NILA DEI Vs. BIDYADHAR SAHANI

JUDGEMENT

(1.) This is an appeal against the judgment of the learned Sub-Judge, Bhubaneswar in a suit for partition.Case of the plaintiff is, Bairagi Sahani died on 8-2-1976 leaving behind plaintiffs 1 and 2 and defendants 2 to 4. The property in question consist of movable and immovables. After death of Bairagi all the sisters are entitled to their respective shares in the property of Bairagi. But defendant no. 1, husband of defendant no. 2 (sister of the plaintiff) putforth a claim in respect of the entire properties by virtue of a deed of gift purported to have been executed by Bairagi. It is plaintiffs case that Bairagi at the time of execution of gift deed was extremely old and both physically and mentally ailing. Therefore, execution of such a deed under suspicious circumstances did not convey any title in respect of the properties of Bairagi.Defendants 1 and 2 contested the case on the ground that though Bairagi was a rheumatic patient he never lost his mental alertness and while executing the deed of gift he understood the contents thereof and being satisfied with signed the same in presence of witnesses.

(2.) The Lower Court framed the following issues :

(3.) None appears for the respondents. Mr. S. N. Satpathy learned counsel for the plaintiffs-appellants drew attention of this Court to the relevant portion of the judgment, evidence on record and strenuously urges that the learned Sub-Judge committed gross error in overlooking the provisions of law relating to the execution of deed of gift by a person with mental debility. It is strenuously urged by Mr. Satpathy that admittedly few hours after the execution of the deed Bairagi died. It is further submitted that in view of the admitted case of the plaintiff that Bairagi was a chronic rheumatic patient, it could be inferred that Bairagi was not in a fit mental state and therefore onus lay on the defendants to prove that he was in a fit state of mind and this defendant failed to do and therefore the judgment is liable to be set aside.This contention of Mr. Satpathy needs examination.