1. An adoption by a maternal uncle of his nephew is not valid in the absence of a custom to that effect. 2. A suit for partial partition is maintainable when the portion excluded is not in the possession of coparceners and may consequently be deemed not to be available for partition.

Judgement

PATRA, J. :- This is an appeal by defendants 1 and 8 and arises out of a suit for partition. In order to appreciate the controversy in the present case, it is necessary to set down the family pedigree which is shown below :

One Bidyadhar had four sons, namely, Madhu, Gopinath, Gangadhar and Ekaclasi. Madhu had three sons, namely, Gopal, Jayram and Nanda. Of them, Nanda died long ago and we are not concerned with that branch. Jayram died in the year 1930. Jagannath defendant No. 1 is the eldest son of Jayram and Swarnalata defendant No. 8 is Jagannath's wife. Jayram had another son by name Krushna who died in the year 1947 and the plaintiff Chanchala is admittedly Krushna's widow. Defendant No. 2 is the son of Gopal and defendants 3 and 4 are grandsons of Gopinath. Defendant No. 5 is the grandson of Gangadhar. Defendants 6 and 7 represent Ekadasi's branch being his great grandson and son respectively.

2. In the year 1964, Chanchala instituted the suit for partition giving rise to this appeal claiming an eight annas share in the properties covered by Schedules A and D, a four annas share in the property covered by Schedule B and one anna share in the C schedule property. According to her, after Bidyadhar's death, his properties were divided amongst his sons. The B schedule property fell to Madhu's share and the C schedule property remained undivided. Jayram therefore had an eight annas share in the schedule B property and consequently the plaintiff claimed a four annas share therein. In the C schedule property Madhu had a four annas share and consequently Jayram had two annas share therein. The plaintiff therefore claimed a one anna share in the C schedule property. So far as properties covered by schedules A and D are concerned, it is the plaintiff's case that these properties belonged exclusively to Jayram and consequently the plaintiff claimed an eight annas share therein. Defendants 9 to 21 were impleaded in the suit as alienees of some of the properties forming the subject-matter of the suit.

3. The substantial defence raised by defendants 1 and 8 was that a few days after the birth of the plaintiff's husband Krushna. he had been taken in adoption by his maternal uncle Lokanath Swain (D. W. 1) and that consequently Krushna lost all rights he had in the original family with the result that the plaintiff is not entitled to any share. It was stated that lot Nos. 2, 5, 7 and 13 of schedule A did not belong to the family lots 2, 7 and 13 having been purchased by defendant No. 1 out of his own funds and lot No. 5 having been purchased by defendant No. 8 from out of her Stridhan. It was further contended that as some of the properties which belonged to the family have not been included in the plaint schedules, the suit for partial partition is not maintainable in law. Certain other averment were made in the written statement which after consideration by the learned Subordinate Judge have been rejected by him and the correctness of the same is not challenged before us. It is, therefore, unnecessary to make any detailed reference to the same. Defendants 15 and 21 filed written statements supporting the case of defendants 1 and 8. Defendants 9 to 13 without admitting any of the plaint allegations stated that they would have no objection if a decree for partition was passed in the suit.

4. The learned Subordinate Judge disbelieved the plea of the contesting defendants that Krushna had been adopted by his maternal uncle Lokanath. He also held that even assuming that the adoption in fact took place, an adoption by a maternal uncle of his nephew is not valid in the absence of a custom to that effect and no such custom has been established. He accepted the plea of defendants 1 and 8 regarding their claim to lot Nos. 2. 5 and 7 of the A schedule property but rejected their claim regarding lot No. 13 of that schedule. Regarding the maintainability of the suit he held that a suit for partial partition is maintainable under certain circ