MD. FASHIUDDIN Vs. SYED AFZAL HASSAN AND ORS.

JUDGEMENT

(1.) THIS appeal has been filed by the defendants against the judgment and decree dated 25.06.1986 passed by Additional Sub Judge IV, Gaya in T.S. No. 01/1985/27/1981 decreeing the suit declaring the title of the plaintiff over the suit house and further declaring the sale deed in favour of the defendant nos. 1 to 3/b for the suit house as not binding upon the right, title and interest of the plaintiff in the suit house. The suit has been filed by the plaintiff (now deceased through L.R.) for declaration that the plaintiff is the owner of the suit house and the five sale deeds in the name of defendant no. 1 to 3/b are void, ab initio, inoperative and not affecting the right, title and interest of the plaintiff over the suit house. It is not in dispute that the defendant no. 4 is the husband of the plaintiff. It is also not in dispute that a registered deed of Bai Mukasha was executed by the defendant no. 4 in favour of plaintiff on 11.10.1969 for the suit house for payment of the dower -debt. The plaintiff has claimed her title over the suit house on the basis of the deed of 'Bai Mukasha' and has claimed that she has been coming in possession over the suit house as absolute owner and also residing in the same with her children.

(2.) IT is the case of the plaintiff that her husband showed signs of mental decay in 1973 and had been treated in Kanke Mental Hospital, Ranchi also. It is her further case that taking undue advantage of the mental condition of her husband, one Akil Ahmad got a sale deed executed by him fraudulently with regard to the part of the suit house in his favour but the said deed remained inoperative and on the protest of the plaintiff, later on the purchaser Akil Ahmad executed a registered deed of relinquishment on 02.02.1976 accepting the title of the plaintiff over the suit property on the basis of Bai Mukasha. It is further case of the plaintiff that the elder brother of the husband of the plaintiff had transferred some property to meet the expenses for the medical treatment of the husband of the plaintiff but the said transfer was challenged by the husband of the plaintiff by filing a suit wherein the plaintiff, as a witness, supported the transfer and deposed the truth about mental illness of her husband. It has been alleged by the plaintiff that her deposition in the suit had enraged her husband who informed her that he had executed sale deeds in respect of the suit house and thereafter on enquiry the plaintiff got knowledge of the sale deeds in favour of the defendants and the deed of cancellation of the Bai Mukasha executed by her husband. The plaintiff has alleged that defendant nos. 1 to 3(b) are related to each other and have conspired together to grab the property of the plaintiff and got the sale deeds in question executed by her husband (defendant no. 4) by bringing him in collusion. The validity of the sale deeds for the suit house in favour of the defendant nos. 1 to 3(b) has been questioned on the ground of absence of title of the defendant no. 4 over the suit house and the deeds being void, forged, fabricated and collusive documents.

(3.) IN view of the rival pleadings of the parties, the trial court framed altogether 11 issues out of which issue nos. 4, 5, 7, 8 and 9 were material issues and are as follows: -