MT MANTORNI Vs. KRISHNA BALLABH RAI

JUDGEMENT

(1.) The question for decision in this appeal by the defendant which has been referred to a Division Bench by a learned single Judge of this Court is whether the suit of the plaintiff is barred by the principle of constructive res judicata.

(2.) The facts lie in a narrow compass: Hitlal Rai a separated member of a joint family had two sons, Pulkit Rai and Mahadeo Rai, the father of the plaintiff Krishna Ballabh Rai. Pulkit and Mahadeo also were separate so that Pulkit became entitled to a separate share in the properties including the" properties in suit. After the separation from Mahadeo Rai, Pulkit Rai sold 1 bigha and 13 kathas of land to the plain, tiff on 21 January 1926, A few months after, Pulkit Rai executed a sale deed in favour of his daughter Mt. Thakani with respect to 16 kathas 15frac12; dhurs of land on 10 April 1926 -- this 16 kathas and odd land was a portion of the land covered by the sale deed of January 1926. Pulkit Rai died in 1937 and his estate descended to Mt. Thakani who took possession as a Hindu widow's estate. She died in 1939, but before her death she executed a deed of gift in favour of Mt. Mantorni, the appellant before us.

(3.) The present suit was instituted on 20 January 1945 by Krishna Ballabh Rai for a declaration that the deed of gift was a fraudulent transaction and Mt. Thakani was not in a conscious state of mind during her illness. It is claimed in the first place that Pulkit Rai had no right left in the property in suit after he had executed the sale deed in favour of the plaintiff in January 1926, and secondly, that even if he had any title the plaintiff being the reversioner of Pulkit is entitled to possession on the death of the last limited owner, namely, Mt. Thakani, who died in 1939.