Plaintiff's claim for partition and allotment of share is allowed

JUDGMENT :

A. Misra, J. - The unsuccessful Plaintiff in partition suit is the Appellant. Plaintiff?s case, in brief, is that one Lochani Sahu left three sons Madhu, Babu and Bhubani Babu was Defendant No. 1 who died during the pendency of this litigation; Defendant No. 2 is his second wife and Defendant No. 3 is his son through her. Bhubani has been impleaded as Defendant No. 7. Madhu left three sons Fagu (Defendant No. 4) Bhagu, deceased father of Defendant Nos. 5 and 6 and Paramananda, the Plaintiff. According to Plaintiff, Defendant No. 1 despairing of be-getting any male issue through his first wife Sara, adopted him on the twenty-first day of his birth and brought him up since then as a member of his family. Sometime after the alleged adoption, Defendant No. 1?s first wife having died, he married Defendant No. 2 through whom, besides two daughters, a Bon (Defendant No. 3) was born.

2. He further states that lot Nos. 1 and 2 of Schedule A and lot No. 3 of Schedule B constitute ancestral properties which have not yet been divided in metes and founds, though the different branches are in separate possession of portions for the sake of convenience. Lot Nos. 1 and 2 of Schedule Bare alleged to be joint family acquisitions of Defendant No. 1?s branch, though lot No. 1 has been purchased benami in the name of Defendant No. 2 and Defendant No. 1 has purported to create an invalid gift in her favour in respect of lot No. 2. The movables described in Schedule C are alleged to belong to the joint family of Defendant No. 1?s branch. On these allegations, Plaintiff claims partition in metes and founds and allotment of 1/12th share in the original Schedule A properties and ?th share in lot DOS. 1 and 2 of Schedule B and the movables described in Schedule C.

3. The deceased original Defendant No. 1 and his second wife and son (Defendant Nos. 2 and 3) were the main contesting parties. Defendant Nos. 4 to 7 have generally supported the Plaintiff?s claim, while Defendant No. 8 practically supports the case of Defendant Nos. 1 to 3. Defendant Nos. 1 to 3 plead that Plaintiff is not the adopted son of Defendant No. 1, and as such, has no right to claim a partition. According to them, Plaintiff had been adopted by his maternal uncle Lakhaman Sahu of Mansighpatra on whose death as he became homeless, Defendant No. 1 gave him shelter in his house. Subsequently, at the time of Plaintiff?s marriage, his prospective father-in-law having expressed unwillingness to give his daughter in marriage unless Plaintiff was given some property, Defendant No. 1 executed a gift deed giving him lot No. 3 of Schedule B, but the said gift has not been given effect to as Plaintiff?s wife left his house. So far as the suit properties are concerned, these Defendants allege that the family of Lochani possessed ancestral properties measuring a 105 acre, out of which, in the partition, Lochani?s branch was allotted a 21 acre constituting lot No. 2 of Schedule A of the plaint. Lot No. 1 of Schedule A and lot No. 3 of Schedule B were acquired by the three sons of Lochani. There was a partition in metes and founds among these three sons in which a 21 Bore described in lot No. 2, besides a 003 acre out of lot No. 1 of Schedule A were allotted to Madhu. Madhu?s sons and grandsons Bold the a (sic) acre to Defendant No. 8. As regards lot Nos. I and 2 of Schedule B, it is alleged that they constitute Stridhan of Defendant No. 2, the former having been acquired by her and the latter gifted to her under availed gift by Defendant No. 1.

4. The Court below, on a consideration of the evidence recorded the following findings and negatived the claim of Plaintiff for partition; (1) Lot Nos. 1 and 2 of Schedule B are Dot Stridhan properties of Defendant No. 2 but constitute acquisitions by Defendant No. 1 out of joint family earnings of his breach; (2) there was a partition in metes and founds among the three sons of Lochani in which the total extent of property consisting of lot Nos. 1 an