KARUNAKAR DAS Vs. MAHAKUREN

JUDGEMENT

(1.) This appeal was filed by the 1st defendant against the reversing judgment of the learned Subordinate Judge Bolangir decreeing the plaintiff's suit. The facts are these: The plaintiff filed a suit for declaration of title and for recovery of possession on the ground that the disputed property belonged to his uncle Bhagaban Mahakur, who died in the year 1934. After his death, his widow Samari Mahakurani executed a deed of sale in favour of the 1st defendant for a consideration of Rs. 500/-. The 1st defendant on the strength of this sale deed disturbed his possession, as a result of which a proceeding under Section 145 of the Code of Criminal Procedure was initiated, and eventually, possession was found to be in favour of the defendant by an order of the criminal Court dated 10-7-1953. Accordingly, the plaintiff was constrained to file the present suit on 2-9-1953.

(2.) The defence of the defendant was that the sale of the property in suit was for legal necessity. Out of the consideration of Rs. 500/-, Rs. 400/-was adjusted towards the loans previously incurred by Samari, the executant, and Rs. 100/ was paid in cash on the date of the execution for meeting the medical expenses. It was further averred that the defendant made bona fide enquiries and was satisfied regarding the existence of legal necessity and advanced the loan. He further contended that he was entitled to the statutory protection under Section 53-A of the Transfer of Property Act.

(3.) The trial Court, on a consideration of the pleadings, evidence and circumstances of the case, carne to the conclusion that the sale was for legal necessity and that consideration had passed. He also found the sale deed (Ex. D) to be genuine. Accordingly, in his opinion, the sale was binding on the plaintiff, and eventually, he dismissed the suit. The plaintiff carried an appeal in which the court of appeal below also came to the concurrent finding that Ex. D was a genuine document, but he found that out of the consideration of Rs. 500/-only Rs. 100/- was for legal necessity. He, however, relying on a Calcutta decision came to the conclusion that the defendant could not take the help of Section 53-A of the Transfer of Property Act. In the result, he set aside the judgment of the trial court and decreed the plaintiff's suit. It is against this decision that the 1st defendant has carried this appeal to this Court.