KANTILAL M KADIA Vs. SOMABHAI DAHYABHAI KADIA

JUDGEMENT

(1.) . The following question has been referred to the Full Bench for opinion :-

(2.) . The learned single Judge before whom the Second Appeal was placed for hearing has observed in his order of reference that the question about applicability of the provisions of Sec. 58(c) read with proviso thereto was already concluded by the decision of the Apex Court in K. Simrathmull v. Nanjalingiah Gowder, AIR 1963 SC 1182; however, the said decision of the three learned Judges of the Supreme Court was not brought to the notice of the Bench of two learned Judges of the same Court which decided Tamboli Ramanlal Motilal v. Ghanchi Chimanlal Keshavlal, AIR 1992 SC 1236 : [1993 (1) GLR 889 (SC)]. The learned single Judge, was therefore, of the view that the decision of the Smaller Bench in Tamboli Ramanlal Motilal (supra) was per incuriam and runs counter to the statutory provisions as well as to the earlier decisions of the Supreme Court reported in Bhaskar Waman Joshi v. Shrinarayan Rambilas Agarwal, AIR 1960 SC 301 and K. Simrathmull v. Nanjalingiah Gowder, AIR 1963 SC 1182. The learned single Judge, has therefore, referred the above quoted question for the opinion of the Full Bench.

(3.) . Before enumerating and dealing with the submissions made by the learned Counsel for the appellant, we would like to set out the brief facts leading to filing of this appeal which is directed against the concurrent finding recorded by the trial Court as well as by the District Court that the document in question is a document of mortgage by conditional sale.