The court ruled that a gift deed requires valid execution, while stating possession need not be transferred for validity, and that unprobated wills are valid in specific jurisdictions under the Indian Succession Act.

JUDGMENT :

B.P. Routray, J.

1. Present appeal is directed assailing order 12^th April 2007 passed in T.S.No.2/6 of 2007-97 by the learned Ad-hoc Addl. District Judge (Fast Track), Champua.

2. The suit was filed by Respondent No.1. Present Appellant No.1 was Defendant No.1 and Appellants No.2 to 6 were Defendants No.2 to 6 before the learned trial court. One Pranaballav Das was the original owner of the suit properties, which was recorded in his name. Plaintiff is the daughter of said Pranaballav Das and Defendant No.1 is the son of sister of Pranaballav Das. The Plaintiff filed the suit praying for declaration of right title interest, permanent injunction or in alternative recovery of possession. Her prayer in the suit reads as under :

“The plaintiff, therefore, prays:-

a) The right, title, interest of the plaintiff over the estate of Pranaballav Das be declared after declaring the Gift Deed No.162 dt.23.2.94 and two Wills dt.18.12.76 and 16.5.91 to be null and void and inoperative against the interest of the plaintiff;

b) the defendants be permanently injuncted not to interfere with the possession of the plaintiff over the estate of her father, Pranaballav Das in alternative if plaintiff is found to be dispossessed in the mean time, recovery of possession of the suit land;

c) cost of the suit be decreed in favour of the plaintiff;

d) any other relief or reliefs to which the plaintiff is entitled under law and equity be given.”

The schedule of suit properties is as follows:-

“Schedule of land mentioned in Gift Deed :

3. The Plaintiff‟s case is that the suit land was decreed in favour of her father, late Pranaballav Das, in T.S.No.14/46 and has been recorded in his name. After her marriage, taking advantage of mental imbalance of her father, some unscrupulous and mischievous persons wanted to grab his entire properties and taking advantage of dissention between her with Pranaballav Das, Defendant No.1 coming to their house influenced Pranaballav Das to get an Adoption Deed and WILL dated 8^th December 1976 from Pranaballav Das in his favour. Then, Defendant No.1 successfully instigated Pranaballav to institute a suit bearing no.T.S.No.1/85 against the plaintiff and her husband to oust her from possession of Plot No.1396 and Plot No.1395. The said suit having been decreed in favour of Pranaballav Das as Plaintiff No.1, he initiated Execution Case No.3/93. It needs to be mentioned here that in said Title Suit, i.e. T.S.No.1/85, present Defendant No.1 (Gouranga Ch. Mohanty) was Plaintiff No.2 and his claim therein as adopted son of Pranaballav Das has been negated by the learned trial court. So, it is now settled that Defendant No.1 is not the legally adopted son of Pranaballav Das, whereas the Plaintiff is the only daughter of Pranaballav Das. However, the Plaintiff filed a petition under Section 47 of the Code of Civil Procedure vide MJC No.3/94, in Execution Case No.3/93 resisting the execution of the decree passed in T.S.No.1/85 and during pendency of Execution Case No.3/93, Pranaballav Das expired on 25^th January 1997. After death of Pranaballav Das, when Defendant No.1 applied for continuance of the execution proceeding as the legal representative of the decree holder, the same was rejected and the execution case was dismissed. The said dis