KISHNU GHANSHYAM Vs. MAROTI MUKUNDA

JUDGEMENT

(1.) The defendants have come up in second appeal to challenge the concurrent decisions of the Courts below whereby the claim of the plaintiffs -respondents for possession of the house in suit was decreed.

(2.) HOUSE No. 1146 situated in Circle No. 12/18 Lalganj, Nagpur, which is the subject -matter of this litigation, belonged to the joint family of the defendants -appellants and their predecessor Ghanashyam. This Ghanashyam died sometime before the document in suit was brought about on November 4, 1954, Defendant No. 1 Kishnu and defendants Nos. 3, 4 and 5, Shioram, Anandrao and Laxman, are the sons of Ghanashyam, while defendant No. 6 is the widow of Ghanashyam. Defendant No. 2 Ramdas is the minor son of defendant No. 1 Kishnu. On January 16, 1951, Ghanashyam, acting for himself and his minor sons defendants Nos. 4 and 5, defendant No. 1 Kishnu acting for himself and his minor son Ramdas, defendant No. 2, and defendant No. 3 acting for himself, executed a document transferring the house in suit by way of an ostensible sale to the plaintiffs for Rs. 1,500. There was a condition of repurchase embodied in the document and the parties were agreed that this document was in effect a mortgage under Section 58(c) of the Transfer of Property, Act. This document, dated January 16, 1951, is exh. P -1. On May 7, 1951, Ghanashyam and defendants Nos. 1 and 3 borrowed Rs. 500 from the plaintiffs at an interest of Rs. 2 per cent per annum and executed the bond (exh. P -2). On November 4, 1954, accounts of these transactions between the parties were taken and either Rs. 200 or Rs. 400 (about which the parties are not agreed) were found due on exh. P -2 in addition to the amount due on the mortgage (exh. P -1). On that day, after the accounts were made, a certain talk took place between the major defendants and the plaintiffs and the document (exh. P -3) was scribed. It purported to be a sale deed for Rs. 2,500 the consideration whereof was made up as under: Rs. 1,500 due on the mortgage, dated January 16, 1951 (Exh. P -1).Rs. 400 due on the bond (Exh. P -2).Rs. 100 paid as earnest money on November 4, 1954 andRs. 500 to be paid before the Sub -Registrar.

(3.) CLAIMING that they had become the full owners of the suit house by virtue of the sale -deed (exh. P -3), the plaintiffs claimed possession of the house. The defendants contested the suit on the following, among other, grounds: They had never agreed to sell the suit house for Rs. 2,500 when the accounts were made. Rs. 400 were not found due on the bond (exh. P -2) and the earnest money of Rs. 100 was not paid to them that day. They never executed the document (exh. P -3) as a sale -deed. At that time their brother Anandrao was seriously ill and none of them were free to consider this question of settling the former transaction. Representing that the limitation for the debt was about to expire and that the document (exh. P -3) was only for the renewal of the old outstanding debts, the plaintiffs fraudulently obtained the signatures of the executants when they were not in a proper frame of mind. On being noticed by the Sub -Registrar, they learnt that fraud was played upon them and they, therefore, denied the execution and objected to the proposed registration. The Sub -Registrar ought not to have registered that document and this invalid registration conveyed no title to the plaintiffs and the suit should, therefore, be dismissed.