MD AFTABUDDIN KHAN Vs. CHANDAN BILASINI

JUDGEMENT

(1.) THERE lived one Kalikrishna Sarkar in the town of Cuttack owning substantial properties. He died immediately after executing a Will on 11-12-1905 (Ext 11)in terms whereof some of his assets were given to his mother add other relatives, some to the family deity Sri Radha Binoda Jew and the rest of the properties were meant to go to his wife Chandan Bilasini (plaintiff No. 1 ). Five executors appointed under the Will were to manage the properties and after meeting the expenses of administration were required to pay the mesne profits to her. The testament absolutely put restriction on alienations by the wife but authorised her to take a son in adoption and in case the first adopted son died, to take another with the approval of the executors. The Will was probated in a proceeding of 1906 and while the executors were in management of the estate of the deceased, plaintiff No. 1 adopted one Sudhansu Mohan Sarkar. The adoptive mother and, the adopted son did not pull on well and their relationship became embittered. Late in 1930's, both the widow and the adopted son started claiming possession of the estate which led to a proceeding before the patna High Court under Section 302 of the Indian Succession Act. The attempt made by the adopted son failed (see AIR 1940 Pat 194, (Sudhansu Mohan v. Harish Chandra) ). Plaintiff No. 1 applied to the District Judge for grant of letters of administration in her favour and the adopted son contested the same. The court allowed the application of the widow on 21-8-1944. On 31st of July, 1961, plaintiff No. 1 sold a pucca building with outhouses in favour of the predecessors of the defendants for a consideration of Rs. 55,000/- (Ext. A ). On 7th of March, 1955, Sudhansu Mohan died while still a bachelor. On 24-8-1965, the widow adopted plaintiff No. 2 and on 30th of September, 1965, she executed a registered deed of acknowledgment of adoption (Ext. 4 ). On 29-41966, the widow and her second adopted son as plaintiffs 1 and 2 filed this suit for declaration that the sale under Ext. A was null and void and not binding on them and the defendants have not acquired any right, title or interest in the disputed property by virtue of the said conveyance on the allegation that from 1951, plaintiff No. 1 had been suffering from dotaga and she had lost the power of understanding; Sailendra, a sister's son, who was managing the properties on her behalf took advantage of the situation, completely dominated the Will of the widow and was abusing his position and the document under Ext. A was one of the several alienations manipulated by Sailendra. It was further alleged that plaintiff No. 1 had no right of alienation and, therefore, the conveyance could confer no title on the alienees. Plaintiffs alleged that they were still in possession. When plaintiff No. 1 recovered from her illness some time in 1965, she came to learn about the fraud practised on her by Sailendra and, therefore, instituted the suit for the reliefs aforesaid.

(2.) DEFENDANTS in a joint written statement disputed the adoption of the second plaintiff and claimed that Ext. A was a valid sale deed conferring full title on them. They contended that the document was genuine and for full consideration-- the consideration amount having been paid before the Sub-Registrar. The asserted that they were in possession. It was further pleaded that the suit was not maintainable in the absence of a claim for recovery of possession and relief of cancellation of the sale deed of which plaintiff No. 1 was sole vendor.

(3.) SEVERAL Issues were framed and the learned Subordinate Judge came to hold:-