JUDGMENT A. K. PARICHHA, J : This is an appeal by the unsuccessful plaintiffs challenging the judgment and decree passed by the learned Subordinate Judge, Talcher in Title Suit No.6 of 1983. 2. The properties described in the schedule of the plaint are ancestral properties of the parties and Krutibas Fatesingh, the common ancestor was the owner of these properties, Krutibas died leaving behind his three sons-Gouranga, Kalandi and Madhu. Defendant Nos. 1 to 4 represent the branch of Gouranga, defendant Nos. 7 and 8 represent branch of Madhu and the plaintiffs, de¬fendant Nos. 5 & 6 and Braja, (who died unmarried and issuless) represent the branch of Kalandi. 3. The following genealogy will explain the relationship between the parties inter se : Krutibas Fatesingh Gourang Kalandi Madhu (W=Ranga) (W=Duti) (Deft.7) Sarat (W=Drapaudi) Iswar @ Chandi Giridhari (Deft. No.1) (W-Subrana) (Deft,8) Expired in 1977 Surya Gokulananda Braja (Unmarried) Dukhi (Deft.5) W=Mahamaya (Issueless. Expired (Defnt.6) (Plaintiff No.1) in 1979 Benu (Deft.) Pakeli Chaturi (Defnt.3) (Defnt.4) 4. The case of the plaintiff-appellants is that Iswar was the adopted son of Kalandi and Gokulananda, the husband of plain¬tiff No.1 and father of plaintiff No.2, Braja and defendant Nos. 5 & 6 were the children of Iswar and his wife-Subarna. Gouranga, Kalandi and Madhu had not effected any partition but were in enjoyment of specific parcel of the suit properties by mutual arrangement and on their, death the respective branches continues enjoying those properties separately. While enjoying those properties separately, members of the each branch disposed of some properties and there is no grievance of any of the parties with respect to those alienations. After the death of Braja and Gokulananda, defendant No.5, defendant No.6 and the plaintiff continued their possession over the lands which were earlier being enjoyed by Kalandi and then Iswar. When the matter stood thus, defendant Nos.5 and 6 in connivance with defendant No.8 and some henchmen created trouble in the possession of the plaintiffs over the lands, which they were in possession. As a result, the plaintiffs had to leave the place and take shelter in the house of the parents of plaintiff No.1. Thereafter, the plain¬tiffs repeatedly demanded partition of the suit properties and even served advocate notice in that regard, but no tangible result came out. So they had to file the suit for partition. The defendant Nos. As a result, the plaintiffs had to leave the place and take shelter in the house of the parents of plaintiff No.1. Thereafter, the plain¬tiffs repeatedly demanded partition of the suit properties and even served advocate notice in that regard, but no tangible result came out. So they had to file the suit for partition. The defendant Nos. 1, 7 and 8 did not file any written statement and were set ex parte. Defendant Nos. 2, 3 and 4 filed the joint written statement supporting the case of the plaintiffs. Defend¬ant Nos. 5 and 6 filed a joint written statement challenging the allegation and claim of the plaintiff, pleading inter alia that there was already a partition of the suit properties and the suit for partition is not maintainable, that they never created any trouble in the possession of the plaintiffs over any part of the suit property and as such there was no cause of action for filing the suit. The further pleaded that the family had incurred loans from Talcher Co-operative Land Development Bank as well as from private individuals for family necessity and because they repaid those loans, some lands, namely, Magha kiari and Sajar Kiari were given to them and for that reason those lands are not available for partition. It was also pleaded that the award of Rs.12,000/- granted by the Motor Vehicle claims Tribunal in the name of Subarna Dei mother-in-law of the plaintiff No.1 was appropriated by the plaintiffs, although defendant Nos. 5 and 6 had share in the same and therefore the said amount should also be brought into hotchpotch for partition and respective share of defendant Nos.5 and 6 should be given. 5. From the pleadings of the parties, learned trial Court framed as many as six issues and accepted evidence of the parties on those issues. Plaintiff No.1 examined herself as the sole witness on behalf of the plaintiffs. The contesting defendants examined three witnesses, D.W.1 being defendant No.5, D.W.2 being the husband of defendant No.5 and D.W.3 being defendant No.8. The plaintiffs did not produce any document but the contesting de¬fendants produced some money receipts, sale deeds, advocate’s no¬tice, certified copy of the Khatian and certified copy of the death certificate which were marked Exts. A to F respectively. The plaintiffs did not produce any document but the contesting de¬fendants produced some money receipts, sale deeds, advocate’s no¬tice, certified copy of the Khatian and certified copy of the death certificate which were marked Exts. A to F respectively. On consideration of the oral and documentary evidence, learned trial Court came to hold that there was no prior partition in the family, that there was cause of action for the plaintiffs to bring the suit for partition, that all the properties available have been brought to the hotchpotch and that the plaintiffs are entitled to their share in the suit properties. He, accordingly decreed the suit and granted 1/45th share to plaintiff No.1, 2/45th share to plaintiff No.2, 6/45th each to defendant Nos.5 and 6 with a stipulation that the lands covered in Exts. B and C would be excluded from 1/3rd share of Kalandi branch. He also di¬rected that the plaintiffs would pay Rs.4,500/- each to defendant Nos.5 and 6 out of the compensation amount of Rs.12,000/- awarded by the Motor Vehicle Claims Tribunal. The said judgment and decree is under challenge in this appeal. 