S.C. Mohapatra, J.
1. Defendant Nos. 1, 2 and 4 to 6 are appellants in this appeal. Plaintiffs have preferred a cross-objection.
2. When an application for stay of final decree proceeding was filed on behalf of the appellants, I directed that the appeal may be finally disposed of dispensing with preparation of paper books. Accordingly, appeal has been heard,with consent of parties.
3. Plaintiffs are sons of defendant No. 1. On account of separation from mother of plaintiffs, defendant No. 1 resided with defendant No. 2 as husband and wife and defendant Nos. 4 to 6 are the three sons of defendant Nos. 1 and 2. Plaintiffs filed the suit for partition of their share in Schedules A to B properties described in the plaint. Since plaintiffs filed the suit as indigent persons defendant No. 3 State of Orissa has been added as a party,
4 Case of plaintiff is that 'B' Schedule property is the ancestral property of defendant No. 1 and plaintiffs. A Schedule properties have been acquired by defendant No. 1 and the plaintiffs. D schedule properties acquired by defendant No. 1 in the name of defendant No. 2 are to be treated as joint family property in which plaintiffs have a share. C Schedule properties are the movable properties of the family.
5 All the defendants except defendant No. 3 filed a joint written statement. Their case is that in a litigation between defendant No. 1 and mother of plaintiffs a compromise was effected in the year 1967 wherein a divorce was effected between husband and wife and it was agreed that mother of plaintiffs have no connection whatsoever with defendant No. 1 as a wife. She was given a house for residence and some properties. In the house, plaintiffs are residing with their mother. She had no right to alienate the property which are to be enjoyed by plaintiffs as their absolute property after death of their father. Before the compromise, mother of plaintiff was suffering from leprosy and had given her express consent for marriage of defendant No. 1 for second time. Accordingly, defendant No. 1 married defendant No. 2 and defendant Nos. 4 to 6 are their children. While not disputing that B schedule property is ancestral property, it is claimed that properties in A schedule are the self acquisitions of defendant No. 1 and properties in D schedule are the self acquisitions of defendant No. 2. Thus, in effect it is claimed that properties in A schedule and D Schedule to the plaint are not liable for partition. Since some properties out of the A schedule were sold by defendant No. 1 to defendant no. 2 it is claimed that the same is also not liable for partition.
6. Plaintiffs examined four witnesses and proved documents Exts. 1 to 8 in support of their case. Defendants examined five witnesses and proved documents marked Exts. A to J in support of their case. With the aforesaid materials as on record, Trial Court found that except item No. 1 in A Schedule the properties are joint acquisitions of plaintiff and defendant No. 1 B schedule properties is ancestral property of defendant No. 1, C Schedule property is joint family property liable for partition and excluded D Schedule property from partition, finding the same to be self-acquisition of defendant No. 2. Trial Court further found that defendant No. 2 is married to defendant No. 1. In the ordering portion of the judgment, plaintiffs were given 1/3rd share. However, in the decree, it was clarified that plaintiffs have 3/4th share and defendant No. 1 has l/4th share. This is grievance of appellants.
7. Mr. B.P. Ray, Advocate appearing for appellants submitted that on the finding that defendant No. 2 is wife of defendant No. 1, Trial Court ought to have held that defendant Nos. 4 to 6 and defendant No. 2 have equal share with each of the plaintiffs and defendant No. 1. Thus, the judgment is vulnerable to that extent. Mr. Ray further submitted that schedule A property ought to have been held to be self acquisitions and plaintiffs have no share during lift time of defendant No. 1. He further submitted that property in Ext. J which is part of schedule A property ought to have been held to be self acquisition of defendant No. 2 ought to have been excluded from partition.
8. Miss. Sanjukta Panda, learned Counsel for plaintiff-respondent on the other hand submitted that finding of Trial Court that defendant No. 2 is wife of defendant No. 1 is not supportable on the admitted facts in this case. Once the said finding is disturbed and it is held that defendant No. 1 is not validly married to defendant No. 1, other defendants would have no share in the properties as they would not be legitimate children. She submitted that item No. 1 of Schedule A ought not to have been excluded from partition and Trial Court ought to have held that in partition among defendant No. 1 and his three sons, mother of plaintiff have a share equal to each of the sons which could not have been ignored. It is further submitted that D Schedule property having been acquired by defendant No. 1 in name of defendant No. 2 ought to have been held to have been so acquired from out of nucleus of the joint family properties as defendant No. 1 is not proved to have any independent source and to be treated as joint family properties liable for partition between plaintiffs and defendant No. 1. Each of the submissions require careful consideration.
9. There is no dispute that plaintiffs with their mother are separate from defendant No. 1. In a previous litigation mother of plaintiffs has been given a house for separate residence and some properties for her maintenance. During life time of mother of plaintiffs, defendant No. 1 resided with defendant No. 2 as husband and wife and defendant Nos. 4 to 6 are children of defendant Nos. 1 and 2.
10. Under Section 11 of the Hindu Marriage Act, 1955. marriage with defendant No. 8 during subsistence of marriage of defendant No. 1 with mother of plaintiffs is void. To avoid this result, defendants have taken a plea that mother of plaintiffs consented to second marriage of defendant No. 1 and on the litigation being settled by compromise, mother of plaintiffs did not continued to be wife of defendant No. 1 and there shall be deemed to be a divorce between mother of plaintiffs and defendant No. 1. This contention has no force. Unless custom of the family provides otherwise there is no scope for a divorce by mutual consent after coming into force of the Hindu Marriage Act, 1955. No prevailing custom of divorce in the society of defendant No. 1 has been specifically pleaded though custom of 2nd marriage has been pleaded. There is also no evidence of prevailing custom of divorce by mutual consent or otherwise. Therefore, after coming into force of the Hindu Marriage Act, 1955, there is no scope for a divorce except by an order of the Court as provided in the said Act. Separate residence of a wife with maintenance from the husband by compromise will not destroy the relationship of husband and wife. In view of the same though consent of second marriage by mother of the plaintiffs would protect on defendant No. 1 from penal action for bigany, it will not validate his marriage with defendant No. 2.
