PURNA CHANDRA BARIK Vs. NIMEI CHARAN BARIK

JUDGEMENT

(1.) PLAINTIFFS Nos. 2 to 5. sons of deceased plaintiff No 1 have preferred this appeal aeainst concurrent iudg-ments of the court? below The subject-matter of the litigation is 10. 21 acres of land and homestead in village Ratnapur As per the genealopy given in the plaint, the common ancestor Sadasiv Baril had seven sons arakhita, Hari, Ugri. Nata, Damo, Urdhab and Ghann. They constituted a joint family. The family possessed lands in three villages Hariharpur, Phulihari and ratnapur Ghano died, while the familv was 1oint sometiine prior to the settlement of 1924-31. Damo married Lakhmi through whom he had one son Nimei/defendant no 1 ). Defendant No 2 is the son of Nimei Damo predeceased Ghano Ghano had one daughter Usha (defendant No. 3) through his first wife After Damo's death his widow Lakhmi re-married Ghano. Urdhab was plaintiff No. 1 and plaintiffs Nos. 2 to 5 are his sons. According to plaintiffs, after the death of Ghano and while sadasiv was alive, the family divided. In the said division, the bhogra lands in hariharpur were allotted to the share of Arakhit and portions of the rayati in that village were allotted to the shares of Hari, Ugri and Nata. All the lands owned in mouza Pnuljhari were allotted to the share of defendant No. 1 and all the family lands in mouza Ratna-pur were allotted to the share of plaintiff no. 1. Ghano haying died in a state of jointness, Lakhmi was not allotted any share in the partition, but plaintiff No. 1 out of pity allowed her to live in his own house and during the settlement operations of 1924-31 allowed her name to be iointly re-corded in Khata No 13 of mouza Ratnapur, although he was all along in possession of the lands. Some differences arose in 1946 or 1947 on account of which plaintiff No. 1 allowed Lakhmi to enjoy the usufruct of the 10 acres and odd in dispute, and therefore, in the settlement of 1947, her possession was recorded. Lakhmi died in Falgoon 1958. After her death, defendant No. 1 initiated a proceeding under Section 145 Cr. P. C. , in respect of these lands which terminated in his favour. As Lakhmi had no right, title or interest in the disputed properties and her enjoyment of the usufruct was only permissive, the properties reverted to plaintiffs on lakhmi's death Alternatively they allege that by their uninterrupted and hostile possession for over the statutory period, plaintiffs have acquired an indefeasible right to the said properties. According to defendants Nos. 1 and 2, the partition of the family properties took place during the life time of Ghano and he was allotted some other land, besides those in dispute towards his shan After Ghano's death, lakhmi resided with defendant No. 1, her son through her first husband, who was cultivating the disputed lands on her behalf. On Lakhmi's death, these lands inherited by her from her deceased husband Ghano devolved on defendant No. 3 who sold the same to defendants Nos. 1 and 2 on 1-10-58 for Rs. 2. 500 since which date they are in possession in their own right. Defendant No. 3, while claiming that the properties devolved on her on Lakhmi's death, alleges that defendants Nos. 1 and 2 have taken a sale deed from her by practising fraud without payment of any consideration, and as such she asserts that she is entitled to the said properties.

(2.) THE concurrent findings of the courts below are (1) that Ghano died in a state of jointness and that the partition between the members of the family took place after Ghano's death, while Sadasiv was still alive; (2) that the deed of partition dated 17-8-1928 (Ex 11/b) between Sadasiv and other members of the family is valid and genuine: (3) that both the courts have negatived the plaintiffs' case that the suit properties constituted a part of the share allotted to plaintiff No. 1 and that out of pity he gave the same to Lakhmi for maintenance without her having any rights therein with the condition that they would revert back to him on lakhmi's death; (4) that the suit properties were given to Lakhmi for her maintenance at the family partition, and as such, after coming into force of the hindu Succession Act, 1956, she became the absolute owner and (5) that defendant No. 3 is entitled to succeed to the properties. On these findings, the suit was dismissed.

(3.) LEARNED counsel for appellants assails the judgments of the courts below on the following grounds; (1) that both the courts have erred in holding that the suit lands were given to Lakhmi under Ex. 11/b at the family partition towards her maintenance, (2) that both the courts have erred in rejecting the plaintiff's case that plaintiff No. 1 gave the suit lands to Lakhmi for her maintenance and Lakhmi's possession and enjoyment of the usufruct were only permissive without conferment of any rights on her and (3) that even assuming that Lakhmi got the lands at the family partition towards her maintenance, she would not be entitled to acquire an absolute right to the properties on passing of the Hindu Succession Act, 1956 as Section 14 (2) of the Act will apply.