S. Acharya, J.
1. The plaintiffs have preferred this appeal against the reversing decision of the First Addl. Subordinate Judge, Cuttack in Title Appeal No. 191 of 1966.
2. According to the plaintiffs, plaintiff Nos. 1 to 3 and pro forma defendant No. 6 are brothers and are members of a Hindu Mitakshara joint family of which plaintiff No. 1 is the Karta. Plaintiff No. 3. one of the sons of plain-tiff No. 1. has been adopted to one Padmanay. Defendant No. 5 is the wife of defendant No. 6, but she has left defendant No. 6 and has remarried one Benudhar Acharya of Arjunpur and is living with him in his house. Defendant Nos. 1 to 4 are members of a Hindu Mitakshara joint family of which defendant No. 1 is the Karta. Defendant Nos. 1 to 4 are the first cousins of the plaintiffs. The suit properties described in Schedule A of the plaint are the joint ancestral properties of the plaintiffs and defendant No. 6 and there has been no partition of the properties or ascertainment of their shares in the same at any tune. According to the plaintiffs, at the instance of and in collusion with defendant No. 1, defendant No. 5 exercised undue influence on defendant No. 6, who executed a Kabala in favour of defendant No. 5 on 28-8-1962 in respect of Ac. 0.29 14/16 decimals of land and another Kabala on the same day in favour of defendants Nos. 1 to 4 in respect of Ac. 0.19 decimals of land. All these transactions were without any legal necessity, without any consideration and were not acted upon. Plaintiffs Nos. 1 and 2 came to know of the execution of the aforesaid Kabalas only after defendant No. 5 left the family and went to live at her father's place. On enquiry defendant No. 6 admitted before plaintiffs Nos. 1 and 2 that these Kabales were taken from him on the undue influence of defendant No. 5 and defendant No. 1. Soon thereafter defendant No. 6 executed deeds of cancellation nullifying the effects of the two Kabalas. On the above averments the plaintiffs have instituted this suit for a declaration that the plaintiffs and defendant No. 6 have title to the suit lands and that defendants Nos. 1to 5 have not acquired any right title or interest over the said property on the strength of the aforesaid Kabalas executed in their favour. They further aver that the said sale deeds are not binding on the plaintiffs.
3. Defendants Nos. 1 to 4 and 5 filed separate written statements but the case averred by them is substantially the same. According to them plaintiffs Nos. 1 to 3 and pro forma defendant No. 6 are no longer members of a joint Hindu family, nor plaintiff No. 1 is the Karta of the said family. According to them the plaintiffs and defendant No. 6 long time back were members of a joint family and as defendant No. 6 became diseased and could not earn his livelihood, he needed large amount of money for his treatment whereupon dissensions arose between him and the plaintiffs. Ultimately defendant No. 6 separated from his brothers both in mess and property in April 1959. Defendant No. 6 then left the family house and shifted to Arjunpur, where he his wife Khetramani (defendant No. 5) and their children lived in the house of the maternal uncle of defendant No. 5. Defendant No. 5 has not married for the second time. Defendant No. 6, after separation got his share of lands cultivated separately through his own men and was in enjoyment of the usufructs thereof. Defendant No. 6 was ailing all through and later suffered from dropsy and on account of his treatment he had to incur loans from several persons including defendant Nos. 5 who advanced money to him from out of her Stridhan funds. Defendant No. 6 had to remain in the hospital for quite some time for treatment and after he was discharged from the hospital he proposed to sell the suit land. Accordingly defendant No. 5 and defendants Nos. 1 to 4 purchased the suit property by registered sale deed on 28-8-1962 for consideration, and the vendees took possession of the property in accordance with the sale deed. According to the defendants, the deeds of cancellation executed by defendant No. 6 are not genuine and the same do not have the legal effect of defeating the title of the defendants.
4. The trial Court found that by 28-8-1962 the suit properties were joint family properties, the sale deeds executed by defendant No. 6 in favour of defendants Nos. 1 to 4 and defendant No. 5 were without consideration defendant No. 6 had no right to sell the undivided joint family property and he did not convey any title by the aforesaid sale deeds. Mostly on the aforesaid findings the trial Court decreed the suit.