11. Mr. Ray submitted that under Section 16 of the Hindu Marriage Act, offsprings of a void or voidable marriage are legitimate children and have equal share along with other legitimate children and accordingly, defendant Nos. 4 to 6 would have equal share with plaintiffs which Trial Court has not taken note of. Though this submission is attractive, the same has no substance of the facts of this case. There can be no doubt that legitimate and illegitimate children both heve share in the properties of their father in view of Section 16 of the Hindu Marriage Act. However, illegitimate children would not be members of a co-parcenery. Thus, plaintiffs being co-parcenary in a Hindu Joint Family have a share by birth in the joint family properties whereas defendant Nos. 4 to 6 would have a share only in the properties of defendant No. 1 along with the plaintiffs. Illegitimate children cannot claim partition as co-parceners in a joint family. There is no scope to claim share in self acquired or other properties exclusively belonging to defendant No. 1. Customary Hindu Law has not undergone a change by a statutory law in this respect. Thus, the three plaintiffs would have equal share with defendant No. 1 in the co-parcenary property described in B schedule and allotment of 1/4th share to each of the plaintiffs in the decree by the Trial Court cannot be interfered with. Coming to A schedule properties, I find that Trial Court has for cogent reasons excluded item No. 1 of that Schedule treating it to be self-acquisition of defendant No. 1. Without repeating the reasons indicated by the Trial Court, I confirmed the same.
12. As regards other properties in 'A' Schedule, Mr. Ray submitted that Trial Court has not taken into consideration that plaintiffs were minors when the properties were acquired. They had no contribution for acquisition of the properties. Accordingly, they ought to have been held to be self-acquisitions of defennant No. 1 not liable for partition among plaintiffs and defendant No. 1. There would have been some force in the contention of Mr. Ray if there would have been acceptable evidence that defendant No. 1 had independent source of income other than the joint family properties. Added to it, defendant No. 1 in a suit for partition with his brothers categorically stated that these properties are the acquisitions of defendant No. 1 and his three sons. This admission in a previous litigation has not been explained by defendants. Accordingly, Trial Court is justified in coming to the conclusion that properties in Schedule except item No. 1 are the joint properties of plaintiffs and defendant No. 1. It can safely be presumed that they were acquired from out of the acquisitions of nucleus in the family. Therefore, they are to be treated as joint family properties in which mother of plaintiffs would have also a share. Defendants other than defendant No. 1 would have no share in this 'A' Schedule properties.
13. Mr. Ray submitted that defendant No. 1 having transferred properties in Ext. J to defendant Nos. 2 to 4 to 6 the same ought to have been excluded from partition. This transfer is subsequent to the filing of the application for permission to sue as indigent person. Therefore, being lis pendens transfer the same would not be liable for exclusion from partition. However, equity demands that the properties in Ext. J should be allotted to share of defendant No. 1, so that he would be bound by the transfer to defendant No. 2 and others under Ext. J. If there is inequality in valuation, the same can be equalised by adjustment in final decree proceeding.
14. Miss. Panda submitted that Trial Court is not correct in excluding 'D' Schedule properties from partition on the finding that they are acquisitions of defendant No. 2. According to Miss. Panda properties in Schedule D were acquired from put of the joint family income and accordingly, they should be treated as joint family properties. If the acquisitions would have been made of a member of a joint family, possibly, submission of Miss. Panda would have some force to be considered. Defendant No. 2 is not a member of the customary joint family and accordingly, it cannot be said that acquisitions in her name would ensure to the benefit of joint family in which she has no interest. In the circumstances of this case, it can be held that defendant No. 1 as 'Karta' of the joint family misutilised the funds of joint family to acquire properties in name of strangers. Therefore, though the properties would not be available for partition, consideration paid for acquisition of the property being from joint family funds, plaintiffs have a share in it. In the final decree the amount of consideration paid for those properties shall be determined and plaintiffs would be allotted lands out of the share of defendant No. 1 equally to their share in these funds. Utilisation of joint family funds for purchase of lands in name of defendant No. 2 cannot be treated to be for benefit of the joint family. Similarly, acquisition of property from joint family fund in name of concubine amounts to utilisation of fund for immoral purpose. This would be the equitable approach on the facts and in the circumstances of this case.
15. In conclusion :
(i) Plaintiffs, defendant No. 1 and mother of plaintiffs would have equal share in the properties mentioned in B and C Schedule properties and properties in A Schedule excepting item No. 1 thereof and properties covered under Ext. J.
(ii) Properties under Ext. J shall be allotted to defendant No. 1 and plaintiffs with their mother will have share in respect of the value of the same to be adjusted from other properties falling to share of Defendant No. 1.
(iii) Item 1 of Schedule 'A' is self acquisition of defendant No. 1 which would be excluded from partition.
(iv) Properties in Schedule 'D' are not available for partition. However those properties would be valued and plaintiffs with their mother will be entitled to equal share in the consideration along with defendant No. 1. In lieu of such amounts falling to the share of plaintiffs and their mother they shall get land falling to share of Defendant No. 1 in the final decree proceeding. It goes without saying that plaintiff shall be entitled to accounts of the properties to share profits arising out of the same if applied for in the final decree proceeding.
16. In result, appeal and cross-objection both are allowed in part to the extent indicated above. There shall be no order as to costs in this appeal.