1. This is an appeal by the defendant No. 1 against the judgment and decree passed by the Subordinate Judge, Bhubaneswar, in a suit for partition. The relationship of the parties will appear from the genealogy given below:
Widow-Chandramani Dibya (Plaintiff)
Purnachandra (D. 1) Brajakishore (D.2)
Dinesh - D. 3 is one of the sons of defendant No 1. Banbehari died on 7-8-54, leaving behind his widow the plaintiff, and his sons, defendants 1 and 2. It is the case of the plaintiff that all the suit properties were the self-acquisition of her husband. She herself had acquired some land from out of her own funds and she is in exclusive possession of the said properties. The sons did not take any interest in her affairs. So she was compelled to file the present suit for partition of both immovable and moveable properties of the family claiming one third share therein.
2. Defendant No. 1 came forward to oppose the claim of the plaintiff mainly on the ground that she is not the legally married wife of his father. His mother Paluni Debi died in 1923, while on a pilgrimage at Kasi. By that time both the defendants were aged 10 and 2 respectively. The plaintiff is not a Brahmin, but a Khandayet by caste and is the daughter of one Kunja Rout. She was a widow and after the death of Paluni, she was kept as a mistress by their father. Banabehari had no ancestral property, but he made some acquisitions, about 18 acres in extent out of his personal income. Similarly defendant No. 1 made acquisitions of about 14 acres from out of his personal income is a deed writer in a Sub-Registrar's office. Defendant No. 2 also made similar purchases in his own name, from out of his personal income and both defendants 1 and 2 made joint acquisition from their separate earning. By a registered deed of partition dated 27-12-54 he and defendant-1 partitioned major portion of the family property, but some properties were kept joint for the sake of convenience. Banabehari purchased some land in the name of the plaintiff and that should be treated as joint family property. According to the decisions of Bhadralokas the said land and a sum of Rs. 3000/- which was kept in deposit with the plaintiff by their father was given to her and she had no claim to the suit property. On account of some ill feeling defendant No. 2 has set up the plaintiff to file the present suit. Defendant No. 3 the son of defendant No. 1 fully supported his father.
3. Defendant No. 2 fully supports the case of the plaintiff. He admits that she is the legally married wife of Banabehari and the mother of defendant Nos. 1 and 2. Their father was a renowned Moharir who out of his income purchased the entire suit property. He had also substantial money-lending business. He admits the execution of the registered deed of partition, but according to him that was a nominal deed made in view of the impending land legislation. In spite of the deed the parties are still continuing as members of a joint family.
4. The learned Subordinate Judge held that (1) the plaintiff was the legally married wife of Banabehari; (2) the suit properties both moveable and immoveable were joint family properties of the family and the plaintiff was entitled to 1/3rd share in the same and she was not bound by the previous partition between defendants 1 and 2. He thus decreed the plaintiff's suit for partition. Against this decision of the learned Subordinate Judge the present appeal has been filed by defendant No. 1.
5. After the filing of the appeal the plaintiff made a gift of her share of the suit property in favour of defendant No. 2 by a deed of gift dated 1-10-62. The appellant has filed a copy of the said deed and has made an application under Order 41, Rule 27 C.P.C. to accept the said document by way of additional evidence. As there was no objection from the side of the respondents, the said document is received by way of additional evidence and marked as Ext. D in this Court. I shall deal with the effect of this document a little later.
6. The main points that arise for consideration in this appeal are: (1) Whether theplaintiff is the legally married wife ofBanabehari so as to be entitled to file a suitfor partition; and (2) Whether the suit properties are the joint family properties of thefamily. In fact there is no evidence worth thename to uphold the contention of defendantNo. 1 that the plaintiff is an imposter and notthe real mother of defendants 1 and 2. Sucha contention is absolutely fantastic and inview of the evidence in the case is unworthy ofcredit. Being aware of the position, Mr. D. Mohanty, learned counsel for the appellant, veryproperly conceded that he would not challengethe position of the plaintiff as the naturalmother of defendants 1 and 2 and the legallymarried wife of Banabehari. That being so,the plaintiff's right to file the present suit forpartition of the joint family properties, cannotbe disputed.
7. It is now to be seen whether all the suit properties are the joint family properties as contended by the plaintiff or as contended by Defdt-1. Properties covered by the sale-deeds, Ext. B series were his D. 1's self acquisitions and were being enjoyed by him as his separate properties. The contentions of the respondents are that though the said properties were purchased in the name of defendant No. 1, the consideration was paid from out of the joint family funds and that defendant No. 1 cannot claim any exclusive title over the same.
