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2013 DIGILAW 387 (ORI)

Anirudha Das v. Ranjit Prasad Das

2013-09-16

RAGHUBIR DASH

body2013
JUDGMENT Raghubir Dash, J. 1. Being aggrieved by the judgment and decree dated 17.7.1999 and 28.7.1999 passed by the learned Civil Judge (Senior Division), Bhadrak in T.S. No. 147 of 1994-I the defendant No. 1 before the learned lower Court has preferred this appeal only against the lower Court's direction for partition of schedule 'Chha' property. The suit is for partition. Plaintiffs in the suit are respondent Nos. 1 to 6 herein. They filed the suit claiming 1/5th share in plaint schedule 'Kha' to 'Chha' properties. However, the learned lower Court held schedule 'Kha' (except Lot No. 7) and 'Cha' property to be self acquired property of late Amarnath, the father of the present appellant and directed all other plaint schedule properties, including schedule 'Chha', to be partitioned allowing 1/5th share to each of the branches of late Bhagabat, the common ancestor. But, as already indicated, the present appeal is confined to schedule 'Chha' property which is described as homestead land measuring Ac.0.25, appertaining to Plot No. 434 under Khata No. 216 of Mouza Naripur situate in Bhadrak town. 2. The plaint genealogy is not in dispute. Late Bhagabat Prasad Das is the common ancestor of the contesting parties. He died in 1965. Late Bhagabat Prasad Das had five sons: Karunakar (P.7), Dhaneswar (P.16), Amarnath, Batakrushna and Natabar (all the three were dead as on the date of filing of the suit). P.1 to P.6 are the successors-in-interest of late Natabar. P.8 to P.15 are the successor-in-interest of late Batakrushna and D.1 and D.2 are the son and widow, respectively, of late Amarnath. D.2 died during pendency of the suit. D.3 to 13 are purchasers of some lands from late Batakrushna Das. D.3 to 13 have been arrayed as parties on the allegation that they have purchased some properties from late Batakrushna Das (But, those properties are not from out of the plaint schedule 'Chha'). 3. Plaintiffs' case is that late Bhagabat was having business in Calcutta. Out of the income from his business he acquired all the properties described in the plaint schedules 'Kha' to 'Chha'. So far plaint schedule 'Chha' property is concerned, it is claimed that since Bhagabat was mostly staying at Calcutta it was his son Karunakar who negotiated with one Pranakrushna Panda to purchase schedule 'Chha' land and Bhagabat agreed to advance the money needed for the sale transaction. So far plaint schedule 'Chha' property is concerned, it is claimed that since Bhagabat was mostly staying at Calcutta it was his son Karunakar who negotiated with one Pranakrushna Panda to purchase schedule 'Chha' land and Bhagabat agreed to advance the money needed for the sale transaction. In November 1946, during the absence of Karunakar, father Bhagabat sent his son Amarnath to get the deed registered at Chandabali since the wife of said Pranakrushna Panda, namely, Laxmi Devi was then residing at Chandabali. Thus, 'Chha' schedule property was purchased with the money supplied by the father Bhagabat. After acquisition of the land, and some time in 1948 Bhagabat constructed a thatched house with brick-walls on that land. Whenever he came to Bhadrak he used to stay in that house. Dhaneswar (P.16) while reading in Bhadrak College was also residing in that house. Later on Karunakar (P.7) used to stay in that house as he was a practicing lawyer in Bhadrak. During 1967-1972, while he was carrying on his political activities, he built a pucca house on 'Chha' schedule land out of his own funds. Thus, the schedule 'Chha' property has always been enjoyed as part of the joint family property. It is also claimed that the holding of N.A.C., Bhadrak in respect of the 'Chha' schedule property stands in the name of Karunakar who pays tax for the said holding. The land stood recorded at the yadast stage of major settlement in the name of Bhagabat which, after the death of Bhagabat, was corrected and again it was corrected after the death of Amarnath. That apart, Karunakar had leased out the pucca house and the thatched house for 10 years under a registered deed and subsequently brought a suit for eviction in the Court of the Sub-Judge, Bhadrak and obtained a decree which has been put to execution for eviction. That apart, the land has been settled to rent in the names of the contesting parties by the Tahasildar, Bhadrak. 4. In their written statement contesting Defendant Nos. 1 and 2 have pleaded that Bhagabat, after separation from his brother co-sharers, was managing his family with few acres of land and as the income therefrom was inadequate to meet the family requirement he proceeded to Calcutta to start business. Thereafter, he started a brick-kiln business at Bhadrak. 