BHAGABAT PRASAD DAS Vs. HAIMABATI DEVI

JUDGEMENT

(1.) Defendant 3 is the appellant against the judgment and decree passed by the Subordinate Judge, Balasore in Original Suit No. 94 of 1971-I in which the plaintiffs (respondents 1 to 6 in this appeal) prayed for partition of the properties described in Schedules `Kha' and `Ga' of the plaint.

(2.) According to the genealogy given in the Schedule `Ka' of the plaint, the plaintiffs and defendants 1 to 3 are members of the same family having a common ancestor. Defendants 4 to 10 are purchasers from different co-sharers. The genealogy as given in Schedule `Ka' of the plaint is extracted below for proper appreciation of the facts which are necessary for decision of this appeal.

(3.) According to the assertions made in the plaint, Dhruba and Baidyanath died long before the settlement of 1922-23 without leaving any heir and Janakiballava died about 35 years back leaving behind two sons, Umakanta (def. 1) and Ramakanta, their other two brothers having predeceased them. Defendant 3 is the son of defendant 1 and plaintiffs 1 to 4 and 6 are the daughters and plaintiff 5 is the son of Ramakanta, who died about 9 years prior to the suit. Lokanath had two sons, namely; Mohan and Fakira out of whom Mohan died leaving behind him his widow Tulari and Fakira died leaving behind his two sons Srikanta (D.2) and Kalandi. According to the plaintiffs, Kalandi died unmarried prior to the settlement. As per the case pleaded by the plaintiffs whatever family properties were left at the time of settlement of 1922-23 the same belonged to defendant 2 and the father of defendant 1 and the same stood recorded in their names. The defendant 1's father Janakiballav and defendant 2 were all through living in separate mess and residence though their properties were not partitioned by metes and bounds and each of them was possessing properties more or less proportionate to their shares. The plaintiffs have alleged that when Janakiballav died 35 years 'back, his properties devolved upon defendant I and Ramakanta, their other two brothers, as already stated, having predeceased them. Janaki had purchased some properties as per lot Nos. 1 and 2 of schedule `Gu' in the name of his first son Baishnab and the same stood recorded in his name in the settlement records. Defendant No. 1 and Ramakanta were living joint and defendant No. 1 was the Karta of the family. Out of the properties described in lots Nos. 3 to 10 of Schedule `Ga' some were purchased in the name of both the brothers and some in the name of defendant No. I alone. The plaintiffs have alleged that irrespective of the purchase of the properties in individual names the entire `Ga' schedule properties were possessed by the two brothers proportionate to their shares as the same were really the acquisition by the joint family. After the death of Ramakanta about 9 years prior to the suit, his widow Laxmi also died about 3 years thereafter and thus Ramakanta's interest in the properties devolved upon the plaintiffs in equal shares. The plaintiffs' demand for partition having been refused they have filed the present suit for the said relief. 3A. Defendant 1 disputed the genealogy given in the plaint saying that Baishnab was married by the time of his death and left behind his widow Sarada who has not been shown in the genealogy. He denied the plaint allegations and claims certain properties as his separate properties. Defendant 2 generally supported the plaint allegations and claimed that the entire suit properties were joint and are therefore liable for partition. Defendant 3, the present appellant, however, made out a case in his written statement that there was complete partition between Baishnab on one hand and his 3 other brothers on the other. He also asserted that Baishnab had married by the time of his death and left behind his widow Sarada. His further case was that Sarada sold certain properties for a consideration of Rs. 2,000/- on 8-8-1951 from out of her share in the properties to defendant 3, who has been in possession thereof with effect from the date of his purchase. Out of the properties so purchased, he has also sold some properties to some of the strangers who have been arrayed as defendants. As regards lots Nos. 8 to 10 of Schedule `Ga', defendant 3 claims to have purchased the same by himself out of his own funds and claims the same as his separate properties.