ANANDA PARIDA Vs. MUCHIANI SWAIN

JUDGEMENT

(1.) This is an appeal by one of the Defendants against the Judgment and decree passed by the Learned Subordinate Judge, Aska in Title Suit No. 41 of 1978. The Respondent No. 1 as Plaintiff filed the above noted suit for partition of the suit schedule lands and house and for allotment of 1/3rd share in the suit lands and 1/4th share in the suit house.

(2.) THE Plaintiff's case in brief was that one Daso, the father of Narasingha Swain, the deceased -husband of the Plaintiff died leaving the suit house and Ac. 0.25 cents of land, but to meet the obsequies expenses of his parents and marriage of sister, Narasingha sold those 25 cents of land. Subsequently Narasingha went to North India, worked there for some years, earned adequate amount of money and purchased the suit land which became his self acquired property. Narasingha died in the year 1974 leaving his widow, the Plaintiff, his son Defendant No. 1 and daughter -Defendant No. 2. The mother of the Plaintiff who had four Bharana of land and was living with the Plaintiff also died five days after the death of Narasingha and the Plaintiff performed the obsequies ceremony of late husband Narasingha and her sister performed the obsequies ceremony of their mother. When the matter stood thus, Defendant No. 1 executed a registered sale deed for the entire agricultural land left by Narasingha in favour of his father -in -law Defendant No. 3 in order to defeat the right of the Plaintiff and Defendant No. 2. The Plaintiff, therefore, filed the suit with the plea that the sale deed executed by Defendant No. 1 is not binding on her and she is entitled to 1/3rd share in the agricultural land and 1/4th share in the suit house. Defendant No. 2 did not contest the suit. Defendant Nos. 1 and 3 filed joint written statement claiming that the suit lands are the ancestral properties of the family as the same was acquired by Narasingha with the sale proceeds of the land left by his father Daso. It was also averred that to meet the expenses of obsequies of Narasingha and the mother of the Plaintiff, Defendant No. 1 had to incure a loan of Rs. 4,000/ - and in order to repay the said loan with interest and also to meet some necessary expenses of the family he had to sell the suit lands to Defendant No 3. Defendant Nos. 1 and 3 accordingly denied the right of Plaintiff and Defendant No. 2 to any share in the suit agricultural land. They also denied any right of Defendant No. 2 over the suit house although they did not challenge the share of the Plaintiff over the same. On the pleadings of the parties, Learned Trial Court framed the following issues:

(3.) MR . A.P. Bose, learned Counsel appearing for the Appellant alleges that the evidence and circumstances were not properly appreciated by the Learned Trial Court. According to him, there are sufficient materials on record to show that Narasingha acquired the suit lands from the joint family nucleus and that Defendant No. 1 had also made substantial contribution to such joint family nucleus. He further contends that the family had scanty income and it was essential to obtain loan for the treatment and obsequies expenses of Narasingha as well as the mother of the Plaintiff and thus there was good reason to infer that Defendant No. 1 sold the suit lands to Defendant No. 3 fer legal necessity of the family. According to Mr. Bose, the conclusion of the Trial Court that Defendant No. 1 was a small child and had no income of his own to contribute the joint family nucleus and there was no need for incurring loan for performing the obsequies of Narasingha and the mother of the Plaintiff are against the evidence on record. He submits that it is a fit case where the Judgment of the Trial Court should be set aside or the matter should be remanded to the Trial Court for reconsideration.