JUDGMENT D. Dash, J. 1. The unsuccessful Plaintiff has challenged the Judgment & decree passed by the Learned Civil Judge (Sr. Division), 1st, Court, Cuttack in Title Suit No. 291 of 1996. By, the said Judgment, the suit filed by the Appellants as Plaintiffs against the Respondents-Defendants has been dismissed. For the sake of convenience, clarity & to avoid confusion, the parties hereinafter have been referred to as they have been arrayed in the Court below. 2. The case of the Plaintiffs is as under:- (A) Defendant No. 2 (since dead) is the mother of the Plaintiffs & Defendant No. 4 is her daughter whereas Defendant No. 3 is her son. The land in suit originally belonged to Byasa Kabi Fakirmohan Senapati, the great legendary figure of Odisha, known in each & every household. On his death, it was succeeded by his son Late Mohini Mopan Senapati, who died in the year 1945 living behind his widow. The said widow succeeded to the said property as limited owner in a partition which took place on 14.10.1950. Widow Hirariprava & her three daughters divided the said properties. The suit land fell to the share of Defendant No. 2 being one of the daughters. While continuing in possession of the said property on the basis of allotment made in her favour in a partition, by virtue of coming into force of the Hindu Succession Act, 1956, the Defendant No. 2 became the absolute owner & continued to possess the property as such. (B) The Plaintiffs-Defendant Nos. 2 to 4 were living in joint mess & estate. It is stated that the properties were treated, used & enjoyed as joint family properties. Over the suit land, there stood undivided family dwelling house. All the above named had taken steps for improvement & maintenance of the suit property & according to the Plaintiff No. 1, she had invested huge amount for the purpose. The suit land with the constructions standing thereon were renovated & improved also by utilizing money received from the insurance company on account of death of the husband of the Defendant No. 2, who died in the year 1953 in a road accident. The children of the Defendant No. 2 being well placed in life have also contributed generously for the maintenance of Defendant No. 2 & the improvement of the said house as well. The children of the Defendant No. 2 being well placed in life have also contributed generously for the maintenance of Defendant No. 2 & the improvement of the said house as well. (C) In view of the need of money, the Defendant No. 2 had entered into an agreement for sale of a portion of the suit land as described in the schedule 'C' of the plaint in favour of Negalia brothers for a consideration of Rs. 3.3 lakhs & part of the same, amounting to Rs. 1.60 lakh had been received as advance. Plaintiff No. 1 when came to know about the same, paid back a sum of Rs. 1.5 lakh from her purse to Negalia brothers in order to put an end to the agreement for sale by way of its cancellation. This money she has not received back. On the other hand, Defendant No. 2 had assured Plaintiff No. 1 that she would be compensated appropriately during allotment of land. (D) It is stated that Defendant No. 1 started taking advantage of mental imbalance of Defendant No. 2, who was then residing with Defendant No. 1 & he got a sale deed in his favour on 08.04.1996 in respect of property described in schedule 'B' of the plaint. This sale deed is seriously attacked as being the outcome of the misrepresentation & fraud. It is also stated that the sale deed is without any consideration & it was never the voluntary execution by the Defendant No. 2 & she was never read over & explained with the contents of the said deed. (E) It is next stated that the Defendant No. 1 has exerted undue influence in getting the sale deed created in his favour. Defendant No. 1 was a tenant under Defendant No. 2 in the very said house which is said to have been sold under the registered sale deed. It is further stated that in the absence of Plaintiffs & Defendant No. 3, the Defendant No. 4, prevailed upon the Defendant No. 2 in creating the sale deed. Defendant No. 1 was a tenant under Defendant No. 2 in the very said house which is said to have been sold under the registered sale deed. It is further stated that in the absence of Plaintiffs & Defendant No. 3, the Defendant No. 4, prevailed upon the Defendant No. 2 in creating the sale deed. Hence, the suit has come to be filed claiming the following reliefs:- (a) Let it be declared the sale deed snatched away by Defendant No. 1 from Defendant No. 2 on 08.04.1996 in respect of the properties described in Schedule-B properties is vitiated by fraud, undue influence & non-payment of consideration & sale deed be set aside; (b) Let the Defendant No. 1 be restrained permanently from exercising right of ownership on the basis of sale deed dated 08.04.1996 purported to have been executed by Defendant No. 2 in his favour in respect of "B" schedule properties; (c) Let the Defendant No. 1 be directed to continue to pay the monthly rent of Rs. 1,500 in respect of the house occupied by him which is standing on "B" schedule land; (d) Let the Defendant No. 2 be restrained from making any alienation of A schedule properties in favour of any outsiders; (e) Let the cost of the suit be decreed in favour of the Plaintiffs & against the Defendant Nos. 1 & 2. (f) Let any other further relief to which the Plaintiffs & proforma Defendant Nos. 3 & 5 may be found entitled be passed in their favour &- against the Defendant Nos. 1 & 2. 