J.K. Mohanty, J.
1. Defendants 1 to 4 in a suit for partition have preferred this appeal. The case of the plaintiff is as follows ;
Plaintiff and defendants 1 and 2 are the sons, defendant No. 3 is the daughter and defendant No. 4 is the widow of late Purnananda Misra. The properties described in Schedules A and B (Moveable and immoveable properties respectively) belong to Purnananda Misra. Defendant No. 3 is married and living in her husband's house. Plaintiff and defendants 1, 2 and 4 are living in joint mess and property and there has been no separation between them either before or after the death of Purnananda. Plaintiff is a Government servant and is living outside the village with his family and defendant No. 1 is acting as manager of the joint family properties and defendants 1, 2 and 4 are enjoying the moveable and imrnoveable properties of the joint family. As the defendants refused to give due share to the plaintiff out of the income of the joint 'family properties the plaintiff filed the suit for partition of the joint family properties in order to get his share. The plaintiff claims 3/10th share out of the properties.
2. Defendants 1, 2 and 4 have filed a joint written statement and have contested the suit and defendant No. 3 has been set ex parte. The case of defendants 1, 2 and 4 is as follows: Raghunath Misra, the grandfather of plaintiff and of defendants 1 to 3 was the common ancestor. He had three sons, namely, Chandramani, Purnananda and Padmanav. There was no partition, at any time between the sons of Raghunath in respect of the properties left by Raghunath, though there was severance of status and each of the branches is possessing some lands separately according to convenience. The immovable properties described in Schedule A are mostly ancestral properties of Purnananda. Hence the suit is bad for non-joinder of parties as the branches of Chandramani and Padmanav have not been impleaded as parties in the suit. The suit is also badas all the properties have not been brought to hotchpot and as the properties described in Schedule A do not belong to Purnananda exclusively, those properties cannot be partitioned. The moveable properties described in Schedule B (which are the properties of the shop) belong to defendants 1 and 2 in which the plaintiff has no interest at all. So these properties should be left out of partition. Some of the properties mentioned in Schedule B belong to third parties, who had kept their properties in the shop of defendants just before the filing of the suit in order to save those from the 'flood havoc. So the plaintiff cannot claim any interest in those properties. The owners of those properties have also filed separate petitions for taking back their properties. Out of the properties described in Schedule A some are acquired in the name of defendant No. 4 and as such the plaintiff has no interest in these properties and he cannot claim partition of those properties.
Defendants' further plea is that the plaintiff was always living in the house of his 'father-in-law and therefore in January, 1961 the plaintiff took Rs. 3,000/-from Purnananda 'towards relinquishing his share of interest in the joint family properties and Rs. 500/- towards his share in the shop. The plaintiff relinquished all his interest in the joint family properties and in the shop and left his father's place with some moveable properties. Thereafter the defendants are living jointly and as the old house was damaged, they have constructed a new building out of their own 'funds. The plaintiff has got no interest in the said building. As the plaintiff has already got separated and taken money towards his interest in the properties, he has got no cause of action to bring this suit.
3. In the trial court as many as 15 issues were framed. Parties adduced both oral and documentary evidence. On behalf of the plaintiffs, four witnesses were examined and defendants examined 16 witnesses. The trial court after considering the evidence held, that there had already been partition between Purnananda and his other co-sharers and there was no need to make the co-sharers of Purnananda parties in the suit; and that there was no partition by metes and bounds between the parties as claimed by the defendants and hence the plain-tiff is entitled to claim partition. Regarding the shop, it was held that it is the joint family property and the plaintiff has got his interest in the articles kept in the shop and that the outsiders who claim the moveable properties have no claim and those properties are also joint family properties. On these findings the suit of the plaintiff was preliminarily decreed in part giving the plaintiff 6/25 share out of the properties which Purnananda had got as his ancestral properties and l/5th share out of the other properties in Schedule A (except the properties, purchased by defendant No. 4 under Ext. L/l). Now the defendants have challenged the above judgment and decree of the Subordinate Judge. The plaintiff has also filed a cross-objection with respect to the properties purchased under Ext. L/l from which he has not been given any share.
