MOTILAL KHATIK Vs. SONIA MAHTAIN

JUDGEMENT

(1.) THE appellant -defendant No. 1 has impugned the judgment and decree of the Courts below, by reason of which the suit filed by the plaintiff -respondent Nos. 1 to 4 for cancellation of the registered sale -deed dated 14.5.72 has been allowed.

(2.) THE case of the plaintiffs is that one Upas Mahto @ Umesh Mahto died leaving behind his widow Sonia, three sons namely Pushu, minor Dhanu and minor Ganesh Mahto including two daughters, Mungia Mahtain and minor Jilpi Mahtain as his heirs and legal representatives, who inherited jointly the suit property having 1/9th share over the same. Besides the suit property as described in Schedule A of the plaint, said Upas also left behind some other lands and the plaintiffs are in peaceful joint possession of the property alongwith other co -sharers. All the minor sons and daughters of Upas are residing under the guardianship of their mother Sonia Mahtain. They have no concern with the defendant No. 2 -second party namely Pushu. Mahto, another son of deceased Upas because being an addicted to having drinking, he does not take care of the members of the family and leading a vagabound life. Taking advantage of his alcohalic addiction, Motilal Khatik, defendant No. 1 induced Pushu Mahto to execute a deed in respect of entire 1/9th share of land of Upas, his deceased father in order to make a wrongful gain and to put the plaintiffs in wrongful loss. By this registered deed, Pushu allegedly sold entire 1/9th share land of the suit property of the plaintiffs to this defendant -first party, for which there was absolutely to talk of such sale between them and Pushu. The plaintiffs were unaware of such registration of sale -deed and only came to know for the first time when defendant -first party informed them that he had purchased the share of the plaintiffs in course of talk held by the defendant -first party from defendant -second party, Pushu. These facts were revealed towards the end of July, 1971 and being suspicious the plaintiffs enquired from the Dhanbad Sub -Registry and came to know that the defendant -first party managed to get the said deed executed by Pushu by falsely alleging him as guardian of minor plaintiff Nos. 3 and 4. No consideration was paid to the plaintiffs and the said sale -deed was a result of fraud and collusion and as such, plaintiffs sought for cancellation of the said -deed.

(3.) THE learned trial Court, on the basis of pleadings, framed several issues, one of which was as to whether the suit was barred under the provisions of Specific Relief Act and principle of waiver, estoppel and acquiscence and by law of limitation. The learned Court below decided issue No. 6 i.e. the provisions of Specific Relief Act and has come to a conclusion that sale -deed if not cancelled, the same will cause serious injury in respect of the interest of the plaintiffs over the tank. The Court found that the witnesses of the plaintiffs, in unequivocal terms, have deposed that Pusu Mahto was addicted to wine and was not maintaining the family as guardian after the death of his father Upas Mahto. The trial Court found that the Ext. A/1 does not disclose that Pusu executed the same for meeting the legal expenses of loan incurred by him during the Sarad ceremony of his father. Similarly, Motilal Khatik, Defendant No. 1, deposing as D.W. 1, did not state that Pusu had taken any loan from him for meeting the said expenses. Sonia Mahtain, the mother of Pusu Mahto and other plaintiffs, categorically stated that she was guardian of her minor children and Pusu being the eldest son, did not live with the family and living separately, he has no connection with the family and story of maintaining the family is also false. The fact that Pusu Mahto, her eldest son, was alcohal addicted, has been supported by her. The trial Court also noticed the fact that the person who could have supported the case of the defendant was Pusu Mahto, the defendant No. 2, who alleged to have executed the sale -deed but he was not examined by the defendant. The defendant failed to examine any witnesses to support the case that Pusu as guardian was maintaining the family of his deceased father Upas. Further case of the defendant No. 1 that consideration amount was paid to Pusu has been contradicted by his own witness, the deed writer, defendant No. 5, who has denied the fact that said consideration money of the sale -deed was paid in presence of the Sub -Registrar to Pusu. Considering all these facts the trial Court decreed the suit by holding that the alleged sale deed was void, illegal and not operative so far the plaintiffs are concerned.