INDRAMANI BAI Vs. SWETA KUMAR PANIGRAHI

JUDGEMENT

(1.) PLAINTIFF is the appellant. Her case may be stated in brief. Defendant 1 is the husband of defendant No. 2 and father of defendants 3 to 7. They constitute a hindu Mitakshara joint family of which defendant 1 is the Karta. They have their houses in the town of Athmallik and also in village Kandhapara whereto their agricultural lands are situate. Defendant 1's wife was seriously ill. So he wanted to shift his residence from the athmaltik town. For the purpose of purchasing a new house-site and constructing a house thereon and for repayment of loan incurred from the Co-operative Bank, defendant 1 wanted to dispose of the house site mentioned in the schedule attached to the plaint and sold the land with the house thereon to the plaintiff for rs. 1175-00. On 2-2-1959, he executed a contract for sale (Ex. 4) on payment of rs. 100/ -. On the next day, he executed a registered sale-deed (Es. 1) on behalf of himself and his minor sons and received the balance of Rs. 1075. 00. A formal delivery of possession was given; but the defendants were allowed to continue in the house for 2 months. As the house was not subsequently given possession of, the suit is filed for declaration of title and recovery of possession.

(2.) DEFENDANT 1 was ex parte. Defendants 2 to 7, contested the suit challenging the alienation. They averred that there was no necessity for purchasing a new house site and there was also no immediate necessity for liquidating the loan from the co-operative Bank. They further stated that defendant 1 was not the Karta of the family and the sale was not for adequate consideration. It is admitted that defendant 2 was attacked with tuberculosis; but on proper treatment being held at Kalabandi Tuberculosis Hospital, she had fully recovered and returned to that suit house where she resides for the last three and half years and that there was no necessity for shifting from the suit house. The suit property is the ancestral family house and defendant 1 had sufficient earnings from his business as a tailor and had no necessity to effect the sale.

(3.) THE learned Munsif recorded the following findings :-