GOPINATH SARMA Vs. SASI DEI AND ORS.

JUDGEMENT

(1.) PLAINTIFF is the Appellant. The appeal arises out at a suit for partition and recovery of damages. The admitted genealogy is given hereunder.

(2.) PLAINTIFF 's case is that Srihari, Punananda and Narhari were three brothers. Narahari died about fifteen years back leaving no issue. Srihari died leaving Ananta (Defendant No. 14) the son and widow of Ananta, Defendant No. 1. Punananda also died leaving Kausalya his widow. As Narahari died issueless in a state of jointness long back, Srihari and Punananda each was entitled to half share in the family properties. After death of Punananda, his widow Kausalya transferred her half share as per schedule 'Ka' of the plaint in the year 1944 in favour of Defendant No. 10, husband of Defendant No. 15 Sukuti. Defendants No. 10 transferred the said property in the year 1962 in favour of the Plaintiff who is a stranger. Plaintiff by virtue of the sale deed came to possess the said property and enjoyed the same peacefully till 1965, when Defendant No. 1 forcibly cut and removed crop therefrom, for which damage is claimed as per schedule 'Gha' of the plaint.

(3.) ADMITTEDLY , Narahari died prior to the C.S. operations. This fact is also admitted by Defendant No. 1 in paragraph 10 of her written statement. It is contended therein that Narahari died leaving his widow and a daughter in a state of separation. But no evidence about separation has been adduced in this case. As Narahari died prior to the C.S. operation, long prior to the Hindu Women's Right to Property Act came into force, his widow is not entitled to any share in the properties. There is no evidence on record to support the contention that Narahari died in a state of separation. On the other hand, under Ext. 3, a sale deed dated 15 -8 -1929, Narahari and his two other brothers sold jointly some properties to Defendant No. 3. It appears from the documents available on record that half interest was sold under Ext. 3 and the balance half was sold by Kausalya and Ananta to Defendant No. 10. The position, therefore, is that after death of Narahari, his interest devolved on Srihari and Punananda. Kausalya is the widow of Punananda. From the evidence of D.W. 4 in paragraph -9 and D.W. 5 in paragraph -5, it appears that Punananda died sometime in the year 1942 -43, So, the interest of Punananda devolves on Kausalya. Kausalya and Ananta sold half interest to Defendant No. 10 by different sale deeds in the year 1944. Out of the properties purchased by Defendant No. 10, the latter has sold the properties covered under Ext. 1 in 1962 to the Plaintiff. In paragraph -10 of the written statement of Defendant No. 15 it is contended that the sale deed by Kausalya was really in favour of Defendant No. 15, but it was executed in the name of Defendant No. 10. Defendant No. 15 Sukuti has stated that she never purchased any land from Kausalya, nor instructed her lawyer that she purchased any land from Kausalya. This would show that the sale deed in favour of Defendant No. 10 is genuine. Ananta, husband of Defendant No. 1, has sold his share to Defendant No. 10. Ananta does not contest. His wife Defendant No. 1 filed written statement, but she did not come to dock to substantiate her contention. P.W. 1 that Plaintiff has stated that Kausalya executed a sale deed in favour of Defendant No. 10 and the sale deed is with Defendant no 10. The lands he purchased from Krushna Das, Defendant No. 10 were purchased by Krushna Das from Kausalya. He asserts that he was in possession of the lands. P.W. 2 has lands close to the disputed lands' purchased by the Plaintiff. He has stated that Defendant No. 10 and then the Plaintiff are in possession of the same. The evidence of Defendants 3 and 4 is also to the same effect.