The court affirmed that a pre-Act widow could alienate property with consent, impacting the validity of claims over inherited land.

JUDGMENT :

Sashikanta Mishra, J.

This is a plaintiff’s appeal against a reversing judgment. The suit filed by the plaintiff for declaration of his right, title, interest over the suit land with alternative prayer for partition being decreed was reversed in appeal.

2. For convenience, the parties are referred to as per their respective status in the trial Court.

3. The case of the plaintiff is that the suit land was originally jointly recorded in the names of three brothers namely, Bhagaban Behera, Nrusingha Behera and Banchhanidhi Behera, sons of Sadei Behera. Banchhanidhi died issueless leaving behind his widow Uma. Bhagaban died in the year 1950 leaving behind his widow Saria (Defendant No.2) and son Kartika (Defendant No.1). Prior to their deaths, Banchhanidhi and Bhagaban and the entire family was residing jointly with Nrusingha, being the eldest male member of their family was managing the family affairs. After their deaths, their shares devolved upon Defendant No.1 and Nrusingha, who is the predecessor of Defendant Nos.3 to 7. After death of Banchhanidhi, his widow Uma, who was young, went back to her parental house and married someone. In the year 1966, Nrusingha sold the suit land to the father of Defendant No.8 namely, Kusha Khillar vide R.S.D. No.3637 dtd.20.4.1966 for due consideration and delivered possession. Nrusingha had sold the property for family maintenance and to meet the education expenses of Kartika, who was then a minor. Kartika was represented through his mother guardian Defendant No.2. Kusha mutated the suit property in his name. He died leaving behind Defendant No.8 as his only son. In 1991, Defendant No.8 sold the suit property to the Plaintiff through R.S.D. No.293 dated 18.1.1991 for consideration of Rs.13,000/- and delivered possession. It is the further case of the plaintiff that Defendant Nos.1 to 7 were initially interested to purchase the suit land from Defendant No.8, but as they did not agree to pay proper consideration money, Defendant No.8 sold the same to the plaintiff for which they bore grudge against him and disturbed his peaceful possession on 01.11.1991. Hence, the suit.

4. Though the Plaintiff had initially filed the suit for permanent injunction against Defendant Nos.1 to 7 but after filing of the written statement by the said defendants, he amended the plaint to incorporate the alternate prayer for partition in the event the sale deed executed in his favour was not found valid in respect of the entire land.

5. Defendant Nos.1 and 3 to 7 contested the suit by filing joint written statement. Their case is that the sale deed executed by Defendant No.1 and Nrusingha in favour of the father of Defendant No.8 was not a sale deed but was obtained by Kusha cunningly on the pretext of a mortgage deed. He was a moneylender and as Nrusingha was in acute necessity of funds, he lent money to Nrusingha after insisting upon him to execute a sale deed for being kept as security. It was executed under such circumstances. The sale deed was never acted upon as the consideration money was never paid nor possession delivered. It is also their case that one of the vendors namely, Kartika was minor at the relevant time and therefore, not competent to enter into such transaction. It is also claimed that long before execution of the said sale deed, Uma Bewa, the widow of Banchhanidhi had sold her 1/3^rd interest of his family property including the suit land in favour of Defendant Nos.1 and 3 vide R.S.D. dated 8.1.1953