6. Mr. S. D. Das, learned counsel for the appellants challenges the impugned judgment and decree basically on the plea that the same is not in accordance with the evidence on record and the respective share allotted to the plaintiffs and defendants is not supported by any reason or principle of Hindu Succession Act. His further allegation is that in the face of evidence of the witnesses that the plaintiff No.1 spent consider¬able amount of money in the marriage of defendant No.6 and funer¬al ceremony of late Braja by incurring loans, there was no justi¬fication for asking her to pay the amount of Rs.4,500/- to each of defendant Nos.5 and 6. 7. Mr. B. N. Rath, learned counsel for the respondents supports the impugned judgment and decree but contends that the apportionment of share to the respective parties is not in tune with the provision of Hindu Succession Act. 8. From the pleadings of the parties, it appears that there is no dispute about the genealogy noted in the plaint and about adoption of Iswar by Kalandi. It is also not disputed that Gouranga, Kalandi and Madhu each had each 1/3rd share in the suit properties. 8. From the pleadings of the parties, it appears that there is no dispute about the genealogy noted in the plaint and about adoption of Iswar by Kalandi. It is also not disputed that Gouranga, Kalandi and Madhu each had each 1/3rd share in the suit properties. Though the contesting defendants pleaded prior parti¬tion in the family, there is virtually no evidence to show any prior partition, rather the evidence of both th parties clearly show that although there was no formal partition in the family, yet Gouranga, Kalandi and Madhu were each possessing specific portion of the suit properties by mutual arrangement and consent. It is also not in dispute that each branch sold some portion of the properties in their respective possession to outsiders and that none of the parties has any grievance or allegation about such disposition. They have rather pleaded that the properties sold by each branch may be adjusted in the share of the said branch. With such admission of the parties, virtually the only issue left for adjudication was whether there was cause of action for bringing the suit and what is the share of the plaintiffs in the suit properties. 9. Though defendant Nos. 5 and 6 pleaded that there is no cause of action for the plaintiffs to bring the suit, yet they admitted that the plaintiffs had served an advocate’s notice on them demanding their share in the family property. No doubt, they have replied to the notice denying the allegation, yet the very fact that the plaintiffs, who represent the Branch of Gokulanan¬da, had expressed their intention to separate through a notice, automatically a cause of action arises for partition of family properties. So the finding of the learned trial Court that there was cause of action for the suit is not legally incorrect. 10. The next question is the correctness of the share allotted to the parties. In this regard, it will be worthwhile to mention that the parties have admitted that Kalandi being one of the three sons of Krutibas had 1/3rd share in the suit proper¬ties. It is also admitted that Kalandi adopted Iswara as his son and heir and on his death Iswara inherited that 1/3rd share of Kalandi. It is further admitted that Kalandi died after 1956 leaving behind his widow Subarna, sons Gokulananda and Braja and daughters, defendant Nos.5 and 6. It is also admitted that Kalandi adopted Iswara as his son and heir and on his death Iswara inherited that 1/3rd share of Kalandi. It is further admitted that Kalandi died after 1956 leaving behind his widow Subarna, sons Gokulananda and Braja and daughters, defendant Nos.5 and 6. Section 6 of the Hindu Succes¬sion Act, 1956 speaks about devolution of interest in coparcenary property. Before amendment by Act 39 of 2005, Section 6 read as follows : “When a male Hindu after the commencement of this Act, having at the time of his death an interest in a Mitakshara coparcenary property, his interest in the property shall devolve by survivorship upon the surviving members of the coparcenary and not in accordance with this Act; Provided 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 coparce¬nary property shall devolve by testamentary or intestate succes¬sion, as the case may be, under this Act and not by survivorship. Explanation 1 - For the