BALKRISHNA PRAHARAJ Vs. PRIYA NATH PRAHARAJ

JUDGEMENT

(1.) THIS first appeal against the judgment dated 16 -12 -1948 of Sri K. K. Bose, and Addl. Subordinate Judge of Cuttack, arises out of a suit for partition -defendants 1 to 4 being the appellants. It will be necessary to reproduce the genealogy herein below in order to appreciate the respective cases of different sets of parties in the suit for partition;

(2.) MADHAB had 5 sons, Nandakishore, Ganeswar, Nabakishore, Shyamsundar and Purnachandra. Defendants 1 to 4 are the sons of Nandakishore. Plaintiff is the son of Gancswar. Defendant 23 is the daughter of Nabakishore who died without a sun. Defendant 5 is the son of Shyamasundar. Defendant 6 is the widow of Purnachandra and defendant 7 is his daughter. Purnachandra died near about the year 1929 -30. According to the plaintiff's version Purnachandra died in a state of jointness with the other 4 brothers. 7 or 8 years after the death of Purnachandra, the 4 brothers separated in mess and there was severance of interest as they began to use the usufruct of the properties in four equal shares and there was no partition by metes and bounds. A few months after the separation amongst the four brothers, the plaintiff's father Ganeswar and Nanakishore reunited and enjoyed eight annas interest in the properties scheduled in the plaint. Nabakishore died in the year 1938 -39 while living Joint with Ganeshwer and the plaintiff. On the death of Nabakishore his interest passed on to Ganeswar and the plaintiff by way of survivorship as Nabakishore had no male issue. Nandakishore, Ganeswar and Shyamasundar, the three other brothers, died in the year 1944. The plaintiff therefore claims partition of his eight annas interest in the properties and alleges that defendant 5 Srinibas is entitled to four annas and defendants 1 to 4 are entitled to the balance four annas. The parties having failed to amicably partition the properties in spite of repeated demands, the plaintiff has brought the present suit for partition.

(3.) THE main contesting defendant -respondent before us is defendant 6 Purnachandra's widow. Her case is that in fact there was separation in status in the family amongst the five brothers during the life time of Purnachandra and, as such, each branch including defendant No. 6 has a fifth share.