GOURANGA SAHU Vs. MAGUNI DEI

JUDGEMENT

(1.) Plaintiff is the appellant against the judgment and decree passed in a suit for declaration of title and recovery of possession of the suit property which consists of two plots, namely plot No. 1018 in Khata No. 597 of mauza Choudwar measuring Ac. 0.07 decimals and plot No. 759 in Khata No. 236 covering an area of 5 kadis out of Ac. 0.01 decimals from the south with houses standing thereon.

(2.) Plaintiff is the purchaser of the suit lands under a registered sale deed (Ext.9) dated 3-7-1970 from defendant No. 3. Plaintiff' case is that one Chintamoni was the common ancestor and the recorded owner of the property who died prior to 1930. His son Murali died unmarried in 1940. Kamala, the widow of Chintamoni got the property on death of Murali and Kamala had a daughter called Maguni who is defendant No. 1. Maguni' daughter Sarala is defendant No. 3 and Mahendra is the husband of Sarala. Maguni' son Paramananda has a son Nabakishore who is defendant No. 2. It is the further case of the plaintiff that Kamala executed two gift deeds in favour of Sarala (defendant No. 3), namely Ext.15 dated 8-8-1955 who in respect of 5 kadis out of plot No. 759 and 3 decimals out of plot No. 1017 and Ext.16 dated 3-5-1958 for 7 decimals out of plot No. 1018. Kamala executed the gift deeds in favour of Sarala as she along with her husband Mahendra were staying with the grand-mother Kamala and were looking after her. On the strength of the gift deeds, defendant No. 3 continued to remain in possession of the land by constructing pucca houses thereon. Mahendra, the husband of defendant No. 3, was in need of money for his business and, therefore, defendant No. 3 entered into an agreement for sale of the suit property for a consideration of Rs. 30,000/- on 31-3-1965 - Ext.10/a and received Rs. 5,000/- as advance. In the agreement for sale it was stipulated that the sale deed would be executed within five years from the date of the agreement. Subsequently, on 19-8-1968, defendant No. 3 had executed a mortage by conditional sale (Ext.11) in favour of the plaintiff' wife in respect of the land appertaining to plot No. 1018 together with the structure standing thereon for a consideration of Rs. 6,000/- as money was urgently needed for Mahendra' business. It was also stipulated in the said deed that if the mortgage was not redeemed by 18-8-1973, then the mortgagee would become the absolute owner of the property and the mortgagee was to be put in possession of the land together with the building standing thereon, though Mahendra was running the rice huller machine. Finally, defendant No. 3 executed the registered sale deed in favour of the plaintiff on 3-7-1970 Ext.9 by receiving the balance consideration of Rs. 20,000/- as by that date she had received Rs. 4,000/- as advance under Exhibit 10/a and Rs. 6,000/- from the plaintiffs wife under Ext.11. But in the meantime, defendant No. 1 had obtained a sale deed on 5-5-1956 (Ext.17) in respect of the entire Ac. 0.10-5 kadis which land had been gifted to Sarala (defendant No. 3) and according to the plaintiff in the guise of executing a power-of-attorney, the sale document was got executed without reading or explaining the contents thereof. The said sale deed, however, was cancelled on 27-6-1970 under Ext.12. Notwithstanding the sale in favour of the plaintiff under Ext.9, defendant No. 1 was recorded in the Settlement records and on 7-1-1974 said defendant No. 1 restrained the plaintiff from going upon the premises and, therefore, the plaintiff filed the suit for the relief as already stated.

(3.) Defendant No. 1 contested the suit. In the written statement, execution of the two gift deeds by Kamala in favour of Sarala was admitted, but it was stated that the gift deeds were never acted upon nor were intended to be acted upon. It was further pleaded that even if the gift could be said to have been acted upon, but Kamala had merely a life interest in the land in question and, therefore, the gift could remain valid till the lifetime of Kamala and after death of Kamala the property passed on to her only daughter Maguni (defendant No. 1) as the nearest reversioner. It was also pleaded in the written statement that the two gift deeds were nominally brought into existence to persuade Sarala' husband Mahendra to settle somewhere by doing business as he was going wayward. In fact, Maguni' husband Natha purchased a rice huller in the name of Mahendra and installed the same on plot No. 1018 and Kamala gave the money by mortgaging her property and, therefore, the question of Kamala transferring the property to Sarala by gift did not arise and no title was intended to be conferred by virtue of the gift deeds. So far as the sale deed (Ext.17) dated 5-5-1966 is concerned, it is the case of defendant No. 1 that as Mahendra did not like to settle down and he continued with his conduct and habit, Maguni (defendant No. 1) apprehended trouble from Mahendra as the two gift deeds stood in the name of Sarala. On the intervention of Bhadralogs it was decided that Sarala would execute a deed of re-conveyance and Mahendra would get a compensation of Rs. 2,000/- and this proposal being accepted, the deed (Ext.17) was executed on 5-5-1966 and the said document in fact could not be hold to be a sale deed. It was also averred that in view of Ext.17, plaintiff did not derive any title under Ext.9 which was admittedly much later than Ext.17. It was further broadly averred that plaintiff could manage to get the deed by capturing Sarala' husband Mahendra.