Posted On by &filed under High Court, Orissa High Court.

Orissa High Court
Kishore Chandra Panigrahi vs Parikhit Panigrahi And State Of … on 30 August, 2000
Equivalent citations: 2000 II OLR 411
Author: P Tripathy
Bench: P Tripathy


P.K. Tripathy, J.

1. This appeal under Section 54 of the Land Acquisition Act, 1894 (hereinafter referred to as ‘the Act’) has been preferred by the appellant against the award dated 10.3.1993 in M.J.C.No. 47 of 1990 passed by the Subordinate Judge, Jeypore on a reference received under-Section 30 of the Act from the Zone Officer, U.K.H.E. Project, Koraput.

2. An area of A.0.45 decimals from Plot No. 339 of Khata No. 12/Ka in village Mulasore under Jeypore Police-station was acquired for the Upper Kolab Hydro Electricity Project, Koraput. Since the appellant was the recorded tenant, compensation was assessed and determined at Rs. 1199/-. Respondent appeared before the Zone Officer and claimed that the land in question having been acquired from joint family nucleus, it is the joint family property of heirs and successors of their father late Arjuna Panigrahi. He mentioned in his objection the family genealogy which undisputedly shows that late Arjuna Panigrahi died leaving behind two sons (the respondent and the appellant) and three married daughters (who are not party to the proceeding). On receipt of the claim for apportionment the Project Officer made the statutory reference under Section 30 of the Act.

3. Before the Subordinate Judge, respondent advancing the aforesaid contentions also stated that the property purchased under sale deed Ext. A in the name of the appellant by their father out of joint family nucleus cannot be regarded as the exclusive property of the appellant. He further stated that the claim of the appellant that he purchased the said land out of his salary and that it is his self acquired property is out and out false. The appellant on the other hand contended that he served in the Military from 1961 till 1969 and out of the savings from the salary he purchased the entire Ac. 8.61 decimals of land under Ext. A on 1.6.1968 and therefore, the said land is his self acquired property and the respondent or any other heir of late Arjuna Panigrahi is not entitled to any share from the lands purchased under Ext. A or the compensation in the question.

4. During the course of inquiry, the appellant examined three witnesses and relied upon the registered sale deed Ext. A whereas respondent examined two witnesses including himself as P.W.No. 1 and relied upon a bunch of rent receipts marked as Exts. 1 to 1 /d. On assessment of such evidence, learned Subordinate Judge passed the impugned award on 10.3.1993 recording the following findings :

(i) appellant being sending his salary to his father had no sufficient fund to pay the consideration;

(ii) evidence on record shows that his father made the transactions with the vendor; and

(iii) his father being the owner of 30 acres of land had the nucleus to acquire the property. Therefore, the lands under Ext.A was acquired in the name of the appellant from joint family nucleus;

(iv) appellant as P.W.No. 1 admitted in his evidence that the land covered under Ext.A was cultivated by his father and the usufructs out of the same being kept and used by his father and the appellant never asked for any account from his father in that respect and because of that there is ample proof that the property was treated as joint family property.

Precisely, basing upon that finding learned Subordinate Judge passed the award directing for division of the compensation amount between , the appellant and the respondent No. 1 half and half.

