NATVARLAL MAGANLAL AMIN DECD Vs. AMIN THAKORBHAI MAGANBHAI

JUDGEMENT

(1.) THE facts leading to the filing of this Second Appeal have been stated in details in the judgment of the Courts below and hence I do not propose to reiterate them. I will briefly state the facts so far as they are necessary for understanding the questions of law involved in this Second Appeal which questions have been formulated as substantial questions of law at the time of the admission of this appeal by this Court.

(2.) AMIN Natvarlal Maganlal (original defendant) who died pending the suit was the real brother of the plaintiff AMIN Thakorbhai Maganbhai. There was dispute between the parties about some joint family properties and the dispute was referred to two arbitrators viz. Jashbhai Shivabhai AMIN and Jamnadas Chhotabhai AMIN. They gave their award on 7-7-1961. The award was accepted according to the plaintiff while the defendant did not admit that it was accepted by him. The plaintiff and the defendant both signed in token of accepting the award as per the say of the plaintiff but that was denied by the defendant. Some of the terms of the award were acted upon and the defendant Natvarlal passed a sale-deed on 2-7-1963 in favour of the wife of the plaintiff the consideration whereof has been incorporated in the sale-deed as per the terms of the award dated 7-7-1961. The plaintiff offered Rs. 3500.00 to the defendant in April 1968 and requested the defendant to execute a document in his favour as per the terms of the award but the defendant did not accept the same. A notice by registered post was served on the defendant and even then the defendant did not accept the amount nor did he execute any document in favour of the plaintiff as regards the lands as per the terms of the award. The plaintiff on these allegations filed the suit for getting a sale-deed in his favour as per the terms of the award.

(3.) THE learned trial Judge held that even though the award was not made the rule of the Court the suit was maintainable treating the award as an agreement between the parties. He also negatived the contention of the defendant about limitation. THE trial Court accordingly passed a decree in favour of the plaintiff. Being dissatisfied with the same the defendant carried the matter in appeal before the District Court Kheda at Nadiad. THE learned Extra Assistant Judge who heard the said appeal being Regular Civil: Appeal No. 72 of 1977 raised four points for his determination the first point being whether the plaintiff was entitled to get the suit land on payment of Rs 3500/- to the defendant and the second point being about the question of limitation. We are not concerned with the other two points raised by the learned Extra Assistant Judge looking to the fact that only two questions of law-have been formulated as substantial questions of law at the time of admission of this appeal as stated by me earlier. THE learned Extra Assistant Judge held that the plaintiff was entitled to get a document of sale on payment of Rs. 3500.00 to the defendant and also held that the suit was not barred by limitation. He also held against the defendant on the other two points raised by him and confirmed the judgment decree passed by the trial Court and dismissed the appeal. Being dissatisfied with the same this Second Appeal has been filed by the heirs of the original defendant who were brought on record as heirs of the defendant in the trial Court as the defendant as stated earlier died during the pendency of the suit.