GITA DEBI SARAGI Vs. MADAN MOHAN MASANTA

JUDGEMENT

(1.) DECEASED Kissore Mohan and defendant No. 1 were brothers. They were separate in status, but their dwelling house was not partitioned by metes and bounds. Subasini (defendant no. 2), widow of Kishori Mohan, transferred undivided 8 annas interest in the disputed house and homestead by a registered sale deed to Gita Debi (plaintiff) on 27-4-62 for Rs. 2000/ -. Gita Debi filed T. S. No. 23 of 1963 in the Court of the Subordinate Judge, Balasore, for partition. Defendant No. 1 claimed to repurchase the property sold to the plaintiff under section 4 of the Partition Act. As to the value of the house, there was contest. Ultimately a compromise petition was filed on 17-1-67 whereby the plaintiff and defendant No. 1 agreed that the value of the homestead would be Rs. 550/- per decimal. It was stated therein that defendant No. 1 would repurchase the disputed homestead within two months of the compromise, failing which the plaintiff would be entitled to partition. This compromise was accepted by the court on 18-1-67. Within the stipulated period defendant No. 1 did not pay the money and did not repurchase the property from the plaintiff. On 4-4-68 Gangamani (wife), chintamani and Chandramohan (sons) and Sebamani (daughter) of defendant No. 1 filed an application under Order 1, Rule 10 C. P. C. that they should be permitted to intervene and were prepared to repurchase the disputed homestead on payment of proper consideration. This application was accepted by the learned subordinate Judge who allowed them to be impleaded in the partition suit. Against this order the Civil Revision has been filed by the plaintiff.

(2.) THE learned Subordinate Judge held that defendant No. 1 did not act in the interest of the family and that the compromise to purchase the disputed homestead at the rate of Rs. 550/- per decimal which is higher than the rate fixed by the Commissioner which was Rs. 400/- per decimal, establishes the fact that defendant No. 1 did not act in the interest of the family. He further held that even though the wife, the sons and the daughter of defendant No. 1 were not cosharers of Kishori Mohan in respect of the disputed homestead, they were entitled to exercise the right of repurchase under Section 4 of the Partition Act by virtue of their right of residence in the house of defendant No. 1.

(3.) MR. Sinha was unable to support the judgment of the learned Subordinate Judge on the grounds advanced therein. There are no materials that defendant No. 1 acted against the interest of the family. There was contest between the plaintiff and defendant No. 1 regarding valuation. A commissioner was deputed who fixed the value at Rs. 400/- per decimal. The plaintiff challenged the value and claimed at a much higher rate. In such a circumstance, if a compromise was entered into fixing the value of the land at Rs. 550/- per decimal, it cannot be said without some other evidence that defendant No. 1 acted against the interest of the family. The finding of the learned Subordinate Judge is speculative and cannot be accepted without more solid evi-dence.