3. The Defendant Nos. 2 & 4 filed a joint written statement. Besides having raised the technical pleas for non-suiting the Plaintiffs on the ground of the maintainability of the suit, lack of case of action & mis-joinder of parties & the suit being hit under the principle of estoppel & acquiescence, they have taken a specific stand that the Plaintiffs have no right to challenge such sale made by the Defendant No. 2 in favour of Defendant No. 1 in respect of schedule 'B' properties. It is said that the property in question being the exclusive property in possession of Defendant No. 2, the Plaintiffs have no right to maintain the suit & challenge the alienation made by Defendant No. 2. It is stated that the sale was voluntary & valid one. It is said that the property in question being the exclusive property in possession of Defendant No. 2, the Plaintiffs have no right to maintain the suit & challenge the alienation made by Defendant No. 2. It is stated that the sale was voluntary & valid one. The practice of fraud taking advantage of mental imbalance during Defendant No. 2's stay with Defendant No. 1, misrepresentation & undue influence etc. have been denied. They have also denied the Plaintiff No. 1's claim of investment of huge money for improvement of the properties. It is stated that the Defendant No. 2 except the family pension had no other independent source & the house standing on schedule 'A' land was made by investment of the money received from the insurance company on account of sudden death of Defendant No. 2's husband. 4. The Defendant Nos. 1 & 3 have filed their separate written statement almost the replica of written statement of Defendant Nos. 2 & 4. 5. On such rival pleadings, the Court below has framed the following issues:- (a) Is the suit maintainable? (b) Have the Plaintiffs any cause of action to file the suit? (c) Is the suit bad of mis-joinder of parties? (d) Is the suit hit under the principle of estoppel & acquiescence? (e) Have the Plaintiffs locus standi to institute the suit challenging the alienation made by Defendant No. 2 having absolute right under Section 14(1) of the Hindu Succession Act, 1956? (f) Is the suit barred by limitation? (g) Have the Plaintiffs any right to challenge the sale of the suit schedule B property by Defendant No. 2 in favour of Defendant No. 1? (h) Have the Plaintiffs any right of jointness over the suit land? (i) To what relief, if any, the Plaintiffs are entitled to? 6. The Plaintiffs during trial have examined five witnesses. When she herself has come to the witness box as P.W. 1, the Defendant No. 1, on the other hand, has examined three witnesses. When he has deposed as D.W. 1. From the side of Defendant Nos. 2 & 4 two witnesses have been examined out of whom Defendant No. 2 herself is D.W. 1 Defendant No. 3 has come as her lone witness. When he has deposed as D.W. 1. From the side of Defendant Nos. 2 & 4 two witnesses have been examined out of whom Defendant No. 2 herself is D.W. 1 Defendant No. 3 has come as her lone witness. A number of documents from both the sides have also been admitted during trial, which would be referred to at the time of need in course of discussion to follow. 7. The Trial Court has first of all gone to answer issue No. 8, which concerns with the right of the Plaintiffs to challenge the sale by Defendant No. 2 in favour of Defendant No. 1 in respect of schedule 'B' property as described in the plaint. The answer to the said issue has been given against the Plaintiffs like this:- (i) the properties were never treated as joint family property & the evidence in that regard as also the conduct of the parties are not enough to say so; & (ii) it has not been proved by acceptable evidence in the touch stone of the settled positron of law that the suit land is the joint family properties of the parties. 8. Next coming to issue Nos. 5 & 7, categorically findings have been given- (i) the Plaintiffs have got no locus standi to challenge the alienation of the land, (ii) the sale is not without consideration & also there is no practice of any fraud, & (iii) the question of taking advantage of the mental imbalance stage of Defendant No. 2 does not arise as it has not been so proved. 