HARAMANI Vs. DINABANDHU MISRA

JUDGEMENT

(1.) THIS second appeal is by defendants 1 and 2 against the concurrent decisions of the two lower Courts declaring the plaintiff's title to the disputed property and directing that he should recover possession of the same from defendants 1 and 2. The following pedigree will be helpful in understanding this litigation.

(2.) THE plaintiffs case was that the family remained joint, that Arta died sometime in 1920, that Krupasindhu died in 1939 issueless, his wife having predeceased him, and that the entire joint family property devolved on the plaintiff by survivorship. Defendant 3 being the widow of a deceased coparcener was entitled only to maintenance and that the Kabala executed by her in favour of defendants 1 and 2 on 23 -2 -40 in respect of the joint family property was invalid and did not convey any title to them. The main defence of defendants1 and 2 was that Jagannath, the father of the plaintiff, had been given away in adoption to one Madhab Das and that consequently the plaintiff had absolutely no interest in the joint family property which devolved on the descendants of Lokanath only. It was further alleged that Arta survived Krupasindhu and became the sole coparcener, that soon after his death defendant 3 succeeded to the entire property as his widow and that she executed the Kabala in question in favour of defendants 1 and 2 for legal necessities.

(3.) IN pressing the second appeal Mr. H. Mohapatra relied mainly on the provisions of the Hindu Women's Rights to Property Act, 1937 (hereinafter referred to as the Act) as construed by this Court in a special Bench decision reported in - -'Radhi Bewa v. Bhagawan Sahu', AIR 1951 Orissa 378 (SB) (A). Mr. Mohapatra urged that in view of the plaintiff's own case that he, Arta and Krupasindhu were all joint, defendant 3 as the widow of a predeceased coparcener would be entitled to a share in the joint family property by virtue of the aforesaid Special Bench decision inasmuch as on the date of the commencement of the Act (1937) the coparcenary had not been disrupted by partition between. Krupasindhu and Dinabandhu. This argument, however, is not available to him because whatever might have been the nature of the claim put forward by the plaintiff in his plaint, the finding of the trial Court was that the plaintiff had separated from Krupasindhu and Arta as early as .1919. This finding was not challenged either before the lower appellate Court or before the High Court in the grounds of appeal. On the other hand, in ground No. 5 this finding was itself relied upon to show that the alienation made by defendant 3 was valid. The defendants themselves had put forward the story of separation and the finding of both the Courts must be taken to have concluded this matter.