ORDER

This appeal is moved by original defendant No. 15 in Special Civil Suit No. 20 of 1968 filed by the respondents-plaintiffs in the court of the learned Civil Judge, Senior Division, Surendra Nagar, for a declaration that the sale deeds executed by their father, defendant No.1 were null and void and are not binding on them as defendant No. 1, their father was addicted to bad habits and the transactions entered into by him in favour of the purchasers concerned were tainted with illegality and immorality. Learned trial Judge recorded evidence offered by the parties and came to the conclusion that there was nothing illegal or immoral about the said transactions and they were binding on the plaintiffs as their father out of necessity had entered into those transactions. So far as the present appellant, defendant No.15 is concerned, he is said to have purchased two pieces of agricultural lands being Survey Nos. 1292/2/3. This sale transaction in his favour was of January 27, 1965. Similar sale transaction was entered into by Defendant No. 1 relating to survey No. 803 on May 4, 1965 in favour of the respondent No. 16 herein. By amendment to the plaint the original plaintiffs introduced paragraph 15-A as under:

"15-A. Further it is submitted that whereas defendant No. 1 executed sale deeds in favour of the defendants at that time, there was a liability of charge in favour of Rampara Seva Sahakari Mandali and on the dates of the sale deeds defendant No. 1 had not repaid the loan taken by him so there was a prohibition under law to sell the said lands or to transfer in any manner and so also the sale deeds in favour of defendants were null and void under law and so the defendants have not acquired any right on the suit lands by virtue of such sale deeds."

2. The averments in the said paragraph were contested by the present appellant and other contesting defendants contending as under:

"3. Further it is to be submitted that whatever the debt of Rampara Seva Sahakari Mandali were paid up and so there is no charge of Rampara Seva Sahakari Mandali remained.

4. We deny the contention of the plaintiff that there was a prohibition under law from selling or transferring in any other manner, to the father of the plaintiff and so the sale deed executed by him is void. And further we submit that only Rampara Seva Sahakari Mandali and at the best Jaymal Deva have right to raise such disputes i.e. to cancel the said sale deeds. But the sons, daughters of the said Jaymal Deva i.e. to the plaintiffs have no right to raise such disputes and so plaintiffs are not entitled to raise such disputes.

5. Further when no amount is due to Rampara Seva Sahakari Mandali now no question remains regarding whether sale is void or not."

3. In the light of the aforesaid pleadings of the parties an issue was struck by the trial court being Issue No. 6A which reads as under :

"Whether the Plaintiffs are legally entitled to take the contention averred in para 15A of the Plaint? If yes, whether the Plaintiffs prove the averments made in para 15A of the Plaint? If yes, what is its effect ?"

4. After recording evidence on this issue learned trial Judge came to the conclusion that the plaintiffs were legally entitled to take up the contention averred in paragraph 15A. However, on the second part of the issue, it was held that the plaintiffs could not prove the averments made in paragraph 15A of the plaint and consequently, the third part regarding the effect of the decision on the said issue of the suit was found to be not surviving. In this connection, the learned Judge after noting Section 49(1) (d) & (e) of the Gujarat Co-operative Societies Act, 1961, observed as under:

"It is for the Cooperative institutions concerned to take up this dispute, that even after the alienations were made, the evidence on record does show that from the two alienees, the Defendant No. 12 and the Defendant No. 15, the Rampara Cooperative Society had accep