JUDGMENT - T.K. CHANDRA SHEKHARA DAS, J.:---The judgment and decree passed by the Civil Judge, Senior Division, Kolhapur in Special Civil Suit No. 159 of 1981 dated 21st February, 1986 is under challenge in this appeal. The appellants are the plaintiffs in the suit. The original plaintiff filed the suit for declaration of possession and title of the suit property and also for recovery of possession and other consequential reliefs. By the impugned judgment, the Court below dismissed the suit. 2.The case of the plaintiffs-appellants is that the suit property is an apartment which is a part of the building situated in Ward-B C.S. No. 2606 B, admeasuring 331.9 Sq. metres in Kolhapur Municipal Corporation. Half portion of the building has been purchased by the plaintiffs and other half portion was purchased by one V.T. Ghatage. The two apartments comprise in Eastern part and Western part of the building. The plaintiffs purchased the Western portion of the property and V.T. Ghatage purchased Eastern side of the property. The property was belonged to Smt. Anandibai R. Ingawale. She sold the portion of the property to the plaintiff for a consideration of Rs. 20,000/- and, therefore, he has become the owner of that portion of the property. The sale deed was executed by Anandibai in favour of the plaintiff on 27-10-1969. On the same day, for the same amount, the other half portion on the eastern side as mentioned above has been sold to aforesaid Ghatage by Anandibai. It is the case of the plaintiff that since then he is the owner of the property. 3.Defendant No. 1 is the adopted son of the aforesaid Anandibai. Ghatage is the brother of Anandibai. The 1st defendant, after the death of the Anandibai interfered with the possession of the suit property of the plaintiff. He tried to induct the tenants. It is the case of the plaintiff that the 1st defendant has no interest in the suit property. The original plaintiff died and his legal representatives are the present plaintiffs 4.The defendant resisted the suit mainly on the ground that the sale deed said to have been executed by Anandibai in favour of the plaintiff has never taken effect. It is a sham document. Since Anandibai was illiterate, aged and supportless, the original plaintiff Anandrao tried to create enmity between Anandibai and defendant No. 1. She was a patient of diabetes and blood pressure. It is a sham document. Since Anandibai was illiterate, aged and supportless, the original plaintiff Anandrao tried to create enmity between Anandibai and defendant No. 1. She was a patient of diabetes and blood pressure. She had heart disease. She was also mentally retarded and was physically weak. It is further alleged that the original plaintiff had succeeded in shifting Anantrao's residence separately from defendant No. 1 and during the separate residence, the original plaintiff exerted undue influence on Anandibai and played fraud on her by mis-representation. It is further alleged by the 1st defendant that being the adopted son of Ramrao who is the husband of the Anandibai and who was the original owner of the property after the death of Ramrao, all the property, including suit property, vested in him. Defendant No. 1 claims that he is the legal representative and legal heir of Ramrao and in all the property belonging to Ramrao including the suit properties he has half share. Therefore, any document which was executed by Anandibai alone is illegal and not binding on the 1st defendant and the purchaser of the property will not get perfect title. With these allegation, parties went to trial. The lower Court found that Anandibai alone had no right to the property to effect the sale of the suit property to the original plaintiff and any title created by her without the knowledge and consent of defendant No. 1 who is entitled for 1/2 of the property. Secondly, the sale deed executed by Anandibai is vitiated by undue influence, fraud and misrepresentation. It is also found by the Court below that even during the life time of Anandibai, sale-deed was challenged by her in a proceeding before City Survey Officer and City Survey Officer has found that no title has passed to Anandrao, who is predecessor in interest of the plaintiffs. 5.We heard learned Counsel for the appellant Mr. Mundargi and learned Counsel for respondent Mr. Abhyankar. There has been no dispute that the property stood in the name of Anandibai at the time of sale deed executed in favour of the plaintiff. However lower Court proceeds on the basis that the property belonged to Ramrao who was the husband of Anandibai. In fact there was no reliable material before the Court below to proceed on such premises. However lower Court proceeds on the basis that the property belonged to Ramrao who was the husband of Anandibai. In fact there was no reliable material before the Court below to proceed on such premises. Therefore, the very basis of the lower Court's assumption regarding title of the property is mis-placed. When Anandibai had unchallengeable and undisputable title over the suit property, she had the right to dispose of the same. Accordingly she sold half of the building to her brother