JUDGMENT
S.P. Khare, J.
1. This is defendants’ second appeal under Section 100, CPC. The following substantial questions of law were formulated by this Court at the time of admission of this appeal by order dated 29-8-1988 :–
(1) Whether it was not open to the respondent/plaintiff as legal representative of original plaintiff, to plead her independent title in the light of Bhagwandas Tiwari Vs. Gaya Prasad and others (1993 MPLJ 469) ?
(2) Whether the first appeal Court wrongly held that the appellants could not challenge the validity of sale-deed allegedly executed by Gauribai ?
2. The facts relevant for the decision of the questions referred to above are that Gauribai was Bhumiswami of Khasra No. 91 area 0.809 Hectare and Khasra No. 162 area 1.016 Hectare of village Kharipaika, Tehsil Sausor, District Chhindwara. She was also the owner of the house in that village. She had sold Khasra No. 91 to Punya.
3. Gauribai filed the civil suit on 23-7-1980 stating in para 4 of the plaint that she is cancelling the Will dated 25-11-1966 in favour of her daughter Smt. Raji who was defendant No. 2 in this civil suit. She claimed the relief of permanent injunction for restraining the defendants from interfering with her possession on the land in dispute. She died during the pendency of the suit on 3-7-1981. Smt. Shakunbai, grand-daughter of Gauribai (through, another
daughter) filed an application for bringing on record her name as legal representative of the deceased plaintiff. That application was allowed. She amended the plaint and pleaded that Gauribai had sold the land in dispute to her by registered sale-deed dated 20-1-1981 (Ex. P-2). The defendants in reply pleaded that Gauribai was insane from the year 1979 and therefore the sale-deed executed by her is void. Defendant No. 2 Smt. Raji also died during the pendency of the suit and her legal representatives were brought on record.
3. The Trial Court held that the Will dated 25-11-1966 (Ex. D-3) is valid and it is doubtful whether the consideration mentioned in the registered sale-deed dated 20-1-1981 (Ex. P-2) was actually paid to Gauribai. The Will became effective on the death of Gauribai and the defendants became the owner of the land in dispute. The suit was dismissed. The First Appellate Court reversing the judgment and decree of the Trial Court held that the sale-deed dated 20-1-1981 (Ex. P-2) does not suffer from any infirmity and the title of Gauribai stood transferred to Shakunbai. Therefore, the Will in favour of Rajibai stood revoked and on this finding restrained the defendants from interfering with the possession of the plaintiff on the suit lands.
4. The learned counsel for both the sides were heard on the questions mentioned above.
5. Question No. 1:
In this case after the death of original plaintiff Gauribai the substituted plaintiff amended the plaint and pleaded that she has purchased the land in dispute from Gauribai by the registered sale-deed. The defendants also replied to this pleading. Issue was framed on this point and it was decided by the Trial Court and the First Appellate Court. Therefore, in second appeal it is not permissible to argue that the legal representative of the original plaintiff could not set up her own independent title. She has been permitted to do so and the question of her title has been decided by both the Courts. Therefore, the decision in Bhagwandas Vs. Gaya Prasad, 1973 MPLJ 469, is not applicable to the present case.
6. Question No. 2 :
The First Appellate Court has held that there is no evidence to hold that Gauribai was insane from the year 1979 and therefore, she could not execute sale-deed dated 20-1-1981 (Ex. P-2). The First Appellate Court has given a definite finding that Gauribai has executed this registered sale-deed consciously and out of her own free Will. The plea of insanity set up by the defendants has not been accepted. Therefore, this sale-deed is valid even if there is any doubt that consideration money was paid to her or not. If this sale-deed is held to be valid and operative then automatically the Will dated 25-11-1966 (Ex. D-3) in favour of defendant No. 2 Rajibai stands revoked. Transfer intervivos by the owner has precedence and nullifies his earlier bequest. Not only that, Gauribai declared in the plaint of the present suit that she is revoking the said Will. Therefore, the Will dated 25-11-1966 which could be operative on the death of Gauribai does not confer any title on deceased-
defendant No. 2 Rajibai because before her death she has transferred the land in dispute to her grand-daughter Shakunbai by registered sale-deed dated 20-1-1981 (Ex. P-2). The finding of the First Appellate Court is correct. If the Will is excluded from consideration, then possession of the land was with Gauribai upto the date of execution of the sale-deed and thereafter Shakunbai came into possession of this land. The judgment and decree of the First Appellate Court are unassailable.