SITA KUERI Vs. BASISTH NARAIN TIWARY

JUDGEMENT

(1.) This appeal by the defendants in a suit for declaration that sale deed executed by the father of the plaintiff-respondent is void is directed against the judgment and decree in Title Appeal No.

(2.) The relevant facts, in short, are as follows :- The plaintiff's father, who was illiterate and addicted to intoxication and was virtually insane, executed a sale deed on 19-9-1940 in favour of Laxmi Ahir, husband of defendant No. 1 and father of the other defendants for a nominal price. According to the plaintiff, the sale was without any legal necessity. The property conveyed under the sale deed (fully described in Schedule I to the plaint) was worth more than Rs. 3,000/- at the relevant time, but was sold only for a consideration of Rs. 400/- inclusive of the mortgage money amounting to Rs. 393A and odd. The plaintiff was in his mother's womb when the sale deed was executed. When he attained majority, he realised that he had full claim upon the property and the defendants were illegally trying to dispossess him. He, accordingly, filed the instant suit, in forma pauperis. Defendants, however, in the written statement maintained that the sale in question valid. The price paid was adequates and the same had been executed by the father of the plaintiff for legal necessity to pay outstanding debt (to redeem the mortgage). The redemption was, accordingly affected on 18-9-1940, that is to say, before the sale deed was executed.

(3.) While the plaintiff maintained that the aforesaid sale deed was never acted upon and when he found that the defendants were trying to dispossess him, he came to the Court, the defendants asserted that after the execution of the sale deed, Laxmi Ahir got possession and thereafter remained in possession of the property. The trial court rejected the plaintiffs case on the finding that the plaintiff was not in his mother's womb on 19-9-42 when the sale deed in question (Ext. A) was executed by his father and since he was not even in his mother's womb at the time of the execution of the sale deed, he had no right to question the transfer. The plaintiff preferred an appeal against the trial court judgment and decree. The appeal was eventually heard by the 2nd Additional Subordinate Judge at Buxar. The learned Additional Subordinate Judge however came to the conclusion that the plaintiff must have been in his mother's womb when the sale deed (Ext. A) was executed. He further held that the said sale deed was obtained on payment of inadequate price for no legal necessity, and, accordingly, allowed the appeal and decreed the suit. The defendants have come to this Court against the said judgment and decree of the court of the 2nd Additional Subordinate Judge, Buxar.