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2014 DIGILAW 633 (ORI)

Antaryami Behera v. Dinakrushna Behera

2014-09-25

D.DASH

body2014
JUDGMENT D. DASH, J. : The unsuccessful defendant No.1 and 2 as the appellants have filed this appeal challenging the judgment and decree passed by learned Sub-ordinate Judge, Baripada (as it was then) decreeing the suit of the plaintiff. (Respondent No.1) in part by passing the preliminary decree allotting one fourth share in Schedule-B property to respondent No.1 (plaintiff), appellant No.1 and 2 (defendant No.1 and 2 each and three tenth share from the Schedule-C, D and D-1 properly and further allotting one fourth share from Schedule-B and one tenth share from Schedule-C and D and D-1 properties to the respondent No.3 (defendant No.3). 2.For the sake of convenience, to bring clarity and to avoid confusion, the parties herein after have been referred to as they have been arrayed in the Court below. 3.The case of the plaintiff is that the parties are governed by Mitakhara School of Hindu Law. One Haguru Behera is their common ancestor. He died in the year 1970 leaving behind widow Hiramani who died in 1983, and three sons such as the plaintiff, defendant No.1 and defendant No.2, two daughters defendant No.3 and ne Damayanti, who shortly after marriage in the year 1973 left her husband’s house and went away somewhere having got affected with leprosy and her whereabouts remained unknown for a more than seven years. So she is said to have met civil death, leaving no son or daughter. It is stated that Schedule-B property belonging to Hiramani and it stood recorded in her name; Schedule-C property originally elonged to Mali Bewa, the maternal grandfather of the plaintiff who sold it to the plaintiff by registered sale deed dated 17.03.1948 where-after in mutation case No.762 of 1948-49, it was so recorded in the name of plaintiff on the strength of the said purchase. Schedule-C property is said to be the joint family property of plaintiff, defendant No.1, 2 and their father Haguru. Subsequently in mutation case No.776 of 1953-54 it was recorded in the name of defendant No.1 and 2 under misconception of the fact as alleged though their names ought to have been recorded along with plaintiff and their father Haguru. Schedule-C property though was recorded only in the name of defendant No.1 and 2, it was possessed and enjoyed by them alongwith plaintiff and Haguru. Schedule-C property though was recorded only in the name of defendant No.1 and 2, it was possessed and enjoyed by them alongwith plaintiff and Haguru. It is stated that by the time it was purchased, the plaintiff was carrying on sundry business having good earning and Haguru was a teacher at one Chatasali having little income of his own. When the defendant No.1 and 2 were minors and the dependent upon the income of the plaintiff, with the help of his hard earned money, the plaintiff constructed a building over the Schedule-B and C land and the building consists of five rooms with front verandah which was completed in the year 1960. It is further stated that two more rooms and kitchen were added and the old latrine being constructed by the plaintiff existing till now with a ring well constructed later on. Schedule-D-1 properties are said to be the paternal property standing in the name of Hagauru. In the current settlement, it has been recorded in the name of the plaintiff, defendant No.1 and 2. The land described in Scheduled of the plaint originally belonged to one Padru Majhi. During life time Haguru purchased it orally from the Padru in the year 1939 on payment of consideration of Rs.30/- accompanied by delivery of possession and he began to possess the same as of right till his death. After his death, the plaintiff, defendant 1 and 2 are said to in peaceful possession of the same. It has been currently recorded in the settlement wrongly in the name of one Bhunda Majhi, the father and husband of defendant No.4 and 5 respectively with the note of possession in favour of plaintiff, the defendant No.1 and 2. Since Bhunda Majhi is dead leaving his son defendant No.4 and his widow defendant No.5, they have been included as parties in the suit. But defendant No.4, 5 and Bhunda are said to be having no right, title, interest and possession over the suit plot. It is further stated that during the year 1955, the plaintiff left his business, and served under State Government, worked under Revenue Department. When dispute between himself and his parents in the year 1956 came to such a height that he was compelled to reside in a rented house at the place of his service. It is further stated that during the year 1955, the plaintiff left his business, and served under State Government, worked under Revenue Department. When dispute between himself and his parents in the year 1956 came to such a height that he was compelled to reside in a rented house at the place of his service. It also the case of