TARINI SAHU Vs. BHARAT SAHU AND ORS.

JUDGEMENT

(1.) THIS is an appeal against an appellate order of the Additional Subordinate Judge, Berhampur setting aside the judgment and decree passed by the Munsif, Berhampur in favour of the Plaintiff in a suit for declaration of title and recovery of possession of the disputed properties. These properties admittedly belonged to Bharat Sahu who got them on partition between himself and his brother who is the father of the present Appellant. Bharat had two daughters Malati and Parbati but had no son. Both the daughters were married and Prahallad Sahu, the second Respondent is Parbati's husband. Respondents 3 and 4 are the daughters and Respondents 5 and 6 are the sons of Parbati. On 29 -2 -1932 Bharat executed a sale deed (Ex. 3) in respect of an his properties including his residential house (disputed properties) in favour of his daughter Parbati for the alleged consideration of Re. 300/. It was stated in the sale deed that out of this amount of Rs. 300/ -, Rs. 107/ - was required to discharge the dues of a mortgage bond which Bharat had executed in favour of one Chandra and that the balance of Rs. 193. had been taken previously by Bharat from Parbati for his household expenses. It is the admitted case of the parties that in spite of the execution of the sale deed, Bharat continued to live in his residential house with his daughter and son -in -law and their children and that he and his son -in -law (Respondent No. 2) were jointly cultivating the disputed lands. Parbati died in the year 1951 and on 1 -11 -1957 her husband Respondent No. 2 on behalf of himself and his two minor sons sold the disputed properties to the Plaintiff under registered sale deed (Ext. 1) for a consideration of Rs. 2000/ -. Shortly afterwards there was dispute regarding the possession of the properties between the Appellant (Plaintiff) and Respondent No. 1 (Defendant No. 1) which ultimately terminated in favour of the latter. The Plaintiff -Appellant thereafter brought the suit for declaration of title to the properties and for recovery of possession of the same. Respondent No. 2 and his sons who were impleaded as Defendants supported the case of the Plaintiff'. The suit was contested by Respondent No. 1 whose main defence was that the sale deed (Ext. 3) which he had executed in favour of his daughter Parbati was Benami; that Bharat did so to save the properties from the clutches of his creditors; and that the sale deed was never Acted upon and despite the execution thereof he continued to remain in possession of the properties. Both parties let in evidence in support of their respective cases and on a consideration thereof, the learned Munsif held that the sale deed (Ext. 3) is not Benami and was in fact Acted upon, that after the execution of the sale deed, Parbati acquired valid title to the properties which on her death devolved on Respondent No. 2 and his sons, and that consequently the sale deed (Ext. 1) which the latter executed on 1 -11 -19157 in favour of the Plaintiff passed valid title to the latter. He, therefore, passed a decree in favour of the Plaintiff -Appellant.

(2.) THE learned Subordinate Judge on a review of the evidence came to the opposite conclusion regarding the Benami character of the sale deed (Ext. 3). In doing so, he placed considerable reliance on the circumstance that despite the fact that the sale deed (Ext. 3) was of the year 1932, no steps had ever been taken either by Parbati or after her death by her husband to get the properties mutated in Parbati's name. It is significant that this was not done in spite of the fact that a fresh settlement took place in the year 1950 as evidenced by the Khatian (Ext. 5). He took due note of the fact that although the Plaintiff had filed the second sheet of the original sale deed of the year 1932 on the plea that the first sheet got burnt when his vendor's house caught fire, the first sheet of the sale deed was in fact filed in Court by Respondent No. 1 thereby disproving the story about the alleged burning of the house and the consequent destruction of the first page of the sale deed. The learned Subordinate Judge also placed considerable reliance on the recitals of a document marked exhibit C dated 20 -11 -1956. This document, the genuineness of which is not disputed, is described as an award and is drafted on a plain paper which is unregistered. It is admittedly signed by Bharat Sahu Respondent No. 1; Tarini Sahu (Appellant); Prahallad Sahu Respondent No. 2, on behalf of his minor SOD Gopal Sahu Respondent No. 5; and Madhab Choudhury the eldest son -in -law of Respondent No. 1 as the executants thereof. Certain other Bhadralogs have signed the document as witnesses. It is recited in this document that about 21 years previously Bharat had executed a sale deed nominally in favour of his daughter Parbati, but despite such execution Bharat alone was continuing to be the owner in possession of the properties covered by the sale deed. It then narrates that he bad decided to take on adoption the son of the Appellant. Then follows certain dispositions of a portion of his properties in favour of the minor Respondent No. 5 and certain other relations. The Plaintiff Appellant who was admittedly an executants of this document took the plea that by some mis -representation, Respondent No. 1 obtained his signature on a blank piece of paper. But in the plaint itself he took a different plea, namely, that he signed on Ext. C as it was represented to him that it was a draft adoption deed. Similarly, Defendant No. 2 in his written statement had taken the plea that his signature on the document was obtained by misrepresentation without explaining to him the contents thereof. The learned Subordinate Judge considered these pleas and rightly held that it is highly unlikely that Respondent No.), who was an old man more than 80 years old, could have managed to misrepresent and deceive the Appellant and Respondent No. 2 in the manner alleged. He, therefore, rightly held that Ext. C is a genuine document. There is no dispute that Ext. C being an unregistered document cannot affect any immovable property comprised therein. But this document is relied upon solely for the purpose of explaining the nature of the sale deed Ext. 3. This document contains the previous statement of Appellant and Respondent No. 2 regarding the nature of Ext. C and reliance can certainly be placed on such statements.

(3.) IN the result, the appeal fails and is dismissed, but in the circumstances, without costs.