Judgment Gurusharan Sharma, J. 1. Danulal Jain of Mohalla Ramna. Gaya, died leaving behind his widow Gulab Devi and three sons, namely, Madanlal Jain, Ratanlal Jain and Phulchand Jain. Prabhawati Devi is the wife of Madanlal Jain. 2. On 7th October, 1982, Ratanlal Jain and Phulchand Jain filed Partition Suit No. 7 of 1982 in the Court of first Subordinate Judge, Gaya, against their brother, Madanlal Jain and his wife, Prabhawati Devi as defendants for declaring the suit holding, detailed in Schedule 1 to the plaint to be a joint family property and the sale deed dated 28.10.1970 executed by Gulab Devi in favour of prabhawati Devi, the defendant No. 2 was void abinitio, illegal, fraudulant and not binding on them. They also asked for a preliminary decree for partition to the extent of their 2/3rd share in the suit holding. 3. According to plaintiffs on 23.3.1944, Danulal jain and his three sons separated in mess and residence. Thereafter, by a registered deed of partition dated 26.11.1945 there was partition by metes and bounds among Danulal Jain and his three sons. 4. Earlier to the aforesaid partition, on 26.6.1945 Danulal Jain entered into a contract for purchase of the suit house for Rs. 10,500.00 and the owner of the house, Shah Md. Akhtar Hussain executed an agreement for sale in the name of his wife, Gulab Devi, on receipt of Rs. 2500.00 in advance. The said earnest money was paid from out of the joint family fund. 5. However, after the said Partition, Title Suit No. 21 of 1946 was filed in the Court of first subordinate Judge, Gaya, against Shah Md. Akhtar Hussain for specific performance of the said contract, which was decreed on 11.3.1948 and Title Appeal No. 130 of 1948 filed against the said decree was also dismissed. Ultimately a registered sale deed dated 9.9.1957 was executed in the benami name of Gulab Devi. The entire consideration money for the same was paid out of the joint family fund. 6. After the death of Danulal Jain, his wife Gulab Devi developed insanity which continued till her death. Taking advantage of it, Madanlal Jain got a fictitious sale deed executed by her on 28.10.1970 in favour of his wife, in order to grab the joint family property. The plaintiffs were, therefore, entitled to 2/3rd share therein after setting aside the said sale deed. 7. Taking advantage of it, Madanlal Jain got a fictitious sale deed executed by her on 28.10.1970 in favour of his wife, in order to grab the joint family property. The plaintiffs were, therefore, entitled to 2/3rd share therein after setting aside the said sale deed. 7. Prabhawati Devi, the defendant No. 2 filed written statement and contested the suit. A separate written statement was also filed on behalf of Madanlal jain, the defendant No. 1. 8. According to defendants, there was no unity of title and possession between the parties in respect of Schedule 1 holding. After separation on 23.3.1944,there was partition on chaitbadi 15, sambat 2000 and a sada yadast was executed therefor. Thereafter, a registered deed of partition dated 8.11.1945 and not dated 26.11.1945, as incorrectly averred in the plaint, was executed. 9. Gulab Devi out of her stridhan fund purchased the suit holding and subsequently transferred it to the defendant No. 2. 10. There was no joint family fund after separation and partition aforesaid either in the hand of Danulal Jain or the defendant No. 1. Gulab Devi was never benamidar of the plaintiffs and defendant No. 1 and there was no question of management of the suit property by the defendant No. 1. Gulab Devi neither developed insanity nor lost consciousness and till her death she maintained equilibrium of mind and body. 11. The defendant No. 2 claimed that in the partition deed dated 8.11.1945,three properties of the family, namely, at Aurangabad, Belaganj and house No. 20 at Ramna, Gaya were left joint. For partition of those properties, Partition Suit No. 106 of 1971 was filed by Madanlal Jain. One of the properties i.e., house No. 20 at Ramna, Gaya was deleted and the aid suit was disposed of on compromise in respect of the remaining two properties at Aurangabad and Belaganj. Prior to the filing of the present suit the plaintiffs never claimed the suit properties. 12. By the impugned judgment and decree the suit was decreed, holding that the sale deed dated 28.10.1970 allegedly executed by Gulab Devi in favour of Prabhawati Devi was without consideration, illegal and void and the palintiffs were entitled to partition of their 2/3rd share in the suit property, detailed in Schedule 1 to the plaint. 13. 