SUSHILA BHIKU SHINDE Vs. SULOCHANA BABURAO BHOJ

JUDGEMENT

(1.) THIS appeal questions the decree made by the trial Court with regard to survey No. 398 of village Kasabe Pedgaon, Taluka Shrigonda, District Ahmednagar, holding that the said land belonged to one Bhiku and plaintiff No. 1 was born to him before his death and was his legitimate daughter. Bhiku died sometime on April 24, 1970 at Pedgaon. The suit was filed thereafter, claiming the right of inheritance by plaintiff No. 1 as his daughter and by plaintiff No. 2 as his real elder brother, while plaintiff No. 3 as the sister.

(2.) THE plaint alleged that the present appellant Sushila was the kept mistress of Bhiku and she was residing with Bhiku since before two -three years before 1961, i.e., since about 1958, as Bhiku had no wife nor any son. Bhiku was completely under the control of Sushila, defendant No. 1, and he was unable to think freely and on his own. The plaint further alleged that by deceit and by exercise of undue influence promising that she would maintain him well, Sushila encouraged Bhiku to take to drinks and eventually on July 28, 1961, by exercising undue influence, got his property gifted to herself. It was further alleged in the plaint that she made false representations that she would serve Bhiku in all the best manner. According to the plaint, in the year 1970, Bhiku committed suicide. It was further asserted that the gift -deed taken by defendant No. 1 was executed without any consultation by Bhiku with any lawyer. Defendant No. 1 was residing with Bhiku and was in possession of all the estate and she is in possession of the same even after his death. Her possession is thus unauthorised. These are the allegations on the basis of which the admitted document of gift -deed is said to be not binding on the plaintiffs. It was further claimed that after avoiding the gift, which was brought about by undue influence and fraud in this manner the plaintiffs were entitled to succeed to the property left by the deceased Bhiku.

(3.) HAVING found in favour of plaintiff No. 1 that she is the legitimate daughter, the trial Court negatived the plaintiff's case that there was any undue influence or fraud practised by Sushila on Bhiku so as to take the gift produced at exh. 62. Having so negatived the main case on the basis of which the plaintiffs came to the Court, the result of which should have been dismissal of the suit, however the trial Court proceeded to avoid the gift holding it to be illegal because, in view of the learned trial Judge, this gift was hit by the provisions of Section 23 of the Indian Contract Act and further that though there were no pleas on this aspect of the matter, the Court was entitled to avoid the gift being made for immoral consideration. The trial Court reached a finding that the object of execution of the gift -deed was 'past and future cohabitation.' The defence resistance that in want of such a specific plea, the Court was not entitled to consider this aspect, has been ruled out by referring to the judgment of the Rajasthan High Court in the case of Naraini v. B. Mohan .