4. In their written statement contesting Defendant Nos. 1 and 2 have pleaded that Bhagabat, after separation from his brother co-sharers, was managing his family with few acres of land and as the income therefrom was inadequate to meet the family requirement he proceeded to Calcutta to start business. Thereafter, he started a brick-kiln business at Bhadrak. He gave his son Amarnath in marriage with the adopted daughter of one Purna Chandra Das who was a very reach businessman. In the marriage that was held in 1942 the said Purna Chandra Das gifted heavy cash and gold ornaments weighing one seer as gift. Bhagabat, for future prosperity, sold a major portion of the gold ornaments and developed ISPHANI Tea Company at Calcutta. At the same time, Amarnath started his own business by selling 30 tolas of gold of his wife to invest in his business. He acquired landed property from time to time. He purchased truck, started contractory and undertook money lending business from 1944 and earned good profit. As his business spread throughout Bhadrak Sub-division, he decided to purchase some land in Bhadrak town. Finding 'Chha' schedule land to be suitable, he purchased the same from one Laxmi Devi, wife of Pranakrushna Panda for a consideration of Rs. 800/- paid from his own income and it was to the knowledge of his father and other brothers. He filled up the land with earth and constructed a thatched house in 1947 and some years thereafter he constructed some pucca rooms and let them out to different tenants. After the death of Amarnath his widow entrusted the settlement as well as other affairs relating to Amarnath's immovable property to Karunakar (P.7) who was a practising Advocate. Taking advantage thereof Karunakar managed to record the 'Chha' schedule land in the name of all the sons of Bhagabat. Against such wrong recording, O.E.A. Appeal No. 6 of 1994 has been preferred and it is still subjudice before the Sub-Collector, Bhadrak. As regards the plaint averments that Karunakar had leased out the shop rooms standing over 'Chha' schedule land, it is the case of these defendants that Karunakar had never leased out the shop rooms and that the lease deed, if any, is a mere paper transaction and the suit as well as the eviction proceeding are collusive in nature. 5. As regards the plaint averments that Karunakar had leased out the shop rooms standing over 'Chha' schedule land, it is the case of these defendants that Karunakar had never leased out the shop rooms and that the lease deed, if any, is a mere paper transaction and the suit as well as the eviction proceeding are collusive in nature. 5. In respect of schedule 'Chha' land the learned lower Court framed Issue No. 10 as follows: Is the suit 'Chha' schedule land self-acquired property of Amarnath or is it liable to be partitioned? 6. Considering the evidence adduced by the parties and analyzing the same, the learned trial Court ultimately held that schedule 'Chha' land is not the self-acquired property of Amarnath but it was acquired out of the nucleus of the joint family property. While appreciating the evidence on record, the learned trial Court observed that the original sale deed in respect of 'Chha' schedule land was produced from the custody of Karunakar (P.7). It was further observed that the contesting defendants failed to bring on record materials like Amarnath's money lending business, Contractor's license and other papers showing that he was having his independent business at the relevant time. It is also observed that one Susanta, who is having a shop on 'Chha' schedule land and claimed to have been inducted by D.1, was not examined to support the contention that the shop rooms standing on 'Chha' schedule land have been let out by D.1. Relying on the M.S.R.O.R. of the year 1986 (Ext.2) showing that 'Chha' schedule property was jointly recorded as Bebandabasti in the names of all the heirs of Bhagabat, together with the judgment of the suit for eviction filed by Karunakar and the order passed in the Execution Case arising therefrom and some other documents, the learned trial Court held that it was Karunakar who had let out the shop rooms standing on the schedule 'Chha' land. Relying on a series of letters marked Exts.9 to 18 written by D.1, the learned trial Court held that D.1 admitted in those letters that 'Chha' schedule property is joint family property. 7. The findings of the learned lower Court are challenged mainly on the following grounds: (1) Learned lower Court has failed to appreciate the evidence in its proper prospective. 7. The findings of the learned lower Court are challenged mainly on the following grounds: (1) Learned lower Court has failed to appreciate the evidence in its proper prospective. (2) The onus is on the plaintiffs to establish that 'Chha' schedule property was acquired from the funds of the joint family but the learned lower Court placed the onus on the appellants. (3) The property having been purchased in the name of Amarnath, the learned lower Court, in the absence of evidence to show that the property was acquired from joint nucleus or that the property was thrown into the joint stock, ought to have held that it was the self-acquired property of Amarnath. 