S.K. Ray, J.
1. This appeal is by the defendant and arises out of a suit for partition of the suit land by metes and bounds and for putting the plaintiff in separate pos-session of her share.
2. The plaintiffs case is that her husband, Baleswar Mohapatra and the defendant were two brothers being the sons of one Kelu Mohapatra. This family had sufficient joint family nucleus with the aid of which some more immovable properties were acquired in the name of the defendant In 1944 the plaintiff's husband died, and thereafter, in the same year, the aforesaid acquisitions in the name of defendant were made. After the death of plaintiff's husband, the plaintiff and the defendant possessed jointly all the joint family properties till 1-10-62, when the dissensions arose between them. The defendant tried to get himself solely recorded during the settlement operation in respect of the properties purchased in his name by putting the plaintiff completely in the dark about it. Thereafter the plaintiff demanded partition but the defendant ignored it Hence this suit.
3. The defendant adopted a number of defences. Of them, the material ones may be stated. First of all, the relationship of the plaintiffs husband with the defendant was challenged by denying that the plaintiffs husband Baleswar Mohapatra was the son of Kelu Mohapatra who admittedly was the father of the defendant Plaintiffs husband was alleged to be the son of one Arta Mohapatra of village Dandipur. The plaintiffs locus-standi, therefore, to maintain the suit for partition was challenged. Secondly, the lands purchased in the name of the defendant are the latter's separate properties having been acquired out of his separate income, and so these properties will not be liable for partition. Thirdly, khata No. 38 sought to be partitioned does not belong to joint family and hence should be excluded from partition.
4. The trial Court passed a preliminary decree for partition. He found that the plaintiffs husband and the defendant were two brothers being sons of Kelu Mohapatra and the properties purchased in the sole name of the defendant are joint family properties liable to partition. He also held that khata No. 38 is an item of joint family property and directed its partition along with other properties. All technical defences were negatived
5. Two contentions have been raised here by the learned counsel for the appellant The first is that the oral evidence of relationship of plaintiffs husband with Kelu Mohapatra as the latter's son is inadmissible in view of Section 50 of the Evidence Act and if such evidence is ruled out, the finding of the trial Court must go and the suit must accordingly fail. As a part of this contention it is also contended that Ex. 1 is inadmissible in evidence. The second is that khata No. 38 being not an item of joint family property should be excluded from partition, or, at any rate, it may be wholly allotted to the plaintiff's share.
6. I will now take up the first contention. Section 50 of the Evidence Act without its proviso has come in for judicial consideration by the Supreme Court as well as by this Court, in a number of cases. Full exposition of the true meaning and im-port and its scope has been made in those cases. I cannot do better than to quote a passage from a decision in Ulla Dei v. Malli Bewa, (1967) 33 Cut LT 740. The passage runs as follows:
'On analysis, the following considerations emerge-
(i) The fact in issue is existence of the relationship of one person to another.
(it) On this issue, the Court has to form an opinion and determine whether the relationship existed.
(iii) The bare opinion of third persons as to the existence of such relationship is not relevant. The reason is apparent It is difficult to trace out the genesis of such an opinion'. The initial hearsay passes from person to person. The trustworthiness of such reputation and the various links on which it was built cannot easily be tested.
(iv) The opinion of third persons as to the existence of such relationship is, however, relevant if it is the opinion expressed by conduct of a person who had special means of knowledge of the existence of such relationship either as a member of the family or otherwise. If the third person is a member of the family or a relation, he gathers special means of knowing the relationship. Similarly neighbours, co-villagers and friends having frequent intercourse can gather special means of knowledge of such relationship. A casual visitor or invitee cannot be said to have special means of knowledge of that relationship, though he might form an opinion of the relationship expressed by conduct.
(v) The bare opinion of a third person having special means of knowledge is also not relevant unless it is expressed by conduct. Conduct means external behaviour. Opinion means a judgment or conviction. The third person who gives the opinion must have an independent conviction in his own mind as to the existence of the relationship. This conviction can be judged from the conduct which he expressed. His external behaviour would show that he entertained such a conviction. The evidence testified to, would indicate the interaction between the conviction and the conduct.'
