ARYA CHANDRA KUMAR Vs. RAM KHELAWAN PRASAD

JUDGEMENT

(1.) This second appeal is at the instance of the plaintiffs. It arises out of a suit for declaration that the sale deed dt. 21-9-1974 executed by plaintiff No.2 in favour of defendant No.2 is void and without consideration.

(2.) Plaintiffs Nos.1 and 2 are the sons of one Jhapsi Singh. Plaintiff No.3 is the wife of plaintiff No.2. According to the plaintiffs' case, the father of plaintiff No.2, Jhapsi Singh, acquired a house bearing municipal holding No. IV, Ward No. 4, in Gaya town. After the death of Jhapsi Singh the aforesaid property devolved on the joint family consisting of plaintiffs Nos.1 and 2 and widow of Jhapsi. Plaintiff No.2 is said to have fallen in bad company and was addicted to ganja, bhang and alcohol drinks. It is said that he also suffered from insanity since the year 1972. There was a separation in the family and each one of the members of the family got 1/3rd share. It was further agreed that plaintiff No. 2 being insane shall have no right to alienate the property allotted to him and his wife (plaintiff No. 3) was only authorised to sell the property if necessity therefor arose with the consent and advice of plaintiff No.1. The terms were reduced into writing and came to be termed as a deed of agreement bearing the date 21-10-1973. It bore the signatures of all concerned. It is said that even though plaintiff No.2 was not permitted under the agreement to execute any sale deed, he did so during the period of insanity. Therefore, the sale deed in question is void and without consideration. The defendants' case, on the other hand, is that plaintiff No. 2 was never insane. There was a regular partition between the parties on 21-10-73 with the help of Panches. The entire suit house was divided. Plaintiff No.2 got the eastern portion of the suit house over an area of 1 kathas with specified boundary. Plaintiff No. 1 got western portion of the suit house and Dulari Devi in the middle. Since the date of partition each party was in exclusive possession. Plaintiff No.2 sold his share of the suit house for a sum of Rs.5,500/- by a sale deed dt.21-9-1974 and received the consideration amount. The document is genuine, valid and for a valuable consideration. The plaintiffs have no right, title or interest to challenge the said sale deed.

(3.) It appears that Jhapsi had two daughters. They filed an application for being impleaded as party defendants to the suit and the said prayer was allowed by the trial court. They also filed written statement and claimed that they have also share in the property. According to them, in the partition plaintiff No.2 could not have got 1/3rd share but only 1/5th share. According to them, Jhapsi died on 20-11-76.