8. Ext. B series are the registered sale deeds executed by various persons in favour of Puma Chandra (deft. 1). These documents cover quite a long period from 1933 till the year 1954. All these purchases excepting the one under Ext. B/15 dated 24-9-1954 were made during the life time of the father. It is not, however, disputed by defendant-1 that Banabehari during his lifetime purchased about 18 acres of land. It is the case of defendant No. 1 that he was working as a deed-writer and was making good income and out of the said income he acquired the properties under Ext. B series. He also admits that his father was a reputed Mohorir and was also making a substantial income and had acquired properties to the extent of about 18 acres in his own name. It is admitted that there was no nucleus of any ancestral family property which could be the basis of subsequent acquisitions. So the main question is whether it was defendant No. 1 who paid the considerations for the properties under Ext. B series or it was his father who paid for the same.
9. It was pointed out on behalf of the appellant that in all these documents the consideration is stated to have been paid by the vendee himself. But that is the normal recital in every sale-deed and in the present case even if the father would have paid the consideration there was no necessity to recite the same. The 1st document in order of time is Ext. B/26 dated 26-7-32. By that time defendant-1 was aged about 21. According to defendant-1 he started his profession as a scribe since 1930 and that as an apprentice. Though defendant-1 disowns that he was ever working under his father, it is the evidence of his own witness (D.W. 4) Jagannarg Sundarlal that both he and defendant No. 1 got training as apprentices under Banabehari. It is not understood why defendant No. 1 would get training under another Mohurir when his own father was such a reputed Mohurir and other persons like D.W. 4 also used to get training under him. There is therefore no doubt that defendant-1 was getting training under his father in 1932. Being just an apprentice, he may not have sufficient earnings to maintain himself much less to save any money to acquire any property. No account of his income has been produced to show his income and expenditure. Moreover, in the year 1932 when defendant-1 was only 21 years of age, living under the patronage of his father, there was no necessity for him to make any separate acquisition of property for himself.
Banabehari died in the year 1954 at the age of 73 and according to the evidence he was working as a Mohurir until a few years before his death. He had also some substantial money-lending business, has been admitted by defendant-1. It is the evidence of defendant-2 that his father had money-lending business to the extent of about Rs. 8000/- The total value of all the properties covered under Ext. B series comes to about Rs. 6000/-apparently within the reach of Banabehari. Thus, it may be safely said that he had the means to pay the consideration for the aforesaid sale-deed. Defendant-2 has asserted that consideration for all these deeds was paid from the funds of the father. D.W. 4 who had either attested or scribed the documents (Ext. B series) has categorically stated that he is unable to say the source of the consideration of these documents. No doubt, defendant-1 has stated that he had paid the consideration for the said deeds. Much reliance was placed on the evidence of the plaintiff who stated that defendant-1 was earning good money as a Mohurir and he purchased some property out of his earning, but nothing was brought out from her about the extent of his income or the properties purchased by him. Defendant No. 1 is a person who has not the slightest compunction to disown his own mother and bring all sorts of reckless allegations against her. He was not willing to admit that he was working under his father though that fact was admitted by his own witness, D.W. 4. It is difficult to accept the evidence of such a person at its face value.
As between the evidence of defendant-1 and defendant-2, I would give preference to the evidence of the latter and hold that it was from out of the father's money that the consideration for all the purchases under Ext. B series was paid. It is the case of defendant No. 1 and admitted by D.W. 4 that even during the lifetime of Banabehari defendant No. 2 was managing the affairs of the family. Thus, he had control over the cash and the income of the properties of the father. Having been placed in that position, the defendant No. 1 might have managed to purchase the said property exclusively in his own name. Thus, it must be held that it was out of the funds of the father that the suit properties were purchased.
10. That apart, there is evidence to show that defendant No. 1 admitted the position that the entire suit properties including the properties under Exhibit B series are the properties of the joint family. Ext. A is the partition deed between Puma and Braja dated 27-12-1954. In the said document, the entire joint family properties have been shown to be about 35. 654 1/2 acres. In the said partition defendant No. 1 was allotted 14.078 acres, defendant No. 2 was given 11.717 acres and 9.859 1/2 acres were kept joint. The said document was executed by both the defendants Nos. 1 and 2 wherein it was clearly stated that Ambhamanankar samasta sthabar sampati isimali rahithibaru Bantan Karaiba Abashyaka: (as all our immoveable properties have been kept joint, it is necessary to make a partition of the same). It is not disputed that the entire suit properties were covered by the deed of partition, (Ex. A). Defendant No. 1 has admitted this partition, allotment of properties as mentioned in Ext. A and has stated that out of 9 acres kept joint about three acres will be their homestead and the same was not partitioned, as that would cause some inconvenience to the parties. The other six acres consist of small plots of lands in the far-off villages and they were kept joint only to be sold away in future. He admits that out of the properties that were kept joint, about three acres of land have been sold jointly by him and defendant No. 2 and they divided the consideration money.
