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ORISSA HIGH COURT
Dr. S. Muralidhar, C.J. and M.S. Raman, J.
Hatanagar Ghose and Ors. – Appellants
versus
Durgamani Ghose and Ors. – Respondents
AHO No.34 of 1998
Decided on 17.2.2023
Counsel for the Parties:
For the Appellants:Mr. Avijit Pal, Advocate
For the Respondents:Mr. Dwarika Prasad Mohanty, Advocate
IMPORTANT POINT
Partition Suit – Self-acquired properties– Where person claims that property is self-acquired, burden is on such person to prove that it is self-acquired.
Headnote:
(A) Partition Suit – First appeal – Question of law - There was no occasion for Single Judge to have framed any question regarding validity of decree of trial Court in so far as it required partitioning of Schedule ‘Ga’ properties – Such issue did not arise in appeal filed by Plaintiff, which was only appeal before Single Judge – Specific finding of trial Court was that in absence of clear proof of subsequent partitioning of ‘Ga’ Schedule properties, “Plaintiff is entitled to half share from out of it” – Single Judge fell in error in reopening question whether ‘Ga’ Schedule properties were self-acquired properties of Defendant No.1 and proceeding to answer said question in favour of Defendant No.1, thereby reversing trial Court on this point, despite fact that Defendant No.1 never questioned to it – Impugned order of Single Judge in so far as it holds that ‘Ga’ Schedule properties are self-acquired properties of Defendant No.1 and not available to be partitioned set aside. [Paras 25, 26]
(B) Partition Suit – Self-acquired properties or Joint family nucleus – Validity of partition deed – Where person claims that property is self-acquired, burden is on such person to prove that it is self-acquired – It was Defendant No.1 who contended before Single Judge that ‘Ga’ Schedule properties were self-acquired – Burden of proof in this regard was on Defendant No.1 – Defendant No.1 was unable to discharge that burden - Finding of trial Court was clear that notwithstanding that sale deeds may have been in names of Defendant No.1 and his sons, there was nothing to show that those properties, which had been shown as joint in partition deed, had in fact been partitioned – Having accepted finding of trial Court that partition deed was validly executed partition deed, Single Judge was in error in holding that ‘Ga’ Schedule lands reflected in said partition deed were not joint but were self-acquired properties of Defendant No.1 – Impugned judgment of First Appellate Court to extent that it has observed that ‘Ga’ Schedule properties were self-acquired property of Defendant No.1 set aside. [Paras 27, 30, 31, 32, 33]
Result: Appeal disposed of.
JUDGMENT
Dr. S. Muralidhar, CJ.—This appeal, by the legal representatives (LRs) of the unsuccessful Plaintiff in Civil Suit O.S. No.50 of 1974-I (Late Dayanidhi Ghose) is directed against a judgement dated 23rd June 1998 passed by the learned Single Judge of this Court dismissing the Plaintiff’s appeal F.A. No.41 of 1979.
2. The said F.A. No.41 of 1979 was in turn filed by Dayanidhi Ghose against the judgment dated 30th October, 1978 and a Decree dated 9th November, 1978 passed by the trial Court, i.e., the Subordinate Judge, Balasore in Civil Suit O.S. No.50 of 1974-I. The trial Court negatived the challenge by the Plaintiff to the validity of a partition deed dated 27th March 1962 (Ext. N) and the consequential division of the properties thereunder between the Plaintiff Dayanidhi Ghose and his brother Baina Ghose (Defendant No.1). The trial Court however accepted the plea of the Plaintiff that the properties mentioned in Schedule ‘Ga’ to the partition deed (Ext. N) were kept joint and were to be partitioned in equal shares between the Plaintiff Dayanidhi Ghose and his brother Baina Ghose (Defendant No.1). F.A. No. 41 of 1979 filed in this Court by Dayanidhi Ghose against the trial Court judgment was limited to questioning its rejection of the Plaintiff’s challenge to the validity of the partition deed dated 27th March 1962 (Ext.N).
3. By the impugned judgment dated 23rd June 1998 dismissing F.A. No.41 of 1979, the learned Single Judge of this Court reversed the finding of the trial Court that the ‘Ga’ Schedule properties were joint family properties and held that they were the self-acquired properties of Defendant No.1. The learned Single Judge held that the ‘Ga’ Schedule properties were not liable to be partitioned between the Plaintiff and Defendant No.1. That is how this appeal has been filed by the LRs of the original Plaintiff.
4. The principal question that arises in this appeal is whether a portion of the properties standing in the name of a male Hindu (Defendant No.1) who was the Karta of a joint Hindu family were his self-acquired properties or acquired under the joint family nucleus?
5. The background facts leading to the filing of the suit were that Baina and Dayanidhi Ghose were the two children of the second wife of the son of late Nandi Ghose who was their common ancestor. Of the two sons Pahali and Dhinu, the latter branch was extinct. Pahali had two wives. Ganesh was the son of the first wife and Baina (Defendant No.1), Nandu and Dayanidhi (the Plaintiff) were the children of the second wife. Ganesh died leaving four sons Abhinash, Krutibash, Kailash and Srinibas.
6. Kailash died leaving behind his widow Dhira, Defendant No.5 and daughter Jema alias Katibudhi (Defendant No.6). Baina’s sons were Subodh (Defendant No.7), Jhadeswar (Defendant No.8), Banishidhar (Defendant No.9) and Isaneswar (Defendant No.10). Nandu died leaving his wife Padmabati, who also died. Nandu’s branch thereby became extinct. Baina Ghose was the karta of the joint Hindu family consisting of himself and his brother Dayanidhi Ghose.
7. The case of Dayanidhi Ghose in the suit O.S. No.50 of 1974-I was that in an earlier partition, Ganesh took Ac 4.40 dec of land and was separated from the joint family. The property described in Schedule ‘Kha’ of the plaint were ancestral and those in “Ga” were the properties acquired in the name of Defendant No.1 as karta of the joint family out of the joint family nucleus. Earlier Padmabati, the widow of Nandu, had filed a partition suit i.e., O.S. No.53 of 1959 and by compromise the suit was decreed with her getting Ac. 1.88 dec of land in schedule ‘Uan’, cash of Rs. 4,000 and paddy.
8. The further case of the Plaintiff was that by virtue of a partition deed dated 27th March, 1962, Baina Ghose took a larger share of the joint family properties than what he was entitled to. According to the Plaintiff the properties in Schedule ‘Ga’ measuring Ac 4.000, although stands recorded in the name of Defendant No.1
