AMBIKA SWAIN Vs. ADDITIONAL COMMISSIONER

JUDGEMENT

(1.) THIS writ application is directed against the decisions passed by the Consolidation authorities including that of the revisional authority as per Annexure -7.

(2.) FOR resolving the dispute raised in the present writ application, it is not necessary to notice the entire genealogy. Ranka, the natural son of Mana was admittedly adopted to Nidhi. The petitioner and present opposite party No. 13 are the daughters of Ranka, whereas opposite party No. 3 is the surviving son. Opposite parties 9 to 12 are the successors -in -interest of Hadibandhu, the other son of Ranka. Poka was the widow of Ranka. The dispute raised in this writ application is confined to the property of Ranka. There is no dispute that after death of Ranka, his properties are to be inherited by his widow Poka, two sons and two daughters, as described above. On the death of first son, obviously his share in the property has devolved upon the opposite parties 9 to 12. The petitioner claimed that the properties described to have fallen to the share of Ranka in Annexure -1, the registered deed of partition, are his self -acquired property and as such the petitioner shall have 1/5th share in such property. The adjudicating authorities under the Orissa Consolidation of Holdings and Prevention of Fragmentation of Land Act have come to the conclusion that the aforesaid property was ancestral property. It has to be first ascertained as to whether the property was the ancestral property or the separate property of Ranka. For the aforesaid purpose, the counsel for the petitioner has placed reliance upon the recital in Annexure -1 and contended that the said property had been gifted to Ranka by his adoptive father Nidhi. Gift of immovable property can be effected by executing registered deed of gift duly attested by two witnesses, as required under section 122 of the Transfer of Property Act. In the present case, it is not disputed that there is no such deed of gift. The counsel for the petitioner has mainly relied upon the recital where at one place it has been mentioned that Nidhi Nayak had effected a Hebanama. In theabsence of any deed of gift, the mete recital is not sufficient to come to a conclusion that, in fact, there was any gift by Nidhi. On the other hand, in the very same Annexure -1, there is clear recital that the property had been allotted to Ranka towards his share. The property allotted to a person in partition becomes the joint family property in his hands so far as he and his sons are concerned although it is treated as separate property so far as the partitioning co -sharers are concerned. In the present case, a perusal of Annexure -1, the registered deed of partition dated 2 -8 -1926, clearly indicates that property had been allotted to Ranka towards his share. Thus, so far as Ranka's children are concerned, the property obtained by Ranka at the partition was the joint family property. The conclusion of the Consolidation authorities that the property was not the separate property, therefore, appears to be correct,

(3.) IT is not disputed that Ranka had left behind Class -I female heirs, namely his widow and two daughters. Therefore, applying the proviso to section 6, the interest of Ranka in the property allotted to him under Annexure -1 has to be ascertained and it must be deemed as if immediately before his death there was a partition in the family. Since Ranka had one son and grandsons through another predeceased son and widow at the time of death, it must be taken that Ranka had 1/4th interest in the said property and 1/4th interest each had devolved upon his widow Poka, the heirs of Hadibandhu and the surviving son Kartik. The succession in acordance with section 8 has to take place in respect, of 1/4th interest of Ranka in such property. Thus, Poka, the branch representing Hadibandhu, Kartik and the two daughters inherited in equal share the 1/4th interest of Ranka. In other words, the two daughers inherited 1/20th shareeach in the said property, whereas the widow Poka, Kartik, the surviving son and the branch of Hadibandhu each had 3/10th share. It is not disputed that during pendency of the revision, Poka had expired and her 3/10th share has to devolve upon Kartik, the branch of Hadibandhu and the two daughters. Thus, Ambika was entitled to receive 3/40th share. In other words, in all, she is entitled to 1/8th share. Similarly, the other daughter is entitled to 1/8th share, Kartik is entitled to 3/8th share and the branch of Hadibandhu is entitled to balance 3/8th share in the properties which had fallen to the share of Ranka, as described in Annexure -1. Such property which had fallen to the share of Ranka as per Annexure -1 is now to be partitioned among the petitioner and opposite parties 8 to 13 as per the shares now indicated. The Consolidation authorities are directed to carve out the shares of petitioner and opposite parties accordingly. The writ application is accordingly partly allowed. There will, however, be no order as to costs.