the plaintiff that for the first time in the year 1947-48, he was appointed as bhakta and was given 4-8-12-0 Gunth of land towards bhakta jagir. Those being his separate and self acquired property, he used to cultivate the same. Subsequently with the help of his savings, he purchased a piece of homestead land in Ward No.VII of Baripada town and constructed a house thereon, side by side incurring some loan from Urban Cooperative Bank, Baripada. The aforesaid bhakta jagir land was later on converted to assault rayati land in O.A. case No.38 of 1971. One Hari Behera got it recorded in his name fraudulently without being appointed as bhakta. In Revenue mutation No.197 of 1958 which was initiated at the instance of the plaintiff that bhakta jagir land again was recorded in his name and at that time the defendant Nos. 1 to 3 did not raise any objection. Since then the plaintiff has been performing the duty as a bhakta which has also been so recognized and recorded during consolidation in the year 1976. Further, on the death of Hiramani, the Schedule-B land was inherited by the plaintiff, defendant No.1 to 3 in three equal shares. In Schedule-C property, the plaintiff, defendant No.1 and defendant No.2, they have got 1/3rd share each since it was not the paternal property. But Schedule-D and D-1 properties being paternal property, the plaintiff, defendant No.1, 2 and 3 inherited those in equal shares. It is stated that the deceased mother of the plaintiff was all along residing with the defendant No.1 and 2 since 1955 and as she used to love them very much, both of them taking advantage of such relationship obtained fictitious sale deed with respect to Schedule-B land without payment of any consideration and by excise of undue influence. The aforesaid sale deed is a sham transaction without creation of title in favour of the defendant No.1 and 2. The aforesaid sale deed is a sham transaction without creation of title in favour of the defendant No.1 and 2. According to the case of the plaintiff, the mother of the plaintiff did not incur any loan and she had absolutely no necessity for sale of the same. Defendant No.1 and 2 both were cultivating Schedule-D and D-1 property and maintaining their mother. Over and above, the mother was also collecting house rent from the tenants for the occupation of the building as describing Schedule-D. Further, it is stated that the suit properties have never been partitioned previously. It is the case of the plaintiff that on 26.01.1986; he approached the defendant No.1 to 3 for amicable partition and as they did not pay any heed to it, he had to so he had to institute the suit. 4.It may be stated that defendant No.3, 4 and 5 did not contest the suit and have been set ex parte. So also is their position in this appeal. The defendant No.1 and 2 filed a joint written statement. While traversing the plaint averments, it is stated that maternal grand father Govinda Behera had some jagir land. One Hari Behera was cultivating their land performing as bhakta on behalf of their parents. After death of Govinda, father of defendant Nos.1 and 2 took steps to have those lands recorded in the name of some of the members of the family and it was so recorded in the name of the plaintiff only for and on behalf of the family. It is asserted that the joint family possessed the bhakta jagiri land and according to their case each co-sharer has got interest therein. It is stated that on 10.04.1952, the plaintiff without knowledge and consent of the deceased father and by exercise of undue influence upon his mother mortgaged schedule-B and C land for sum of Rs. 1000/- and misappropriated the entire amount. Subsequently there arose dispute between the plaintiff and his father in connection with the said mortgage as it invited burden to the family. The plaintiff remained adamant and severed all connection with the family. This actually gave rise to an occasion for the parties to sit for a mutual family arrangement in presence of local gentlemen in the year 1953. Subsequently there arose dispute between the plaintiff and his father in connection with the said mortgage as it invited burden to the family. The plaintiff remained adamant and severed all connection with the family. This actually gave rise to an occasion for the parties to sit for a mutual family arrangement in presence of local gentlemen in the year 1953. The case of the defendants is that in the said family arrangement, the plaintiff got bhakta jagir land and it was decided that he would not advance any claim over any other property of the family and in turn the father would liquate the aforesaid mortgage amount of Rs.1000/- alongwith the interest. In the said family arrangement, it was further decided that Schedule-C property would be of defendant No.1 and 2. It is though said to be an oral arrangement, but has been duly acted upon and in the result, the defendant No.1 and 2 and their parents lived in a coparcenary to the