SADHUSHARAN SINGH Vs. NAGESHWAR

JUDGEMENT

(1.) Heard on admission and formulation of substantial question of law in this second appeal preferred by appellants/defendants under Section 100 of the CPC against the impugned judgment and decree passed by the first appellate court allowing the appeal of the plaintiffs by reversing the judgment and decree of the trial Court and thereby, decreeing the suit of the plaintiffs holding that the sale deeds dated 29/05/1979 and 12/09/1979 executed by defendant No.3 Makkhu @ Fulkunwar in favour of defendant No.2 is void and ineffective.

(2.) Suit property was originally held by Baldeo and his first wife was Nanki. He had three sons namely Kethan (plaintiff No.1), Bharat (plaintiff No.2) and Sadhu Sharan (defendant No.1). Ravishankar (defendant No.2) is the son of Sadhu Sharan (defendant No. 1). Smt. Makkhu @ Fulkunwar, claiming to be the wife of Baldeo, sold the suit property by two sale deeds dated 29.05.1979 and 12.09.1979 vide Exhibits P/3 and P/4 respectively, in favour of the son of defendant No.1 namely Ravishankar (defendant No. 2). The two plaintiffs namely Kethan and Bharat instituted a suit on 09.05.1980 against the defendants seeking that sale deed executed by defendant No.3 Makkhu @ Fulkunwar in favour of defendant No.2 be declared as void and ineffective and also sought permanent injunction against the defendants stating inter alia that after the death of Baldeo, plaintiffs and defendants are in joint possession of the suit property and no partition has taken place between plaintiffs and defendants No. 1 and 3 wherein defendants filed their written statement and denied the plaint allegation by stating that defendant No.3 had already sold the suit property in favour of defendant No.2 as partition has already taken place between them.

(3.) Learned trial Court, upon appreciation of oral and documentary evidence no record, dismissed the suit whereas learned first appellate court, on appeal being preferred by the plaintiffs, reversed the judgment and decree of the trial court and decreed the suit of the plaintiffs holding that the suit property is joint family property of the parties and therefore, defendant No.3, one of the member of joint family without consent of other members, could not have alienated the suit property in favour of defendant No. 2, and accordingly, declared the sale deeds (Exhibits P/3 and P/4) as void and ineffective.