NIDHI SWAIN Vs. KHATI DIBYA

JUDGEMENT

(1.) THE defendants in a suit for partition are the appellants and the appeal is directed against the judgement and decree of the learned Subordinate Judge at Nayagarh. THE relationship of the members of the family appears from the genealogy below : It was alleged by the plaintiff that Bira and his sons constituted a joint family. THE 'A' schedule properties were ancestral having been recorded in the settlement of 1932-33 of the Nayagarh State in Bira's name. Bira died soon after the settlement Defendants 1 and 2 and the deceased husband of the plaintiff with the aid of the joint family nucleus and their own labour acquired the 'B' Schedule Property. As defendant No. 1 was the Karta of the family during the period of acquisitions (1936-52), the acquisitions were in the name of the first defendant. THE 'C' Schedule properties were acquired out of the joint family nucleus subsequent to the death of Narasingha in the names of the defendant No. 1's sons. Similarly the 'D' Schedule Properties have also been purchased out of the joint family nucleus in the names of defendants 2 to 6 and the 'E' Schedule Property has been purchased out of the joint family assets in the name of defendant No. 7. THE 'F' Schedule Property constitutes the movable assets of the joint family. According to the plaintiff, she has the same share as her husband had in the properties, namely, one-third and she wants her share to be partitioned and separate possession delivered to her.

(2.) ON the other hand, the defendants in a joint written statement have contended that some portion of the 'A' Schedule property is not the joint family asset; the acquisitions of 'B', 'C', 'D'. and 'E' Schedule Properties are not out of the joint family nucleus and the joint family has no interest therein; the joint family had no surplus Income and, therefore, in the acquisition of 'B', 'C', 'D' and 'K' Scheduled Properties, there was no utilisation of any joint family asset. The plaintiff had withdrawn from the family of her own accord at the instance of her son-in-law.