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High Court Of Orissa
P. C. MISRA, G. B. PATTANAIK
GANGADHAR DAS - Appellant
Versus
GADADHAR DAS - Respondent
First Appeal 147 Of 1972
Decided On : 04/18/1985
PARTITION - Joint family property - Severance of status - Acquisitions made after severance of status - Onus of proof - Properties standing in the individual names of plaintiff No. 1, plaintiff No. 2 and defendant No. 2, out of the properties enumerated in Schedule-Kha of the written statement of defendant No. 1 were the joint family properties, excepting the 3. 72 acres of land which has been held by the trial Court to be the joint family property of the three brothers.
Fact of the Case:
Plaintiffs filed a suit for partition of joint family property. Defendant No. 1 contested the suit and claimed that there was complete partition by metes and bounds amongst the four branches of Kusun. Defendant No. 2 filed a written statement and claimed that separation between the brothers took place in 1954 since when they were separately possessing their shares of land after amicable division.
Finding of the Court:
The Court found that there was no reliable evidence on record to show a completed partition amongst the four branches of Kusun. The Court also found that the oral evidence adduced by the plaintiffs and defendant No. 2 as regards the time of separation amongst the three brothers is discrepant and unreliable and the oral evidence adduced by defendant No. 1 in support of the story of separation in 1965 is also unreliable. However, on the basis of documentary evidence, the plaint story of separation amongst the three brothers in 1954 is established.
Issues: 1. Whether there was a severance of status in Jan. , 1965 and shortly thereafter there had been a partition by metes and bounds on 29-3-1966 as per the allotments made in the unregistered deed of the said date? 2. When actually there had been a severance of status or in other words disruption of the joint family of Khetra and his sons? 3. Which are the joint family properties liable to be partitioned?
Ratio Decidendi: 1. The Court held that the onus is heavy on defendant No. 1 to establish that the properties standing in the individual names of plaintiff No. 1, plaintiff No. 2 and defendant No. 2, out of the properties enumerated in Schedule-Kha of the written statement of defendant No. 1 were the joint family properties. 2. The Court held that defendant No. 1 had failed to establish that the properties standing in the individual names of plaintiff No. 1, plaintiff No. 2 and defendant No. 2, out of the properties enumerated in Schedule-Kha of the written statement of defendant No. 1 were the joint family properties, excepting the 3. 72 acres of land which has been held by the trial Court to be the joint family property of the three brothers.
Final Decision: The Court allowed the appeal in part and held that the property covered under Ext. A - 3 is the property of defendants 1 and 13. The Court affirmed the judgment and decree of the lower Court except to the extent that the property covered under Ext. A - 3 should go in favour of defendants 1 and 13.
( 1 ) G. B. PATNAIK, J. :- Defendants 1 and 13 are the appellants against the judgment and decree of the Subordinate Judge, Balasore, in O. S. No. 98 of 1968.
( 2 ) THE suit is one for partition amongst the four branches of Laxman, Khetramohan, Sitaram and Rama, their common ancestor being one Kusun Das. Laxman has two sons Jagannath and Harekrushna. Jagannath's son Baidyanath is defendant No. 3, Harekrushna is defendant No. 4 and his son Gopinath is defendant No. 14. Khetramohan's wife is Brundabati and their three sons are Gadadhar, Gangadhar and Bhagaban. Gadadhar is plaintiff No. 1 and his son Ganapati is plaintiff No. 2. Gangadhar is defendant No, 1 and his son Sripati is defendant No. 13. Bhagaban is defendant No. 2. Sitaram has two sons -Chakradhar and Chemei. Chakradhar's wife Aparti is defendant No. 5 and their two sons and a daughter - Nanda, Panda and Sabitri are defendants 6,7 and 8 respectively. Chemei's widow is Bayani (defendant No. 9) and their sons Musi and Sachindra are defendants 10 and 11. Rama's son Banshidhar is defendant No, 12.
( 3 ) ACCORDING to the plaint case, Schedule - Kha property measuring 10. 09 acres is the joint family property of the common ancestor Kusun. Schedule-Ga property measuring 13. 53 acres is the property of Khetramohan's branch. Schedule-Gha property measuring 3. 81 acres was acquired in the name of Khetramohan's widow Brundabati, but also is the joint family property of Khetra and his sons. The plaintiffs aver in the plaint that prior to the Current Settlement, the four branches of Kusun were living in separate mess and residence and were separately possessing their respective shares in the joint family property according to convenience though there was no partition by metes and bounds. Khetramohan died on 17-2-1949. After Khetramohan's (sic) Plaintiff No. 1 and defendants 1 and 2, i. e. the three sons of Khetramohan continued to live joint till 1954. Dissension having arisen amongst them, they separated from each other and possessed 1/12th share each in Schedule-Kha property and 1/3rd Share each in Schedules Ga and Gha property. But this was only by way of mutual adjustment and convenience and there had been no partition by metes and bounds. The further case of the plaintiffs is that on the intervention of one Chandramohan, who is the maternal uncle of plaintiff No. 1 and defendants 1 and 2, some document of partition was prepared wherein all the three brothers signed but when the document was presented for registration, plaintiff No. 1 could know that he had been allotted lesser land than he was entitled to in accordance with the share and consequently he did not appear before the Sub-Registrar to get the document registered. Plaintiff No. 1 thereafter demanded amicable partition by metes and bounds, but since the same was not complied with, the suit has been brought. It is also averred in the plaint that plaintiff No. 2 had purchased 51 decimals of land covered under 'una' Schedule out of 'kha' Schedule property from Chakradhar and Chemei and was, therefore, entitled to the same exclusively. The plaintiffs further aver that out of plot No. 483 in lot No. 1 of 'kha' Schedule, all the three brothers, namely plaintiff No. 1, defendants 1 and2 had purchased 5 decimals of land from Harekrushna and Jagannath and also these three brothers purchased 27 decimals which represents 1/4 share of Banshidhar, in lot No. 2 of Schedule Kha. Accordingly, the plaintiffs claim 1/12 share in Schedule-Kha, 1/3 share each in Schedules Ga and Gha and 1/3 share out of the lands jointly purchased along with defendants 1 and 2, as referred to earlier. Plaintiff No. 2 claims his exclusive title to 51 decimals in Schedule-Una which he alleged to have purchased from Chemei and Chakradhar.
( 4 ) DEFENDANT No. 1 contested the suit. He avers in his written statement that there was complete partition by metes and bounds amongst the four branches of Kusun. He further avers that Khetramohan was a famous Kavira
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