NARAYAN MISHRA Vs. CHAMPA DIBYA

JUDGEMENT

(1.) Champa Dibya, who originally figured as the respondent 1 and has been substituted on her death by the respondent 1/a Bhabani Dei, had instituted a suit for declaration of her title over B, C and D schedule lands after setting aside the deeds of gift in respect of B and C schedule lands (Exts. A and A(1)) said to have been executed by her in favour of appellant 1 and respondent 3 who had figured as defendants 2 and 4 respectively in the suit and the sale deed said to have been executed by her in favour of appellant 3 (defendant 5) which had been got executed by appellant 2, one of the gift deeds being in favour of his son (appellant 1) (defendant 2) then a minor who has attained majority, by practising fraud and deception and by falsely representing to her that she should execute a power-of-attorney in favour of appellant 2 to effectively look after her properties. The case of the deceased respondent Champa was that her late husband Gobardhan had three brothers, namely, Dhoi, Jagannath and Chakradhar, who were members of a joint family and the lands mentioned in schedules B, C and Dformed parts of the schedule A lands which were the joint family properties of the brothers. Dhoi predeceased his father. Gobardhan and Chakradhar (husband of Gurubari, defendant 1) continued to live as members of a joint family and possessed the A schedule properties. On the deaths of her husband and Chakradhar survived by defendant 1 and Bhabani, his daughter, dissensions arose in the family and she (Champa) became separate although the properties were under the control and management of defendant 1 who got the same cultivated through her son-in-law Balaram. Champa took ill and appellant 2 approached her and took up her treatment. Taking advantage of this, he persuaded her to execute a power-of-attorney for effective management of her affairs and to look after her properties and ultimately in connivance with his own scribes and persons close to him, managed to get two deeds of gift and a sale deed executed by her without her knowledge about the real nature of the transactions by practising fraud on her. There was no occasion or necessity on the part of the deceased respondent Champa to execute the deeds of gift and the sale deed and she was not aware of the execution of such documents. Advantage was taken by appellant 2 as the deceased respondent Champa was a pardanashin and illiterate lady who was not in a position to and had not obtained any independent advice.

(2.) Defendants 1 and 5 did not contest the suit and were set ex parte. Appellants 1 and 2 (defendants 2 and 3) filed a joint written statement denying the allegations made in the plaint. According to them, after Jagannath died issueless, there was dissension between Gobardhan and Chakradhar who became separate from each other. Both of them had purchased some properties jointly. Gobardhan had also purchased some properties out of his own income. After his death, Champa approached appellant 2 Benu, her nephew, to look after her affairs and accordingly, he took care of her and managed her properties. After appellant 1 was born, the deceased respondent Champa became very affectionate towards him, took him to her house and brought him up and performed his sacred thread ceremony. On 8-8-1966, Champa, out of her natural love and affection, executed a deed of gift in favour of appellant 1 and put him in possession of the lands conveyed thereunder. She also executed a deed of gift in respect of 16 decimals of land in favour of respondent 3 (defendant 4), her sister's son. She sold some properties to appellant 3 (defendant 5) to meet her legal necessities. According to them, the suit was barred by res judicata and estoppel as the suit instituted by defendant 1 Gurubari (Title Suit: No. 154 of 1967) had been dismissed. The guardian ad litem for defendant 4 has filed a written statement denying the allegations made in the plaint.

(3.) On a consideration of the oral and documentary evidence adduced by the parties, the learned Subordinate Judge has accepted the case of the deceased respondent Champa and decreed the suit preliminarily on contest against defendants 2 to 4 with costs and ex parte against defendants 1 and 5 without costs. The gift deeds (Exts. A and A/1) in favour of defendants 2 and 4 respectively and the sale deed in favour of defendant 5 dated 8-8-1966 have been held to be invalid and have been set aside. The plaintiff's title over the suit properties has been declared and it has been held that the deceased respondent Champa and defendant 1 were each entitled to eight- annas share out of Schedule 'A' properties. The trial Court has ordered that if there would be no amicable partition within a month, the plaintiff would pray for partition by depositing the fees of the survey knowing Commissioner. Accordingly a decree has been passed. The judgment and decree are assailed in this appeal by three of the defendants.