RAJENDRA PRASAD Vs. SMT. MALTI SINHA & ORS.

JUDGEMENT

(1.) MUNGESHWAR The plaintiff has filed this Second Appeal against the Sahoo, J. judgment and decree dated 28.08.1998 passed by the learned 3rd Additional District Judge, Nalanda at Biharsharif in Title Appeal No. 11 of 1994/05 of 1997 whereby the learned lower appellate court although dismissed the appeal filed by the defendants modified the trial court judgment and decree dated 30.04.1994 passed by the learned Munsif, Nalanda at Biharsharif in Title Suit No. 07 of 1989. The plaintiff filed the aforesaid suit for declaration that the sale deed dated 05.09.1988 said to have been executed by the father of the plaintiff, namely, Ganauri Mahto in favour of Malti Sinha is void, collusive and bogus and thereby no title passed to the defendant No. 1 Malti Sinha. The said relief was claimed by the plaintiff alleging that the property is the coparcenary property of the plaintiff and his father Ganauri Mahto and, therefore, without consent of the plaintiff the father could not have sold the property to the defendant No. 1. Moreover, no consideration passed to the father and the sale deed was not for legal necessity.

(2.) THE defendants filed contesting written statement. The defence is that the father of the plaintiff sold the property for legal necessity and that consideration amount was paid. The father of the plaintiff also filed contesting written statement alleging that he has sold the property to the defendant No. 1 and consideration amount was paid to him.

(3.) THE defendants filed Title Appeal before the lower appellate court. The plaintiff filed cross -objection against the finding recorded by the trial court that the sale deed is not void ab initio rather it is voidable. The lower appellate court dismissed the appeal and confirmed the finding of the trial court but modified the decree to the extent that the plaintiff should refund the entire amount of consideration money of Rs. 15,000.00 and also the interest incurred thereon from the date of execution of the sale deed calculated at the rate of 15% per annum within a month of the judgment. The lower appellate court allowed the cross -objection filed by the plaintiff.