GENDALAL SAJJANBAI Vs. PANNALAL LILABAI

JUDGEMENT

(1.) THIS second appeal filed under Section 100 of CPC was admitted on the following substantial question of law:-

(2.) BRIEF facts of the case are that the respondent/plaintiff filed a suit for redemption of mortgage, possession and for declaration that the sale deed dated 31-3-1960 be declared as void. The suit of the plaintiff in brief was that the said land situated at Village Kapasthal bearing Survey Nos. 327, 406, 764, 799, 809, 812 admeasuring 6. 605 hect. was the land of Joint Hindu Family and their father Chunnilal was the owner of the land. In the year 1957 Chunnilal died and mother was also not alive. At that time, both the plaintiffs were minor and one rama Balai was performing the agricultural operations on their behalf. Plaintiffs were residing along with their grandfather Laxmi Prasad. It was their case that the respondents were co-caste fellows. They took them into confidence and got a mortgage deed executed for a consideration of Rs. 1000/ -. Mortgage deed was got registered. At that time plaintiffs were very small children. Subsequently, they came to know that instead of getting the mortgage deed executed, the defendants got the sale deed executed from the plaintiffs fraudulently under the pretext of mortgage and thereafter when some objections were taken, respondents executed one agreement dated 15-2-1961 declaring therein that the land has been mortgaged and whenever plaintiffs will pay Rs. 1000/- they will leave the possession. Thereafter plaintiffs on several occasions tried to pay the amount and demanded possession, but it was denied. Subsequently, a notice was issued and thereafter the suit was filed.

(3.) IN the written statement, the defence of the defendants was that on 31-3-1960 absolute sale deed was executed after payment of full consideration. The sale deed was executed voluntarily and plaintiffs were not minor. The land was never mortgaged and nor any agreement was written by them. Agreement dated 15-2-1961 is a forged document. Suit is barred by time and since the record of rights have not been challenged, therefore, the suit is also barred on the principle of res judicata. Issues were framed, evidence of parties was recorded and ultimately Trial Court decreed the suit in favour of respondent/plaintiff holding therein that the sale deed dated 31-6-1960 was got executed fraudulently. It was also held that at the time of execution of sale deed, the plaintiffs were minor. Attempt was made to show them as major. The sale deed is void and liable to be set aside and the agreement dated 15-2-1961 was validly executed, which made the transaction as mortgage and towards security of payment of money and the transaction is not of sale, but is of mortgage and declared the sale deed as illegal and void and decreed the suit for redemption of mortgage and possession.