BIRA JENA Vs. TAULI DEI

JUDGEMENT

(1.) THIS second appeal is by the plaintiff from the reversing decision of the lower appellate court. The plaintiff's suit for declaration of his title and for partition is based on the following allegations : one Kurup Jena had 0. 97 decimals of land of which 0. 73 decimals are homestead. Defendant 1 is his daughter, and defendant 2 is his wife in 'thain' form. Kurup gifted 0. 24 decimals out of his lands to defendant 2 under Ext. 2, deed of gift, dated 9-4-58. This was with the consent of defendant 1. Kurup died thereafter. Balance 0. 73 decimals of Kurup were inherited by defendants 1 and 2 as simultaneous heirs having equal shares therein. So defendant 2 became owner of sixty decimals and five kadis, 24 decimals being under the deed of gift, and 35 decimals and five kadis by inheritance. Defendant 2 sold 0. 58 decimals out of it to plaintiff by Ext. 1, dated 7-1-59. These 0. 58 decimals comprised 0. 11 decimals of homestead. The plaintiff came to court for partitioning his 058 decimals against defendants 1 and 2. Defendant 2 remained ex parte. The suit was contested only by defendant 1.

(2.) DEFENDANT 1 denies that Kurup gifted any property to defendant 2, and that there was no relationship of husband and wife between Kurup and defendant 2. Her case is that defendant 2 was a concubine of Kurup. In the alternative she prays for relief under Section 4 of the Partition Act.

(3.) THE trial court found that the gift was valid and that there was marriage between defendant 2 and Kurup. He, therefore, decreed the plaintiff's suit for declaration of title and partition but he also held that defendant 1 is entitled to the relief under Section 4 of the Partition Act.