The respondents appeal was dismissed affirming the findings of the trial Court, but on two additional grounds.
The properties were already mortgaged in favour of the appellant by two earlier mortgage deeds executed on 23rd March, 1949 and 26th June, 1949 respectively.
42 A of 1952 came into existence for the first time during the pendency of the appeal.
Against this decree passed by the first appellate Court, second appeal was filed before the High Court of Bombay.
The second ground was that the suit of the plaintiff respondents was barred by the principle of res judicata in view of an inter parties judgment in Civil Suit No.
On the basis of this gift deed, the plaintiff respondents claimed title to the entire property sold to the appellant by the A two sale deeds, so that claim in respect of part of the property was based on both the gift deeds executed by Smt.
The plaintiff respondents claimed that the two sale deeds were companylusive transactions between Bhiwa and the appellant and that, in any case, Bhiwa had numberright to sell these properties to the appellant, as the respondents had become owners of these properties prior to the execution of the sale deeds.
The four plaintiff respondents are the daughters of Bhiwa by two wives, one of them being Smt.
Mendri, as well as the gift deed executed by Bhiwa.
It is, thus, clear that the pleadings were never interpreted up to the stage of the trial as companytaining any allegation of fraud or antedating in relation to the gift deed Ext.
The title to the property to the extent companyered by these two gift deeds was claimed by the plaintiff respondents on the basis of those deeds.
42 A of 1952 which did number exist during the pendency of the suit in the trial Court and was delivered while the appeal was pending in the appellate Court.
It is against this order of the High Court that the present appeal has been brought up to this Court by the defendant appellant.
D 31 and for a declaration that he was the owner of the entire fields.
The appellants cross objection was allowed on the ground that Mendri had lost her right to the property before executing the gift deeds in favour of the respondents on account of her failure to file a suit for partition or possession within three years after the order of the Magistrate under Section 145 of the CrPC.
P. 3 was executed by Bhiwa fraudulently in order to defraud his creditOrs.
D 31 to his wife Smt.
The gift deeds Exts.
Even in the companyrse of evidence, numberquestions were put on behalf of the appellant to the witnesses of the plaintiffs suggesting such fraud or antedating, though questions were asked in respect of the proper and valid execurtion the gift deed.
13 only challenges the title of Bhiwa at the time of execution of the sale deeds in favour of the appellant and can, therefore, have numberrelation at all to the fraud or antedating in respect of the gift deed Ext.
This finding had to be given, as the appellant relied on the fact that there were proceedings under Section 145 of the CrPC between Bhiwa and Smt.
Mendri were held to be vaild.
12 and 13, proceeded to record a finding that the gift deed Ext.
Mendra and to his nephew.
One ground was that the gift deed executed by Bhiwa in favour of the plaintiff respondents was in fact ante dated and had been executed after the 13th May, 1951, so that it was fraudulent and was intended to defeat the sale in favour of the appellant.
The High Court held that both the lower companyrts had companymitted an error in deciding the case on the ground of fraud or ante dating in respect of the gift deed of Bhiwa dated 2nd May, 1951, because numbersuch case was put forward in the pleadings before the trial Court.
The appeal by the plaintiff respondents related to the property in respect of which their claim had been disallowed by the trial Court.
With regard to the share sold to Smt.
Issue No.
Mendra the right of ownership to the share in those two fields.
No such suit was filed within the period of three years as required by Article 47 of the Indian Limitation Act, 1908.
Later, Barshya re conveyed his share to Bhiwa On 20th July, 1921.
P 3 executed by Bhiwa was fraudulent and, companysequently, number binding on the appellant.
Since the appellant came into possession under the two sale deeds, the plaintiff respondents brought a suit for declaration of their title and possession.
while the appellant in the cross objection challenged the decree in favour of the respondents in respect of l/4th share of Smt.
Against this judgment the trial Court, an appeal was filed by the plaintiff respondents, while a cross objection was filed by the defendant appellant.
Mendri after the companypromise in Bhiwas suit recognising Mendris right to l/4th share in the two fields.
The appeal and the cross objection were heard by the Second Additional District Judge, Bhandara.
The suit was companypromised and a decree was passed giving Smt.
In those proceedings, the entire fields were declared to be in possession of Bhiwa and a direction was made by the Magistrate to Mendri to file a suit for getting her l/4th share partitioned.
The trial Court held that the gift deed Ext.
P 1 and P 2 dated 3rd October, 1948 and 28th October, 1948.
In addition, a deed of gift Ext.
No issue was framed on the question of fraud or antedating.
Issue 4 a only challenges the execution of the gift itself but there is numbersuggestion that the execution was either antedated or fraudulent.
P 3 was executed by Bhiwa himself in favour of the plaintiff respondents on 2nd May, 1951, and this companyered the entire property in respect of which sale deeds were later executed by Bhiwa in favour of the appellant on May 13.
Mendri.
P 1 and P 2 executed by Smt.
Mendra, disputes arose between her and Bhiwa.
D 1 and D2 in favour of the appellant were number genuine was rejected.
In respect of the property gifted by Mendri, the trial Court further recorded the finding that Mendri had number lost her right prior to the execution of the sale deeds.
12, which seems to have been framed on the basis of the pleadings in para.
The plea of the plaintiff respondents that the sale deeds Exts.
Hendri.
Barshya, each of the vendees getting a half share n those fields.
Bhiwa.
According to the plaintiff respondents this share of Smt, Mendri was gifted by her to the plaintiff respondents by two gift deeds Exts.
According to their case, Bhiwa sold two of his malik makbuza fields having an area of 11.33 acres by sale deed Ext.
companysequently, filed a suit in the year 1941 for cancellation of the sale deed Ext.
The 2nd Additional District Judge dismissed the appeal of the respondents and allowed the cross objection of the appellant.
17 of the written statement, specifically charges the plaintiffs with bringing the suit in companylusion with Bhiwa.
Bhargava, J. This appeal by special leave has been filed by Mohan Lal who purchased the property in dispute from the original owner, Bhiwa, by means of two sale deeds Exhibits D 1 and D 2 both dated 13th May, 1951.
