SANKATHA Vs. DUIJI

JUDGEMENT

(1.) THIS is a Defendants' appeal.

(2.) THE facts relevant briefly are that one Bharosa had three sons, namely, Bhunuwa, Pachua and Tejwa. Admittedly, all of them predeceased Bharosa. Plaintiff -Respondent No. 1, Smt. Duiji, is the widow of Bhunuwa. Pachua left his widow Smt. Bhogia and Deoli was his son. Deoli is also dead. Plaintiff -Respondent No. 2, Smt. Dehuli is the widow of Deoli. Tejwa died leaving his son Bujhakkar, impleaded as Defendant No. 3. Defendants 1 and 2, namely, Sankatha and Sri. Ram are the sons of Bujhakkar, Defendant No. 3. It is not in dispute that Bharosa was the exclusive bhumidhar of the land involved in controversy which is described in Schedule 'C' at the foot of the plaint. On February 4, 1971, there was a deed of sale executed for consideration of Rs. 8,000/ - in respect of the land described in Schedule 'C' purporting to be by Bharosa in favour of Defendants 1 to 3. Bharosa died on February 21,1971. The suit giving rise to the appeal was instituted on June 2, 1972 by the Plaintiffs 1 and 2 seeking relief for cancellation of the above -mentioned deed of sale alleging that Bharosa was not in a position to understand the implications of the transactions on account of his age and other physical infirmities. It was pleaded also that there was no consideration advanced and that Bharosa did not apply his mind to the transaction in question nor was he in physical or mental condition to be able to do so. The suit was resisted by the Defendants who refuted that there was any kind of fraud in the matter or Bharosa was incapable to execute any such deed. It was also pointed that the sale made was for adequate consideration. The right of the Plaintiffs to assail the deed of sale was also disputed.

(3.) SRI . G.P. Bhargava, learned Counsel for the Defendant -Appellants, urged in the first place that the Plaintiff -Respondents cannot be said to have a right to maintain the suit seeking cancellation of the deed of sale made by Bharosa on February 4, 1971. From the relationship specified above, it is manifest that Bhujakkar, Defendant No. 3, one of the transferees, is the grand -son of Bharosa deceased. In the light of Section 171(a) of U.P. Act I of 1951, Defendant No. 3 is undoubtedly one of the heirs of deceased Bharosa in respect of such of the land as has not been transferred by the deceased in accordance with law during his life time. In relation to Smt. Duiji, Plaintiff No. 1, it will be recalled that she is the widow of Bhunuwa, the predeceased son of Bharosa. The second proviso to Section 171(a) provides that, subject to the provisions of the first proviso, the share of a predeceased male lineal descendant will devolve upon his widow who has not remarried. It is not the case of any of the parties in the present case that the Plaintiff No. 1 remarried. The first proviso says only that the son of a predeceased son how low soever shall inherit the share which would have devolved upon the predeceased son, had he been alive. There is nothing thus in the first proviso to detract from the application of the second proviso in relation to Plaintiff No. 1, she being the widow of the predeceased son, namely, Bhunuwa. She is evidently a co -sharer along with Defendant No. 3 in respect of such property which has not been conveyed by Bharosa according to law in his life time. For the Plaintiff -Respondents it was also submitted that Plaintiff No. 2, Smt. Dehuli, can also be an heir to Bharosa deceased in the light of the first proviso referred to above. With this line of reasoning I am unable to agree. The reason is that the Plaintiff No. 2 is the widow of Deoli who was the son of Pachua. Pachua was the predeceased son of Bharosa. According to the first proviso, the son of a predeceased son how low soever inherits the share which would have devolved upon the predeceased son had he been alive. In case Deoli, husband of Plaintiff No. 2, was alive, the position may have been different. It might be said in that event that he inherited along with those included in clause a otherwise, but the same cannot be extended to the Plaintiff No. 2, who is the widow of Deoli deceased. The case of Smt. Dehuli, Plaintiff No. 2, is also not covered under the second proviso. The fact nonetheless remains that Plaintiff No. 1 would be one of the heirs to Bharosa according to Section 171(a) and, therefore, she is in a position to contend that the deed of sale executed by Bharosa is voidable.