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Rama Chandra Nayak vs Kartika Behera And Others on 29 July, 2025 cites

Hira Dei vs Bodhi Sahu And Ors. on 27 January, 1954

In this regard, Mr. Bose has relied upon a judgment of this Court in the case of Hira Dei v. Bodhi Sahu and others1. Mr. Bose further argues that the evidence of P.W.1 in this regard was never assailed in cross-examination and therefore, ought to have treated as admitted. As regards the sale deed vide Ext.3, Mr. Bose would argue that the defendants admit execution of the sale deed. If the deed executed by Uma (Ext.C) is held to be void, said property would devolve on Nrusingha, the surviving brother of her husband, as by then the other 1 AIR 1954, Orissa 172 R.S.A. No. 285 of 2018 Page 9 of 18 brother Bhagaban had also died. So Nrusingha alone had 2/3rd share over the property. As regards Bhagban's 1/3rd share, the same would devolve on his wife (Defendant No.2) and son (Defendant No.1). The reasoning that the age of Kartika being recorded as 7 years in Ext.C implies that he was a major by the time of execution of Ext.3 cannot be accepted for the reason that Ext.C was executed by the vendor Uma whereas Ext.3, in so far as it relates to Kartika, was executed by his mother. Obviously the age mentioned by his mother should be accepted. Under such circumstances the share of Kartika must also be treated as being validly transferred vide RSD dtd.20.4.1966 (Ext.3). Nrusingha, being the head of the family had the right to sell the joint family property for legal necessity. Even otherwise, Kartika (Defendant No.1) never challenged the sale within the period of limitation. Defendant No.1 also never objected and died in the meantime. Mr. Bose further argues that the defendants having parted with the property since 20.4.1966 and not having reclaimed the same within the statutory period could not have been allowed to stake their claim at this belated stage. The suit, being O.S. R.S.A. No. 285 of 2018 Page 10 of 18 No.292/1991-1 filed by the defendants was dismissed for default and was never restored. Therefore, the claim of the plaintiff is barred by constructive res-judicata. Mr. Bose sums up his argument by submitting that the finding of the First Appellate Court regarding the age of Defendant No.1 is based on surmises. Further, there being no counter claim raised by the defendants, the First Appellate Court could not have declared their title over the suit property in the plaintiff's suit.
Orissa High Court Cites 20 - Cited by 1 - Full Document
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