PURNA CHANDRA MALIK Vs. RENUKA JENA

JUDGEMENT

(1.) The point of law that is raised in this case is as to whether a co-sharer of a joint family property after alienating a portion thereof in favour of a stranger to the joint family can opt for re-purchase along with the other co-sharers in consonance with Section 4 read with sub-section (2) of Section 3 of the Partition Act.

(2.) To answer the said question, it would be necessary to discuss the factual matrix in brief. One Balu Malik was the original owner of the land appertaining to plot No. 87 under Khata No. 234 situate in Mouza Bidyadharpur of Cuttack district and the residential house of the family exists on a portion of the said land. Balu died in the year 1940 leaving behind him two sons, namely, Purna Chandra Mallik (present petitioner), Bhagirathi Mallik and a grandson namely Nrusingha Mallik (son of his predeceased son Gangadhar). Bhagirathi and Nrusingha having joined hands sold a portion of the aforesaid joint family dwelling house to one Smt. Renuka Jena (present opposite party No. 1). Since Renuka could not take possession of the portion of the said dwelling house, she filed Title Suit No. 658 of 1988 in the Court of thee Civil Judge (SD). 1st Court, Cuttack, impleading Purna Chandra Mallik (present petitioner) as defendant No. 1, Bhagirathi Mallik as defendant No. 2, and Nrusingha Mallik (present opposite party No. 5) as defendant No. 3, and praying inter alia :

(3.) After receiving notice of the suit, present petitioner Purna Chandra Mallik, who is defendant No. 1 in the suit, filed his written statement repudiating the averments of plaintiff-Renuka in the plaint and taking a specific stand that the joint family dwelling house of all the defendants standing on the suit land has never been partitioned and the plaintiff who does not belong to the family of the defendants has no right of joint possession of the said house. The other two defendants, namely, Bhagirathi defendant No. 2 and Nrusingha defendant No. 3 filed their joint written statement admitting the claim of the plaintiff.