The intention of the parties in a sale deed is to be gathered from the sale deed itself. But where the terms of the deed are not decisive and clear, the surrounding circumstances and the conduct of the parties may be looked into.

Judgement

PANIGRAHI, J.:- The litigation giving rise to this appeal relates to two items of house property situated in the Bhasha Kosha Lane of Cuttack town, and to some movables. Plaintiff No.1 is the son of the late Rai Bahadur Gopal Chandra Praharaj (hereinafter referred to as Praharaj) the compiler of the Purna Chandra Bhasha Kosha and a leading lawyer of the Cuttack Bar. Plaintiff No.1 and his two sons plaintiffs Nos.2 and 3, have jointly sued for a declaration of their title to, and for the recovery of possession of, the houses described in schedules A and B attached to the plaint. These houses constitute one contiguous block and lie within one compound. Schedule C gives a list of the movables belonging to Praharaj and left by him at the time of his death, in the disputed house and are now in the possession of the defendant. The defendant, Pitambari, is the younger sister of plaintiff No.1s mother, Muktamani and she was living with Praharaj (father of the first plff.) in his house, it is alleged, as his mistress, from the year 1930 till 1945, when he died of poisoning. The defendant claims title to the house described in schedule A on the strength of a sale deed executed by Praharaj on 29th Feb., 1936 for Rs.15,500/-/- and to the properties in schedule B, by a sale deed executed by him on 17-2-42 for Rs.3800/-/. The present suit was instituted two and half months after the death of Praharaj, in which the plaintiffs claimed the disputed properties as survivors of the deceased.

2. The plaintiffs specific case is that the suit houses were the joint family properties of the plaintiffs and that the sale deeds are absolutely devoid of consideration. In paragraph 4 of the plaint it is alleged that the property described in schedule A was acquired in 1904 with the aid of joint family funds, in the name of Praharaj who was then a prominent, as well as the managing, member of the family.

It is also alleged alternatively that his earnings if any were thrown into the common fund and that the suit properties were acquired out of the common fund. The property described in schedule B was purchased in the year 1907 in the name of the late G.N. Choudnury, the family lawyer, at a Court auction. It is said that the purchase money was paid from joint family funds and that the suit property was thrown into the common stock and was blended with other joint family properties. In 1908, G.N. Choudnury executed a deed of relinquishment in the name of Muktamoni, mother of plaintiff No.1 relinquishing his right to the suit properties, but it is claimed that the property remained joint family property, though it stood in the name of the mother of plaintiff No.1. The plaintiffs, as the surviving members of the co-parcenary are, it is claimed, entitled to the suit properties.

It is further alleged that Praharaj executed fraudulent, collusive and nominal deeds of sale in favour of the defendant on account of his illicit connection with her and owing to ill feelings between him on the one hand and plaintiff No.1 and his mother Muktamoni, on the other. The motive for the alienations is said to be to deprive the plaintiffs of their just rights to the property. The death of Praharaj took place on 16-5-1945 under very unfortunate and suspicious circumstances. The Chemical Examiners report was that his death was caused by poisoning at a time when he was living with the defendant in the suithouses. The defendant was arrested by the Police on 7-6-1945 and was committed to the Sessions Court to stand her trial, but was ultimately acquitted on 8-2-1946. The present suit was filed on 30-7-1945 when she was in jail custody, for a declaration that the plaintiffs are the owners of the properties mentioned in schedules A, B and C, for confirmation of possession thereof, or, in the alternative, for recovery of possession of those properties.

3. The defendant, in her written statement, alleged that Praharaj had been appointed guardian of her properties by the District Judge