HEERABAI Vs. KUSHIBAI

JUDGEMENT

(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:

(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.