7. In the aforesaid legal perspective, I will proceed to analyse the oral evidence adduced on behalf of the plaintiff. Plaintiff has examined 5 witnesses in support of the issue of relationship including herself. P.W. 1 is the elder brother of the plaintiff. He gave the plaintiff in marriage to Bale-swar Mohapatra, because his father was dead by that time. He thus acted as Kanya-karta. His evidence is that plaintiff was given in marriage in the house of Kelu Mohapatra of village Praharajpur. He further deposes that the plaintiff has been residing in the house of her father-in-law, i.e. Kelu's house for the last 21 years since her husband Baleswar died. This indicates that her husband had a right of place in Kelu's house and plaintiff enjoyed that right after her husband's death. Having become related to Kelu he acquired special means of knowledge of Keiu's family affairs. His opinion as to the relationship of the plaintiff's husband to Kelu is expressed by his conduct in giving his younger sister in marriage in that family. He deposes as to the number of sons of Kelu, the total extent of the land of that family and the total extent of the land acquired by defendant subsequent to the death of the plaintiff's husband and other internal affairs of the family of Kelu. He testifies that Kelu had 4 sons namely Raghunath, Baleswar, Lokanath and Mahadev. Raghunath had been given away in adoption to Guna Sarangi of Bira Purusottampur and that Lokanath died unmarried at the age of 16. The plaintiff was living in the house of Kelu Mohapatra of village Praharajpur as his daughter-in-law. These objective facts also corroborate his opinion as to the relationship of the plaintiff's husband to Kelu. There is no intrinsic weakness or demerit in his testimony excepting the fact that he is the brother of plaintiff. If this evidence is accepted it will prove that the plaintiff's husband was the son of Kelu Mohapatra of village Praharajpur. His relationship to the plaintiff is not a sufficient reason to discard his testimony. He is an old man of 66 years and belongs to a completely different village. There is no reason why this old man would set up the plaintiff as a pretender. He has nothing to gain personally in this case. In my opinion, the testimony of P.W. 1 has been rightly accepted by the trial Court. P.W. 2 is the barber of Kelu Mohapatra of village Praharajpur. He acted as a barber in the marriage ceremony between the plaintiff and Baleswar which took place in the house of Kelu Mohapatra. His testimony fulfils all the tests required under Section 60 of the Evidence Act. Corroborating P.W, 1 he also states that one Sadasiva Misra acted as the priest in the marriage ceremony. His testimony is impeached on two grounds. The first is that he is the family barber of Kelu Mohapatra and the second is that he is the enemy of the defendant. P.W. 3 states that AnadaBarik is the family barber of the defendant. I do not think that such evidence runs counter to that of P.W. 2 on the point P.W. 2 has stated that he was the family barber of Kelu Mohapatra, while P.W. 3 states that Ananda Barik was the family barber of the defendant. These two statements are not antagonistic. It may be that the defendant after the death of his brother has dispensed with the services of P.W. 2 as his family barber and has employed another for his own family. P.W. 2's testimony cannot be discarded on this ground. With regard to the alleged enmity with P.W. 2, he has not been questioned about it. There is thus no force in this second ground, which also falls. The trial Court has rightly accepted his evidence. P.W. 3 is admittedly an agnetic relation of the defendant He has stated that he has witnessed the marriage. That apart he also corroborates P.W. 1 and P.W. 2 that the plaintiff was living in the house of Kelu Mohapatra since the marriage as his daughter-in-law. There is nothing to disbelieve his testimony in this regard. There is no alternative case put forward by the defendant as to plaintiff's presence in that house and so the only conclusion is that she was there in her capacity as the wife of Baleswar who was admittedly one of the sons of Kelu Mohapatra. P.W. 3 is obviously on inimical term with the defendant. But his testimony is amply corroborated by P.Ws. 1 and 2 and the aforesaid circumstance of the plaintiff living in the house of Kelu as an inmate.
P.W- 5 is the plaintiff. She has been amply corroborated by P.Ws. 2 and 3. P.W. 4 is the ex-sarpanch of Baragoi Gram Panchayat The village Praharajpur comes within the jurisdiction of this Panchayat He in the capacity of sarpanch, maintains the register showing the names of the adult members of the Panchayat which includes the village Praharajpur. He proves the serials 181 and 183 of that register (Exs. 1 and 1/a), His own village is 2 or 2 1/2 miles away from Praharajpur. His evidence is that Ex. 1 was prepared by him and two other persons. The plaintiff has been described as the wife of Baleswar Mohapatra, He proves all the physical facts that the plaintiff resides with the defendant in his house. That obviously means that she was living in the house of Kelu Mohapatra. The voter's list is an admissible piece of evidence and has been prepared by three persons of whom brother of P.W. 3 Raghu-nath Mohapatra is one. This Raghunath Mohapatra had therefore special means of knowledge being also the agnetic relation of defendant and his father Kelu Mohapatra. As the evidence stands, this panchayat register was prepared in 1959. It is argued that since P.W. 3 was inimical to the defendant, his brother Raghunath Mohapatra would share the same properties and would, thus, assist in making the false entries in the pan-chayat register, to injure the defendant. Assuming that this Raghunath was inclined to harm the defendant why should he pick up the plaintiff as his instrument for such purpose if, as the defendant says the plaintiff had married to a different person in a different village. It looks absurd. Such a theory must be discarded. Therefore the entry in Ex. 1 must be held to have been honestly prepared and its truth and genuineness cannot be doubted.
Thus Ex. 1 coupled with evidence of P.W. 4, constitutes strong evidence to prove that Baleswar Mohapatra to whom plaintiff was married was the son of Kelu Mohapatra. I am of opinion that the learned trial Court was justified in findnig that Bale-swar Mohapatra husband of the plaintiff was the son of Kelu. The plaintiff has, thus, the locus standi to manitain the suit for partition. I need not discuss the evidence of defendant's witnesses because that is not necessary in view of the nature of the point canvassed in this Court. Such defence evidence have been dealt with by the trial Court and such dealing has not been challenged in this Court. For the aforesaid reasons, I am satisfied that there is no substance in the first point.
8. Now I will take up the second point. The defendant has alleged in his written statement that Khata No. 38 is not joint family property. He has not, however, adduced any evidence in support of such averment This case of the defendant must be rejected and khata No. 38 must be held to be partible; joint family property. However, in the interest of justice, I would direct that the trial Court shall first of all partition all the family properties except khata No. 38 between the plaintiff and the defendant in accordance with their legitimate shares and in adjusting equities in such partition khata No. 38 shall not be taken into account at all. After other properties have been divided, the Court shall proceed to divide khata No. 38 into two equal halves allotting a moiety to the plaintiff and the defendant each. With this direction, the appeal is dismissed. In the circumstances, there would be no order as to costs of this Court.
9. I agree.