MADHUSUDHAN RAY Vs. ANANTA CHARAN BEHERA

JUDGEMENT

(1.) PLAINTIFFS are the appellants against a confirming judgment. Plaintiff No. 2 is the son of plain-tiff-1. Plaintiff-1 had a brother named Haraprasad who died in 1954. Haraprasad's wife is Jadi, who is not a party to the suit. Jadi executed a registered sale deed (Ex. 4) on 24th July 1956 in favour of the defendant. Plaintiffs' case was that piaintiff-2 was the adopted son of Haraprasad and Jadi had no power of alienation of the disputed land without legal necessity. The suit was for declaration of title, confirmation of possession and in the alternative for recovery of possession and also for setting aside the sale deed. The defendant contested the suit alleging that plaintiff-2 was not the adopted son of Haraprasad, and that on the death of Haraprasad Jadi was entitled to his interest under the Hindu Women's rights to Property Act, and she had absolute power of disposal subsequent to hindu Succession Act, 1956 (hereinafter to be called the Act.)

(2.) THE Courts below concurrently found that Haraprasad died in a joint status with the plaintiffs in 1954 and the plaintiff No. 2 was not the adopted son of haraprasad. As the alienation was subseauent to the Act, no finding was recorded as to whether the alienation was for legal necessity. They therefore dismissed the suit.

(3.) IN Second appeal, Mr. Das does not contest the concurrent findings of fact. The only point raised by him is that Jadi had no power of alienation of the disputed property without the consent of the plaintiffs as there was no disruption of the joint status in the family. This point is permitted to be argued for the first time in the High Court, though not taken up in the courts below, as it is a pure question of law arising out of the concurrent findings, namely, Haraprasad died in joint status and the alienation was effected by Jadi at a time when the coparcenery did not disrupt.