P.C. Misra, J.
1. This appeal has been preferred by defendant No. 2 against the decision dated 30.4.1971 of the learned Subordinate Judge, Aska, passed in Title Suit No. 21 of 1967.
2. The suit was filed by the respondent No. l plaintiff for partition of her half share in the joint family immovable properties described in Schedule A and the movable properties described in Schedule B of the plaint.
3. The genealogy as indicated below would show the relationship of the parties:
Kshetrabasi Mohapatra|-----------------------------------------------------------| | |Ramachandra Umeshchandra Rameshchandra=widow (Khali) (adopted to =widow KanchanMohapatrani) Bain Padhi) (plaintiff)|----------------------------------------------------------| | | | Uadhaynath Kailash (D.) Pushpanjali AshalataD. 2 adopted to (D. 3) (D. 4)Binayak Padhi=Pramila (D.6)
4. The plaintiff's case was that Kshetrabasi Mohapatra, who died in the year. 1949, was the common ancestor of the parties. He had three sons, namely, Ramachandra, Umeshchandra and Rameshchandra. Umeshchandra had been adapted away to one Bain Padhi. Ramachandra died in the year 1964 leaving behind his widow imp leaded in the suit as defendant No. 1, two sons who are defendants Nos. 2 and 5, two daughters who are defendants Nos. 3 and 4. It was alleged that the second son of Ramachandra, namely, Kailash (defendant No. 5) was adopted by one Binayak Padhi, Defendant No. 6 is the wife of defendant No. 5. Rameshchandra the last son of Kshetrabasi, died sometime between 1951 and 1955 leaving behind the plaintiff as his sole heir. The plaintiff has, therefore, demanded for partition of the joint family properties claiming half share therein.
5. Defendant No. 2 in his written statement has admitted the genealogy excepting that Kailash the second son of Ramachandra was not adopted to Binayak Padhi. During the trial of the suit, the adopting of Kailash was conceded by defendant No. 2 as mentioned in the impugned judgment and this fact has not been disputed in this appeal. We would, therefore, proceed on the basis that Kailash was adopted to Binayak Padhi. It was further stated in the written statement of defendant No. 2 that Rameshchandra, the husband of the plaintiff, was born blind and therefore, he was not entitled to inherit the properties. It was contended that Rameshchandra, being a disqualified heir, the plaintiff who has claimed through him is not entitled to any share in the properties of the family. Defendant No. 2 claimed that the properties described in Schedule D of his written statement belonged to the joint family as the same was acquired from the joint family funds, from out of which he is entitled to a share. It was also alleged by defendant No. 2 that the joint family had incurred debts, as detailed in Schedule C of the said written statement, for meeting the necessity of the family. Besides that he claimed that provision has to be made for the two daughters who are yet to marry. According to him the plaintiff is liable to bear the proportionate family debts and the expenses for the marriage of the daughters. It was further claimed by defendant No. 2 that the properties in Schedule B of the plaint are the Stridhan properties of his wife which she got from her father. He claimed for dismissal of the suit with costs.
6. Defendants Nos. 1, 3 and 4 admitted the genealogy given by the plaintiff and almost all other plaint assertions. They further admitted that the plaintiff was entitled to the shares which she claimed in the suit.
7. Defendants Nos. 5 and 6 filed a joint written statement wherein they claimed that defendant No. 5 has been adopted to one Binayak Padhi who is related as grandfather of the boy. Defendant No. 5 is now serving as Superintendent in the office, of the Accountant General with a monthly salary of Rs. 497/-. He claimed to have constructed the house described in Schedule D of the written statement of defendant No. 2 put of his own money and by incurring a loan from the Co-operative House Building Society Limited and from his General Provident Fund accumulation. He had also taken some loan from the Government of India fox the purpose. He stated that he was regularly discharging the loan by paying Rs. 100/- every month. He denied that neither his natural father nor the joint family fund ever contributed anything for the construction of the said house. A sum of Rs. 2000/- had been deposited by his natural father in the Surada Co-operative Society which defendant No. 1 had withdrawn and spent for the family necessities and no portion of the same was ever utilised for construction of the Bhubaneswar house. He disputed that defendant No. 1 had never given him fifty to as of gold as alleged by defendant No. 2. Items Nos. 1 and 2 of the Schedule D properties were purchased by his wife, defendant No. 6 from out of her Stridhan. They alleged that none of the items of properties in Schedule D are liable for partition.