12. By the impugned judgment and decree the suit was decreed, holding that the sale deed dated 28.10.1970 allegedly executed by Gulab Devi in favour of Prabhawati Devi was without consideration, illegal and void and the palintiffs were entitled to partition of their 2/3rd share in the suit property, detailed in Schedule 1 to the plaint. 13. It is relevant to mention that another Title (Partition) Suit No. 5 of 1983/87 of 1979 was filed by Madanlal Jain and others against Ratanlal Jain and others for partition of their 1/3rd share in the property detailed in Schedule A to the plaint. It was the residential house No. 20 at Ramna, Gaya, which was deleted from the plaint of the aforesaid Partition Suit No. 106 of 1971. The defendants of Title (Partition) Suit No. 5 of 1983 did not object to partition of the plaintiffs 1/3rd share therein and so the suit was decreed accordingly. 14. A perusal of the registered deed of partition dated 8.11.1945 (Ext. F) reveals that there was no reference of the suit holding therein as by that time it was not even acquired. There was also no reference of Rs. 2500.00 have been given as earnest money in order to purchase the said property, pursuant to an agreement for purchase in the name of Gulab Devi. 15. The plaintiff No. 1 Ratanlal Jain in his deposition as P.W. 1 in Title Suit No. 34 of 1947 admitted in the cross-examination that a sum of Rs. 2500.00 was advanced as earnest money by his mother (Gulab Devi), who had a money lending business and a house at Aurangabad. It is further admitted that the said amount was paid on 26.6.1945 at about 4.45 P.M. in his presence. The said admission of the plaintiff No. 1 herein was neither explained in the plaint of the present suit nor by plaintiff No. 1 in his deposition as P.W. 12, rather contradictory statement was made that the said earnest money was paid from the joint family fund. 16. In order to substantiate their case of insanity of Gulab Devi, the plaintiffs examined P.Ws. 3 to 5. P.W. 3 was a Baidya in Danulal Jain Charity Dispensary, who in his cross examination admitted in paragraph 5 that Gulab Devi was not insane. She had only developed forgetfulness at times. 16. In order to substantiate their case of insanity of Gulab Devi, the plaintiffs examined P.Ws. 3 to 5. P.W. 3 was a Baidya in Danulal Jain Charity Dispensary, who in his cross examination admitted in paragraph 5 that Gulab Devi was not insane. She had only developed forgetfulness at times. P.W. 4 was an employee of the plaintiffs firm M/s. Dhanulal Phulchand and in paragraph 5 of his cross examination admitted that he had not seen anything regarding insanity of Gulab Devi. He admitted to be working with the plaintiff No. 2 P.W. 5 was uncle of the plaintiffs. In paragraph 2 of his cross examination the said witness admitted that he was not aware of the ailment of Gulab Devi. He was also not aware as to whether she was ever treated by any Doctor. 17. At the instance of the plaintiffs the prescription of a Doctor, who was alleged to have treated Gulab Devi for her insanity was brought on record and was marked as Ext. 3 by P.W. 10, but the concerned Doctor was not examined. 18. In the aforesaid premises of facts, I do hereby hold that the plaintiffs miserably failed to prove the alleged insanity of Gulab Devi which, according to them, developed after the death of her husband and continued till her death. 19. In my opinion the findings of the trial Court that the chain of facts and circumstances in relation to sale deed, Ext. D said to be executed by Gulab Devi in favour of the defendant No. 2 showed all probable reasons to believe that it was not executed voluntarily and in consciousness of reasons and mind, was incorrectly recorded. It is not disputed that after execution of the said deed on 28.10.1970, Gulab Devi remained alive for about nine years, but did not challenge the same during her life. 20. I, therefore, hold that the plaintiffs failed to prove that the suit holding was initiately purchased in the benami name of Gulab Devi and, in fact, it was a joint family property and that the sale deed dated 28.10.1970 (Ext. D) was obtained by the defendant No. 2 from the said Gulab Devi, when she was in the state of insanity. D) was obtained by the defendant No. 2 from the said Gulab Devi, when she was in the state of insanity. Consequently, it is held hat there was no unity of title and possession between the parties in respect of the suit house and the said house exclusively belonged to the defendant No. 2. 21. The impugned judgment and preliminary decree, therefore, set aside and the plaintiffs suit is dismissed. 22. In the result this appeal is allowed, but without costs.