TRIPATI SAHU Vs. KALU CH SAHOO & OTHERS

JUDGEMENT

(1.) This appeal has been directed against the judgment and decree passed by the learned 2nd Additional District Judge, Berhampur in Title Appeal No.5 /37 of 1994-93 confirming the judgment and decree passed by the learned Subordinate Judge, Berhampur in Title Suit No.59 of 1986. The respondent no.1 as the plaintiff had filed the suit arraigning this appellant as the defendant no.2 and their father, the respondent no.2 as the defendant no.1 as also another brother, the respondent no.3 as defendant no.3. It may be stated here that the defendant no.2 having died during pendency of the suit, rest of his legal representatives have been brought on record.

(2.) For the sake of convenience, in order to bring in clarity and avoid confusion, the parties hereinafter have been referred to as they have been arraigned in the trial court.

(3.) The plaintiff's suit for partition in respect of the property described in the schedule of the plaint which is a house. It is stated that the plaintiff and defendants being members of the Hindu undivided family governed under Mitakshara School, father-Raghunath, the defendant no.1 was the Karta. It is also stated that he from out of the joint family funds had purchased the suit house in the name of defendant no.2 by registered sale deed dated 05.09.1979 since the defendant no.2 was the eldest of the sons and was the only educated member of the family. It is reiterated that the defendant no.1 had paid the consideration amount from out of the joint family funds. It is stated that the defendant no.1 till 1975 was working in a private shop and then the plaintiff was doing vegetable business and was earning profit and as such was having substantial savings with him. During that period, the defendant no.2 was prosecuting his studies. It is the further case of the plaintiff that his income as also the income of the defendant no.1 stood accumulated as the joint family funds. In the year 1975, the defendant no.1 had some difference of opinion with his employer. So, he left the service and started business for the benefit of the joint family. He began to run a grocery shop wherein the plaintiff also joined and the same gave good profit and substantial amount was earned thereby. All the sons and father were then living jointly. This defendant no.2 was not having any independent source of income and as such was dependent on the joint family. The suit house is thus claimed to have been purchased from Rahasa Sahuani, the motherin-law of the defendant no.1 in the name of defendant no.2 by defendant no.1 from out of joint family funds. Thus, it is stated to be the joint family residential house where all the parties are residing. It is alleged that the defendant no.2 after his marriage in the year 1981 changed his attitude towards the other family members, more so, after the death of mother in the year 1984. Misunderstandings went to height when defendant no.2 wanted to misappropriate the joint family funds for his personal benefit. He then gave out to alienate the suit house asserting and claiming it to be his own. The plaintiff, therefore, requested for a partition of the said suit house. The request having been turned down, the suit has come to be filed.