JANKI DEVI Vs. MURTA KUER

JUDGEMENT

(1.) This second appeal is by defendant No. 1 and arises out of the following circumstances: The plaintiffs are descendants of one Batukdhari Singh since deceased and defendant No. 2 Mahamaya Saran Singh is the son of one Kalika Singh a brother of the said Batukdhari Singh. On 17th of August, 1957 this defendant No. 2 executed a deed which has been described as Baineyadi deed in favour of defendant No. 1 wife of one Prithivichand for a sum of Rs. 6,000/- with respect to a portion of a house situated in the town of Chapra.

(2.) The plaintiffs instituted the present suit inter alia for a declaration that the said deed was null and void and not binding on the plaintiffs. Various grounds for invalidity of the said document were stated in the plaint namely, that the same was collusive, fraudulent, without consideration or for legal necessity and the like. It was also alleged that defendant No. 2 was a man of indecent habits and addicted to wine and women and was not looking after the affairs of the family of the plaintiffs and the recital of the various necessities were all false and untrue. The suit was contested only by the first defendant and she, in her written statement denied all the allegations made by the plaintiff challenging the deed in his favour. It is not necessary to deal with all those pleas of defence as the question raised for decision in this second appeal is entirely different.

(3.) The trial court dismissed the suit on a finding that the document in question executed by defendant No. 2 was valid and binding upon the plaintiffs. On appeal by the plaintiffs in the lower appellate court, an amendment of the plaint was allowed to the effect that if the deed in question was found to be genuine and for consideration, then it should be held that it was a deed of mortgage by conditional sale and not a deed of sale outright with a condition of repurchase. Their alternative prayer succeeded in the lower appellate Court. The learned Additional District Judge has held the document (Exhibit'O') ro be a mortgage by conditional sale and held the plaintiffs to be entitled to a preliminary decree for redemption under the provisions of Order 34, Rule 7 of the Civil Procedure Code.