R.N. Misra, J. - (1.) THE Defendant No. 2 is in appeal against an affirming decision of the learned Subordinate Judge, Kendrapara, in a suit for title and possession.
(2.) THE Plaintiff 's case was that the original Defendant No. 1 Bairagi Das had two sons - Risi and Dasarathi. Risi had died long before and Dasarathi died in the month of November, 1956 in a hospital at Calcutta. The second Defendant who is now the Appellant is the widow of Dasarathi. The Plaintiff was also residing in Calcutta where he ran a cloth shop. He had undertaken the treatment of the second Defendant and when inspite of all his care and attention Dasarathi died, his cremation was also made by the Plaintiff. The Defendants 1 and 2 were poor and helpless. He also met their expenses for the obsequies of Dasarathi. Dasarathi had settled to purchase one acre and odd decimals of land from one Murari Charan Rout (p.w. 4) for a consideration of Rs. 1279/ -. It had been agreed that after the payment of full consideration title would pass to the second Defendant. Out of the consideration money Dasarathi had paid Rs. 605/ - and died before the rest could be paid. Murari had to receive the balance consideration money. The Plaintiff paid the same in the circumstances indicated above and obtained the sale deed after registration. In the village, some gentlemen came forward to persuade the Plaintiff ' to accept the charge of maintenance of the Defendant No. 1 who was very old and of the Defendant No. 2 the helpless widow. It was settled that the Defendants would execute a deed of gift in favour of the Plaintiff in respect of their entire properties and the Plaintiff would undertake the liability of their maintenance. Dasarathi died on 13 -11 -1956. Within 14 days from the date of his death Ext. 1, the deed of gift came to be executed. The subject -matter of this deed of gift is about three acres of land including the land which was purchased by Dasarathi. Though the Plaintiff has abided by the terms of settlement and has paid away the debts incurred by the Defendants, they being misguided by home local people threatened to dispossess the Plaintiff. He, therefore, came with the action. The Defendant No. 1 died during the pendency of the suit. In his place came the two daughters. The written statement bad, however, been filed by the original Defendant No. 1 and the Defendant No. 2. They disputed all the allegations made by the Plaintiff and denied even the deed of gift. They stated that while they were in mourning and had received a great setback on account of the death of Dasarathi, the Plaintiff appeared in the scene as a well -wisher, and posed as their protector. The Plaintiff prevailed upon them to execute a will and took them to the registration office and they executed a document under the impression that it was a Will. These Defendants were illiterate. The Defendant No. 2 happens to be a pardanashin lady. They never knew that they were being robbed of all their assets in the world. In February, 1961, the Plaintiff gave out that he had obtained a deed of gift from them and thereby had become owner of the property. Immediately after coming to know about the maneuvering of the Plaintiff they executed a deed of annulations on 3 -4 -1961. The Plaintiff who was coming to their house took away the rent receipts, house tax receipts, the sale, deed executed by Murari and certain other material documents and came up with the dispute raising a false claim.
(3.) AT the trial, four witnesses in all were examined for the Plaintiff. p.w. 1 is a grandson of the Defendant No. 1. He is an attesting witness to the deed of gift, Ext. 1. p.w. 2 is the scribe of Ext. 1. p.w. 3 is the Plaintiff and p.w. 4 is Murari, the vendor of Ext. E, the sale deed in favour of Dasarathi. On the side of the Defendant, the Defendant No. 2 was examined as d.w. 2. An officer of the Land Acquisition Department was examined as d.w. 1 to show that Borne compensation was paid for the acquisition to the Defendant. Several documents were exhibited on either side. The learned trial Judge came to hold that the gift deed was a genuine one and it was intended to be acted upon. The Plaintiff was also in possession. He accordingly confirmed his possession. The suit was decreed.;