- (1.) R. B. Mehrotra, J. The present second appeal has been instituted by defendant appellant.
(2.) THE essential facts necessary for adjudication of the appeal are as under; Dhannu Singh and Smt. Ramkesari Devi who is daughter-in-law of Dhanni Singh, filed Suit No. 48/5 in the Court of Sixth Additional Munsif Ghazipur against Srikant and in that suit prayed for the relief that the sale deed dated 20-11-1974 executed by Dhannu Singh in favour of Srikant be cancelled and it be declared that the said sale deed is void. According to the plaintiff-defendants so committed fraud (sic) Dhannu Singh and got executed the sale deed dated 28-1-1974 in respect of the property: in suit in favour, The plaintiff has alleged as under in the suit. The following pedigree with regard to plaintiff and defendant is worthy of mention : Inarman Singh Mahangi Singh Begam Singh Laxman Singh Chandra Singh Shiobarat Salik Ram Barat Naurang Singh Dhannu Jagannath. (plff No. 1) Srikant (Defendant) Brahma Ram Kesari (widow) (plft. No. 2) Sharda (son) Dhannu Singh plaintiff number one's son was Brahma Singh Brahma Singh's wife Ramkesari Devi was plaintiff No, 2 Brahma Singh had died earlier. The present suit has been filed by Dhannu Singh and the widow of Brahma Singh jointly as plaintiff against the remote collateral Srikant. It was alleged in the plaint that the property described in Schedule "b" of the plaint was acquired by the ancestors of Dhannu Singh and in the said property Dhannu Singh and Brahma Singh have had halt' share each. Both the parcel of land were the property of joint family prior to abolition of Zamindari and after the abolition of Zamindari the plaintiff had been joint bhumidhars of the property in suit. Brahma Singh the son of plaintiff suddenly died in 1974 and after the death of Brahma Singh his widow Ramkesari Devi became member of the joint Hindu family of plaintiff No, 1, and got half share in the property in suit some land described in Schedule B came under consolidation and the Consolidation Officer has carved out a Chak in favour of plaintiff No. 1, the said property is describ ed in Schedule A. The plaintiff Dhannu Singh has attained the age of 90 years, he is old man having impaired eye sight, as such unable to see. Brahma Singh was the sole son of Dhannu Singh, the said son suddenly died and his condition in old age became miserable and the loss of the son resulted in the loss of the mental faculties of plaintiff No. 1. The mental faculties of Dhannu Singh became confused over taken by old age and grief of death of son resulted in the plaintiff No. 1, reaching a stage of lunatic. The plaintiff No, 1 has a daughter named Ramyati who is married to Mahatam Singh, and the only daughter-in-law of plaintiff No. 1 is Smt. Ram Kesari Devi who figures as plaintiff No. 2, Sharda Devi is the sole daughter of Brahma Singh and Smt. Ram Kesari plaintiff No. 2 and the marriage of Sharda Devi aged 18 years was arranged to take place with Sheshnath. The defendant Sri Kant Singh is a distant collateral of plaintiff No. 1, however, he is co- sharer in the property shown in Schedule B. It has further been alleged in the plaint that the plaintiff No. 1 was at the verge of death and keeping in mind that after his death there can arise a dispute between his collaterals and his daughter-in-law and daughter, and on one side there will be a widowed daughter-in-law and weak daughter, on the other side will be powerful collaterals. The plaintiff after full comprehension and with an idea of keeping peace in the family executed a registered Will on 1-10-1974 and the said Will devised 1/3 share each to his daughter Ramvati, daughter-in-law Smt. Ramkesari, collateral Sri Kant Singh in respect of the property in suit and as per Will in the disputed property the 1/3 share of the plaintiff was to go to the above three persons after the death of the plaintiff.
(3.) IT has further been mentioned in the plaint that the disputed pro perty which has been described in Schedule B, half share was owned by plaintiff No. 1 and half by Srikant defendant and out of that share 1/4 was of his son Brahma Singh. This way, the plaintiff had executed his Will in favour of both parties regarding only 1/4 of his share. According to plaint the share of Brahma Singh came to be owned by Smt. Kesari Devi and in this light the aforesaid Will should be held to operate to the extent the plaintiff had the power to execute Will pertaining to his own share. In this very sequence it has been further averred in the plaint that on 28-11-1974 the defendant Sri Kant told plaintiff that the Will dated 3-10- 1974 has to be obtained from registrar's office as Registrar of Ghazipur told him that the copy of the Will be given only to Dhannu Singh, so it was necessary for Dhannu Singh to visit the registration office and as per that statement the plaintiff Dhannu Singh went to Qasba Zamania with Srikant. The defendant No. 1 sent the plaintiff to registrar's office and got prepared a sale-deed without knowledge of the plain tiff No. 1 and obtained thumb mark from the plaintiff merely by telling that the copy of Will can be available only after putting thumb-mark, believing that suggestion the plaintiff put his thumb-mark on many places as directed in the registry office, thereafter when the plaintiff No. 1 came to his house, demanded the copy of Will from defendant and asked the defendant as to why he had obtained his thumb marks at many places, even then when he did not get the copy of Will, a suspicion arose to plaintiff that his thumb-marks have been obtained at many places in the registry office some cheating may have been done, upon which many a time the plaintiff demanded from defendant the copy of the Will, however, the defendant, indulged in pretexts. Thereupon, that plaintiff No. 2 along with Mahatim the brother-in-law of her husband, went to registry office Zamania, on search it was found that on 28- 11-1974 on the pretext of getting back the Will-deed the defendant had got executed sale-deed from Dhannu Singh in respect of properties of Schedule A, and it was also stated that Ohannu Singh has not executed any will deed, there, and on getting the enquiry done, the plaintiff No. 2 told the entire happenings to plaintiff No. 1 upon which the dispute arose, consequently both the plaintiffs filed suit No. 48/75. The defendants contested the aforesaid suit. The trial Court framed issues on the pleadings of parties out of the framed issues, the following issues are relevant for decision in this Second Appeal. Issue No. 1: Whether the sale-deed dated 28-11-1974 has been got executed from plaintiff after perpetration of fraud if so its effect. Issue No. 8: Whether the sale-deed dated 28-11-1974 is barred by Section 5 of Chakbandi Act ? Issue No. 10: Whether Dhannu Singh used to place reliance on defendant. If yes, then its effect? The trial court by its judgment dated 25-8-1980 partly decreed plaintiff's suit and cancelled the sale- deed dated 28-11-1974 with respect to 1/4 share of disputed property and to that extent declared the sale-deed as void. The trial court held that the plaintiff has failed to establish that the sale-deed has been got executed by committing fraud on Dhannu Singh. The trial court decided issue No. 5 and in favour of plaintiff and against the defendant hold ing that the suit is not barred under Section 5 of the Consolidation of Holdings Act. Issue No, 10 was decided against the plaintiff and it was held that the plaintiff has failed to establish that the defendant enjoyed active confidence of the plaintiff. Aggrieved by the aforesaid judgment both the parties preferred appeal. The appeal of Sri Ramkesari Devi is Civil Appeal No. 255/80 and the appeal of Srikant is Civil Appeal No. 259/80.;