NOOR-UD-DIN MISGAR Vs. GANI WANI

JUDGEMENT

(1.) THIS civil second appeal is directed against the judgment and decree dated 5 -12 -74 of the District Judge, Anantnag allowing the appeal of the respondent against the judgment and decree of Sub -Judge Shopian decreeing the suit of the plaintiff.

(2.) RESPONDENT plaintiffs Noor -ud -Din Misgar and others sons of Mohd. Yousuf Misgar, brought a suit for declaration in the court of Munsiff Pulwama to the effect that the sale deed dated 17 -11 -1969 executed by Mohd Yousuf Misgar defendant in favour of Gani Wani appellant -defendant was void and in -effective against their interests. They sought relief on the footing that Mohammad Yousuf respondent No: 5 was a man of unsound mind and was incapable of making any disposition of property by sale or otherwise. The sale deed was secured by the vendee defdt. by fraud and deceit practised upon Mohd. Yousuf and was therefore, ineffective and inoperative as against their interests. The suit was resisted by the defendant vendee with the allegation that Mohd. Yousuf defendant was of sound mind and he executed the sale deed in question out of his own free will without any fraud or deception having been practised upon him and as such the sale deed could not be said to be void. The defendant also raised the plea that the plaintiffs had no locus standi to institute the suit. The then Munsiff Pulwama (Mr.Bashir -ud -Din) raised necessary issues in the case and recorded evidence of the witnesses which were produced by the parties before him. On his transfer Mr. Mohd. Qasim took over. He recorded the statements of defendant No: 1 as witness and posted the case for arguments. At the time of arguments it dawned upon him that he had no pecuniary jurisdiction to try the suit. He therefore, requested the District Judge, Anantnag to transfer this case to a court of competent jurisdiction. The case was accordingly transferred to the Sub Judge Shopian who heard arguments in the case and decreed the plaintiffs suit. The learned Sub Judge held that from medical evidence it was established that Mohd. Yousuf Misgar defendant (who was represented by guardian in the suit) was of unsound mind at the relevant time of the execution of sale deed; that fraud and deception was practised upon him. No consideration was paid to him at the time of the execution of the sale deed. The sale deed was therefore, void. He further held that the plaintiffs had no right to institute the suit as it was a matter of spes -succesins and the plaintiffs had no present right in the property. The lerned Sub Judge, however, suo motu thansposed Mohd Yousuf defendant as plaintiff and passed decree in his favour declaring the sale deed void and ineffective and inoperative as against him. On appeal the learned District Judge Anantnag set aside the judgment and decree of the trial court. The learned District Judge took the view that the order of transposition of the defendant Mohd. Yousuf as plaintiff was not a proper order. The said defendant could not in the circumstances of the case be transposed as the sole plaintiff in this case. The plaintiffs who had brought the suit had no locus standi to institute the present suit. He was further of the opinion that Mohd. Yousuf though shown as a person of unsound mind in the plaint and represented by Mohd. Maqbool his brother who acted as his guardian, the court did not embark upon any enquiry at the preliminary stage. As the trial court had failed to make preliminary enquiry as regards the state of mind of Mohammad Yousuf Misgar the trial of the suit was bad and faulty. At the time of the institution of the suit Mohd. Maqbool the guardian of the defendant could have claimed to be joined as plaintiff. Consequently the suit was dismissed by the appellate court. Aggrieved by the judgment and decree of the District Judge, the appellants have come up in appeal before this Court.

(3.) I have heard the learned counsel for the parties.