A partition deed executed between two brothers is not binding on the mother who is entitled to a share in the partition.

Judgement

DAS, J. : This is an appeal by the defendant No. 1 against the judgment and decree passed by the Subordinate Judge, Bhubaneswar, in a suit for partition. The relationship of the parties will appear from the genealogy given below :

Dinesh - D. 3 is one of the sons of defendant No. 1. Banbehari died on 7-8-54, leaving behind his widow the plaintiff, and his sons, defendants 1 and 2. It is the case of the plaintiff that all the suit properties were the self acquisition of her husband. She herself had acquired some land from out of her own funds and she is in exclusive possession of the said properties. The sons did not take any interest in her affairs. So she was compelled to file the present suit for partition of both immoveable and moveable properties of the family claiming one third share therein.

2. Defendant No. 1 came forward to oppose the claim of the plaintiff mainly on the ground that she is not the legally married wife of his father. His mother Paluni Debi died in 1923, while on a pilgrimage at Kasi. By that time both the defendants were aged 10 and 2 respectively. The plaintiff is not a Brahmia, but a Khandayet by caste and is the daughter of one Kunja Rout. She was a widow and after the death of Paluni, she was kept as a mistness by their father. Banabehari had no ancestral property, but he made some acquisitions, about 18 acres in extent out of his personal income. Similarly defendant No. 1 made acquisitions of about 14 acres from out of his personal income as a deed writer in a Sub-Registrar 's office. Defendant No. 2 also made similar purchases in his own name, from out of his personal income and both defendants 1 and 2 made joint acquisition from their separate earning. By a registered deed of partition dated 27-12-54 he and defendant-1 partitioned major portion of the family properly, but some properties were kept joint for the sake of convenience. Banabehari purchased some in the name of the plaintiff and that be treated as joint family property. According to the decisions of Bhadralokas the said land and a sum of Rs. 3000/- which was kept in deposit with the plaintiff by their father was given to her and she had no claim to the suit property. On account of some ill feeling defendant No. 2 has set up the plaintiff to file the present suit. Defendant No. 3 the son of defendant No. 1 fully supported his father.

3. Defendant No. 2 fully supports the case of the plaintiff. He admits that she is the legally married wife of Banabehari and the mother of defendant Nos. 1 and 2. Their father was a renowned Moharir who out of his income purchased the entire suit property. He had also substantial money-lending business. He admits the execution of the registered deed of partition, but according to him that was a nominal deed made in view of the impending land legislation. In spite of the deed the parties are still continuing as members of a joint family.

4. The learned Subordinate Judge held that (1) the plaintiff was the legally married wife of Banabehari; (2) the suit properties both moveable and immoveable were joint family properties of the family and the plaintiff was entitled to 1/3rd share in the same and she was not bound by the previous partition between defendants 1 and 2. He thus decreed the plaintiff 's suit for partition. Against this decision of the learned Subordinate Judge the present appeal has been filed by defendant No. 1.

5. After the filing of the appeal the plaintiff made a gift of her share of the suit property in favour of defendant No. 2 by a deed of gift dated 1-10-62. The appellant has filed a copy of the said deed and has made an application under O. 41, R. 27 C.P.C. to accept the said document by way of additional evidence. As there was no objection from the side of the respondents, the said document is received by way of additional evidence and marked as Ext. D in this Court. I shall deal with the effect of this document a little later.

6. The main points that arise for consideration in this