Kamalakanta Mohapatra and ors. Vs. Pratap Chandra Mohapatra and ors. - Court Judgment

Excerpt:
- labour & services pay scale:[tarun chatterjee & r.m. lodha,jj] fixation - orissa service code (1939), rule 74(b) promotion - government servant, by virtue of rule 74(b), gets higher pay than what he was getting immediately before his promotion - circular dated 19.3.1983 modifying earlier circular dated 18.6.1982 resulting in reduction of pay of employee on promotion held, it is not legal. statutory rules cannot be altered or amended by such executive orders or circulars or instructions nor can they replace statutory rules. - 36 of 1988-1/119 of 1984 to certain extent, but dismissing the appeal as well as the cross objection, the plaintiff-respondents have approached this court invoking jurisdiction under section 100 c. so far as acquisitions made by the defendants are concerned, it was held that the properties ware not acquired from joint family nucleus, but the same were purchased out of the independent income of krushna & that the plaintiff totally failed to establish that the joint family had sufficient nucleus to make acquisition. 9. the basic principles of all the decisions obviously is that a party who had secured a document by fraud should not be enabled to enjoy the fruits thereof. 163, the supreme court has reiterated the same principle & had clearly held that in a case where there are allegations with regard to fraud, undue influence & misrepresentation the said allegation/facts must be specifically indicated in the pleadings. after discussing the evidence threadbare the appellate court had clearly come to a conclusion that the same does not satisfy the basic requirement of mandatory requirement of law. 2 to 3. the scribe as well as the attesting witnesses of both the deeds were one & the same. a is concerned are also satisfied. it is well settled that a hindu coparcenary is a narrower body than the joint family. thus, a joint family stands clearly distinguished from co-parcenary & if a joint family is a genus, co-parcenary is the species. to raise this presumption it must be clearly established from facts as to what was the extent of joint family properties & what was the extent of the joint family, what was the income there from & what remained as surplus which could be utilized for acquisition of properties. it is well settled that on a vague statement that joint family had some property, it would not be safe to hold, that the properties standing in the name of individual members of joint family would have been acquired out of the funds of the joint family.a.s. naidu, j.1. aggrieved by the judgment & decree passed by learned district judge, balasore-bhadrak in s.j. appeal. no 99/1991, modifying the judgment & decree passed by learned addl. sub-ordinate judge, balasore in o.s. no. 36 of 1988-1/119 of 1984 to certain extent, but dismissing the appeal as well as the cross objection, the plaintiff-respondents have approached this court invoking jurisdiction under section 100 c.p.c.2. the appellants are the legal representatives of deceased sudhamani, who, as the sole plaintiff, filed o.s. no. 36 of 1988-1/119 of 1984 in the court of the then addl. sub-ordinate judge, balasore. the said suit was one for partition. according to the plaint case the properties more fully described in suit schedule were part & parcel of her ancestral properties & she had a valid share therein. to appreciate the inter se disputes, it would be prudent to furnish the genealogy which is as follows:gangadhar1. raghunath (died before 1931): ratramani (died)2. lokanath (died in 1975): sudhamani (plaintiff)3. krushna (d 1) (died during the trial): pratap (d2), srustidhar (d3), hemalata (d4)gangadhar was the common ancestor. out of three sons of gangadhar namely raghunath, lokanath & krushna, raghunath died some time prior to 1956 while living in jointness. he had only one married daughter ratramani, who had also died. thus, the branch of raghunath became extinet. loknath died some time in the year 1976 leaving behind sudhamani, the plaintiff, as the legal heir. krushna (defendant no. 1) died during pendency of the suit. defendant nos. l to 4 are his sons & daughter. the properties as would be evident from the record of rights, exts.4 to 4/a, stood recorded in the name of the common ancestor gangadhar. the properties covered under exts. b to h were purchased by separate registered sate deeds by lokanath. the remaining properties were purchases by krushna in his name & in the name of his sons (defendant nos. 2 & 3). the parties are admittedly governed under mitakshara school of hindu law. it is further averred that defendants fraudulently obtained a gift deed (ext.a) from lokanath in respect of some of the plaint schedule properties & claimed exclusive rights. as the plaintiff was deprived of enjoying the said lands, she filed a suit for partition claiming half share in the entire plaint schedule properties.3. defendants 1 to 3 appeared & jointly filed their written statement repudiating the averments made in the plaint. they also stoutly denied the fact that the gift deed ext.a was obtained by fraud. they also denied the allegation that the properties were purchased by the defendants out of joint family nucleus. it is averred that out of their own income krushna & others had acquired some lands which should be treated as their self acquired properties. the defendants also disputed the assertions that the plaintiff was the daughter of lokanath.4. according to the defendants lokanath was issueless & he was liking defendants 2 & 3 & had alienated some of the suit properties