BIPRA CHARAN MOHANTY Vs. MOHAN SUNDAR MOHANTY

JUDGEMENT

(1.) IN this first appeal, the defendant No. 5 is the appellant from a decision of the Second Additional Subordinate Judge, Cuttack, in Title Suit No. 25/ 1955 of 1951/50 (Partition) whereby the plaintiff's suit was decreed on contest with costs against the defendants 2, 4 and 5 and without costs against the rest.

(2.) THE suit arose in the following circumstances : THE parties belonged to a Hindu Mitakshara joint family. THE relationship between them appears from a geneological table set below : THE plaintiff Mohansundar filed the suit against the defendants for a decree for partition of the joint family immovables described in Schedule B, Schedule C (with the business standing thereon), Schedule D of the plaint and also moveables described in Schedule E according to shares stated in the plaint; if the defendants do not partition amicably within time allowed by the Court according to the said shares, a Civil Court Commissioner may be appointed for partitioning the joint family properties according to those shares; costs and other reliefs. Separate written statements were filed by the defendants. On the pleadings, several issues were raised before the trial Court, including issues Nos. 3 and 5; issue No. 3 being whether or not the defendants 1, 2 and 4 are the adopted sons of Krushnacharan, Keshab and Baman respectively referred to in the geneological table aforesaid; issue No. 5 was whether or not the Tata shop and business are the joint family properties as alleged by the plaintiff; if not, to whom the same belonged - whether to defendant No. 2 or defendant No. 5 as alleged. In this appeal we are mainly concerned with these issues broadly stated above.

(3.) THEN the defendant Bipracharan also relied on Ext. E/5, handnote by the said Nabin Sahu and the defendant Bipracharan Mohanty jointly, appearing to have been executed on April 15, 1942; and Ext. F/5 described as accounts on the letter head paper of Annapurna Bhandar showing defendant No. 5 B. C. Mohanty as proprietor of the business. The defendant Bipracharan further relied on Ext. G/5 (a), loan bond by defendant Bipracharan in favour of the National Insurance Company, Ltd. dated September 14, 1940 purporting to show that this loan money was utilised for the purpose of his business at Jamshedpur. He further relied on Ext. R-5/a, a letter from the Chief Town Engineer, Tata Iron and Steel Company Ltd. to defendant No. 5, B. C. Mohanty granting sanction for erection of kutcha building and directing to construct the sewer line dated January 15, 1938, purporting to show that the sanction was given in the name of defendant Bipracharan. THEN Ext. T-5/f, a letter from the land Officer, Tata Iron and Steel Company, Ltd. to defendant No. 5, B. C Mohanty regarding permission for mortgaging the shop premises for further one year dated August 16, 1946, wherein the defendant No. 5 was described as a shop-keeper of "Annapurna Bhandar."