Back
1997 Supreme(Ori) 285
IN THE HIGH COURT OF ORISSA
R.K. Dash, J.
SMT. JASODA MOHANTY AND ANOTHER - APPELLANT
Versus
HARISH CHANDRA MOHANTY AND ANOTHER - RESPONDENT
First Appeal No. 28 of 1986
Decided On : 03-02-1997
Y.S.N. Murty and P. Misra, for the Appellant; None, for the Respondent
Exclusion from joint family property under Article 110 of the Limitation Act, 1963 requires conscious and deliberate act amounting to denial of right by member concerned to have any benefit from common property.
Headnote:
PARTITION SUIT - LIMITATION - ADVERSE POSSESSION - HINDU SUCCESSION ACT, 1956 - SECTION 6 - SHARE OF WIDOW AND DAUGHTER IN ANCESTRAL PROPERTY - SECTION 14 - SHARE OF WIDOW AND DAUGHTER IN SELF-ACQUIRED PROPERTY - SECTION 15 - SHARE OF WIDOW AND DAUGHTER IN PROPERTY INHERITED FROM FATHER - LIMITATION ACT, 1963 - ARTICLE 110 - EXCLUSION FROM JOINT FAMILY PROPERTY - SUMMARY
Fact of the Case:
Plaintiffs, widow and daughter of Purna, filed a suit for partition of ancestral properties against defendants, Purna's brother and mother. Plaintiffs claimed one-third share in the ancestral properties, alleging that Purna died in 1957. Defendants claimed that Purna died in 1955 and that the suit was barred by limitation under Article 110 of the Limitation Act, 1963. The trial court dismissed the suit, holding that it was barred by limitation.
Finding of the Court:
The High Court held that the suit was not barred by limitation as there was no evidence that the defendants had excluded the plaintiffs from enjoyment of the ancestral properties. The Court also held that Purna died in 1957 and that the plaintiffs were entitled to one-ninth share each in the ancestral properties, while defendant No. 1 was entitled to one-third share and defendant No. 2 was entitled to four-ninth share.
Issues: 1. Whether the suit was barred by limitation under Article 110 of the Limitation Act, 1963? 2. Whether Purna died in 1955 or 1957? 3. What were the shares of the plaintiffs and defendants in the ancestral properties?
Ratio Decidendi: 1. Article 110 of the Limitation Act, 1963 applies when a member of a joint family is excluded from enjoyment of the property to his knowledge. In the present case, there was no evidence that the defendants had excluded the plaintiffs from enjoyment of the ancestral properties. 2. The Court relied on the Death Register, which showed that Purna died on 14-11-1957, to hold that Purna died in 1957. 3. Under Section 6 of the Hindu Succession Act, 1956, the widow and daughter of a deceased person are entitled to one-third share each in his ancestral property. Under Section 14 of the Act, the widow and daughter of a deceased person are entitled to one-half share each in his self-acquired property. Under Section 15 of the Act, the widow and daughter of a deceased person are entitled to one-third share each in the property inherited by him from his father.
Final Decision: The High Court set aside the judgment and decree of the trial court and decreed the suit in part. The Court held that the plaintiffs were entitled to one-ninth share each and defendant No. 1 was entitled to one-third share and defendant No. 2 was entitled to four-ninth share in the suit properties.
JUDGMENT :
R.K. Dash, J. - Unsuccessful plaintiffs are in appeal against the judgment and decree of the learned Subordinate Judge, Karanjia (as he was designated then) dismissing the suit for petition simpliciter,
2. Plaintiffs case may briefly be stated thus:
Udayanath Mohanty, common ancestor of plaintiffs and defendant No. 1, died sometime in 1948 leaving behind his widow, defendant No. 2 and two sons, namely. Purna and Harish, defendant No. 1. Purna died on 14-11-1957 leaving behind his widow Yasoda. plaintiff No. 1 and daughter Sukanti, plaintiff No. 2. Total extent of lands possessed by Udayanath are set out in Schedule-B of the plaint. According to plaintiffs, item Nos. 1, 2 and 3 were ancestral properties and item No. 4 was the self-acquired property of Udayanath. So far as item No. 3 is concerned, though the sale deed stands in the name of Kamala, defendant No. 2, it was acquired by Udayanath out of joint family funds defendant No. 2 having no independent source of income to acquire the said property. As to item No, 5, the same was obtained by exchange with one Harihar Misra and after having acquired the same, Udayanath constructed his house thereon and resided there with his family. On his death the said residential, house was possessed by his two sons and his widow, defendant No. 2 and now the same is under possession of defendants 1 and 2 only. . After death of Puma, defendant No, 1 intending to grab all the properties did not treat the plaintiffs well. So after marriage of plaintiff No. 2, plaintiff No. 1 has been residing sometimes in her father's house and sometimes with her daughter. The further case of the plaintiffs is that defendant No. 2 in whose name property under item No. 3 of the schedule was acquired, disposed of the said property by way of gift to her son defendant No. 1, but since the acquisition was out of joint family funds, they are entitled to a share in it. As regards item No. 6, their case is that defendant No. 1 in the meantime has sold away the same to defendant No. 3 and this transfer being without their knowledge and consent will not bind their interest therein. It is asserted by the. plaintiffs that in whole of the suit properties Purna's one-third share devolved upon them and to carve out their interest they requested the defendants for amicable partition and the same having been turned down, they filed the present suit. Further case of the plaintiffs is that the joint family possessed of the house as per Schedule-C and movables as per Schedule-D of the plaint and all the moveable and immovable properties should be equally partitioned between them and defendants 1 and 2 according to their share.
3. Defendants 1 and 2, the main contesting defendants while admitting the plaintiffs' case that the properties described in item Nos. 1, 2, 4. and 6 of Schedule-B are the joint family properties, denied the plaintiffs' case so far as item Nos. 3 and 5 are concerned and asserted that the properties described therein were the self-acquired properties of defendant No. 2, inasmuch as she purchased item No, 3 out of her own income and with regard to item No. 5, the recorded owner Ayodhya Dei, her God-mother, out of love and affection gave the same to her for construction of a house whereupon a house was constructed which is now being used as residential house by both the defendants. So far as the property in item No. 6 is concerned, the, case of the defendants is that to meet the funeral expenses of plaintiff No. 1's husband loan of Rs. 600/- was incurred and to repay the said loan, the said item of property was transferred by way of sale to defendant No. 3 and therefore such transfer binds the interest of plaintiffs. The further case of the defendants is that Purna, the predecessor of the plaintiffs, died in 1955 whereafter plaintiff No. 1 left for her parent's house with her daughter, plaintiff No. 2 and; since then defendant No. 1 has been possessing all the properties as of right and to the knowledge
