SULOCHANA DEI Vs. KHALI DEI

JUDGEMENT

(1.) This appeal has been directed against the judgement and decree passed in the suit instituted by the appellant as the plaintiff for a declaration of her title over the lands in suit and confirmation of her possession thereof and for permanent injunction restraining the defendants-respondents from interfering with her possession over the suit properties.

(2.) The appellant is the daughter of late Chintamani Dalai born through Khali Dei (respondent 1). On the death of Chintamani, Khali had taken a second husband (respondent 1(a)) according to the Dwitya form of marriage. The respondent 2, who had figured as the defendant 2 in the Court below, is the brother of Khali. According to the plaintiff-appellant, the properties described in schedule 'A' of the plaint were the ancestral raiyati lands of the family and the properties described in schedule 'B' of the plaint were Khamar lands belonging to her. In 1954, her father died leaving her and his widow Khali. In the month of Falgun of the year 1956, Khali remarried Gouranga (respondent 1(a)) and on and from the date of her remarriage, she ceased to be the widow of Chintamani and consequently lost her title over the properties left by her deceased husband and the appellant became the sole owner thereof. In order to grab the properties, the respondent 1 executed and got registered a nominal sale deed in favour of her brother (respondent 2) in July, 1971 in respect of Schedule 'A' properties and this transaction was a fraudulent one and was not for consideration. Thereafter, the respondents attempted to create troubles in the peaceful possession of the appellant over the suit properties which led to a proceeding under S.145 of the Code of Criminal Procedure in which possession of the respondents 1 and 2 was declared. It was thus that the appellant came to the Court in a suit for the aforesaid reliefs.

(3.) The respondents 1 and 2 had put in separate written statements substantially pleading the same facts. Their case was that the suit was bad for non-joinder and misjoinder of parties. According to them, Khali remarried the respondent 1(a) in the year 1958 and not in the year 1956, as falsely averred by the appellant and after coming into force of the Hindu Succession Act, 1956 (the 'Act', for short), Khali acquired exclusive title over the properties under the Act which remained unaffected by her marriage with the respondent 1(a). The sale effected by her in favour of the respondent 2 was for consideration and legal necessity and this had been done to perform the marriage of the appellant.