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2010 DIGILAW 240 (CHH)

Heerabai v. Kushibai

2010-10-06

T.P.SHARMA

body2010
JUDGMENT T.P. Sharma, J. 1. By this second appeal under Section 100 of the Code of Civil Procedure, 1908, the Appellants have challenged legality & propriety of the judgment & decree dated 12-7-93 passed by the District Judge, Raigarh in Civil Appeal No. l8A/91 affirming the judgment & decree dated 18-4-91 passed by the 1st Civil Judge Class-II, Raigarh to the Court of 1st Additional Civil Judge Class-II, Raigarh in Civil Suit No. 43 A/90, whereby the suit filed on behalf of the Appellants herein has been dismissed. 2. The second appeal has been admitted on the following substantial question of law: Whether under the facts and in the circumstances of the case, the sale deed, Ex.P-1, is null and void and it does not affect the right, title and interest of the Plaintiffs in the suit property? 3. As per pleadings of the parties, the Plaintiffs/Appellants herein including deceased Heerabai and the Respondents herein are administered by the Hindu Mitakshara law and they were holding property jointly as shown in Schedule 'C' area 0.983 hectare. Original Defendant Mohno (since deceased) was in the habit of drinking liquor and he was mentally abnormal. Taking the benefit of his mental abnormality, Defendants No. 3 & 4/Respondents No. 2 & 3 herein succeeded in execution of sale deed dated 29-1-86 in their favour without paying any consideration. The alleged sale deed does not give any right and title to Respondents No. 2 & 3. When the fact came to the knowledge of the Appellants, they filed civil suit for declaration of sale deed null & void and permanent injunction for restraining the Respondents in interfering with the possession of the Plaintiffs over the property. By filing independent written statement deceased Mohno has admitted the allegation in the plaint. But Respondents No. 2 & 3 have specifically denied the allegation made in the plaint and have alleged that they have purchased the property after paying the consideration, Mohnu was mentally normal and was in fit condition, and after receiving consideration he has executed sale deed Ex.D-1. 4. After affording opportunity of hearing to the parties, learned Civil Judge Class-II dismissed the suit on the ground that the property was partitioned between the parties, Defendant Mohno was not mentally abnormal and after receiving the consideration he has executed sale deed for which he was authorized. 5. 4. After affording opportunity of hearing to the parties, learned Civil Judge Class-II dismissed the suit on the ground that the property was partitioned between the parties, Defendant Mohno was not mentally abnormal and after receiving the consideration he has executed sale deed for which he was authorized. 5. Judgment & decree of the trial Court were challenged in appeal before the lower appellate Court and the lower appellate Court by dismissing the appeal has affirmed the judgment & decree of dismissal of the civil suit. 6. I have heard learned Counsel for the parties, perused judgment & decree of both the Courts below and records of both the Courts below. 7. Learned Counsel for the Appellants vehemently argued that the sale deed Ex.P-1 (Ex.D-1) executed by Mohno was without consideration, Respondents No. 2 & 3 have obtained the sale deed from Mohno when he was mentally abnormal and not able to understand his good & bad, right or wrong and. therefore, in absence of conscious execution of sale deed by Mohno, the alleged sale deed Ex.P-1 (certified copy)/Ex.D-l (original document) does not give any right and title to Respondents No 2 & 3. 8. On the other hand, learned Counsel for Respondent No. 2 vehemently opposed the appeal and submitted that deceased Mohno had voluntarily executed sale deed in favour of Respondents No. 2 & 3 after receiving consideration. 9. Both the parties have led evidence. 10. Original Plaintiff Heerabai (PW-1). wife of Mohno has examined herself deposed that after the death of her son Anant Ram her husband become mentally abnormal and he used to drink liquor. By taking the benefit of his mental abnormality, Respondents No. 2 & 3 herein have succeeded in getting the sale deed in their favour without paying any consideration. She has further deposed that they have not signed on the sale deed and when the factum of sale deed came to their knowledge, they have filed civil suit. In her detailed cross-examination, para 15, she has denied the suggestion that her husband alone has purchased the property, but has admitted that they all have purchased the property from their own incomes. Maheshwar (PW-2) has corroborated the evidence of Heerabai (PW-1), but has admitted in para 12 of his cross-examination that he did not know the source of acquisition of property. Maheshwar (PW-2) has corroborated the evidence of Heerabai (PW-1), but has admitted in para 12 of his cross-examination that he did not know the source of acquisition of property. Ganpati (PW-3) has also corroborated the evidence of Heerabai (PW-1), but has specifically admitted that Mohno told him that he has executed sale deed, but has not received money. Santosh Sao (PW-4) has specifically deposed that at the time of execution of sale deed, Mohno was mentally fit. Lakhiram (PW-5) has deposed that Mohno told him that he is selling his land to Sugriv. 11. Inter alia, Defendants witnesses Sugriv Sao (DW-1), Vishikeshav Sahu (DW-2) & Hriday Ram (DW-3) have supported the execution of sale deed. 12. Admittedly, sale deed was executed by Mohno. In his written statement, Mohno had admitted the allegation made in the plaint. As per his written statement, he has not sold the property and he was mentally abnormal, but has filed his written statement. Mohno has not filed any civil suit during his life time for declaration of sale deed null and void. The Plaintiffs have filed the aforesaid suit in the year 1986. The Plaintiffs and their witnesses themselves have admitted the fact that the property was not ancestral property and was self-acquired property, and Mohno had told them that he has sold the land. Even as per the evidence of Lakhiram (PW-5), before execution of sale deed Mohno informed him that he is selling the land to Sugriv i.e. father of Respondents No. 2 & 3 herein. This shows that Respondents No. 2 & 3 or their father Sugriv have not succeeded in execution of sale deed by Mohno by taking the benefit of his mental abnormality. 13. Inter alia, the evidence of Plaintiffs witnesses clearly reveals that Mohno has executed sale deed in favour of Respondents No. 2 & 3, and Mohno has informed the witnesses after execution of sale deed and even before execution of sale deed. Burden to prove the fact that Mohno was mentally abnormal and without having knowledge of execution of sale deed he has executed the sale deed was on the Plaintiffs, but the Plaintiffs have utterly failed to discharge their burden. Inter alia, the Plaintiffs have deposed that Mohno was not abnormal and he has executed saledeed. Mohno himself has not filed any civil suit for declaration of sale deed null and void. 14. Inter alia, the Plaintiffs have deposed that Mohno was not abnormal and he has executed saledeed. Mohno himself has not filed any civil suit for declaration of sale deed null and void. 14. After appreciating the evidence, both the Courts below have dismissed the suit and appeal on the ground that Mohno has sold the land to Respondents No. 2 & 3 for which he was competent. Concurrent findings of both the Courts below are based on reliable evidence. In absence of any contra evidence, it is not possible to hold that the sale deed Ex.P-1 was null and void. 15. Consequently, the substantial question of law formulated for the decision of this appeal is decided as negative. On the basis of decision on the substantial question of law, the appeal is liable to be dismissed and it is hereby dismissed. Parties shall bear their own costs. 16. Advocate fees as per schedule. 17. Decree be drawn up accordingly.