JUDGMENT
B. Panigrahi, J.
1. The defendant No. 1 in O.S. No. 421 of 1985 of the Court of Munsif, Puri has filed this appeal challenging the reversing judgment and decree passed by the learned District Judge, Puri in Title Appeal No. 80 of 1089.
2. The factual matrix leading to this, appeal is as follows :
The plaintiffs have claimed to be the sons of one Natabar Nayak. For better appreciation of the case of both parties, it is necessary to state the genealogy. One Gobardhan Nayak had two sons, namely, Baja Nayak and Jayakrushna Nayak. Baja had one son by name Natabar, father of the plaintiffs whereas defendant No. 2, Kunkumamani Mohanty, is the daughter of Jayakrushna. It is alleged in the plaint that Baja and Jayakrushna constituted a joint family. Jayakrishyna had no male issue. Natabar while he was two years’ old was given in adoption to Jayakrushna and was brought up by him as his natural born son. After the death of Jayakrushna the entire properties were enjoyed and possessed by Natabar and thereafter the properties were devolved upon the plaintiffs. It is the further case of the plaintiffs that after Jayakrushna’s death his daughter Kunkumamani, defendant No. 2, remained in her maternal uncle’s house along with her mother and had ceased ail connections with the joint family. While Jayakrushna died, Kunkumamani was in mother’s womb and thus was a posthumous female child of Jayakrushna.
3. The defendants’ stand in their written statement is that Jayakrushna’ wife continued to stay in the family of Natabar till her death and enjoyed the properties as a co-sharer. After her death, Jayakrushna’s interest devolved upon defendant No. 2, who sold Ac. 0.06 dec. out of Ac.0.12 dec. of the suit plot in favour of defendant No. 1 and he has been in possession of the same on the strength of the said sale deed purported to have been executed by defendant No. 2 in his favour. With these pleadings both the parties faced trial. The trial Court, however, found that the adoption was not proved. It was further observed that no evidence whatsoever was pressed to come to a positive conclusion regarding the year of death of Jayakrushna. With these observations, he dismissed the plaintiffs’ suit. They, being undeterred by the said decree of dismissal, filed an appeal before the learned District Judge, Puri who on hearing both parties has up-set the findings of the learned Munsif. That is how defendant No. 1 is in appeal.
4. Mr. N.K. Sahu, learned Advocate arguing on behalf of Mr. R.K. Mohapatra, learned Senior Advocate appearing for the appellant, vehemently submitted that there has been no evidence to establish that Natabar was given in adoption to Jayakrushna. From the mere entry in the record-of-rights of the year 1927 it cannot, however, be construed that such an adoption was in fact taken place before 1927. The entry in the record of right cannot confer the status of a person with regard to adoption or otherwise. The year of adoption has also not been given in the pleadings. There has been no significant evidence placed by the plaintiffs to satisfactorily prove that Natabar was given in adoption. Therefore, the trial Court has rightly come to the conclusion that because of absence of evidence on behalf of the plaintiffs, the adoption of Natabar by Jayakrushna cannot be accepted. It is true that in the trial Court a point was canvassed by the plaintiffs regarding the year of death of Jayakrushna and the trial Court also did not specifically mention as to when Jayakrushna died. It was further contended by the plaintiffs that since the name of no other male member was recorded in the R.O.R. in respect of the properties belonging to the joint family of Baja and Jayakrushna except Natabar, therefore, presumably it should be held that the properties exclusively belonged to Natabar’s family.
5. The appellate Court approached the case from a different angle and allowed the plaintiffs’ appeal, inter alia, holding that since Jayakrushna died prior to 1937, i.e. before passing of Hindu Women’s Right to Properties Act, 1937, therefore, his widow cannot claim any right over the joint family properties vis-a-vis defendant No. 2. It is, ho.wever, gathered from evidence that Jayakrushna’ wife died after 1956.
6. Mr. Sahu, learned counsel has drawn my attention to the fact that both the courts below palpably committed serious error in holding that Jayakrushna died prior to 1.937 expressly when there was no pleading nor evidence in this regard led by the plaintiffs. The question now arises for consideration is as to whether such a plea, without the evidence, can be pressed into service before the appellate Court. So far as operation of the Act is concerned, it pertains to a question of law which can be pressed into service by either party before the trial Court as well as the appellate court. But since the year of death is a pertinent question of fact, without pleading, the appellate court should not have jumped to the conclusion that Jayakrushna died prior to 1937. The appellate court has emphasized only on the basis of the entry in the R.O.R. prepared in the year 1927, vide Exts. 1 and 5. On a careful consideration of the entry it, however, does not conclusively suggest that Jayakrushna died prior to 1937. It only mentions that the properties stood recorded in the name of Natabar describing him to be the son of Jayakrushna. From this it cannot lead to an irresistible conclusion that Jayakrushna was dead by the time of preparation of R.O.R. in 1927.
7. Mr. Sinha, learned Advocate appearing for the plaintiff-respondents, while repelling Mr, Sahu’s contentions has placed reliance on the recitals of the sale deed executed in favour of defendant No. 1 by defendant No. 2. It is true that certain recitals have been made, but since those are self-serving narration of fact, implicit reliance cannot be placed on such recitals. It may be one of the circumstances which shall be considered along with the other evidence. If any inference regarding the year of death could arise from, Exts. 1 and 5, then it would be difficult to place explicit reliance to determine the date of death of Jayakrushna on the basis of recitals in Ext. A regarding the executant’s age to assess the year of death of Jayakrushna.
8. Certain developments have taken place during pendency of this case. At the time of trial the consolidation operation was continuing and record of rights were prepared which were relied upon by the defendants. Mr. Dash, learned Advocate appearing for the respondent No. 1 has submitted that his client filed a revisional application before the Commissioner of Consolidation who set aside the R.O.R.. It is understood that a writ petition is also pending in this Court. Since the matter is sub judice before this Court, it would be better to observe judicial restraint from making any comments on such entry.
9. It seems that the crux of the whole matter lies within the narrow compass as to whether Jayakrushna died prior to 1937 or after, i.e. after the enactment of Hindu Women’s Right to’Property Act, 1937. In case it is held affirmatively that he died after 1937, patently the defendants’ contentions are bound to be upheld in terms of the provisions of Hindu Succession Act.
10. From the pleadings it is not intelligible as to when Natabar was given in adoption to Jayakrushna. It is also not further clear as to when Jayakrushna died. In the aforesaid circumstances, both the parties pray that in stead of deciding the case here they should be given a chance to have their pleadings amended and lead evidence in support of their respective cases,. The plaintiffs, therefore, shall take steps in the triai Court to amend their pleadings by stating as to when Natabar was given in adoption to Jayakrushna and lead further evidence in support of such adoption. They are at liberty to further amend the pleadings by stating as to in which year Jayakrushna died. In case such amendment is filed and allowed by the Court below, the defendants are at liberty for file their written statement in support of their plea. The evidence, which are already on record, shall be treated as part of evidence. Both parties are at liberty to lead evidence confining their plea to be taken in the plaint and written statements.
11. In order to meet the ends of justice, it is desirable to remit the case to the trial court with a direction that since the suit of the year 1985, the learned trial court should do well to dispose of the case within six months from the date of receipt of the record. Both parties have undertaken to cooperate with the trial court for expeditious hearing of the suit. Accordingly, in view of the above decisions the judgments of both the courts below are set aside.
12. The appeal is, therefore, allowed. The L.C.R. be sent down forthwith. No costs.