JOGESWAR DAS Vs. SUNDAR SAHU
HIGH COURT OF ORISSA
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B.K.Ray, J. -
(1.) THE Appellant is the creditor from whom Chamar took a loan of Rs. 900/ - on the basis of a pronate. Chamar died before repayment of the loan.
(2.) CHAMAR while living had instituted partition suit No. 28 o 1950 against his two brothers, namely, Sundar and Bhikari and their sons. A preliminary decree was passed in the suit on 18 -3 -1955 in which Chamar 's share in the joint family properties was determined to be 1/3rd. After the passing of the preliminary decree Chamar having died without repaying the aforesaid loan, the Appellant creditor instituted Money Suit No. 58 of 1967 against Chamar 's brothers, namely, Sundar and Bhikari and Sundar 's natural son Makhan who was then asserting him self to be the adopted son of Chamar. The said suit was decreed against Makhan on his own admission as adopted son and dismissed against Sundar and Bhikari. The date of decree in the said Money suit is 25 -8 -1958.
(3.) AFTER the passing of the aforesaid preliminary decree in the partition suit and after the death of Chamar, Bhikari, one of the brothers of Chamar, filed a petition in the Partition suit, while the final decree proceedings in the suit were going on, saying that Chamar had died on 2 -3 -1957 leaving behind him no other heir except himself and Sundar who were already on record and prayed that Chamar 's name be struck off from the record and the share of Chamar be divided into two equal shares afresh between himself and the other brother, Sundar. This application came up for hearing and the learned Subordinate Judge disposed of the said application by his order dated 13 -11 -1957. The learned Subordinate Judge while disposing of the said application on hearing the parties, held that Makhan was not the adopted son of Chamar and, therefore, directed that the share of Chamar in the properties in suit would vest on Sundar and Bhikari and their descendants, namely their sons and grand sons. This order of the learned Subordinate Judge not having been challenged and the final decree in the Partition suit having been passed on the basis of aforesaid order on 8 -12 -1958, the said order dated 13 -11 -1957 as well as the final decree in the Partition Suit have become final and conclusive and binding upon Bhikari, Sundar and their sons. It may, however, be noted that Chamar having died after the passing of the preliminary decree, he should be deemed to have died in a state of separateness from his other two brothers, namely, Sundar and Bhikari. Therefore, under the Hindu Law his 1/3rd share in the joint family properties would have devolved upon his two brothers, namely, Sundar and Bhikari to the exclusion of their sons and grand sons. Therefore, the learned Subordinate Judge should have allotted 1 3rd share of Chamar to Sundar and Bhikari only. Instead of doing that, the share of Chamar has been divided as per the final decree into two equal shares, Sundar and his sons getting one share and Bhikari and his sons getting the other share. The allotment made by the learned. Subordinate Judge in the final decree having become final, it is binding on the parties to the partition suit.;
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