9. Next coming to issue Nos. 1 & 9, it has been held that-(i) the suit land is not the joint family property of the parties & thus, the sale deed executed by Defendant No. 2 has clothed Defendant No. 1 with valid right, title & interest in respect of the purchased property & his possession as such. 10. Although it appears that a number of issues have been framed, on going through the rival case of the parties as also the evidence tendered in support of their respective case the moot question remains as to whether the suit land is the joint family properties of the parties with all having interests in respect of every inch of the same with unity of possession or it is the exclusive property in the hands of Defendant No. 2. Although the allegation has been made with regard to practice of fraud upon Defendant No. 2 exercising undue influence & that the sale deed has been brought into being as such by even nonpayment of consideration, the Defendant No. 2 having filed her written statement & denying all those even coming to the witness box as D.W. 1, those are practically secondary: For all practical purpose, the fate of the suit hinges upon simply on a finding on that score & in this appeal the sustainability of the said finding thus required to be examined at first. 11. Learned Counsel for the parties in course of hearing are in agreement on the point that it is first required to be decided in the lis as to whether the suit property is the joint family property of the parties as claimed by the Plaintiffs & all other issues will either automatically receive the answers therefrom or will be secondary. Therefore, both the Counsel have advanced their submissions accordingly. 12. Learned Counsel for the Appellants vehemently challenges the finding of the Trial Court on the score that the suit, property is not the joint family property of the parties. According to him, the Plaintiffs have given overwhelming evidence which are clear on the subject being cogent & wholly acceptable that the properties has all along been treated as the joint family properties & thus, accordingly it has assumed the character as such. In this connection, he with great pain has placed the evidence on record & has also cited a number of decisions, which would be referred to in course of the discussion to follow as & when necessary. 13. Learned Counsel for the Respondent No. 1, on the other hand, stands firmly by the side of the said finding rendered by the Trial Court against the Plaintiffs. 13. Learned Counsel for the Respondent No. 1, on the other hand, stands firmly by the side of the said finding rendered by the Trial Court against the Plaintiffs. According to him, even accepting the entire evidence let in by the Plaintiffs as regards the conduct of the parties the dealing of the parties & all other factors as highlighted during evidence, the suit property can never be said to have assumed the character of joint family property as it is not also the law that a self acquired property of a person simply being enjoyed & dealt by his children are sufficient to take away the character of the said property as it is as the exclusive property of the head of the family, who is a female. It has also been argued that the theory of blending in the case does not come to be attracted as here there was no common stock wherein the property could have been thrown into & blended besides the voluntary abandonment & waiver of right. The decision cited by the Learned Counsel for the Appellants in course of submission have been distinguished by the Learned Counsel for the Respondent No. 1 while arguing with vehemence that those are not applicable to the facts & circumstances of the present case which is based on completely different factual settings. 14. On the envil of such rival submission, this Court is now to proceed to examine the pleadings & the evidence on record in the backdrop of the settled position of law to find out the answer to the crucial issue as regards the character of the suit property & thereby to judge the defensibility of the finding of the Court below in that regard. The Plaintiffs & Defendant No. 4 are the daughters of Defendant No. 2, who is the wife of Dr. Jagadish Chandra Dutta. Defendant No. 3 is her son. Admittedly, the property belonged to Byasya Kabi Fakir Mohan Senapati & on his death it devolved upon his son Mohini Mohan. Said Mohini Mohan having died living behind his widow, she inherited the properties as the limited owner & she had partitioned the property during her lifetime between her three daughters & the schedule 'A' property admittedly had fallen to the share of Defendant No. 2. To this extent, there is no quarrel. Said Mohini Mohan having died living behind his widow, she inherited the properties as the limited owner & she had partitioned the property during her lifetime between her three daughters & the schedule 'A' property admittedly had fallen to the share of Defendant No. 2. To this extent, there is no quarrel. When this Defendant No. 2 was in possession of the property that she got in the partition effected during the lifetime of her mother amongst all the children, the Hindu Succession Act, 1956 came to force & as such Defendant No. 2 became the absolute owner of the said property & it remained in her possession as such. In ordinary course after her death, children of Defendant No. 2 as Class-I heirs are entitled to inherit the property upon the death of Defendant No. 2 subject to the alienation & other testamentary dispositions. Here, the claim is that though such property was the absolute property of Defendant No. 2 initially it was thereafter treated as if the property of the joint family. 