8. The law is well settled that while a property is in the name of a member of a joint Hindu Family, there is no presumption that it has become joint family property. The burden of proving any particular item of property as joint primarily rests on the plaintiff. But where it is established that there was a nucleus of joint family property and that nucleus was such that it might have contributed to the property claimed to be self acquired, the onus shifts on to the person who claims the property as self-acquisition to affirmatively establish that the property was acquired without any aid from the joint family. Hindu law does not prohibit a member of a joint family from acquiring any property for his own benefit. Unless it can be shown that the property was acquired with the aid of the joint family, the property so acquired by individual member does not become joint family property (Mst. Rukhmabai v. Lala Laxminarayan & others, AIR 1960 SC 335 ). Therefore, the first thing to be considered is as to whether there is pleading and evidence to show that the joint family of Bhagabat had a nucleus of joint family property and whether it was such that it might have contributed to the 'Chha' schedule property acquired in the name of Amarnath. 9. It is not in dispute that Bhagabat had got some landed property in a partition taking place amongst his brothers in or around 1935. According to the plaintiffs he got four acres and according to D.1 he got two acres of land in the partition. It is also admitted by the contesting defendants that Bhagabat had been in business at Calcutta since 1936. According to the plaintiffs he got four acres and according to D.1 he got two acres of land in the partition. It is also admitted by the contesting defendants that Bhagabat had been in business at Calcutta since 1936. It is also admitted by D.1 (D.W.1) that Bhagabat's widow Kokilamani had purchased 30 acres of land in between 1936 and 1953. According to the plaintiffs, Bhagabat had purchased 30 acres of land in the name of his wife. In the absence of materials showing that Kokilamani acquired the landed properties in her name from out of her Streedhan, it is to be presumed that it was Bhagabat who acquired the landed properties in his wife's name. It is also admitted by D.1 that two of the sons of Bhagabat, namely, Natabar and Dhaneswar used to assist his father in his business at Calcutta. Amarnath's marriage took place in or around 1943. It is claimed by D.1 that in the marriage one seer of gold, besides heavy cash, was gifted to Amar's wife. It is also claimed by D.1 that for future prosperity Bhagabat had sold a major portion of gold ornaments gifted to Amarnath's wife and invested the sale proceeds in his business in the name and style "ISPHANI Tea Company" at Calcutta. In the aforestated background, it is to be reiterated that schedule 'Chha' land was purchased in 1946-1947 for a consideration of Rs. 800/-. Considering the aforestated materials on record, there cannot be any doubt that the joint family headed by Bhagabat had a nucleus of joint family property which was sufficient for acquisition of schedule 'Chha' land. It appears, Bhagabat who was in business at Calcutta since 1936 and who had acquired about 30 acres of land in the name of his wife during the period 1936 to 1953, had amassed wealth from that business and added another business, i.e., business in Brick-kiln. 10. Therefore, the onus shifts on to the contesting defendants who claim the 'Chha' schedule property as self-acquisition to establish that the property was acquired without any aid from the joint family nucleus. According to the contesting defendants Amarnath's marriage took place in 1942 and in the year 1944 he started his own business after selling 30 tolas gold ornaments of his wife. According to the contesting defendants Amarnath's marriage took place in 1942 and in the year 1944 he started his own business after selling 30 tolas gold ornaments of his wife. Their further case is that in the year 1943 and 1945 he acquired Lot No. 7 of 'Kha' schedule and the land under 'Cha' schedule, respectively, by way of lease and thereafter in 1946 he acquired 'Chha' schedule land, all from his own income. Though D.1 has adduced oral evidence to the effect that his father Amarnath's marriage with the adopted daughter of Purna Chandra Das, a business tycoon, was solemnized in 1942 and in that marriage heavy cash and gold ornaments weighing one seer were given as gift and in the year 1943 Amarnath started his business by selling 30 tolas gold ornaments gifted in the marriage, save and except his oral evidence which is hearsay in nature inasmuch as all these incidents relates to the period which was prior to his birth, there is no other material showing that such