BISHNU PRIYA DEI Vs. BRUSABHANU MOHAPATRA

JUDGEMENT

(1.) NOT far away the from the Town of Sambalpur and within that district lay the impartible estate of Kolabira until it was abolished by the Orissa Estates Abolition Act, 1951, in November, 1952. Succession to this estate was governed by the rule of primogeniture. At the close of the Nineteenth Century one Chintamoni Singh was the proprietor of this estate. He died on 21-12-1903 leaving behind a son, Nruplal Singh who was then aged about 17, a daughter and two brothers. The estate was taken over by the Court of Wards for management and was released to Nruplal on 15th of January, 1910. During the period the Court was in management, Nruplal had been given some schooling as also training in estate administration.

(2.) SOMETIME in the year 1939, Brusabhanu (defendant no. 1), a young man of the locality, came into employment of the ex-proprietor. It is stated that he first served as a cleaner and soon became the proprietor's driver and was very much in his confidence. Nruplal was suffering from partial paralysis of the body and required constant assistance. Defendant no. 1 apart from rendering service as a driver was also giving various other services to Nruplal. He had even been meddling in the domestic life of the ex-proprietor. Defendant No. 1 was thus in a position to dominate the will of Nruplal. By exercise of undue influence Brusabhanu prevailed upon Nruplal to execute an agreement (Ext. M/2) to sell the only house of the family at Sambalpur and about fifteen months after the agreement obtained a sale deed of this property purporting to be for a consideration of Rs. 7,500/- (Ext. B). The proper valuation of the house would have been more than Rs. 30,000/- at the time of the sale. Nruplal had plenty of money and was never in need of it. There was no occasion for him to sell the property to raise funds for any necessity. It is stated that he was in affluent circumstances having a decent income from land revenue, forests and various other sources. A suit was filed on 26th of March, 1962, by Bira Mahendra, the eldest son of Nruplal and his son Dalim for cancellation of the sale deed (Ext. B) dated 28-6-1951 and for a declaration that the plaintiffs along with defendants 3 to 7 were entitled to the said property and they should be put into possession thereof on eviction of defendants 1 and 2. In October, 1965, the relief prayed for in the suit was amended and it was also claimed that there be a declaration that Ext. B does not bind the plaintiffs and defendants 3 to 7. During the pendency of the suit, Bira Mahendra died and his heirs were substituted. The genealogy given in the plaint is extracted below for convenience:3. The disputed property is 28 decimals of land and a house standing thereon. The first defendant had alienated 9 decimals out of it under a registered sale deed dated 19-12-1960 (Ext. J) in favour of the second defendant. These two defendants filed separate written statements. Brusabhanu claimed that Nruplal was a person of extravagant habits and was always in need of money. He had borrowed from him a sum of Rs. 2,000/- on 17-7-1949, Rs. 2,000/on 3-9-1949, Rs. 2,000/- on 31-12-1949 and Rs. 1,500/- on 24-3-1950 in all Rs. 7,500/- under Ext. L series. He was unable to satisfy the loans under these promissory notes and ultimately agreed to sell the property in dispute and entered into an agreement on 26th of March, 1950 (Ext. M/2) and in due course executed the sale deed (Ext. B). He claimed that he was only a driver and denied all the allegations of undue influence. He alleged that the suit was barred by limitation and the plaintiffs had no cause of action. The second defendant supported the sale under Ext. B and laid claim to a part of the property purchased by him under Ext. J. 4. At the trial, plaintiffs examined eleven witnesses while on behalf of the defendants fifteen witnesses in all were examined. Both parties produced several documents. The learned Trial Judge came to the following findings: