ABHIRAM SABAT Vs. SHYAMSUNDAR SABAT

JUDGEMENT

(1.) THIS is an appeal by the plaintiffs against the judgment of the Subordinate Judge of Berhampur partially decreeing their claim. There is also a cross-objection by some of the contesting defendants against that portion of the decree which went against them.

(2.) THE following geneological tree will be helpful in appreciating the points involved in this litigation : Patito Sabata was a very well-to-do person with extensive landed properties in Sasan Ambagaon and other villages in Hingilikati Police Station of Ganjam district. His eldest grandson Shymasundar unfortunaetly proved to be a profligate and waster. He was wayward, addicted to liquor and women and used to visit prostitutes since 1942. Even his marriage with defendant No. 2 did not bring about any improvement in his way of life. On the other hand, he began to take away his wife's ornaments and to utilise them for his dissipation. Being in need of money for his debaucherous life he began to freely alienate his interest in the joint family properties. Thus in 1945 he mortgaged his interest with one Madan Mohan Padhi (Exhibit 1) for Rs. 6400/-. He would not listen to the remonstrance of his father Raghunath (P.W. 9) or his grand-father Patito (who was then alive) and thereupon these two persons with a view to prevent further alienation of the property persuaded him to relinquish his entire interest in the joint family properties (Exhibit 2) on 10-10-1945 in favour of Patito after receiving some cash. Patito then redeemed the mortgage on 10-3-1946. During his life-time in 1949 he effected partition between the two sons, namely Raghunath and Radhakrushna giving away ten annas share to Raghunath and six annas share to Radhakrushna. Thus though Shyamsundar by his own act of relinquishment lost all the interest in the ancestral property his father Raghunath (P.W. 9) had affection for him and did not want him to become absolutely penniless specially as he had a wife alive. Hence in 1953 while executing a partition deed between himself and his other two sons Arjun (Plaintiff No. 2) and Kishore Chandra (plaintiff No. 3) (Exhibit 3) he set apart some lands and a house for the maintenance of Shyamsundar, his wife and sons to be born, but made a clear stipulation to the effect that Shyamsundar had no right to alienate the properties thus set apart either by gift or sale and these, after his death, would devolve on his sons, who would have absolute interest in the same.

(3.) I would, therefore, hold that the alienations made by Shyamsundar would be void as he had no right to transfer the properties obtained by virtue of Exhibit 3. The alienations cannot be held to be valid even during his life time.