BAL KISHORE PRASAD Vs. CHANDO DEVI

JUDGEMENT

(1.) THE original defendant nos.1 and 2 have filed this First Appeal against the judgment and decree dated 17.12.1976 passed by the learned Additional Subordinate Judge II, Biharsharif in Title Suit No.206 of 1972/27 of 1975. Both the original appellants died and they have been substituted.

(2.) THE plaintiff -respondent no.1, Smt. Chando Devi filed the aforesaid suit for declaration that the registered sale deed dated 03.04.1967 alleged to have been executed by her and defendant no.3, Dipan Mahton in favour of the defendant nos.1 and 2 with respect to schedule A property is fraudulent, sham and showy document and without consideration. After declaration, the plaintiff claimed 1/4th share in the property and further for partition of the same.

(3.) PANBASO Kuer died in 1966 leaving behind Fakira Mahton, father of plaintiff who is defendant no.5 and the plaintiff, Smt. Chando Devi as her heirs. They came in joint possession of the properties with defendant nos.3 and 4. The defendant nos.3 and 5 were managing the property. In the year 1972, the defendant no.3 refused to give share to the plaintiff on the ground that she has sold the land in1967, as such, she has no interest in the property. Thereafter, her husband obtained certified copy of the sale deed and they learnt that a sale deed has been fabricated fraudulently by defendant no.3. He had taken thumb impression on the plea of taking loan from Government and fraudulently used the thumb impression and created sale deed in question. The sale deed is forged, fabricated and the plaintiff never signed any such sale deed after knowing the implication and nature of the deed and its contents. The signature of attesting witness Gokhul Mahton is also forged. The recital in the sale deed that the plaintiff was in need of money is false. The father of the plaintiff is in the clutches of defendant no.3 as he is residing with him jointly. 4. The defendant nos.1 and 2 filed contesting written statement alleging that they have purchased the land for Rs.10,500. Prior to sale, the plaintiff and defendant no.3 made declaration that they intend to sell the suit property as the joint family of defendant nos.3 to 5 was in need of money. The sale deed was executed and registered by plaintiff and defendant no.3 on 03.04.1967. The defendant no.5 did not execute the sale deed as he was ill. The defendants denied the allegation that they have played fraud on the plaintiffs. According to the defendants, the plaintiff and defendant no.3 appeared before the Registrar and acknowledged execution and registration of the deed. Prior to execution and registration of the deed, the defendant no.1 and 2 had already paid the part of the consideration amount of Rs.4,500 on 02.04.1967. A part of the suit land was mortgaged to one Ramadhin Singh for Rs.1,000 and the defendants kept Rs.1,000 out of the consideration amount for payment of the same to the mortgagee. Since the plaintiff had only 1/4th interest in the suit properties, she was entitled to only Rs.2,625 out of the consideration amount, therefore, in the said consideration amount, the share of the plaintiff i.e. Rs.250 out of the mortgaged amount was adjusted and the rest amount was paid to her after registration. Therefore, there is no unity of title and possession, as such, the sale deed is genuine, legal, valid and for consideration.