The court held that a Deed of Understanding executed by some co-owners is not void ab initio, and the enforceability of the contract requires evidence, emphasizing that the plaint discloses a cause of action.

JUDGMENT :

Mr. N.V. Gandhi, learned advocate has instructions to appear on caveat for and on behalf of the respondent No.1. Registry to accept the Vakalatnama.

1. The present Civil Revision Application under Section 115 of the Code of Civil Procedure, 1908 is instituted challenging the order dated 22.08.2023 passed by the 5th Additional Senior Civil Judge, Ahmedabad (Rural) at Mirzapur in Special Civil Suit No.181 of 2021 below application Exh. 33 whereby, the competent Court has rejected the application below Exh.33 preferred by the applicants herein by refusing to reject the plaint under Order VII Rule 11 on the ground that though, some of the co-owners of the land-in-question are not signatories to the alleged Deed of Understanding executed in favour of the respondent No.1, the respective shares of the co-owners and receipt of part consideration from the respondent No.1 cannot be decided in absence of leading of any evidence for the same and without considering the relevant provisions of law applicable to the facts of the plaint.

Being aggrieved by the impugned order as referred above, the applicants herein are constrained to approach this Court by filing the present Civil Revision Application.

2. The brief facts leading to the filing of the present Civil Revision Application read thus:

2.1 The applicants herein are the original defendant Nos.1 to 7 and the respondent No.1 is the original plaintiff. The father/husband of the defendants and the deceased - Gulammohyuddin Mohammadhusen Afinwala, are the sole owners of the property i.e. land registered at Ahmedabad District, Sub-District Ahmedabad – 10 (Vejalpur) Vejalpur Village of Vejalpur Taluka, Block/Survey No.726+729 paiki share No.1/G/3 admeasuring 2323 sq. mtr i.e. 2778 sq. yard non agriculture land included in Vejalpur Gyaspur Muktampur Town Planning Scheme No.83. The same came to be included in Final Plot No.76/1 paiki land. (for short ‘subject property’).

2.2 The original defendant Nos.4 and 6 and the ancestor of the defendant Nos.1 to 3 decided to sale the property-in-question to the original plaintiff – respondent No.1 herein for consideration of Rs.12,00,00,000/- and Agreement/Deed of Understanding with respect to the same has been executed in favour of the original plaintiff on 06.02.2018. At the said point of time, 7/12 extract reflected the name of the original defendant Nos.4, 6 and the deceased - Gulammohiyuddin Mohammadhusen Afinwala and the defendant Nos.1,5 and 7. When the plaintiff – respondent No.1 herein asked with respect to the same, the deceased - Gulammohiyuddin Mohammadhusen Afinwala and defendant Nos.4 and 6 stated that the property-in-question is owned by the deceased - Gulammohiyuddin Mohammadhusen Afinwala and the defendant Nos.4 and 6 but, the defendant Nos.2, 5 and 7 are the wives of deceased - Gulammohiyuddin Mohammadhusen Afinwala and the defendant Nos.4 and 6 respectively. In view thereof, their names are shown as purchaser while purchasing the property and the deceased - Gulammohiyuddin Mohammadhusen Afinwala and the defendant Nos.4 and 6 have authority to enter into transaction including the sale of the property and the defendant Nos.1, 5 and 7 would put their signature if required, at the time of entering the sale deed and when the other procedure would be undertaken. On such assurance given to the plaintiff – respondent No.1 herein by the original defendants herein and the deceased - Gulammohiyuddin Mohammadhusen Afinwala, the plaintiff – respondent No.1 herein entered into the transaction with respect to the disputed property.

2.3 The respondent No.1 herein – original plaintiff deposited an amount of Rs.20,00,000/- as consideration i.e. Rs.15,00,000/- by cheque of State Bank of India bearing No.866427 dated 06.01.2018 of Ambawadi Branch, Ahmedabad and Rs.5,00,000/- in cash and executed an Agreement/Deed of Understanding on 06.02.2018. A Supplementary Agreement came to be executed between the same parties on 19.02.2019. The possession o