huge gift was, in fact, given in the marriage. D.W.1 admits that Purna Chandra Das had a natural born daughter and two sons. It is also admitted that D.2, wife of late Amarnath was the daughter of Purna Chandra's brother. Plaintiffs have denied that D.2 was the adopted daughter of Purna Chandra. Since Purna Chandra had one natural born daughter, it is difficult to readily accept the defendant's contention that D.2 was the adopted daughter of Purna Chandra and in the marriage of D.2 heavy cash and gold ornaments weighing one seer were gifted by Purna Chandra. It is admitted by D.W.1 that at the time of his making deposition before the learned lower Court, Purna Chandra's widow and sons were alive. But, to a specific question put to him in cross-examination he replied that he would not examine either Purna Chandra's widow or his sons as his witness. Therefore, adverse inference can be drawn against D.1 and 2 to the extent their defence plea relates to the huge gift alleged to have been given at the time of Amar's marriage. Therefore, it is difficult to believe that soon after his marriage, Amarnath started his own business selling 30 tolas of gold ornaments of his wife. Therefore, adverse inference can be drawn against D.1 and 2 to the extent their defence plea relates to the huge gift alleged to have been given at the time of Amar's marriage. Therefore, it is difficult to believe that soon after his marriage, Amarnath started his own business selling 30 tolas of gold ornaments of his wife. D.1 in his deposition has expressed his inability to adduce any documentary evidence in support of his defence plea that his father was a licensed Contractor and that he had money lending business and that he had vehicles for being used in his business. Therefore, the learned trial Court has rightly drawn adverse inference for non-production of any such evidence. Thus, it is found that D.1 and 2 have failed to affirmatively establish that late Amarnath started his own business in or around 1943 and used to earn income on his own. 11. Admittedly, 'Chha' schedule property was purchased in the name of Amarnath in the year 1947 for a consideration of Rs. 800/-. According to the plaintiffs, the consideration amount was paid by Bhagabat, Amar's father, and the property was intended to be acquired for the joint family of Bhagabat. There is no evidence, save and except oral evidence of P.W.1, that Bhagabat had paid the consideration for the land shown in schedule 'Chha'. But that is not a piece of direct evidence. P.W.1 has not claimed to have got direct knowledge about the source from which the money came. However, evidence has been adduced by the plaintiffs showing that soon after acquisition of the land the members of the joint family started enjoying it as the property of the joint family. But that is not a piece of direct evidence. P.W.1 has not claimed to have got direct knowledge about the source from which the money came. However, evidence has been adduced by the plaintiffs showing that soon after acquisition of the land the members of the joint family started enjoying it as the property of the joint family. P.W.1, who is one of the sons of Bhagabat, has deposed to the effect that soon after acquisition of schedule 'Chha' land, his father constructed a brick-wall house with a thatched roof over a portion of 'Chha' schedule land in the year 1947, that Dhaneswar, another son of Bhagabat, used to reside in that house while he was prosecuting his study in Bhadrak College, that in the year 1966 the witness himself made construction of one pucca-house up to lintel level consisting of four rooms on a part of 'Chha' schedule land spending his own money in order to have his own accommodation at Bhadrak whereto he was coming very often in connection with his practice as a lawyer and also to carry on his political activities, that in the year 1984 the witness let out the premises of 'Chha' schedule along with the thatched house and the half-constructed pucca-house to one Laxmi Narayan Mohapatra for a period of 10 years under a registered lease deed, that when the said tenant defaulted in making payment of rent, the witness filed a suit in the Court at Bhadrak for eviction and for realization of arrear rent which was decreed in his favour on contest and then he put the decree to execution and got delivery of possession during the pendency of this suit. In this regard the defence plea is that Karunakar in collusion with Laxmi Narayan filed a collusive suit for eviction and all other proceedings arising out of the eviction suit are collusive in nature. But there is no evidence, either direct or circumstantial, to support this contention. Ext. 3 is a certified copy of the judgment passed in the suit for eviction (T.S. No. 431 of 1986) filed by Karunakar against Laxmi Narayan. Ext. 4 is a certified copy of the judgment passed in the Title Appeal arising out of the judgment vide Ext. 3. During pendency