in their favour by executing registered gift deed (ext. a) dated 19th november, 1967 & delivered possession of the properties covered there under to the said defendants which were exclusively possessed by them. it appears that the plaintiff had also obtained a gift deed from lokanath vide ext.3 on the same day, i.e. 19th november, 1967, but then the properties covered under the said gift deed were not included in the suit schedule. it is further averred that defendant no. 1 got some money from his father-in-law. he was also doing paddy loan business & out of the said income he had purchased the properties. defendant no. 4 filed a separate written statement, but then supporting defendants 1 to 3.5.on the basis of the pleadings, the trial court framed as many as eight issues.in order to substantiate their case, the plaintiff got six witnesses examined & exhibited nine documents. on the other hand, on behalf of the defendants, three witnesses were examined & thirteen documents were exhibited. after discussing the evidence, the trial court held that the plaintiff was the daughter of lokanath & not the daughter of krushna & as such she was entitled to half interest from the joint family properties. it was further held that the deed of gift executed under ext.a by loknath was a fraudulent one & he was not entitled to transfer the property by way of gift as it was part of joint family co-parcenary. therefore, the gift was held to be void & not binding upon the plaintiff.so far as acquisitions made by the defendants are concerned, it was held that the properties ware not acquired from joint family nucleus, but the same were purchased out of the independent income of krushna & that the plaintiff totally failed to establish that the joint family had sufficient nucleus to make acquisition. consequently it was held that the lands acquired were the exclusive properties of the defendants & were not liable to be partitioned.6. being aggrieved by the said finding the defendants filed an appeal which was heard by the learned district judge, balasore. a gross objection was also filed on behalf of the deceased plaintiff assailing the finding that the acquisitions made by krushna were his self-apquired properties.the lower appellate court heard the counsel of the parties at length & also discussed the evidence in extenso. after going through the evidence, oral & documentary, the lower appellate court held that the properties covered under lot nos. 5 & 16 were purchased by krushna vide sale deeds, ext. k series & that defendant noc.2 & 3 were entitled to the land covered under lot nos. 5,9,10 & 13 purchased by them under ext. l series. they are also entitled to half interest from the lands under lot nos. 12 & 15. in short, according to the lower appellate court the acquisitions made by defendant nos. 1, 2 & 3 were not joint family properties & were self-acquired properties.after discussing the evidence, the lower appellate court held that the basic requirements of order 6, rule 4 of the code of civil procedure with regard to the allegation of fraud, undue influence or misrepresentation alleged to have been practiced for obtaining the gift deed, ext.a, having not been pleaded specifically, the trial court acted illegally in holding that ext.a was a fraudulent deed. consequently, the finding of the trial court to that effect was set aside.with regard to competency of lokanath to transfer his undivided interest on the co-parcenary properties, the lower appellate court after referring to section 6 of the hindu succession act held that plain tiff being a married daughter, was hot a member of the co-parcenary & the competency of loknath to execute the gift deed (ext. a) cannot be assailed on that ground. it was, however, held that the plaintiff is entitled to get half share from the rest of 'kha' schedule properties. consequently, the lower appellate court dismissed the appeal with modifications, as indicated above, & dismissed the cross objection. the said judgment & decree is assailed in this second appeal.7. while admitting the second appeal, this court had certified the following two grounds to be the substantial questions of law which:(3) for that the lower appellate court has committed substantial error of law in declaring defendants' right to the properties on the basis of gift deed (ext.a), in the absence of proof of due execution of the documents in accordance with the legal requirements prescribed under section 68 of the indian evidence act read with the provisions of section 129 of transfer of properties act.(7) for that the lower appellate court erred in law in coming to the conclusion that acquisitions made by the defendants 1 to 3 under exts. k series & 1 series indicate in lot nos. 1, 5, 8, 9, 10, 13 & 16 as per the m.s. record of right & these lands are self acquisitions of the defendants. he has not considered the evidence of the d.w.1 (defendant no. 2) who has admitted that his father was never doing any paddy loan business (para-44 of the deposition of d.w.1). the said witness also admitted that he has no document to prove that his father was doing the said business & the joint family had ancestral lands measuring about 7 acres & lokanath & krushna had purchased 8 acres of land out of contribution from their own income. hence the said conclusion is liable to be reversed.heard learned counsel for the parties at length, perused the materials meticulously & considered the submissions diligently.8. according to mr. mukherji, learned senior counsel for the appellants, the gift deed (ext.a) was actuated with fraud, undue influence & misrepresentation & as such