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2000 DIGILAW 394 (ORI)

PRAFULLA KUMAR SAHU v. CHARULATA SAHU

2000-08-01

P.K.MISRA

body2000
JUDGMENT : P.K. Misra, J. - Defendant No. 1 is the appellant. Plaintiff-respondent No. 1 had filed the suit for partition. The undisputed genealogy is as follows : Kumar Ch. Sahu | ___________________________________________________________________________ | | | | | Nilamani Charulata Santi Prafulla Debendra (adopted (Plaff.) (D-2) (D-1) (died in by Dhruba) 1968) In view of adoption of Nilamani by another person and death of Debendra in 1968, plaintiff, her sister (defendant No.2) and brother (defendant No. 1) continued as members of the family of Kumar Sahu, who admittedly died in the year 1969. As per the plaintiff's allegation, the properties described in Schedules-A to F of the plaint are joint ancestral properties of the plaintiff and defendants. Subsequently after death of the father, misunderstanding arose giving rise to the filing of the suit for partition. The plaintiff claimed one-third share in the properties described in Schedules-A to F. 2. Defendant No. 2 had filed a written statement substantially supporting the case of the plaintiff. Defendant No. 1 filed written statement challenging the right of the plaintiff as well as of defendant No. 2 to claim partition stating that they had been given some properties during the life-time of Kumar and as such they had no right to claim any property after death of Kumar, Defnedant No. 1 also claimed that plaintiff and defendant No. 2 had no right in the properties and that the structure standing on the land had been erected by utilising the money of defendant No. 1 and as such plaintiff and defendant No. 2 are not entitled to any share in the said property. 3. The trial Court framed the following issues : 1. Is the suit maintainable in law ? 2. Are the plaintiff and defendant No. 2 members of the family of defendant No. 1 in view of introduction of Urban Land Ceiling and Regulation Act, 1976, and can the plaintiff maintain a suit for partition of the suit property ? 3. Is the suit property liable for partition among the parties ? 4. What are the respective shares of the plaintiff, D-l and D-2 in the suit property .? 5. Which of the properties in suit are ancestral and self-acquired of Kumar Sahu ? 6. What are the shares of plaintiff and D-2 in the mesne profit and from what date they are entitled to the same ? 7. 4. What are the respective shares of the plaintiff, D-l and D-2 in the suit property .? 5. Which of the properties in suit are ancestral and self-acquired of Kumar Sahu ? 6. What are the shares of plaintiff and D-2 in the mesne profit and from what date they are entitled to the same ? 7. Are the alienations made by different parties out of the suit property at different points of time to be adjusted to their respective shares ? 8. Whether the settlement deed dated 20.7.1985 executed by late Nisamani Dei has been acted upon and are plaintiff and D-2 bound by the same ? 9. Was there sufficient joint family nucleus in the hand of D-1 for alleged construction of the estate of the joint family ? 10. To what relief the parties are entitled ? The trial Court decreed the suit and observed that the plaintiff had one-sixth share in the ancestral property and one-third share in the separate property. The said decree is being challenged by defendant No. 1. 4. In this appeal, it is first contended that certain properties having been given to the daughters by the father gifted to them at the time of their marriage and certain other properties having been purchased by the father in the names of the two daughters, namely plaintiff and defendant No. 2, they are not entitled to any separate share after death of the father. 5. There is no challenge as such to the validity of the gift deeds, if any, in favour of the daughters at the time of their marriage. There is also no material to indicate that certain properties had been purchased in the names of the daughters as name-lenders and actually the property belonged to the father. Therefore, even assuming that certain properties had been gifted and had been purchased in the names of plaintiff and defendant No. 2, that cannot be a ground to negate the right of succession of the plaintiff and defendant No. 2, which accrued after death of the father. 6. The learned counsel for the appellant also contended that some properties were self-acquired properties of defendant No. 1 himself. A perusal of the written statement indicates that no such specific case had been made out in the written statement, nor any such material is available on record. 6. The learned counsel for the appellant also contended that some properties were self-acquired properties of defendant No. 1 himself. A perusal of the written statement indicates that no such specific case had been made out in the written statement, nor any such material is available on record. In absence of any evidence worth the name, it is difficult to accept such a contention raised by the appellant. 7. The learned counsel appearing for the appellant then contended that during pendency of the appeal, a compromise has been effected between the present appellant and respondent No. 2, wherein respondent No. 2 has given up her share in favour of defendant No. 1. Since such compromise is otherwise lawful and it does not prejudicially affect the right of the plaintiff, it can be given effect to and the decree of the trial Court is to be modified accordingly. 8. Thus, though all other contentions of the appellant are not acceptable, in view of the compromise the decree of the trial Court is modified to the extent that defendant No. 1 shall also be entitled to the share of respondent No. 2. In other words, he would be entitled to 5/6th share in the ancestral property and 2/3rd share in the separate properties as determined by the trial Court. The decree of the trial Court is modified to the above extent. 9. It appears that during the pendency of the appeal, receivers had been appointed at different times and presently defendant No. 1-appellant is continuing as the receiver. It further appears that certain amounts have been deposited in this Court which have been kept in fixed deposit. The fixed deposit in this Court shall be renewed from time to time for appropriate period to fetch maximum interest. The amount which is not yet kept in fixed deposit shall also be kept in fixed deposit in similar manner so that the amount can be disbursed in accordance with the direction to be made in the final decree after the final decree proceedings are over. If the parties do not come to any amicable arrangement. ' the plaintiff or defendant No. 1 may initiate the final decree proceeding. The trial Court after making necessary adjustments towards any justified expenditure, et cetera, shall pass a direction regarding disbursement of the amount in accordance with the shares now indicated in this judgment. If the parties do not come to any amicable arrangement. ' the plaintiff or defendant No. 1 may initiate the final decree proceeding. The trial Court after making necessary adjustments towards any justified expenditure, et cetera, shall pass a direction regarding disbursement of the amount in accordance with the shares now indicated in this judgment. The receiver shall henceforth act under the direction of the trial Court and all necessary obligation relating to accounting and maintenance of the properties etc. shall be determined by the trial Court and if any deposit is required to be made by the receiver, the same shall be made in the trial Court which shall make similar arrangements regarding fixed deposits. Applications for removal of the receiver or for imposing any fresh conditions can be made before the trial Court which is free to deal with all such applications. 10. Subject to the aforesaid directions, the appeal is disposed of. There will be no order as costs.