4. In this Court Mr. Mohapatra learned counsel appearing for the appellants, has assailed the judgment of the trial court on the 'following grounds:
(1) That the suit is bad for non-joinder of parties as all the co-sharers of Purnananda have not been added as parties and the entire joint ancestral properties of Purnananda and his co-sharers have not been brought to hotchpot;
(2) That the trial court should have held that the plaintiff has no interest in the properties as he has already separated in the year 1961 and has taken his share out of the properties described in schedules A and B in form of cash and has been living in his father-in-law's house and thus he has no further claim in the properties;
(3) That the shop and goods foundtherein are exclusive properties of Purnananda and defendants 1 and 2 andthe plaintiff has no interest therein;
(4) That the properties of outsiders, namely, D. Ws. 1, 3, 4, 6, 7. 8, 10 and 12, who had kept their articles with the defendants due to flood have been wrongly included in the list of properties for partition and the trial court has not given due weight to the evidence of these witnesses: and
(5) That the properties mentioned in Exts. M, M/l and M/2 which exclusively belong to defendant No. 4 have been wrongly treated as joint family proper-ties and similarly the properties, described in Exts. C, L, L/2, L/4 and L/9 which are self-acquired properties of defendants 1 and 2 have been wrongly included in the list of joint family properties.
5. Mr. Mohapatra argued that there is no reliable evidence that the entire ancestral properties of Purnananda and his co-sharers have been partitioned by metes and bounds between them, and in the absence of the co-sharers who have not been impleaded as parties in the suit, the suit is not maintainable. Admittedly in this case, a suit for partition was filed in 1930 between Purnananda and his co-sharers. The certified copy of the preliminary decree has been marked as Ext. 4. Against the aforesaid decree in Ext. 4 the parties had gone in appeal and the suit was decreed on compromise. The certified copy of the order-sheet regarding compromise has been marked as Ext. 3, and the certified copy of the compromise decree has been marked as Ext. 2. In the compromise decree Purnananda was a party. Mr. Mohapatra further argued that though there was a preliminary decree as aforesaid, there was no allotment of shares between the parties thereafter. The allotment sheet of shares has not been produced in this case which would have been the best evidence in support of the fact that the properties of Purnananda and his co-sharers have been divided by metes and bounds. In this case P. W. 2 Bhaskar who is the son of Chandramani, one of the co-sharers of Purnananda, has been examined. He is aged about 69 years and was a party to the aforesaid decree. According to him, the parties (Purnananda and his other co-sharers) partitioned their properties between themselves by metes and bounds and possesssed the properties according to their shares as determined in the decree. A final decree proceeding was not necessary as the parties amicably partitioned the properties between themselves by metes and bounds and were in separate possession of their shares. As the properties have been partitioned and each party has been possessing his shares of the properties separately, the parties have been transferring their shares of the properties freely between themselves and others. D. W. 15 in his cross-examination has admitted that a partition suit was brought between his father and his father's co-sharers in respect of theirjoint family properties. He also admitted that his father (Purnananda) was possessins his properties separately by way of amicable arrangement with his co-sharers. From various exhibits, namely, Exts. 1, L, L/l and L/2 it is seen that the properties have been partitioned between Purnananda and his co-sharers and the co-sharers are dealing with the properties as their separate properties. Ext. 1 is a sale deed executed by Purnananda in favour of one Apani Dei, the wife of Baishnaba Misra, who is the nephew of Purnananda and was a party in the partition suit of 1930. In Ext. 1 the properties sold have been specified even by boundaries. Ext. L/l is another sale deed executed by Baishnaba Misra in favour of Mukta Dei, the mother of the plaintiff, (defendant No. 4). In this exhibit the whole plot has been sold by Baishnaba. Ext. L is another sale deed executed by Baishnaba in favour of defendant No. 1. The property sold has