purposes of this Section, the inter¬est of a Hindu Mitakshara corpacener 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, irrespective of whether he was entitled to claim partition or not. Explanation 2 - Nothing contained in the proviso to this Section shall be construed as enabling a person who has separated himself from the corpacenary before the death of the deceased or any of his heirs to claim on intestacy a share in the interest referred to therein.” The Section, therefore, clearly contemplated that whenever a deceased having interest in the coparcenary property dies leaving a female relative specified in Class-I of the schedule or male relative specified in that Class, who claims through that female relative, then the interest of the deceased in Mitakshara copar¬cenary property shall devolve by testamentary or intestate suc¬cession and not by survivorship. In the present case, admittedly the widow, sons and daughters of Iswara were Class-I heirs. In the present case, admittedly the widow, sons and daughters of Iswara were Class-I heirs. Since female Class-I heirs were there, the interest of Iswara in the Mitakshara coparcenary property would devolve on his heirs named above by way of testamentary or intestate succession or not by way of survivorship. It is not the case of any party that-Iswara left any will. So the inheritance would be by intestate succes¬sion. Section 8 of the Hindu Succession Act prescribes the gener¬al rule of intestate succession in case of males. This Section reads as follows: “8. General rules of succession in the case of males.- The property of a male Hindu dying intestate shall devolve according to the provisions of this Chapter- (a) firstly, upon the heirs, being the relatives specified in Class-I of the Schedule; (b) secondly, if there is no heir or class I, then upon the heirs, being the relatives specified in Class II of the Schedule; (c) thirdly, if there is no heir of any of the two classes, then upon the agnates of the deceased; and (d) lastly, if there is no agnate, then upon the cognates of the deceased. 11. In view of this provision, the interest of Iswara in the joint family coparcenary property would pass on the Class I heirs left by him. There were five Class-I heirs at the time of his death. So, each of these heirs would be entitled to 1/5th share in the interest of Iswara. Admittedly, the widow-Subarna died some time in the seventies and Braja also died unmarried issuless in 1979. Gokulananda died leaving the plaintiffs as his heirs. So by the time of the suit only two daughters defendant Nos. 5 and 6 and the plaintiffs representing the branch of Gokulananda were available to inherit the interest left by Iswa¬ra. These surviving Class I heirs would now inherit the interest of Iswara, who had 1/3rd share in the family property. According¬ly defendant Nos.5 and 6 would be entitled to 1/9th share each and the plaintiffs together would be entitled to 1/9th share in the suit properties. Since the properties covered under Ext. B & C were sold by Kalandi’s branch, those properties shall be in¬cluded in the 1/3rd share of Kalandi’s branch and after excluding these lands, the rest lands out of Kalandi’s branch is to be divided among the plaintiffs and defendants Nos. Since the properties covered under Ext. B & C were sold by Kalandi’s branch, those properties shall be in¬cluded in the 1/3rd share of Kalandi’s branch and after excluding these lands, the rest lands out of Kalandi’s branch is to be divided among the plaintiffs and defendants Nos. 5 and 6 as indicated supra. 12. So far as the compensation of Rs.12,000/- awarded in favour of Subarna in the motor vehicle claim cases, there is no dispute that the said amount was received by plaintiff No.1. The explanation of the plaintiff No.1 in her evidence is that she spent considerable amount in the marriage of defendant No.6 and obsequies ceremony of Braja and also repaid some loans to the Land Development Bank and so, she was entitled to the entire awarded amount and the defendants cannot claim any share in the same. In other words, plaintiff No.1 claimed that the awarded amount was spent for the welfare of the family and therefore, the defendants cannot get any share in it. Though plaintiff No.1 claimed to have made expenditure for the family, she could not produce any document, money receipt or supporting evidence. Therefore, the learned trial Court rightly observed that the claim amount needs to be distributed amongst the heirs of Subar¬na, namely, defendant Nos.5 and 6 and plaintiffs. However, the apportionment made by the learned trial Court appears to be defective as each of defendant Nos.5, 6 and plaintiffs together were entitled to 1/3rd share in that amount. So, the plaintiff No.1 is liable to give Rs.4,000/- to each of the defendant Nos.5 and 6. 13. In view of the foregoing discussions, the judgment and decree of the learned trial Court for partition is confirmed with the above noted modification. Consequently, the appeal is allowed in part, but in the above noted circumstances parties shall bear their own cost in this appeal. Appeal allowed in part.