SURYA DEI ALIAS SAHU AND OTHERS vs LAXMI SAHU

Dr.A.K.RATH, J.

The defendants are the appellants against a reversing judgment in a suit for permanent injunction.

The case of the plaintiff-respondent is that she and the defendants are the members of a joint Hindu family governed under Hindu Mitakshara

School of Law. The suit land is the ancestral joint family property. The same had not been partitioned by metes and bounds. On 5th April, 1990 the

plaintiff demanded for partition of the suit land, but the defendants did not agree.

The defendants filed a joint written statement admitting the relationship between the parties. According to the defendants, the land of Padmanava

was partitioned amongst his three sons. There was severance of joint family status. The plaintiff deserted her husband and resided in her parents’

house. Her husband stayed with defendant no.4. The husband of the plaintiff executed a plain paper will bequeathing his share in favour of defendant

no.4. Since then defendant no.4 is in possession of the share of the husband of the plaintiff.

Stemming on the pleadings of the parties, learned trial court struck eight issues. Parties led evidence. Learned trial court held that the suit property

is not the joint family property of the parties. Banthu bequeathed his share in favour of defendant no.4. The suit property is not liable for partition. Held

so, it dismissed the suit. Feeling aggrieved, the plaintiff filed T.A.No.6 of 1993 before the learned District Judge, Sundargarh. Learned appellate court

held that the suit property is the joint family property of the parties. The will, Ext.A, had not been validly executed. The same is a forged one. Held so,

it allowed the appeal.

The Second Appeal was admitted on the following substantial question of law:

“Whether the learned court-below erred in law in rejecting the plea of previous partition and whether the learned court-below was justified in

ignoring the Will marked as Ext.A.â€​

Heard Mr.Ramakanta Mohanty, learned Senior Advocate along with Mrs.Sumitra Mohanty, learned Advocate for the appellants. None appeared

for the respondent.

Mr.Mohanty, learned Senior Advocate for the appellants submitted that the suit property had been partitioned by metes and bounds. On an analysis

of the evidence on record and pleadings, learned trial court dismissed the suit, but the learned appellate court reversed the judgment on untenable and

unsupportable grounds. The will was validly executed. He further contended that the R.O.R. neither creates nor extinguishes title.

The learned appellate court held that there is no document to establish that there was previous partition of the suit property. The current settlement

R.O.R. Ext.1, proves the jointess of Hadu Sahu, Budhu Sahu and Banthu Sahu, who are the sons of Padmanava Sahu. The witnesses examined by

the defendants made a prevaricating statement with regard to previous partition.

The defendants failed to prove that there was previous partition. The finding of the learned trial court regarding previous partition is based on mere

surmises and conjecture. The person, who claimed to be scribe of Ext.A, had been examined as D.W.3. He had not scribed the deed. He wrote

something before the court in presence of the learned counsel for both parties, which had been marked as Ext.4. Learned trial court held that writing

of Ext.4 and writing of Ext.A does not tally. On a bare perusal of the said document, it is clear that writing of Ext.4 and Ext.A are not by the same

person.

The defendants failed to prove that Banthu Sahu had executed the will, Ext.A. In the will, Ext.A, there is a thumb mark, but the same has not been

attested. No attesting witness has been examined to prove the will. There is no evidence that the contents of the will were read over and explained to

Banthu Sahu and after explaining the same, he put his thumb mark. The defendants have failed to prove that the will is a genuine one. There is no

perversity or illegality in the same. The substantial question of law is answered accordingly.

Resultantly, the appeal fails and is dismissed. There shall be no order as to costs.