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Gujarat High Court
Judgename :RAVI R.TRIPATHI
KANTILAL PURSHOTTAMDAS PATEL - Appellant
Versus
DAHIBEN JAGDISH RATHOD - Respondent
SECOND APPEAL 357 of 1980
Decided On : 08/20/2002
Civil Procedure Code,1908 -Appeal arises from the judgement and decree dated 19. 7. 1980 passed by the learned Assistant Judge in Regular Civil Appeal No. 9 of 1978 whereby the learned Assistant Judge was pleased to allow the appeal and set aside the judgement and decree passed by the learned Joint Civil Judge (Junior Division) 1977 in Regular Civil Suit no. 3 of 1976. The facts of the case are that the plaintiff had filed the suit for the following reliefs:"for declaration that the sale deed (exh. 22), executed by the deceased, the husband of the plaintiff Dahiben and father of four minor children on whose behalf the plaintiff Dahiben had pursued the remedy in favour of the defendants, was in respect of the ancestral property of Undivided Hindu Family (HUF) and that the same was sold without any necessity and was not for the benefit of the estate and therefore, not binding to the minors. It was also prayed that the plaintiff, Dahiben had a charge over the property for maintenance and that the possession and share of the minors in the suit property be awarded. " THE subject matter of the suit is the plot of land admeasuring about 1175 sq. ft. (109. 28 sq. mts.) forming part of Survey No. 37, Tika No. 28, situated in the city of Navsari and a house standing there bearing Municipal Census No. 378. The said property was sold by the deceased for a consideration of Rs. 4994. 00, to the defendants by a registered sale deed dated 29. 10. 1971. The plaintiff challenged the said sale deed, mainly on the ground. suit was contested by the defendants by filing their written statement, exh. 8a. The case of the defendants is that the deceased had sold the suit property to the defendants with the knowledge and consent of the present plaintiff, Dahiben. The other averments made in the plaint were denied. That the deceased was in need of money as he was not maintaining good health and he along with the plaintiff, had to borrow money for their household expenses and were passing necessary writings as and when the money was borrowed. As the deceased had incurred debt for the household expenses, medical expenses and for payment of past debts incurred for the benefit of the family, the deceased and the plaintiff were in need of money and hence disposed of the property. In fact there are recitals in the sale deed itself to the effect that -Held the above discussion it is clear that except bare words of the plaintiff--she has not placed any documentary evidence on the record of the case in support of her case. The learned trial Judge was right in holding that the plaintiff is not able to prove her case. It is no doubt clear that so far as the nature of the property is concerned, the learned trial Judge was wrong. The property which devolved from the ancestors there was hardly any reason to disbelieve the character of the property being ancestral property. But there was ample evidence on record to show that the deceased was not having any regular income, more particularly in the last days when he suffered heart ailment and in such circumstances normal course will be to dispose of the property to maintain the family and to get medical treatment. Second Appeal is allowed. The judgement and decree passed by the learned first appellate Judge is set aside to the extent it declares the sale deed executed by deceased, exhibit 22 in respect of the suit property in favour of the defendants invalid. The sale deed is declared to be legal and valid. In view of that rest of the directions issued by the learned first appellate Judge are rendered unmeaningful and the same are quashed -Appeal is Allowed.
( 1 ) THIS Second Appeal arises from the judgement and decree dated 19. 7. 1980 passed by the learned Assistant Judge, Valsad at Navsari in Regular Civil Appeal No. 9 of 1978 whereby the learned Assistant Judge was pleased to allow the appeal and set aside the judgement and decree passed by the learned Joint Civil Judge (Junior Division), Navsari dated 30. 12. 1977 in Regular Civil Suit no. 3 of 1976. The facts of the case are that the plaintiff had filed the suit for the following reliefs:"for declaration that the sale deed dated 29. 10. 1971 (exh. 22), executed by the deceased Jagdishbhai Lallubhai Rathod, the husband of the plaintiff Dahiben and father of four minor children on whose behalf the plaintiff Dahiben had pursued the remedy in favour of the defendants, was in respect of the ancestral property of Undivided Hindu Family (HUF) and that the same was sold without any necessity and was not for the benefit of the estate and therefore, not binding to the minors. It was also prayed that the plaintiff, Dahiben had a charge over the property for maintenance and that the possession and share of the minors in the suit property be awarded. "
( 2 ) THE subject matter of the suit is the plot of land admeasuring about 1175 sq. ft. (109. 28 sq. mts.) forming part of Survey No. 37, Tika No. 28, situated in the city of Navsari and a house standing there bearing Municipal Census No. 378. The said property was sold by the deceased Jagdishbhai Lallubhai Rathod for a consideration of Rs. 4994. 00, to the defendants by a registered sale deed dated 29. 10. 1971. The plaintiff challenged the said sale deed, mainly on the ground that the deceased Jagdishbhai Lallubhai Rathod had no authority to execute the sale deed as the property was ancestral in character as the land bearing Survey No. 37, Tika No. 28 situated in the city of Navsari with superstructures thereon was owned and possessed by one Dahiben Keshavbhai (grand mother of late Jagdishbhai ). After her death the said property was devolved upon Lallubhai Keshavbhai (father of Jagdishbhai ). After the death of Lallubhai Keshavbhai it was inherited by his widow Deviben (mother of Jagdishbhai ). Said Deviben died in the year 1968. After her death it was inherited by deceased Jagdishbhai Lallubhai. As is set out in the evidence an agreement to sell was executed on 25. 6. 1971. At that time a sum of Rs. 251. 00, was paid as Earnest Money. Thereafter, between 5. 7. 1971 to 14. 10. 1971 in instalments a sum of Rs. 3325. 00 was paid by the defendants to deceased Jagdishbhai and finally on 29. 10. 1971, a registered sale deed was executed and payment of the remaining amount of Rs. 2418. 00, was made totalling to Rs. 4994 as consideration for the property in question. One of the glaring factors of this case is that the present plaintiff-- Dahiben Jagdish Rathod, who has filed the suit in her personal capacity and also as natural guardian and next friend of four minor children, was one of the witness to the said registered sale deed (exh. 22 ). Said Jagdishbhai died on 28. 1. 1972. The widow Dahiben Jagdish Rathod did not take any steps except filing the present Regular Civil Suit No. 3 of 1976. It is also on record that even after the death of her husband Jagdish Rathod, the plaintiff-- Dahiben used to borrow money from the defendants and as she did not repay the amount borrowed the defendants were constrained to file Small Cause Suit No. 54 of 1975. It is also on record that there were some criminal complaints filed by the plaintiff against the family of the defendants. Said criminal cases were disposed of in the year 1976. No explanation has come forward on record as to why the plaintiff did not file any suit before the present suit was filed in the year 1976.
( 3 ) THE suit was contested by the defendants by filing their written statement, exh. 8a. The case of the defendants is that the deceased Jagdishbhai had sold the suit property to the defendants with the knowledge an
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