R.N. Misra, J. - (1.)DEFENDANT No. 1 has appealed against the affirming judgment of the learned District Judge of Puri in a suit for partition and allotment of half share of the properties described in A and B schedule of the plaint. Brundaban Plaintiff and Fakir -Defendant No. 1 are brothers being sons of one Halu.
(2.)PLAINTIFF claimed that Halu died in 1961. Halu had incurred some loans and with a view to screening the A schedule property from the creditors, he had executed a benami sale deed in respect thereof in favour of one Manguli Barik sometime in 1946. The said property as also the title deed, however, remained with Halu all the time.
Defendant No. 1 claimed that the transfer in favour of Manguli was a genuine transaction and after the sale, Halu parted with possession and went away to Satyabadi where he started living in a rented house. Manguli wanted to sell away the property and the consideration money or Rs. 2501 - was settled. Manguli delivered possession of the A schedule property to Defendant No. 1 and made over the title deed by which Halu had transferred the property to Manguli, but before a regular sale deed could be executed and registered, Manguli expired. Plaintiff having gained over the heirs of Manguli had prevailed upon them not to execute the deed of transfer. B schedule properties are not liable for partition as they have been acquired out of separate income of Defendant No. 1 or have been presented by way of dowry by Defendant No. 1'8 wife.

(3.)THE learned Trial Judge came to hold that (i) the sale deed of A schedule property executed by Halu in favour of Manguli (Ext. D) is a benami one and Defendant No. 1 has, therefore, no exclusive right to such property. Accordingly the said property is partible on the basis that it belonged to the joint family, (ii) the existence of B schedule properties at the time of filing of the suit has not been established and, therefore, Plaintiff is not entitled to partition thereof, and (iii) the theory of previous partition alleged by the Defendant has not been established. Accordingly, the learned Trial Judge passed a preliminary decree for partition of A schedule property.