NANA SANTU BHISE Vs. AKATAI BAPU BHISE

JUDGEMENT

(1.) THIS second appeal is preferred against the Judgment and decree passed by the Extra Assistant Judge, Sangli, dated 22nd August 1984 in Civil Appeal No.304 of 1980 reversing the Judgment and decree in Regular Civil Suit No.379 of 1965 passed by the Joint Civil Judge, Junior Division, Sangli, dated 31st March 1980.

(2.) THE suit property in the present appeal is an agricultural land situated at village Sangliwadi, district Sangli. The plaintiff filed the suit for partition and separate possession of the said property. It is the case of the plaintiff that this property originally belonged to original defendant no.3 Salubai. She became the absolute owner of the suit property in the year 1961. After the death of her son Shivappa who also died issueless. The plaintiff-present appellant Nana is the brother-in-law of said Salubai. Salubai by a registered gift deed dated 22nd March 1963 gifted the suit property in favour of respondents-original defendants nos. 1 and 2. It is the case of the plaintiff that he purchased the half share given to defendant no.2-present respondent no.1 for a consideration of Rs.4750.00 by sale deed dated 16th February 1965. According to the plaintiff, after the said sale deed he was put in joint possession with defendant no.1-present respondent no.2. The plaintiff, therefore, filed the suit for partition and separate possession of half share of the suit property. It was contended on behalf of defendant no.2 that the aforesaid sale-deed alleged by the original plaintiff was obtained by coersion and under influence and, therefore, the same is not binding upon her. Defendant no.3 contended that after the gift she continued in the possession of the suit property as a tenant.

(3.) AGAINST the said Judgment and decree dated 29th January 1971 passed by the Joint Civil Judge, junior Division, Sangli, in Regular Civil Suit No.379 of 1965 the defendants preferred appeal before the Assistant Judge, Sangli, being Civil Appeal No. 113 of 1971. The Assistant Judge, Sangli, by his Judgment and decree dated 29th January 1973 allowed the said appeal and set aside the Judgment and decree passed by the trial Court. It is pertinent to note that while setting aside the decree passed by the trial Court, the lower Appellate Court observed that though of course the evidence as regards undue influence and coersion is not sufficient because that evidence is only of defendant no.2 and though there was finding of the lower Court that defendants had not proved that the sale deed in question had been obtained by undue influence and coersion, still since defendant no.2 was an illiterate lady and since the plaintiff failed to prove that the contents of the sale-deed were read over to defendant no.2 at the time of execution of the sale deed, the lower Appellate Court held that the plaintiff failed to prove that he had purchased half share in the suit property vide sale deed dated 16th February 1965. While coming to the aforesaid conclusion the lower Appellate Court treated defendant no.2 as Pardanshin lady by relying upon the ratio decided in the case Kali Dai and another v. Brundaban Malik A.I.R. 1972 Orissa, 132.