SATYABHAMA SATPATHY Vs. NARANA MISHRA

JUDGEMENT

(1.) THE appellants have filed the aforesaid appeal challenging the judgment dated 5.4.2004 passed in T.A. No. 54 of 1994 by the learned Additional District Judge (FTC), Bhadrak.

(2.) THE facts reveal that the appellants as plaintiffs filed T.S. No. 81 of 1987-I seeking a decree for declaration, declaring the sale-deed executed by their deceased father (Trilochan Mishra) in favour of the defendant (respondent) to be void on the ground that the said sale-deed has been obtained by exercise of undue influence. The plaintiffs also prayed for a decree for permanent injunction. The case of the plaintiffs is that during the last days of the life of their father Trilochan Mishra, who was ill and under the care and custody of the defendant (respondent), who was none, other than his nephew, the defendant taking advantage of his old age and exercising undue influence, got the disputed sale-deed executed by him when he was in an unconscious state of mind. It was further pleaded by them that their deceased father was never in want of money and, as such, had no legal necessity to sell the suit land. Instead of using the phrase 'undue influence', the plaintiffs mentioned in the plaint that the sale-deed was obtained by practicing fraud. The defendant ­ respondent in his written statement denying the averments made in the plaint specifically contended that the suit is not maintainable.

(3.) IN the circumstances of the case, the learned lower appellate court should have exercised its power under Order 41, Rule 25 C.P.C. which reads thus:-