LATE BHERU LAL Vs. MOHAMMAD IBRAHIM

JUDGEMENT

(1.) HEARD learned counsel for the parties.

(2.) BRIEF facts leading to filing of this suit for redemption of the mortgaged shop are that originally the property was belonging to one Laluji Soni. He had three sons, Suraj Mal, Bal Mukund and Laxmi Lal. Bal Mukund and Laxmi Lal both died before the year 1956. Suraj Mal had one son and wife, Jagannath and Lehri Bai. Suraj Mal also died long ago and it is alleged that Suraj Mal's wife contacted second marriage (Nata ). It is alleged that Bal Mukund, Laxmi Lal and Jagannath constituted the coparcenery after the death of Laluji Soni. Bal Mukund mortgaged the shop in dispute to Narayan s/o Fateh Lal, Heera Lal and Jiwan Lal Sethi for a consideration of Rs. 3000/- on 30. 1. 1944. It is alleged that the said mortgage was created with the consent of Laxmi Lal and Jagannath. The possession was delivered to the mortgagees. The mortgagee Narayan expired and the remaining mortgagees transferred their mortgage's rights to the defendant for a consideration of Rs. 2000/- by registered deed dated 21. 2. 1961 and handed over possession of the shop to the defendant, therefore, the defendant stood in the shoes of the mortgagees. It is alleged that Bal Mukund and Laxmi Lal both expired before coming into force of Hindu Succession Act 1956 and their wives contracted second marriage (Nata), therefore, Jagannath succeeded to the property as sole owner. It is alleged that Jagannath was of unsound mind and he was living in the guardianship of his wife Smt. Lehri Bai and according to the plaintiff, Smt. Lehri Bai is the de-facto guardian of Jagannath. Because of the need, the shop in dispute was sold by Smt. Lehri Bai as de-facto guardian of Jagannath to the plaintiff by registered sale-deed dated 19. 1. 1971 for a consideration of Rs. 5000/ -. Thereby, the plaintiff became the owner of the shop in dispute and stepped in the shoes of the mortgagor. The plaintiff, after serving notice upon the defendant dated 24. 1. 1971, filed this suit for redemption of the mortgage shop on 16. 2. 1971.

(3.) AFTER receipt of the evidence from Trial Court, the first appellate court decided the appeal and, held that the sale-deed (Ex. A. 1) in favour of Bal Mukund is a sham and bogus document and it does not record the true intention of the parties and it was executed only to safeguard the property as there was fear of Jagannath's waisting it. The first appellate court also held that no partition took place between the sons of Laluji. The first appellate court reversed the finding on issue No. 1 and 5 to 8, however, while deciding issue No. 2 about the unsoundness of mind of Jagannath, the first appellate court held that Jagannath may not have normal mental equilibrium and at the same time, he cannot be said to be lunatic person or an idiot. Therefore, the sale-deed executed by Smt. Lehri Bai on behalf of Jagannath as guardian of Jagannath is without authority and, therefore, has not conveyed title of the property in favour of the plaintiff. In result, even after reversal of the finding of the Trial Court on some of the issues, the appeal of the appellant-plaintiff was dismissed by the first appellate court by judgment and decree dated 14. 1. 1981. Hence this second appeal.