Orissa High Court: The Division Bench of Dr S. Muralidhar, CJ and A.K. Mohapatra, J., partly allowed an appeal filed in a property dispute, after applying the doctrine of substantive representation.
The instant appeal was directed against the decision of the Single Judge.
Background
The facts of the present matter were that Baina and Dayanidhi Ghose were the two children of the second wife of the son of late Nandi Ghose who was the 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 1), Nandu and Dayanidhi (the plaintiff) were the children of the second wife. Ganesh died leaving four sons Abhinash, Krutibash, Kailash and Srinibas.
Further, it was stated that Kailash died leaving behind his widow Dhira, defendant 5 and daughter Jema (defendant 6). Baina’s sons were defendants 7, 8, 9 and 10. Nandu died leaving his wife Padmabati, who also died and therefore Nandu’s branch had become extinct.
Hence, the dispute was between the plaintiff/appellant on the one hand i.e., defendants/respondents 1 and 7 to 10 on the other hand.
Plaintiff-appellant stated that in an earlier partition, Ganesh took Ac 4.40 dec of land and was separated from the joint family.
Property described in Schedule ‘Kha’ of the plaint were ancestral and those in “Ga” were the properties acquired in the name of defendant 1 as Karta of the joint family out of the joint family nucleus.
Earlier, Padmabati, widow of Nandu had filed a partition suit and by compromise, the suit was decreed.
Plaintiff’s case was that Defendant 1 Baina Ghose had obtained a deed of partition dated 27th March 1962 under which he allegedly took a larger share than what he was entitled to. It was alleged that land of an area of Ac 10.00 which was the joint family property was left out of the partition deed. Plaintiff was allotted Ac13.00 dec of land in Schedule ‘Kha’ and ‘Ga’ Schedule property of Ac 4.00 was kept joint.
Trial Court upheld the validity of the partition deed. ‘Ga’ schedule properties having been kept joint under the partition deed were directed to be partitioned.
Single Judge also held that ‘Ga’ Schedule properties were the self-acquired properties of Defendant.1 in which the Plaintiff has no share. Accordingly, the first appeal was dismissed.
Questions for Consideration
Whether the First Appellate Court was right in holding ‘Ga’ Schedule properties to be the self-acquired properties of defendant 1?
Analysis, Law and Decision
High Court noted that although several of the parties, even some of those brought on record as legal representatives have themselves expired and have had to be substituted, the LRs of the main contesting parties viz., sons of appellants 1,2 and 3 and daughter (appellant 4) and the LRs of Baina Ghose, the main contesting defendant have been on record.
Theory of ‘substantive representation’ was explained in this Court’s decision of Sarat Chandra Deb v. Bichitrananda Sahoo, AIR 1951 Ori 212, where it was held that:
“…once the representation was proper, the decree was binding and could not be reopened.”
In the present matter,
while all the LRs/all the Respondents may not be present in these proceedings, since the main contesting parties in the suit are represented in the Court applies the doctrine of substantive representation and proceeds with the hearing of the appeal.
Bench accepted the plea that the Single Judge ought not to have held the property Schedule ‘Ga’ to be the self-acquired property of the original defendant. Once it was clear that the properties in ‘Ga’ were to be apportioned between the parties i.e. between two brothers, it was incumbent on the Single Judge to have acknowledged that position and not framed an issue.
Hence, appeal was partly allowed by clarifying that the properties in ‘Ga’ will be treated as a joint and be partitioned between two main contesting parties and their respective LRs. [Hatanagar Ghose v. Durgamani Ghose, 2021 SCC OnLine Ori 2078, decided on 5-11-2021]
Advocates before the Court:
For the appellants: Mr Avijit Pal, Advocate