The omission of Section 23 of the Hindu Succession Act allows a married daughter to seek partition in joint family property, disregarding her marital status and absence of other daughters.

JUDGMENT :

A.C. Behera, J.

1. This Second Appeal has been preferred against the reversing judgment.

2. The appellants of this Second Appeal were the defendants before the Trial Court in the suit vide T.S. No.69 of 1991 and they were the respondents before the 1^st Appellate Court in the first appeal vide T.A. No. 4 of 1994.

The respondent of this 2nd Appeal was the sole plaintiff before the Trial Court in the suit vide T.S. No.69 of 1991 and she was the appellant before the 1^st Appellate Court in the 1^st appeal vide T.A. No. 4 of 1994.

3. The suit of the plaintiff (respondent in this 2^nd Appeal) vide T.S. No.69 of 1991 before the Trial Court against the defendants (appellants in this 2^nd appeal) was a suit for partition and declaration.

4. The case of the plaintiff was that, Banthia Barik had married Benga, but he (Banthia Barik) had kept Padma as his concubine. Raya Barik was the son of Banthia Barik through Benga. The plaintiff is the sole child and daughter of Raya Barik. Raya Barik expired leaving behind plaintiff as his daughter and sole successor.

The concubine of Banthia Barik i.e. Padma had one son through Banthia Barik i.e. Kshetramohan Barik (defendant No.5). The defendant Nos.1 to 4 are the sons of the defendant No.5 (Kshetramohan Barik).

5. In order to have a better appreciation and so also for an instant reference, the aforesaid genealogy stated by the plaintiff in her plaint is depicted hereunder:-

6. According to the plaintiff, the suit properties were originally belonged to Banthia Barik. After the death of Banthia Barik, the suit properties were recorded in the name of Raya Barik (father of the plaintiff) and Kshetramohan Barik (defendant No.5) jointly in the major settlement. Raya Barik gifted away the suit properties to the plaintiff through registered gift deed No.2527 dated 09.06.1983. As, the plaintiff was the only daughter of Raya Barik and as Raya Barik gifted away the suit properties to the plaintiff, for which, the plaintiff is the owner of the entire suit properties. But on dated 15.02.1991, she (plaintiff) came to know that, the defendant No.1 (Kailash Chandra Barik) has projected him as the adopted son of Raya Barik in a mutation case vide mutation case No.7778 of 1989 and also came to know that, the defendant No.1 has obtained a decree from the Court in T.S. No.42 of 1983 behind the back of Raya Barik declaring him (defendant No.1) as the adopted son of Raya Barik practizing fraud and suppressing the service of summon of that suit on her father Raya Barik. In fact, the defendant No.1 is not the adopted son Raya Barik. But, she (Plaintiff) is the only child and successor of Raya Barik.

Therefore, she (plaintiff) filed the suit vide T.S. No.69 of 1991 against the defendants praying for partition of the suit properties and for a declaration that, the defendant No.1 is not the adopted son of Raya Barik and also to declare that, the judgment and decree passed in T.S. No.42 of 1983 by practicing fraud and through suppression of summons as null and void and to declare her half share in the suit properties.

7. Having been noticed from the Trial Court in the suit vide T.S. No.69 of 1991 filed by the plaintiff, the defendant Nos.1 to 5 contested the same by filing their joint written statement denying the allegations alleged by the plaintiff against them taking their stands inter alia therein that, the suit of the plaintiff is not maintainable. The same is barred by law of limitation. The suit is defective for non-payment of adequate Court fees.

According to them (defendant Nos.1 to 5), the mother of the defendant No.5 i.e. Padma Barik was not the concubine of Banthia Barik, but, she was the legally married wife of Banthia Barik. B