LAXMI DEBI Vs. SURENDRA KUMAR PANDA

JUDGEMENT

(1.) THIS is a plaintiff's appeal arising out of a suit by her for declaration of her reversionary right in respect of the properties left by one Brajamohan Praharaj mohapatra, the last male-holder and for a further declaration that defendant 1 is not the adopted son of the said Brajamohan. Plaintiff Js the lull sister of brajamohan who died on 3-12-43 leaving behind him three widows who are defendants 2, 3 and 4. Defendant 1 is alleged to be the adopted son of Brajamohan; the adoption having been made by the widows after his death on the basis of an authority given by him during his life time. The plaintiff thus challenged the validity of the adoption and prayed for a declaration that defendant 1 was not the adopted son of Brajamohan. It is further averred in the plaint that Brajamohan had a son and a daughter who predeceased him. Defendants 2 and 3 in their written statement not only supported the adoption of defendant I, but also stated that Brajamohan left a daughter named Basanti born to him through defendant 2 and that she was still alive. Accordingly they challenged the right of the plaintiff-appellant to institute the present suit on the ground that she was not the nest reversioner. Defendant 4 who is the third widow of Brajamohan first filed a joint written statement along with defendants 1, 2 and 3, but subsequently resiled from it and supported the appellant's case and stated that the girl set up by defendants 1, 2 and 3 is not the daughter of Brajamohan, but of one Braja Misra, a Pujari of the Thakurbadi, installed in the residential house of the deceased Brajamohan. On these pleadings, the main issue framed in the suit, at the first instance, was: whether defendant 1 was the validly adopted son of Brajamohan and whether the plaintiff and her sons are the ultimate reversioners?

(2.) THE learned Subordinate Judge in his judgment dated 30-3-1946, while holding that the adoption of defendant 1 was invalid, came to a further finding that basanti was the daughter of Brajamohan and as such was the next heir, and accordingly, the plaintiff has no reversionary right and dismissed the suit.

(3.) AGAINST this judgment the present appeal was filed on 26-7-46. The plaintiff-appellant filed a petition on 6-7-53 for amendment of the plaint by impleading basanti Dei as defendant 5 and for other consequential amendments. After notice to the parties, a Bench of this Court allowed the amendment on 21-9-53. When the appeal came up for hearing, Mr. M. S. Rao, learned counsel for the respondents, urged that in view of Basanti Dei having now become a party, a fresh issue should be framed and the parties should be allowed to lead evidence in respect of that issue. Accordingly, a Bench of this Court remanded the case to the court below for decision after framing a fresh issue as issue No. 8. Issue No. 8 runs as follows: