Defendants-appellants-appellants v. Sri Jadunandan Prasad & Ors.

Plaintiffs-respondents- respondents ----------- For the appellants : Mr Anis Chandra Sinha, Advocate For the respondents: Mr Mahendra Prasad Bhartee, Advocate ------------ 13

17.03.2009 Heard learned counsel for the parties.

2. This second appeal has been filed on behalf of the defendants-appellants-appellants challenging the judgments and decree of both the learned courts below.

3. The matter arises out of Title Suit no.124 of 1979 which was filed by the plaintiffs- respondents- respondents for - 2 - declaration of their title with respect to the suit house and for recovery of possession and for other ancillary reliefs.

4. The said suit was decreed on contest with cost by the learned Subordinate Judge VII, Patna vide his judgment and decree dated

30.08.1991. Against the aforesaid judgment and decree of the trial court, the defendant Ist set filed Title Appeal no.135 of 1991 (71 / 2004) which was dismissed on contest without cost by the learned Additional District Judge, Fast Track Court no. III, Patna, vide his judgment and decree dated

14.12.2005. The aforesaid judgments and decree of the learned courts below are under challenge in the instant second appeal.

5. Admittedly Ram Khelawan Singh(defendant no.8) had a son (defendant no.9) and a daughter (defendant no.10). The dispute is with respect to two sale deeds; one dated 07.10.1969 (Exhibit B) executed by defendant no.9 as major in favour of defendant no.7 and; the other dated 25.05.1972 (Exhibit 1) executed by defendant no.9 as major along with his father defendant no.8 who executed the said sale deed on his own behalf as well as on behalf of his minor daughter defendant no.10 in favour of the original plaintiff Ajholya Devi predecessor-in-interest of respondents no. 1 to 8.

6. The claim of the plaintiffs was that in the year 1969 defendant no.9 was not major and hence any deed executed by him was void ab initio and on the basis of the sale deed (Exhibit B) defendant no.7 did not acquire any title whereas the sale deed (Exhibit 1) executed by defendant no.9 was after his attaining majority and defendant no.8 had full authority to execute the sale deed on his behalf as well as on behalf of - 3 - his minor daughter defendant no.10 and hence the plaintiffs acquired full right, title and interest in the suit property as per said sale deed.

7. On the other hand, defendant first party claimed that defendant no.9 was major at the time of execution of the sale deed of 1969 (Exhibit B) and hence the said sale deed was valid and legal and conferred full title upon the vendee, namely, defendant no.7 and hence defendant no.9 had no right, title and interest left in the property to sell subsequently in the year 1972 in favour of the plaintiffs. It was also claimed by defendant Ist set that defendant no.10 was admittedly minor at the time of execution of the sale deed (Exhibit 1) and there is nothing to show that it was for her legal necessity and hence the said sale deed of 1972 was absolutely illegal and bad and could not confer any right, title and interest upon the plaintiffs with respect to the suit property.

8. From the argument of the parties as well as from the materials on record including the impugned judgments and decree of the learned courts below, it is quite apparent that the learned courts below had considered the evidence adduced by the plaintiffs including Exhibit 7 which was the certificate of the Board issued to defendant no.9 and also evidence produced on behalf of defendant Ist set including Exhibit E which was a transfer certificate issued by the Government Basic School with respect to the said defendant no.9 and found that the evidence adduced by the plaintiffs specifically certificate of the Board was much superior than the evidence adduced by the defendant Ist set with respect to the age of defendant no.9 and it was sufficitently proved that the date of birth of defendant no.9 was 01.01.1953 and hence at the time of execution - 4 - of the sale deed (Exhibit B) on 07.10.1969, he was definitely a minor and was not entitled to execute any such deed of transfer and as such said sale deed was ab initio void.

9. So far as the other sale deed is concerned, both the learned courts below specifically found that as per the aforesaid findings defendant no.9 had attained majority when the sale deed exhibit 1 was executed on 25.05.1972 and hence it was legal, valid and proper. As said defendants no. 8 to 10 had full right, title and interest in the said property the earlier sale deed 1969 (Exhibit B) has been found ab initio void.

10. So far the question of legal necessity of defendant no.10 who was admittedly minor in 1972 is concerned, she herself supported the sale deed after attaining majority. There was no occasion for the learned courts below to disbelieve her and to arrive at any finding against the said sale deed. In the said circumstances, the learned courts below were fully justified in upholding title of the plaintiffs on the basis of the aforesaid sale deed (Exhibit 1).

11. In the aforesaid facts and circumstances, this Court finds no illegality in the impugned judgments and decree of the learned courts below, nor does it find any substantial question of law involved in the instant second appeal, which is accordingly dismissed at this stage of Hearing under Order XLI Rule 11 of the Code of Civil Procedure. shahid (S.N.Hussain, J)