SOMANATHA PATNAIK Vs. LUXMAN PADHAN

JUDGEMENT

(1.) THE defendants are the appellants in this Second Appeal against the confirming judgment of the lower appellate Court arising out of a suit for declaration of title of the plaintiff, as the reversioner of the last male owner Sridhar who died in the year 1931, impugning the alienation made by the daughter of Sridhar in favour of the present defendant No. 1. The daughter is defendant No, 2. The daughter's son is defendant No. 3. Sridhar's widow Sambari died in the year 1936. The Kabala impugned in the present suit by the plaintiff, asserting himself to be the reversioner next after the daughter's son, is Ex. A dated 6th February 1954 which purports to be for a consideration of Rs. 200/- in favour of defendant No. 1 executed by defendant No. 2. The plaintiff asserts that the transaction is not supported by consideration and not bona fide transaction for legal necessity and as such it is not binding against the reversioner. The defence is that the transaction is binding against the present plaintiff as it is supported by consideration and legal necessity. The further defence taken is that the plaintiff has no right to bring out the suit as he is a very distant agnate and therefore a very remote reversioner of Sridhar.

(2.) BOTH the courts below have come to the conclusion that the transaction in suit is not supported by consideration and legal necessity and as such they have decreed the plaintiff's suit. Both the courts below have found that Sridhar died leaving behind, him another nearer reversioner, who is the sister's son Kalia.

(3.) MR. Misra appearing on behalf of the appellants, does not contest the position that the suit transaction is not supported by legal necessity. But he concentrates his point only to the effect that the suit by the remotest reversioner is not maintainable in the face of finding of the Courts below that the sister's son is alive. Indeed the daughter's son might have been colluding with the female heir (defendant No. 2) and that may not stand in the Way of the plaintiff to maintain the suit. But Mr. Misra strengthens his argument by asserting that in the presence of the sister's son Kalia, the present plaintiff, under the new law, is no heir--either class I or Class II--but only a distant agnatic relation and as such a very remote reversioner. The suit, therefore, brought by him is bound to fail on this ground.