of the suit for eviction the tenant Laxmi Narayan had preferred a Civil Revision before this Court and Ext. Ext. 4 is a certified copy of the judgment passed in the Title Appeal arising out of the judgment vide Ext. 3. During pendency of the suit for eviction the tenant Laxmi Narayan had preferred a Civil Revision before this Court and Ext. 5 is certified copy of the order dated 11.5.1990 passed in the Civil Revision No. 56 of 1990. Ext. 7 is certified copy of warrant issued in the Execution Proceeding arising out of the eviction suit and Ext. 8 is the receipt obtained from the decree holder acknowledging delivery of possession. D.W.2 has admitted in his cross-examination that Laxmi Narayan Mohapatra is in possession of one room standing on schedule 'Chha' land. Save and except the bald allegation of collusion between Karunakar and Laxmi Narayan there is nothing on record to disbelieve the plaintiffs' case that Karunakar had inducted Laxmi Narayan as a tenant in respect of a portion of the building standing on schedule 'Chha' land. P.W.1 has deposed to the effect that D.9 and 10, sons of Batakrushna Das and grandsons of Bhagabat, had filed O.S. 312 of 1990 in the Court of Munsif, Bhadrak against him challenging the lease deed that he had executed in favour of said Laxmi Narayan Mohapatra in respect of schedule 'Chha' land and in that suit D.1, son of Amarnath, was a defendant who had appeared in that suit along with other defendants. This assertion is not denied by the contesting defendants even by putting a suggestion to P.W.1 that the assertions are false or incorrect. He has further stated that the holding of the premises consisting of 'Chha' schedule stands in his name in Bhadrak Municipality and the holding tax is being paid by him. He has further stated that when the Municipality tax was increased and a Certificate Case was initiated against him, he preferred an appeal before the A.D.M. which was allowed in his favour and the enhanced rent was ultimately cancelled. In support of this contention, plaintiffs have exhibited certified copy of the order passed in Municipal Appeal No. 1 of 1990. It reflects that on the application of Karunakar challenging the notice demanding holding tax etc. at higher rate, the appeal was registered and ultimately order was passed declaring the impugned notice as inoperative and unenforceable. In support of this contention, plaintiffs have exhibited certified copy of the order passed in Municipal Appeal No. 1 of 1990. It reflects that on the application of Karunakar challenging the notice demanding holding tax etc. at higher rate, the appeal was registered and ultimately order was passed declaring the impugned notice as inoperative and unenforceable. It is admitted by D.W.1 that the Municipality taxes for the 'Chha' schedule property are being paid by Karunakar (P.7) and that Karunakar had filed objection challenging demand of higher taxes by the Municipality. He has further stated that during the yadast stage of major settlement operation, the land was recorded in the name of Bhagabat and, subsequently, the M.S.R.O.R. was issued in the names of all the L.Rs. of Bhagabat showing the 'Chha' schedule land recorded in their names under Bebandabasta khata. He has further stated that D.1, jointly with other L.Rs. of Bhagabat, had made an application for settlement of the 'Chha' schedule land on all of them. D.1, as D.W.1, has taken the plea that his signature and the signature of his mother appearing in the application filed jointly for recording of the 'Chha' schedule land have been forged. However, he has admitted that in the M.S.R.O.R. 'Chha' schedule land was recorded under Bebandabasta Khata in the names of all the L.Rs. of Bhagabat. Further plea taken by the contesting defendants is that since they had entrusted all their property documents with Karunakar (P.7), who was an Advocate, to oversee the litigation side on their behalf, their signatures were obtained on blank sheets of paper which might have been used by Karunakar while making applications for joint recording of the land. Thus, it is indirectly admitted that some applications were filed for joint recording of 'Chha' schedule land and D.1 and D.2 have put their signatures in those applications. The plea that their signatures were forged is not substantiated by any other evidence. D.W.2 admits that one Susanta Jena has a cattle feed shop in the premises of schedule 'Chha'. P.W.1 has claimed that he had inducted Susanta Nayak, Natabar Mohanty and Laxmi Narayan Mohapatra as tenants in respect of the schedule 'Chha' premises. The contesting defendants do not claim that schedule 'Chha' premises is in their exclusive possession. They do not deny that there are shop rooms in schedule 'Chha' premises let out to tenants. P.W.1 has claimed that he had inducted Susanta Nayak, Natabar Mohanty and Laxmi Narayan Mohapatra as tenants in respect of the schedule 'Chha' premises. The contesting defendants do not claim that schedule 'Chha' premises is in their exclusive possession. They do not deny that there are shop rooms in schedule 'Chha' premises let out to tenants. Not a single tenant has been examined on behalf of the contesting defendants to depose in their support stating that they have been inducted by the contesting defendants. 