RATILAL FULCHAND Vs. PARIKH INDRAVADAN MANILAL

JUDGEMENT

(1.) This Second Appeal arises from the decision dated 29th December 1957s recorded by the learned Assistant Judge Nadiad in Civil Appeal No. 227 of 1956 by which the learned Judge confirmed the decree dated 31st August 1956 passed by the learned Joint Civil Judge (J.D.) Nadiad in Regular Civil Suit No. 5 of 1956n which however was originally instituted on 12th October 1954. The suit was instituted by one Bai Chanchal sister of one Rachhodlal Girdharbhai for a declaration that the sale deed dated 12th June 1954 executed by Diwali widow of Ranchhodlal Girdharbhai was not binding on her as Ranchhodlals reversionary heir and for possess on of the first floor which was on the date of the suit in possession of the alienee Parikh Indravadan Manilal the respondent. Chanchal died since and she is now represented by her heirs who are appellants in this Court. The defence of respondent was that the alienation was for legal necessity that he had paid proper and full price for the same and that he was a bona fide purchaser for value who had made enquiries and satisfied himself about the existence of legal necessity. The trial Court came to the conclusion that respondent had paid full consideration that the price which was paid was proper and that the alienation was for legal necessity. During the pendency of the above litigation in the trial Court the Hindu Succession Act 1955 came into operation on the 17 June 1956. Respondent relied upon sec. 14 of that Act and contended that Diwali had become the full owner of the property in suit under that section and that therefore Chanchal had no interest as a reversionary heir. The learned trial Judge however rejected this contention of respondent. On the aforesaid findings the learned Judge dismissed the suit of Chanchal. She filed appeal No. 227 of 1956 from the decree of the learned trial Judge. The learned appellate Judge however disagreed with the finding of the learned trial Judge that Diwali had not become the full owner of the suit house by virtue of sec. 14 of the Hindu Succession Act. He came to the conclusion that by virtue of that section Diwali must be deemed to have become the full owner of the estate in spite of the fact that she died before the coming into operation of that Act as in the view of the learned Judge the Act was retrospective in operation and the section was enacted for the benefit of all Hindu widows who were in possession of their husbands estate even prior to the coming into operation of the Act. The learned Judge however agreed with the other findings of the learned trial Judge. He held that full consideration had passed and that legal necessity was proved. On these finding the learned Judge dismissed the appeal of Bai Chanchal. Chanchal died after the judgment was delivered by the learned Assistant Judge. Therefore appeal No. 571 of 1958 was preferred by her heirs the present appellants in the High Court of Bombay and after bifurcation that appeal was transferred to this Court and has been numbered as Second Appeal No. 267 of 1960.

(2.) Mr. Shah who appears on behalf of appellants raises four points for the decision of this Court. Firstly he challenges the finding of the learned Judge that Diwali became full owner of the suit property by virtue of sec. 14 of the Hindu Succession Act 1956 Mr. Bhatt however does not support that finding of the learned Assistant Judge. In view of the decision of the Supreme Court in Gummalapura Taggina Matada Kotturuswami v. Setra Veerayya and others A.I.R. 1959 Supreme Court 577 Mr. Bhatt concedes that in order that Diwali may become the full owner of the suit house it is necessary that she should have been in possession either actual or constructive on the date on which the Act came into operation. He concedes that having regard to the admitted fact that on the date on which Diwali died the Act had not come into operation and that the Act came into operation subsequently on 17th June 1956 when even if the alienation was not binding the ground-floor of which Diwali was formerly in possession of Bai Chanchal sec. 14 of the Hindu Succession Act 1956 would not come to the aid of Bai Chanchal. In view of this concession it is not necessary for me to record a specific finding on the subject and the only points which survive for consideration are the other three points raised by Mr. Shah.

(3.) The second point which Mr. Shah raised was that the learned Assistant Judge had committed an error of law in holding that an alienation for the payment of a time-barred debt which when incurred was for a legal necessity was an alienation for a legal necessity. The third point which Mr. Shah raised was that in any case an alienation for future maintenance and for medical expenses to be incurred in future was not an alienation for legal necessity. The fourth point was raised on the assumption that the second and the third points were substantiated by him and that fourth point was that as a substantial part of the aforesaid sale was not for legal necessity the alienation must be set aside on condition that appellants pay to respondent the actual amount which had been proved to have been incurred for legal necessity. I have come to the conclusion that Mr. Shah has not been able to substantiate the second and the third points aforesaid and therefore the fourth point does not arise for consideration.