IMPORTANT POINTS
(1) Title – Mere recording of name in Record of Rights neither creates title nor extinguishes title in whose favour same is recorded.
(2) Donee cannot get better title through gift, than his/her donor.

JUDGMENT

A.C. Behera, J.—This second appeal has been preferred against the confirming judgment.

2. The appellant in this 2nd appeal i.e. Jhatu Swain was the defendant No.1 before the Trial Court in the suit vide T.S. No.140 of 1988 and sole appellant before the 1st appellate Court in the 1st appeal vide T.A. No.58 of 1994.

After the death of the appellant Jhatu Swain during the pendency of this 2nd appeal, his legal heirs have been substituted as appellant Nos.1(a) to 1(d) in his place.

The respondent No.1 in this second appeal was the sole plaintiff in the suit vide T.S. No.140 of 1988 and respondent No.1 in the 1st appeal vide T.A. No.58 of 1994.

The respondent No.2 in this 2nd appeal was the defendant No.3 in the suit vide T.S. No.140 of 1988 and respondent No.3 in the 1st appeal vide T.A. No.58 of 1994.

3. The suit of the plaintiff (respondent No.1 in this second appeal, Jogi Swain) vide T.S. No.140 of 1988 before the Trial Court against the defendants (original appellant in this 2nd appeal i.e. Jhatu Swain and respondent No.2 along with one Chanchala Dei) was a suit for partition.

4. According to the plaintiff, the defendant Nos.1 & 3 are his brother and sister respectively. The defendant No.2 (Chanchala Dei) is the sister of his father. The suit properties are his ancestral properties.

5. In order to have a better appreciation and so also for an instant reference, the family pedigree of the parties according to the plaint is depicted hereunder:—

GENEALOGY

Bhagabat Swain

?

Fakira Swain

?

? ?

Dhobei Swain Chanchala Dei ? (deft. No.2)

? ? ?

Jhatu Swain Jogi Swain Rajani Dei

(deft No.1) (plaintiff) (deft No.3)

6. As per the pleadings of the plaintiff, the parties to the suit are all Hindus and they are guided and governed by Mitakshara School of Hindu Law.

According to the aforesaid genealogy, Bhagbat Swain was his common ancestor.

Bhagabat Swain died leaving behind his only son i.e. Fakira Swain as his only successor. So, after the death of Bhagabat Swain, all the suit properties left by him devolved upon his son Fakira Swain.

Fakira Swain died 35 years prior to 1988 i.e. in the year 1953 leaving behind his son Dhobei Swain and daughter Chanchala Dei (defendant No.2).

After the death of Fakira Swain, all the suit properties left by him (Fakira Swain) devolved upon his son Dhobei Swain, as, Fakira Swain expired in the year 1953 prior to the coming into force of The Hindu Succession Act, 1956, because, a pre-Act daughter like Chanchala Dei (defendant No.2) had no right of succession by that time as per law. So, all the suit properties left by Fakira Swain devolved upon his son Dhobei Swain and Dhobei Swain became the owner of the entire suit properties.

When Dhobei Swain was the owner of the entire suit properties, the said Dhobei Swain died much after 1956 leaving behind his two sons and one daughter i.e. defendant No.1 (Jhatu Swain), Jogi swain (plaintiff) and Rajani Dei (defendant No.3).

So after the death of Dhobei Swain, the suit properties left by him (Dhobei Swain) devolved upon his successors i.e. plaintiff, defendant No.1 and defendant No.3.

Therefore, the suit properties are the joint and undivided properties of the plaintiff, defendant Nos.1 & 3. The suit properties have not at all been partitioned/divided between them (plaintiff, defendant Nos.1 & 3) till yet through any metes and bounds partition.

After the death of Fakira Swain, the defendant No.1 being his eldest son, he (defendant No.1) was managing the family and he was looking after the possession and management of all the joint and undivided suit properties as the manager of the joint family, but suddenly, five days before filing of the suit, he (defendant No.1) declared in his village that, the defendant No.2 (Chanchala Dei) has executed a gift deed in respect of half of the suit properties in his favour on the strength of joint recording of her name in the suit properties with her brother Fakira Swain in the major settlement R.o.R. In fact, the def