HAMEED Vs. KANHAIYA

JUDGEMENT

(1.) The plaintiff. Kanhaiya filed a suit for the cancellation of the sale deed dated 23-12-1981 executed by Sita Ram in favour of the defendants. The suit was filed by Kanhaiya as a minor through his mother and legal guardian Smt. Kailashi Devi claiming himself to be the son of Sita Ram. The plaintiff alleged that Sita Ram was an illiterate and a simpleton person and was also hard of hearing. He was called to Darjeeling by his nephew Janeshwar and others, who played a fraud upon Sita Ram and got a gift deed executed in their favour, whereby Sita Ram gifted his entire properties in favour of Janeshwar and others. When Sita Ram came to know about the execution of this gift deed, he filed a suit against his nephew being suits No. 234 of 1977 and 235 of 1977 and ultimately on 23-1-1979, a compromise took place wherein Sita Ram got back 60% of his property along with a sum of Rs.28,000/-. The plaintiff alleged to the defendants were residents of the same village and that the defendant No.1 used to help his father Sita Ram and was also instrumental In compromising the matter with Janeshwar and others. The plaintiff further alleged that Sita Ram fell ill in December 1981 and that the defendants told Sita Ram to execute a Will in favour of the plaintiff and for this purpose the defendants took Sita Ram to the Sub Registrar's office. The defendants also told Sita Kam to deposit Rs.28,000/- in the bank, which he got from Janeshwar. The plaintiff alleged that Sita Ram went with the defendant to deposit Rs. 20,000/- in the bank and also to execute a will, but the defendant in addition to the execution of the will also got Sita Ram to execute a sale deed in their favour. The plaintiff alleged that the execution of the sale deed was an outcome of a fraud played by the defendants upon the father of the plaintiff and that in the garb of executing a Will, the defendants fraudulently also got a sale deed executed in their favour. In paragraph No. 16 of the plaint, the plaintiff had alleged various grounds for the cancellation of the sale deed, namely, that the sale deed was executed fraudulently by the defendants and was without any consideration and that Sita Ram had no intention nor did he willingly execute the sale deed in favour of the defendants. The plaintiff further alleged that the witnesses to the sale deed were interested persons and were the henchmen of the defendants. The plaintiff submitted that he was in physical possession of the property in question and prayed that the sale deed executed in favour of the defendants be cancelled.

(2.) The defendant Nos. 1, 2 and 3 filed their written statement and denied the plaint allegations and submitted that the defendants plaintiff had no cause of action nor had any locus standi to file a suit. The defendants contended that the plaintiff was not the son of Sita Ram and therefore, had no locus standi to file the suit against the defendants. The defendants contended that the plaintiff was an illegitimate child who had no father or mother and that Smt. Kailashi Devi was not the wife of Sita Ram and that she was an impostor. The defendants further contended that they had no knowledge about the filing of suit No.234 and 235 of 1977 and specifically denied that they ever did pairvl on behalf of plaintiffs father or that they were instrumental in compromising the matter with nephews of Sita Ram. The defendants, however, admitted that Sita Ram was an illiterate person,.but contended that he could understand and differentiate between good and bad. the defendants, however, denied that they had ever told Sita Ram to execute a Will in favour of the plaintiff or that they had taken Sita Ram to the Sub Registrar's office for executing a will. The defendants further denied that they had ever told Sita Ram to deposit Rs.28,000/- in the Bank which he had received from Janeshwar. The defendants contended that Sita Ram consciously and with an open mind, validly executed a sale deed in their favour for a consideration and that the defendants were bona fide purchasers for value. The defendants submitted that they had paid a sum of Rs.30,100/- to Sita Ram and that the defendant Nos. 4 & 5 paid a sum of Rs.10,965/- to Sita Ram at the date of the execution of the sale deed, which was duly acknowledged by Sita Ram before the Sub Registrar and only thereafter, the sale deed was executed. The defendants denied the allegation that no consideration was paid to Sita Ram. The defendants further submitted that out of Rs. 41,065/- which was the total consideration, Sita Ram deposited a sum of Rs.28,000.00 in the bank. The defendants submitted that the sale deed was validly executed and that the suit was liable to be dismissed.

(3.) The defendant Nos. 4 and 5 also filed their separate written statement, making similar averments as made by the defendant Nos. 1, 2 and 3. The defendant Nos. 4 and 5 submitted that they had paid a sum of Rs. 10,965/- to Sita Ram towards the sale consideration and that they were bona fide purchasers for value.