PARESH NATH MAHANTY Vs. GHASIRAM MAHANTY

JUDGEMENT

(1.) This is an appeal by defendant No. 1 in a partition suit in which the plaintiffs claimed that each one of them had one-fourth share in the properties given in the schedules of the plaint. They admitted that defendant No. 1 was entitled to one such share also. Plaintiffs 1 to 3 are the full brothers and plaintiff No. 4 is their mother. Defendant No. 1 is the step brother of plaintiffs 1 to 3 from the first wife of their father,

(2.) The plaintiffs' case is, that the immoveable properties described in Schedules B, C and D came to the exclusive share of their father, Raghunath, in a partition with his brothers, and these properties remained in his possession till his death in 1949. Thereafter disputes arose between the parties, and the plaintiffs wanted to partition the family properties out, as the defendant No. 1 did not agree to that, they were forced to bring the suit. The other defendants originally impleaded as pro forma defendants represented the branches, of the four brothers of Raghunath's father. They were subsequently expunged as admittedly they had no interest in the litigation. The common ancestor Baidyanath Mahanti, left five sons of whom Brojmohan was the eldest. Brojmohan had tour sons of whom Raghunath, the plaintitls father, was the eldest. Schedule F of the plaint described the moveable properties with which we are not concerned in this appeal. Schedule E was subsequently omitted, and, therefore, that is no longer the subject of dispute.

(3.) The main defence pleaded by the present defendant appellant was that Baidyanath, the great grand-father of plaintiffs 1 to 3 and the defendant, got the suit properties mentioned in Schedules B(i), C and D as Chakran lands on the express condition that he would attend upon the Ruling Chief, and that, according to the custom prevalent in the State as well as in the family, the rule of primogeniture prevailed in regard to the suit properties, and the eldest son performs the service of the Ruler and enjoys the lands. After Baidyanath, his eldest son Brojmohan came in possession of the properties and, after Brojmohan, Raghunath, father of plaintiffs 1 to 3 and the defendant, succeeded to the properties as the Chakrandar and remained in enjoyment of the same. In regard to the items of the property given in Schedules B(ii) and B (iii), the defendant claimed that they were his exclusive properties as he had acquired the same by reclamation by his own labour after he had separated from his father.