exclusion of the plaintiff who separated himself and rest constituting the coparcenary began to own and possess exclusively the said suit property. It is also stated that the plaintiff was a minor in 1948, and was having no income of his own. He had built a house in mandira sahi and has been staying there since about last 25 years having no connection with the family of defendant No.1 and 2 and their parents or with the suit land. The defendant No.1 joined in Government service in 1961 so also the defendant No.2 in 1969. Their father had built only two rooms and verandah. All other constructions in Schedule-B and C lands have been made by defendant No.1 and 2. Apart from it, in 1958 just small edging of two rooms were added to the other two rooms which were existing, partly made from the income of their mother who was carrying on business of selling parched rice (mudhi as locally called) and fried whole gram etc. According to the case of these defendants about 40 years back Haguru acquired property described in Schedule-D in an auction and possessed the same and after his death, defendant No.1 and 2 possessed the same exclusively. So it was not recorded in the name of the plaintiff along with themselves. According to the case of these defendants about 40 years back Haguru acquired property described in Schedule-D in an auction and possessed the same and after his death, defendant No.1 and 2 possessed the same exclusively. So it was not recorded in the name of the plaintiff along with themselves. They further state that the plaintiff left the house in 1953 after partition and again in the year, 1955 returned and wanted to stay in the house as described in Schedule-E. At that point of time he was not so allowed and was ousted as he had no claim. As per their case, mother Hiramani validly sold Schedule-B property to them by execution of sale-deed dated 21.07.1980 for legal necessary on receipt of full consideration. Since then they have become absolute owners having exclusive possession over the same. They have also taken a plea that they have acquired indefeasible title over Schedule-C, D and D-1 land by way of adverse possession by possessing the same openly, peacefully, continuously ousting all others since 1955. An alternative claim has also been advanced hinting that the bhakta jagir land would have enured to their joint benefit in case of absence of family arrangement. With all these they prayed for non-suiting the plaintiff. 5.Placed with such rival pleading, the Court below framed altogether five issues. Issue No.1 relates to the maintainability between issue No.2 relates to the suit being barred by law of adverse possession. Factual aspects as placed in the rival pleadings have been considered in framing issue No.3 and 4. Issue No.3 is to the effect as to whether around the year 1953, there was complete partition between the plaintiffs on the one side and defendant No.1 to 3 and his parents on the other hand remaining in a coparcenary with respect to the rest of the property. Issue No.4 concerns as to whether the plaintiff has any partiable interest in schedule-B, C, D and D-1 properties. 6.The Court below as it appears first of all has taken up the issue No.3 and 4 for decision rightly stating that the fate of the suit rests upon the decision on of these two issues. 7.Considering the rival pleading and on analysis of the evidence, finally these two issues have been answered. The issue No.3 has been answered in negative and issue No.4 has been answerd in the affirmative. 7.Considering the rival pleading and on analysis of the evidence, finally these two issues have been answered. The issue No.3 has been answered in negative and issue No.4 has been answerd in the affirmative. Next taking up other issues practically the answer given on issue No.3 and 4 have prevailed upon. The Court below has disbelieved the case of defendant No.1 and 2 as regards he family arrangement as projected by them to have taken place in the year 1953 as also that there remains no such acceptable evidence that the parties acted in terms of said arrangement. Next on evidence it has also seen held that bhakti jagir land is the separate property of the plaintiff and it is not the joint family property for others to lay and claim. The sale deed, Ext.-B said to have been executed by Haramani, the mother of plaintiff in favour of defendant Nos.1 and 2 has been held to be unconscionable one and that has been held to be of no avail to the defendant Nos.1 and 2. In view of that Schedule ‘B’ property being that of mother Hiramani, the two sons and daughters (defendant Nos.1, 2 and 3) have been allotted 1/3rd share each whereas Schedule C, D and D-1 being the ancestral properties by application of the provision of Section 6 of Hindu Succession Act, 1955, when plaintiff, defendant No.1 and 2 have been allotted with 3/10th share, the defendant No.3 has been allotted with 1/10th share. 