The appellate Court on an elaborate consideration of the evidence on recordfinds that by the time of the execution of the sale deeds Exts. A and A/1 there was no joint family status between the plaintiffs and defendant No. 6 although the properties had not been partitioned between them by metes and bounds. It finds that admittedly Jagabandhu Kar, defendant No. 6, had one-fourth share in the joint family property and therefore he could alienate his interest in the same to the extent of his share, as by the time of the alienation he had separated from the joint family. On this finding it reversed the finding of the trial Court that the properties were joint by the time of the aforesaid sale. It also finds that there is absolutely no question of any misrepresentation or undue influence played on defendant No. 6 for the execution of the aforesaid sale deeds. While confirming the finding of the trial Court that there was legal necessity for the aforesaid alienations made by defendant No. 6, it also finds that defendant No. 6 executed the sale deeds with full understanding. In conclusion it finds that there was no joint family status between the plaintiffs and defendant No. 6 on the date of the above mentioned sales in favour of defendants Nos. 1 to 5 and therefore defendant No. 6 was within his rights to alienate the properties and accordingly defendants Nos. 1 to 5 have acquired good title on the strength of the sale deeds Exts. A and A/1.
5. Mr. Das, the learned counsel for the appellants, contended that the Court below acted illegally in arriving at and acting on the incorrect finding and conclusion that there was severance of joint family status between defendant No. 6 and his brothers the plaintiffs by the date of the execution of the sale deeds, in view of the specific case in the written statement that there was division of the joint family property by metes and bounds between them. According to Mr. Das in view of the above-mentioned specific averment in the written statement the Court below acted illegally in making out a new case for the defendants and deciding the case on that basis. He also urged that the aforesaid conclusion about severance of the joint family status was, based on no evidence on record.
6. In the Court below this particular question was agitated by the appellants herein who were respondents in the Court below. The Court below, on a consideration of the averments in the pleadings and the evidence on record finds that it is not the case of the defendants that there was a partition between the brothers by metes and bounds. The division, of property alleged by them and the assertion of possession over such property is only by amicable arrangements for the sake of convenience. In paragraph 16 of the written statement filed by defendants Nos. 1 to 4 it is stated that the statements made in that paragraph are the true facts of the case. Therein it is stated that on account of constant illness of defendant No. 6 his inability to earn, and requirement of heavy amounts for his treatment, dissensions arose in the family between the plaintiffs and defendant No. 6 due to which 'defendant No. 6 separated from his brothers both in mess movables and property in April, 1959. After separation and division of property defendant No. 6 left the family house and resided in the house of his wife's maternal uncle in village Arjunpur. Defendant No. 6 after the aforesaid separation got his share of the lands cultivated separately according to convenience and was in enjoyment of the usufructs thereof. In this paragraph there is nothing specific to the effect that there was a partition of the joint family property between the plaintiffs and defendant No. 6 by metes and bounds. Mr. Das in support of his above submission also drew my attention to para. 7 of the said written statement. The relevant sentence, to which reference was made is not very clear and explicit and therefrom it cannot be definitely said that a case of partition by metes and bounds, as urged by Mr. Das, is averred by these defendants. In paragraphs 1 to 15 in this written statement the averments, allegations and the case made out in the plaint have been denied and/or challenged, and in paragraph 16 only the case put forward by these defendants has been stated. Mr. Das has not been able to show anything definite and convincing from the averments in the written statement or from the evidence adduced by the defendants from which it can be said that a case of partition by metes and bounds was pleaded by these defendants. Accordingly, it cannot be said that the defendants 1 to 5 specifically made out a case that there was a partition of the joint family property between defendant No. 6 and the plaintiffs by metes and bounds. I do not therefore find any merit in the above-mentioned contention of Mr. Das.
7. On a perusal of the impugned judgment I am satisfied that the finding of the Court below, that in fact there was severance of the joint family status between the above-mentioned persons, is based on cogent and convincing appreciation and discussion of the evidence on record. The Court below, in arriving at the aforesaid finding has taken into consideration the evidence of D.Ws. 2, 3 and 4, and certain statements made by P. W. 4 in this connection. It has also takeninto consideration the evidence of defendant No. 6, who has been examined as P. W. 5 for the plaintiffs. Considering the above-mentioned evidence in the perspective of other oral and documentary evidence on record it has arrived at the finding that there was severance of the joint family status between defendant No. 6 and the plaintiffs and at the time when the sales were effected the joint family status was not in existence between them although the joint family properties had not been partitioned by metes and bounds. Thus the Court's finding to this effect is perfectly correct.
