The burden of proof regarding unsoundness of mind lies with the party alleging it, and a registered sale deed carries a presumption of validity.

1. In this appeal, challenge is to the judgment and decree dated 09.12.2005 passed by the learned Ad-hoc Additional District Judge, Washim, whereby the learned Judge allowed the appeal filed by the respondent nos.1 to 3/original defendant nos.6, 5 and 4, respectively, and set aside the judgment and decree, dated 29.04.2000 passed by learned trial Court for partition and separate possession.

2. By order dated 15.06.2010, the appeal came to be admitted on following substantial questions of law :-

(2) Whether lower Appellate Court failed to see that u/s 107 of the Evidence Act, burden was on defendant to prove that sale deed dated 21.07.90 is not nominal bogus and colourable and fraudulent inasmuch as since plaintiffs were deserted by deceased Vishwanath and since he was residing in family of defendant there was no reason for him to execute sale deed in favour of defendant no.6 ?

(4) Whether decree passed for maintenance and future maintenance ought to have been granted by the Courts below ?

(6) Whether lower Appellate Court committed an error in not taking into consideration that since there was Joint Hindu Family, can there was no partition between Vishwanath and Rambhau can there be sale deed of specific portion of house in favour of one of the defendants without showing any legal necessity for said sale deed ?

3. Background facts leading to the substantial questions of law are stated in brief :

The appellants are the original plaintiff nos.1 and 2. They had filed a suit seeking declaration that Sale Deed dated 21.07.1990, executed by Vishwanath in favour of defendant no.6, was not binding on them being null and void and for partition and separate possession of their half share in the suit property described in the plaint. Deceased Vishwanath and Rambhau were the brothers. They were the owners of the house property. According to the plaintiffs, deceased Vishwanath was an idiot or had unsound mind. He was residing with Rambhau and his family members. The plaintiff no.1, due to her strained relations, was residing separately from Vishwanath. According to the plaintiffs, deceased Rambhau and his family members, viz. defendants, took advantage of the situation, particularly, unsound state of mind of deceased Vishwanath, and prepared bogus sale deed of his 1/2 share in favour of defendant no.6, who happens to be the daughter of Rambhau. According to the plaintiffs, the said sale deed executed by Vishwanath was a false and bogus document. It was brought into existence to divest the plaintiffs of their rights.

4. The defendants opposed the suit. According to the defendants, deceased Vishwanath was the owner of 50% share in the suit property. Deceased Vishwanath, during his life time was deserted by his wife/plaintiff no.1. He was alone. He, therefore, started residing with his deceased brother Rambhau. In a maintenance proceeding, initiated by plaintiff no.1, deceased Vishwanath was directed to pay maintenance of Rs.200/- per month to the plaintiff no.1. Deceased Vishwanath was staying with Rambhau and his family members. He was looked after by them in all respects. Deceased Vishwanath, on 21.07.1990, executed sale deed of his half share in favour of defendant no.6. The sale deed was registered. Deceased Vishwanath had a right to dispose of half share in the property. The defendants denied the primary contention of the plaintiffs that Vishwanath was an idiot or was not in a fit state of mind to execute the sale deed.

5. Before the trial Court, the parties adduced evidence. The son-in-law of plaintiff no.1 was the only witness examined by the plaintiffs. The defendants have examined two witnesses viz. DW1 – daughter-in-law of deceased Rambhau and DW2 – attesting witness to the sale deed. Learned Judge of the trial Court, on analysis of the evidence, recorded a finding that the sale deed was a sham and bogus inasmuch as it was executed by deceased Vishwanath when he was of an unsound mind/idiot. Defendant nos.4, 5 and 6 challenged