BHIKHABHAI HARIBHAI PATEL Vs. PARSHOTTAMBHAI ZAVERBHAI PATEL

JUDGEMENT

(1.) Being aggrieved by the judgment and decree dated 1st March, 1982 passed by the then learned Extra Assistant Judge, Nadiad, in Regular Civil Appeal No. 76 of 1980 reversing the decree dated 25th February, 1980 passed by the then learned Civil Judge (J. D.), Borsad, dismissing Civil Suit No. 132 of 1967 by allowing the appeal and passing the decree for specific performance of contract dated 12th June, 1950, original-defendants have preferred this appeal.

(2.) Uttambhai Patel and Dadabhai Patel were the brothers. Lallubhai was the son of Uttambhai, and Punambhai was the son of Lallubhai. Dadabhai was having three sons namely (1) Shivabhai, who died unmarried, (2) Bhaijibhai and (3) Haribhai. Bhaijibhai had a son named Zaverbhai and Purshottambhai was the son of Zaverbhai who was the original-plaintiff. Bhikhabhai, Mangalbhai and Dahyabhai were the son of Haribhai who are original-defendant Nos. 1. 2 & 3. Natubhai the original-defendant No. 4 is the son of Bhikhabhai Haribhai Patel, the original-defendant No. 1. Mangalbhai Haribhai Patel, original- defendant No. 2 died during the pendency of the suit and so Shantaben, his widow was joined as defendant No. 2-A in the suit. During pendency of the appeal in the District Court at Nadiad, Purshottambhai Zaverbhai Patel, original- plaintiff died, but his heir or legal representative was not brought on record. During the pendency of this appeal Bhikhabhai Haribhai Patel and Dahyabhai Haribhai Patel, the appellant Nos. 1 & 3 respectively died and hence their heirs and legal representatives are brought on record. Bhikhabhai, Shantaben, Dahyabhai and Natubhai having failed in appeal in the District Court at Nadiad, wanted to file this appeal. They therefore, only for the purpose of filing the appeal obtaining necessary permission of this Court filed this appeal against Dahyabhai Zaverbhai Patel, the brother and only heir of deceased Purshottam Zaverbhai Patel (Ori. Plaintiff). Dahyabhai Zaverbhai Patel also died during the pendency of this appeal and so his widow Shantaben and minor son Deepakkumar are joined as respondents Nos. 1-A & 1-B. For convenience, I will refer the parties by their names.

(3.) Punambhai Lallubhai was the owner of 8 properties, referred to by parties as Lat (for short the suit properties). He sold the same to Shivabhai Dadabhai executing a sale deed dated 15th June, 1944 (Ex. 153). Shivabhai Dadabhai on 12th June, 1950 in writing agreed to reconvey the said properties to Punambhai Lallubhai. The said writing is produced at Exh. 203-A. In the writing, Shivabhai Dadabhai made it clear that he would not be reconvey ing the properties, but after his death by paying Rs. 3000/- to his heirs and legal representatives, Punambhai Lallubhai would be able to get those properties. Thereafter, on 30th April, 1951 vide sale deed Ex. 154 Shivabhai Dadabhai sold the properties to the defendant Nos. 2 & 3 Mangalbai Haribhai and Dahyabhai Haribhai Patel, while on 19th December, 1952 executing the gift deed Ex. 137 Punambhai Lallubhai gave the suit properties to Purshottam Zaverbhai in gift. It is mentioned in the said gift deed that the suit properties were mortgaged with Shivabhai Dadabhai and the same could be redeemed on payment of Rs. 3000/-. Shivabhai Dadabhai died on ll th April, 1967. Purshottambhai Zaverbhai then believed that the right to have the 'reconveyance of the suit properties accrued to him from the day Shivabhai Dadabhai died. He, therefore, asked Bhikhabhai Mangalbhai and Dahyabhai Haribhai the defendant Nos. 1 & 3 his nephews to execute the sale deed on payment of Rs. 3000/- but the defendants did not pay any heed to his request. Purshottambhai Zaverbhai therefore filed Regular Civil Suit No. 132 of 1967 in the Court of Civil Judge (J.D.) at Borsad, against (1) Bhikhabhai Haribhai Patel, (2) Mangalbhai Haribhai Patel, (3) Dahyabhai Haribhai Patel, his nephews, and (4) Natubhai, the son of Bhikhabhai Haribhai Patel for specific performance of the agreement dated 12th June, 1950 (Ex. 203-A).