KARPURA BHOIANI Vs. BHASKAR BHOI AND ORS.

JUDGEMENT

(1.) THIS is a Plaintiff 's second appeal from the reversing decision of the Sub Judge, Bolangir dismissing her suit for declaration of title to and recovery of possession of the suit lands after evicting the Defendants therefrom.

(2.) THE Plaintiff 's case may be briefly stated. She married Defendant No. 1 about 4 years back in Bandei form, a form of marriage sanctioned by caste custom. This marriage was preceded by a negotiation between Defendant No. 1 and the Plaintiff 's father in which the latter insisted that the Defendant No. 1 should make a gift of the suit lands to the Plaintiff by way of security for her future as the Defendant No. 1 had already his first wife living. Defendant No. 1 agreed and after solemnization of his marriage with the Plaintiff executed the deed of gift on 19 -8 -1960. The recitals of the deed of gift, however, indicated as if Defendant No. 1 was making the gift of natural love and affection for the Plaintiff. The Plaintiff accepted the gift and remained in possession of the same for one year. In 1961, that is to say, after lapse of one year of the marriage Defendant No. 1 is alleged to have deserted the Plaintiff and prevented her from cultivating the suit land and finally, on 29 -11 -1963, he refused to part with the suit land. This action on the part of the Defendant No. 1 has compelled her to file the present suit. Defendant No. 2 is said to be the adopted son and Defendant No. 3, the first wife of Defendant No. 1. The Defendants 1 and 3 contested the suit. They deny the plaint allegation of marriage between the Plaintiff and Defendant No. 1 and of their living together as husband and wife. They also contend that the alleged gift deed by Defendant No. 1 to the Plaintiff was never executed and is void in law. It is admitted that there were some negotiations for the marriage between the Plaintiff and Defendant No. 1, but the same fell through and the marriage never took place. In the alternative, it is pleaded that even if the marriage of the Plaintiff with the Defendant No. 1 were true, it would never the less be void because at the time of marriage, Defendant No. 1 had a wife living, namely, Defendant No. 3. The suit land originally belonged to Plaintiff 's father who sold it to Defendant No. 1 and the consideration money for it was paid out of the joint family funds of the joint family comprising of the three Defendants and Defendant No. 1 had, therefore, no competency to alienate it by way of gift.

(3.) THE trial Court found that ,(a) the Plaintiff married Defendant No. 1, but the said marriage was Void ab initio, (b) the Defendant t No. 2 was not the adopted son of Defendant No. 1, (c) the suit land is ' not the joint family property of the Defendants, but was the separate property of Defendant No. 1 and he was competent to transfer it by way of gift and that transfer could not be challenged by Defendants 2 and 3, and (d) the deed of gift was validly executed by Defendant No. 1 and was valid in law. Accordingly, the Plaintiff acquired good title to the suit property. On this findings he decreed the suit.