SHRIDHAR GHOSE Vs. HARIMOHAN SAHU

JUDGEMENT

(1.) DEFENDANT is the appellant. Deceased Chaitanya Karji Ratna adopted Gadadhar who predeceased him in 1943-44. Plaintiff is the son of Gadadhar. In 1944, jhampi, mother of the plaintiff, filed Original Suit No. 11 of 1944 in the Court of the Munsif, Berhampur, as the next friend of the then minor plaintiff, for a declaration that Gadadhar was validly adopted by Chaitanya, and for partition of the properties into two equal shares between the plaintiff and Chaitanya. That suit was decreed on compromise on 17-1-47 in terms of the compromise decree (Ex. B ). Admittedly the disputed property fell to the share of Chaitanya and his wife jasoda-- Chaitanya died in 1947. Jasoda transferred the disputed land in favour of the defendant, her son-in-law, by a registered deed of gift (Ex. A) on 6-5-1947. The execution of the deed of gift by Jasoda and its acceptance by the donee had not been challenged by the plaintiff. He took the stand that Jasoda had no right of alienation under the compromise decree and the deed of gift was not binding on the plaintiff. The present suit is for declaration of title and recovery of possession and for mesne profits at the rate of Rs. 750/- per annum till recovery of possession.

(2.) DEFENDANT contested the suit alleging that under the compromise decree both chaitanya and Jasoda got the disputed property absolutely as joint tenants with the consequence that on the death of one, the other would also be absolutely entitled to the entire property. The conveyance of a valid title under the deed of gift was asserted. A further plea was taken that the defendant had spent about Rs. 3000/- over the marriage ceremonies of the 2nd and third daughter of Chaitanya. In pursuance of the deed of gift the defendant is in possession of the disputed property.

(3.) BOTH the Courts below have concurrently found that under the compromise decree Jasoda was allowed to enjoy half of the interest in the disputed property with her husband absolutely. But there being no definement of shares between chaitanya and Jasoda, each of them was entitled to equal shares in the disputed property as tenant-in-common. The deed of gift was operative to the extent of half the interest of Jasoda conferring absolute title on the defendant. With regard to the other half, they, however, held that on the death of Chaitanya, Jasoda had a limited interest and the gift of such interest was not binding on the plaintiff after the death of Jasoda. Defendant's contention that the deed of gift can be construed as a sale for consideration and legal necessity was rejected by them. The trial court declared plaintiff's title to half of the disputed property and put him in joint possession of the same with defendant until partition by metes and bounds. Against the trial Court's decree, plaintiff filed Title Appeal No. 56 of 1961 and defendant filed Title Appeal No. 77 of 1961. Both the appeals were dismissed by the learned Additional District Judge. Against the decree in T. A. 77/61, defendant has filed Second Appeal No. 108 of 1962. Plaintiff did not file any appeal against the decree in T. A. 56/61. He has, however, filed a cross-objection in S. A. 108 of 1962.