been described by giving the boundaries of the plot. Ext. L/2 is another sale deed executed by Baishnaba in favour of Purnananda, the father of plaintiff and defendants 1 to 3 and under this sale deed the whole plot has been sold. From the above it is absolutely clear that after the preliminary decree was passed in the partition suit between Purnananda and his co-sharers, all the co-sharers divided the properties amicably between themselves by metes and bounds and possessed their respective shares. Merely because the allotment sheet has not been filed, it cannot be said that the parties remained satisfied after the preliminary decree was passed and never partitioned the properties between themselves by metes and bounds. Exts. 1, L, L/l and L/2 coupled with the evidence of P. W. 2 also go to show that the ancestral properties were partitioned between Purnananda and his co-sharers by metes and bounds. There is hardly any scope to hold that the properties were not partitioned between Purnananda and his co-sharers in view of the overwhelming evidence discussed above. It is not necessary to make the co-sharers of Purnananda parties in the suit. So the contention of the appellants that the suit is bad for non-joinder of necessary parties has no substance.
6. Mr. Mohapatra next argued that the plaintiff had got himself separated from Purnananda and the defendants in the year 1961 and had relinquished all hisinterest in respect of his share in theancestral properties and had taken Rupees 3,000/- towards the value of the properties of his share. The presumptionof law is that all Hindu families arejoint unless the contrary is proved. Thispresumption is in favour of the plaintiff. The onus is on the defendants toprove that there has been severance ofthe joint status. The defendants, inorder to prove their case have relied onthe oral evidence of defendant No. 1(who has been examined as D. W. 15).D. Ws. 2, 5, 9 and 12. D. W. 2 is a Cart-man, who says that about 10 to 12 yearsback once the plaintiff asked him tocarry some of his belongings to hisfather-in-law's house by cart which hehad received by way of separation fromthe defendants and his 'father. Admittedly he had no personal knowledge aboutthe partition and was not in a positionto say as to in whose presence the partition took place. On the other hand, headmits that he regularly carries articlesfor the shop of defendant No. 1. D. W. 5is the ex-chowkidar of the village. According to him, the plaintiff was goingwith moveables after separation to hisfather-in-law's house when he met himon the way and on his asking the plaintiff told him that those articles he hadgot by partition. D. W. 5 also deposesthat the plaintiff told him that he hadreceived money towards his share in theimmoveable properties and the shop. Thiswitness had also no knowledge aboutthe partition or as to when the partitiontook place. D. Ws. 9 and 12 depose aboutthe partition between the plaintiff andthe defendants and Purnananda. D. W. 9admits that he did not know the extentof land to be partitioned and the valuethereof. He also admits that the valuation of moveables had not been determined and the articles of the shop werealso not valued. D.W. 12 is the father-in-law of defendant No. 2. He admitsthat no list of moveable or immoveableproperties had been prepared. The assets and liabilities of the family hadnot been determined before theBhadralogs partitioned the properties.He was unable to say as to whether theself-acquired properties of Purnanandahad been taken into consideration whilethe immoveable properties were valued.This witness also being a relation ofdefendant No. 2 his evidence cannot beaccepted on its face value. Some lettersExts. K to K/6 of the plaintiff to hiswife and brother-in-law and some money order coupons Exts. J to J/4 (some of the year 1956) were produced by the defendants to prove that the plaintiff was sending money to his brother-in-law for education. From these documents, it was contended that the plaintiff was more attached to the family o'f his father-in-law and was giving all his income to his brother-in-law and father-in-law, but not to his father. Some transfer certificates and the admission register of the school of the village of the father-in-law of plaintiff were produced to prove that the children of the plaintiff were born and reading there. However, the above documentary evidence does not prove that the plaintiff had been separated from the defendants and his father merely because he was more attached to his father-in-law's family.
