Decided on March 14,1973



- (1.) THE unsuccessful plaintiff No. 1 in both the Courts below is the appellant in this second appeal.
(2.) PLAINTIFF No. 1' is the father of plaintiff No. 2. The plaintiffs filed the suit for a declaration that the sale deed executed by plaintiff No. 2 in favour of defendant no. 1 is not binding on the plaintiffs as the same is without consideration and was brought into existence through fraudulent means by taking advantage of the young age of plaintiff No. 2. It is the plaintiffs' case that the suit property originally belonged to Bramar Sahu (P. W. 3) and it was purchased by plaintiff No. 1 nominally in the name of his son, plaintiff No. 2 on 5-10-1953 as plaintiff No. 1 was then a leper. Plaintiff No. 1 paid the consideration money for the said purchase and he remained in possession of the land as well as the sale deed executed by Bhramar since the date of purchase. It is alleged that Radhamohan patnaik, defendant No. 2 (sister's husband of defendant No. 1) persuaded plaintiff no. 2 to execute a sale deed in respect of the suit property in favour of defendant no. 1 on the pretext that he (defendant No. 2) would take plaintiff No. 2 as a partner in his opium smuggling business and for that he (plaintiff No. 2) should nominally transfer his properties in the name of defendant No. 1 in order to avoid confiscation of the same in case he (plaintiff No. 2) would set involved in any case while taking part in the said smuggling business. Plaintiff No. 2, who was then an" inexperienced voung boy was lured by all that was told to him and so he executed a nominal sale deed in favour of defendant No. 1. But the said sale deed was not acted upon in any manner whatsoever. It is also stated that at the time of the execution of the sale deed plaintiff No. 2 was not pulling on well with his father, plaintiff No. 1 the real owner of the property, and so the defendants, taking advantage of the voung age and inexperience of plaintiff No. 2, could manage to set the sale deed Ext. A executed by plaintiff No. 2 without Payment of any consideration for the same. It is averred that the said sale deed is invalid and inoperative, and defendant No. 1 has not acquired any title to the same. Hence this suit for the cancellation of the sale deed Ext. A.
(3.) DEFENDANT No. 1 alone filed the written statement in this suit and the other defendant was set ex parte. Defendant No. 1 in his written statement has denied all the plaint allegations. His case in short is that plaintiff No. 2 was not a minor when he executed the sale deed Ext. A in favour of this defendant. It is also asserted that he purchased the suit property from plaintiff No. 2 without practising any fraud or inducement on plaintiff No. 2 and he executed the sale deed Ext. A on receipt of the full consideration money, and accordingly the sale in favour of defendant No. 1 is not a nominal one and is not invalid or inoperative on any consideration. It is further asserted that plaintiff No. 2 is the real owner of the property and plaintiff No. 1 is in no way interested in the same. Mostly on the above averments defendant No. 1 prayed for the dismissal of the suit.;

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