12. Ext. 9 to 17 are a series of letters relied on by the plaintiffs. D.1 admits all those letters except one marked as Ext. 14. Learned lower Court compared the purported signature of D.1 appearing in Ext. 14 with other signatures of D.1 which are available on record and came to a finding that Ext. 14 has been signed by D.1. Ext. 14 is the most important of all the letters because in Ext. 14 there is clear mention that the property at Bhadrak belongs to five shareholders. If Ext. 14 is accepted to be a letter written by D.1 then it would provide a strong piece of corroborative evidence supporting the plaintiffs' stand on schedule 'Chha' property. When D.1 denied to have put his signature on Ext. 14 which is a type-written letter, whereas all other letters are hand-written, the plaintiffs ought to have made a request to the Court to send the letter to a handwriting expert. I have made a comparison of the signature appearing on Ext. 14 with the admitted signature of D.1 appearing in another letter marked Ext. 15 and some other signatures of D.1 available on record and find that there is no such semblance as to jump to a conclusion that the former tallies with the letters. Therefore, it is not safe to rely on Ext. 14. Prudence demands that the Court should be extremely slow in venturing an opinion on the basis of mere comparison (State of Maharashtra v. Sukhdeo Singh and another, AIR 1992 SC 2100 ). These letters were exhibited through P.W.2. He has claimed that the purported signature of D.1 appearing on Ext. 14 is D.1's signature. In his cross-examination, he had stated that D.1 had never sent any letter to him. He has not explained as to how he is acquainted with the signature of D.1. Thus, the disputed signature marked Ext. These letters were exhibited through P.W.2. He has claimed that the purported signature of D.1 appearing on Ext. 14 is D.1's signature. In his cross-examination, he had stated that D.1 had never sent any letter to him. He has not explained as to how he is acquainted with the signature of D.1. Thus, the disputed signature marked Ext. 14/a appearing on Ext. 14 cannot be said to be duly proved by P.W.2. However, one of the series of letters, marked as Ext. 17, gives an indication that D.1 admits the house property at Bhadrak to be a part of the joint family property. In Ext. 17, D.1 has expressed his opinion that the joint family house at Calcutta should be divided in five equal shares and that the same principle should be made applicable to the house at Bhadrak. It is not on record that the parties have any house at Bhadrak other than the house standing on schedule 'Chha' land. Therefore, it is to be presumed that the house at Bhadrak referred to in Ext. 17 is with reference to the house standing on schedule 'Chha' land. 13. The above analysis of evidence available on record drives me to arrive at a conclusion that schedule 'Chha' property used to be treated as part of joint family property. Learned counsel for the appellant argues that from the mere fact that other members of the family were allowed to use 'Chha' schedule property, abandonment of separate claim cannot be inferred. In support of this contention, he has cited the decision in Lakkireddi Chinna Venkata Reddi and others v. Lakkireddi Lakshmama, reported in AIR 1963 SC 1601 . The observations relied on by the learned counsel for the appellant is quoted hereunder: Law relating to blending of separate property with joint family property is well settled. Property separate or self-acquired of a member of a joint Hindu family may be impressed with the character of joint family property if it is voluntarily thrown by the owner into the common stock with the intention of abandoning his separate claim therein: but to establish such abandonment a clear intention to waive separate rights must be established. Property separate or self-acquired of a member of a joint Hindu family may be impressed with the character of joint family property if it is voluntarily thrown by the owner into the common stock with the intention of abandoning his separate claim therein: but to establish such abandonment a clear intention to waive separate rights must be established. From the mere fact that other members of the family were allowed to use the property jointly with himself, or that the income of the separate property was utilized out of generosity to support persons whom the holder was not bound to support, or from the failure to maintain separate accounts, abandonment cannot be inferred, for an act of generosity or kindness will not ordinarily be regarded as an