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1958 Supreme(Ori) 68
HIGH COURT OF ORISSA
R.L.NARASIMHAM,G.C.DAS, JJ.
Kruttivasa Padhy
Versus
Malati Padhani
First Appeal No. 77 of 1949
Decided On : 30-10-1958
N.V. Ramdas, for Appellant; B.N. Das, B, Mohapatra, A.K. Thipathy, S.K. Ghosh and D.V.N. Rao, for Respondents,
An award of arbitrators partitioning immovable property is not compulsorily registrable, even if it is signed by the arbitrators and the parties.
Headnote:
PARTITION - AWARD - ADMISSIBILITY - REGISTRATION - ADOPTION - EVIDENCE.
Fact of the Case:
Plaintiff filed a suit for partition and mesne profits, claiming that the joint family properties of her husband Pitambar and his two brothers, Kruttibas and Appanna, were partitioned by metes and bounds by four arbitrators by an award dated 9-7-1929 (Ext. 6). The defendants, Pitambar's brothers, contested the partition and claimed that there was no partition and that Pitambar died while in a state of jointness with his brother Appanna. They also claimed that the plaintiff had adopted Saratha, the second son of defendant 2, as a son to her deceased husband Pitambar.
Finding of the Court:
The court held that the award of the arbitrators (Ext. 6) was genuine and admissible in evidence, and that it proved that the joint family properties were partitioned in 1929. The court also held that the award was not compulsorily registrable, as it was not a deed of partition but an award of the arbitrators. The court further held that the oral evidence of the defendants about the alleged adoption of Saratha by the plaintiff was not believable, and that there was no later document to show that the boy Saratha was ever treated as the adopted son of Pitambar.
Issues: 1. Whether the award of the arbitrators (Ext. 6) was genuine and admissible in evidence? 2. Whether the award was compulsorily registrable? 3. Whether the oral evidence of the defendants about the alleged adoption of Saratha by the plaintiff was believable?
Ratio Decidendi: 1. The court held that the award of the arbitrators (Ext. 6) was genuine and admissible in evidence, as it was signed by all the arbitrators and the parties, and there was no reason to disbelieve the evidence of the two arbitrators who appeared as witnesses on behalf of the plaintiff. 2. The court held that the award was not compulsorily registrable, as it was not a deed of partition but an award of the arbitrators, and the law at the time did not require awards to be registered. 3. The court held that the oral evidence of the defendants about the alleged adoption of Saratha by the plaintiff was not believable, as there was no document or deed of adoption to prove the factum of adoption, and there was no later document to show that the boy Saratha was ever treated as the adopted son of Pitambar.
Final Decision: The court affirmed the judgment and decree of the lower court, and dismissed the appeal with costs.
Judgement
R. L. NARASIMHAM, C. J. :- This is an appeal by the contesting defendants (Defendants 1, 2, 4, 5, 6 and 9) against the judgment and decree of the Additional Subordinate Judge, Berhampur, passing a preliminary decree for partition, for estimation of mesne profits, and for other consequential reliefs in favour of the plaintiff. The following is the pedigree showing the relationship of the parties.
2. The plaintiffs case was that the joint family properties of her husband Pitambar and his two brothers, Kruttibas and Appanna, were partitioned by metes and bounds by four arbitrators by an award dated 9-7-1929 (Ext. 6). At that time, her husband was a minor and his mother guardian Domini Dei accepted the award on his behalf. By virtue of the said award, the properties described in schedules A and B fell to Pitambars share.
The properties described in schedule D were given to Dommi Dei for her maintenance during her lifetime to be divided equally amongst the three sons after her death, and the properties described in schedule L were given away to Surekha as her marriage dowry. The properties described in schedule C were kept joint because the interest of the family in these properties consisted of only a fractional share, the remaining shares belonging to other co-sharers.
The other two brothers namely Kruttibas and Appanna were also allowed their respective shares, but subsequently the properties described in schedules J and K were transferred to either Pitambar or his widow Malati (Plaintiff). After partition, the eldest brother, namely Krutibas (defendant) remained in separate possession of his share, but the other two brothers namely Pitambar and Appanna, lived together mainly because Pitambar was a minor and Appanna managed his share of the properties also.
Dommi Dei died in due course and Pitambar after marrying the plaintiff died sometime in 1936 within two years of her joining him, leaving her a childless widow. Appanna (defendant 2) however continued to manage her share of the properties until 26-3-1938. He rendered account of his management of her share, and by a document (Ext. 1) dated 26-3-1938 agreed to pay her 45 Bharanams and 14 nowties of paddy, cash of Rs. 741 and 7½ tolas of gold in full settlement of accounts.
He also gave up possession of her share, and she exercised possession over the same by leasing out her lands to various tenants. Again on 22-3-1941 he made some payments towards the dues of the plaintiff as acknowledged in his deed of settlement (Ext. 1) and also made the necessary endorsements (Ext. 1-a) on that document. Not content with that, he on 3-4-1941 also conveyed to her the properties described in schedule J for Rs. 700 (Ext. 2) towards discharge of the balance of the debt due.
Subsequently, however, troubles arose mainly because the plaintiff was unwilling to adopt his second son Saratha (defendant 6) to her deceased husband. Defendants 1 and 2 then made common cause against her and forcibly dispossessed her from some of her properties. She then brought a criminal case through her tenant Padmanabh Panigrahi against them, but they successfully defended themselves and got acquitted. This acquittal so much emboldened them, that they forcibly dispossessed her of almost all her properties leaving her no other alternative but to bring the present suit under appeal on 22-3-1947.
3. Defendants 1 and 2 who are the main contesting defendants have made common cause and alleged that there was no partition of the joint family properties in 1929 as alleged. According to them defendant 1 alone partitioned during the lifetime of his father prior to 1924 and lived separate with his share of me joint family properties. Subsequently he made several acquisitions from his own earnings, which were not available for partition in the present dispute. They further alleged that the plaintiffs-husband Pitamber and defendant 2 remained joint throughout till Pitambars death and that consequently defendant 2 as the sole sur
