RADHAKANTA KAR Vs. SUMITRA MAHAPATRA

JUDGEMENT

(1.) The Appellant, by filing this Appeal under Sec. 100 of the Code of Civil Procedure, 1908 (for short, 'the Code'), has assailed the judgment and decree dtd. 29/2/2020 and 6/3/2020 respectively passed by the learned District Judge, Ganjam at Berhampur in R.F.A. No.68 of 2018. The Appellant, as the Plaintiff, had filed Civil Suit No.30 of 2013 in the Court of the learned Additional Senior Civil Judge, Berhampur. The suit was for declaration that the Will dtd. 19/1/1996 (Ext.X) is valid and has clothed the Appellant (Plaintiff) with the right, title, interest and possession in respect of the suit land covered under said Will to be resting with him. With further prayer to declare the settlement record of right of the year 2004 as illegal and Respondent No.4 (Kedarnath) be declared as not the adopted son of Gobinda Mohapatra and Rajamani Mohapatra. It was further prayed that the alienation made by the Respondents (Defendants) in respect of the suit properties are all void and not binding on the Appellant (Plaintiff) followed by issuance of injunction. The suit, having been dismissed, an Appeal under Sec. 96 of the Code, being filed, the same has also been dismissed.

(2.) For the sake of convenience, in order to avoid confusion and bring in clarity, the parties hereinafter have been referred to, as they have been arraigned in the Suit.

(3.) Plaintiff's case is that the suit properties belonged to one Gobinda Mohapatra, who died leaving behind his widow, Rajamani (Dead) and three daughters, namely, Sumitra, Urmila and Malli, who are the Defendant Nos.1 to 3. The Defendant No.4 is the grandson of Gobinda, being the son of Urmila (Defendant No.l). Gobinda had never adopted Defendant No.4 as his son. The Plaintiff is a relation of the wife of Gobinda, namely, Rajamani. During the life time of Gobinda, he performed the marriage of his three daughters, who wree accordingly staying in other villages. The Defendant No.3 however in view of her separation with her husband is staying at her father's house. After the death of Gobinda, the suit properties were in possession and enjoyment of his widow Rajamani. During the lifetime of Rajamani on account of dissention, a partition had been effected between herself and her three daughters (Defendant Nos.l to 3). Due to difference of opinion and family disturbances regarding the partition, the Defendant Nos.2 and 3 executed a deed of relinquishment in favour of Rajamani in respect of their shares over the properties by accepting a sum of Rs.7,500.00 each from their mother. Such deed of relinquishment was registered on ll.0l.l993. Therefore, Rajamani became the absolute owner in respect of the shares of Defendant Nos.2 and 3 over and above her own existing share. Rajamani, during her lifetime had never executed any Will bequeathing her properties in favour of anyone nor she had adopted anybody and executed any deed in support of any such adoption. On 23.06.l994, the Defendant No.3 is said to have sworn an affidavit stating that she had no natural brother and that her parents never adopted anyone as their son and that she had no claim over the paternal property. During the lifetime of Rajamani, she however had executed a Will bequeathing the suit properties in favour of the Plaintiff in presence of witnesses, namely, Braja Sundar and Satrughana. The Will had been scribed by one Adikanda. It is further stated that Defendant No.4, taking the advantage of the fact that Rajamani was an illiterate lady, got the suit land recorded jointly in the name of Rajamani and Defendant Nos.l to 4 when Defendant No.4 was not the adopted son of Gunanidhi and Rajamani and that had been falsely so indicated therein. There was no document in support of such adoption nor the adoption had been so made by performance of giving and taking ceremony as mandatorily required under law. The land recorded in the name of Defendants by the Settlement Authorities is thus said to be illegal and void. Rajamani died on 22.l0.l999. In view of the death of Rajamani, the Plaintiff, on the strength of said Will, has become the owner in possession of the suit land. The Defendants when created disturbances in the possession of the suit properties by the Plaintiff, the suit came to be filed.