BACHCHI DEVI Vs. RADHESHYAM GUPTA (DEAD) THROUGH LRS

JUDGEMENT

(1.) This plaintiffs' second appeal was admitted for hearing on the following substantial question of law: -

(2.) The suit property was originally held by Jaina. He had two sons and one daughter namely Sonsai, Chunnilal and Nanki, respectively. Chunnilal executed sale deed dated 29-10-1975 in favour of defendant No.1 and died on 22-1-1976. The original plaintiff was Sonsai (died during the pendency of suit). He had filed suit for setting aside the sale deed executed by Chunnilal in favour of defendant No.1 on the ground that the sale deed was obtained by fraud, as Chunnilal was taken for treatment and got the sale deed executed fraudulently. Defendant No.1 filed his written statement denying and opposing the plaint allegations and stated that the sale deed was executed for legal necessity and it is in accordance with law. The trial Court after appreciating oral and documentary evidence on record, came to the conclusion that the suit land was jointly owned by plaintiff Sonsai, Chunnilal and defendant No.2 Nanki; and the plaintiff has ?rd share, defendant No.2 Nanki has ?rd share and Chunnilal has also ?rd share in the suit property. Chunnilal had no legal necessity to sell the suit land of his share and the sale deed was executed on 29-10-1975 fraudulently, but the sale deed cannot be set aside by virtue of the provisions contained in Sec. 19 of the Indian Contract Act, 1872, as though Chunnilal was aware of the fraudulent act, but he did not challenge the sale deed during his lifetime and the plaintiff cannot question the validity of the sale deed and also held that Bharos and Vanshgopal were also necessary party. On appeal being preferred by the plaintiffs, the first appellate Court maintained the finding of the trial Court with regard to the fact that the plaintiffs cannot question the sale deed being third party / strangers, but set aside the finding with regard to necessary party and non-impleadment of the State as party defendant in the suit against which this second appeal has been filed in which substantial question of law has been formulated and which has been set-out in the opening paragraph of the judgment.

(3.) Mr. Ashok Kumar Shukla, learned counsel appearing for the appellants / plaintiffs, would submit that both the Courts below have concurrently committed grave legal error in holding that the plaintiffs are like strangers / third party to question the sale deed dated 29- 10-1975 (Ex.D-1). He would further submit that in the suit property the plaintiff had also undivided share and since the sale deed was obtained by fraud as concurrently recorded by both the Courts below, the Courts below committed legal error by dismissing the suit being hit by Sec. 19 of the Indian Contract Act, 1872, therefore, the sale deed be declared null and void by granting the appeal and by setting aside the concurrent finding of the two Courts below with regard to issue No.3(b).