JAYANTI MOHAPATRA Vs. SRIMATI ASHAMANI DEBI

JUDGEMENT

(1.) In this appeal under the Letters Patent, legal heirs of one Asma Chandra Mohapatra, who was defendant No. 2 in a suit for partition have assailed correctness of decision rendered by a learned Single Judge of this Court, who dismissed their appeal which was originally filed by Rama Chandra Mohapatra. Judgment and decree of learned Subordinate Judge, Puri in C. S. No. 105 of 1976 I decreeing the suit for partition and allotting 1/3rd share in favour of plaintiff -respondent No. 1 were subject -matter of challenge in this Court in First Appeal No. 212 of 1976.

(2.) A brief reference to factual controversy and the respective stands of the parties would suffice. The suit property belonged to Lingaraj Mohapatra, who died in the year 1970 leaving behind his widow Fulla Dibya (defendant Mo. 2)and two daughters Shradhamani Devi(defendant No. 1) and Ashamani Devi (plaintiff). The suit was filed seeking partition of the suit property wherein plaintiff claimed 1/3rd share in her favour conceding. 2/3rd shares in favour of defendants 1 and 2. In the plaint Rama Chandra Satpathy was cited as defendant; No. 3.The said defendant on receipt of notice filed an application to be arrayed as defendant, No. 4 alleging that his description as Rama Chandra Satpathy, son of Chintamani Satpathy was incorrect and erroneous, and he should have -been described as Rama Chandra Mohapatra, son. The application was allowed impleaded as defendant No. 4describing v, Rama Chandra Mohapatra. Defendants 5 to 8 are purcharers of portions of the suit property and defendant Nos. 9 and 10 are sons of the plaintiff in whose favour defendant No. 2 has settled her interest in the Plaintiff put up a claim that after death of Lingaraj in the year 1970 the three heirs, i. e., Lingaraj's widow, and two daughters were entited to 1/3rd share each as Lingarij had no son. Since it was no longer convenient and feasible to possess the property jointly, prayer for partition was made. Defendant No. 1 filed written statement refuting the claim of plaintiff. Her stand was that defendant No. 3 who is her natural son was taken as 'Putrika Putra' of Lingaraj and he is entitied to a share in the property Soft by Lingaraj Defendant No. 2 supported the' case of plaintiff and denied that Lingaraj had taken defendant No 3 as: 'Putrika Putra' at any time. Defendant No. 3 defendant No. 4 pleaded that since his birth he had been trested as 'Putrika Putra' -'by Lingaraj and his wife and therefore, under the Hindu ' Succession Act, -1368 (in short, 'the Succession Act') he is entitled to a share in the property left by Lingaraj, The contest in the suit was mainiy between; the. plaintiff and defendant No.3/defendant No. 4.

(3.) IN the First Appeal, it was pleaded that the trial Court was not justified in holding that defendant No. 3/defendant No. 4 was not, entitied to claim share in the property of Lingaraj as his 'Putrika Putra'. The learned Single Judge observed that the concept, of 'Putrika Putra' to claim the property is obsolete one and, does not hold fined any longer. A feeble attempt was made to plead that defendantNo. 3/defendant No. 4 was treated as the son by Lingaraj and at some stages Lingaraj and his wife had stated that he was their adopted son. The said plea was turned down by the learned Single Judge with the view that the adoption of daughter's son was prohibited under Hindu Law prior to enactment ofHindu Adoption and, Maintenance. Act 1956 (In short,'the Act'). Being conscious; of that position, defendant No. 3 based his claim to the property solely on the basis of 'Putrika Putra'.