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1972 Supreme(Ori) 46
HIGH COURT OF ORISSA
S. K. Ray And B. K. Patra, JJ.
NRUSINGHA PRASAD DAS - Appellant
Versus
STATE OF ORISSA - Respondent
First Appeal 126 Of 1965
Decided On : April 25, 1972
A.B.MISHRA, A.MOHANTY, B.K.PAL, BIJOY PAL, H.G.Panda, J.CHANDRA PATRA, N.B.K.Murty, N.V.RAMDAS
A member of a joint Hindu family can separate himself from the family and enjoy his share in severally by a definite and unequivocal indication of his intention to do so, which may be evinced either by explicit declaration or by conduct.
Headnote:
PARTITION - HINDU LAW - MITAKSHARA JOINT FAMILY - SEVERANCE OF JOINT STATUS - DECLARATION OF INTENTION - PARTITION DEED NOT NECESSARY - EXPRESSION OF INTENTION BY CONDUCT - SUFFICIENT - SEPARATION OF ONE MEMBER FROM JOINT FAMILY - LIABILITY FOR DEBTS INCURRED BY OTHER MEMBERS AFTER SEPARATION - NOT LIABLE.
Fact of the Case:
Appanna Das, the father of defendants 1 to 3, was appointed as a purchasing agent of paddy under the paddy procuring scheme in 1958-59. He executed an agreement and furnished security deposit and personal security bond for due performance of the agreement. Advances were made to him by the Collector, Ganjam. Appanna Das died on 4-6-1959. The stocks of paddy in the depots maintained by him were seized and a sum of Rs. 11,515.97 p. was realized by title sale thereof. A notice of demand was issued to defendants 1 to 3 and another notice to defendants 4 and 5 calling upon them to pay up the amount. They failed to make the payment. The State of Orissa instituted a suit for recovery of Rs. 12,999.53 P. with subsequent interest at six per cent, per annum from all the defendants.
Finding of the Court:
1. Defendant No. 1 had separated from his father Appanna Das in 1956 and was not liable for the suit liability incurred by Appanna Das in 1959. 2. Defendant No. 2 had been given away in adoption to his maternal grandfather long before Appanna Das had incurred the suit liability. 3. The sale deed Ext. M under which defendant No. 2 had purchased the properties is collusive and without consideration, but this finding is set aside and the question is left open to be decided as and when any claim is preferred thereunder by defendant No. 2. 4. The decree against defendants 3, 4, and 5 would stand subject to the modification that the liability of each of the defendants 4 and 5 is limited only to Rs. 5,000/-.
Issues: 1. Whether defendant No. 1 had separated from his father Appanna Das before the latter's death and was not liable for the suit liability incurred by Appanna Das in 1959? 2. Whether defendant No. 2 had been given away in adoption to his maternal grandfather long before Appanna Das had incurred the suit liability? 3. Whether the sale deed Ext. M under which defendant No. 2 had purchased the properties is collusive and without consideration?
Ratio Decidendi: 1. Partition in a Hindu Mitakshara joint family is a severance of the joint status and is a matter of individual volition. 2. All that is necessary to constitute a partition is a definite and unequivocal indication of his intention by a member of a joint Hindu family to separate himself from his family and enjoy his share in severally. 3. Such declaration of intention may be evinced in different ways either by explicit declaration or even by conduct. 4. The recitals in Exts K and K-1 would amount to expression of intention by defendant No. 1 to separate himself from the joint family and to enjoy his share separately.
Final Decision: The appeal is allowed and the decree is set aside in so far as it is against defendants 1 and 2. The decree in so far as it relates to defendants 3, 4, and 5 would stand subject to the modification that the liability of each of the defendants 4 and 5 is limited only to Rs. 5,000/-.
PATRA, J.
( 1 ) THIS is an appeal by defendants 1 and 2. The suit giving rise to this appeal was instituted by the State of Orissa respondent No. 1 for recovery of Rs. 12,999-53 P. with subsequent interest at six per cent, per annum from all the defendants in the following circumstances: Defendants 1 to 3 are the sons of late Appanna Das and were living jointly with him with Appanna Das as the Karta of the family. The joint family was carrying on business of buying and selling foodgrains. Late Appanna das applied to the Collector of Ganjam for being appointed as a Purchasing Agent of paddy under the paddy procuring scheme in operation in the year 1958-59. His application was allowed and ha was appointed as purchasing agent for the parlakhemedi Zone. In accordance with the procedure prescribed. Appanna Das executed an agreement dated 31-1-1959 and furnished security deposit of Rupees 1,259/- and also executed a personal security bond for Rs. 10,000/- and furnished two sureties, namely, defendants 4 and 5 each of whom executed a surety bond for Rs. 5,000/- for due performance of the agreement by Appanna Das and for payment of any amount that the latter might owe to Government relating to the agreement. Subsequently on the application of Appanna Das, a total sum of Rs. 21,000/- was advanced to him by the Collector. Ganjam in three instalments Rs. 8,000/-, on 30-3-1959. Rs. 9,000/- on 6-4-1959 and Rs. 4,000/- on 26-5-1959. While the said contract of purchasing agency was in operation, Appanna Das suddenly died on 4-6-1959. The stocks of paddy in the depots maintained by him were seized by the orders of the Collector and a sum of Rs. 11,515. 97 p. was realised by title sale thereof. The advances made to Appanna Das carried interest at six per cent, per annum and after adjustment of the proceeds of the sale of paddy towards the total amount due from Appanna Das it was found that a sum of rs. 12,999. 53 p. was still due from him. A notice of demand was issued on 28-101963 to defendants 1 to 3 and another notice to defendants 4 and 5 calling upon them to pay up the amount. But they failed to make the payment. It was alleged that defendants 1 to 3 being the undivided sons and legal representatives of late appanna Das and having succeeded to his property by way of survivorship are under a legal obligation to discharge his liabilities and that defendants 4 and 5 as sureties are also liable to pay the amount.
( 2 ) ALL the defendants contested the suit. It is the case of defendant No. I that in the year 1956, he had separated from his father in mess, residence and property and consequently he was not liable to discharge any liability which Appanna Das might have incurred in the year 1958-59.
( 3 ) DEFENDANT No. 2 contended that long before 1959, he had been given away in adoption by his natural father Appanna Das to his maternal grandfather. Radhakrishna Sahu of Parlakhemedi and consequently he was not liable to discharge a debt which Appanna Das might have incurred in the year 1958-59. It was further averred by him that when Appanna Das died it was found that he had a liability of Rs. 18,000/- to the Cooperative Society. The latter threatened to proceed against the properties of Appanna Das. It was at that stage that defendant No, 3 and his mother approached this defendant to purchase some of the properties of Appanna Das and liquidate Ms liabilities and accordingly on 22-61959 defendant No. 2 purchased under the sale deed Ext, M those properties for a sum of Rs. 18,000/- which was paid to the Co-operative Society in full satisfaction of its dues against Appanna Das. In view of the claim made by him that be had been adopted to another family, he disclaimed any liability to pay up the dues of appanna Das.
( 4 ) DEFENDANT No. 3 the minor son of Appanna Das appearing through the Court guardian contended that the business of purchasing agency being a hazardous and speculative business was Abyabaharika in character and consequently he was
