Decided on January 01,1973

GAJENDRA KAR Respondents


- (1.) THE plaintiffs have preferred this appeal against the reversing decision of the first Addl. Subordinate Judge, Cuttack in Title Appeal No. 191 of 1966.
(2.) ACCORDING to the plaintiffs, plaintiff Nos. 1 to 3 and pro forma defendant No. 6 are brothers and are members of a Hindu Mitakshara joint family of which plaintiff no. 1 is the Karta. Plaintiff No. 3. one of the sons of plain-tiff No. 1. has been adopted to one Padmanay. Defendant No. 5 is the wife of defendant No. 6, but she has left defendant No. 6 and has remarried one Benudhar Acharya of Arjunpur and is living with him in his house. Defendant Nos. 1 to 4 are members of a Hindu mitakshara joint family of which defendant No. 1 is the Karta. Defendant Nos. 1 to 4 are the first cousins of the plaintiffs. The suit properties described in Schedule A of the plaint are the joint ancestral properties of the plaintiffs and defendant No. 6 and there has been no partition of the properties or ascertainment of their shares in the same at any tune. According to the plaintiffs, at the instance of and in collusion with defendant No. 1, defendant No. 5 exercised undue influence on defendant No. 6, who executed a Kabala in favour of defendant No. 5 on 28-81962 in respect of Ac. 0. 29 14/16 decimals of land and another Kabala on the same day in favour of defendants Nos. 1 to 4 in respect of Ac. 0. 19 decimals of land. All these transactions were without any legal necessity, without any consideration and were not acted upon. Plaintiffs Nos. 1 and 2 came to know of the execution of the aforesaid Kabalas only after defendant No. 5 left the family and went to live at her father's place. On enquiry defendant No. 6 admitted before plaintiffs Nos. 1 and 2 that these Kabales were taken from him on the undue influence of defendant No. 5 and defendant No. 1. Soon thereafter defendant No. 6 executed deeds of cancellation nullifying the effects of the two Kabalas. On the above averments the plaintiffs have instituted this suit for a declaration that the plaintiffs and defendant No. 6 have title to the suit lands and that defendants Nos. 1 to 5 have not acquired any right title or interest over the said property on the strength of the aforesaid Kabalas executed in their favour. They further aver that the said sale deeds are not binding on the plaintiffs.
(3.) DEFENDANTS Nos. 1 to 4 and 5 filed separate written statements but the case averred by them is substantially the same. According to them plaintiffs Nos. 1 to 3 and pro forma defendant No. 6 are no longer members of a joint Hindu family, nor plaintiff No. 1 is the Karta of the said family. According to them the plaintiffs and defendant No. 6 long time back were members of a joint family and as defendant no. 6 became diseased and could not earn his livelihood, he needed large amount of money for his treatment whereupon dissensions arose between him and the plaintiffs. Ultimately defendant No. 6 separated from his brothers both in mess and property in April 1959. Defendant No. 6 then left the family house and shifted to Arjunpur, where he his wife Khetramani (defendant No. 5) and their children lived in the house of the maternal uncle of defendant No. 5. Defendant No. 5 has not married for the second time. Defendant No. 6, after separation got his share of lands cultivated separately through his own men and was in enjoyment of the usufructs thereof. Defendant No. 6 was ailing all through and later suffered from dropsy and on account of his treatment he had to incur loans from several persons including defendant Nos. 5 who advanced money to him from out of her Stridhan funds. Defendant No. 6 had to remain in the hospital for quite some time for treatment and after he was discharged from the hospital he proposed to sell the suit land. Accordingly defendant No. 5 and defendants Nos. 1 to 4 purchased the suit property by registered sale deed on 28-8-1962 for consideration, and the vendees took possession of the property in accordance with the sale deed. According to the defendants, the deeds of cancellation executed by defendant No. 6 are not genuine and the same do not have the legal effect of defeating the title of the defendants.;

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