JUDGMENT

A. K. PARICHHA, J. : Both the appeals arise out of the judgment and decree passed by the learned Subordinate Judge, Aska in T.S. No.14 of 1974. The appellant in F.A. No.179 of 1983 was the plaintiff No.1 and the appellant in F.A. No.400 of 1980 was the defendant No.2 in that suit.

2. Plaintiffs’ case in essence was the defendant No.3, Chapadhar Sahu and Sridhar Sahu, husband of defendant No.1, were brothers and were living jointly. During the state of jointness, Sridhar died in or around 1933 whereafter his widow defendant No.1 also continued to live in jointness. When the matter stood thus, defendant No.1 adopted plaintiff No.1 in 1959 after per¬formance of necessary rites and ceremonies of adoption and there¬after brought him up, gave him education and got him married to plaintiff No.2. In the meantime, defendant No.3 and defendant No.1 effected partition of the family properties, wherein some lands and houses including the property described in Schedule ‘C’ of the plaint were given to the share of defendant No.1 and her adopted son. Defendant No.1 out of affection executed a will on 10.7.1964 in favour of plaintiff No.1 bequeathing the properties in Schedule ‘C’ to be succeeded by him after her death. The plaintiffs further pleaded that from their own saving plaintiff No.1 purchased Schedule ‘A’ properties and plaintiff No.2 ac¬quired Schedule ‘B’ properties as gift from her father and were in enjoyment of the same. At such juncture, defendant No.2, who was the adopted brother of defendant No.1 poisoned the mind of defendant No.1, who was then an old lady of 80 years and exerting undue influence got executed a gift deed initially in favour of defendant No.3 and subsequently revoking that gift deed again got it executed in his own favour for the suit property. Further in order to harass the plaintiffs, the defendants conspired and got executed a registered deed of cancellation from defendant No.1 cancelling the will executed by her earlier in favour of the plaintiff No.1 and also forcibly took possession of the houses nd removed the good grains and other moveable articles from those houses and did not allow the plaintiffs to enter into those houses. The plaintiffs claimed that Schedule ‘A’ and ‘B’ proper¬ties being their self acquired properties and Schedule ‘C’ properties being the joint family properties, defendant No.1 had no legal right to gift or alienate those properties nd therefore, those documents are legally invalid and void documents. With these pleadings, they prayed for declaration that Schedule ‘A’ and ‘B’ properties are their self acquired properties, that Schedule ‘C’ properties could not be alienated by defendant No.1 and the gift deed in favour of defendant No.2 is void. They also prayed for permanent injunction to restrain the defendants from coming upon Schedule ‘A’ & ‘B’ properties and disturbing their possession and in alternative for grant of recovery of possession of those properties. They further prayed for damages and mesne profit.

3. Defendants 1 to 3 filed joint written statement denying the allegations of the plaint. According to them, defendant No.1 got Schedule ‘C’ land in the year 1963 in the partition between herself and defendant No.3 and she acquired Schedule ‘A’ and ‘B’ properties from her own fund in the name of the plaintiffs by way of benami transaction and hence, she had legal right to alienate those properties. They further pleaded that plaintiff No.1 was never the adopted son of defendant No.1 and that because he was the son of a poor agnatic relation, he was brought and kept by defendant No.1 for domestic help, but out of affection, she gave him education and got him married to her sister’s grand daughter. Defendants pleaded that the plaintiffs had no income or savings enabling them to acquire Schedule ‘A’ and ‘B’ properties. They also pleaded that plaintiff No.1 taking advantage of the old age of defendant No.1 obtained a will by use of fraud and undue influence and on re