RIKHOBRAM KALITA Vs. NALINI KANTA DAWKA

JUDGEMENT

(1.) This is a second appeal from the decree and judgment of the Second Additional Judge, A. V. D., dated 21st May 1947 by which the order of the learned Sadar Munsiff, Gauhati, dated 22nd Nov. 1946 declaring that the sale-deed executed on 11th March 1944 by the late Mt. Dhukupriya in favour of defendant 1 Rikhobram was inoperative as being: bad in law and as such had conferred no right and title on defendant 1 in respect of lands-covered by kheraj patta No. 15 Purnakamdev village in mouza Pachim Barigog and directing that plaintiff be put in possession of the lands according to law and that the deed in defendant's favour shall stand cancelled and that a copy of the decree be sent to the Registrar, Kamrup, for taking necessary action under 8. 39, Specific Relief Act was modified, and the relief for possession of the lands disallowed on the basis of withdrawal with liberty to the plaintiff to bring a fresh suit for this relief.

(2.) Defendant has appealed to this Court Plaintiff's case was that Mt. Dukhupriya was his maternal grandmother. He purchased the suit land from her for a sum of Rs. 300 and & sale-deed was executed in his favour on 7th Feb. 1944. Mt. Dukhupriya died on the night of 11th March 1944 after a protracted illness. She was unconscious on the date and was unable to execute any deed or document. A sale deed purporting to have been executed by her on 11th March 1944 in favour of defendant was vitiated by fraud. There was no consideration for the sale in favour of defendant 1 and Mt. Dukhupriya was wholly unable to be a party to the document being not in possession of her senses.

(3.) Defendant 1 denied these allegations. He admitted that a sale-deed had been executed in plaintiff's favour on 7th Feb. 1944, but pleaded that the sale could take effect only on the fulfilment of certain conditions by the plaintiff. As these conditions were not fulfilled, the deed was allowed to remain unregistered. Later on Mt. Dukhupriya in order to pay off her debts resold the land to him for a consideration of Rs. 680 and executed the sale-deed on 11th March 1944 in his favour with the full consent of her two daughters, one of whom is the mother of the plaintiff.