Decided on May 02,1973



- (1.) THIS first appeal has been filed by defendant No 1. It arises out of T. S. No. 33 of 1964 which was filed by the plaintiffs-respondents for a declaration that the defendants 1 and 2 have no right title or interest in suit 'a' schedule property, that the judgment of the. Supreme Court in 3 C A. No. 398 of 1962 is not binding on them and does not affect their interest in 'a' Schedule property and that the decree obtained by defendant No. 1 in T. S. No. 59 of 1953 is not executable against them. Defendant No. I is also the appellant in M. A. No, 207/69. He obtained a decree for specific performance of contract in T. S. No. 59 of 1953 (T. S. No. 11 of 1952 S. J. C.) against defendant No. 2 and executed the same in Ex. Case No. 78 of 1966 in the Court of the Subordinate Judge. Berhampur The plaintiff-respondents filed an application under Sections 47 and 151. C. P. G, objecting to the executability of the decree against them and their interest in the Schedule 'a' Property. That objection was registered as M. J. C. 1548 of 1966 in the Court of Sub Judge. Berhampur and has been allowed by order dated 16-8-1969 It is from this order that the defendant No. 1-- decree-holder has filed this Miscellaneous Appeal. Thus, the subject matter of the two appeals being interconnected have been heard together and will be governed by this common judgment.
(2.) TO understand the matter in controversy, it is necessary to set out the genealogy of the family of Gopinath Sahu to which the plaintiffs and defendants 2 and 3 belong. GENEALOGY gopinath Sahu (died in 1943)= Lalita (died on 13-7-55)| __________________________|_________________________________ | | | ramchandra Rahasa Jamuna (Son)D. 2 (Daughter)P. 1 (daughter)P. 2 | mangala Sau (D. 3)The schedule 'a' Property admittedly belonged to Gopinath Sahu. After Gopi-nath's death in the year 1943, Ram-chandra became the manager of the family and began to squander away the family property being addicted to immoral and bad habits. Lalita, widow of Gopinath and Ramchandra partitioned the properties of gopinath Sahu under a registered partition deed dated 7-1-1952. Ex. 4. But sometime before this parti-tion that is to say on 21-2-1951 defendant No. 2 had entered into a contract with defendant No. 1 to sell the entire suit house for a consideration of Rs. 6. 000/ -. Defendant No. 1 thereafter instituted T. S. No. 11/52 in the Court of the Sub Judge, Berhampur for specific performance of contract. He impleaded defendant No. 2 and Lalita, widow of Gopinath Sahu as defendants. This suit having been transferred to the court of the Additional Sub Judge berhampur was renumbered as T. S. No. 59 of 1953. The trial Court decreed the suit in respect of half of the Schedule 'a' Properties whereupon the defendant No. 1 preferred an appeal to this Court which was numbered as F. A. No. 57/53. During the pendency of the First Appeal, Lalita widow of Gopinath died on 13-7 1955. Defendant No. 1 filed a memo on 21-9-1955 in F. A. No. 57/53 that defendant No. 2 was the sole heir of deceased Lalita and consequenly no substitution was necessary. In result, an order was passed by this Court that the name of Lalita be expunged and that the appeal be prosecuted against defendant no. 2 only. F, A, No. 57/53 was dismissed on 7-1-1959. Thereupon defendant No. 1 filed an appeal in the Supreme Court which was numbered as S. C A No. 398 of 1962. The Supreme Court allowed the claim of defendant No. 1 in full, that is to say defendant No 1 got a full decree for specific performance of contract of sale in respect of the entire house on payment of the balance consideration within a period allowed by the Court. The plaintiffs, who are the daughters of Lalita filed the present suit claiming that property allotted to Lalita, their mother under a registered partition deed was her stridhana property and defendant No. 1 deliberately omitted to implead them in IT. A. No. 57/53 and also in the Supreme court Appeal No 398 of 1962. In result, the Supreme Court judgment as not binding on them and does not affect their right, title and interest in Schedule 'a' property and the decree passed in T. S. No. 59/53 is not for the same reason executable against their interest. This is in substance the case of the plaintiffs.
(3.) DEFENDANT No. 1 alone contested the suit His defence, inter alia was that the deed of partition was a collusive document brought into existence with a view to deprive him of half of the Schedule 'a' property and was never given effect to and that Lalita did not get any absolute interest in the property allotted to her in the partition deed and, as such, that property was not her stridhan property. Upon her death, defendant No. 2 and not the plaintiffs was her next heir to inherit her properties. Defendants 2 and 3 supported the case of the plaintiffs.;

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