The Hindu Women's Rights to Property Act, 1937, as amended by Orissa Act 5 of 1944, had been validly extended to the ex-State of Nayagarh and was the law in force when the plaintiff's husband died in 1949. The Hindu Succession Act, 1956, applied to agricultural lands.

Judgement

R.N. MISRA, J. :- The defendants in a suit for partition are the appellants and the appeal is directed against the judgement and decree of the learned Subordinate Judge at Nayagarh. The relationship of the members of the family appears from the genealogy below :

It was alleged by the plaintiff that Bira and his sons constituted a joint family. The 'A' schedule properties were ancestral having been recorded in the settlement of 1932-33 of the Nayagarh State in Bira's name. Bira died soon after the settlement Defendants 1 and 2 and the deceased husband of the plaintiff with the aid of the joint family nucleus and their own labour acquired the 'B' Schedule Property. As defendant No. 1 was the Karta of the family during the period of acquisitions (1936-52), the acquisitions were in the name of the first defendant. The 'C' Schedule properties were acquired out of the joint family nucleus subsequent to the death of Narasingha in the names of the defendant No. 1's sons. Similarly the 'D' Schedule Properties have also been purchased out of the joint family nucleus in the names of defendants 2 to 6 and the 'E' Schedule Property has been purchased out of the joint family assets in the name of defendant No. 7. The 'F' Schedule Property constitutes the movable assets of the joint family. According to the plaintiff, she has the same share as her husband had in the properties, namely, one-third and she wants her share to be partitioned and separate possession delivered to her.

2. On the other hand, the defendants in a joint written statement have contended that some portion of the 'A' Schedule property is not the joint family asset; the acquisitions of 'B', 'C', 'D'. and 'E' Schedule Properties are not out of the joint family nucleus and the joint family has no interest therein; the joint family had no surplus Income and, therefore, in the acquisition of 'B', 'C', 'D' and 'K' Scheduled Properties, there was no utilisation of any joint family asset. The plaintiff had withdrawn from the family of her own accord at the instance of her son-in-law.

3. The learned trial Judge found -

(1) Bira died in 1933 and Narasingha died at the age of 22 in December, 1949.

(2) The 'A' Schedule property excepting 68 decimals constituted the joint assets of the family;

(3) Joint family nucleus was available for acquisition of assets. The other immovable properties were joint family assets and are liable for partition. He further found the claim of movable properties as indicated in Schedule 'F' had not been established. But relying on an admission in paragraph 9 of the written statement in regard to specific movables, he decreed the suit for partition. It is against this decree of the learned Trial Judge that the present appeal has been filed at the instance of the defendants.

4. Mr. Misra for the defendants contends that :-

(1) The Hindu Women's Rights to Property Act, 1937 (hereinafter referred to as the 1937 Act) had not been extended to the ex-State of Nayagarh prior to Orissa Act 4 of 1950. Since Narasingha died on 1-12-1949, at a time when that Act was not in force, the plaintiff to not entitled to lay any claim on the basis of the 1937 Act.

(2) The plaintiff is not entitled to any share in the agricultural land and the Hindu Succession Act, 1956 (hereinafter referred to as the 1958 Act) has no application to succession in respect of agricultural lands.

(3) The 1937 Act had been repealed by Section 31 of the 1956 Act. Even though the repealing statute was repealed in 1960, the 1937 Act was not revived.

(4) The plaintiff has failed to establish existence of sufficient nucleus and, therefore, there could be no presumption that joint family nucleus was utilised for acquisition of properties under the 'B' to 'E' Schedules of the plaint. These contentions of Mr. Misra require examination.

5. Contention No I.- No specula plea has been raised in the pleadings as to whether the 1937 Act was in force to the Nayagarh State. For the first time such a contention has be