8. The learned Subordinate Judge framed as many as nine issues and recorded the following findings :
(i) Rameshchandra was not born blind ;
(ii) Kailaab is the adopted son of Binayak Padbi (the point being conceded );
(iii) Schedule B properties belonged to defendants Nos. 5 and 6 and do not form joint family properties;
(iv) Plaintiff has failed to prove that Schedule B properties belonged to the joint family;
(v) The loan said to have been incurred by Ramachandra from the Land Mortgage Bank and Co-operative Societies shall be taken into account and adjusted during the final decree proceeding, proportionate to the shares of the parties. The other loans described in Schedule C of the written statement of defendant No. 2 either did not subsist or were not incurred for the necessity of the family;
(vi) The family properties are not liable for the marriage of the unmarried daughters of defendant No. 2;
(vii) Plaintiff is entitled to half share in Schedule A properties only.
9. The learned Subordinate Judge under Issue No. 1 has made a discussion of the oral and documentary evidence on record to come to a finding that Rameshchandra was not born blind. The learned trial Court proceeded on the basis that a person who was born blind is disqualified from inheriting the joint, family properties. It appears that development of Jaw in this regard has been lost sight of. Formerly according to the original text of Hindu-law there were several grounds under which a person was disqualified or excluded from inheritance. By the Hindu Inheritance (Removal of Disabilities) Act, 1928, the law in this respect was codified. Under this Act no person, other than a person who is and has been from birth a lunatic or idiot, is excluded from inheritance or from any right or share in joint family property by reason only of any disease, deformity or physical or mental defect. This Act came into force on the 20th September, 1928. Therefore, after passing of this Act the only defect which would disqualify an heir from the inheritance from a share was congenital lunacy and congenital idiocy. This Act is not retrospective and was applicable to persons governed by Mitakshara School of Hindu-law. Admittedly there was no partition in the family prior to 20.9.1928 when this Act came into , force. Thus Rameshchandra would not be a disqualified heir after that date. Section 28 of the Hindu Succession Act, 1956 also makes a similar provisions Section 28 of the said Act makes a clean sweep of all disqualifications which prevented inheritance except those mentioned in Sections 24, 25 and 26. Section 24 disqualifies certain widows to succeed by reason of remarriage. Section 25 disqualifies a murderer from inheriting the properties of the person murdered and Section 26 disqualifies a person on the ground of conversion to another religion from inheriting the properties; of any of his Hindu relatives. Thus born blindness is no more a disqualification after the 20th of September, 1928, if the succession opens after that date. It is stated in the plaint that Kshetrabasi, the original ancestor, died in the year 1949. Therefore, even if Rameshchandra was born blind he would not be disqualified to inherit the properties of his father in the year 1949. We, therefore, conclude in saying that the aforesaid issue was unnecessary in view of the clear provision of law as discussed above.
10. The only point urged in this Court is whether Schedule D properties are liable to be partitioned. Defendant No. 2 who is appellant in this appeal has claimed in his written statement that the properties mentioned in Items Nos. 1, 2 and 3 of Schedule D of his written statement were acquired out of the joint family funds and as such he is entitled to a share in those properties. Item No. 3 of the said schedule Telates to a house constructed at Bhubaneswar which defendant No. 2 claimed that his father Ramachandra had constructed it with the assistance of Kaiash Chandra defendant No. 5. Admittedly Kailash was adapted away to another family. There is no reason why after going away to another family as adopted son he would offer assistance of the nature alleged/by defendant No. 2 for construction of the house in question. He relies upon Exts. A, A-1/7 and Exts. B-1 to B-1/3 which are said to be account books kept by his late father to prove that it is Ramachandra who constructed the house. Having gone through those documents we do not find any justification for finding that the amounts mentioned to have been spent in those account books were out of the joint family funds. It rather appears that Ramachandra was kept ire charge of some ornaments and utensils belonging to Kailash and Ramachandra dealt with those properties of Kailash for which accounts were being maintained by him and a balance has been worked out. On the other hand we find that the land on which this house was constructed originally belonged to the Government of Orissa and it was allotted to Co-operative House Building Societies Limited, Bhubaneswar. Defendant No. 5 was a member of that Society as would be evident from Ext. A and obtained lease of this land vide Ext. B, The Estates Officer and ex-officio Deputy Secretary to Government of Orissa, P. & S. Department has certified a transfer by way of lease in favour of defendant No. 5 under Ext. 6. It is defendant No. 5 who submitted a plan to the N.A.C., Bhubaneswar, as per Ext. D and he has been paying rent and tax in respect of the said house as would be evident from Ext. E series. Ext. F shows that. Government of India advanced house building loan of Rs. 8000/- to defendant No. 5. Another amount of Rs. 4635/- was obtained by defendant No. 5 from G.P.F. and from the Co-operative Society as mentioned above. These documents coupled with the evidence of defendant No. 5 make it clear that the house was-really constructed by defendant No. 5 out of his own resources and not by Ramachandra, father of defendant No. 2. We therefore, conclude that the house in dispute in Item No. 3 of Schedule D exclusively belonged to defendant: No. 5 and cannot be the subject-matter of partition.
