IMPORTANT POINT
Being daughter born out of womb of Lata by her first husband plaintiff No. 1 comes within expression ‘daughters’, appellants, who coming within expression ‘heirs of husband’, are to be kept from succeeding to properties left behind by Lata even she inherited same from her second husband and he is not father of plaintiff.

R. Dash, J.—This Second Appeal is against the judgment and decree dated 18.1.2005 and 31.1.2005, respectively passed by the learned District Judge, Keonjhar in R.F.A. No. 44 of 2004 confirming the judgment and decree dated 29.7.2004 and 13.8.2004 respectively, passed by the learned Civil Judge (Senior Division), Keonjhar decreeing the plaintiff’s suit bearing T.S. No. 53 of 2002.

2. Respondent No. 1 Ratnamani Barik is the plaintiff. She filed the suit for declaration and perpetual injunction. The subject-matters of the suit are the properties mentioned in schedule ‘Ga’ and ‘Gha’ of the plaint; hereinafter referred to as the suit properties.

3. Facts not in dispute are as follows:

One Lata first married to Hrushi, who died prior to 1956 leaving behind his widow (Lata) and daughter Ratnamani (the plaintiff) as his successors. Ratnamani has got only one daughter namely, Banabasi, who is arrayed as defendant No.1 in the suit. After the death of Hrushi, his widow Lata married to Kalakar, who also died prior to 1956 leaving behind Lata as his only successor-in-interest. Kalakar had one brother namely, Kantha. D2 to D12 are the successors-in-interest of Kantha. Here, it is pertinent to mention that both the husbands of Lata belong to two of the four branches of the common ancestor late Ananta Barik. After the death of Kalakar, his widow Lata filed O.S. No. 53 of 1960 and got the share of Kalakar allotted to her and, getting delivery of possession thereof, she continued to remain in possession of the same. Plaint schedule ‘Kha’ properties are part of the properties she got in the said partition. During her life time Lata, for her legal necessity, had sold plaint schedule ‘Kha’ land to different persons. However, since those properties are not in dispute, the purchasers thereof have not been made parties to the suit.

4. Against the aforestated backdrop, it is the plaintiff’s case that plaint schedule ‘Ga’ land, which is also a part of the properties Lata had got in the partition, has been bequeathed by Lata under an unregistered Will executed in favour of Banabasi (D1) who is Lata’s grand-daughter and on the strength of that Will D1 has been in possession and enjoyment of schedule ‘Ga’ property. The residue of the property Lata had got in the partition is the schedule ‘Gha’ property. It is plaintiff’s case that being the natural daughter of Lata the plaintiff has succeeded to the property in schedule ‘Gha’ in respect of which Lata has died intestate. After the death of Lata, it is claimed, plaintiff has been in possession of schedule ‘Gha’ properties. It is alleged that D2 to D12, being agnates of Kalakar (Lata’s second husband), created disturbance in plaintiffs possession over the suit land. Hence, the suit for declaration of her right, title and interest in respect of schedule ‘Gha’ properties. The plaintiff has also sought for declaration of her title over schedule ‘Ga’ land in case no title is found to have passed on to D1 under the aforestated Will.

5. D1 filed W.S. supporting plaintiff’s stand.

6. D2 to D12 in their joint written statement have disputed the execution of any Will by Lata in favour of D1. They also dispute plaintiff’s claim that she has succeeded to the properties that Lata had got in partition under the decree passed in O.S. No. 53 of 1960. They claim that Kalakar, the second husband of Lata, having died prior to 1956 and the present plaintiff being not the daughter of Kalakar, the property of Kalakar, which was allotted to Lata, reverts back to D2 to D12 who are, admittedly, the heirs of Kalakar’s elder brother Kantha. Their further assertion is that Lata, who was being taken care of and maintained by D2 to D12, has relinquished the suit properties in favour of D2 to D12. They also take the stand that the Will in question being not genuine, D1 cannot derive any title in schedule ‘Ga’ properties on the basis of the Will. D2 to D12 claim that they have acquired right, title and interest over the suit pr