8.Learned counsel for the appellants (defendant No.1 and 2) has raised the following grounds in support of the appeal in challenging the judgment of the Court below :- (a)that the finding of Court below that there was no family arrangement is based on perverse appreciation of evidence. According to her, the overwhelming evidence as regards the family arrangement of the year 1953 have been ignored and filmsy grounds have been picked up to say that the same is not believable when also the evidence have been overlooked that it was wholly acted upon by the parties. So in that view of the matter, the partition having already taken place, the present suit for partition ought to have been dismissed. So in that view of the matter, the partition having already taken place, the present suit for partition ought to have been dismissed. (b)that the bhakta jagir lands ought to have been held to be joint family property as the settlement of the same ensures to the benefit of all the members of the family and therefore, it ought to have been held that it was rightly given to the plaintiff in that family arrangement of the year 1953; (c)that the trial Court’s finding that Ext.B, the sale deed is not a valid document and has not clothed the defendant No.1 and 2 with title is not only against the weight of evidence but also the settled position of law which have not been appreciated and applied in their proper perspective; (d)that the Schedule-C property being the exclusive property of defendant Nos.1 and 2 and on the basis of ROR, Ext.E, the Court below erred in law to bring it within the purview of partition as prayed for by plaintiff; (e)that the trial Court has erred in law in negating the case of ouster pleaded and proved by these defendant Nos.1 and 2. 9.Learned counsel for the respondent No.1 (plaintiff) placed the following submissions in support of the judgment impugned in this appeal :- (a)that in the case, the family arrangement of the year 1953 as pleaded by respondent No.1 and 2 has been rightly found to have not been proved when the evidence on that score of oral family arrangement is highly discrepant and when the conduct of the parties do not go to establish that it was wholly acted upon. Moreover, the very claim of defendant No.1 and 2 on the basis of sale deed Ext.B said to have been executed by their mother Hiramani runs wholly in conflict with their case of family arrangement as there was no necessity for it in that event. According to him such claims are contradictory and indirect conflict with one another; (b)that the bhakta jagir lands have been rightly held to be separate property of plaintiff when it has been found that plaintiff was rendering the service as bhakta since 1953 and when it is not the case that such service was previously being rendered by father or grandfather. According to him, the service though was initially performed by maternal grand father of the parties but after him another came to perform it and enjoy the property and thereafter when plaintiff did so, he enjoyed the property and got it ultimately settled in his name; (c)that the trial Court has rightly held the sale-deed Ext.B as invalid in the eye of law. According to him, that Hiramani was staying with the defendant No.1 and 2 and the document is a got up one without any consideration taking advantage of her age and relationship and abusing the trust and confidence reposed upon the defendant Nos.1 and 2 that it is to be approached with great suspicion when at in one breath it is said that there was family arrangement and completed partition, on the next this Ext.B is projected as the triumph card to keep that property out of the purview of partition. (d)that the plea of ouster has been rightly negatived as the pleadings are contradictory and when the very basis is not proved. The evidence on that score of that degree also do not surfaces. 10.On such rival submission, the defeasibility of findings of trial Court stands for examination. The defendant No.1 and 2 when plead that there was family arrangement in the year 1953, the Plaintiff stoutly denies it. Family arrangement is a well-recognized mode of distribution of Hindu joint family property. It need not always be reduced to writing. But when such a fact is disputed, the burden lies on the party who either stakes his claim on the basis of that or puts up the defence of said family arrangement to thwart the claim of adversary, to prove it by leading clear and cogent evidence as also showing other surrounding circumstances in support of such family arrangement i.e. parties to have all along acted upon it, with continuance for quite a good length of time and also their conduct inter se or with others, altering their position as such. In that event, the Court keeping in view the very objective of said arrangement to settle the dispute for ever brought into existence for maintaining peace, bringing harmony and also to prevent present or future dispute and litigation must give due weightage