G.B.PATNAIK, J. - (1.)Defendants 11 and 12 have preferred this appeal against the judgement of the learned single Judge in First Appeal No. 236 of 1978 in a suit for partition.
(2.)The mother of defendants 11 and 12, Sashi Bewa, had filed the suit for partition claiming one-fifth share in item Nos. I to VII of Schedule-B excluding Schedule-C and half share in item No. II of Schedule-D and item No. III of Schedule-E. The plaintiff's case, in brief, is that the common ancestor Hadiram had six sons of whom Pruthunath died unmarried. The other sons are Baidyanath, Sankar, Manilal, Dussasan and Bholanath. Baidyanath died in the year 1975 leaving behind 4 sons through his first wife who are defendants 1 to 4 and a daughter who is defendant No. 7 and his second wife Purna is defendant No. 6 and through his second wife, he had a son who is defendant No. 5. Sankar died in the year 1954 leaving his widow Shasi, the plaintiff and they had two daughters who are defendants 11 and 12. The other sons of Hadiram are defendants 8, 9 and 10. The further case of the plaintiff is that sons of Hadiram lived jointly and had extensive ancestral properties and out of the surplus of the said joint family property, several other properties were acquired which are described in Schedule-B of the plaint. Even after the death of Hadiram, item Nos. I, II, III and IV of Schedule-B were jointly recorded in the names of his sons. Baidyanath who was acting as Karta of the joint family purchased item No. V of Schedule-B in his own name though it was purchased out of the joint family funds and, therefore, acquired joint family character. Item Nos. VI and VII of Schedule-B were the exchanged properties of the Joint Family in lieu of joint family lands described in Schedule-C and these two items of properties though stand recorded in the name of Baidyanath but are the joint family properties. It is the further case that Sankar out of his own income had acquired item No. I of Schedule-D which he possessed as his self acquisition and Sankar with Bholanath (defendant No. 9) had together acquired item No. II of Schedule-D which they owned as their exclusive property. On account of increase in the number of family members, Baidyanath and his brothers have been living separately and also are possessing different parcels of land for the sake of convenience even though there has been no partition. Plaintiff was also similarly possessing some lands in Schedule-B, but defendant No. 4 has been creating trouble over the plaintiff's possession and, therefore, the plaintiff filed the suit for partition claiming the shares as already indicated.
(3.)Defendant No. 4 contested the suit by filing a written statement and alleging therein that he was taken in adoption by Sankar and the plaintiff and, therefore, he has a share in Sankar's interest. It was his further case that after the partition between the brothers of Baidyanath, Sahkar and Bholanath had jointly acquired some properties which they also partitioned among themselves. The initial partition in the family took place 40 years back and even on death of Pruthunath his share also was again partitioned amongst the five brothers. The allegation that the plaintiff was possessing some land for convenience was denied. It was also stated that the share claimed by the plaintiff is wrong and the plaintiff would be entitled to half share in the interest of Sankar and the other half would go to defendant No. 4. It was also urged that on death of Hadiram all his sons having separated both in mess and property forty years back and having possessed their respective shares of property, a fresh suit for partition will not lie. So far as the adoption of defendant No. 4 is concerned, it was pleaded that Sankar having no son adopted defendant No. 4 when he was only 21 days' old and this adoption ceremony took place in the presence of local gentlemen and relations and since then defendant No. 4 has been residing with Sankar and after his death has inherited his property and further in the partition amongst the sons of Baidyanath, no share has been given to defendant No. 4 in view of his adoption by Sankar.