Mr. Ghatge and the other half to Anandrao, the original plaintiff, who is the brother-in-law of Anandibai. The contention raised by the 1st defendant that the documents executed in favour of the original plaintiff by Anandibai was vitiated by illegality as she had no full title over property can be equally made applicable to the document executed relating to 1/2 portion of the suit property in favour of the Mr. Ghatage for Rs. 20,000/-. Insufficiency of consideration is also imputable to this document executed in favour of Mr. Ghatage. Another aspect of the matter is that in these two documents, 1st defendant is attesting witness. Therefore, he cannot plead ignorance of the execution of the sale deeds in respect of the property. He cannot also set up a plea of undue influence or fraud practised on Anandibai in executing the documents though lower Court has believed his case. The 1st defendant tried to explain that the day on which sale deed was executed, Anandibai was made to understand that only one document was to be executed in favour of Mr. Ghatage and that the original plaintiff could play fraud on her and obtained her signature on an another paper and that was how sale deed in question came to be registered. The story stated by the 1st defendant, however, cannot be believed for the simple reason that this story he has not stated to the world till the date of death of Anandibai. More over signature put by him as attesting witness was also not satisfactorily explained. In fact, he had all opportunity to avert a situations of playing fraud by alerting Anandibai. Without doing so, the allegation of fraud and other illegality in executing documents set up as collateral grounds cannot be accepted to be true. The lower Court has heavily relied upon the statement made by Anandibai before the City Survey Officer. In fact, he had all opportunity to avert a situations of playing fraud by alerting Anandibai. Without doing so, the allegation of fraud and other illegality in executing documents set up as collateral grounds cannot be accepted to be true. The lower Court has heavily relied upon the statement made by Anandibai before the City Survey Officer. Of course, in that statement Anandibai had stated that the sale deed was executed in favour of the plaintiff and his brother Mr. Ghatage on the account of fraud played on her and that no consideration has been passed on to her. Therefore, she had requested to City Survey Officer that original plaintiff's name should be removed from the property card. It is a well known proposition that a properly executed sale deed is valid and binding on the parties till it is set aside by competent Court of law. It is clear that in 1971, Anandibai could discover fraud and undue influence played on her by the original plaintiff. But she did not choose to approach the Court for a decree to declare the documents as illegal though she made statement before the City Survey Officer that the document is not binding on her. Therefore, when the original plaintiff does not take any action to invalidate documents, we do not understand how 1st defendant can set up the same plea who is an attesting witness to the documents, that too as a defence. Therefore merely because the statement was made by the executant of the document that it has no binding effect on her cannot be acted upon. In this circumstances the Court below is not justified in throwing the suit of plaintiff when the documents were found to be valid, otherwise in the eye of law. If a seller or his predecessor in interest wanted to avoid sale deed on ground of lack of consideration or being tainted with fraud or mis-representation or undue influence, the seller or his predecessor in interest should have approached the Court at the earliest opportunity for declaring the documents to be void, particularly, when, the factum of fraud was known to original seller when the original seller did not choose to take appropriate legal action to avoid document, the 1st defendant as her legal heir cannot successfully set up fraud or other objection on the validity of documents. Therefore, the lower Court has dismissed suit on relying the oral evidence of two witnesses who have spoken in support of the contention of the 1st defendant there has been no legal existence established to declare a document illegal in a suit of the plaintiff for declaration of title. The lower Court has committed a gross mis-carriage of justice in dismissing the suit ignoring a document validly executed registered documents which was otherwise proved to be valid. At any rate, in the circumstances of the case defendant No, 1 cannot validly resist the suit on the ground that the documents vitiated by fraud to which he has an attesting witness. In other words he cannot set up as a plea of fraud or undue influence as a defence to resist the suit of plaintiff for declaration of title and possession on the basis of the document in question. 6.In the result, the appeal is allowed. Judgment and decree of the lower Court is set aside. The suit is decreed as prayed for. 7.In the circumstances of the case there is no order as to costs. Appeal allowed.