BHABANI BEWA Vs. AKSHOY KUMAR DAS

JUDGEMENT

(1.) This is an appeal against the concurrent decisions of the two lower Courts decreeing the respondent-plaintiffs' suit for partition.

(2.) The properties to be partitioned are two plots bearing Nos. 1247 (having an area of six cents) and 1390/1827 (having an area of two cents) in. Mouza Baro, P.S. Tihiri in Balasore district. In the Current Settlement, plot No. 1247 was recorded as 'Gharbari' (homestead) and plot No. 1390/1827 was recorded as 'bari'. Admittedly, the aforesaid two plots were the joint property of one Mayadhar, and Upendra who had -/8/- share each. Defendants 1, 2 and 3 are the successorsin- interest of Mayadhar. Upendra sold his -/8/- interest in the aforesaid plots, to one Dibakar Mahalik on 22-1-1931 (Ex. 3-a) who, in turn, sold it to the plaintiffs on 6-2-1937 (Ex. 1). The plaintiffs' claim for partition is based on the transfer of title in their favour by the aforesaid" two sales.

(3.) The main contention raised by the defendants was that as they were co-sharers of Upendra and as the disputed plots formed part of their homestead, Section 4 of the Partition Act should be applied. and they should be given the option of purchasing, the plaintiffs' share at the current market value. The two lower Courts, however, rejected this contention of the defendants holding (though not clearly) that the disputed plots did not form part of the joint, dwelling house of the defendants and Upendra.