JUDGMENT
S.C. Mohapatra, J.
1. Defendant is appellant.
Case of plaintiff is that defendant is son of the youngest brother of her husband. Since she was issueless
and her husband was dead, defendant got a sale deed executed and registered from her on 23-9-1960 in respect of Ac. 2.79 decs. of land for a paltry sum of Rs. 300/-. However, she was not
in necessity of money and taking advantage of her position as widow and illiteracy, this document was obtained without any consideration. There was some dispute in respect of this transfer and on account of intervention of the villagers, defendant agreed to pay agricultural produce worth Rs. 200/- per year in respect of which a document was executed by defendant on 24-11-1965 towards her maintenance which was registered. Defendant was paying the maintenance as per the document till 1972. When he stopped payment, suit was filed for recovery of the land sold and Rs. 400/- per year towards profit of the land till recovery of possession.
2. Case of defendant is that his purchase is for consideration and the document dated 24-11-1965 has not been executed by him. Forcibly his signature was obtained on a piece of paper which is sought to be utilised in the suit.
3. Trial Court held that the sale deed executed by plaintiff is sham and no title passed to defendant on the basis of such sale deed. On that basis, recovery of possession was invalid which is grievance of the defendant in the appeal.
4. There is no dispute that the sale deed was executed by the plaintiff on 23-9-1960 which is a registered document. There was some dispute and on the basis of such dispute there was a settlement and on 24-11-1965 defendant executed the document for paying maintenance to plaintiff.
5. It is submitted by M/s. P.K. Mishra, learned Counsel for defendant-appellant that this document of the year 1965 is not a valid one and has not been proved in accordance with law. I find that in the written statement existence of the document has been accepted. Explanation is given that signature of defendant has been obtained by coercion on the document. Coercion is to be proved specifically. On perusal of evidence I am satisfied that defendant has not been able to prove the assertion of coercion and I am inclined to hold taking the totality of circumstances into consideration that when plaintiff came forward to challenge the transfer in favour of defendant, there was settlement and plaintiff gave up her right to get the property in lieu of maintenance as reflected in the document dated 24-11-1965 executed by defendant. To avoid a greater evil of losing Ac. 2.79 decimals of land defendant gave out that he would give maintenance to plaintiff in shape of agricultural produce whose value would be Rs. 200/-. Thus, defendant is estopped from challenging this document any further as on account of such expression in the document plaintiff gave up her right to get back the property to her detriment believing in the statement of defendant. Not only plaintiff believed in such a statement, defendant also acted upon such a statement and gave maintenance to plaintiff till 1972. This aspect has not been taken into consideration by the Trial Court. In the year 1965, plaintiff had knowledge that a sale deed had been obtained from her. Therefore she could have filed a suit within the year 1968 for recovery of possession. This right is no more available in the year 1970 to plaintiff to challenge the validity of the transfer on basis of the sale deed dated 23-9-1960.
7. Once I come to the conclusion that there is no scope for challenging the sale deed to be invalid in the year 1972 and I come to the conclusion that defendant is bound by the agreement executed by him on 24-11-1965 agreeing to pay agricultural produce at the rate of Rs. 200/- per year towards maintenance of plaintiff, irresistible conclusion is that the suit is to be decreed for realisation of Rs. 200/- annually from defendant towards maintenance of plaintiff.
8. Case of plaintiff is that maintenance was given by defendant till the year 1972. Therefore, there is no scope for any decree for arrear maintenance. Mr. Mishra submitted that a decree for maintenance not having been prayed for by plaintiff, Court has no jurisdiction to pass such a decree. I am not inclined to accept such a submission. Plaintiff has claimed a broader relief of recovery of possession and profit of Rs. 400/- per year asserting that there is an agreement by defendant on 24-11-1965. Relief of maintenance as reflected in the document is a smaller relief than what has been prayed for and it is not a third case made out by the Court. It comes within the pleadings of the parties. Accordingly, the relief can be modulated by the Court to give relief to a party, who has made a higher claim.
9. In conclusion, plaintiff is entitled to maintenance at the rate of Rs. 200/- annually from the year 1972 till her death from defendant on the basis of the agreement dated 24-11-1965 which is voluntary in nature and defendant is estopped from challenging the same since the arrears would be heavy, coming to about Rs. 4,200/- as on today, interest of justice would be best served in case I direct that for three years defendant shall pay at the rate of Rs. 1,600/- annually which would include the amount of Rs. 200/-per year. After payment for three years at the rate of Rs. 1,600/- per year, defendant shall pay Rs. 200/- per year till death of plaintiff towards her maintenance.
10. Mr. Mishra submitted that the direction relating to payment of Court-fee is also to be varied. There is force in this contention. Since I have accepted the suit to the extent of maintenance of plaintiff, no Court-fee is payable by plaintiff in such a suit under Section 18-A of the Court-fee (Orissa Amendment) Act. Accordingly, Court-fees shall not be realised for the defendant.
11. In result appeal is allowed to the limited extent as aforesaid and suit is decreed as indicated earlier. Defendant shall pay costs of the suit to the extent the suit is decreed, but these shall be no order as to costs in this appeal.