admission of a legal obligation. It is true that Butchi Tirupati who was one of the devisees under the will of Venkata Konda Reddy was a member of the joint family consisting of himself, his five brothers and his father Bala Konda. It is also true that there is no clear evidence as to how the property was dealt with, nor as to the appropriation of the income thereof. But there is no evidence on the record to show that by any conscious act or exercise of volition Butchi Tirupati surrendered his interest in the property devised in his favour under the will of Venkata Konda Reddy so as to blend it with the joint family property. In the absence of any such evidence, the High Court was, in our judgment, right in holding that Lakshmama was entitled to a fourth share in the property devised under the will of Venkata Konda Reddy. 14. The evidence discussed herein-before clearly proves that 'Chha' schedule property though purchased in the name of Amar, was voluntarily thrown into the common stock. There is absence of evidence to show that Amarnath or his heirs had any intention of retaining their separate rights in the said property. The facts that Bhagabat and Karunakar had raised construction over schedule 'Chha' land, that the holding stands recorded in the name of Karunakar and holding tax etc. There is absence of evidence to show that Amarnath or his heirs had any intention of retaining their separate rights in the said property. The facts that Bhagabat and Karunakar had raised construction over schedule 'Chha' land, that the holding stands recorded in the name of Karunakar and holding tax etc. is paid by Karunakar, that Karunakar had inducted tenants into the shop rooms existing on 'Chha' schedule land, that D.1 and 2 joined with other members of the joint family to make a joint application for settlement of the land on all the heirs of Bhagabat, and that D.1 has given indication in his letter marked Ext. 17 that their house at Bhadrak should also be subjected to partition are sufficient to come to a conclusion that 'Chha' schedule property was always being enjoyed by the heirs of Bhagabat as a part of their joint family property and neither Amar, nor his widow nor his son did anything with respect to schedule 'Chha' property showing that they had the intention to exercise their separate rights in respect of the property. Therefore, the learned trial Court has rightly come to a conclusion that schedule 'Chha' property is liable for partition. 15. It is argued on behalf of the learned counsel for the appellant that since Lot No. 7 of 'Kha' schedule and the land in 'Cha' schedule were acquired by Amar in 1943 and 1945 respectively, which are ultimately accepted to be his self-acquired property, it can be safely said that in the year 1946 Amarnath could afford to pay Rs. 800/- as consideration for 'Chha' schedule land. As already discussed, there is no evidence as to what is the source from which the consideration amount in respect of 'Chha' schedule land was paid but in respect of 'Chha' schedule land the parties have adduced separate set of evidence basing on which it can be concluded that the 'Chha' schedule property was being treated as the joint family property. Therefore, the submission made by the learned counsel is found to be not acceptable. 16. Therefore, the submission made by the learned counsel is found to be not acceptable. 16. Here it is pertinent to mention that in respect of 'Chha' schedule land the Revenue Officer-cum-Tahasildar had initiated suo motu Case No. 1560 of 1991 under the Orissa Estate Abolition Act in which the appellant and his mother claimed that 'Chha' schedule land should be recorded in the name of the appellant but the learned Tahasildar passed order vide Ext. 42 directing the suit land to be recorded jointly in the names of the legal heirs of Bhagabat. Against that order the appellant preferred OEA Appeal No. 6 of 1994 and the learned Sub-Collector, Bhadrak vide his order under Ext. 41 held the Appeal to be not tenable. Thereafter, the appellant preferred OEA Revision Case No. 84 of 2002 in which the learned Member, Board of Revenue, Orissa, Cuttack passed order on 15.3.2008 setting aside the orders passed by the learned Tahasildar and the learned Sub-Collector and directed that 'Chha' schedule land be settled only with the appellant. Against the order passed by the learned Member, Board of Revenue, the respondents have moved this Court in W.P. (C) No. 4246 of 2010 which is still pending. Since there are no pleadings on the OEA matters and since the same are the subject matter of W.P. (C) No. 4246 of 2010, it is not necessary to entertain the argument advanced by the learned counsels on the OEA matters. In view of the observations made above, the First Appeal stands dismissed on contest and the judgment and decree of the learned lower Court in respect of schedule 'Chha' land is confirmed. There shall be no order as to cost. Appeal dismissed.