KELUNI DEI Vs. JAGABANDHU NAIK

JUDGEMENT

(1.) THIS second appeal has been filed by defendants 1 and 2 against the reversing judgment of Sri T.V. Rao, Subordinate Judge of Balasore, dated 15th July 1950, arising out of a suit brought by the original plaintiff Kangali Naik for declaration of title, for confirmation of possession, or, in the alternative, recovery of possession. Rushi and Kangali (the original plaintiff) were two brothers. Rushi is long dead leaving behind him his two sons Bhagirathi and Balaram. Both the brothers Bhagirathi and Balaram died in the same month, that is, October -November of 1939 and at an interval of nearly 10 or 12 days as the deaths were due to cholera. But nevertheless it is the admitted position that Balaram died first leaving behind him his only heir the widow Pitei. Pitei died after April 1944. Bhagirathi died leaving behind him his widow Keluni (defendant No. 1) and his daughter Malati (defendant No. 2). It is in respect of the interest of Balaram that the present controversy arises.

(2.) THE defence version is that Balaram and Bhagirathi were continuing joint till the death of either; Pitei never possessed the suit property separately but she was all along living with Keluni. After the death of Pitei in the middle of 1944, her interest in the property passed by way of survivorship to Keluni who alone is entitled to the property in preference to Pitei's husband's heir Kangali.

(3.) AS I have indicated above, both the Courts below having come to the concurrent finding, which has not been challenged before us, that Balaram and Bhagirathi were joint till the time when Balaram died on 1st November 1939, the only question that remains to be determined in the present appeal is whether on the death of Pitei, Balaram's interest in the joint family property will pass by way of survivorship in favour of Keluni or will be inherited by Kangali, the plaintiff. The present respondents are the legal representatives of the original plaintiff Kangali.