to it. In that event, the Court keeping in view the very objective of said arrangement to settle the dispute for ever brought into existence for maintaining peace, bringing harmony and also to prevent present or future dispute and litigation must give due weightage to it. But here also remains a word of caution that on the whole the aid family arrangement must be found to be reasonable and fair for the Court to accord its seal of approval to it i.e., it must also pass the test of transparency, reasonableness and fair play in short we may say TFR test. It is the settled position that a family arrangement or settlement is not a transfer of property. It is also not a creation of interest. In a family settlement each party takes a share in the property by virtue of the independent title which is admitted to that extent by the other parties. It is not necessary that every party has a claim in law. All that is necessary to show is that the parties are related to each other in some way and have a possible claim to the property or even a semblance of a claim, on some ground, such as, say affection. (Ram Charan v. Girija; AIR 1966 S.C. 323 , Shanmugam v. Shanmugam; AIR 1972 SC 2069 and Haraprasad v. Jagmohan; AIR 1973 Orissa 227). The position of law has also been laid down by, the Hon’ble Apex Court in case of Kale v. Dy. Director, Consolidation; AIR 1976 SC 807 . It has been held that the family settlement must be bonafide one so as to resolve family disputes and rival claims by a fair and equitable division of properties between the various members of the family. The said settlement must be voluntary and should not be by fraud, coercion or undue influence. Members of a joint Hindu family may to maintain peace or to bring about harmony in the family, enter into such a family arrangement. If such an arrangement is entered into bonafide and the terms thereto are fair in the circumstances of a particular case, the Courts will more readily give assent to such an agreement than to avoid it. (Pullaiah v. Narasimham; AIR 1966 SC 1836 ). If such an arrangement is entered into bonafide and the terms thereto are fair in the circumstances of a particular case, the Courts will more readily give assent to such an agreement than to avoid it. (Pullaiah v. Narasimham; AIR 1966 SC 1836 ). 11.The contesting defendants in the case rely on the evidence of D.W.1 and D.W.3 and other circumstances in support of their case of family arrangement said to have taken place in the year 1953. D.W.1 in his evidence has stated that the dissension arose between the plaintiff and his father when the former did not repay the mortgage dues and this ultimately led for the family arrangement coming into being in presence of a panchayat called for the parties. D.W.3 is said to be a member in the said Panchayat alongwith others as named by him. The decision taken was that the bhakta jagir land would go to the plaintiff and lands under Schedule-B and Schedule-C would remain in the share of the parens and contesting defendants who were then minors living with parents and that Hagru would pay the mortgage money and Schedule-B and Schedule-C land and get it mutated in the name of Defendant Nos.1 and 3. The plaintiff waived his claim over the Schedule-B and Schedule-C and vice versa. Admittedly, in this case, the family arrangement was not reduced into writing for the sake of evidence. It is also the evidence of D.W.1 that when the talk was going on, the Plaintiff voluntarily declared to leave the house to have his separate stay and in fact he did leave the place at that very moment when his wife also followed him. Now D.W.3 as regards the distribution of the property, says that this land in Schedule-D and Schedule-D1 (Saradiha land) was exclusively allotted to Hagru. This is against the case of the contesting defendants. They say that Plaintiff separated and they with their father constituted a separate coparcenary and continued to live together and enjoyed the property as such. When D.W.1 says about the leaving of the plaintiff at the very moment to make stay separate, D.W.3 has denied it which circumstance rather tend to mitilitate against the case that the plaintiff had his consent to it. He also says that no property document was even placed before the panchayat which also rather seems to be an unusual feature. When D.W.1 says about the leaving of the plaintiff at the very moment to make stay separate, D.W.3 has denied it which circumstance rather tend to mitilitate against the case that the plaintiff had his consent to it. He also says that no property document was even placed before the panchayat which also rather seems to be an unusual feature. The evidence of D.W.5 is hat the panchayati was convened when the plaintiff did not pay the mortgage dues and then Haguru declining to give any share to the plaintiff on the ground that he had already taken the bhakta jagir land in his share. This circumstance if taken into consideration, the