JAGABANDHU SENAPATI Vs. BHAGU SENAPATI

JUDGEMENT

(1.) THE following genealogy as appended to the plaint would show the relationship amongst the plaintiff, defendants 1 to 3 and defendants 4 to 8. Dinabhandhu and Minei were brothers. Puni Bewa (D-3) is the widow of Hari. Defendant 1, plaintiff and defendant 2 are the sons of defendant 3. Defendants 4 to 8 belong to the branch of Minei. Admittedly the Branches of Dinabandhu and Minei are separate in status. Plaintiff filed the suit for partition claiming one-sixth share in Schedule B properties consisting of 15.29 acres asserting that they are the joint properties of the two branches of Dinabandhu and Minei. He claimed one-third share in Schedule C properties measuring 3.38 acres alleging that they are the self-acquired properties of the plaintiff and defendants 1 to 3 acquired out of joint family funds and joint effort and exertion of the members irrespective of their being recorded in the names of different members of the family. Schedule D properties are movables in which the plaintiff claims one-third share. Thus in the prayer for partition, plaintiff did not state that his mother, defendant 3, is entitled to a share also.

(2.) DEFENDANTS 1 to 3 filed a joint written statement on the following averments. Plaintiff was adopted by deceased Govind Chandra Sahu in 1932. He was living in the family of his adoptive father and had no connection with the family of defendants 1 to 3. There has been en amicable partition by metes, and bounds between the branches of Hari and Minei. The properties under lots 5 to 8 of Schedule C and those under lots 16 and 18 of Schedule B are the separate and self-acquired Stridhan property of Sita Dei, wife of defendant 1, who is not a party to the suit, and neither the plaintiff nor the defendants 1 to 3, have any right title or interest over the same. The properties covered under lots 1 to 3 of Sen. C are the self-acquired properties of defendants 1 and 2 which they purchased on 6-7-1958 out of their own separate earnings and not out of their joint family funds, and properties under lot No. 4 of Schedule C belong to Magu Sahu and others. Even if plaintiff's own allegation is accepted, plaintiff IB entitled to one-eighth share in Schedule B and one-fourth share in Schedule C properties.

(3.) EXHIBIT F dated 6-5-1935 is the plaint in T. S. No. 205 of 1935 filed in the Court of the 1st Munsif, Cuttack. The plaintiff, who was a minor filed the suit as the adopted son of Govind Sahu through his maternal uncle Jadu Sahu as next friend to restrain defendant 1 of that suit from taking possession of the property in Ex. Case No. 225/34 arising out of O. S. 180/32. The plaintiff in that suit wanted to take delivery of possession of the property of Govind Sahu, and filed the plaint. EXHIBIT F for a declaration that he as the adopted son of Govind Sahu was not bound by the decree against Govind Sahu and asked for an injunction against the decree-holder from taking delivery of possession. On 29th of November, 1935, a sale-deed was executed by the plaintiff through Govind Sahu as the father-guardian for repayment of the dues decree in O. S. 180/32 in respect of which the afore-said execution case had been levied. On 30th November, 1935, O. S. No. 203/3S was compromised after the sale-deed. EXHIBIT C was executed by the plaintiff in favour of the decree-holder. The compromise decree is EXHIBIT J in which the plaintiff was represented through his maternal uncle. It would thus be seen that as early as 1935, three years after the alleged adoption in 1932, deceased Govind Chandra Sahu admitted the plaintiff as his adopted son. In EXHIBITs F and J. Govind Chandra Sahu was a defendant and did not challenge the plaintiff's claim in that suit on the footing of his being an adopted son of the former. EXHIBIT G is a document to which Govind Sahu himself was a party. He acted as a guardian for the plaintiff in transferring some property and described the plaintiff as his adopted son. These documents are admissible in evidence under Section 32(3) and (5) of the Evidence Act By admitting the adoption, the deceased Govind made a statement against his own pecuniary and proprietary interest as the plaintiff would get a share in his property. Under EXHIBIT G the sale-deed was executed in respect of the property belonging to Govind. The statement is also admissible under Section 32(5) as the statement relates to the existence of relationship between the plaintiff and Govind by adoption and Govind had special means of knowledge of knowing it and the statement was made before the question in dispute was raised. The aforesaid admission is a strong piece of evidence and is binding on the plaintiff. He has not been able to explain that the admission was wrong.