Decided on April 25,1950

PURI BANK LTD Respondents


JAGANNADHADAS, J. - (1.) PLAINTIFFS are the appellants in this appeal. The suit is one under Order 21, Rule 63, Civil P. C. and relates to 62 1/2 acres of land at Dolamandap Sahi in the town of Puri with pucca and kutcha structures standing thereon. The facts leading to the suit are as follows :
(2.) PLAINTIFFS are the daughters of defendant 2. Defendants 3 to 6 mortgaged the suit property along with other properties to defendant 1 the Puri Bank, by a deed of mortgage dated l0th march 1934, Ex. 6, for a sum of Rs. 25,000. The Bank obtained a decree on the mortgage and brought this property to sale in Execution case No. 1379 of l94l. The plaintiffs intervened with a claim petition on the ground that the suit property belonged to their deceased mother and not to their father defendant 2, that they are entitled to the same as the Stridhan heirs of their mother, and that their father and brothers mortgaged the suit property fraudulently without their knowledge. (It may be mentioned that under the Patna amendment to Order 21, Rule 63. Civil P. C. a claim proceeding can be instituted also in the execution of a mortgage decree.) The basis for this claim by the plaintiffs is the fact that the suit property has been acquired in bits under six successive sale -deeds ranging from 1902 to 1923 all of which stand in the name of their mother who died on 15 February 19(sic)3. The claim was rejected by the executing Court and hence this regular suit by the plaintiffs under Order 21, Rule 63 to establish their right to the suit -property. The case of the plaintiffs is that the various purchases were made with the stridhan money of their mother while it is the case of defendant 1. the Puri Bank that the purchases were made with the money of defendant 2 and that the sale -deeds were taken benami in the name of his wife The learned Subordinate Judge in the trial Court has, after consideration of the evidence and circumstances, accepted the contention of defendant 1 and dismissed the plaintiffs' suit and hence this appeal.
(3.) THE plaintiffs' father, defendant 2 herein, one Banamali Kar, was a native of the village of Chandpur in the District of Cuttack. He was not a person having any substantial ancestral property and appears to have shifted to Puri more than fifty years ago in order to eke out his livelihood. He took up service with a Bengali Lady named Giribala Dasi who was running an excise shop, a cloth shop and a grocery shop in Puri and other excise shops in the mofussil. He seems to have won his employer's confidence fairly early and became her trusted assistant, and in course of time, the management of her excise business and grocery shop appears to have been left in his hands. As early as in 1911, his employer executed a power -of -attorney in his favour including others, vide Ex, 6. He appears also to have been admitted as a partner with her into her business at one time. When for one reason or other the license of the excise shop could not be obtained by his employer, Giribala Dasi, the shop appears to have been run for a year in his name for her. In so far as can be gathered from the material exhibited in this suit, he had made purchases of various items of property between 1910 to 1923 under as many as 14 Sale -deeds and the property so acquired or the price paid therefor was not inconsiderable.;

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