RADHAKRISHNA PADHI ETC Vs. BHAJAKRISHNA PANDA

JUDGEMENT

(1.) First Appeal No. 145 of 1971 has been filed by defendant No. 3. First Appeal No. 9 of 1972 has been filed by defendant No. 1 (c) and her natural son defendant No. 5 and First Appeal No. 15 of 1972 has been filed by defendants Nos. 1 (a), 2 and 6. The relationship of the parties is to be found from the genealogy given below : Nirakar Padhi, a man of a substantial property, left behind two sons - Yudhisthir (original defendant No. 1) and Srinibas. Yudhisthir died during the Pendency of the suit leaving behind two sons and a daughter being Ramanath (defendant No. 2), Radhakrishna (defendant No. 3) and Mahalakshmi (defendant No. 1 (c)). Ramanath's wife Kanchan is defendant No. 6. Mahalakshmi is married to Jagannath and their son Kishore Padhi is defendant No. 5. Srinibas died leaving behind Khalli who met with a premature death in 1942 leaving behind a young widow Urmila. Urmila filed the suit on 25-1-1969 impleading defendants 1 to 3 and asked for the following reliefs:

(2.) Defendant No. 1 died during the pendency of the suit and his daughter Mahalakshmi is substituted along with his two sons Ramanath and Radhakrishna who had already been impleaded as defendants 2 and 3. On the allegation that Ramanath had become insane, his wife Kanchan is permitted to represent his interest. Legal representatives of the defendant No. 1 contended that the family of Srinibas and Yudhisthir continued to be joint till there was a partition on 22-6-1968 and the deed was formally registered on 27-6-1968. Urmila has been assigned six annas interest and the rest ten annas share went to Yudhisthir. Urmila suffered from cancer for some time and ultimately died at Cuttack on the 20th of Apr.1969 while she was suffering from cancer and was not in a fit state of mind or body and had no opportunity for obtaining independent dependent advice, defendant No. 4, her sister, along with her husband obtained a deed of settlement from her. Similarly, her brother Dwarikanath took away the remaining property by means of a Will in the name of his son. These documents were not binding against defendant No. 5, the adopted son of Urmila. Defendant No. 6 filed a separate written statement and when defendant No. 2 became insane, the stand taken by defendant No. 6 became also the stand of the second defendant. They contended that Yudhisthir had settled some properties in the name of defendant No. 6. After partition of 1968 while Yudhisthir and his sons were in joint enjoyment of their ten annas share, a fresh partition was made among themselves by way of a family arrangement. After this arrangement, Yudhisthir settled his share of property in favour of defendant No. 6 on 2-7-69 and thereafter he died. Defendants 2 and 6 therefore, are entitled to two-thirds share out of the ten annas interest and defendant No. 3 becomes entitled to the remainder out of Yudhisthir's share. They have supported the plea of adoption of defendant No. 5 by Urmila. The third defendant did not accept the stand of any of the parties and contended that there was no partition in 1968 and the further plea of partition of 1969 is, therefore, without basis. Defendant No. 2 was on the look out for grabbing a major portion of the property and, therefore, created these documents with the help of husband of defendant No. 3. Bulk of the properties constituted estates and after abolition they have been settled in favour of defendants 1 to 3 in 1954. There had actually been a partition in 1952 and on the basis of that partition, the Settlement subsequent to abolition was made. Since there had been a previous partition, there was no scope for a fresh partition through court. The claims laid under the Settlement and the Will have also been challenged.

(3.) The trial court framed as many as 18 issues. It found that the plea of the third defendant that there had been a previous partition in 1952 was not established. There was a partition in 1968 and that has been acted upon. The claim of adoption of the 5th defendant was not accepted. The deed of settlement (Ext. 3) and the Will (Ext. 4) were valid. Accordingly, the trial court declared the rights of the plaintiffs over the disputed properties and restrained the defendants from interfering with such possession. The claim for mesne profits was, however, negatived.