BRAJA BEHERA Vs. GANDARAM BEHERA

JUDGEMENT

(1.) Plaintiffs are the appellants against dismissal of the suit for partition. Relationship of the parties shall be clear from the following genealogy:-

(2.) Plaintiffs claiming plaintiff No. 1 to be the son of Kubera through his second wife filed the suit for partition of his half share in the ancestral properties of Kubera Defendants claimed that plaintiff No. I being son of Kubera through his concubine is illegitimate and has no share in the ancestral properties. Kubera having given some properties to plaintiff No. 1 in a partition, suit for partition at the instance of plaintiff No. 1 and his sons is not maintainable. On the pleadings two main issues arose with regard to legitimacy of Braja (plaintiff No. 1) and previous partition of the properties. Trial Court held that plaintiff No. 1 is the legitimate son of Kuber. It, however, held that there being a prior partition, the suit for partition by the plaintiffs is not maintainable. Against this decision, plaintiffs have preferred this appeal. During pendency of the appeal, plaintiff No. 1 died leaving behind the other appellants as his only heirs and legal representatives to continue the appeal.

(3.) Mr. B.K. Naik, learned counsel appearing for the appellants submitted that on the finding that plaintiff No. 1 was the legitimate timate son, dismissal of the suit on account of prior partition is inconsistent. Trial Court ought to have held that the alleged partition having been claimed to be in the year 1916 when plaintiff No. I was a minor the same would not bind him when on the face of the materials it is seen that share of the plaintiff No.1 is negligible as he was allotted 14 acres of land out of 109 acres. It is so disproportionate that the story of a prior partition cannot be believed. Mr. Naik relied upon a decision reported in AIR 1979 SC 1436 (Smt. Sukhrani (dead) by L.Rs. v. Hari Shanker) in support of his submission.