SUDESHNA PADHI Vs. LOYA SUBORNO

JUDGEMENT

(1.) THIS appeal is directed against the judgment and decree passed by the learned Subordinate Judge, Rayagada in Title Suit No. 7 of 1980 at the instance of the defendant.

(2.) THE suit was filed by the respondents for a declaration that the sale of the suit lands by plaintiff No. 2 in favour of the defendant is void and illegal. In the alternative plaintiffs 1 and 3 claimed separate possession of 2/3rd share of the suit lands and mesne profits were also claimed, Case of the plaintiffs respondents in short is that the disputed properties originally stood recorded in the name of Loya Arjuno who is husband of plaintiff No. 1. Plaintiff , No. 2 is the son of Loya Arjuno and plaintiff No. 1 and plaintiff No. 3 is the daughter. Said Loya Arjuno died in or about 1961 leaving behind the plaintiffs who succeeded to the properties. They were holding the properties jointly which included the suit lands. At a later stage, plaintiff No. 1 got the lands recorded in the name of plaintiff No. 2. Few years after death of Loya Arjuno the plaintiff No. 1 re married one Sahukaro Bhaskar and started residing with him along with her two children, plaintiffs 2 and 3. It is alleged that the defendant through her husband influenced plaintiff No. 2 when he was minor and got the suit properties transferred in his name for a loan of Rs. 6000/ in or about 1968. It was represented to the plaintiff No. 2 that for payment of loan he has to obtain mortgage deed under which the defendant would remain I possession for a period of ten years, but a sale deed was executed in respect of the disputed suit properties. Since there was no necessity for selling the lands and no permission had been obtained for the purpose of sale, the aforesaid transfer is alleged to be void and inoperative. It is further alleged that the plaintiff No. 2 issued a notice to the defendant and her husband demanding to return the mortgage deed as well as possession of the land. The defendant sent a reply through her Advocate on 1.5.1978 stating that the suit land had been sold by plaintiff No. 2 in her favour for consideration of Rupees six thousand. In view of the above reply given by the defendant, the suit was filed with a prayer for declaration that the sale deed executed by the plaintiff No. 2 in favour of the defendant is void and inoperative. An alternative prayer was made to the extent that the plaintiffs 1 and 3 being entitled to 1/3rd share each, their shares in the suit properties could not have been transferred by the plaintiff No. 2 and as such 2/3rd share out of the suit properties be decreed in favour of the plaintiffs 1 and 3.

(3.) ON the basis of the aforesaid pleadings of the parties, learned Subordinate Judge framed seven issues. First issue relates to the question as to whether plaintiffs 1 and 3 have got 1/3d interest each in the suit properties. Learned Subordinate Judge on consideration of the evidence found that settlement operations started in the year, 1961 and during that period Loya Arjuno was alive. He further found that since the plaintiff No. 2 was the only son who was to lock after the properties, he raised objection before the settlement authorities and on the basis of such objection, lands were recorded in the name of plaintiff No. 2. Trial Court further found that though exact date of death of Loya Arjuno was not available from both sides. It is clear that he died after 1961. Trial Court further found that by the time Loya Arjuno was died, Hindu Succession Act, 1956 had already come into force and accepting the evidence from the side of the plaintiff that plaintiff No. 1 was managing the suit properties by giving the same on 'bhag', it was held that the plaintiff No. 1 had become absolute owner of the properties after death of her husband and was entitled to her share. So far as parentage of plaintiff No. 3 is concerned, trial Court also found that the plaintiff No. 3 is the daughter of plaintiff No. 1 and Loya Arjuno and as such is entitled to 1/3rd share in the suit properties. Issue Nos. 2, 3 and 4 relate to questions as to whether plaintiff No. 2 was minor on the date of execution of the sale deed and whether the sale deed was obtained from the plaintiff No. 2 on false representation that it was a deed of mortgage. It was found that the plaintiff No. 2 in the year 1968 was a minor and not a major as stated in the deed of sale. Trial Court also found that the sale deed had not been presented in accordance with the provisions of law and no title actually had been passed under it in favour of the defendant. On the above findings, the suit having been decreed, the present appeal has been filed.