11. So far as the properties under item No. 1 of Schedule D are Concerned, we find that the house originally belonged to two persons namely, Somanath Mohapatra and Rama Krushna Mohapatra, Somanath Mohapatra sold his portion of the house to the father of defendant No. 2 under Ext. G and he in his turn sold it to defendant No. 6 for a consideration of Rs. 500/-under a registered sale-deed dated 9.7.1956 marked as Ext. H. The said document recites that the consideration money was paid from Stridhan of defendant No. 6. It. is stated' in the said document that one Ganesh Mohapatra paid the money on behalf of defendant No. 6. This Ganesh Mohapatra had been examined as D. W. 7. He has dearly stated that the consideration money was paid out of Stridhan of defendant No, 6. Defendant No. 2 himself is an attesting witness in. this document Ext. H. The other half of this house was sold by the co-sharer Rama Krushna Mohapatra under. Ext. J to defendant No. 6. Thus defendant No. 6 became the full owner of the entire premises and it is not an item of property belonging to the family of defendant No. 2. Defendant No. 6 has paid Municipal tax under Exts. N to N-5 to Surada N.A. C in respect of this house. She has also paid rent under Ext. P series for the lands over which this house exists. Thus the item No. 1 of Schedule D exclusively belonged to defendant No. 6 and is not liable for partition in this suit.
12. Item No. 2 of Schedule D is a piece of land measuring A. 1. 85 cents at Borasingi Batta No. 54. Defendant No. 2. claimed that this item of property was purchased by defendant No. 1 and a nominal sale-deed was executed by defendant No. 1 in favour of defendant No. 6 under which no title passed to her. The defendant No. 2 has signally failed to prove that the transfer of this property in favour of defendant No, 6 was a nominal transfer. It will appear from Ext. K that the land was purchased by defendant No. 1 from the real owner. Under Ext. L the very same lands were transferred in favour of defendant No. 6 for a consideration of Rs. 500/-. Defendant No. 1 clearly admitted that the transfer in favour or defendant No. 6 was a real one which conveyed title to her and she has been divested of the said properties. Defendant No. 2's father Ramachandra has attested this document. In view of the aforesaid evidence it must be concluded that defendant No. 6 acquired valid title under Ext. L, in respect of the lands in item No. 2 of Schedule D. That she is in possession of these lands is also apparent from the rent-receipts as per Ext. P series.
In respect of Item No. 4 of Schedule D it is claimed that the joint family money amounting to Rs. 2000/- was deposited in Surada Co-operative Society Limited by the father of defendant No. 2 in the name of his wife (defendant No. 1). But subsequently; the said amount was withdrawn and handed over to defendant No. 5 for construction of the house at Bhubaneswar. There is no substance in such a claim of defendant No. 2. We have already held that the house at Bhubaneswar was constructed out of the resources of defendant No. 5. There is no evidence except that of defendant No. 2 that, the aforesaid amount of Rs. 2000/-was handed over by the father of defendant No. 2 (during whose life time the amount is said to have been withdrawn) to defendant No, 5. Admittedly defendant No. 5 had gone sway to a different family by adoption. Under the circumstances, it stands that there is no reason as to why the defendant No. 2's father would make over a sum of Rs.2000/- to defendant No. 5. We, therefore, bold that defendant No. 2 has utterly failed to prove his claim with respect to these items of properties.
