TATIA, J. - (1.) HEARD learned counsel for the parties.
(2.) BRIEF facts leading to filing of this suit for redemption of the mortgaged shop are that originally the property was belonging to one Laluji Soni. He had three sons, Suraj Mal, Bal Mukund and Laxmi Lal. Bal Mukund and Laxmi Lal both died before the year 1956. Suraj Mal had one son and wife, Jagannath and Lehri Bai. Suraj Mal also died long ago and it is alleged that Suraj Mal's wife contacted second marriage (Nata ). It is alleged that Bal Mukund, Laxmi Lal and Jagannath constituted the coparcenery after the death of Laluji Soni. Bal Mukund mortgaged the shop in dispute to Narayan s/o Fateh Lal, Heera Lal and Jiwan Lal Sethi for a consideration of Rs. 3000/- on 30. 1. 1944. It is alleged that the said mortgage was created with the consent of Laxmi Lal and Jagannath. The possession was delivered to the mortgagees. The mortgagee Narayan expired and the remaining mortgagees transferred their mortgage's rights to the defendant for a consideration of Rs. 2000/- by registered deed dated 21. 2. 1961 and handed over possession of the shop to the defendant, therefore, the defendant stood in the shoes of the mortgagees. It is alleged that Bal Mukund and Laxmi Lal both expired before coming into force of Hindu Succession Act 1956 and their wives contracted second marriage (Nata), therefore, Jagannath succeeded to the property as sole owner. It is alleged that Jagannath was of unsound mind and he was living in the guardianship of his wife Smt. Lehri Bai and according to the plaintiff, Smt. Lehri Bai is the de-facto guardian of Jagannath. Because of the need, the shop in dispute was sold by Smt. Lehri Bai as de-facto guardian of Jagannath to the plaintiff by registered sale-deed dated 19. 1. 1971 for a consideration of Rs. 5000/ -. Thereby, the plaintiff became the owner of the shop in dispute and stepped in the shoes of the mortgagor. The plaintiff, after serving notice upon the defendant dated 24. 1. 1971, filed this suit for redemption of the mortgage shop on 16. 2. 1971. The defendant contested the suit after admitting the ownership of Laluji Soni for the shop in dispute. The defendant submitted that the complete pedigree has not been given by the plaintiff. The defendant submitted that Laluji had four sons, Suraj Mal, Bal Mukund, Laxmi Lal and one Gehri Lal. Gehri Lal went in adoption. Bal Mukund had three daughters, Bhanwari, Manohari and Kamla. According to the defendant, the property of Laluji was partitioned between the sons of the Laluji in the life time of Laluji himself and all the sons started living in their separate houses with their separate kitchens. Jagannath sold his property for a consideration of Rs. 1800/- to Bal Mukund on 12. 2. 1944 wherein Jagannath himself mentioned that by this sale- deed he is selling the property which had come in his share. Therefore, it is evident that properties of Laluji were partitioned before 1944. It is also alleged that in the registered document, said Jagannath and Laxmi Lal put their signatures as attesting witnesses which shows that the property between co-sharers of the deceased Laluji was partitioned and this fact was not disputed by any body. The defendant also pleaded that after the death of Bal Mukund, her daughters became the owners of the property and they executed sale-deed for the shop in dispute in favour of the defendant on 11. 2. 1971. The defendant also submitted that Jagannath was never idiot or of unsound mind nor Smt. Lehri Bai acted as de-facto guardian of Jagannath, therefore, Smt. Lehri Bai had no right to transfer the mortgage property in favour of the plaintiff because firstly, Jagannath himself sold the property to Bal Mukund which came in the share of Jagannath upon partition of the property and secondly, even after death of Bal Mukund, the property devolved upon Bal Mukund's daughters and not upon Jagannath. The plaintiff submitted rejoinder to the written statement of the defendant and took a plea that though the sale-deed was executed by Jagannath in favour of Bal Mukund on 16. 2. 1944 but that sale-deed was a sham transaction. The defendant also challenged the sale-deed on the ground that Jagannath was an idiot man. He was living like a foolish person and he used to drink too much and was bent upon to destroy the property. Therefore, the sale-deed was got executed from Jagannath in favour of Bal Mukund so that the property may be saved. It is submitted that the document was never intended to be acted upon. It is also submitted that the daughters of Bal Mukund executed a deed on 13. 12. 1961 admitting that the property belongs to Jagannath and they had no share in the property in dispute. In rejoinder, it is also submitted that the defendant claimed that he purchased the disputed property from one of the daughters of Bal Mukund, therefore, the defendant has no right to dispute the written admission of the Bal Mukund's daughters dated 13. 12. 1961 wherein they admitted that the property belonged to Jagannath and neither Bal Mukund nor they have share in the property. The issues were framed and both the parties led their evidence, documentary as well as oral. The Trial Court by the judgment and decree dated 16. 11. 1974 held that Bal Mukund and Laxmi Lal died before the year 1956. The property of Laluji was partitioned before that. The sale of the property by Jagannath in favour by Bal Mukund by registered sale-deed dated 16. 