15. Learned Counsel for the Appellants places strong reliance on the decision of this Curt in case of "Pratap Kishore & Another Vs. Gyanendra Nath": A.I.R. (38) 1951 Orissa, 313. Banking upon the ratio of this decision & especially what has been discussed in Para-22 of the Judgment, he contends that here the evidence are quite sufficient to prove the intention of the parties that for a long period the property was treated as the joint family property of the Defendant No. 2 who had voluntarily abandoned her exclusive right & ownership making it available to all the members of the family for being enjoyed as such & for being utilized & done as such. In the cited case property was acquired by one of the members & as such was claimed as his separate & exclusive property. The Trial Court held that in the absence of evidence as regards the treatment of the properties said to have been acquired as separate & exclusive property of one member, the presumption would remain that those properties were thrown into the common stock & formed a part of the joint family property. The Trial Court held that in the absence of evidence as regards the treatment of the properties said to have been acquired as separate & exclusive property of one member, the presumption would remain that those properties were thrown into the common stock & formed a part of the joint family property. It has been held that the member of the joint family who acquires property may allow other members of that joint family to manage it or to enjoy the income arising out of it & this may be due to variety of reason. But this circumstance alone cannot militate against the presumption that such property acquired by a member out of his own hearings constitutes his self acquisition. It has been further stated that it is not unusual that in a joint family for its members to utilize the income so long as their joint. The real test in such case is the intention behind the act. Whether the act indicate that case that the acquirer intended to throw it to the common stock & not to claim separate title thereto? It certainly cannot be said that the moment the member acquires the property from its own earnings, he will immediately separate himself from the other members in order to that he might treat his acquisition as separate & that failure to show necessarily lead to a presumption that the property would be a part of the joint family property. In the absence of any evidence of a positive character to show that the acquirer intended that his acquisition should be treated as a part of the family stock, the presumption would be that it must remain his self acquisition. The intention to benefit the family by spending the income accruing out of self acquisition is different & distinguishable from an intention to transfer the property, itself, to the joint family. The ratio of the decisions are not attracted for the present case for the following discussions & reasons. Admittedly, here this was the only item of the property in the hands of Defendant No. 2 & she being a female had initially got the same as the limited owner which matured into absolute ownership by virtue of the statutory provision. So, it is her exclusive property & not an acquired one. Admittedly, here this was the only item of the property in the hands of Defendant No. 2 & she being a female had initially got the same as the limited owner which matured into absolute ownership by virtue of the statutory provision. So, it is her exclusive property & not an acquired one. Even without going to take a dip in the evidence, it may be stated that the property inherited by the mother under no circumstance with whatever dealings & conduct as well as the enjoyment modes as those may be by her children which are but natural, its character during the lifetime of the mother can never be taken as the joint family property creating the interest of all the members of the family whose Tight, if any, over property would only be springing up upon the death of the mother as her successors. Moreover, in the present case no such common stock has been shown to be there in existence at the time the property came to the hands of Defendant No. 2 nor even when the property matured as absolute in her hands so as to be thrown into that & blended. In fact, the theory of blending has its applicability so far as the acquired property is concerned from out of self earning or from some other source at the behest of the acquirer but it may not extend in its applicability to a property inherited. There also remains exception even in case of separate acquisition in the name of female, the ordinary presumption has its departure & the burden squarely lies on the person who claims the said property as the joint family to dislodge & it is too heavy to be elbowed. 