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2017 Supreme(Ori) 1164
IN THE HIGH COURT OF ORISSA : CUTTACK
A.K. RATH, J.
Jadunath Jena - Appellant
Versus
Hiramani Bewa & others - Respondents
S.A. No. 175 of 1984
Decided On : 22-12-2017
For the Appellant : Mr. Ramakanta Mohanty, Sr. Adv., Mr. K.K. Mohapatra, Adv.
For the Respondents: Mr. S. Mantry, Adv.
Headnote:
Mortgage - Hindu Succession Act - Sec. 14, Specific Relief Act - Sec. 31, Evidence Act - Sec. 58 - [Plaintiff's Interest in Ancestral Property] - [Hindu Succession Act, 1956, Sec. 14; Specific Relief Act, Sec. 31; Evidence Act, Sec. 58] - The court discussed the plaintiff's interest in the ancestral property under the Hindu Succession Act, 1956, and the applicability of Sec. 14, as well as the requirements under Sec. 31 of the Specific Relief Act and Sec. 58 of the Evidence Act. The court's decision was influenced by the interpretation of these legal provisions, determining the plaintiff's absolute ownership of the property and the validity of the mortgage deed and decree in T.M.S No.72 of 1974.
Fact of the Case:
The plaintiff sought a declaration that the decree and mortgage deed related to ancestral property were illegal and invalid. The trial court dismissed the suit, but the appellate court allowed the appeal, holding that the plaintiff became the absolute owner of the property under the Hindu Succession Act, 1956.
Finding of the Court:
The court found that the plaintiff acquired absolute ownership of the ancestral property under the Hindu Succession Act, 1956, and that the mortgage deed and decree were invalid and not binding on the plaintiff.
Issues: The issues included the plaintiff's interest in the ancestral property, the validity of the mortgage deed, non-joinder of necessary parties, and the jurisdiction of consolidation authorities.
Ratio Decidendi: The court's decision was based on the interpretation of the Hindu Succession Act, 1956, and the Specific Relief Act, as well as the evidence presented regarding the plaintiff's possession of the property and the non-joinder of necessary parties.
Final Decision: The appeal was dismissed, and the suit was decreed in favor of the plaintiff, declaring the mortgage deed and decree as illegal and not binding on the plaintiff.
JUDGMENT :
A.K. Rath, J.
This appeal is directed against the judgment of the learned Subordinate, Anandapur in Title Appeal No. 7 of 1982 reversing the judgment of the learned Munsif, Anandapur.
2. Respondent no.1 as plaintiff instituted a suit for declaration that the decree passed in T.M.S No.72 of 1974 and mortgage deed executed in favour of defendant no.8 are illegal and invalid.
3. The following family tree would show the relationship of the parties.
Family Tree
Bira Sa = Tulsi
Sachi
(daughter)
D-5
Gopinath
(son)
Jhumuri
(daughter)
D-6
Mauda
(daughter)
D-7
Parikhit
(son)
Dharani
(son)
D-1
Hiramani
(wife) Plf.
Asamani(wife) (D.2)
Kishore
Son
D-3
Bisaya
(daughter)
D-4
Case of the plaintiff was that Bira Sa was the common ancestor of the parties. After the death of Bira, the suit land was in possession of his three sons. His daughters are married. After death of her husband Gopinath, plaintiff used to stay with Parikhit and Dharani. They were separated in mess and possessed the suit land jointly. Tulasi, wife of Bira, died in the year 1963. To press their legal necessity, the plaintiff, Parakhit and Dharani mortgaged the suit land in the bank and borrowed a sum of Rs.2000/-. It was further pleaded that Parikhit and Dharani borrowed a sum of Rs.200/- from defendant no.8. On 20.12.1979, they transferred the suit land in favour of defendant no.8 by executing a deed of mortgage. Thereafter, defendant no.8 instituted a suit in the court of the learned Munsif, Anandapur in T.M.S. No.72 of 1974 for resumption of mortgage deed and obtained preliminary decree against Parikhit and Dharani without impleading the plaintiff as a party. The deed was not binding on her. With this factual scenario, the suit was instituted seeking the reliefs mentioned supra.
4. Defendants 1 to 7 have filed a written statement supporting the case of the plaintiff.
5. Defendant no.8 filed a written statement stating, inter alia, that plaintiff had no interest over the ancestral properties, since her husband died prior to coming into operation of the Hindu Succession Act. The mortgage in favour of defendant no.8 was made in the year 1960 by defendant no.1 and Parikhit. The subsequent mortgage done in favour of defendant no.9 was inoperative as against defendant no.8. Bira died about 45 years back and Gopi died about 40 years back. After death of Gopi, the properties of Bira were possessed by defendant no.1 and Parikhit. In the year 1960, defendant no.1 and Parikhit borrowed a sum of Rs.200/- from defendant no.8 on execution of a deed of mortgage by conditional sale. The same was within the knowledge of the plaintiff. Since the loan was not paid, he instituted T.M.S No.72 of 1974 against defendant no.1 and heirs of Parikhit. Preliminary decree was passed. In the suit, the plaintiff has not impleaded the court guardian as a party. Thus the suit is bad for non-joinder of party.
6. Defendant no.9 filed a written statement. The case of the defendant no.9 was that plaintiff, Parikhit and Dharani mortgaged the suit property in the Bank and borrowed a sum of Rs.2000/-. Two instalments were paid and rest was still unpaid. Thus mortgage of the land in favour of defendant no.8 was not valid.
7. On the inter se pleadings of the parties, learned trial court struck seven issues. Parties led evidence. Learned trial court held that the suit properties are the ancestral properties of Bira and had not been partitioned by metes and bounds. The suit properties were in possession of Dharani and Parikhit. The same fell to their share after death of Bira. The suit properties were mortgaged to defendant no.8 which cannot be declare
