NIDHI PADHAN Vs. BHAINRA KHADIA

JUDGEMENT

(1.) DEFENDANT 1 is the appellant. The following geneological tree would show the relationship in the family of the plaintiffs : Plaintiffs 1 to 3 give their respective ages as 25, 22 and 20 in the cause title of the plaint on 17th May 1958 when the suit was filed. Plaintiffs' case is that the disputed land comprising an area of 7.85 acres with an annual rent of Rs. 2/14/- belonged to both the branches of Eta and Dambaru. The land was jointly possessed by them, and after their death about 14 years before the suit, plaintiffs 1 to 4 and defendant 2 continued to have joint possession of the same. DEFENDANT 1 at the instance of the Gountia of the village, practised fraud on defendant 2 during the minority of plaintiffs 1 to 3 and made the land to be sold for Rs. 300/- under the representation that it was a mortgage. Only Rs. 120 out of Rs. 300/-were accepted. DEFENDANT 1 possessed the said land on the understanding that it was a usufructuary mortgage. About 10 years before, the plaintiffs and defendant 2 left their village for Rampur Colliery for labour. In Falgun prior to the suit, plaintiffs offered Rs. 120/- to defendant 1 for redemption who refused the offer alleging that it was a sale. The sale was without consideration and legal necessity and not binding on the plaintiffs who were minors at the time of the alienation. The plaintiffs accordingly brought the suit for declaration of title and recovery of possession.

(2.) DEFENDANT 1 alone contested the suit. The age of plaintiffs 1 to 3, as given in the plaint, was not challenged. The defence case is that Eta and Dambaru were separate and the disputed property fell to the share of Eta. DEFENDANT 2 for self and for her minor sons plaintiffs 1 to 3 usufructuarily mortgaged the disputed land on 9th April 1944 for Rs. 98/- (Ex. B). On 20th May 1947 defendant 2 for self and on behalf of her minor sons executed an unregistered sale-deed for Rs. 300/-. Both the mortgage and the sale were for legal necessities which were to meet household expenses, to pay up arrears of rent and to purchase some land in Rampur Colliery, where the plaintiff and defendant No. 2 had shifted. DEFENDANT 1 was duly mutated and is continuing in possession. He caused improvement to . the extent of Rs. 2000/-. DEFENDANT 2, the mother of the plaintiffs, was the manager or the joint family and was guardian at the time of alienation and the suit was barred under Arts. 142 and 144 or the Limitation Act.