DHANJIBHAI KALUBHAI CHUDASMA Vs. USHABEN PARSHOTTAMBHAI CHUDASMA

JUDGEMENT

(1.) CHALLENGE in this Second Appeal is made to the concurrent findings of both the Courts below, against the present appellants, original defendants. The judgment and order under challenge is passed in Regular Civil Appeal No.95 of 2009 by the 2nd Additional District Judge, Bhavnagar dated 2.2.2013, confirming the judgment and order of the 8th Additional Senior Civil Judge, Bhavnagar in Miscellaneous Civil Application (for probate )No. 40 of 2000, dated 10.08.2009.

(2.) 1 The relevant facts, as emerging from the judgment and orders of the courts below, are as under.

(3.) LEARNED advocate for the appellants has contended that, at the time of allotment of plots, for the plot no.22, which was of Parsottambhai (the suit property), the name of Dharamsibhai - son of Kalubhai was entered as the nominee of Parsottambhai and therefore, Dharamsibhai and other family members the decedents of Kalubhai, became owners of the suit property atleast after the date of death of Parsottambhai which is 12.03.1962. In this regard it needs to be recorded that, it is evident from the reasoning recorded by the Trial Court that, the allotment of plots had taken place in the year 1952 and at that time, not only the daughter of Parsottambhai had not even born, (her date of birth being 14.05.1956), possibly even the marriage with Radhaben might also not have taken place. Under these circumstances, the name of the son of the brother came to be entered as a nominee, but even otherwise, this aspect would pale into insignificance considering a further fact that, after the death of Parsottambhai in the year 1962, the name of his wife Radhaben was already entered as the plot holder in place of Parsottambhai in the record of the housing society. Evidence to that effect [Exh.83] is specifically referred to by the Trial Court in para:13 of its judgment. The Trial Court has also recorded that, even in the record of the local authorities, the name of Radhaben is reflected. Under these circumstances, this contention needs to be rejected. Even otherwise, this is a question of fact, which the Courts below have already gone into.