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2016 Supreme(Ori) 646
IN THE HIGH COURT OF ORISSA, CUTTACK
A.K. RATH, J.
Rakhal @ Rakhal Chandra Murmu & Others – Appellants
Versus
Pama Murmu & Others – Respondents
R.S.A. No. 181 of 2008
Decided On : 23-09-2016
For the Appellant : Mr. R.K. Mohanty.
For the Respondent: Mr. B.P. Satpathy.
The main legal point established in the judgment is the application of the Hindu Succession Act, 1956 to parties governed by the Old Mitakshara School of Hindu Law and the entitlement of the surviving heir to the property after partition.
Headnote:
Hindu Succession Act - Partition Dispute - Old Mitakshara School of Hindu Law - [ACT SECTION LIST] - The court discussed the application of the Hindu Succession Act, 1956 to the parties, the concept of partition under the Old Mitakshara School of Hindu Law, and the evidence of partition between the parties. The court highlighted the legal principles from relevant case laws and concluded that the plaintiff, as the sole surviving heir, succeeded to the property of her husband after his death.
Fact of the Case:
The plaintiff, a 'Santal' by caste, filed a suit for declaration of title and partition of Schedule-B property, claiming that the Hindu Succession Act, 1956 does not apply to them. The defendants, also 'Santal' by caste, denied the partition and claimed that the plaintiff had no right over the suit land.
Finding of the Court:
The trial court decreed the suit, which was affirmed by the appellate court. The court held that there was a partition between the parties, and the plaintiff, as the sole surviving heir, succeeded to the property of her husband after his death.
Issues: The issues included the maintainability of the suit, mis-joinder and non-joinder of parties, ownership of C-Schedule land, partition of B-Schedule land, and the rights of the plaintiff and defendants over the suit land.
Ratio Decidendi: The court found that the Hindu Succession Act, 1956 did not apply to the parties, and there was evidence of partition between the parties, leading to the plaintiff's entitlement to the property of her husband after his death.
Final Decision: The second appeal was dismissed as it did not involve any substantial question of law.
JUDGMENT :
A.K. RATH, J.
1. Defendants 1 to 3 are appellants against an affirming decision.
2. To appreciate the inter se disputes, it would be prudent to furnish the genealogy, which is as follows:-
Gobinda @ Gopal Majhi
Mangal Pama (Plff)
Budhia = Jhana (D-3)
Bhaja (D-4)
Samari (D-5)
Rakhal (D-1)
Sitaram (D-2)
3. Respondent no. 1 as plaintiff instituted a suit for declaration of title and partition of Schedule-B property. The case of the plaintiff is that the parties to the suit are ‘Santal’ by caste and governed by Old Mitakshara School of Hindu Law. The Hindu Succession Act, 1956 does not apply to them. Gobinda @ Gopal Majhi was the common ancestor of the parties. He died leaving behind him four sons, namely, Mangal, Budhia, Bhaja and Samari. Mangal and his brothers had purchased Ac.8.29 decimals of land appertaining to Hal Katha No. 54 of Village Chunat. The said land was recorded in their names in the current settlement. Since dissensions cropped up in the family, Budhia expressed his intention to remain separately. The lands mentioned in Schedule-B of the plaint were partitioned between four brothers amicably. After partition, the parties were in possession of lands allotted to them. The land described in Schedule-C of the plaint and Ac.0.30 decimals of land sold to defendant No. 6 had been allotted to the share of Mangal. Mangal was in possession of the land separately as the owner thereof. Mangal had sold Ac.0.30 decimals of land to defendant No. 6. After death of Budhia, his sons and widow, defendants 1 to 3 remained in possession of the lands allotted to the share of Budhia and her husband. She and her daughter Paunra inherited and possessed Schedule-C land. Her daughter died about 4 years back. The defendant No. 6 is in possession of the land to him by her husband. While the matter stood thus, she approached the defendant Nos. 1 and 4 for preparation of separate documents in her name in respect of the suit land. They turned a deafer, whereafter she filed the suit.
4. Pursuant to issuance of summons, defendants 1 to 5 entered appearance and filed a joint written statement denying the assertions made in the plaint. The defendants did not dispute about purchase of Schedule-B land by Mangal and his brothers. The specific case of the defendants is that there was never any partition of Schedule-B property between the husband of the plaintiff and his three brothers. They are schedule tribes and governed by the Old Hindu Law. The plaintiff, who is a female, has no right, title, interest or possession over the suit land. It was further stated that Mangal had orally sold Ac.0.50 decimals of land out of Hal Plot No. 212 of holding No. 54 of Mouza-Chuhat for a consideration of Rs.90/- to defendant No. 5 and delivered possession to defendant No. 5 on 1.1.1975. Again on 1.1.76, Mangal sold Ac.0.35 decimals of land of Plot No. 65 of Holding No. 54 for a consideration of Rs.85/- orally and delivered possession of the same to defendant no. 5. The plaintiff resides in Village-Chaksuliapada. It is further stated that Mangal had undertaken to register the land purchased by the defendant no. 5, but then before such registration, he expired. Defendant no.5 is in peaceful possession of the land purchased from Mangal.
5. The defendant no. 6 filed a separate written statement. His case is that he has purchased Ac.0.30 decimals and 75 Barga-Kadies of lands out of A.1.23 decimals of land of Plot No. 215 of Holding No. 54 of Mouza-Chuhat by means of registered sale deed No. 2671 dated 22.06.1987. After purchase, the land has been recorded in his name under Mutation Holding No. 99/11. He is a bona fide purchaser. He is exercising all acts of ownership over the same.
6. On the inter se pleadings of the parties, learned trial court framed six issues, which are as follows:-
“1. Is the suit maintai
