KELU CHARAN BISWAL Vs. PATITAPABAN MOHANTY AND ANOTHER

JUDGEMENT

(1.) Defendant no. 1 is the appellant against the affirming judgment and decree of the Subordinate Judge, Puri, in Title Appeal No.28/133 of 1977/76 who affirmed the judgment and decree of the Additional Munsif, Puri in O.S. No 131/309 of 1976/73-1.

(2.) Plaintiff filed the suit for a declaration of his right over the suit land and for confirmation of possession. A prayer to restrain the defendant by way of injunction not to interfere with the possession of the plaintiff had also been made. According to the plaint case, the property in question belonged to Somanath and Lokanath who were uterine brothers While both the brothers remained joint, Somanath died in the year 1905 issue-less leaving his widow Hiramani. Hiramani died in 1961 and, therefore, the entire property of Somanath was inherited by Lokanath, the only surviving brother. Lokanath executed a will in favour of the plaintiff on 25.2.1963 (Ext.1). Lokanath also died soon after the execution of the will and plaintiff's father obtained letters of administration as guardian of the plaintiff from the court of the District Judge, Puri, in respect of the will in question. In the meantime, some of the properties having intermediary interest vested in the State Government and in a claim case under the Orissa Estates Abolition Act, Lokanath had been recorded. It was the further case that in the Current Settlement Record-of-Rights, plaintiff had been recorded and plaintiff was all along in possession of the property. Defendant no. 2 claiming to be the son of the daughter of Hiramani sold away some of the properties to defendant no.l on the assertion that there was a partition between Hiramani and Lokanath and Hiramani possessed half of the ancestral properties which fell to her share in the partition. On the strength of the so-called sale deed executed by defendant no. 2, in favour of defendant no. 1 when defendant no. 1 tried to disturb the possession of the plaintiff, the present suit was filed.

(3.) Defendant no. 1 contested the suit denying all the allegations made in the plaint. According to the defence case, though Hiramani was a pre-1937 Act widow, but she having died in 1961 after coming into force of the Hindu Succession Act, 1956, her limited interest over the property had ripened to an absolute one. Further, defendant no. 2 was the son of the pre-deceased daughter of Hiramani, namely, Ratani, and, therefore, he was entitled to the property of Hiramani. It was also pleaded in the written statement that the will (Ext.l) obtained by the plaintiff was illegal on account of fraud as defendant no. 2 was rioT made a party and had no knowledge about the same.