SHAIKH SAFIR MAHAMMAD Vs. BASIR MAHAMMAD

JUDGEMENT

(1.) Defendants 1 and 2 are the appellants in this first appeal against the judgment and decree dated 31st August, 1955 of Sri B. K. Das, Subordinate Judge of Baripada, arising out of a suit for partition brought by the plaintiff. The plaintiff and defendant No. 1 are two brothers. Defendant No. 2 is the wife of defendant No. 1. The properties sought to be partitioned are described in three schedules of the plaint. Schedule A refers to immovable properties and Schs. B and C are in respect of movables. It is to be noted here that the Suit for partition in respect of B and C schedule properties has been dismissed by the learned Subordinate Judge and there being no cross-appeal, to that extent the judgment of the learned Subordinate Judge is final. This appeal by the defendants is only in respect of the immovable properties described in three items appertaining to schedule A. The learned Subordinate Judge has allowed a decree in favour of the plaintiff for partition in respect of his half share in respect of all the items. It is further to be noted that so far as item A(III) property is concerned, defendant No. 1 had in the meantime transferred it in favour of his wife (defendant No. 2) in discharge of the dower debt as asserted by him (defendant No. 1). So defendant) No. 2 has been made a party to the suit for partition.

(2.) It would be relevant to give the description of the properties in respect of which a decree for partition has been made by the learned Subordinate Judge. Item A(i) property was purchased on the basis of a Kabala (Ex. B-1) dated 4th June, 1930 standing in the names of both plaintiff and defendant No. 1 and it was for a consideration of Rs. 300/-. The property appertaining to item A(ii) was purchased on the basis of a Kabala (Ex. B-2) dated 20th June 1944. It stands only in the name of defendant No. 1, the consideration being Rs. 710/-, The properties appertaining to item A(iii) are covered by four kabalas. The first Kabala is of the year 1928, the second is dated 3-12-37, the third is dated 20-3-40 arid the fourth is in the month of May, 1944. The total consideration for all these transactions is Rs. 204/- and all of them, are in the name of defendant No. 1 alone. It is to be noted that the father of the plaintiff and defendant No. 1 was only a post-peon. He died leaving no properties of his to be inherited by the plaintiff and defendant No. 1. These properties which are sought to be partitioned were acquired subsequent to the death of their father which occurred in the year 1920 when the plaintiff was aged only 12 and the defendant No. I was 15.

(3.) The plaintiff's version is that all these properties were acquired from out of the joint family funds belonging to the plaintiff and defendant No. 1. Both of them were tailors owning one joint shop. Defendant No. 1 was the karta as asserted by the plaintiff and defendant No. 1 was in charge of the management of the affairs of the shop and also of the family and out of the joint income, the properties were acquired and as such they are partible between the plaintiff and defendant No. 1; that the subsequent transfer in favour of defendant No. 2 does not affect the interest of the plaintiff and as such the properties appertaining to item A(iii) also are equally partible.