KRISHNA PRASAD Vs. GOPAL PRASAD

JUDGEMENT

(1.) THIS Second Appeal arises out of judgment dated 21 -8 -93, and the consequent decree, passed by Smt. Vidyut Prabha Singh, 5th Addl. Judicial Commissioner, Ranchi, in Title Appeal No. 89 of 1990 (Smt. Lalin Devi and Anr. v. Krishna Prasad), whereby she has set aside the judgment dated 10 -8 -90, passed by Sri Kiran Shankar, Munsif, Ranchi, in T.S. No. 47 of 1989 (Smt. Lalin and Ors. v. Krishna Prasad). The defendant is the appellant against a judgment of reversal. The suit had been dismissed by the trial Court, and the plaintiffs appeal was allowed. For the purpose of disposal of the present appeal we shall go by the description of the parties in the suit.

(2.) THIS is an unfortunate litigation amongst first decree relations. Plaintiff No. 1 is the mother, plaintiff No. 2 is her son, the sole defendant is the grand -son of plaintiff No. 1, and the son of plaintiff No. 2 from his first wife. The mother of the defendant (i.e. the first wife of plaintiff No. 2) died when the defendant was six months old, whereafter plaintiff No. 2 married a second wife, the defendant, therefore, fell in the care of his grand -mother, i.e. plaintiff No. 1 and was brought up by her. On account of natural love and affection, plaintiff No. 1 executed a registered deed of gift dated 6 -3 -87 (Ext. 4), in favour of the defendant with respect to the suit property which was a small plot of land along with a Kachacha house thereupon. The suit property is the absolute property of plaintiff No. 1. After the deed of gift was registered, the defendant demolished the same and constructed a spacious, Pucca house thereupon in which he is living continuously ever since then. Thereafter plaintiff No. 1 cancelled the aforesaid deed of gift (Ext. 4), by a registered deed of cancellation dated 23 -5 -88 (Ext. 4/a), and on heels of which executed a registered deed of absolute sale dated 31 -5 -88 (Ext. 3), in favour of plaintiff No. 2. As a matter of abundant precaution and in order to consolidate the title of plaintiff No. 2 with respect to the suit property, the two plaintiffs instituted title suit No. 4 of 1989 in substance seeking declaration to the effect that the deed of gift dated 6 -3 -87 is illegal and inoperative, having been procured by exercising fraud and misrepresentation, and for the further declaration of right, title and interest of plaintiff No. 2 with respect to the suit property as well as confirmation of possession and, In the alternative, recovery of possession. The suit was dismissed. The plaintiffs appealed which has been allowed, inter alia, on the ground that the defendant has not been able to discharge his onus that plaintiff No. 1 had executed the deed of gift free from fraud or misrepresentation. Hence the present appeal at the instance of the defendant against a judgment of reversal. There is no controversy between the parties with respect to this much effects.

(3.) ON the other hand, the defendant's case as set up in his written statement is that plaintiff No. 1 was and is in good health, and has herself been doing her work properly. The second wife of plaintiff No. 2, i.e. the step -mother of the defendant, started ill -treating him from the very beginning and was therefore, brought up by plaintiff No. 1 ever since he was a child of six months. On account of her natural love and affection she executed the deed of gift voluntarily, without any fraud or misrepresentation, whereafter the defendant demolished the Kutcha house and constructed a Pucca spacious house at his own cost, and has been living continuously ever since then without any objection from any quarter whatsoever. In fact, plaintiff No. 1 has although been living with plaintiff No. 2 at the instance of his second wife and their son got the deed of gift cancelled, the sale deed in question executed, and along with plaintiff No. 1 instituted the present suit. The registered deed of gift was duly executed in the presence of witnesses and others. It is also stated in the written statement that plaintiff No. 1 had no legal necessity to execute the sale deed in question, and the plaintiff No. 2 has got the sale deed executed without any consideration.