P.K Misra, J.:— Plaintiff-respondent No. 1 had filed Title Suit No. 18/76 claiming one-fourth share and allotment of ‘Una’ Schedule property and damages of Rs. 700/- towards prices of buffalo and calf from defendants 1, 5 and 6. The trial court while negativing the claim for partition and damages has declared that the sale deed dated 1-3-1974 (Ext. C) executed by the plaintiff in favour of ‘defendants’ 5 and 6 was invalid and not binding on her. The aforesaid judgment and direction of the trial court are under challenge at the instance of defendants 5 and 6.
2. The undisputed genealogy relating to the parties is extracted hereunder; —
3. Defendant No. 4 is the son of defendant No. 1 though her 1st. husband late Bira Mohanta. Defendant No. 7 is the son of the plaintiff through her 1st husband late Thela Mohanta, Defendants 5 and 6, the sons of Daitary Mohanta (brother of defendant No. 1, are purchasers from the plaintiff under the sale deed (Ext C).
4. The plaintiff's case is as follows: The properties described in Schedules ‘Ka’ and ‘Kha’ of the plaint were the ancestral joint family properties. Defendant No. 1 who is the step-brother of the plaintiff obtained a deed of gift by exercise of undue influence from Raibu Mohanta in 1962 in respect of lands in ‘Ga’ Schedule. In spite of the sale deed of gift Raibu Mohanta continued to be in possession of the lands till his death. however, in 1965, defendant No. 1, the second wife of Raibu executed a sale deed in respect of ‘Ga’ Schedule lands in favour of defendant No. 4, who was her son through her first husband late Bira Mohanta, without consideration and without legal necessity. In spite of the said sale deed ‘Gi’ scheduled lands were under possession of the plaintiff and defendants 1, 2 and 3. The further case of the plaintiff is that while she and her two married sisters (defendants 2 and 3) were living in the house of their respective husbands, defendant No. 1 persuaded Raibu Mohanta to transfer Ac. 3. 40 dec. of land already covered under the deed of gift, in favour of defendants 5 and 6 who are her brother's sons. However, defendants 5 and 6 never possessed the lands. It is asserted that all these transfers by Raibu ate invalid and inoperative and all the properties covered under the invalid transfers continued to be joint family properties. Hence the suit for partition claiming one-fourth share in respect of the properties of Raibu Mohanta who had died in the year 1973. It is further alleged that after the death of Raibu Mohanta, defendant No. 1 managed the family affairs. The plaintiff demanded partition and on such demand, defendant No. 1 divided the immovable properties and gave Ac. 4. 93 decimals of land in mouza Belaposi to the plaintiff and defendants 2 and 3 as per ‘Kha’ Schedule of the plaint. While the plaintiff was in possession of her portion of lands in mouza Belaposi, defendant No. 1 persuaded the plaintiff to get the lands cultivated through defendants 5 and 6 on payment of Rs 100/- annually on ‘Thika’ basis. Defendants 5 and 6 wanted her to execute document for cultivation of land on ‘Thika’ basis and the plaintiff and defendants 5 and 6 came to Keonjhar to execute such a document. Defendants 5 and 6 got a document from her executed in respect of Ac. 1. 97 dec. of land in mcuza Belaposi as described in Schedule ‘Una’. Subsequently, she learnt about the same and approached Sadapalas Grama Panchayat members complaining about the fraudulent nature of the transaction. Defendants 5 and 6, however, did not agree to the suggestion for an amicable settlement and the plaintiff executed a registered deed of cancellation on 4-6-1974. The plaintiff further alleged that the buffalo which had been given towards her share was kept in the custody of defendants 1, 5 and 6. Subsequently, the aforesaid defendants did not deliver the buffalo for which she has claimed damages The house property has been described in Schedule ‘Chha’ of the plaint. On the aforesaid allegations she claimed for partition of properties in respect of ‘Ka’, ‘Kha’ and ‘Chha’ Schedules and allotment of one-fourth share with a specific prayer for adjustment of ‘Una’ Scheduled properties in her share. She has prayed for damages to the tune of Rs. 700/-.
5. Defendants 1, 4 to 6 filed a joint written statement denying the plaint averments. It was asserted by them that Raibu Mohanta out of his free volition had gifted away the properties in Schedule ‘Ka’ of the plaint in favour of defendant No. 1 which were subsequently transferred in favour of defendant No. 4 for consideration and as such the plaintiff and defendants 2 and 3 have no interest in the said properties. It was further stated that defendants 5 and 6 had validly purchased Belaposi lands from the plaintiff and plaintiff had no further interest in the said lands. In an additional written statement filed on their behalf, it was stated that out of Raibu's Ac. 8. 95 dec. of land in village Tangarani, Ac. 5. 09 dec. of lands had been gifted away by him during his life-time and after his death, the balance land in village Tangarani and the lands in village Belaposi were partitioned among the plaintiff and defendants 1, 2 and 3 and in the said partition, the balance land of Tangarani was allotted to the share of defendant No. 1, whereas Belaposi lands were allotted to the share of plaintiff and defendants 2 and 3, and as such the question of partition does not arise.
6. Defendant No. 7 who is the son of the plaintiff through her first husband late Thela Mohanta filed a separate written statement supporting the plaintiff's case.
7. On the aforesaid pleadings, the following issues were struck by the trial court: —
1. Has the plaintiff any cause of action to file this suit?
2. Is the suit maintainable in the present form?
3. Is the deed of gift executed by late Raibu in favour of defendant No. 1 on 7-12-1962 was brought about by fraud and undue influence?
