RAMAMONI Vs. KASINATH

JUDGEMENT

(1.) THESE two appeals arise out of a decision of the Subordinate Judge, Berhampur, in Title Suit No. 23 of 1943, setting aside the alienations made by defendant No. 1 in favour of the appellants, to the extent of 12 annas interest in the properties alienated.

(2.) THE suit was brought by one Kasinath Sahu, a member of the well known Sahu family of Berhampur which was a trading family having extensive business, and owning a sugar factory at Aska and a saw mill at Russellkonda in Ganjam district. In addition they had a shop at Berhampur. THE suit was brought for partition of the joint family property. Other co-sharers were impleaded as defendants 11 to 22, 29 and 34 and their relationship with the plaintif will be clear from a perusal of the genealogical tree filed by the plaintiff. THE plaintiff further impleaded defendants 23 to 28 and 30 to 33 who are strangers to the family, alleging that they were alienees from defendant No. 1, Damodar Sahu when he was managing the business of the family. THE alienations were challenged as not binding on the plaintiff and the other co-sharers on the ground that there was no legal necessity for the same. THE properties which are the subject matter of the alienations were described in detail in schedule D attached to the plaint. During the pendency of the suit, all the members of the Sahu family compromised the same and the litigation was fought out only in respect of the alienations made by defendant No. 1 in favour of (i) Sri Mahant Narayan Das Babaji, (defendant No. 23) - (after whose death his successor-in-interest Mahant Ramdas Babaji was substituted as defendant No. 33); and (ii) Srimati Rahasmoni Dei (defendant No. 24) and (iii) Srimati Rammamani Hota (defendant No. 28). Other alienee-defendants did not fight out the litigation in the lower Court and were not represented there. As regards the aforesaid three alienee-defendants, viz. defendants 24, 28 and 33, some evidence was led on the question of legal necessity for the alienations and other ancillary matters, and the learned Subordinate Judge held that the alienations were not for legal necessity and, as such not binding on the entire family. He however held the alienations to be binding to the extent of four annas interest in the family asmuch as defendants Nos. 1, 4, 9 and their sons had admitted their binding nature and their interest in the family was only one fourth. Hence, while passing a preliminary decree for partition of the entire property on the basis of the compromise amongst the members of the Sahu family, he directed that the alienated properties should also be partitioned in accordance with the shares mentioned above.