BANCHA BHOL Vs. SARIA BEWA

JUDGEMENT

(1.) THIS appeal is by the defendants from the confirming decision of Sri R. C. Jena, subordinate Judge, Nayagarh, dated 7-11-69, passed in Title Appeal Nos. 36/28 of 1968, decreeing the plaintiff's suit.

(2.) THERE were two brothers, Hats and Nata. Plaintiff 1 is the widow of Nata who died on 18-6-64. Plaintiff 2 is his daughter. Defendants 1, 2 and 3 are the sons of hata, and defendant 4 is the minor son of defendant 2, In a partition between these two brothers, the properties described in Schedules Ka and Kha of the plaint, the total extent of which is 2. 50 acres, fell to the share of Nata. There was a maintenance proceeding under Section 488, Cr. P. C. by plaintiff 1 against her husband, Nata, in which the claim for maintenance was allowed. To satisfy the order for maintenance, Nata transferred Kha Schedule properties to his wife, plaintiff 1, and put her in possession on 17-10-47, and since then plaintiff' 1 is in possession, and by virtue of the Hindu Succession Act, 1956, she has become the absolute owner of the same. Thereafter Nata executed a sale-deed in respect of ga Schedule properties in favour of defendants 1 to 3 on 20-11-52. On the same date he also executed another sale-deed in favour of defendants 1 and 2 in respect of Gha Schedule properties. These sale-deeds are alleged to be nominal transactions brought about by exercise of undue influence by these defendants 1 to 3 on Nata Bhol who was pretty old at the time. It is also averred that these sale transactions were without payment of any consideration, and that there was in fact no subsisting necessity for Nata Bhol to sell away these properties. Despite the execution of these two sale-deeds Nata continued to be in possession of these properties till his death. In the year 1961, plaintiff 2 became aware of these benami and illegal sale transactions, and complained to the village Bhadralokas about them. There was a settlement upon which defendants 1 to 3 agreed, in writing on 15-1-61, to transfer the lands in Schedules Ga and Gha in the name of kuber Padhan, son of plaintiff 2. They, however, defaulted in carrying out the said agreement. Thereupon plaintiff 2 complained to the Lodhachua Grama Panchayat on 23-2-61 and also reported about it to Ranpur Tahasildar. An inquiry was made and a report was submitted by the Grama Panchayat on 30-5-61. It is said that at the time of inquiry Nata was alive and it was admitted by him before the inquiring officer that the sale-transactions of 20-11-52 were without consideration. No action was taken on the report because the matter was one of a civil dispute. Thereafter defendants 1 to 3 again on 13-7-62 obtained a fraudulent gift-deed from Nata in favour of defendant 4 in respect of the residential house and some other lands described in plaint-schedule Una, and it is said that this gift-deed was not acted upon and was invalid.

(3.) THE defendants resisted the suit. It is admitted that Kha Schedule lands were given to plaintiff 1 towards her maintenance, but as she, being a female, could not cultivate the same, she took the help of defendant 3 who cultivated the same and paid half the produce to her for the last 17 years or more. Defendant 3, therefore, claims tenancy right in respect of Kha Schedule lands under plaintiff 1. Nata had incurred some loans to meet his litigation expenses in the maintenance proceedings and thereafter, when plaintiff 1 along with her daughter deserted him, he felt helpless and incurred further loans for his own maintenance. So, to clear the loans and to pay rent for his lands and to meet his other expenses Nata sold away his properties to defendants 1 to 3. Since their purchase in 1952, defendants 1 to 3 have duly mutated their names and are in peaceful possession of the suit-lands by paying rent for the same. They deny the plaint-allegations that they exerted any undue influence on Nata Bhol for these impugned transfers. They further assert that Nata Bhol, out of his own free-will, gifted away the Una schedule properties to defendant 4. The defendants are in possession of the properties-insult in their own right, title and interest.