RIPUMADHUSUDAN PRASAD SINGH Vs. RAMA SHANKAR PRASAD SINGH

JUDGEMENT

(1.) This appeal by defendant No. 1 arises out of a suit for a declaration that defendant No. 2 had no right and interest in the property conveyed by the sale deed dated 21st November, 1957, or to execute the said sale deed in favour of defendant No. 1 and moreover defendant No. 1 had not acquired any right, title and interest in the said property. The plaintiffs wanted a further declaration that the said sale deed was not binding upon them.

(2.) The case of the plaintiffs was that one Chandramadho Singh had two wives. From the first wife he had a son, Gopal Saran Singh (defendant No. 2). Rambha Devi (plaintiff No. 6) is the wife of defendant No. 2, whereas plaintiffs 7, 8, 9 and 10 are the minor sons of defendant No. 2. The name of the second wife of Chandramadho Singh is Keshmati Kuer (plaintiff No. 5). Plaintiffs 1 to 4 are the sons of Chandramadho Singh by his second wife, Keshmati Kuer. Chandramadho Singh died in December, 1945, but de- fendant No. 2 had separated from his father and step brothers (Plaintiffs Nos, 1 to 4) during the lifetime of his father. Defendant No. 2 executed a deed of gift on 9-3-1940 in favour of his wife (plaintiff No. 6) in respect of his entire share in the family property which was one-sixth. Later on, defendant No. 2 filed Title Suit No. 10 of 1941 for partition of his share in all the properties (inasmuch as there was no partition by metes and bounds till then). That suit was cumpromised on 28-6-1941 and the deed of gift was accepted as valid. Defendant No. 2 was given a monthly allowance of Rs. 25/- by that compromise and he had no concern with the properties. In the year 1946 one Lachmi Prasad Singh, Pleader, was appointed guardian by the Court to manage the properties of the minor sons and grandsons of Chandramadho Singh, but the said guardian resigned and thereafter the mother of plaintiffs 1 to 4 was appointed guardian. She was discharged from the guardianship by the order of the High Court on 1-9-1955 and thereafter plaintiff No. 1 began to manage the family properties, as he had attained majority. In the year 3954 the proprietary interest of the said family vested in the State of Bihar, but the plaintiffs continued in possession of the bakasht and zirat lands. Defendant No. 2 had no right, title and interest in the lands described in Schedules Ka and Kha of the plaint and he had no right to transfer those properties as the plaintiffs were in possession thereof. The land bearing plot No. 233 of Khata No. 755 did not at all belong to the plaintiffs or their family and the plaintiffs had not acquired title to any portion of that plot by exchange, but defendant No. 2 fraudulently included that land also in the sale deed dated 21-11-1957. Defendant No. 2 fell in bad company and he used to drink wine. Defendant No. 1 took advantage of the weaknesses of defendant No. 2 and got the said sale deed executed by him fraudulently, without paying a single pie as a consideration. Moreover, defendant No. 2 had no necessity at all to take any loan and the aforesaid sale deed was neither for consideration nor for legal necessity. The plaintiffs learnt about the said sale deed on 30-11-1957, and by the execution of that sale deed a cloud had been cast on their title, although they were in possession of the lands transferred by defendant No. 2, barring the land bearing plot No. 233. The plaintiffs thus filed the suit for the reliefs indicated above.

(3.) Defendant No. 2 filed a written statement supporting the case of the plaintiffs and alleged that no consideration was paid to him in respect of the said sale deed. He gave his left thumb impression and signature on a blank stamp paper under the influence of defendant No. 1. Defendant No. 1 contested the suit on grounds, inter alia, that the share of defendant No. 2 was one-fifth and not one-sixth in the family properties and defendant No. 2 got the said share by partition, and he was separately in possession of that share. Defendant No. 2 was neither a drunkard nor a vagabond, and he executed the sale deed in question for legal necessity after receiving full consideration for it. He fully understood the contents of the sale deed before executing it. The portion of survey plot No. 233 sold by defendant No. 2 had been obtained by the family of defendant No. 2 by an exchange. The plaintiffs had full knowledge of that sale deed much earlier than 30th November. 1957, and there was no fraud at all in the execution of that sale deed,