2. 1944 is not a sham transaction. Jagannath had no right or title in the property after its sale to Bal Mukund and consequently, Jagannath's wife Smt. Lehri Bai could not have sold the property to the plaintiff on 19. 1. 1971. The Trial Court after appreciation of the oral evidence held that Jagannath's mental state was not good and Smt. Lehri Bai was looking after Jagannath. However, the Trial Court observed that the medical certificate produced by the plaintiff has not been proved by calling the doctor in the witness-box, but by oral evidence, the plaintiff succeeded in proving that Jagannath was not of sound mind. But this finding is no consequence because the property in dispute was sold by Jagannath long ago in the year 1944 and obvious reason is that it was not the case of any party that Jagannath was of unsound mind in the year 1944. The Trial Court, therefore, dismissed the suit of the plaintiff by judgment and decree dated 16. 11. 1974. The plaintiff being aggrieved against the judgment and decree of the Trial Court, preferred first appeal. In the first appeal, an application under Order 41 Rule 27, C. P. C. was submitted by the appellant-plaintiff and the appellant-plaintiff sought permission to produce and prove the sale-deed dated 12. 5. 1963 which was executed by Smt. Lehri Bai and which was relevant for the purpose for deciding issues No. 4, 6 and 7. The first appellate court allowed the said application by order dated 3. 7. 1978 and remitted the matter back to the Trial Court for recording the evidence regarding sale-deed dated 12. 5. 1963.
(3.) AFTER receipt of the evidence from Trial Court, the first appellate court decided the appeal and, held that the sale-deed (Ex. A. 1) in favour of Bal Mukund is a sham and bogus document and it does not record the true intention of the parties and it was executed only to safeguard the property as there was fear of Jagannath's waisting it. The first appellate court also held that no partition took place between the sons of Laluji. The first appellate court reversed the finding on issue No. 1 and 5 to 8, however, while deciding issue No. 2 about the unsoundness of mind of Jagannath, the first appellate court held that Jagannath may not have normal mental equilibrium and at the same time, he cannot be said to be lunatic person or an idiot. Therefore, the sale-deed executed by Smt. Lehri Bai on behalf of Jagannath as guardian of Jagannath is without authority and, therefore, has not conveyed title of the property in favour of the plaintiff. In result, even after reversal of the finding of the Trial Court on some of the issues, the appeal of the appellant-plaintiff was dismissed by the first appellate court by judgment and decree dated 14. 1. 1981. Hence this second appeal. This appeal was admitted on 5. 8. 1981 on finding the following substantial questions of law: -      " 1. Whether as the result of the death of Jagannath during the pendency of the appeal, his sole heir Smt. Lehri widow became the owner of the property by inheritance and as such the mortgagee has no right to challenge the transfer in view of Section 43 of the Transfer of Property Act, if so, what is its effect on the suit? 2. Whether the finding of the learned lower appellate court, which reversed the finding of the Trial Court, that Jagannath was not of unsound mind is based on no evidence and is perverse ?" According to the learned counsel for the appellant, the first appellate court committed serious error of law in not taking note of the fact that Jagannath died during the pendency of the first appeal inspite of fact that an application was submitted by the plaintiff-appellant before the first appellate court informing that Jagannath had died. According to learned counsel for the plaintiff-appellant, the first appellate court held that the partition never took place between the co-sharers of deceased Laluji, then even if Smt. Lehri Bai at the time when the property was sold by Smt. Lehri Bai she may not had authority to sell the property on behalf of Jagannath but since she sold the property as de-facto guardian of Jagannath, then by virtue of Section 43 of the Transfer of Property Act, after the death of Jagannath, Smt. Lehri Bai herself became the owner of the property or at least got the share in the property to the extent of share of Jagannath. Therefore, the transfer in favour of the plaintiff by Smt. Lehri Bai became valid transfer on vesting title in Smt. Lehri Bai and Section 43 of the Transfer of Property Act validated the sale made by Smt. Lehri Bai. According to the learned counsel for the appellant, since Jagannath was the last male heir in the coparcenery and the female heir had no right, title and interest in the property as two of the brothers of Jagannath died before year 1956 and Bal Mukund's daughters were married from before 1956 when the Hindu Succession Act came into force, therefore, the entire property devolved only upon Jagannath and after the death of Jagannath, it devolved upon only Smt. Lehri Bai. It is also submitted that it is a pure question of law and if that fact was not taken note by the first appellate court then this Court also can look into this aspect of the matter to grant relief to the plaintiff-appellant. ;