PURNA CHANDRA DAS Vs. CHANDRAMANI DIBYA

JUDGEMENT

(1.) THIS is an appeal by the defendant No. 1 against the judgment and decree passed by the Subordinate Judge, Bhubaneswar, in a suit for partition. The relationship of the parties will appear from the genealogy given below : Dinesh - D. 3 is one of the sons of defendant No. 1. Banbehari died on 7-8-54, leaving behind his widow the plaintiff, and his sons, defendants 1 and 2. It is the case of the plaintiff that all the suit properties were the self acquisition of her husband. She herself had acquired some land from out of her own funds and she is in exclusive possession of the said properties. The sons did not take any interest in her affairs. So she was compelled to file the present suit for partition of both immoveable and moveable properties of the family claiming one third share therein.

(2.) DEFENDANT No. 1 came forward to oppose the claim of the plaintiff mainly on the ground that she is not the legally married wife of his father. His mother Paluni Debi died in 1923, while on a pilgrimage at Kasi. By that time both the defendants were aged 10 and 2 respectively. The plaintiff is not a Brahmia, but a Khandayet by caste and is the daughter of one Kunja Rout. She was a widow and after the death of Paluni, she was kept as a mistness by their father. Banabehari had no ancestral property, but he made some acquisitions, about 18 acres in extent out of his personal income. Similarly defendant No. 1 made acquisitions of about 14 acres from out of his personal income as a deed writer in a Sub-Registrar 's office. DEFENDANT No. 2 also made similar purchases in his own name, from out of his personal income and both defendants 1 and 2 made joint acquisition from their separate earning. By a registered deed of partition dated 27-12-54 he and defendant-1 partitioned major portion of the family properly, but some properties were kept joint for the sake of convenience. Banabehari purchased some in the name of the plaintiff and that be treated as joint family property. According to the decisions of Bhadralokas the said land and a sum of Rs. 3000/- which was kept in deposit with the plaintiff by their father was given to her and she had no claim to the suit property. On account of some ill feeling defendant No. 2 has set up the plaintiff to file the present suit. DEFENDANT No. 3 the son of defendant No. 1 fully supported his father.

(3.) THAT apart, there is evidence to show that defendant No. 1 admitted the position that the entire suit properties including the properties under Exhibit B series are the properties of the joint family. Ext. A is the partition deed between Purna and Braja dated 27-12-1954. In the said document, the entire joint family properties have been shown to be about 35.6541/acres. In the said partition defendant No. 1 was allotted 14.078 acres, defendant No. 2 was given 11.717 acres and 9859/2 acres were kept joint. The said document was executed by both the defendants Nos. 1 and 2 wherein it was clearly stated that Ambhamanankar samasta sthabar sampati isimali rahithibaru Bantan Karaiba Abashyaka : (as all our immoveable properties have been kept joint, it is necessary to make a partition of the same). It is not disputed that the entire suit properties were covered by the deed of partition, (Ex. A). Defendant No. 1 has admitted this partition, allotment of properties as mentioned in Ext. A and has stated that out of 9 acres kept joint about three acres will be their homestead and the same was not partitioned, as that would cause some inconvenience to the parties. The other six acres consist of small plots of lands in the far-off villages and they were kept joint only to be sold away in future. He admits that out of the properties that were kept joint, about three acres of land have been sold jointly by him and defendant No. 2 and they divided the consideration money. Thus, there is a clear admission in Ext. A that the entire suit properties including the properties covered under Ext. B series were the properties of the joint family. It is well settled that admission is the best evidence that an opposite party can rely upon and though not conclusive is decisive of the matter unless proved to be erroneous : AIR 1960 SC 100, Narayan Bhagwant Rao v. Gopal Vinayak.