4. Is the suit within time?
5. Is the sale deed executed by plaintiff in favour of defendants 5 and 6 on 1-3-1974 invalid being fraudulent?
6. Is the cancellation of the said sale deed in favour of defendants 5 and 6 valid and binding on the defendants 5 and 6?
7. To what relief, if any, the plaintiff is entitled?
8. If there has been a previous partition amongst the plaintiff and defendants 1 to 3 and if in such partition after death of Raibu, the remaining properties of the family were divided amongst the parties and they are in separate possession of the lands in their respective shares?
8. While deciding Issue No. 3, the trial court held that the deed of gift (Ext. A) executed by Raibu in favour of defendant No. 1 was valid. Under Issue No. 8, the trial court held that there was a partition of the properties left by Raibu and the parties were in separate possession of their respactive shares. Under Issue No. 5, the trial court held that the sale deed dated 1-3-1974 (Ext. C) was obtained by defendants 5 and 6 fraudulently and no consideration had been paid to the plaintiff and the same was not binding on the plaintiff. Under Issue No. 6, the trial court held that the deed of cancellation of the sale deed under Ext. C was valid. Accordingly the trial court while declining to pass any decree for partition on the ground that there was a previous partition declared that the sale deed (Ext. C) was not binding on the plaintiff. Against the aforesaid judgment of trial court, defendants 5 and 6 have filed this appeal challenging the validity of the findings under Issues Nos. 5 and 6. However, no appeal has been Sled by the plaintiff against the rejection of her prayer for partition of the properties.
9. Shri S.K Mohanty, learned counsel for the appellants, has contended that in view of the fact that there was no prayer in the plaint for declaration that Ext. C was invalid, the trial court should not have passed the decree declaring Ext. C as invalid. The learned counsel for the plaintiff-respondent No. 1 relying upon the decision reported 1989 (2) O.L.R 308 (Basanta Sahu @ Basanta Kumar Sahu v. Rukman Sahu) has contended that since Ext. C was void ab initio there was no necessity for specific prayer regarding the invalidity of the document.
10. There is no doubt that when a transaction is void ab initio its validity can be questioned anywhere and everywhere even without a specific prayer for setting aside the transaction. In the present case, the plaintiff alleged that the document in question had been obtained from her without reading over and explaining the document. The plaintiff was admittedly an illiterate lady and the protection available to a paradanas in lady is also available to an illiterate lady and if it is found in a given case that any document has been obtained from an illiterate lady without explaining and making her understand the true import of the document, the transaction can be considered as void ab initio and need not be specifically avoided by filing a suit with specific prayer for setting aside the transaction. As such in this case the plaintiff could have claimed for partition of all the properties by simply ignoring the transaction. Therefore, the broad contention of Mr. S.K Mohanty, the learned counsel for the appellants, raised in such wide term is not acceptable.
11. However, considering the pleadings and the admitted facts, I am forced to come to a conclusion that the decree declaring the sale deed (Ext. C) to be void cannot be sustained in the facts and circumstances of the present case, for the reasons indicated hereinafter.
12. In the present case the trial court has held that there was a previous partition and accordindly the prayer for passing a preliminary decree for partition has been refused. The aforesaid finding of the trial court has become final in the absence of any appeal or cross-objection by the plaintiff. In paragraph 10 of the plaint it has been pleaded that defendants 5 and 6 had fraudulently obtained a sale deed without consideration from the plaintiff, and forcibly possessed ‘Una’ Scheduled lands. In paragraph-12, it has been pleaded that the plaintiff after cancelling the so-called sals deed in favour of defendants 5 and 6 has executed a registered deed of gift in respect of the suit land in favour of defendant No. 7. Defendant No. 7 in his written statement, while supporting the plaintiff's case has stated that the disputed ‘Una’ Scheduled lands had been validly transferred in his favour by the plaintiff. From the aforesaid pleadings and undisputed facts and circumstances, it is apparent that the plaintiff was not in possession of the disputed ‘Una’ Scheduled lands at the time of filing of the suit for partition, nor she had any subsisting title, as according to her own admitted case, she had gifted away the said lands to defendant No. 7. The plaintiff had prayed for partition of the entire lands and further prayed that ‘Una’ Scheduled land should be allotted to her share. In view of the finding that the entire property had already been partitioned which has become final in the absence of any appeal or cross-objection, the question of allotting ‘Una’ Scheduled lands to plaintiff's share does not arise and in view of the plaintiff's own case that she had gifted away ‘Una’ Scheduled lands to defendant No. 7, the trial courts declaration that sale deed (Ext. C) is invalid cannot be sustained. Such a relief was not available to be given at the instance of the plaintiff who had already divested herself of her right and interest in the said property. In such view of the matter, the decree of the trial court cannot be sustained. Moreover, in view of the admitted fact that none of the co-sharers were in possession of ‘Una’ Scheduled lands and the admission of the plaintiff that defendants 5 and 6 were in forcible possession of ‘Una’ Scheduled lands after obtaining Ext. C, a simple suit for partition without prayer lor recovery of possession of ‘Una’ Scheduled lands was not maintainable. In the aforesaid view of the matter, the suit is liable to be dismissed and it is not necessary to consider the correctness of the finding regarding the invalidity of Ext. C. Accordingly, subject to the observations made above, the appeal is allowed and the plaintiff's suit is dismissed. In the circumstances, there will be no order as to costs.
Appeal allowed.