GOPALKRISHNA GOVIND Vs. TUKARAM NARAYAN

JUDGEMENT

(1.) ONE Narayan Dhere, respondents 1 to 3 and respondent 4 had filed the suit from which the present appeal arises for recovery of possession of property which admittedly belonged to one Ganesh. Appellant 1, who was defendant 1, claims under an agreement for sale purporting to be executed by Ganesh's widow Laxmibai on 15-9-1945. By that agreement Laxmibai purported to sell the property in suit to defendant 1 a minor for a consideration of Rs. 6,000. Inasmuch as Laxmibai was only a limited owner her husband having died before 1937 she could sell only for legal necessity, and the agreement for sale said that the legal necessity was debts, one of Rs. 4,000 due to one Dandavate, and other miscellaneous debts of Rs. 1,000/- incurred by Laxmibai for paying doctors and for other medical expenses. Defendant 2 was the father of defendant 1 who has taken the sale deed on behalf of defendant 1. Defendant 2 is also the brother of Laxmibai.

(2.) THE defence was that defendant 1 was in possession of the property and has entered into the sale deed in part performance of the contract for sale. The sale was for legal necessity because Rs. 4000 were due to Dandavate upon a mortgage executed by Laxmibai; Rs. 1000 were due to one Indirabai Deshpande and Rs. 500/- were due to one Acchute. Defendant 1 said that his father had as a matter of fact paid Indirabai Deshpande and Acchute and produced receipts passed by them for the sums of Rs. 1000 and Rs. 500/- respectively. The mortgage in favour of Dandavate was by Laxmibai. But it was said that it was binding because Ganesh died indebted to one Atre upon a simple mortgage dated 18-11-1918. In the year 1922 Laxmibai executed a simple mortgage in favour of one Parwatibai Patankar for a sum of Rs. 1500, part of which was borrowed in order to pay off Atre and was utilised to pay him off. The remaining amount of Rs. 887-8-0 was supposed to have been utilised for the purpose of rebuilding the house in suit. Laxmibai paid Parwatibai Patankar in part by selling an open plot belonging to her for a sum of Rs. 1400/- on 24-5-1928. She paid off the amount realised to Parwatibai Patankar who however was not paid off fully. Parwatibai sued upon the mortgage and obtained a decree for sale of the property in suit. In order to pay off Parwatibai Laxmibai executed on 21-1-1926 a mortgage in favour of one Jog for a sum of Rs. 999/ -. She mortgaged the same property to Dandavate in 1937 for a sum of Rs. 2000 Out of these Rs. 1100/- were paid to Jog and Rs. 900 were utilised by Laxmibai for repairing the house in suit.

(3.) THE plaintiffs claimed however that even apart from legal necessity the agreement for sale was not executed by Laxmibai. She died within four days after the alleged execution of the agreement. The plaintiffs said that Laxmibai was unconscious for a number of days before she died and her thumb impression was taken to the agreement for sale while she was still unconscious.