the trial court had rightly held that the said document was a void one. it is submitted that the lower appellate court acted illegally in reversing the said finding.no doubt-fraud is an extrinsic, collateral act, which vitiates the most solemn proceedings of courts of justice. lord coke says it avoids all judicial act, ecclesiastical & temporal. see r. v. duchess of kingston 2 smit lc 687.in the case of patch v. ward (1867) 3 ch app 203 : lt 134 sir john rolt, l.j. it was held;fraud must be actual positive fraud, a meditated & intentional contrivance to keep the parties & the court in ignorance of the real facts of the case, & obtaining that decree by that contrivance.9. the basic principles of all the decisions obviously is that a party who had secured a document by fraud should not be enabled to enjoy the fruits thereof.keeping the aforesaid principles, let us now examine the case at hand. according to the plaintiff on account of undue influence exercised by krushna (defendant no. 1) who not only practised fraud but also by misrepresentation got the gift deed (ext.a) executed & registered by lokanath. the words 'undue influence', 'fraud' & 'misrepresentation' are cognate vices & may inpart overlap in some cases, they are in law distinct categories & in view of order 6, rule 4 read with order 6, rule 2 of the code of civil procedure required to be separately pleaded with specificity, particularity & precision. in other words general allegations made in the plaint does not tantamount to particulars required to be pleaded under the said provision of the code. the constitution bench of the supreme court in the case of ladli parshad jaiswal v. the karnal distillery co. ltd. karnal and ors. reported in : air 1963 supreme court 1279 observed, that under order 6, rule 4 of the code of civil procedure, in all cases where a party takes a plea of undue influence, particulars thereof should be unambiguously stated in the pleadings so as to enable the adversary to controvert the same. a vague & general plea to that effect would not serve the purpose a the pleading must be always very specific & precise in nature. this rule has been evolved with a view to narrow down the controversy & protect the party charged with improper conduct from being taken by surprise.in the case of afsar sahikh and anr. v. soleman bibi and ors. reported in : air 1976 s.c. 163, the supreme court has reiterated the same principle & had clearly held that in a case where there are allegations with regard to fraud, undue influence & misrepresentation the said allegation/facts must be specifically indicated in the pleadings. keeping in mind the provision of order 6, rule 4 of the code of civil procedure, if the averments made in the plaint are examined it reveals that the basic requirement of order 6, rule 4 of the code of civil procedure was not kept in mind while making the allegations & the same appear to be more on the basis of surmises & conjectures rather than cogent facts.so far as the nature of proof of undue influence, fraud or misrepresentation are concerned in the case of balabhadra nisanka and ors. v. suka dlbya and ors. reported in 38 (1972) c.l.t. 325 it was held by this court that 'fraud' in a civil proceeding must be established beyond reasonable doubt as in a criminal proceeding.so far as the evidence to establish fraud is concerned, it is held by this court in the case of bira jena v. rauli dei and anr. reported in : 38 (1972) c.l.t. 39 that unless the particulars of fraud are pleaded in the plaint, no evidence should be allowed to be led in the suit & if any such evidence has unwittingly been introduced without any pleading, it must be ruled out of consideration, in other words, the standard of proof to establish fraud should be beyond all reasonable doubt. after discussing the evidence threadbare the appellate court had clearly come to a conclusion that the same does not satisfy the basic requirement of mandatory requirement of law. even otherwise in the absence of pleadings, the evidence adduced had to be ignored.10. that apart it appears that on the same day, i.e. 19th november 1967, two gift deeds were executed by loknath. first one was in favour of the original plaintiff & the second one in favour of defendant nos. 2 to 3. the scribe as well as the attesting witnesses of both the deeds were one & the same. admittedly, the attesting witnesses of both the deeds (exts. a & 3) are dead & as such none of them could be examined, but then the scribe of both the documents have been examined & his statements are trustworthy. execution of ext.3 having been admitted by the original plaintiff on the same set of evidence, the appellate court has held that the basic requirements of proof so far as ext.a is concerned are also satisfied.after going through the entire evidence & the findings, this court has no hesitation to hold that execution of the gift deed (ext. a) was proved in accordance with law.11. mr. mukherji, learned senior counsel for the appellants, thereafter contended that the gift deed (ext.a) having been cancelled, the appellate court should have discarded it. section 126 of the transfer of property act creates an embargo & it is clear that a deed of gift once executed & registered cannot be revoked, unless the mandatory requirements of the said section are fulfilled. that apart as would be evident from the pleadings & evidence, cancellation of the deed has not been proved in the case in hand.12. coming to the competency of lokanath to transfer his undivided interest in the co-parcenary property in favour of the defendants by way of gift deed under ext.a, there is no