JUDGMENT

B. P. DAS, J. — This appeal is directed against the judgment and decree dated 30.8.1980 and 15.9.1980 respectively passed by the learned Subordinate Judge, Bhadrak in O.S.No. 123/1977-I. Respondent No. 1-Dinabandhu Sahu and respondent No. 2 - Suka Dei filed the suit as plaintiffs in the Court below. Respondent No. 2 having died during the pendency of this appeal, has been substi¬tuted by her legal heir as respondent No. 2 (a).

2. The plaintiffs filed the suit for partition of the properties in Schedule “Ka” of the plaint and for allotment of 50% share thereof to them. As the case of the plaintiffs stands, the scheduled properties measuring Ac. 7.51 decimals comprise of agricultural land as well as homestead land, some of which are ancestral properties and some are acquired properties of the family from out of the joint family nucleus. According to them, all the properties are partible. For the sake of convenience, the genealogy relied upon by the plaintiffs is given below :

Panu Sahu

Goura Sahu

Makunda Gajendra Raja

= Kokila (D-2) = Suka (P-2) = Saria

Hari (D-1) Dinabandhu (P-1) 0

According to the plaintiffs, within a span of 14 days, Gajendra died first, then Saria, then Goura, then Raja and then Makunda died due to cholera for which the plaintiffs are entitled to 50% share and defendant Nos. 1 and 2 are entitled to balance 50%. Defendant No. 2 died during pendency of the suit and she was substituted by Defendant Nos. 2-Ka & 2-Kha who are appellant Nos. 2 and 8 respectively. According to the plaintiffs, there was no partition by metes and bounds as between Goura Sahu and his three sons, namely, Makunda, Gajendra and Raja as well as two grandsons, i.e., Hari and Dinabandhu. According to the plaintiffs, plaintiff No. 1 was 7 years’ old at the time of death of his father - Gajendra, and defendant No. 1- present appellant No. 1 is a posthumous child having born after five to six months of the death of his father namely, Makunda. Defendant No. 2 - Kokila Dei was looking after the family and managing all joint family properties and was the custodian of all the title deeds and documents. As there was no complete partition by metes and bounds in respect of the suit properties, they were possessing different portions of the suit properties as per their convenience. Plain¬tiffs’ further case is that when they requested defendant Nos. 1 and 2 for amicable partition of the suit properties, they took a plea that Goura Sahu, the grand-father of the plaintiff No. 1, had sold the entire suit properties in favour of defendant No.2-Kokila Dei and Saria Dei by virtue of a sale deed dated 27.4.1940 for a consideration of Rs. 600/-. It was argued before the trial Court that the transaction was a collusive and nominal transac¬tion in which the properties were grossly under-valued and there was no legal necessity for the said transaction. It was further argued that the aforesaid sale deed was never acted upon and Kokila Dei and Saria Dei have never acquired any right of possession over the suit properties. According to the plaintiffs, the parties are all along possessing the suit properties as their joint family ancestral properties. Since defendant No. 2 has sold away some portions of the suit properties to defendant Nos. 3 to 14, they were also impleaded as parties.

3. Defendant Nos. 1 and 2 filed a joint written statement. According to them, Plaintiff No.1-present respondent No. 1 is not the son of Gajendra nor has he any right or share in the proper¬ties of Goura Sahu. They disputed the plaint genealogy and relied upon another genealogy showing therein that plaintiff No. 1-Dinabandhu Sahu belongs to another branch of their family, their common ancestor being one Bauri Sahu. The genealogy relied upon by defendant Nos. 1 and 2 is as follows :

Bauri Sahu

Atanga Panu

Ekadasi Goura alias Gouri

Chintai Makunda Gajendra Bhaja Raja

= Tauli Dei = Kokila = Suka = Saria

D2 P-2 0

Kali Bali Dina