IYYAPPA Vs. RAMALAKSHMAMMA

JUDGEMENT

(1.) THE plaintiff sues for the cancellation of a sale-deed alleged to have been "fraudulently concocted by defendant in respect of certain property," and the defendant Appeals against the decree made in the plaintiff's favour. It is stated in the judgment, and is admitted by the plaintiff's counsel, that before the date of the Suit the plaintiff had assigned all her interest in the property comprised in the sale-deed to the son of her husband's sister. This being so the question arises whether the plaintiff had any legal interest remaining in her entitling her to maintain this Suit. Clearly she had no legal interest in the property comprised in the sale-deed, but it is suggested that she is entitled to have that instrument cancelled in case any action for damages should be brought against her on the covenant contained in the document executed in her nephew's favour. We are of opinion that this bare possibility does not entitle a plaintiff who has divested herself of all interest in the property to maintain this Suit. It is not alleged that the Suit is brought on behalf of the person immediately concerned to have the sale-deed cancelled, and it is plain that the decision in the present Suit could determine nothing as between him and the defendant.

(2.) BUT this want of legal interest in the plaintiff is not the only objection to the maintenance of the Suit as the facts are found by the District Judge. The finding of the District Judge is that, although the plaintiff did not receive the consideration spoken to by the defendant's witnesses, she did in fact execute the sale-deed, undue advantage being taken of her ignorance and helpless condition after her husband's death. To this finding exception has been taken on behalf of the plaintiff, and it has been contended that the District Judge ought, on the evidence before him, to have found that the plaintiff never did put her mark to the instrument of sale. On the other hand it was contended on behalf of the appellant (defendant) that there was sufficient evidence of payment of the alleged consideration, and that the finding on the second issue was, therefore, wrong. Seeing that the Suit is, for reasons already mentioned, not maintainable, we do not desire to express any opinion on these questions of fact. BUT assuming that the Judge's findings are right, we must observe that the Suit ought to have been dismissed. The gist of the plaintiff's charge against the defendant was that she never had executed a sale-deed in his favour, and that the document set up by him was a forgery. It was not competent to the plaintiff to combine with this charge as an alternative the wholly inconsistent charge that, if she did execute the document, no considerartion was received by her, or that fraud was practiced upon her (see Mahomed Buksh Khan v. Hosseini Bibi, L.R., 15 I.A., 86). For this reason the second issue was, we think, an improper one, and it is further open to the objection that, assuming that the document was executed, but that the consideration did not pass, the relief prayed for in this Suit could not have been granted. It is obvious that in case of default in payment of consideration the vendor's right is not to have the sale-deed cancelled and delivered up, but to have the money paid to him by the purchaser.