NISAMANI BAWA Vs. LAXMAN NAYAK

JUDGEMENT

(1.) Defendants are the appellants against the order of the Additional District Judge, Puri who by the impugned order has set aside the judgment and decree of the learned trial Court and remanded the matter for fresh disposal in accordance with law. The plaintiff filed the suit for declaration that defendants 2 and 3 have not acquired any title in respect of 'Ka' and 'Kha' schedule properties under the registered sale deeds executed by defendant No. 1 in favour of them. Plaintiff is the son of defendant No.1 and defendants 2 and 3 are the married daughters of said defendant No.1.

(2.) According to the plaint case, the properties described in Schedule 'Ka' and 'Kha' of the plaint are the joint ancestral family properties, the joint family consisting of himself and his father, defendant No.1. On 14-5-76, his father defendant No.1 transferred Schedule 'Ka' lands in favour of defendant No.2 and Schedule 'Kha' lands in favour of defendant No.3 by registered sale deeds without any legal necessity and without any consideration and, therefore, defendants 2 and 3 have not acquired any right, title or interest on the basis of those sale deeds. The defendants in their written statement pleaded that the transfer in question was supported by consideration and also for legal necessity and the alienation was made as defendant No.1 was not looked after by his son, the plaintiff, during his old age and he required some money for his illness.

(3.) On these pleadings the learned Munsif framed as many as six issues and on issue No. 4 came to hold that the sale deeds executed by defendant No.1 in favour of defendants 2 and 3 were genuine and for consideration. In answering issue No.5, the learned Munsif came to the conclusion that though the sale was genuine and for consideration, the plaintiff had title in respect of plots Nos.3192 and 3404 to the extent of his interest, the properties being admittedly ancestral properties. He, therefore, declared plaintiffs title in respect of plots Nos.3192 and 3404 but dismissed the suit in respect of other plots. It was further found that the lands in schedule 'Ka' and 'Kha' other than plots Nos.3192 and 3404 were the self-acquired properties of defendant No.1. Against the judgment and decree of the trial Court, the plaintiff carried an appeal to the District Judge. The plaintiff-appellant mainly contested the finding of the trial Court that all other properties apart from plots Nos.3192 and 3404 are the self-acquired properties of defendant No.1. On consideration of the evidence on record, the learned Additional District Judge came to hold reversing the conclusion of the trial Court that all the suit properties were the joint ancestral properties of the family consisting of defendant No.1 and the plaintiff. The finding of the trial Court that the transfers in favour of defendants 2 and 3 by defendant No.1 are genuine and supported by consideration was not challenged and, therefore, was affirmed by the lower appellate Court. Joint family property if sold without any legal necessity for the same, will not confer any right on the transferee. Since the plaintiff in his plaint had categorically asserted that there was no legal necessity for the transfers in question, but there was no issue nor was there any finding by the trial Court on this aspect. The lower appellate Court remanded the matter with the direction that an issue be framed as to whether there was any legal necessity of the joint family for transfer of the suit schedule 'Ka' and 'Kha' lands by defendant No.1 in favour of defendants 2 and 3 and the trial Court would give opportunity to the parties to adduce further evidence on this point and the suit would be disposed of in accordance with law.