5. During the couse of agrument, learned counsel for the appellant argues that the findings recorded by learned Subordinate Judge that the father purchased the land in the name of the appellant even if for the sake of argument will be regarded as correct, then also in view of the ratio in the case of C.N. Aruncahala Mudaliar v. C.A. Muraganatha and Anr., AIR 1953 SC 495, the father having purchased the land covered by Ext. A in the name of his son (the appellant), after the death of the father that property became the self acquired property of the appellant. On a careful perusal of the cited decision, this Court finds that neither the facts are similar nor the ratio of the cited decision is applicable to the facts of the present case. In the reported case, the plaintiff was one of the sons of defendant No. 1 and the defendant No.2 was the other son whereas the wife of defendant No. 1 being the step mother of plaintiff and defendant No.2 was the defendant No.3. Because of bitter relationsip between the sons and the step mother, the plaintiff and defendant No.2 stayed separately and claimed for partition of the scheduled properties which included the moveable and immoveable, so far as the immoveable properties were concerned, their father (defendant No. 1) advanced the contention that item Nos. 1 and 2 and the house out of the schedule ‘B’ property were the self acquired property of his father and he got them under will executed by his father and therefore, even after the death of his father i.e., the grandfather of plaintiff and defendant No. 2 that property could not become the joint family property or the coparcenary property of the parties. That contention of defendant No. 1 was rejected by the trial Court as well as the Madras High Court but that contention of the defendant No. 1 was found to be the correct position of law by the Apex Court in the above judgment. Keeping in view the difference in fact situation, this Court finds that the ratio in that case is not applicable to the present case because there is no pleading or proof that appellant’s father purchased the land under Ext.A from out of his own income and got the said sale deed (Ext. A) executed in the name of the appellant so as to be treated as his self acquired property. On the contrary, the evidence on record is not disputed by the appellant that 30 acres of land acquired by his father was enjoyed as joint family property by the parties and also the yields from the lands covered by Ext. A was used in the like manner.

6. Learned counsel for the appellant also relied upon the ratio in the cases of Laxmidra Kumar Das and Ors. v. Mahendra Kumar Das and Anr., Vol. 79, (1995) CUT 865 and Harish Chandra Sahu and Anr v. Dibya Singha Mohapatra and Ors., 1995 (I) OLR page 510, in support of his argument that once the sale deed Ext. A indicates the appellant as the purchaser, a valid presumption is available in his favour that the said land is his self acquired property and it cannot be presumed to be the joint family property.

In the case of Laxmindra (supra) this Court has obsereved that :

“Where the existence of nucleus is shown and no other source of income is disclosed the presumption may be made that nucleus was sufficient to enable the property to be acquired. Such being the presumption, if any member of the family claims any portion of the property, as his separate property, the burden lies upon him in such case to show that it was acquired by him in circumstances which would constitute it his separate property.”

In the case of Harish Chandra Sahu (supra) this Court held that :

“………to render the property joint the plaintiff must prove that the family was possessed of some property with the income of which the property could have been acquired, or from which the presumption could be drawn that all the property possessed by the family is joint family property, or that it was purchased with joint family funds, such as the proceeds of the sale of ancestral property or by joint labour. None of these alternative is a matter of legal presumption. It can only be brought to the cognizance of a Court in the same way as any other fact, namely, by evidence.”

In both the decisions the position of law relating to throwing of the self acquired property by coparcener to the joint family and the consequence thereof neither arose nor considered. But such a point is substantially involved in the present case in view of the evidence led by both the parties.

7. It must be remembered that respondent has set up a case with alternative plea which is clearly readable from the evidence on record. He has urged that the lands covered under the registered sale deed (Ext. A) was purchased out of the joint family nucleus by the father in the name of the appellant but the property retained the character of joint family property and was enjoyed as such. He further urged that the appellant by his voluntary conduct allowed the said property to be possessed and the usufructs to be enjoyed by the family of which their father was the karta. In that connection the concept of common law governing the party must clearly be borne in mind that genesis of a Hindu family is essentially genetic of course with the exception of induction of members by way of adoption. A Hidnu family is not a creature of a contract. Every member in a Hindu family has the eligibility of acquiring and possessing self acquired property i.e., the property acquired from his individual income or own volition from any other source then the joint family nucleus. Such member has the rights and authority to deal with and dispose of that property in any manner he likes and the other members in the joint family or the body of coparceners have no legal right to interfere with the independent dealing with the self acquired property by such members individually. That individual members in the exercise of his right may throw the self acquired property to the common hotch potch. i.e.. for the enjoyment of the joint family without any reservation. Once that is done such property loses the character of self acquired property and it becomes joint family property and benefit out of it has to be shared commonly or as per the ratio of share in the joint family. It therefore follows that there must exist a Mitaskhara/coparcenary so that a coparcener i.e., a male member in the joint Hindu family to throw his self acquired property to the common hotch potch.