14. Under item No. 5 of Schedule D, defendant No 2's claim is that fifty tolas of gold was with defendant No. 1 which defendant No. 5 has taken away. Defendant No. 1 herself denies such an allegation. Defendant No. 1. is expected to be more interested with defendant No. 2 than in defendant No. 5 who has been adopted away. The oral evidence in this regard is highly discrepant and far from proving that defendant No. 1 had at any point of time fifty tolas of gold with her or that defendant No. 5 has taken away the same. We, therefore, confirm the finding of the learned trial Court that defendant No. 2 has failed to prove the property in item No. 5 to be with defendant No. 5 and consequently the question of partition of the said properties does not arise.
15. Under issue No. 3 the learned trial Court has discussed evidence on record as to the family debts, if any, as described in Schedule C of the written statement of defendant No. 2. His conclusion is that the loans incurred by the father of defendant No. 2 from the Co-operative Society and Land Mortgage Bank are to be adjusted at the time of final decree proportionately.. Plaintiff's lawyer has conceded to this position at the trial. Except the aforesaid loan the finding is that all other loans enumerated in Schedule C are not liable to be taken into account during partition for the reasons enumerated in the impugned judgment. The finding on this issue has not been seriously challenged in this appeal and, therefore, on consideration of the oral and documentary evidence on record, we find that the conclusion of the learned Subordinate Judge on this issue is well founded and we find no reason to differ from the same. Detailed discussion of evidence on this issue is unnecessary inasmuch as the learned counsel for the appellant has not made out any point whatsoever for further consideration except those which have been dealt with in the impugned judgment in detail.
16. No other point has been urged before us in this appeal and, therefore, the properties in Schedule A alone are liable to be partitioned giving half share to the plaintiff.
17. In the ordering portion of the judgment the learned Subordinate Judge has calculated the share of defendant No. 2 to be 5/16ths and that of each of the defendants Nos. 1, 3 and 4 to be 1/16th in Schedule A properties. The aforesaid specification of the shares is not correct. Section 6 of the Hindu Succession Act provides the rules of devolution of interest in coparcenary property. Ramachandra died in 1964 and therefore, the provision of Hindu Succession Act would apply for devolution of his interest in the coparcenary property. The said section prescribes that where coparcener dies a Mitakshara coparcenary would not become disrupted but the surviving coparcener may continue to remain with the members of the joint family without effecting any partition subject to the proviso in the said section. The proviso to the said section specifies that if the deceased had left him surviving a female relative specified in Class I of the Schedule or a male relative, specified in that class who claims through such female relative, the interest of the deceased in the Mitakshara coparcenary property shall devolve under this Act and not by survivorship. In this case Ramachandra died leaving behind his widow who is a female relative specified in Class I of the Schedule. Therefore, the interest which Ramachandra had in the Mitakshara coparcenary property shall devolve under the provision of 'this Act. Explanation I in that section provides that the interest of a Hindu Mitakshara coparcener shall be deemed to be the share in the property that would have been allotted to him if a partition of the property had taken place immediately before his death. In order to give effect to the rules laid down in Proviso to Section 6, if partition had taken place immediately before the death of Ramachandra, he himself, his wife defendant No. 1 and his son defendant No. 2 would have been entitled to equal shares. Therefore, Ramachandra's interest in the coparcenary properties being 1/2, the same is to be divided into three equal shares and his interest thus would have been l/6th on the basis of a notional partition. On his death this l/6th share is to be equally divided between defendants Nos. 1, 2, 3 and 4 who are all related to him as Class I heirs. Thus, the share of defendant No. 1 would be l/6th plus 1/24, i.e., 5/24ths in Schedule A properties. The share of defendant No. 2 would be same as that of defendant No. 1, i.e., 5/24ths. The daughters defendants Nos. 3 and 4 would be entitled to l/24th share each as each of them would be entitled to inherit l/4th of their father's l/6th interest in the joint family properties.
18. In the result, the appeal is dismissed except the modification of the shares of the defendants inter se as noted in the preceding paragraph. The preliminary decree be drawn up accordingly whereafter any of the parties interested may initiate final decree proceeding as provided under law. In the facts and circumstances of this case, each party is directed to bear its own costs incurred in this Court only.
19. I agree.