BABA SAHEB NIMBALKAR Vs. LAXMI BAI

JUDGEMENT

(1.) THIS appeal is field by the plaintiff against the judgment and decree dated 10-5-05 passed by 6th Addl. District Judge, Gwalior, in Civil Appeal no. 12-A/05, by which the learned Addl. District Judge dismissed the appeal of the appellant and affirmed the judgment and decree dated 1-12-2000 passed by 8th Civil Judge, Gwalior, in Civil Suit No. 217-A/98, by which the suit of the plaintiff was dismissed.

(2.) THE facts of the case in brief, are that the plaintiff's father Vinayak rao died in the year 1953 on 20-5-53. The plaintiff was then a minor and was of the age of 1 -1/2 year. On 16-9-55, Smt. Sankhya Bai widow of Shri Vinayak Rao (defendant No. 3), the mother of the plaintiff, executed a sale deed of the immovable property in suit, i. e. , suit house Municipal No. 301, Halka No. 9, jagtap Ki Goth, Lashkar, Gwalior, in favour of Janki Prasad Jain for a consideration of Rs. 2500/- and possession was also delivered to the vendees. The sale deed Exh. P-1 (Exh. D-7) was executed by Smt. Sankhya Bai for herself and as guardian of the minor plaintiff. At the time of execution of the sale deed in the year 1955, the plaintiff was minor. The present suit was filed on 7-8-68 challenging the sale in favour of Janki Prasad Jain. At the time of filing of the suit, the plaintiff was minor aged 17 years and, therefore, the suit was filed by baburao next friend of the plaintiff. The sale deed Exh. P-1 was executed on 13-9-55 and registered on 16-9-1955. The sale was challenged on the ground that it was not for legal necessity and after death of his father, when he was at the age of 4 years, he was deserted by his mother. The mother of the plaintiff started living separately and he started living with his maternal uncle and there was no legal necessity to sell his share. It was also averred that sale deed was executed for a sum of Rs. 2500/- only and at that time the suit house was very valuable and defendant Nos. 1 and 2 have no right and title over the said suit property. It is also averred that after death of his father, defendant No. 3 mother of the plaintiff, would become the natural guardian of the plaintiff's property, but she has no right to sell the property as she does not become a coparcener and as such cannot act as a Karta of Joint Family. At that time, her right was limited as per Hindu women's Rights to Property Act, 1937.

(3.) DEFENDANT Nos. 1 and 2 filed written statement and denied the allegations made in the plaint and averred that after the death of plaintiff's father, who had himself mortgaged the suit property vide mortgage deed dated 8-5-1935 to Prahlad Das for Rs. 250/ -. Vide Exh. D-3 mortgage deed dated 25-2-44 in favour of Vittaldas for Rs. 1600/-, vide mortgage deed Exh. D-4 thereafter in the year 1951 Vinayak Rao (father of the plaintiff), his wife and plaintiff mortgaged suit house to Gajanand vide Exh. D-5, dated 15-5-1951 for rs. 600/ -. Thus, the plaintiff had himself mortgaged his property. The natural guardian of the plaintiff, the mother sold the suit house by executing a sale deed for Rs. 2500/- as the payment was demanded by the mortgagee and the minor had also to be maintained. Out of the sale house, she paid the amount to vittaldas and Gajanand Gupta and repaid the mortgage amount and also spent for maintenance expenses of plaintiff as he was residing with her, therefore, sale cannot be attacked as devoid of legal necessity. Defendant No. 3,i. e. , the mother of the plaintiff, filed a written statement and in Paras 4 and 5 of the written statement admitted that at the time of death of her husband, plaintiff was 1-1/2 year's old and she was no means to look after the plaintiff and to pay the mortgaged money and mortgager started reminding her to pay the mortgaged money and, therefore, she executed the sale deed on 16-9-55. She, later on, filed another written statement and supported the case of the plaintiff.