- (1.) Heard learned counsel for the parties. Brief facts of the case are that the respondents-plaintiffs Mangi Lal and Kishan Lal filed the suit for cancellation of the sale-deed dated 16.4.1973 executed by appellant no.1-defendant no.1 Ram Sukh, the brother of the plaintiff and son of defendant no.3 Smt. Gokhali in favour of appellant no.2-defendant no.2- Prem Shanker. According to the plaintiffs, Nohra in dispute was the property of their father Jagannath.
(2.) The properties of Jagannath was divided among Jagannath's three sons Ram Sukh, Mangi Lal and Kishan Lal. The said partition of the property was admitted by writing a deed on 25.6.1965 and which was signed by deceased Jagannath and his sons. In view of the said partition, plaintiff no.1, plaintiff no.2 and defendant no.1 all got 1/3 share in the disputed Nohra. As per the partition dated 25.6.1965, the plaintiffs and defendant no.1's father Jagannath and mother Smt. Gokhali(defendant no.3) were permitted only to live in the Nohra. According to the plaintiffs, the defendant no.1, by his influence, got one Will executed from plaintiffs' father Jagannath on 21.2.1972. According to the plaintiffs, by the said Will, defendant no.1 is claiming that he became owner of the Nohra despite the fact that on 21.2.1972 said Jagannath had no share in the Nohra and he had only right to live in the said Nohra with his wife, mother of the plaintiffs and defendant no.1. The plaintiffs also alleged that on 21.2.1972 said Jagannath was not in fit physical and mental condition to execute the Will, therefore, the Will is of no effect.
(3.) Defendant no.1 sold the Nohra on 16.4.1973 to defendant no.2 by registered sale-deed. Said sale-deed was challenged by the plaintiffs on the ground that defendant no.1 had only 1/3 share, therefore, he could not have sold the entire property to defendant no.2. Defendant no.3 mother of the plaintiffs also has been shown to be the seller in the saledeed dated 16.4.1973 but that is also of no effect because defendant no.3, the mother of the plaintiffs had no share in the property sold. The plaintiffs, therefore, prayed that the sale-deed may be declared ineffective against the interest of the plaintiffs and it may be declared that the plaintiffs and defendant no.1 each have 1/3 share in the Nohra.;