that the plaintiffs failed to prove that they were in possession. In appeal, the lower appellate court reversed both the findings and decreed the suit. Defendants have filed the second appeal.
( 2 ) BEFORE going into the question of title and possession on merit, it would be necessary to state certain facts regarding abatement of the first appeal and the second appeal. The suit was dismissed on 11-8-62. Title Appeal before the District judge was filed on 26-9-62. Bholi Baral (defendant 3) died on 8-12-62 and his heirs were not substituted. The appeal was allowed on 8-2-64. Adhikari Baral (defendant 2) died on 7-3-64. Defendants filed the second appeal on 7-7-64 impleading all the four sons of Adhikari as legal representatives on filing an application, under Chapter VI. Rule 3 of the Orissa High Court Rules. Admittedly adhikari had two married daughters who were not impleaded as appellants in the second appeal. Defendants took a ground in the second appeal that plaintiff's appeal abated in the lower appellate Court for not substituting the legal representatives of Bholi Baral. Plaintiffs-respondents have filed an affidavit on 262-65 stating that the two daughters of Adhikari Baral had not been substituted and that the second appeal had abated. On 15-3-65
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