HADIANI DEBI ALIAS TIKI DEVI Vs. KAILASH PANDA

JUDGEMENT

(1.) THE plaintiff is the appellant against a reversing judgment in a suit for partition. Respondent No. 1 was the appellant in the Court below wherein the other two appellants were the respondent Nos. 2 and 3.

(2.) BRIEFLY stated, the plaintiff appellant filed a suit for partition for carving out her 10 annas share in lot No. 1 and 1/3rd share in lot No. 2 of the schedule a properties. The plaintiff claimed her title on the basis of the gift deed dated 19.4.1972 executed by her mother Kausali and on the basis of the record in the Hal Record of Rights noting her share. She also relies on an unregistered Panchayat Faisala (Ext. 6) dated 3.1.1965 and sale deed executed by Ananta in favour of Kausalya dated 18.7.1956. The undisputed genealogy is as under :

(3.) THE trial Court found the gift deed dated 19.4.1972 executed by Kausali Dibya in favour of the plaintiff as a valid and genuine document which was acted upon. The sale deed (Ext. X) dated 18.7. 1956 is a valid and genuine document and, therefore, the plaintiff was entitled to 10 annas share in the properties described in lot No. 1 and 3 of the plaint schedule and the other six annas share belongs to defendant No. 1, defendant Nos. 1 and 2 had half share each in the property described in lot No. 2 and in the other half plaintiff had ten annas share, whereas defendant No. 1 has got eight annas share. The suit being for a partition and the properties being joint family ancestral property, the trial Court held the suit was within the period of limitation. On such findings, the trial Court decreed the suit by a preliminary decree against defendant No. 1 and ex parte against defendant Nos. 2 and 3. The defendant No. 1, however, carried an appeal and the learned First Additional District Judge has allowed the appeal in part, the judgment and decree in respect of lot No. 2 in favour of defendant No. 2 was confirmed but with regard to allotment of share of appellant defendant No. 1 and the plaintiff and defendant No. 3 has been set aside. The learned lower appellate Court recorded the findings that the gift deed cannot validly convey any title since a coparcener cannot dispose of his undivided interest in the coparcenary property by way of a gift. The certified copy of the sale deed dated 18.7.1956 was found not to have been proved. The learned lower appellate court also recorded a finding that the Panchayat Faisala is not admissible in law for want of registration.