PATEL BHUDARBHAI MAGANBHAI Vs. PATELKHEMABHAI AMBARAM

JUDGEMENT

(1.) This appeal by special leave arises from the judgment of the learned Single Judge of the Gujarat High court, made on 24/2/1986 in Second Appeal No. 294 of 1978. The first appellant is the son of Maganbhai. Bai Jivi, widow of Gala mortgaged the property in 1911 to Kana for 31 years. Bai Jivi died in the year 1955. The property was succeeded by Hati, daughter of the respondent predecessor-in-title in 1965. The respondents filed the suit for redemption of the mortgage. The trial court dismissed the suit but on appeal, the Additional District Judge, Mehsana decreed the suit holding thus: "on the plaintiff depositing Rs. 112.50 p on or before 31/7/1978 in the trial court. Defendant 2 shall bring into court, all documents in possession or power relating to mortgaged property and all such documents shall be delivered over to the plaintiff and Defendant 2 shall if so required recover or retransfer the said mortgaged property free from the said mortgage and clear of and free from all encumbrances created by Defendant 2 or by any person claiming under him or any person through whom he claims and also free from all liability whatsoever arising from the mortgage, and, shall, if so required, deliver up to the plaintiff quiet and peaceful possession of the said property. "

(2.) In the second appeal it was confirmed. Thus, this appeal by special leave.

(3.) Shri Dholakia, learned Senior Counsel for the appellant, contends that in view of the pedigree of the parties, the appellant is the grandson of Amichand while Hati is a distant relation represented through Dansang who were sons of Rupsang. Gali is the grandson of Jekaran. One of the sons of Rupsang being nearer in relation within seven degrees the appellant is entitled to a preferential right for succession than the respondents predecessor-in-title. There is a controversy as to when the widow of joitaram died. In that behalf, the appellate court having considered the entire evidence had concluded thus: "hence Joitaram was entitled to inherit properties of Gala in preference to defendant Bhudarbhai Magandas and even his father and grandfather who will come in the category of Samandaks. Looking to the provisions of Baroda Hindu Naibahdh, widow of Joitaram Kashidas, i. e. , mother of Bai Jivi was entitled to inherit the properties of Gala as ifher husband was alive at the time of death of Bai Jivi. That way Bai Hati's mother was entitled to inherit the properties of Gala on the death of Bai Jivi as a widow of Sagotra Sapindas and that way we can say that Bai Hati's mother became the owner of the suit property on the death of Bai Jivi. Hati's mother died some time in the year 1965. We can take it that she must have died after 1/8/1965 and that way she was the absolute owner of the properties when she died. Bai Hati, thus, be entitled to inherit those properties either under Baroda Hindu Nibandh or even under the Hindu Succession Act, 1956. "