HEIRS KANTILAL PURSHOTTAMDAS PATEL Vs. DAHIBEN JAGDISH RATHOD

JUDGEMENT

(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:

(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 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, Dahiben 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, 'the deceased and the plaintiff, Dahiben were not able to find any purchaser because there was no direct approach to the plot in question'. It was only thereafter that the plaintiff and her husband approached the defendants through one building contractor, named Natvar and described their dire necessities and requested defendants to purchase the suit property under any circumstances. The defendants after making inquiries and ascertaining the antecedents agreed to purchase the suit property. As stated hereinabove the suit property was purchased after entering into agreement to sell in June 1971 and thereafter, a registered sale deed in October 1971. It is also on record that thereafter the deceased succumbed to his ailment of heart disease in January 1972. The plaintiff-- Dahiben herself, had altered the sale deed as a witness, still she did not do anything for long and filed the suit in the year 1976 only. In this appeal at one stage, the plea of limitation was also raised as the sale deed is dated 29.10.1971 and the suit for declaration of the sale to be invalid was filed in the year 1976. However, the same is not dealt as this appeal is decided in favour of the present appellants on other points.