JOHRI Vs. MAHILA DRAUPATI ALIAS DROPADI

JUDGEMENT

(1.) The legal representatives of the purchaser/defendant No. 1 in the suit, aggrieved of the judgment and decree passed in Civil Appeal No. 10-A/1976, on 9-3-1978, by District Judge, Morena, whereby the suit of the plaintiff, a lunatic, has been decree reversing the judgment and decree of dismissal of the suit, passed by Civil Judge, Class II, Sabalgarh, in Civil Suit No. 14A/1970, decided on 31-1-1976.

(2.) This second appeal was admitted by this Court on 22-12-1980 for final hearing on the following substantial question of law :- "Whether by applying the principle of "feeding the estoppel" as contemplated by S. 43 of the Transfer of Property Act, the plaintiff will be entitled to a decree for joint possession in as much as the defendant/purchaser could claim at least the ownership of the undivided interest of Dropadi?" At the time of final hearing an application was filed by the appellants on 4-10-1990 under Section 100 (5), Civil Procedure Code, for grant of leave to urge four more questions involved in the appeal and leave to that effect was granted.

(3.) The material facts giving rise to this appeal are thus: The plaintiff Parmanand, a lunatic, owned and possessed agricultural suit-land as Bhumiswami, situated at Survey No. 433, area 3 Bigha 3 Biswa, in village Pathar, Tahsil Sabalgarh, District Morena; Dropadi w/o Parmanand, who was managing the affairs of her husband, transferred the said agricultural land to defendant No. 1 Devilal by executing a sale-deed (Ext. P-1) dated 17-5-1965 for a consideration of Rs. 1000/-; Parmanand through next friend Shyam Sundar Pandey instituted a suit on 25-2-1970 against purchaser Devilal, his wife Dropadi, Kanhaiyalal and Mathura Prasad for declaring the sale as void and for possession and mesne profits at the rate of Rs. 1000/- per year, averring therein that the sale is void and collusive and that a fraud was played upon Dropadi; instead of a usufructuary mortgage, a sale-deed was got executed. The sale was without any consideration. The Trial Court took cognizance of the suit instituted by the lunatic plaintiff through his next friend and issued notices of the suit to the defendants; on 20-8-1970 Parmanand died; an application was filed under O. 22 R. 3, CPC, on 10-9-1970 by Mst. Kokila, the daughter of Parmanand, for substituting her name as the legal representative of the deceased plaintiff. The defendant No. 1 opposed the application and contended that Dropadi is also a legal representative of the deceased plaintiff and she be impleaded as plaintiff's L.R., but the Trial Court allowed substitution of Kokila only, as Dropadi was the defendant in the suit and averments in the plaint were also made against her. After trial, the Trial Court dismissed the suit as barred by time. Aggrieved of this judgment and decree Kokila preferred appeal. The Lower Appellate Court allowed the appeal and remitted the case holding that the suit is not barred by limitation. The trial Court then on merits dismissed the suit on 31-1-1976, against which Kokila preferred an appeal. During the pendency of the appeal before the Lower Appellate Court defendant Devilal died on 11-12-1976 and his L.Rs., the present appellants, were brought on record. The Lower Appellate Court decreed the suit holding that, admittedly, and as is apparent from sale-deed (Ext. P-1), Parmanand was a lunatic; Dropadi was not authorised to alienate the suit land, as the transaction of sale was in violation of Section 75 of (the Indian) Lunacy Act, 1912 (for short, the 'Lunacy Act'); the contract was void under S. 23 of the Indian Contract Act, 1872 (for short, the 'Contract Act'), as Parmanand was not competent to enter into a contract in view of S. 10 of the Contract Act. It was also held that after the death of Parmanand, the said property devolved on Kokila and Dropadi; though Dropadi remained ex parte nor preferred any appeal, under Order 41, Rule 33, CPC, the Lower Appellate Court granted relief in favour of Dropadi also, holding that the appellant and defendant No. 2 Dropadi are entitled to possession of the land, and also mesne profits after holding an enquiry under O. 20, R. 12(1), CPC. It is this decree which the appellants have challenged.