JUDGMENT

The appeal has come on the list as “to be mentioned”. Heard further argument. The First Appeal is dis¬posed of in the following manner.

2. Plaintiff-appellant challenges to the judgment and decree passed by learned Additional Sub-Judge, Balasore in O.S. No.3/92 of 1979/72-1.

3. Plaintiff instituted that suit for partition of the suit property. According to him, he and defendant Nos. 2, 3 and 4 and the father of defendant No.6 are the five sons of late Subal Chandra Ash. Defendant Nos.7 to 10 are the four daughters of late Subal Chandra Ash. Defendant Nos.1 is the widow of late Subal Chandra Ash and mother of the plaintiff and the defendants except defendant Nos. 5 and 6. Defendant No.5 is the widow and defendant No.6 is the son of late Aswini Ash, a deceased son of late Subal. Plaintiff’s case is that he was a minor by the date of execution of registered partition deed dated 24.12.1958(Ext.A). He executed that document during such minor hod on good faith and having trust and faith on defendant Nos. 1 to 4. After his marriage when he was compelled to leave the house in the year 1972 he took shelter in his father-in-law’s house since 02.07.1972 and there¬after instituted the suit for partition.

4. It may be noted here that in the original plaint, plaintiff described his date of birth to be 21.4.1941 (April 21st, 1941). On 16.8.1979, on the basis of his application for amendment of the plaint that date was changed to 16.10.1943 (October 16th, 1943).

5. Defendant Nos.1 and 4 filed two separate written statements. In each of the written statements similar plea has been advanced. It is stated by such defendants that the actual date of birth of the plaintiff is 08.07.1939. From the childhood he was a boy with notorious character and did not undertake his study sincerely, mixed with wayward sources and therefore his father compelled him to be with him in his book-store. After death of his father in the year 1950, plaintiff was allowed to work in that book shop under the management of defendant No.3. But he still indulged in misappropriation. Under such circum¬stance, when the plaintiff became matured in 1956 defendant No.1 provided him capital to start a separate book store with a hope that by shouldering responsibility he would change his attitude and adopt the way of improvement. Defendant No.1 did not achieve any success in that respect and the conduct and attitude of the plaintiff became a constant source of disturbance in the family and under such circumstance she got a partition effected amongst the children on 24.12.1958 and got that registered on 27.12.1958 (Ext.A). Both the defendants have pleaded that the assertion of minor hood of the plaintiff is false and that he was not driven out in the month of July, 1972, but because of his bad habits that the had to take shelter in the father-in-law’s house. De¬fendant No.1 further stated that otherwise also the suit for partition is not maintainable.

6. Trial Court framed the following issues to decide the suit.

“Issues

1. Has the plaintiff any cause of action to bring the suit ?

2. Is the suit maintainable in the present form ?

3. Was the plaintiff a minor on 14.12.58 when the alleged partition deed was registered ?

4. Is the plaintiff bound by the partition deed dated 14.12.58 ?

5. Are the suit properties liable for partition?

6. What relief, if any, the plaintiff is entitled to ?”

It is to be noted here that the date ’14.12.58' noted in issue Nos. 3 and 4 is actually 27.12.1958 and be read as such in view of Ext.A which was marked on admission.

7. Both the parties adduced oral and documentary evidence in support of their respective claim. The documentary evidence adduced by plaintiff are entry in Admission Register- Ext.1/a and Transfer Certificate- Exts.2 and 2/a indicating his date of birth as 16.10.1943. Document relied upon by the defendants is the registered of partition -Ext.A.

8. Learned Addl. Sub-Judge considering issue No.3 as the first issue and taking note of