SMT. KANAKALATA DEI Vs. BABAJI CHARAN GOCHHAYAT

JUDGEMENT

(1.) This appeal has been directed against the judgment and decree passed by the learned Ad hoc Additional District Judge, Fast Track Court No. IV, Cuttack in RFA No. 138 of 2006. By the said judgment and decree, the lower appellate court has confirmed the judgment and decree passed by the learned Civil Judge, Sr. Divn., 2nd Court, Cuttack in T.S. No. 42 of 2002. The suit filed by the respondent as the plaintiff having been decreed declaring the plaintiff-respondent as the son of Sadhu and Dura Dei with further declaration of the deed of gift standing in favour of appellant-defendant No. 1 as nullity followed by passing of a preliminary decree declaring plaintiff's half share over â ... "rd share of Dura that she had over the suit property, the grant of all those reliefs have been upheld in appeal. Thus, the unsuccessful defendant No. 1 is now in second appeal under Section 100 of the Code of Civil Procedure before this Court.

(2.) For the sake of convenience, in order to bring in clarity and avoid confusion, the parties hereinafter have been referred to as they have been arraigned in the trial court.

(3.) Plaintiff's case is that one Bai Gochhayat had two sons and one daughter namely, Bulei and Suka and Dura. Bulei's widow is Budhi. She was defendant No. 2 in the suit as also respondent No. 2 in the lower appellate court and now during pendency of this appeal, she having died, her name has been expunged as dead. Suka was the defendant No. 3 in the trial court as also respondent No. 3 is the lower appellate court. She having died during pendency of this appeal, her name has also been expunged as dead. The plaintiff claims to be the son of Dura and it is said that the defendant No. 1 is his sister and their father is Sadhu. It is stated that after the death of Dura, the plaintiff claimed mutation in respect of half property towards Dura's share and then the dispute arose between the plaintiff on one hand and defendant No. 1 on the other. Defendant No. 1 raised objection for the said prayer of mutation. There she stated that the plaintiff is the adopted son of Bulei. In that proceeding, the defendant No. 1 produced a deed of gift dated 21.4.80 said to have been executed by Dura in her favour in respect of land measuring Ac.0.120 decimals. In view of the dispute with regard to the status as well as other disputes, the Mutation Authority directed the parties to take shelter in the Civil Court. The plaintiff claims that husband of defendant No. 1 being a shrewd and intelligent person had managed to obtain such deed of gift by exercising fraud and taking advantage of the illiteracy and simplicity of Dura Dei. Dura is said to have died on 20.3.2000 and Bulei on 21.11.78. It is stated that Budhi had never consented to such deed of gift which also does contain any recital of partition. The claim of the defendant No. 1 that he is the adopted son of Bulei is said to be false. With all these, plaintiff prayed for the following reliefs:-