Admittedly there is no documentary evidence in support of the partition. The oral evidence as discussed above is not convincing and trustworthy. So from the above evidence it is difficult to hold that the plaintiff had separated from his co-sharers and taken his share and left the house. There is no reason to differ from the finding arrived at by the trial court.
7. The next argument advanced by Mr. Mohapatra is that the plaintiff has no interest in the shop and the move-ables therein. According to the defendants, the shop was started by defendants 1 and 2. It is 'further claimed that the plaintiff has taken Rs. 500/- towards his share of the shop and, he cannot claim any interest in the articles of the shop. As already held above, the plaintiff has not received any money towards his share in respect of the moveable and immoveable properties. When the defendants claim that the plaintiff has taken Rs. 500/- towards his share of the shop, they admit that the plaintiff had some interest in the shop. While the plaintiff claims that his father had started the shop in the year 1947, the defendants claim that defendant No. 1 started the shop with his own money in the year 1957. It is admitted that Purnananda had several sources of income like reading horoscopes, bringing pilgrims, planning houses etc. So it is more probable that the shop was started with the funds of the father Purnananda. Defendant No. 1 (D. W. 15) has admitted that 'our shop started in the year 1957 with the capital of Rs. 500/.'. According to him, theplaintiff separated himself in January, 1961. In the written statement it has been admitted that before the separation between the plaintiff and the defendants took place, the plaintiff being the eldest son of the family, the sales tax licence was obtained in the name of the plaintiff and defendants 1 and 2. D. W. 15 has also admitted:--
'We the three brothers were joint when the shop was started though Loka-nath was staying in his father-in-law's house.'
So from the above evidence and thefacts it is clear that the shop started in the year 1957, if not earlier. The shop was started with a small amount and within a short period the assets increased. As the defendants say that the partition between the plaintiff and the defendants took place in the year 1961, it is difficult to believe that the plaintiff had no interest in the shop as it was started in the year 1957, when the parties were joint. It is argued by Mr. Mohapatra that the onus is on the plaintiff to show that there was sufficient joint family nucleus to start the shop. As already discussed above, the admission of the defendants and the other evidence available unmistakably point to the conclusion that the shop is a joint family business and the plaintiff has a share in it. So we do not see any reason to differ from the finding of the trial court that the plaintiff has interest in the shop and the articles found therein.
8. The next contention of the defendants is that all the properties found during inventory in the shop as mentioned in Schedule B, do not belong to the shop. According to them, some of the properties belong to some other persons, namely, D. Ws. 1, 3, 4, 6, 7, 8, 10 and 12 who have claimed those properties. The case of the defendants is that during the flood of 1969 the aforesaid D. Ws. had kept their articles in the shop for safe custody. These D. Ws. have also filed petitions and have claimed these properties to be theirs. D. W. 1 has stated that he has kept 120 tolas of silver ornaments in the house of the defendants. He admits that he earns his livelihood as a labourer. He has also stated that nobody has seen when he kept the above ornaments in the house. He has not taken any receipt while keeping the articles, but has produced a receipt Ext. A to show that he has taken back theornaments. There is no other evidence in support of his claim. D. W. 3 has stated that he had kept 23 bags of paddy in the house of defendant No. 1. He has assigned no reason as to why hehad kept the properties in the house of defendant No. 1 when there were other buildings in the village where he could have safely kept his properties. He has also produced a receipt Ext. E in token of receiving back the properties, but no receipt has been produced to show that he deposited the properties in the house of defendant No. 1. There is no other evidence to corroborate this statement. D. W. 4 is a dealer in controlled commodities. According to him, he had kept 2 bags of Atta in the house of defendant No. 1. He has further stated that as the bullock carts carrying the goods do not come up to his shop, he was in the habit of unloading his articles in the house of defendant No. 1 and in the month of