JAGDEO SHARMA Vs. NANDAN MAHTO

JUDGEMENT

(1.) Defendant No. 1 is the appellant in this second appeal. The suit was filed for a declaration that the sale deed, (Ext. A/1) dated 9-6-59 executed by defendant No. 2 (the mother of the plaintiffs) and defendant No. 3 (plaintiffs' brother) in favour of defendant No. 1, is null and void and not binding on the plaintiffs. The suit was dismissed by the trial court but on appeal the same was decreed. Thereafter this second appeal has been filed.

(2.) Admittedly, the land in question was given to defendant No. 2 in gift by the then Raja of Amawan under a registered deed of gift dated 16-4-1944 (Ext. 1). The stipulation in this deed, inter alia, was that the gifted land will be held by the donee and after her death it will be held by her heirs generation after generation but neither the donee (defendant No. 2) nor her heirs will ever have the right of alienating the same either by way of sale, exchange or mortgage etc. It was further stipulated that in case the gifted land was alienated in any manner either by the donee herself or by the heirs of the donee then n the effect of such alienation will be that the deed of gift will stand automatically cancelled and the donor will get the right to come in possession of the gifted property. According to the plaintiffs, therefore, their mother (defendant No. 2) or their brother (defendant No. 3) had no right' to transfer suit land in favour of defendant. Number 1. It was further, said that the transfer was a result of collusion between defendant No. 1 and other defendants. It was also said that the deed was never read over or explained to defendant No. 2 who executed the same as a result of fraud practised upon her by defendant No. 1. It was also said that no consideration in fact passed under this deed. 2-A. The defence, on the other hand, inter alia, was that there was neither fraud nor collusion and that consideration was paid to defendant No. 2. It was said that the land in suit was already in possession of defendant No. 1 as Ijaradar by virtue of three ijara deeds executed by defendant No. 2 in the years 1949 and 1952. It was said that under the sale deed dated 9-6-1959. (Ext. A/1) the amount covered by the aforesaid three ijara deeds were left with defendant No. 1 and the balance was paid to defendant No. 2. It was also the case of the contesting defendant that the restriction imposed under the gift deed dated 14-7-1944 relating to alienation of the property was void and illegal by virtue of Section 10 of the Transfer of Property Act.

(3.) The trial court came to the conclusion that the sale deed dated 9-6-59 (Ext. A/1) was neither the result of fraud nor collusion. According to it, consideration for this sale deed was paid to defendant No. 2. Further, according to the trial court, the stipulation in Ext. 1 prohibiting transfer or alienation by the donee or by her heirs was hit by Section 10 of the Transfer of Property Act and as such void. It accordingly held that the sale deed dated 9-6-1959 (Ext. A/1) was neither void nor invalid. Further, according to the trial court, the plaintiff had only a chance to succeed to the property on the death of her mother.