JUDGMENT

R. DASH, J.

Being aggrieved by the judgment and decree dated 8.3.1999 and 22.3.1999 passed in Title Appeal No.28 of 1995 by the learned District Judge, Kalahandi-Nuapada at Bhawanipatna confirming the judgment and decree dated 5.4.1995 and 18.4.1995, respectively, passed by the learned Civil Judge (Senior Division), Bhawanipatna in Title Suit No.88 of 1989, the Plaintiff before the learned trial court has preferred this Second Appeal.

2. The appellant as plaintiff filed the suit against her sister (D.1) and husband of her sister (D.2) for a declaration that the registered sale deed Nos.470 and 471 dated 12.4.1976 in respect of the plaint scheduled ‘A’ and ‘B’ properties, respectively, executed by the mother of the Plaintiff and D.1 as void and for partition of the suit properties between the plaintiff and her sister in two equal shares. During pendency of the suit, plaintiff’s sister (D.1) died. Therefore, the deceased’s son was substituted and arrayed as D.1 (a).

3. In the Second Appeal D.1 (a) is arrayed as respondent No.1 and D.2 as respondent No.2. During pendency of the Second Appeal, R.2 has died leaving behind R.1 as his sole legal representative.

4. The plaint story is that late Somanath Panda, father of the Plaintiff and D.1, had his ancestral properties in the District of Ganjam. He died in 1957 leaving behind his widow and the two daughters. After their marriage, both the daughters with their husbands had shifted to Bhawanipatna. On their request their mother, Sita Devi, disposed of all the ancestral properties of Somnath Panda and came to Bhawanipatna where she purchased Ac.02.08 decimals land situate in village Paramanandapur in Kalahandi District out of the sale proceeds of the ancestral property, vide Registered Sale Deed No.2499 of 1968. Later on, in 1974 she also purchased a house with house-site located in Bhawanipatna in the district of Kalahandi vide Registered sale deed No.1236. Due to her chronic illness since 1975 the mother was mentally not sound. Taking advantage thereof, in 1976 plaintiff’s sister’s husband (D-2) managed to obtain the two impugned sale deeds from Sita Devi in respect of the entire of the immovable properties she had purchased in Kalahandi district. The deeds were obtained by fraud and undue influence. There was no passing of consideration, nor was there delivery of possession. The plaintiff and her sister continued to be in joint possession of the property. After death of the mother, the defendants threatened the plaintiff to leave the said properties claiming to have acquired title by way of the sale deeds obtained from the mother. But the properties having been purchased from out of the sale proceeds of their ancestral properties the plaintiff and D-1 both have equal share in the suit properties. Hence, the suit for partition as well as declaration of the two registered sale deeds as void.

5. The defendants in their written statement have taken the stand that late Somanath Panda had no ancestral property in the district of Ganjam but his self-acquired property was there. After his death, his widow remained in possession and enjoyment of the property. In 1957 she executed two deeds relinquishing her interest in her husband’s property. Thereafter, she divided the property in equal shares between her two daughters. The plaintiff sold away the land allotted to her share. The other half was sold by Sita Devi to repay outstanding loans. When Sita Devi migrated to Kalahandi district she purchased some landed properties in Kalahandi district from out of the sale proceeds of her gold ornaments. Therefore, the property acquired by her in Kalahandi district is her self-acquired property. She was never mentally unsound, though she was a chronic patient under regular treatment. For her legal necessity she had executed the impugned sale deeds in favour of D.2, her son-in-law, and it was with the knowledge of the plaintiff.

6. Both sides adduced oral as well as documentary evidence. Consid