voluntariness on the part of plaintiff lacks. It is further stated that plaintiff then declared not to take any share from any other property and not to stay in the house, when Hagru would pay back the mortgage dues. When the evidence of all these witnesses as discussed are together taken into consideration and a cumulative view is taken, it becomes difficult to accept the case of family arrangement as projected by the defendant Nos.1 and 2. There remains discrepancy and more so, it appears to be detrimental to the interest of the plaintiff and that reasonableness, fairly as well as transparency are lacking so as to accept it for a moment that the plaintiff agreed to get only the bhakta jagir land in the said arrangement leaving rest. At this point, it becomes necessary to see as to whether that jagir land was the joint family property with subsisting interest of the members of the family or it was the separate property of the plaintiff. If this answer is given against the Plaintiff that it was not his separate property, in factum of family arrangement as projected will be backed up with some strength. The record of right of said land is Ext.4 wherefrom it is seen that it stood recorded in the name of Hari Behera and then it was mutated in favour of the plaintiff. As per the order in O.E.A. Case No.-38/1971, the mutation has taken place. No evidence is forthcoming that it was in joint enjoyment of the members of the family. As per the order in O.E.A. Case No.-38/1971, the mutation has taken place. No evidence is forthcoming that it was in joint enjoyment of the members of the family. At this juncture, a question arises that since the plaintiff was residing with others, it came to him or that two to three years thereafter, the plaintiff got it in lieu of his rendering service as such bhakta. It is not forthcoming either from oral or documentary evidence that the service of bhakta was being performed even by any ancestor of plaintiff and also in the present case when ti is not proved that the plaintiff applied for the settlement as a co-sharer, the principle that the settlement would ensure to the benefit of all the co-sharers would not get attracted. It is not the case here that all the parties had intermediary interests in the said property and after abolition of the estate the plaintiff having applied for settlement had got it so done. There is no material to show that as on the date of vesting of the land for and on behalf of the members of the joint family, this plaintiff was rendering the service as bhakta being the eldest son of Haguru. In view of the fact that one Hari Behera has intervened in the meantime by performing the service as bhakta, enjoying the said property and that it has been so records in his name after the death of Govinda Behera, the maternal grandfather of the parties, there also stands the real hurdle to say that Govinda Behera having left rendering the service as bhakta, it is the plaintiff who stepped into render the said service for and on behalf of the legal hairs of Govinda’s daughter Hiramani. The fact also remains that the plaintiff has been continuously discharging the service as bhakta since the pre-independence period and that also derives good support from the evidence of D.W.3 who said that the plaintiff in that family arrangement openly declared that he was rendering of service as bhakta. Next as regards the sale deed Ext.B for a sum of Rs.2500/-, the transaction is seriously challenged by the plaintiff as nominal and sham one that too being obtained by defendant Nos.1 and 2 taking advantage of their relationship and by exercise of undue influence when they were fully in a position to dominate the will of the mother. Next as regards the sale deed Ext.B for a sum of Rs.2500/-, the transaction is seriously challenged by the plaintiff as nominal and sham one that too being obtained by defendant Nos.1 and 2 taking advantage of their relationship and by exercise of undue influence when they were fully in a position to dominate the will of the mother. The Court below has taken said fact into consideration to hold the said transction as invalid in the eye of law. Generally, the consideration of Rs.2500/- as stated according to the trial Court is abysmally low when the property admittedly is situated within the jurisdiction of urban local body, in the heart of the town with a pucca building standing thereon. This Court find no justification so as to be led to take any view to the contrary. The very case of these defendants as regards such purchase of that land is very difficult to be accepted in view of their own case. They say in the year 1953 in the family arrangement where the parties divided their properties, the bhakta jagir land was given to the plaintiff. If that is so, there was no reason or occasion for their mother to again sell any land to these defendant Nos.1 and 2. By relying on sale transaction Ext.B they themselves have gone to use that as an axe to cut their own legs as regards the case of the family arrangement and this fact itself when being asserted by them clearly leads to show that the family arrangement if at all made was neither acted upon by them nor they did intend to act upon it and so also their mother, Hiramani. 