NASAR KHAN AND ORS. Vs. SITA BEWA

JUDGEMENT

(1.) THIS is Defendants' second appeal against the reversing judgment of the lower appellate Court arising out of a suit for declaration of title and confirmation of possession or, in the alternative, recovery of possession in respect of the disputed homestead appertaining to plot No. 875. The husband of the Plaintiff who according to the Plaintiff was addicted to intoxicants sold away, the homestead in question - on the basis of a Kabala dated 24th April, 1942 in favour of Defendant No. 1. The Plaintiff's prayer is that the Kabala is ineffective, inoperative and invalid against her under the law revealing in the State of Dhenkanal where the parties are residents. Defendants 2 to 4 claim the disputed homestead on the basis of an exchange with Defendant No. 1.

(2.) SEVERAL points were raised in defence, But the points of controversy have been settled by the concurrent findings of facts of both the Courts below that the disputed property is the homestead of the Plaintiff's husband and they the Plaintiff and her husband had no other residential house. It has been found that the Plaintiff is still continuing in possession and further that the Plaintiff had not consented to the Kabala dated 24th April, 1942 executed by her husband in favour of Defendant No. 1.

(3.) IT is however strongly contended on behalf of the Appellants that this rule of law in the Dhenkanal State must be taken to have been completely abrogated by the provisions of the Administration of Orissa States Order, 1948 (hereinafter called 'the Order). It is urged on behalf of the Appellants that the rules of law prevalent in the State of Dhenkanal which are repugnant to the provisions of the enactments scheduled in the Order must be deemed to be void. The provision "that the transfer of homestead without the consent of the wife is void" is repugnant to the provision of free transfer in accordance with the sections of the Transfer of Property Act. The defence do not stop here, but their main contention is that such a provision rendering this pertinent rule of law as repugnant and void contained in the Order is also retrospective, and, as such, the transfer of the year 1942, which is being assailed in the present suit, must be held to be a valid one being in accordance with the provisions of the Transfer of Property Act.