SAHADEB NAIK Vs. LINGARAJ BALABANTRAI

JUDGEMENT

(1.) The two plaintiffs who are son and mother respectively are in appeal against the order of the Subordinate Judge, Nayagarh dt. 28-8-1971 dismissing their suit for partition and giving possession of their 1/4th share in the ancestral properties as per schedule 'Ka' in the plaint, with certain incidental reliefs.

(2.) Admittedly, Sahadeb Naik, plaintiff No. 1, is the son of Raghunath, Naik who is the natural son of Lingaraj Balabantrai, defendant No. 1. Plaintiff No. 2 is the mother of plaintiff No. 1 and widow of Raghunath. Defendant No. 2 is an agnatic brother of defendant No. 1. They come from the common ancestor, one Arta. Schedule 'Ka' properties are the ancestral properties of the two branches, viz. defendant No. 1 and defendant No. 2. During the pendency of the appeal defendant No. 2 has died and his sons have been brought on record as legal representatives. Defendant No. 1 also died during the pendency of the appeal and a petition has been filed bringing to the notice of the Court about the same.

(3.) Both the plaintiffs claimed initially 1/4th share in the ancestral properties in which defendant No. 2 had eight annas share. Evidently out of the eight annas share of defendant No. 1 both the plaintiffs claimed a half share, i. e. 1/4th each, of the total ancestral properties. On 4-3-1970 defendant No. 1 had alienated under Ext. B Ac. 1.86 decimals of land in favour of defendant No. 2 under a registered deed. The plaintiffs in the suit claimed for a declaration that this was a nominal transaction which was not binding on them.