12.Adverting to the case of validity of the above sale-deed besides the factum of valuation, it is seen that admittedly Hiramani was then staying with defendant Nos.1 and 2 with the admitted relationship as mother and sons and she was then old. In view of these as per the settled position of law the beneficiary is shouldered with the strict burden of proof as regards the factum of due execution of sale-deed that it was with full understanding about the nature of the document and also its contents with necessary independent advise and its implication as well. In view of these as per the settled position of law the beneficiary is shouldered with the strict burden of proof as regards the factum of due execution of sale-deed that it was with full understanding about the nature of the document and also its contents with necessary independent advise and its implication as well. First of all, in the case when it is said that the mother sold the property to the sons ordinarily suspicion arises as regards payment of consideration unless it is of course proved that the mother had certain compelling liabilities to be cleared up and that it was so immediate that there was no option but to sale the property and when the sons so found, they were preferred instead of others. However, no such evidence is forthcoming in the case. The transaction appears to be unconsciousable on this score that the land covered under the sale-deed was having the house where they were staying. So, accepting the sale for a moment, it can be undeniably said that by the sale-deed the mother put herself in a great danger of being driven to the street the very next moment of execution of said sale deed in question, when admittedly no provision is said as regards her right to stay at least being saved till her death. In view of that such execution of the sale deed gets further pushed under thick cloud. At the cost of repetition it may be stated that the consideration here is also to low. For the aforesaid discussions and reasons, the trial Court’s finding holding this Ext.B to have been obtained by undue influence and as such is not sustainable in the eye of law and that no title has flowed by that to the hands of defendant No.1 and 2 in respect of the said Schedule-B property is found to be unassailable. 13.The property under Schedule-C admittedly stood recorded in the name of maternal grandfather of the plaintiff and the defendant Nos.1 and 2 and it was purchased in the name of the plaintiff. The contesting defendants claimed that in terms of the family arrangement the property came to them and it has been so recorded under Ext. 13.The property under Schedule-C admittedly stood recorded in the name of maternal grandfather of the plaintiff and the defendant Nos.1 and 2 and it was purchased in the name of the plaintiff. The contesting defendants claimed that in terms of the family arrangement the property came to them and it has been so recorded under Ext. E. Already the case of the defendant No.1 and 2 as regards the family arrangement has not been found favour with as to have not been proved in the case by clear evidence. Therefore, when this recording is consequential to the said family arrangement though, without any indication about it in the very document, the case of the defendants as regards the family arrangement is further pushed into the heap of suspicion and thus, the property has been rightly held liable for partition. 14.In view of above, the question that at last arises for decision as regards the modification of the share of the parties if any over Schedule-C, Schedule-D and Schedule-D1 properties in view of the amendment carried out in Section 6 of the Hindu Succession Act. In view of the decision rendered in case of Subash Chandra Panigrahi v. Rajib Lochan Panigrahi and others; 2014 (1) CLR 1214 there is no need for going to further address the matter as regards the applicability of the said amended provision to the present case for allotment of shares amongst plaintiffs and defendant Nos.1, 2 and 3. In view of that, this Court find that the plaintiff, the defendant Nos.1, 2 and 3 are also entitled to get ¼th share each over Schedule-C, D and D1 properties as they have been allotted in respect of the Schedule-B property. 15.In the wake of aforesaid, the appeal stands disposed of with the modification to the extent of shares of the parties over Schedule C, D and D-1 properties as stated above. The suit is preliminarily decreed allotting ¼th share from Schedule-B, C, D and D1 properties to the plaintiff, defendant No.1, 2 and 3. The parties are directed to bear their respective cost all throughout. Appeal disposed of.