AVADHESH KUMAR Vs. SHEO SHANKAR

JUDGEMENT

(1.) The plaintiff-appellant brought a suit for cancellation of the mortgage deed dated 29-1-1978 and sale deed dated 29-1-1971 executed by Bhaiya Lal, defendant No. 3, father of the plaintiff in favour of defendants Nos. 2 and 1 respectively.

(2.) The suit was based on the allegations that Bhaiya Lal had an ancestral house in which plaintiff had interest as a member of Hindu joint family and the house was sold by Bhaiya Lal in the year 1962 for a sum of Rs. 5800/-. According to the plaintiff the house covered under the aforesaid mortgage and sale deed, was constructed with the sale proceeds of the sale of the ancestral house in question and was thus a joint family property. It is further alleged that Bhaiya Lal became a Sanyasi in 1965 (as to die a civil death) and the mortgage deed was executed in Lotan's favour for a sum of Rs. 2,000/- later and the sale was in favour of defendant No. 1 for a sum of Rs. 6,000/- also thereafter both collusively and secretly when the plaintiff was minor. A prayer for declaring the two deeds void was also made.

(3.) The defendant-respondent maintained that the house in dispute was a self acquired property of Bhaiya Lai from his own earnings and was not constructed out of the sale proceeds of a previous house. According to the contesting respondent, the mortgage and sale both were binding, the money having been required by Bhaiya Lal for carrying of his business. It was further alleged that defendant No. 1 filed Suit No.118 of 1971 for redemption of the mortgage and in that Bhaiya Lal and Lotan filed joint written statement and having no hope of success, later this suit has been manoeuvred. Lotan defendant No. 2 while taking a stand that Bhaiya Lal was the sole owner of the house maintained that actually the alleged mortgage was a conditional sale in his favour outright and he thus disputed the claim of defendant No.1 under the sale deed in suit. On issues Nos. 5, 6 and 7, the finding is in favour of the plaintiff, they concerned court-fee, limitation and estoppel. On issue No.1, the lower court held that Bhaiya Lal did not become a Sanyasi renouncing the world. On issue No. 2 he found that the house was not constructed out of the nucleus of the joint Hindu family fund. On issue No. 3, the finding is that Bhaiya Lal validly sold the equity of redemption in favour of defendant No., the vendee for payment of antecedent debt under the mortgage-deed. On issue No. 4 it found that the mortgage-deed was valid. The trial court, on such findings, dismissed the suit.