S. K. RAY, J.

( 1 ) THIS appeal is by the defendant and arises out of a suit for partition of the suit land by metes and bounds and for putting the plaintiff in separate pos-session of her share.

( 2 ) THE plaintiffs case is that her husband, Baleswar Mohapatra and the defendant were two brothers being the sons of one Kelu Mohapatra. This family had sufficient joint family nucleus with the aid of which some more immovable properties were acquired in the name of the defendant In 1944 the plaintiff's husband died, and thereafter, in the same year, the aforesaid acquisitions in the name of defendant were made. After the death of plaintiff's husband, the plaintiff and the defendant possessed jointly all the joint family properties till 1-10-62, when the dissensions arose between them. The defendant tried to get himself solely recorded during the settlement operation in respect of the properties purchased in his name by putting the plaintiff completely in the dark about it. Thereafter the plaintiff demanded partition but the defendant ignored it Hence this suit.

( 3 ) THE defendant adopted a number of defences. Of them, the material ones may be stated. First of all, the relationship of the plaintiffs husband with the defendant was challenged by denying that the plaintiffs husband Baleswar Mohapatra was the son of Kelu Mohapatra who admittedly was the father of the defendant Plaintiffs husband was alleged to be the son of one Arta Mohapatra of village Dandipur. The plaintiffs locus-standi, therefore, to maintain the suit for partition was challenged. Secondly, the lands purchased in the name of the defendant are the latter's separate properties having been acquired out of his separate income, and so these properties will not be liable for partition. Thirdly, khata No. 38 sought to be partitioned does not belong to joint family and hence should be excluded from partition.

( 4 ) THE trial Court passed a preliminary decree for partition. He found that the plaintiffs husband and the defendant were two brothers being sons of Kelu mohapatra and the properties purchased in the sole name of the defendant are joint family properties liable to partition. He also held that khata No. 38 is an item of joint family property and directed its partition along with other properties. All technical defences were negatived.

( 5 ) TWO contentions have been raised here by the learned counsel for the appellant the first is that the oral evidence of relationship of plaintiffs husband with Kelu mohapatra as the latter's son is inadmissible in view of Section 50 of the Evidence act and if such evidence is ruled out, the finding of the trial Court must go and the suit must accordingly fail. As a part of this contention it is also contended that Ex. 1 is inadmissible in evidence. The second is that khata No. 38 being not an item of joint family property should be excluded from partition, or, at any rate, it may be wholly allotted to the plaintiff's share.

( 6 ) I will now take up the first contention. Section 50 of the Evidence Act without its proviso has come in for judicial consideration by the Supreme Court as well as by this Court, in a number of cases. Full exposition of the true meaning and import and its scope has been made in those cases. I cannot do better than to quote a passage from a decision in Ulla Dei v. Malli Bewa, (1967) 33 Cut LT 740. The passage runs as follows:

"on analysis, the following considerations emerge- (i) The fact in issue is existence of the relationship of one person to another. (it) On this issue, the Court has to form an opinion and determine whether the relationship existed. (iii) The bare opinion of third persons as to the existence of such relationship is not relevant. The reason is apparent It is difficult to trace out the genesis of such an opinion". The initial hearsay passes from person to person. The trustworthiness of such reputation and the various links on which it was built cannot easily be tested. (iv) The opin