Judgement

MOHAPATRA, J. :- This second appeal is against the confirming judgment dated 30-1-48 of Sri C.C. Coari, District Judge of Cuttack, in M.A. 124 of 1946. It is defendant 1 who is the appellant in this second appeal.

2. The plaintiff (Narasingha Chandra Panda), Dibyasingha (the deceased husband of defendant 2) and Babaji were three brothers. Babaji died long ago leaving no heirs. Dibyasingha died on 20-4-34. Defendant 2, the widow of Dibyasingha, executed a deed of sale in favour of defendant 1, the appellant, on 16-2-44. The plaintiffs present suit is on the allegation that Dibyasingha died in a state of jointness with him, and as such, plaintiff is the sole surviving coparcener, and defendant 2 had no right, title or interest whatsoever in respect of the property to execute a valid deed of transfer in favour of defendant 1. So he prays for declaration of title and for confirmation of possession, or in the alternative, for recovery of possession.

3. The defence is that there was separation in status between the plaintiff and his deceased brother Dibyasingha; as such, defendant 2 could execute a valid deed of transfer in favour of the appellant.

4. Both the Courts below have com