SURYA PRAKASH AND ORS. Vs. AYODHYA PRASAD

JUDGEMENT

(1.) This second appeal has been filed against the judgment and decree dated 12.04.1979, passed by the then learned District Judge, Kheri in Civil Appeal No.17 of 1978, who has allowed the appeal and has decreed the suit by reversing the judgment and decree dated 23.12.1977 passed by the Civil Judge, Kheri, who had dismissed the Original Suit No.13 of 1970.

(2.) The brief facts of the case are that the plaintiff-Bal Govind had filed a suit for cancellation of sale-deed dated 02.09.1968 and Mukhtarnama dated 29.08.1968 regarding the property of Smt. Ram Kali on the ground that after the death of Smt. Ram Kali on 31.08.1968, he is the successor of Smt. Ram Kali. It was also alleged that Smt. Ram Kali had received this property from her husband and she had died issue-less. She was under the influence of Madho Ram which was in distant relative of Smt. Ram Kali. Madho Ram had brought Smt. Ram Kali in connection with the treatment but got executed the Power of Attorney, which was registered on 29.08.1968. The mental condition of Smt. Ram Kali was not good at the time of execution of Power of Attorney and she was unable to understand its contents. In the garb of the said Power of Attorney, the defendant no.1 had executed the sale-deed in favour of the defendant no.2 on 02.09.1968, on which date, Smt. Ram Kali had already died. The defendant no.1 had no right to sell the property. Smt. Ram Kali had not received any sale consideration. He has also come to know that Madho Ram had wrongly got recorded the wrong date of death of Smt. Ram Kali. The said Power of Attorney as well as sale-deed are liable to be cancelled, therefore, the suit was filed.

(3.) The defendants had contested the suit by filing their joint written statement. It was admitted that Smt. Ram Kali was owner of the said house and was a Bhumidhar of the land in dispute. It has also been admitted that Madho Ram was relative of Smt. Ram Kali. Smt. Ram Kali had executed the Power of Attorney of her own free will and as per her wishes, the defendant no.1 had executed the sale-deed in favour of defendant no.2. Denying the other allegations, it has been stated that the defendant no.2 has got the sale-deed executed after paying the sale consideration. Smt. Ram Kali had died on 30.11.1968 and the defendant no.2 was in possession of the property in dispute during life time of Smt. Ram Kali. Because the said Power of Attorney was not cancelled during the life time of Smt. Ram Kali, therefore, the defendant no.1 was having right to execute the sale-deed. The sale consideration was received by Smt. Ram Kali herself. The suit of the plaintiff is misconceived.