HARGOVAN KESHAV Vs. MANSING THAKORBHAI

JUDGEMENT

(1.) The appellant- defendant no.4 of Special Civil Suit No. 63 of 1971 has challenged the judgment and decree dated 29th December 1978 passed by the learned Civil Judge, Senior Division, Surat, declaring that survey no. 393 of Mota Village admeasuring 1 Acre 2 Gunthas, Gamtal Tukda No. 28 of Mota Village admeasuring 6 Gunthas and Building No. 3/121 of Mota village and building No. 3/122 of Mota village are the joint family properties of families consisting of plaintiff no.2 Mansing Thakor, plaintiff no.3 Manilal Thakor (respondents no. 1 and 2 herein), defendant no.2 Magan Bhikha Kara and defendant no.3 Bhagatsing Magan Bhikha, respondents no. 5 and 6 herein. The learned trial judge further held that the plaintiff Mansing Thakor and Manilal Thakor are jointly entitled to 1/2 share from the said properties and defendants Bhagatsing Magan and Magan Bhikha are jointly entitled to 1/2 share from the said properties. The learned trial judge, therefore, declared that the appellant is not the rightful owner of survey no. 393 admeasuring 1 Acre 2 Gunthas of Mota village and he should hand over the possession to the present plaintiffs and defendants no. 2 and 3. It was further decreed that the house no.3/121 should be handed over to plaintiffs no. 2 and 3 jointly and house no.3/122 should be handed over to defendants no. 2 and 3 jointly. It was decreed that the plaintiffs and defendants no. 2 and 3 are entitled to mesne profits from survey no. 393 from 8.2.1965.The learned trial judge ordered to draw the preliminary decree accordingly.

