SHAKUNTLA TIWARI Vs. MOHAMMAD RAMJAN

JUDGEMENT

(1.) This appeal has been preferred by the plaintiff. This Court vide order dated 13.4.1998 while admitting the appeal had formulated the following substantial questions of law:-

(2.) The defendant no. 1 filed the written statement in which inter-alia it was pleaded that defendant no. 2 was the owner of the suit house and she had the authority to sell the suit house. The defendant no. 2 was in a fit physical and mental condition to execute the sale deed. The sale deed had been executed by her voluntarily on receipt of consideration. It was also pleaded that defendant no. 2 placed defendant no. 1 in possession of part of the suit house and assured him that possession of the remaining portion shall also be handed over to him. The defendant no. 2 did not file any written statement and was proceeded ex-parte.

(3.) The trial Court vide judgment and decree dated 29.3.1993 decreed the suit preferred by the plaintiff. The trial Court on the basis of documentary evidence on record namely Ex.P/2, P/3 and D/1 as well as the statement of defendant's witness namely Gulam Hussain DW-4 held that suit house was constructed by father of the plaintiff. It was further held that plaintiff and defendant no. 2 are the co-owners and were in possession of the suit house being the legal representatives of late Madan Mohan. The trial Court on the basis of the statement of plaintiff namely PW-1 as well as Krishna Kumar PW-2 and Praveen Kumar PW-3 held that sale consideration was not paid to defendant no. 2 as witnesses to the sale deed have stated in their statement that the sale consideration was not paid to the defendant no. 2. The trial Court further held that there is inconsistency and contradiction in the statements of DW-1 Mohd. Ramjan, DW-2 Ansarul Haq, DW-3 Ramesh Prasad, DW-4 Gulam Hussain and DW-5 Babu with regard to payment of sale consideration. It was also held by the trial Court that defendant no. 1 executed the mortgage deed Ex.P/3 on the same day in favour of defendant no. 2 as the sale consideration was not paid to her. It was further held by the trial Court that defendant no. 1 has not been able to prove that the suit house was sold for legal necessity. It was also held that defendant no. 2's son had died on 4.1.198.7 and immediately thereafter, the sale deed dated 2.3.1987 was executed. Accordingly, it was held that defendant no. 2 was not in a fit mental condition to execute the sale deed. Accordingly the suit was decreed.