NATHUBHAI KALIDAS Vs. MADHUBEN BHAGWANDAS

JUDGEMENT

(1.) THIS appeal under Section 100 of the Code of Civil Procedure is at the instance of the original defendant Nos.1,4,5,7 and 8 against whom as well as against other defendants, respondent Nos.1 to 4 herein- original plaintiffs filed Regular Civil Suit No.13 of 1978 for declaration and partition of the suit property situated in Ward No.8 bearing Nodh No.225 in Jaguvallabh Ni Pole, Gopipura, Surat.

(2.) IT is the case of the plaintiffs that plaintiff No.1 is mother of plaintiff Nos.2,3 and 4 and wife of defendant No.2. Defendant No.1 is father-in-law of plaintiff No.1 and grandfather of the plaintiff Nos.2 to 4. Other defendants are sons of defendant No.1. It is further case of the plaintiffs that father of defendant No.1 and grandfather of other defendants, named Kalidas Jethabhai, died intestate leaving immovable property,bearing Nodh No.3896, situated in Ward No.3 of Navghadia Vad, Navapura, Surat. The plaintiffs have further averred that the defendants succeeded the said ancestral property and then sold away the said property. From the sale proceeds of the said property, defendants purchased suit property and thus in the suit property, the plaintiffs had their undivided share as the same was ancestral property. The plaintiffs have further averred that though defendant No. 2 had no right or authority to sell away the share of the plaintiffs in the suit property, defendant Nos.4 to 7 got one sale deed executed from defendant No.2 in respect of not only the share of defendant No.2 but also share of the plaintiffs and thereby the plaintiffs are deprived of their legal rights in the suit property. It is further case of the plaintiffs that the sale made by defendant No.2 was not for any legal necessity and the same was executed against the rights of the plaintiffs. The sale, therefore, made by defendant No.2 in favour of defendant Nos.4 to 7 was totally illegal and invalid in the eye of law. Such sale made by defendant No.2 is not binding to the plaintiffs and therefore, the same is required to be declared invalid and the plaintiffs since entitled to their share in the suit property, the suit property is required to be partitioned and the plaintiffs are required to be given their share in the suit property. The plaintiffs thus filed this suit for declaring the sale to be invalid and for decree of partition and consequential relief of giving possession of the part of the suit property to the extent that will be declared entitled.

(3.) AFTER framing the issues, learned Trial Judge on appreciation of the evidence, came to the conclusion that the suit property was purchased from the amount of sale proceeds of the ancestral property originally held by great grandfather named Kalidas and as mentioned in document Exh.77, the suit property was purchased by adding Rs.1000/- to the sale proceeds of the ancestral property held by deceased Kalidas. Learned Trial Judge thus found that the suit property could also be said to be ancestral property, wherein the plaintiffs have got equal share with the defendants. Learned Judge also recorded finding of fact that defendant No.2, being husband of plaintiff No.1 and father of plaintiff Nos.2 to 4, had no right or authority to sell out the share of the plaintiffs in the suit property and in fact, there was no question of legal necessity for defendant No.2 in selling out his share and the share of the plaintiffs in favour of defendant Nos.4 to 7. Learned Trial Judge also found that the sale in favour of defendant Nos.4 to 7 was not valid and further found that the plaintiffs were entitled to have share in the suit property to the extent of 1/35 and thus all the plaintiffs together would be entitled to have share to the extent of 4/35 in the suit property. Learned Trial Judge, therefore, ordered appointment of Court Commissioner for partitioning the suit property and if partition is not possible in the suit property, in the alternative, for auction of the suit property for the purpose of giving share of the plaintiffs in the suit property.