September, 1969 he had kept 2 bags of Atta in the house of defendant No. 1- which was found during inventory. No witness was examined nor any evidence was produced to show that in fact he had purchased the Atta and had kept the same in the house of defendant No. 1. D. W. 7 has stated that he had kept his utensils, namely, one thali, one kansa, one handa and one Kunda in the house of defendant No. 1 at the time of flood. He has taken back the articles by giving a receipt Ext. E/2. There is no other evidence to support his statement. D. W. 8 deposes that he had kept his utensils, four Olias of paddy seeds and 22 bags of paddy in the house of defendant No. 1 in order to escape from flood havoc. According to him he has removed the articles by giving a receipt Ext. E/l. There is no other evidence to support his contention. D. W. 10 claims that he had kept utensils and 9 bags of paddy and four bags of rice in the house of defendant No. 1 during the flood of 1969. According to him, he had taken his rice bags, but had not taken back the paddy bags which were found during inventory. He says that he has given a receipt to defendant No. 1 in token of the receipt of the rice bags. According to him, he has got only 1 1/2 acres of land. The evidence of this witness is not convincing and in the absence of corrorborative evidence it is difficult to accept his claim. D. W. 12 is the father-in-law of defendant No. 2. He has stated that he had sent two trunks containing utensils andclothes to the house of defendant No. 1 for safe custody during the time of flood. In his cross-examination he has admitted that his house is at a high land and was not affected by the flood. This witness being the father-in-law of defendant No. 2 and in view of the fact that his house was not affected by flood, it is difficult to believe that he had kept his articles in the house of the defendants.
In the written statement which was filed much after the inventory (the inventory was made on 7-9-69 and the Written statement was filed on 20-9-79) it has not been mentioned that D. Ws. 1, 3, 4, 6, 7, 8, 10 and 12 had kept their goods in the house of the defendants. Even in the supplementary written statement filed on 5-12-70 this fact has not been mentioned. No receipts have been filed by the claimants in token of their depositing the articles with the defendants and there is no other corroborative evidence. Obviously it appears from the evidence as discussed and the circumstances of the case, the present claim by the above witnesses is an afterthought. So it is difficult to accept that the aforesaid witnesses had kept the articles in the house of the defendants which were found during inventory. On a consideration of the evidence and the facts and circumstances of the case, we do not see anv reason to take a different view from the trial court that the properties claimed by the aforesaid witnesses do not belong to them, but belong to the 'joint family.
9. The next contention o'f Mr. Moha-patra is that the properties mentioned in Exts. C, L, L/2 L/4, L/9. M, M/l & M/2 should not have been treated as joint family properties. The properties described in Exts. M. M/l and M/2 were joint family properties and vested in the State. Thereafter the same have been settled in the name of the defendant No. 4. According to the defendants, these properties should not have been treated as joint family properties. Admittedly these properties were joint family properties before vesting, but merly because the same were settled in the name of defendant No. 4, it cannot be said that it will not enure to the benefits of the other members of the family. D. W. 15 has also admitted that 'the applications for settlement of those lands under the provisions of O. E. A. Act were filed byme, my younger brother Gopi and my mother, but the lands have been settled with my mother alone'. Similarly the claim of the defendants with respect to other properties described in other exhibits, namely, Exts. C. L, L/2, L/4, L/9 has been thoroughly considered by the Subordinate Judge and he has come to the conclusion that these were acquired from the joint family nucleus and belong to the Joint family. We see no reason to differ from the finding arrived at by the trial court.
10. The plaintiff in his cross-objection has claimed the properties described in Ext. L/l to be the joint family properties. But these properties have been purchased in the name of defendant No. 4. So the trial court has rightly rejected the claim of the plaintiff with respect to the properties mentioned in Ext. L/l.
11. In the result, therefore, the appeal and the cross objection fail and are dismissed, but in the circumstances parties to bear their own costs.
12. I agree.