In the case of Goli Eswariah v. Commissioner of Gift Tax, Andhra Pradesh, AIR 1970 SC 1722 relied upon by the respondent, the Apex Court has held that :

“……..The separate property of a member of a joint Hindu family may be impressed with the character of joint family property if it is voluntarily thrown by him into the common stock with the intention of abandoning his separate claim therein. The separate property of a Hindu ceases to be a separate property and acquries the characteristic of a joint family or ancestral property not by any physical mixing with his joint family or his ancestral property but by his own volition and intention by his waiving and surrendering his separate rights in it as separate property.”

8. The crux of the matter is as to whether the parties are Hindus governed by Mitakshara School of Hindu Law and whether the property covered under Ext. A was acquried out of joint family nucleus and if not whether the property after being acquired by the appellant was thrown to common hotch potch so as to give it the character of joint family property. In that respect, learned Civil Judge has not tried to follow either the law or the facts and superfluously disposed of the reference vide the impugned Award. Of course, during the course of hearing after going through the evidence, this Court finds that there is scanty evidence from either side to adjudicate the aforesaid issues. Therefore, during the course of argument, both the parties propose that the matter should be remanded for fresh disposal in accordance with law.

9. A remand undoubtedly is a harsh remedy to the parties. But it cannot be avoided when the parties have failed to adduce proper and adequate evidence. Thus this Court agrees to the aforesaid contention of the parties and keeping in view the provision under Order 41, Rule 23-A, Code of Civil Procedure, 1908, remands the reference for fresh adjudication in accordance with law while setting aside the impugned Award. At this juncture, it may be noted that certain factual findings noted in the impugned award is not in conformity with the evidence on record. While considering the evidence afresh, the trial Court shall take proper care to peruse the evidence carefully and to reflect the same in his findings properly.

10. Both the parties argue that in view of the oldness of the reference time limit may be fixed for disposal of the case by learned Subordinate Judge (now Civil Judge, Senior Division), Jeypore. Since both the parties have expressed their intention to supplement their pleas with adequate pleadings by amending their respective petitions (claim petition and objection) and as they desire to adduce further evidence in support of their respective contentions, to which this Court agrees for effective adjudication of the dispute and a proper award on the reference, this Court fix that a period of six months will be sufficient to hear and dispose of the reference in accordance with law. The lower Court shall bear in mind that according to the claimant/respondent besides him and the appellant the three daughters of late Arjuna Panigrahi are stated to have right over the joint family property. Therefore, for effective adjudication of the matter they are also necessary parties to the proceeding. Hence, the claimant shall furnish the detailed particulars of the said three daughters for issuing notice to them to have their objections, if any, in the matter of apportionment of compensation. So far as the appellant and the respondent are concerned, they undertake to appear before the Civil Judge (Senior Division), Jeypore on 29.9.2000 and therefore no notice need be sent to them. Failure in appearance by any of them shall be detriment to the interest of their case and learned Civil Judge (Senior Division) shall proceed with the inquiry accordingly. The evidence which are on record be read with evidence, if any, that may be adduced by the parties to the proceeding. The period of six months for disposal of the reference shall be counted from 29.9.2000 excluding the period intervened by the Puja vacation of 2000. The Civil Judge (Senior Division) should bear in mind that since both the parties have expresed their concern for early disposal of the reference therefore undue and liberal adjournment may be scrupulously avoided and as far as practicable the hearing be taken up on day to day basis.

11. The findings recorded by learned Subordinate Judge in the impugned award is thus set aside on the grounds that the factual finding recorded by him regarding the case land being the joint family property is on the basis of improper and superfluous consideration of the evidence on record which is quite insufficient to adjudicate the issues and the case is remanded as per the aforesaid observations and directions for disposal within a period of six months from 29.9.2000. Thus, the appeal is allowed. But the parties are directed to bear their respective cost of litigation so far as this forum is concerned. Registry of the Court is directed to send back the L.C.R. to the Court below expeditiously and to ensure that it reaches there by 25.9.2000.

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