KUNJA PRUSTI Vs. HAREKRUSHNA PRUSTI

JUDGEMENT

(1.) Defendants 1, 2, 4 and 5 in O.S. No. 21 of 1973(1) of the Court of Subordinate Judge, Nayagarh are the appellants in this appeal. Respondent No. 1 filed the aforesaid suit praying for partition of immovable properties described in schedule 'A' and 'B' and moveable properties described in schedule 'C' of the plaint. The plaint allegations show that schedule 'A' properties stood recorded alone in the name of defendant No. 1, whereas schedule 'B' properties are ancestral properties of the family in which other members of the family, namely, defendants 6 to 16 have got interest. According to the plaintiff, defendant No. 3 is the second wife of defendant No. 1 and plaintiff is the son of defendant No. 1 through the second wife. He claims l/5th share out of schedule 'A' and 'C' properties and l/20th share out of schedule 'B' properties. A further prayer has been made for a declaration that the registered sale deeds executed by defendant No. 1 on 27 -7 -1973 and 16 -2 -1972 in favour of the defendants 4 and 5 in respect of Ac. 13.12 decimals of land under Khata No. 149 of village Harirajpur out of 'A' schedule properties were sham, nominal, not supported by any consideration or legal necessity and that the said transactions would not bind the plaintiff.

(2.) DIFFERENT sets of written statements were filed by the contesting defendants, which raised more or less identical pleas. The present appellant No. 1 (defendant No. 1) was the main contestant, according to whom defendant No. 1 did not marry defendant No. 3 and therefore, it was alleged that the plaintiff is not the son of defendant No. 1. According to defendant No. 1, plaintiff is the son of some one else and, therefore, his claim for a share in the properties of the family is wholly untenable. He denied the existence of schedule 'C' properties. As regards schedule 'B' properties, his case was that neither the plaintiff nor defendant No. 3 had ever been in possession thereof and the said properties have been finally divided by metes and bounds amongst the cosharers.

(3.) THE appellants have challenged the judgment and decree passed by the learned trial Court, mainly on the grounds (a) that the plaintiff is not the son of defendant No. 1 as the factum and legality of the marriage between the defendant No. 1 and defendant No. 3 have not been established and, (b) that the moveable properties in the report of the Commissioner have not been proved to be belonging to the joint family and a decree for a partition of those properties is, therefore, liable to be set aside.