Decided on August 19,1955



- (1.) This second appeal is by the defendants 1 to 3 and arises out of a suit for declaration that Ext. D sale deed executed by the 1st plaintiff in favour of the 1st defendant was void and inoperative. The Trial Court dismissed the suit while the lower appellate court allowed it and hence this second appeal.
(2.) The 1st plaintiff is the mother of the 1st defendant and mothers mother of the second plaintiff. The common Tarwad of those parties had effected a partition in 1098 and the branch of the 1st plaintiff and the 1st defendant was again subdivided in 1103 whereby the plaint properties items 1 to 9 were set apart to the 1st plaintiff. The 1st plaintiff had executed a hypothecation of other property belonging to the sub Tarwad and covered by the partition deed of 1103 but this transaction was being questioned by the 1st defendant and other junior members. According to the 1st plaintiff apprehension was entertained that these hypothecatees might file suit on the hypothecation bond and also levy attachment before judgment over the plaint items and therefore the 1st plaintiff was persuaded by the 1st defendant and others to execute a hypothecation bond in favour of her daughter the 1st defendant. But as it happened the document was made to take the form of a sale deed without the knowledge or consent of the 1st plaintiff. Ext. D was that sale deed but it had not come into effect nor was it intended to come into effect by the parties concerned. Ext. D was retained in possession of the 1st plaintiff and the properties also remained in her possession. At the time of Ext. D item 9 was in the possession of the 2nd defendant as a mortgagee and the other items were enjoyed by the 1st plaintiff through her lessees and tenants. In respect of item 9 a suit O.S. No. 701 of 1117 had already been filed by the 2nd plaintiff and others questioning the inclusion of item 9 in Ext. D and requiring redemption thereof from the 2nd defendant. The suit was therefore laid for declaration that Ext. D sale deed had not come into effect and was inoperative and could not affect the rights of the 1st or 2nd plaintiff.
(3.) Defendants 1 and 2 filed separate written statements. According to the 1st defendant her marriage took place in 1112 Medom after Ext. D date and till then and also for some time afterwards the 1st plaintiff was managing her affairs. Ext. D sale deed was executed for consideration and in good faith and the 1st plaintiff was competent to execute the same. The original sale deed was left with the 1st plaintiff only for safe custody and had been taken hold of by the rest of the plaintiffs subsequently when the 2nd plaintiff went to her husbands house. There was no reason to impeach the sale deed Ext. D and besides the suit was barred by limitation, having been filed more than 3 years after Ext. D date. The 2nd defendant supported the 1st defendant.;

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