PARIKHIT MUDULI Vs. CHAMPA DEI

JUDGEMENT

(1.) THIS is an appeal by defendants 1, 2 and 3 against the affirming judgment of the Additional Subordinate Judge. Puri arising out of a suit for partition.

(2.) BHARAT had two sons. Parikhit (defendant 1) and Chakra the husband of the plaintiff Kaviraj and Gopal defendants 2 and 3 respectively are sons of Parikhit defendants 4 and 5 are purchasers from Parikhit in respect of Kha schedule properties: Plaintiff who is governed by the Mitakhara School of Hindu Law, has filed the suit for partition of schedule Ka property claiming an allotment of eight annas' share out of the same She further prayed for a declaration that the registered sale-deeds executed by defendant 1 on 2-1-1958 in favour of defendants 4 and 5 in respect of Kha Sch. properties and the sale-deed dated 212-55 executed by defendant 1 in favour of his two sons, defendants 2 and 3 in respect of Sch. Ga properties are not binding upon her, as they are not for consideration and legal necessity.

(3.) THE specific case of the plaintiff is that her husband Chakra left for Burma since about twenty years and is not heard of since then Thus, on the basis of a legal presumption available under Sections 107 and 108 of the Evidence Act, he shall be deemed to be dead and the plaintiff as his widow, is entitled to claim partition in respect of her husband's share by virtue of the provisions of the Hindu Women's rights to Property Act, 1937, (hereinafter referred as 'the Act' ). She alleged that the properties conveyed under the aforesaid sale-deed may be available for partition.