Thus, there is a clear admission in Ext. a that the entire suit properties including the properties covered under Ext. B series were the properties of the joint family. It is well settled that admission is the best evidence that an opposite party can rely upon and though not conclusive is decisive of the matter unless proved to be erroneous: AIR 1960 SC 100, Narayan Bhagwant Rao v. Gopal Vinayak,
11. Mr. Mohanty, learned counsel for the appellant, contended that it may be that purely out of generosity the appellant agreed to put his separate property into the hotchpot so as to make it liable for partition between him and his brother, but that will not be a bar for him for putting forth his claim of self-acquisition or separate property. He relied upon a decision of the Privy Council reported in AIR 1947 PC 189, Appalaswami v. Suryanarayana Murty where their Lordships held that it is dangerous to construe the act of generosity or kindness as admission of legal obligation. The fact that at the instance of the mediators assisting in the partition one of the members of the joint family agreed to apply some of his self-acquired property for the benefit of the members of the family cannot be taken as establishing that the donor intended to bring into partition his entire self-acquired interest.
In the present case, however, no case is made out that at the instance of any such mediator defendant No. 1 abandoned his claim to his separate properties under Ext. B series. On the other hand, in the partition deed it is clearly admitted that it was their joint property of which they wanted partition. Thus, there is nothing in Ext. A to show that Ext. B series properties are the separate properties of defendant No. 1 and he merely out of generosity abandoned his claim to the same. Learned counsel for the appellant also placed reliance on a decision of this court reported in AIR 1960 Orissa 109 Bipra Charan v. Mohan Sundar where it was held that a clear intention to waive any claim to separate property must be established. In any view of my finding that it was out of the funds of the father that the consideration money for Ext. B series was paid, the question of separate property of defendant No. 1 and waiver of claim to such properties does not arise for consideration. Some properties were purchased in the name of defendant No. 2 alone and also in the joint names of defendants 1 and 2. Defendant No. 2 has stated that all these properties were included in the partition-deed, Ext. A. Thus, no part of the suit property can be held to be the separate property of defendant No. 1, and the same shall thus be liable to partition.
12. It is clear from Ext. A that the partition was confined only to defendants Nos. 1 and 2 and the plaintiff, though entitled to a share, in a partition between the sons, equal to each of the sons, was not at all given any share. Thus, the plaintiff is entitled to reopen the partition even if it is held that there was a completed partition between the two brothers.
13. I shall now come back to Ext. D (marked as additional evidence in this Court). It was urged that the plaintiff having transferred her interest in the suit property she ceased to have any interest in the suit, for partition and necessarily the suit must fail. Reliance was placed on a decision reported in AIR 1941 FC 5, Lachmeshwar Prasad v. Keshwar Lal and it was contended that the Court may take notice of events subsequent to the suit and pass necessary orders in view of the changed position. There is no dispute about such a legal position, but we have to see the legal effect of such a transfer.
14. It was contended by the learned counsel for the respondents that the gift under Ext. D is in the nature of an onerous gift and the plaintiff still retains her right to take back the suit property in case she was not properly maintained by the defdt-2 during her lifetime. It is unnecessary to examine in details the nature of document. It is enough to say at this stage that the transfer is hit by the rule of lis peadens, but is subject to the rights of the parties as may be decided in the suit. The said transfer does not in any way affect the rights of the appellant who will be entitled to his legitimate share in the suit properties. Moreover, this being a partition suit it will survive even at the instance of defendant No. 1 though he was not arrayed as a plaintiff.
15. It was next contended that some of the items of the suit properties are owned by some deities and they are not having been made parties in the suit, there can be no partition at least with respect to their property. It is not clear from the evidence as to which specific deities own what items of property. Plaintiff has stated in her evidence that they have some deities like Kunjabehari Deb, Laxminarayan Deb etc. Defendant 3 in his. written statement has stated that they are family deities of the parties but he claimed he was appointed by his grand-father Banbehari as the Marfatdar of the family deity, Laxminarayan Deb. Some of the sale deeds in Ext. B. series also show that they relate to some sthitiban properties of the deities. It is not clear from the evidence if the members of the family or the public were the beneficiaries in any such endowment or it is merely a Marfatdari right. In any case, the decision of the case will not affect the deities in any way.
16. Lastly, it was contended that the properties that stand in the name of the plaintiff having been acquired from the funds of Banabehafi, that should also he available for partition and even if it is held that they were her Stridhan properties, the same shall be taken into consideration in adjusting her share. Though it is the case of the plaintiff that she purchased the properties from out of money paid to her by her father, it is the evidence of defendant-2 that it was with her husband's money that the properties were purchased. It is well settled that if the mother has received stridhan from her husband its value should be deducted from her share. The properties purchased in the name of the plaintiff shall therefore be adjusted towards her share.
17. It is clear that though there was a partition deed (Ext. A) the family members are still joint.
A Commissioner appointed by the Court made inventory of some of the family moveables. Thus, the entire suit-property shall be available for partition in three equal shares. While making such partition, the possession of the parties shall be respected as far as practicable. The plaintiff's suit must therefore be decreed. There is no merit in this appeal which is dismissed with costs.
18. I agree.