G.K. Misra, C.J.
1. This appeal arises out of a suit for partition. Baliarsingh (defendant No. 1) has three sons, namely, Panchanan (plaintiff), Mahadeb (defendant No. 2) and Biranchinarayan (defendant No. 3). Plaintiff claimed one-fourth share of the immoveable properties and also Jyesthansa of one-tenth of the total property. Defendant No. 1 stated in the written statement that the family had certain loans one-fourth of which was payable by the plaintiff. He also gave a list of the moveables that were in possession of the plaintiff. After deducting one-fourth of the value thereof, he claimed a three-fourth share in the moveables for himself and defendants 2 and 3.
2. The learned Subordinate Judge decreed the plaintiff's suit in part who was given a relief for partition of one-fourth interest in the total property His claim for Jyesthansa was rejected. Plaintiff was directed to pay one-fourth of some of the loans accepted by the learned Subordinate Judge and three-fourth of the value of some of the moveables held to be in his possession. Plaintiff is the appellant.
3. Mr. Rath for the appellant advances two contentions:
1. The claim for Jyesthansa should not have been dismissed;
2. No decree should have been passed against the plaintiff for clearing up one-fourth interest in some of the moveables decreed.
4. At the tune of hearing, Mr. Patnaik appearing for the respondents fairly conceded that the plaintiff has been able to establish that there is a custom prevailing in the family of the parties that in a partition amongst brothers the eldest brother is entitled to a Jyesthansa of one-tenth of the total property. In view of this concession, it was not necessary for us to go into the documentary or oral evidence adduced in this case in support of such a custom.
5. Mr. Patnaik however, contends that in a partition between the father and the sons there is no such custom of giving Jyesthansa to the eldest son. Law is now well settled that if the custom is established, then Jyesthansa Can be given to the eldest brother in a partition amongst his brothers. But no custom has been pleaded and established that in a partition amongst the father and the sons Jyesthansa would be given to the eldest son. Jyesthansa is given mainly on the ground that the eldest brother offers Pinda to the ancestors including the deceased father. When the father is alive, there is no sense in giving Jyesthansa to the eldest son and such a custom cannot be recognised in law. No authority has been cited to us one way or the other and the case must therefore be decided purely on elementary analysis. The position of law that there is such a custom in a partition amongst brothers is accepted in Siromani v. Hemkumar. (AIR 196ft SC 1299).
In view of our conclusion that the plaintiff has failed to establish that there is a custom of giving Jyesthansa in a partition amongst the father and the sons, his claim on this account must be rejected.
6. The second contention of Mr. Rath is that the loans in respect of which the plaintiff has been saddled with a liability to the tune of one-fourth share have not been proved appears to be well-founded. The following loans have been decreed by the learned Subordinate Judge:--
(1)Rs. 600/-incurred under a hand-note Ext. A dated 21st. April. 1964 from one Braja Patel (D. W. 2).(2)Rs. 500/-incurred under a hand-note Ext. C dated 17-4-1962 from Kulamani Patel (D. W. 4).(3)Rs. 450/-incurred under a hand-note Ext. D dated 10-4-1964 from Braja Nanda (D. W. 3).(4)Rs. 50/-Incurred from one Bhagabat Patel not examined.(5)Rs. 410/-paid to the Grain Gola under Receipt Ext. D dated 8-4-1963.(6)Rs. 1246/- decreed against deft. No, 1 in a Title suit.(7)Rs. 240/-payable as costs in T. S. 23/59.
Out of these items, there is no evidence in support of the claim of Rs. 50/- from Bhagabat Patel and that defendant No. 1 has a liability to pay Rs. 1246/- towards decretal dues and Rs. 240/- towards cost of T. S. 23/59.
7. Due to lack of evidence, these claims must be rejected. So far as the other four items are concerned, even if they are true, there is no evidence that they were incurred for family necessities. Plaintiff is not therefore bound to share the liability on account of these loans. That apart, the evidence regarding the genuineness of these claims is very shaky. Each of D. Ws. 2 to 4 who are the creditors under Exts. A. B and C, are themselves debtors. These documents themselves refer to earlier hand-notes which were renewed. Though earlier hand-notes were with defendant No. 1, they have not been produced. No other independent corroborating evidence had been presented in support of these claims. Why any amount was repaid to the Grain Gola under Ext. D is also not clear. In view of the unsatisfactory state of evidence and the fact that some of the documents have been brought into existence subsequent to the filing of the suit, we are not inclined to accept these claims as having been proved. We accordingly reject the entire claim of defendant No. 1 under this head that the family had incurred loans which the plaintiff was under any obligation to pay.
8. The next claim on behalf of defendant No. 1 was that there were many moveables in possession of the plaintiff and defendants 1 to 3 are entitled to three-fourth of the value thereof. Some of the claims had been rejected by the learned Subordinate Judge. Of the items decreed, there is no evidence in respect of all the items except five. The items in respect of which there is some evidence are:--
(1)Two Garias...Worth Rs. 40/-(2)Three Kansa Thalis...Worth Rs. 30/-(3)Four Tasangis...Worth Rs. 20/-(4)One Cycle...Worth Rs. 150/-(5)50 bags of cement...Worth Rs. 500/-
The evidence with regard to the first four Items is only of D. W. 1 (deft. No. 1). Plaintiff denies those items being in his possession. There is thus oath against oath. The onus of proof was on defendant No. 1. There being no satisfactory evidence that in fact such items were with the plaintiff the claim in regard to these four items is rejected. The only other item is fifty bags of cement. D. Ws. 1 and 4 say that plaintiff had fifty bags of cement and he sold the same to P. W. 2. As against this evidence. P. Ws. 1 and 2 say that no cement was sold to P. W. 2. After having gone through the evidence, we are inspired by the testimony of D. Ws. 1 and 4 as against the evidence of P. Ws. 1 and 2. The claim on this head is therefore rejected.
9. To sum up (l) plaintiff's claim of Jyesthansa is dismissed and (2) Defendant's claim regarding loans in Schedule B and moveables in Schedule A are rejected.
10. In the result, the appeal is allowed in part as indicated above. In the circumstances, parties should bear their own costs throughout.
11. I agree.