16. Reliance has also been placed in case of "Bipra Charan Mohanty Vs. Madan Sundar Mohanty & Others",: A.I.R. 1960 Orissa, 109. 16. Reliance has also been placed in case of "Bipra Charan Mohanty Vs. Madan Sundar Mohanty & Others",: A.I.R. 1960 Orissa, 109. It has been held in the said case that where in a suit for partition, a party claims that any particular item of property is the joint family property, the burden of proving that it is so rests on the party asserting it through circumstances may readily cause, the onus to be discharged; to render the property joint the Plaintiff must prove that the family was possessed of some property that with the income of which the property could have been acquired or from which the presumption could be drawn that all the properties possessed by the family is joint family property or that it was purchased with joint family funds, such as, the proceeds of sale of ancestral property or by joint labour; none of these alternative is a matter of legal presumption. It can only be brought to the cognizance of a Court in the same way as any other fact namely by evidence. It has also been held therein that the property which was originally the separate & self acquired property of a member of the joint family may become the joint family property, if it has been voluntarily thrown by him into the common stock with the intention of abandoning all separate claims upon it. A clear intention to wave his separate right must be established & it will not be inferred from the mere fact of his allowing other members of the family to use it conjointly with himself nor from the fact that the income of the separate property was used to support a son nor from the mere failure of a member to keep separate accounts of his earnings; so also acts of generosity or kindness should not be construed as admission of legal obligation. The separate property thrown into the common stock is subject to all the incident of the joint family funds. Here also the facts & circumstances of the case in hand are completely different so as to attract the principles of law laid down therein. From the decision in the case of Lakki Reddi C.V. Reddi & Others Vs. The separate property thrown into the common stock is subject to all the incident of the joint family funds. Here also the facts & circumstances of the case in hand are completely different so as to attract the principles of law laid down therein. From the decision in the case of Lakki Reddi C.V. Reddi & Others Vs. Lakki Reddi Lakshmama, : A.I.R. 1963, S.C. 1601, it is seen that the Apex Court has laid down the law relating to the blending of separate property with the joint family property. It has been held that the property separate or self acquired of a member of a joint Hindu family may be impressed with the character of a joint family property if it is voluntary thrown by owner into the common stock with the intention of abandoning his separate claim therein; but to establish such abandonment a clear intention to wave 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 for 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 legal obligation. The evidence in the present case has been tendered by the Plaintiffs is that Plaintiff No. 1 had deposited amount which have been withdrawn & utilized for construction & renovation which the Defendant No. 2 though admits to have withdrawn, denies as regards its utilization while further stating that she had withdrawn amount from her separate account for the purpose. She has also stated to have taken money for some repair of bath room as also the house that she was getting towards the family pension. In one of her letters (Ext. 1) written to Plaintiff No. 1 she has written:- "Your house & your goods will be yours". First of all it is seen to convey no meaning & secondly that itself cannot impress the suit property with such character in creating interest in favour of the all the children of Defendant No. 2. Rather, it shows that the same refers to the situation after her & for future. First of all it is seen to convey no meaning & secondly that itself cannot impress the suit property with such character in creating interest in favour of the all the children of Defendant No. 2. Rather, it shows that the same refers to the situation after her & for future. Interestingly, in this case the son & another daughter who are Defendant Nos. 3 & 4 are not coming up with the case that it was the property available to all the members of the family. It is the settled position of law that mere fact that mother's estate was managed by her sons or daughters cannot be taken to be indicative of the fact that the mother had surrendered all her rights. The theory of blending does not come into play in case of the property in that hands of female member. It has not been proved in the case that at any point of time Defendant No. 2 wanted to impress her absolute & exclusive property with the character of joint family