8. Mr. Das also urged that the Court below acted illegally in arriving at the said finding as it did not appreciate the question in the correct legal perspective. He contends that the said finding is illegal inasmuch as there is no evidence on record that defendant No. 6 had expressed his unequivocal and peremptory intention to separate from the joint family. According to Mr. Das law presumes continuance of joint family status amongst members of a Hindu family and that presumption is stronger still in the case of brothers. He further contends that there is nothing on record to show that defendant No. 6 had at any time either actually separated himself or made any such declaration communicating his intention in the desired manner to separate himself from the family. I do not find any weight in the above-mentioned contention. The Court below has believed the defendant's assertion that defendant No. 6 was constantly suffering from different diseases and was in need of money for his treatment. On that account there was dissension in the family, as a result of which defendant No, 6 remained separate from his brothers and actually went away to village Arjunpur and lived there in the house of the maternal uncle of his wife. The Court also finds that defendant No. 6 was separately possessing some lands out of the joint family property and was separately enjoying the usufructs thereof. In arriving at the above findings the Court has placed reliance on the evidence of D. Ws. 2 and 4 who as I find have spoken about the division of the property between defendant No. 6 and the plaintiffs. D. W. 2 has stated that the parties separated as defendant No. 6 was not being properly treated by his other brothers. D. W. 4 corroborates D. W. 2 to the above effect. The Court finds that D. Ws. 2 and 4 are respectable persons of the locality and are in no way ill-disposed towards the plaintiffs or any way interested with any of the defendants. Moreover, defendant No. 6, examined as P. W. 5 in this case, has himself admitted that he was suffering from various ailments, and diseases and was often in need ofmoney for his treatment. He also states that he remained in village Arjunpur with his wife in the house of the maternal uncle of his wife and from that place he went to the hospital as his disease became acute. D. Ws. 2 and 4 in a very consistent and convincing manner testified to the effect that there was separation between defendant No. 6 and his brothers. D. Ws. 3 and 5 state that at different times they were cultivating the lands of defendant No. 6, and their evidence to this effect has not at all been challenged in cross-examination. The plaintiffs have also admitted that defendant No. 6 was suffering from dropsy and consequently he was unable to work and earn money and that large amount of money was needed for his treatment. From the above and other facts and circumstances borne out by the evidence on record most of which have been discussed and considered by the Court below in the impugned judgment, it is evident that defendant No. 6, prior to the execution of the sale deeds, expressed his firm intention to separate himself from his brothers, and actually remained separate from his brothers by taking out a portion of the moveable and immoveable joint family properties for himself. He went out of the family and separately got his portion of the lands cultivated by tenants and enjoyed the usufructs thereof. These facts clearly establish that there was an unequivocal declaration on the part of defendant No. 6 to remain separate from his brothers and he did remain separate from them both in mess and property. Thus there was severance of the joint family status between defendant No. 6 and his brothers, the plaintiffs.
9. Mr. Das in support of his above contention cited the decision in Indranarayan's case, (AIR 1971 SC 1962). TheirLordships on a consideration of the evidence on record find that there was not an iota of evidence in that case to show that the plaintiff had at any time made any unequivocal declaration that he had separated himself from his family much less there was any evidence that the plaintiff communicated his intention to separate himself from the family either to the Karta or to any of the members of the family. On the aforesaid finding and on the peculiar facts of that case their Lordships held that there was no severance of the joint family status in that case. The decision in that case having been arrived at mostly on the peculiar facts and circumstances of that case, does not help and/or support the contention of Mr. Das which is purely based on the facts of this case.
10. On the above considerations I am satisfied that the above-mentioned finding of the Court below is both legallyand factually correct and justified. Mr. pas concedes that if the aforesaid status is upheld he cannot question the conclusion arrived at in this case on any other ground.
There is therefore no merit in this appeal which is hereby dismissed; but in the circumstances of the case there will be no order as to costs of this appeal.