PAWAN @ VISHAL, S/O RAMESHCHANDRA RUNWAL (JAIN), AGED ABOUT 25 YEARS, OCCUPATION Vs. DIWAKARRAO, S/O RAMRAO BHOYAR, AGED ABOUT 54 YEARS, OCCUPATION

JUDGEMENT

(1.) Second Appeal No.84 of 2003 : The dispute in this appeal pertains to 1.08 HR of land out of Survey No.11, situated at Mouza Mundnishankrao, Taluka Nandgaon Khandeshwar, District Amravati, which was sold by the defendant No.2 to the defendant No.1 for a total consideration of Rs. 1,25,000.00 by executing the registered sale deed dated 7-4-1994. In Regular Civil Suit No.42 of 1997, the Trial Court passed a decree for partition and separate possession in respect of the suit property on 21-8-1999, and it is held that the plaintiffs are entitled to share in the suit property. Regular Civil Appeal No.189 of 1999 preferred by the defendant No.1 has been allowed by the lower Appellate Court on 2812003 by setting aside the decree passed by the Trial Court and dismissing the suit filed by the plaintiffs. Hence, the plaintiffs are before this Court in this second appeal.

(2.) The brief facts of the case are as under :

(3.) The reading of the plaint as a whole also disclose the claim of the plaintiff No.1 is that being the son of the defendant No.2, born on 15-2-1979, he acquired interest in the suit property, which was coparcenary property in the hands of the defendant No.2. The plaintiff Nos.2 and 3 being the daughters of the defendant No.2, born on 4-2-1981 and 16-2-1983 respectively, acquired the interest in the suit property by virtue of Sec. 29A of the Hindu Succession Act on 12-6-1994. The defendant No.2, the father of the plaintiff Nos.1 to 3, for his personal need of money, executed nominal sale deed dated 7-4-1994 in respect of the suit property, which was by way of security for the loan transaction and the possession was also delivered to the defendant No.1. According to the plaintiffs, the sale deed was bogus, nominal, illegal and unauthorized and it was not for the benefit of the family. It is further the case of the plaintiffs that even if the sale deed is found to be legal and valid, it will operate only to the extent of ⅕th share of the defendant No.2 and shall not bind the plaintiffs and hence the suit for partition and separate possession in respect of share of the suit property was filed.