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Bhikari Charan Naik Vs. Bhaba Bewa and ors. - Court Judgment

LegalCrystal Citation
SubjectFamily;Property
CourtOrissa High Court
Decided On
Case NumberSecond Appeal No. 304 of 1967
Judge
Reported inAIR1972Ori32
ActsHindu Law
AppellantBhikari Charan Naik
RespondentBhaba Bewa and ors.
Appellant AdvocateR.C. Patnaik, Adv.
Respondent AdvocateP. Kar, Adv. for Respondent No. 1
DispositionAppeal partly allowed
Cases ReferredBalabux v. Ruk
Excerpt:
.....in metes and bounds, and therefore, plaintiff prima facie is entitled to claim recovery of his share of the value of paddy appropriated as well as half of the suit house on plot no......and defendant no. 1 iointlv constructed a house on plot no. 1383. as there was no partition of the suit properties in metes and bounds, the present suit has been instituted.3. defendant no. 1 alone resisted the suit. according to him. there was no partition between the five sons of bhaga-ban in metes and bounds and the suit for partition without bringing all the ioint properties into the hotchpot and implead-ing all the five branches is not maintainable in law. he also denied to have appropriated the paddy for which a claim of damages has been made.4. the trial court, on a considera-tion of the evidence, recorded the follow-ing findings: (1) there was complete separation and partition of the properties in metes and bounds between the five sons of bhagaban; (2) defendant no. 1 who was a.....
Judgment:

A. Misra, J.

1. Defendant No. 1 is the appellant against a reversing judgment.

2. Plaintiff-respondent No. 1 filed the suit for partition of the suit lands described in the plaint Schedule and allotment of 13/48th share to him. besides partition of the house standing on plot No. 1383 and allotment of half a share therein to him and Rs. 150/- as price of the joint paddy appropriated by defendant No. 1. His case, in brief, is that the common ancestor Bhagban had five sons Sadhu. Radhu, Natha. Josabanta and Markanda, These five branches completely separated from each other and possessed their properties separately after division in metes and bounds. In the said partition, Sadhu got Re. -/4/-. Radhu and Natha each sot Re. -/3/3 pies share and Josabanta and Markanda each got a Re. -/2/9 pies share. In the present litigation, the three branches Sadhu, Natha and Markanda are not concerned. Khetri (defendant No. 3) is the widow of Josabanta. His son Adikanda died. Defendant No. 1, the adopted son of Adikanda who was then a minor lived with his natural father Madhu iointlv possessing the share of their branch with the share of Radhu's branch. Defendant No. 2 is the son of defendant No. 1. Madhu left two sons Lakshmi and the plaintiff. Defendant No. 4 is the son of Lakshmi. According to the plaintiff, defendant No. 4 separated about 11 vears back and possessed the eastern portion of their share in the ancestral house over plot Nos. 1377 and 1383, while plaintiff and defendant No. 1 continued in ioint possession of the rest of the properties. About 10 vears ago. plaintiff and defendant No. 1 separated and divided the Amara into two halves by putting up a wattled partition wall. Plaintiff and defendant No. 1 Iointlv constructed a house on plot No. 1383. As there was no partition of the suit properties in metes and bounds, the present suit has been instituted.

3. Defendant No. 1 alone resisted the suit. According to him. there was no partition between the five sons of Bhaga-ban in metes and bounds and the suit for partition without bringing all the ioint properties into the hotchpot and implead-ing all the five branches is not maintainable in law. He also denied to have appropriated the paddy for which a claim of damages has been made.

4. The trial court, on a considera-tion of the evidence, recorded the follow-ing findings: (1) There was complete separation and partition of the properties in metes and bounds between the five sons of Bhagaban; (2) defendant No. 1 who was a minor at the time of death of his adoptive father Adikanda was brought up by his natural father Madhu. and thereafter, properties of both the branches were iointly possessed; (3) the house on plot No. 1383 was not iointly constructed by the plaintiff and defendant No. 1 and (4) the plaintiff not having brought all the common properties into the hotchpot in spite of the objection raised by the defendant, the suit is bad for partial partition, and as such, not maintainable. The lower appellate court disagreeing with the trial court held that the suit house on plot No. 1383 was Iointlv constructed by the plaintiff and defendant No. 1 and that the suit is not bad for partial partition, because the properties of the two branches were held by Madhu and defendant No. 1 as co-owners. It affirmed the other findings of the trial court. Accordingly, it allowed the appeal and decreed the suit preliminarily declaring that plaintiff and defendant No. 4 are each entitled to 13/48th share in the suit properties, except the suit house on plot No. 1383 in which plaintiff is entitled to half a share and defendant Nos. 1 to 3 together are entitled to the other half. The plaintiff's claim to recover 14 maunds of paddy or its value assessed at Rs. 150/-from defendant No. 1 was also decreed.

