KHIRODINI MOHAPATRA Vs. STATE OF ORISSA

JUDGEMENT

(1.) THE orders dated 8th August, 1985 and 9th October, 1998 passed by the deputy Director, Consolidation of Holdings, sambalpur in Appeal Case No. 75 of 1984 (Annexure-3) and the Joint Commissioner, settlement and Consolidation, Sambalpur in Consolidation Revision Case No. 799 of 1988 (Annexure-4) respectively are assailed in this writ application.

(2.) BEREFT of unnecessary details, the short facts necessary for appreciating the inter se disputes are stated hereinbelow : one Chakradhara was the common ancestor of the contesting parties. Jadumani and Kasinath were his two sons. Jadumani died leaving behind his son Purnachandra. Suryamani is the wife of Purna Chandra and is impleaded as opposite party No. 5 to this writ application. Kasinath, the 2nd son of chakradhara died leaving behind his wife ambika and son Lalsaheb. Khirodini, petitioner No. 1 is the widow of Lalsaheb. Chakradhara was admittedly the absolute owner of the properties in dispute. Purna chandra, husband of Suryamani (opposite party No. 5) died before his grand father chakradhara. After the death of Chakradhara, Jadumani and Kasinath, his two sons possessed the disputed properties along with others. While matter stood thus, Purna chandra died, consequently the properties were managed by Jadumani and Kasinath. For maintenance of Suryamani, the widow of Purna Chandra, a deed of settlement was executed and registered on 3rd November, 1951 by the members. By virtue of the said settlement deed, some of the properties were allotted in favour of Suryamani towards her maintenance. According to the terms and conditions of the deed of settlement, suryamani was to enjoy the disputed land during her life time for her substance, but she was prevented to alienate the same by way of sale, gift, mortgage, exchange or otherwise. The major settlement record of rights reveals that the properties were jointly recorded. After the mouza, where the disputed lands were situated, was brought within the fold of the Orissa Consolidation of Holdings and Prevention of Fragmentation of Land act, 1972, hereinafter to be called as "the consolidation Act", in short, land register was prepared and published. Assailing the said recording, objection cases being Objection Case Nos. 3356/1353, 2910/907, 2307/904, and 3404/1401 were filed by different persons. For the sake of convenience, all the cases were clubbed together by the consolidation Officer, Attabira. Out of the said cases, Objection Case Nos. 3356/1353 and 2910/907 relate to partition of lands appertaining to Hal Khata No. 974. On the other hand, Objection Case No. 2307/904 and 3404/907 relate to mutation of plots of lands out of the said holding. The main controversy raised before the consolidation Officer was with regard to the lands, which were allotted in favour of suryamani (opposite party No. 5) towards her maintenance under the deed of settlement. According to opposite party No. 5, the lands which were allotted to her for the purpose of maintenance in the year 1951 became her absolute properties after the Hindu succession Act, 1956 came into force. It is averred that in consonance with Section 14 of the Hindu Succession Act, limited right of a Hindu female over properties allotted to her towards maintenance after her husband expired became absolute after enforcement of 1956 Act. The said contention was opposed by the contesting parties. It is submitted that as the properties were settled by a deed of settlement in consonance with section 14 (2) of the Hindu Succession Act, the restrictions imposed would continue. The Consolidation Officer after hearing all the parties held that the properties having been settled upon opposite party No. 5 by means of a registered deed, in consonance with sub-section (2) of Section 14 of the hindu Succession Act, she will have no right to alienate the same during her life time and the restrictions imposed by registered deed shall prevail. On the basis of such conclusion, all the cases were disposed of by a common judgment. Suryamani (opposite party No. 5) filed an appeal under Section 12 of the Act before the Deputy Director, Consolidation of Holdings, Sambalpur assailing the order dated 2-4-1984 passed by the Consolidation Officer, Attabira in Objection Case No. 3356. According to the petitioners, the properties having been settled in the year 1951 by a registered deed of settlement, towards her maintenance, she became the absolute owner and acquired valid right, title and interest over the same in consonance with section 14 (1) of the Hindu Succession Act, 1956. The Deputy Director after discussing the inter se disputes came to the conclusion that in consonance with Section 14 (1)of the Hindu Succession Act, 1956, the limited right created in favour of Suryamani (opp. party No. 5) became absolute and she acquired a valid right, title and interest in respect of the properties, which were settled in her favour towards her maintenance and set aside the order passed by the Consolidation Officer and directed to record the same in her favour. Lalsaheb and others assailed the order passed by the Deputy Director before the joint Commissioner, Settlement and Consolidation in Consolidation Revision No. 799 of 1988 filed under Section 36 of the Act. During the pendency of the appeal, Lalsaheb having died he was duly substituted by her legal heirs. The Joint Commissioner after hearing learned counsel for the, parties and after perusing the registered deed of settlement arrived at a conclusion that the claim is squarely covered under Section 14 (1) of the hindu Succession Act, 1956. According to the Joint Commissioner, limited right of a widow over the property, became absolute, after commencement of the Hindu succession Act, 1956. It was further held that as suryamani (opposite party No. 5) was in continuous, uninterrupted and peaceful possession of the lands, which were settled in her favour towards her maintenance by registered settlement deed executed in the year 1951 till the commencement of the Hindu succession Act, 1956, and had acquired valid right, title and interest over the same, bereft of the restrictions imposed by the deed. The said order, as stated above, is assailed in this writ application.

(3.) IN course of hearing, mainly two points were urged before this Court. (1) The lands having been settled in favour of Suryamani (opposite party No. 5) by a registered deed of settlement executed in the year 1951 and as she was possessing the same in consonance with the said deed, the case would be squarely covered under sub-section (2) of section 14 of the Hindu Succession Act, 1956 and Suryamani can never acquire absolute right over the properties settled by a deed executed in 1951. The second contention is with regard to maintainability of one writ application against the common order passed in several objection cases.