JUDGMENT :

Narasimham, C.J. - This is a Defendant's appeal against a preliminary decree for partition passed by the learned Subordinate Judge of Bolangir.

2. One Sidheshwar Meher had two wives, namely Rukmani and Tulasi. Defendant No. 1 is his only son through Rukmani (dead) and the other Defendants are the sons and grandsons of Defendant No. 1. The first four Plaintiffs (Plaintiffs Nos. 1 to 4) are the four sons of Sidheswar through his second wife Tulasi. Plaintiff No. 5 is the son of Plaintiff No. 1. Tulasi is Plaintiff No. 6. The Plaintiffs claimed partition of the joint family properties alleging that the five sons of Sidheshwar and his widow Tulasi (namely Plaintiffs Nos. 1 to 4. Plaintiff No. 6 and Defendant No. 1) were entitled each to one sixth share in the joint family property. That property was said to consist of 42.48 acres of ryoti land and 65.46 acres of Bhogra land situate in village Bhatpali in Patnagarh subdivision of Bolangir District.

3. The Defendants contended that during the lifetime of their common ancestor Sidheshwar, a partition had taken place in consequence of which 19.85 acres of ryoti land fell to the share of Defendant No. 1 and the Plaintiffs were allotted 2.2.63 acres of ryoti land and 1.64 acres of Bhogra land only. They further alleged that the Bhogra lands were first kept with Sidheshwar during his lifetime and after his death they devolved on Defendant No. 1, to the exclusion of all his step brothers. By a special amendment to the written statement the Defendants further set up a peculiar custom of their caste to the effect that if a person has two wives, the sons of each wife will get half the property of the father-irrespective of the number of sons and that the elder branch was also entitled to 'Jyeshtansa.

4. The main questions in controversy between the parties in the lower court were (i) whether there was a previous partition or else whether the property continued to be joint family property and (ii) whether the alleged custom in contravention of the ordinary rules of Hindu law, set up by the Defendants, was established or not.

5. The learned lower court held that the alleged custom had not been established and that the ordinary rule of Hindu law whereby all the sons of a deceased Hindu father would each get an equal share in his property should prevail. It also disbelieved the story of previous partition during the lifetime of Sidheshwar and held that the property continued to be joint family property. The lower court further held that even the Bhogra lands were liable to be partitioned amongst the sons and the surviving widow (Tulasi) of Sidheswar, each getting his share according to the Hindu law. Hence he passed a preliminary decree for partition.

6. Mr, B. Mohapatra for the Appellants pressed the appeal only in respect of the Bhogra lands which were not joint family properties but were given in lieu of remuneration to the Thikadar of the village and that when Sidheswar was the Thikadar he was in possession of the same and after his death Defendant No. 1 as his eldest son became the Thikadar and as such was entitled to their exclusive possession. He admitted, however that a small share out of the Bhogra lands namely 1.64 acres had bee a given to the Plaintiffs, merely by way of an amicable family arrangement, but this circumstance did not in any way militate against his contention that the Bhogra lands were not available for partition between the Thikadar and his undivided brothers.

7. The disputed property is situate in Bolangir district which was formerly one of the Feudatory States of Orissa ruled by the Maharaja of Patna State. That Feudatory State merged with the Province of Orissa on 1st January, 1948 and for sometime it was administered under the provisions of the Administration of Orissa States Order, 1948. Subsequently the State became an integral part of the Province of Orissa and the said Order was replaced by the Orissa Merged States (Laws) Act of 1950.

8. The disputed propert