RAMCHANDRA CHUNILAL DAGAD Vs. VASANT BANSI SOMWANSHI

JUDGEMENT

(1.) This is an Appeal by the original defendants raising exception to the judgment and decree passed in Regular Civil Suit no. 827 of 1974 and confirmed in Regular Civil Appeal no. 270 of 1985 by the first appellate Court.

(2.) The respondentsthe original plaintiffs instituted a suit claiming a decree of declaration that the lease deed executed by defendant no.3 in favour of defendant no.1 so also various agreements to sale executed by defendant no.3 are not binding on the plaintiffs. The plaintiffs also prayed for a decree restraining the defendants 1 and 2 from securing execution of the sale deed of suit land from defendant no.3. In the alternative plaintiffs claimed a decree for partition and separate possession of their 3/4th share and also for mesne profits. The plaintiff contends that the suit lands more specifically described in the plaint are ancestral properties of the family consisting of plaintiffs and defendant no.3. The defendant no.3 is husband of plaintiff no.3, father of plaintiffs 1 and 2. The defendant no.1 got executed the lease deed dated 13.4.1961 from defendant no.3 in respect of suit land and also got executed further agreement to sale in respect of said land on 3.9.1983. The defendant no.3 executed agreement to sale and earnest receipt dated 1.7.1964 for Rs.4000/and agreement dated 25.9.1965 for Rs.3500/and further agreement dated 28.9.1965 for Rs.3500/in respect of the agricultural property and put the defendant no.1 in possession of the properties. The defendant no.3 was not in need of the amount nor he has utilised the amount for benefit of the family. According to the plaintiffs the defendant no.3 had no entitlement to dispose of the ancestral property in which the plaintiffs have entitlement. The plaintiffs also contend that there is encumbrance created over the property in respect of loan obtained from the cooperative society and as such in view of the provisions of Maharashtra Cooperative Societies Act, the defendant no.3 had no entitlement to enter into an agreement for alienation of the agricultural property. The plaintiffs also contend that as a result of implementation of the consolidation scheme in the village the lands are allotted to defendant no.3 without making any provision or without considering the entitlement of the plaintiff. It is further contended that neither the defendants 1 and 2 have any right or entitlement to remain in possession of the property nor defendant no.3 alone has entitlement to dispose of the same. There was a suit instituted by defendant no.1 being Regular Civil Suit no. 260 of 1966 against defendant no.3 seeking a decree of injunction however the suit came to be disposed of in terms of the compromise keeping open the questions which are being raised in the instant suit relating to the agreement to sale executed by the defendant no.3. In the alternative the plaintiffs claim partition and separate possession of their 3/4th share in the property.

(3.) Defendants 1 and 2 appeared and resisted the claim raised by the plaintiffs by filing written statement. It is not disputed that the lease deed was not executed on 13.4.1961 and 3.9.1963 in respect of the property and defendant no.3 has executed the documents in his capacity as manager of the joint Hindu family. The defendants further contend that there were 3 agreements to sale executed on 25.9.1965, 28.9.1965 and 1.7.1964 in respect of the suit land and the defendant no.3 has signed the documents in his capacity as the manager of the joint Hindu family. It is contended that defendant no.3 was indebted to Godawari Sugar Mill and also owe certain sum to Banimiya S/o Dadamiya. The amount received has been spent for marriages of the sons of the defendant no.3 as well as for obsequies ceremonies of the mother of defendant no.3 as well as household expenses. It is contended that the defendants have ascertained the existence of legal necessity for alienating the property by defendant no.3 before entering into agreements. The plaintiffs have instituted the suit so as to defeat the rights of the defendants and at the instance of defendant no.3. The defendant no.3 however, remained absent and did not contest the suit and as such the suit proceeded exparte against him.