TARKESHWAR UPADHYA Vs. MAHESH KAHAR

JUDGEMENT

(1.) This appeal, by the heirs and legal representatives of the plaintiff, Darbari Upadhyay, is directed against the judgment and decree of the lower appellate court, by which the lower appellate court reversing the judgment and decree of the trial court has dismissed the suit.

(2.) The principal relief claimed in the suit was a declaration that the several deeds of gift described in Schedules 2 and 3 and Danpatra mentioned in Schedule 4 of the plaint were illegal, fraudulent and not binding on the plaintiff and that they were never acted upon. Admittedly, all the deeds of sift, which are the subject matter of the suit have been executed on 5-12-1950 by Raktu Upadhyaya. One of them, Ext.-A is in favour of Mahesh Kahar. The second. Ext. E-1 is in favour of defendant No. 6, Dwarika Pandey and third, Ext. A-1 is in favour of the defendant No. 1 Ram Subhag Pandey. The plaintiff brought this suit for declaration on the footing that he was the nearest heir of the deceased Raktu Upadhaya and that Raktu Upadhaya had lost all powers of understanding and he was insane and of unsound mind at the tune he is alleged to have executed these various deeds. The case of the plaitiff was that in spite of the execution of the aforesaid deeds of gift. Raktu Upadhyay continued to be in possession of the lands which are the subject matter of the sift and after his death, the plaintiff was in possession of the lands covered by the various deeds of gift.

(3.) The defendants, in whose favour the aforesaid deeds of sift have been executed, resisted the suit on the ground that Raktu Upadhayay at the time of the execution of the said deeds was in sound mind and not insane and that he had executed these deeds of gift on account of love and affection as these defendants used to look after Raktu Upadhaya and served him in his old age and he had executed the same in favour of the defendants out of his free will. They further denied that the plaintiff Darbhari Upadhaya was the nearest heir of Raktu Upadhaya. According to them, he was a stranger to the family of Raktu Upadhaya.