(2.) The brief facts giving rise to the present appeal are as under:- The plaintiff no.1 Thakorbhai Bhikhabhai who is the father of plaintiffs no. 2 and 3 and defendants no. 2 and 3 form a joint Hindu family and one Bhikha Kara who expired in 1953 A.D. was the head of the family. During the life time of said Bhikha Kara, he had executed a will dated 29th July 1946 and one codicil dated 24th June 1953. As per the said will,the deceased Bhikha Kara declared the plaintiff and defendants no. 2 and 3 as his legatees and particularly for the properties situated in India, deceased Bhikha Kara had appointed as executors plaintiff no.1 Thakorbhai Bhikha and another executor. The deceased Bhikha Kara had also appointed another administrator for his property situated at Africa and as per that will, the executors had to manage the said properties till the plaintiff no.3 Manilal Thakor attained the age of 16 years and thereafter the executors were debarred from management of the said properties. However, as they have still continued the management, both the executors are also joined in the present suit. It is the further case of the plaintiffs that as per the will of Bhikha Kara, all the plaintiffs and defendants no. 2 and 3 are entitled to 3/5th share each as the plaintiff no.3 Manilal Thakor had completed the age of 16 years. It is the further case of the plaintiffs that as Manilal Thakor is permanently residing in the foreign country, the plaintiff no.1 is entitled to take possession of all the properties as mentioned in the will and so the plaintiffs no.1,2 and 3 are jointly entitled to recover their 3/5th share and the defendants no. 2 and 3 are entitled to recover 2/5th share from the said properties. The plaintiff no.1 and the plaintiff no.4 who were the executors of the said properties are entitled to take possession of the said properties. It is the further case of the plaintiffs that the plaintiff no.1 Thakorbhai Bhikha came to India in the year 1957 A.D. from Africa and he wanted to go back to South Africa and,therefore,in favour of defendant no.1, who was related to the plaintiff no.1, he passed a general power of attorney for the properties mentioned in Schedule A attached to the plaint to manage the said properties and he gave the possession of the said properties to defendant no.1 and since then, the defendant no.1 was managing the said properties as general power of attorney holder of plaintiff no.1. It is the case of the plaintiffs that the defendant no.1 had not given the accounts of the said properties,but from the properties mentioned in Schedule A, the defendant no.1 gave possession of certain portion of the properties situated on the north side to plaintiff no.1. However, he did not give possession of other properties. Therefore, the present suit is filed. It is the further case of the plaintiffs that they had demanded accounts regarding the management of the said properties and also the possession of the properties as mentioned in Schedule A from the defendants, but he failed to give the said account and possession of the said properties and so on 22nd December 1969, they cancelled the general power of attorney of defendant no.1. Necessary advertisements were also published in the newspapers for cancellation of the said power of attorney.On the basis of the general power of attorney given by the plaintiff no.1 to his son on 29th October 1969 and on the basis of the said general power of attorney, the plaintiff no.2 demanded possession of the properties from the defendant no.1 and also the accounts, but the defendant no.1 failed to give the possession as well as the accounts and, therefore, the plaintiffs filed a suit in the Court of learned Civil Judge, Senior Division, Bardoli against the defendant no.1 for submitting accounts from 1957 upto the date of filing of the suit.It is the further case of the plaintiffs that the notice was given to the defendant no.1 to hand over the possession of the said properties to the present plaintiffs as defendants no. 2 and 3 had not shown willingness to join the plaintiffs, the present suit is filed against the defendant no.1 and the defendants no. 2 and 3. The plaintiffs apprehended that the defendants no. 2 and 3, in collusion with the defendant no.1 will defeat the claim of the plaintiffs and,therefore, the present suit is also filed for partition of the said properties and they have claimed jointly 3/5th share from the said properties. The plaintiffs have claimed that they had sent Rs. 48000/to defendant no.1 from Africa and from the said amount, the defendant no.1 has purchased the properties mentioned in Schedule B and the plaintiffs and defendants no. 2 and 3 are the owners of the said properties. It is the further case of the plaintiffs that the defendant no.1 had purchased the said properties as 'Benamidar' and, therefore, sought for a declaration that he is a 'Benamidar' of the said properties. The said claim is also filed in the present suit. It is the further case of the plaintiffs that the defendant no.1 had sold survey no. 393 mentioned in Schedule A to Hargovind Keshav , the appellant herein and the said sale is not binding to the plaintiffs and the defendants no. 2 and 3 and that declaration is also claimed by the plaintiffs in the present suit. So, the defendant no.4 is also joined in the present suit. Thus, the plaintiffs have claimed possession of the properties mentioned in Schedule A except the serial no.1 jointly with the defendant no.2 and defendant no.3 as owners. The plaintiffs have also sought for a declaration that the property mentioned in Schedule B which is in possession of defendant no.1, he is a'Benamidar' of the property and that plaintiffs and defendants no. 2 and 3 are the joint owners of the said properties and also for possession to the plaintiffs and the defendants no. 2 and 3. Alternatively, it was prayed that the partition of the properties mentioned in Schedule A and B should be done and plaintiffs be given their joint portion as 3/5th share from the said properties. A further declaration was sought that sale of survey no. 393 mentioned in Schedule A is not binding to the plaintiffs and the defendants no. 2 and 3. Mesne profits of the properties mentioned in Schedule A and B from the defendant no.1 and the costs of the suit were also prayed for.

(3.) The defendant no.1 in his written statement Ex. 31 inter alia contended that the defendant no.3 Bhagatsinh Magan and Bhikha Kara brought him in the year 1953-54 to Mota village and at that time, Bhagatsinh was in possession of survey no. 303 and 306/1 and he handed over the possession of the said lands to him. He has further stated that the general power of attorney was given not only by Thakorbhai but Thakorbhai and Bhagatsinh Magan jointly gave the general power to defendant no.1. He has further stated that the possession of the said land was not given in the capacity of a general power of attorney holder, but it was given to him as a tenant and survey no. 303, 306/1, 493, 494, 306/2 of these lands were given to him as a tenant and thereafter by law, the lands have been sold to him and none of the plaintiffs took any objection. Alternatively, he has stated that he is a tenant of the said land and, therefore, the said questions can be decided by the Mamlatdar in the Tenancy Court and till that time, this Court will have no jurisdiction to hear the suit. He has challenged the authority of the plaintiffs to cancel the power of attorney given to him. He has denied the fact that amount of Rs. 48000.00 was received by him from the plaintiffs and that he purchased any land from the said amount. According to him, he is the rightful owner of the properties mentioned in the Schedule and he is not a 'Benamidar'. He has stated that the survey no. 393 was of inferior quality and so the said land was sold with the consent of defendants no. 2 and 3 and from the sale proceeds, survey no. 306/2 was purchased and rest of the land was given to the plaintiff's daughter Bai Mangi and so also, the suit is liable to be dismissed.