KARTIK DAS Vs. GANESWAR ACHARYA

JUDGEMENT

(1.) DEFENDANT No. 7 in the suit is the appellant before this Court. He files this appeal against the reversing judgment of Shri R. C. Misra, District Judge, Cuttack, decreeing the plaintiffs suit to set aside certain alienations.

(2.) ONE Dharmu Acharya died in 1944. His widow was Radhi. He had a son Uchhab who died prior to 1936 and his wife is Padma who is defendant No. 1 in the case. The plaintiff's case is that Uchhab, the husband of defendant No. 1, was attacked with serious type of rheumatism and lost all hopes of procreation; that consequently he adopted the plaintiff while the latter was about one year old; and that Uchhab predeceased his father some time after the adoption, in 1936 before the Hindu Women's Right to Property Act came into force. The plaintiff alleged that in 1941 Dharmu executed a will (Ext. 6) bequeathing all his ancestral and self-acquired properties in favour of the plaintiff and died in 1944 leaving behind him besides the plaintiff, his widow Radhi and his daughter-in-law Padma, defendant No. 1. Defendants 2, 3 and 4 are alleged to be the agnates and defendant No. 7 is the brother of Padma. The plaintiff's case further is that defendants 1 and 7 and Radhi joined hands with the agnates and sought to deprive the plaintiff of the suit properties. When the plaintiff was a minor, one Punananda Das, his natural brother, applied to be the guardian of the person and property of the minor which was allowed and letters of administration were granted to him which is Ext. 6. It is alleged in the plaint that the two widows thereafter, that is Radhi and Padma filed a suit for partition in suit No. 17/ 103 of 1948 each claiming l/3rd share in the properties left by Dharmu alleging that to the other 1/3rd the plaintiff was entitled as the adopted son of Uchhab. The learned Additional Munsif who tried that suit found that Padma being a pre-Act widow was not entitled to a share, but only to maintenance. Accordingly it is stated, he directed the properties left by Dharmu to be partitioned equally between Radhi and the plaintiff Ganeswar Acharya who was also the sole defendant in that suit. Ext. 3 is the judgment in the said suit. The plaintiff ganeswar filed an appeal against the decree of the learned Additional Munsif and during the pendency of that appeal Radhi died on 18-1-49. By his order dated 2511-49, the District Judge before whom the appeal was pending ordered that since radhi was dead, her interest devolved upon the plaintiff and that accordingly the decree for partition which she had obtained against the plaintiff became wholly infructuous and disposed of the appeal in those terms. Ext. 5 is the judgment of the appellate court. The plaintiff's further contention is that after the above appeal was disposed of, he alone was entitled to all the properties left by Dharmu, but that both widows began alienating the lands described in the plaint schedules Ka to Cha and that some of the sale deeds were obtained by the alienees, defendants 2 to 7, while radhi was on her death bed, by taking her thumb marks on the documents and getting them registered through defendant No. 8, a daughter of the deceased dharmu. Defendants 2 to 7 are therefore the alienees from the two widows. ' defendant No. 7, the appellant is an alienee of some of the properties from Radhi. The suit, as stated above, was filed to set aside the several alienations on the ground that they were benami, fraudulent and nominal and hence not binding upon the plain-tiff as they were not supported by legal necessity.

(3.) DEFENDANTS 1, 5 and 7 contested the plaintiffs adoption and his right to sue and stated that the alienations in their favour were all true and genuine and supported by legal necessity. They averred that after the death of Uchhab, his right, title and interest vested in Radhi, the mother.