property & she created new claimants to her property to the major exclusion of herself. The theory of blending is inapposite in case of a Hindu female who puts her separate property, be it her absolute property or limited interest in the joint family stock (Smt. Puspa Devi Vs. Commissioner of Income Tax,: A.I.R. 1977 S.C. 2230). While holding the doctrine to be in applicable, the reasons assigned are that a Hindu female not being a coparcener, cannot blend her separate property with joint family property. The properly whether her absolute property or she is having a limited estate in that property does not make any difference. The property inherited by a female from his relations on maternal side cannot be blended with the property of joint family (Subramnyam Reedi Vs. Venkata Subha Reddi & Ors.,: A.I.R. 1999 S.C. 1116). It has been held in the case of Prativa Rani vs. Suraj Kumar & Anr.,: A.I.R. (1985) S.C. 628 that Stridhan property even if placed in custody of the husband or in-laws, they would be deemed to be trustees vis-à-vis. the said property. Venkata Subha Reddi & Ors.,: A.I.R. 1999 S.C. 1116). It has been held in the case of Prativa Rani vs. Suraj Kumar & Anr.,: A.I.R. (1985) S.C. 628 that Stridhan property even if placed in custody of the husband or in-laws, they would be deemed to be trustees vis-à-vis. the said property. The Trial Court has further gone to address the point with reference to the evidence & having made elaborate discussion has also found no such circumstances clinching enough to factually establish even for a moment that Defendant No. 2 had ever permitted the children for having the privilege of common ownership & enjoyment by sharing her own property. The evidence of the Plaintiffs as regards financial help provided to Defendant No. 2 even if accepted does not go to establish their claim over the property as laid. Moreover, the Defendant No. 2 as D.W. 1 has deposed in clear terms that said property is her exclusive property & her children have no right over the same. She has narrated as to how being a Petitioner after death of her husband since 1953, she was managing everything. At times when she admits to have taken money from the Plaintiff No. 1, the same rather which shows her strong inclination to adhere to truthfulness despite of running of litigation. In view of the above, the claim of the Plaintiffs that it was the property though just standing in the name of Defendant No. 2, all her children were also having the right, title & interest over the same is not acceptable both in law & fact. Therefore, this Court does not find any reason to record any disagreement with the finding of the Trial Court in that regard. Accordingly, the said finding is affirmed. Coming to the case that the sale made by the Defendant No. 2 as claimed by the Plaintiffs to have been made by exercising undue influence practicing fraud & non-passing of consideration, it may be noted that the Defendant No. 2 being the vendor, she in her written statement & evidence stand firmly by such sale having clearly stated all those in support of sale. Now, it is challenged during their lifetime. Already the finding has been arrived at that the Plaintiffs & Defendants Nos. 3 & 4 had nothing to do with the said property. Now, it is challenged during their lifetime. Already the finding has been arrived at that the Plaintiffs & Defendants Nos. 3 & 4 had nothing to do with the said property. The Defendant No. 2 having been examined as D.W. 1 admits the factum of her executing the sale deed in favour of Defendant No. 1 (marked as Ext. C/1), her receiving consideration in two phases & the sale to have been made after due permission from urban land ceiling authority. She has further stated that since P.W. 1 quarrelled, she shifted to schedule B portion & let out the portion to a tenant who treated her as mother & the sale to him was with a condition that she would be residing on a part till her death. In fact during evidence, she stated to have been then residing there. She has also denied everything as regards undue influence, any fraud being practised upon her by the Defendant No. 1. The deed of sale has been duly proved. In such state of affairs in evidence, when the executant of the deed of sale comes forward to depose in favour of the transaction & when she is the exclusive owner of the property, & also when no such collusion is proved to deprive which question here does not arise in view of prior finding as regards the nature & character of the property the Plaintiffs are having no locus standi to challenge the transaction. Therefore, no fault is also found with the findings of the Trial Court on issue Nos. 5 &. 7, which are accordingly affirmed. In the above premises, there arises no necessity to delve on other issues as already submitted by the Learned Counsel at the very outset. The Trial Court thus having found to have rightly dismissed the suit the same is hereby confirmed. Resultantly, the appeal stands dismissed & in the circumstances without cost throughout.