BUDHI JENA Vs. DHOBAI NAIK

JUDGEMENT

(1.) DEFENDANT No. 2 Budhi Jena being unsuccessful in both the Courts below has filed this second appeal against the confirming decision of Sri L. Panda, Subordinate Judge of Puri. The plaintiff has brought the suit for a declaration that the sale deeds dated 24th May, 1944 (Ext. A/1) and dated 9th June, 1949 (Ext. A) are invalid and inoperative against his interest. The suit property with an area 34, i.e., less than a gunth appertains to plot Nos. 287 and 289 of Khata No. 60 of Mouza Banarai. Undoubtedly this is the ancestral property of the plaintiff. The plaintiff was absent at Rangoon for a number of years during which period the plaintiff's wife Nila Dei executed the first sale deed dated 24th May, 1944 (Ext. A/1) in favour of defendant No. 1 for herself and as guardian of her two minor sons. The second transaction (Ext. A) is by defendant No. 1 in favour of defendant No. 2. The plaintiff's main attack is that the transaction in favour of defendant No. 1 by Nila, his wife, for self and as guardian of his two minor sons, is not supported by legal necessity and further that she is absolutely incompetent, according to the concepts of Hindu law, to execute such a transaction, and the said transaction, therefore, is invalid and inoperative.

(2.) INDEED if the first transaction in favour of defendant No. 1 fails, the Kataala in favour of defendant No. 2 by defendant No. 1 need not be considered, and it is equally clear if the first transaction is held as binding on the plaintiff, the plaintiff's suit is bound to fail.

(3.) THE first question we propose to take 'P' is whether the transaction is supported by legal necessity or not. If the point is decided in favour of the plaintiff no further question would arise.