dispute with the legal proposition that the gift of specific lands made out of the joint family properties by a co-parcener, without obtaining permission from other coparceners, was invalid. see trilochan naik and ors. v. sukuru sethi and ors. reported in : 1992 (1) olr 296. the said proposition shall however not apply to the case at hand, inasmuch as in this case according to law as it stood then the co-parcenary consisted of lokanath, krushna & his son. the plaintiff, who was a married daughter, was never a co-parcener. it is well settled that a hindu coparcenary is a narrower body than the joint family. thus, a joint family stands clearly distinguished from co-parcenary & if a joint family is a genus, co-parcenary is the species. the co-parcenary includes only those persons who acquired an interest by birth in the joint family property. they are sons, grand sons & great grand sons. this portion is evident from clause 6 of the hindu succession act which provided that when a male hindu dies, his interest in the mitakshara co-parcenary property shall devolve upon the surviving members of the co-parcenary by survivorship & if the deceased had left any family relative specified in class-1 of the schedule or male relative claiming through a female relative, the interest of the deceased in the co-parcenary shall devolve by testamentary or interstate succession as the case may be & not by survivorship. thus, no female could be a co-parcener under mitakshara.13. in view of the aforesaid clear position of law, the gift of properties made under ext.a cannot be held to be void at the instance of the plaintiff, who was not member of a co-parcener at the relevant time. she was also not entitled to any interest in the property gifted under ext.a. thus, she had no right of consultation before transfer of the property by way of gift by lokanath. this view of mine gets fortified from the ratio of the decision in the case of thamma venkata subbamma (dead) by l.rs. rattamma and ors. reported in air v. thamma : 1987 s.c. 1775. that apart lokanath has also executed a registered gift deed ext.3 in favour of the original plaintiff on the same day when ext.a was executed. under such circumstances, it cannot be said that the gift under ext.a was invalid.14. the only other point which needs to be answered is as to whether the properties acquired by krushna in his name & in the name of his sons defendant nos. 2 & 3 should be treated as joint family properties or his self-acquired properties.15. the position of law as has been laid down by the supreme court in the case of mst. rukhmabai v. lala laxminarayan and ors. reported in : air 1960 s.c. 335 is there can no presumption that any property, whether movable or immovable, held by a member of a joint hindu family is joint family property, the burden in such cases lies upon the person who asserts that a particular property is joint family property, to establish the said fact. in the event he/she proves that there was sufficient joint family nucleus out of which the said property could have been acquired, the burden shifts to the member of the family, setting up the claim that it is his personal property, to establish that the said property had been acquired without any assistance from the joint family property.in the case of gangadhar das and anr. v. gadadhar das and ors. reported in : air 1986 orissa 173 this court observed that where acquisitions have been made prior to disruption of the joint family, the property standing in the name of individual members of the joint family can be presumed to be their & in that case onus lies upon the person claiming the property to be joint to establish that they are so, & the onus can be discharged by establishing that the joint family had sufficient surplus income, which can form the nucleus & utilizing the same the properties were acquired, in the name of individual members. to raise this presumption it must be clearly established from facts as to what was the extent of joint family properties & what was the extent of the joint family, what was the income there from & what remained as surplus which could be utilized for acquisition of properties. it is well settled that on a vague statement that joint family had some property, it would not be safe to hold, that the properties standing in the name of individual members of joint family would have been acquired out of the funds of the joint family. the same view has also been expressed in the case of balabhadra nisanka and ors. (supra).16. a cumulative reading of all these decisions leads to an irresistible conclusion that where the properties have been purchased in the names of individual members of the joint family, the presumption is that those were purchased out of their own income unless it is affirmatively pleaded & proved that the joint family had sufficient funds after meeting the expenditures, which formed the nucleus. in such cases the presumption can be rebutted & an inference can be drawn to the effect that it was the joint family property.in the case at hand, neither there is any specific pleadings nor cogent evidence had been adduced to satisfy the basic requirements &to; rebut the inference drawn to the effect that the properties were purchased out of their own income by defendants. the lower appellate court has elaborately dealt with the evidence & the conclusions arrived at are reasonable & needs no interference in exercise of the powers conferred under section 100 of the c.p.c.accordingly, the judgment & decree passed by the appellate court is confirmed & the second appeal is dismissed.parties to bear their own cost.