Decided on April 30,1973



- (1.) THIS appeal is by defendant No, 2 from the order dated 17-7-1971 passed by the Subordinate Judge in the final decree proceedings whereby the application of one Hadibandhu Panda under Order 22, Rule 10, Civil P. C. to be impleaded as a party in that proceeding as the legal representative of the deceased plaintiff. Surivamoni Dibya, has been allowed on the basis of a deed of gift executed by the said Surjyamoni Dibya in his favour, after holding the said deed of gift to be valid and genuine. Equivalent Citation:
(2.) THE facts leading upto the present proceeding may now be briefly stated. Suriyamoni Dibya filed a partition suit (T. S. No. 84 of 1950) on 23-11-1950 against respondent No. 2 as defendant No. 1 and appellant as defendant No. 2. A preliminary decree was passed on 22-9-1951. An appeal from this decree was carried to this Court by Respondent No. 1 in F. A. No. 6 of 1952 which was ultimately dismissed. Thereafter. Surjyamoni started final decree proceeding. During its pendency, a joint petition was filed by the parties to drop that proceeding on the ground of amicable settlement of disputes between, them, This joint petition was dismissed on 28-7-1966. and M. A. 164 of 1966 was filed in this court against that order of dismissal. One day prior to the dismissal of this joint petition, that is on 27-7-1966. Suriyamoni Dibya executed a deed of gift in favour of Hadibandhu Panda in respect of her properties including what she got in the partition suit. Thereafter, Hadibandhu filed his petition under Order 22, Rule 10, civil P. C. on 5-9-1966 in the Court of the Subordinate Judge for being substituted in place of Suriyamoni, and to carry on the final decree proceeding. Suriyamoni died on 11-10-1967. Subsequently on 5-1-1970 M. A. No. 164/66 was disposed of containing the following direction:--"the status of Hadibandhu Panda who had applied in the Court below to be substituted under Order 22, Rule 10, Civil P. C. in place of the plaintiff has to be first determined. In case it is found that the plaintiff's interest devolved on Hadibandhu. Hadibandhu would be competent to support the objection which had been filed earlier to the dropping of the final decree proceeding. In case Hadibandhu loses his stand, there would be no occasion to make any further enquiry into the proceeding as the legal representatives of the plaintiff would be the defendants. " Thereupon, an enquiry was made into the allegations contained in the petition of hadibandhu under Order 22, Rule 10, Civil P. C. and the counter allegations of the appellant and respondent No. 2 which they had separately made in their counters. All the contending parties to this proceeding adduced their respective evidence on the question of validity of the deed of gift executed by Surivamoni Dibya in favour of Hadibandhu, Ultimately, the Subordinate Judge by his order dated 17-7-1971 held that the deed of gift was a valid and genuine one and the interest of surivamoni Dibya developed on Handibandhu by virtue of that gift deed and directed that he should be impleaded as a party to the final decree proceeding. It is from this order that this appeal has been preferred.
(3.) THE objections of the appellant and of respondent No, 2 were, in substance, (a)that the deed of gift was a fraudulent, inoperative and invalid deed, and (b) the hadibandhu had obtained this deed from Surivamoni an illiterate paradanasin lady, by exercising undue influence on her. They raised a third objection, which is no longer pressed here, that the claim of Hadibandhu to be the legal representative of suriavamoni must be held to be barred by constructive res judicata because he was allowed in C. R. No. 209 of 1968 by this Court to be impleaded as a necessary party on the strength of the deed of sift in the adoption suit No. 16 of 1965 filed equivalent Citation: by the present appellant on condition that he paid Rs. 100/- as costs to the opposite party in C. R. No. 209/68 but failed to get himself impleaded on account of his default in paying the costs.;

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