The central legal point established in the judgment is the interpretation of Debottar properties and the application of the OHRE Act to protect the rights of the deity and determine the liability for partition.

ORDER

Dr. S. Muralidhar, CJ. - I.A. Nos.5, 6, 7, 8, 9, 10, 11, 12, 13, 14, 15, 16, 17, 18, 19, 20, 21 and 22 of 2021

1. All these applications are allowed as prayed for. The legal heirs (LRs) of the deceased (Respondents) as prayed for in the applications are brought on record.

2. The I.As are disposed of.

AHO No.62 of 1993

3. The present appeal is directed against the judgment dated 9th February, 1993 passed by the learned Single Judge in First Appeal No.96 of 1978. By the impugned judgment, the learned Single Judge dismissed the appeal and thereby affirmed the preliminary decree dated 22nd December, 1997 passed by the learned Additional Sub-ordinate Judge, Balasore in O.A. No.20/20 of 1977-74. The preliminary decree was for partition of a joint family property.

4. The background facts are that Shri Gopal Jew Thakur is the family deity of Durllava Das, a common ancestor of the Plaintiffs in the suit i.e. the Respondents herein as well as the Defendants i.e. the Appellants. The said Durllava had two sons Padmalochan and Srimanta. With the line of Padmalochan becoming extinct, Srimanta succeeded to the entire property. Srimanta had five sons, two of whom were dead even before the suit was filed and they did not have any heir. The joint family properties, therefore, fell to the surviving three brothers. Defendant Nos.1 to 2 were the sons of one brother and Defendant No.3 was the widow of another. The Plaintiffs belonged to the branch of the 3rd brother.

5. The case of the Plaintiffs was that they were entitled to 1/3rd share of the total properties mentioned to the Schedule to the plaint. The claim of the Plaintiffs was that the family got separated 30 years prior to filing of the suit. This was disputed by Defendant No.1 in the written statement. Apart from challenging the genealogy it was asserted that the family was still joint.

6. The case of the Defendants was that the property in Lot Nos.3, 4 6 to 9, 13 to 15, 17 to 19 and 21 belongs to the family deity Shri Gopal Jew Thakur and that income from such property is utilized for the Puja and festivals of the deity. It was accordingly contended that these properties were not liable for partition. It was contended that Bholanath, one of the two brothers who died issueless, was fond of Defendant Nos. 1 and 2 and had executed a Will in their favour on 10th April, 1954. It was further contended that possession of the lands had been delivered to them in order to equalize the shares of the Defendant Nos.1 and 2 as well as Narayan, husband of Plaintiff No.1. It was accordingly contended by the Defendants that the land under the Will was not liable for partition and in the event there was partition then Defendants No.1 and 2 were entitled to two-thirds share in the family property.

7. The case of Defendant No.3 was that the entire property of the family had not been brought into the common hutch-pot and therefore, there was no scope for partial partition. Her case was that the husband of Plaintiff No.1 and Defendants No.1 and 2 were in separate possession of their respective shares and had sold some of the properties. She claimed that the land under Plot No.6 in Schedule 'Kha' measuring 74 decimals was her 'Streedhan' property. She claimed 1/3rd share in the rest of the suit property as well as for allotment of properties mentioned in Schedule 'Cha' of the written statement to the Plaintiff and the Defendant Nos.1 and 2, which had been transferred by their predecessor-in-interest. Defendant Nos.6 to 10 were subsequent purchasers who defended their purchases. Defendant No.2 did not file any written statement in the trial Court and remained ex parte.

8. After considering the evidence of two witnesses examined on behalf of the Plaintiff and five on behalf of the Defendants and after examining the documents marked as Ext. A series, Ext. B series and Ext-A-1 to E-1, the trial Court held that the lands recorded in the names of the Deity were 'nominal' i.e. they in fact belonged to the family and were