MADHUSUDHAN MOHAPATRA Vs. GOBIND SABAT

JUDGEMENT

(1.) THIS second appeal by defendant No. 1 arises out of a suit for declaration of title and recovery of possession.

(2.) BHAGABAN Mohapatra had two sons Ramhari and Arta. Ramhari died in 1944, leaving his widow Sebati. He had no issue. Arta died in 1942 leaving behind three sons, Madhu, Govinda and Nitai the defendants 1, 3 and 5 respectively. Ramesh, defendant No. 2 is the son of Madhu and Padma Charan (D-4), is the son of govind. Ramhari and Arta separated in mess and property fifty years back. Ramahari built a temple with his own funds and installed the deities Radhakrishna and Lalita therein and by a deed dated 8-11-21 endowed about seventy acres of land in favour of the said deities. On 19-1-42 Ramahari executed a will (Ext. 2)wherein he bequeathed all his properties, except those endowed in favour of the aforesaid deities. From the title of the Will (Ext. 2) it appears as if Radhakrishna is the only legatee but when we go to the contents of the document, we find disposition has also been made in favour of Sebati, the widow of the testator. The result of the appeal depends mainly upon the construction of the will. It was the case of the plaintiff that Sebati was given absolute right by the said will and on the strength of the same, she by a deed of gift dated 29-3-51 (Ex. 3] made a gift of some properties including the suit properties in favour of Adwait Charan Das (Plaintitff 2) describing him as the Chella of Ramhari. Sebati died in 1953. On 4-454 plaintiff 2 executed a sale-deed (Ext. 1) in respsct of the suit property which is a residential house, for a sum of Rs. 500/-in favour of the plaintiff No. 1. Sometime after the execution of this document, there was dispute between plaintiffs Nos. 1 and 2 on one side and the defendants on the other regarding the possession of the suit-house and the matter came up before a Magistrate under section 145, Cr. P. C. The Magistrate was unable to decide as to who was in actual possession and took action under SGC. 146, Cr. P. C. and by an order dated 17-653 directed the parties to get their title declared by a competent Civil Court and kept the property under attachment. The plaintiffs thus filed the present suit for necessary declaration of title to the suit property.

(3.) DEFENDANTS 2, 3 and 4 did not contest the suit and remained ex parte. The plea of the other two defendants J and 5 was more or less the same. They challenged the genuineness of the will and the transfers made in favour of the plaintiff and claimed the property as the next heirs of Ramhari. They disputed the adoption of the second plaintiff Adwait as a Chella of Ramhari. Their case was that defendant 1 was in possession of the suit house for over thirty years and had acquired title by adverse possession. They also denied the partition by metes and bounds between ramhari and Arta. Their further case was that Ramhari and Sebati became vaishnabas and had thus renounced the world and met with civil death and as such they had no legal right to make the aforesaid transfers and such transfers are illegal and are of no effect.