5. The only point urged by learned Counsel for appellant is that the lower appellate court has committed a gross error in passing a decree for partition in view of its finding that there was a previous partition of the properties in metes and bounds between the five sons of Bhagaban. The plaintiff's specific case is that there was a previous partition between the five sons of Bhagaban in which all the joint properties were divided in metes and bounds. Though defendant No. 1 pleaded that there was no division in metes and bounds, the concurrent finding is that there was such a division. Once there was a division in metes and bounds each branch will be deemed to have acquired exclusive title to specific items of properties. In other words, Radhu's branch must have got exclusive title to the properties which were allotted to it in- the partition. So also. Josabanta's branch eot exclusive title to the properties allotted to his branch. Such a partition having taken place, even if subsequently members of these two branches due to some reason or other lived together iointlv possessing the properties which had fallen to each share, they cannot become co-owners in respect of the properties of both the branches as each branch will continue to possess its title to the properties that had fallen to its share.

The lower appellate court has not considered this aspect and learned Counsel for respondent No. 1 concedes that in view of the finding that there was a previous partition in metes and bounds, a fresh suit for partition between these two branches cannot lie. At the same time, it is argued by Mr. Kar. learned Counsel appearing for plaintiff-respondent No. 1 that when after Adikanda's death defendant No. 1 lived iointlv with his natural father Madhu and the properties which had fallen to the share of both the branches were possessed jointly. it will be deemed to be a re-union between the two branches and on that ground, a suit for partition will be maintainable. Firstly, a case of re-union between Bhikari (defendant No. 1) and Madhu has not been pleaded in the plaint. Secondly, as has been observed in AIR 1962 SC 287 (Bhagwan Dayal v. Reoti Devi):

'To constitute a re-union there must be an intention of the parties to re-unite in estate and interest. It is implicit in the concept of a re-union that there shall be an agreement between the parties to re-unite in estate with an intention to revert to their former status of members of a joint Hindu family.'

In this case, the contention is that defendant No. 1 who was a minor re-united with Madhu. As indicated in the decision of the Privy Council in Balabux v. Ruk-hmabai. (1903) 30 Ind App 130 (PC), a reunion in estate properly so-called can only take place between the persons who were parties to the original partition. Thus the plea of re-union cannot be accepted and the present suit for partition in view of the concurrent finding that there was previous partition in metes and bounds is not maintainable.

6. In this case, however, though the suit for partition in respect of all the properties is not maintainable, different considerations will arise in respect of the claims made by the plaintiff to recover Rs. 150/- as the value of the joint paddy appropriated by defendant No. 1 and half a share in the suit house on plot No. 1383 which is said to have been iointlv constructed by the plaintiff and defendant No. 1. The findings of fact are that defendant No. 1 appropriated the ioint paddy belonging to him and the plaintiff, the value of which has been assessed at Rupees 150/- and the suit house, on plot No. 1383 was iointlv constructed by the plaintiff and defendant No. 1 with . their joint funds. These findings of fact are not assailable. The construction of the house took place subsequent to the previous partition in metes and bounds, and therefore, plaintiff prima facie is entitled to claim recovery of his share of the value of paddy appropriated as well as half of the suit house on plot No. 1383 which was jointly constructed by him and defendant No. 1. Mr. Patnaik, learned Counsel for appellant contends that even if the house was jointly constructed, so far as the land on which it was constructed being the ioint property of the sons of Madhu and defendant No. 1. plaintiff will not be entitled to get half share in it. Defendant No. 4 does not claim any share in this house. Therefore, this contention, in my opinion. is not tenable and the olaintiff is entitled to claim his half share in that house, get it partitioned and his half allotted to him.

7. In the result, the appeal is allowed in part and the iudement and decree of the lower appellate court are modified as follows: The suit be decreed preliminarily in part declaring that plaintiff is entitled'to partition and allotment of half share of the suit house constructed on plot No. 1383 by appointment of a commissioner for the purpose on his application. The plaintiff is also entitled to recover Rs. 150/- towards the value of the paddy from defendant No. 1. In the circumstances of the case, each partv will bear his own costs in this appeal.


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