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IN THE HIGH COURT OF ORISSA
P.K. Misra, J.
DUKHI DEI AND OTHERS - APPELLANT
Versus
KHULANA ALIAS KHULA BEWA AND OTHERS - RESPONDENT
First Appeal No. 4 of 1983
Decided On : 01-12-1999
PARTITION - HINDU SUCCESSION ACT, 1956 - SECTION 14 - AMENDMENT OF PLAINT - DELAY - EXPLANATION - REJECTION OF AMENDMENT - JUSTIFICATION - DATE OF DEATH OF PARAMANANDA - EVIDENCE - DEATH CERTIFICATE - RECORD-OF-RIGHTS - SALE DEED - INTERPRETATION - FINDING OF TRIAL COURT - UPHELD.
Fact of the Case:
Plaintiffs filed a suit for partition of 'B' Schedule property, claiming inheritance from Paramananda, who died in 1958, leaving behind two sons and three daughters. Defendant No. 1, widow of one of the sons, claimed that Paramananda died in 1949 and that the properties devolved upon his sons, excluding the daughters. The trial court found that Paramananda died in 1949 and dismissed the suit.
Finding of the Court:
The High Court upheld the trial court's finding that Paramananda died in 1949, based on evidence including a death certificate, the Record-of-Rights, and a sale deed executed by one of the sons in 1950, which described the father as "Late Paramananda Rout". The Court also rejected the Plaintiffs' applications for amendment of the plaint, which sought to incorporate allegations of separation among the male members of the family and inheritance from Paramananda's widow after the Hindu Succession Act came into force, finding that the amendments were sought at a belated stage and would necessitate a fresh trial.
Issues: 1. Date of death of Paramananda. 2. Maintainability of the suit. 3. Right of the Plaintiffs to claim partition. 4. Amendment of the plaint.
Ratio Decidendi: 1. The Court relied on the Death Certificate, Record-of-Rights, and the sale deed to conclude that Paramananda died in 1949, prior to the commencement of the Hindu Succession Act, 1956. 2. Since Paramananda died before the Hindu Succession Act came into force, the daughters did not inherit any share in the properties, which devolved upon his sons. 3. The Plaintiffs, as daughters of Paramananda, had no right to claim partition of the properties. 4. The Court rejected the Plaintiffs' applications for amendment of the plaint, finding that the amendments were sought at a belated stage and would necessitate a fresh trial.
Final Decision: The appeal was dismissed, and the trial court's decision was upheld.
JUDGMENT :
P.K. Misra, J. - Plaintiffs are the Appellants. The suit was filed for partition in respect of 'B' Schedule property. The relationship between the parties is revealed from the geneology furnished in Schedule-A of the plaint. From the said geneology it appears that one Paramananda Rout had three sons-Purnananda, Banambar and Banamali and four daughters - Suna, Guna, Moni and Dukhi. Purnananda and Banambar are dead and their widows are Defendant No. 1 and Defendant No. 2 respectively. 'Banamali has died issueless prior to death of Paramananda, Suna, Guna and Moni are dead. Dukhi as Plaintiff No. 1, whereas the legal representatives of Suna are Plaintiffs 2 and 3 and legal representatives of Guna are Plaintiffs 4 and 5. Defendant No. 12 represents the branch of Moni.
2. It is the case of the Plaintiffs that Banamali had predeceased Paramananda. It is fursher claimed that Paramananda died on 15-4-1958 leaving behind two sons, Purnananda and Banambar and three daughters Suna, Guna and Dukhi. Thereafter, Banambar, Suna, Guna and Paramananda passed away successively. It is claimed that the Plaintiffs and Defendants 1 and 2 have inherited the properties -left by Paramananda. It is further claimed that in order to deprive the present Plaintiffs of their legitimate share, Title Suit No. 5161 was collusively filed by present Defendant No. 2 (widow of Banambar) against Purnananda for partition without impleading the present Plaintiffs claiming eight annas share in the properties. In the said suit, a collusive compromise final decree was passed allotting one-third share to present Defendant No. 2 and two-third share to Purnananda, Purnananda and after him his widow (defendant No. 1) have alienated certain properties in favour of Defendants 3 to 9, but the Plaintiffs are not bound by such alienations. Similarly, Defendant No, 2 without any right alienated properties to Defendants 10 and II.
3. Defendant No. 1 in her written statement claimed that Paramananda died on 14-6-1949. The disputed properties were the ancestral properties of Paramananda who was the Karta of the joint family consisting of himself and his sons, Purnananda and Banambar. After death of Paramananda, his sons were entitled to the property and after death of Banambar, Defendant No. 2 being his widow filed Title Suit No. 5/61 claiming partition. The suit was decreed on 13-12-1962 giving one-fourth share to Defendant No. 2, who filed First Appeal No. 26 of 1963 in the High Court. The said appeal ended in a compromise allowing one-third share to present Defendant No. 2 and,two-third share to Purnananda and final decree was passed on 25-4-1975.
A separate written statement was filed by Defendants 2 and 9 taking similar stand. Alienation in favour of Defendant No. 9 was defended.
Similar written statements were filed by Defendant No. 10 and Defendants 3, 4 and 5.
Defendant No. 12 in her written statement claimed one-fifth share in the land of Paramananda.
3. On the above pleadings, the following Issues were framed by the trial court:
1. Whether the suit is maintainable in law?
2. Whether the Plaintiffs have got cause of action to bring the suit?
3. Whether Paramananda died on 15-4-1958 or on 14-6-1949 ?
4. Whether the properties in suit are liable for partition?
5. To what relief, if any Plaintiffs are entitled ?
4. While deciding Issue Nos. 3 and 4 together, it was held that Paramananda had expired on 14.6-1949 and not on 15-4.1958 as claimed by the Plaintiffs. In view of such finding, it was held that the Plaintiffs had no right to claim partition as the properties bad devolved upon the sons of Paramananda and the daughters of Paramananda did not have any right. Accordingly the suit was dismissed.
5. In the present appeal at the instance of the Plaintiffs, the main question relates to date of death of Paramananda. The Plaintiffs have also filed two applications almost similar in nature for amendment of the plaint, wherein the Plaintiffs have sought to incorporate new paragraphs
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