SHAMLAL RATANLAL BUMB Vs. UTTAMCHAND SUGANCHAND MARWADI

JUDGEMENT

(1.) THIS is a second appeal by the original defendant No. 2, who was opposing suit for possession which was dismissed, however, the decree was reversed in the first appeal.

(2.) THE suit was instituted by Uttarnchand Suganchand, the adopted son of defendant No. 3 Suganchand Chandanmal, who initiated the proceedings claiming possession of land Survey Nos. 152/1 and 153/2 respectively 11 acres and 9 acres 36 gunthas of village Anjani. The suit as was originally framed, was based on solitary issue of the transaction of sale done by the defendant No. 3 in favour of the defendant No. 2 being null and void being in violation of section 15 (2) of the Central Provinces and Berar Relief of Indebtedness Act, 1939. The plaint was, however, amended and the question as to want of legal necessity, etc, were also introduced. The defendant No. 3 the plaintiffs father endor remained exparte. The defendant Nos. 1 and 2 filed the written statement and in defence to the crux of the matter as to the legality of alienation, pleaded that the defendant No. 3 was indebted and needed money for cultivation of his land, for domestic expenses and, therefore, sold the suit land to the defendant Nos. 1 and 2 for a sum of Rs. 8,000/- under the registered sale deed dated 6-4-1965. They further pleaded that looking to the objection to the legality raised by the plaintiff and defendant No. 3, they had applied to the collector, Buldhana, who is authority to grant sanction under the C. P. 85 berar Relief of Indebtedness Act, in Case No. 508/41.

(3.) WHEN the suit had to proceed for hearing, the learned trial Judge framed the issues primarily relating to the property being ancestral and the transaction being illegal on account of lack of legal necessity, as well as the C. P. 8s Berar Relief of Indebtedness Act. The trial Judge held that the alienation was for legal necessity. The trial Court further found that the creditors had not taken any steps till filing of the suit in question, for nullifying the transaction though the transaction was hit by the said Act and the suit was not liable to be decreed. Moreover, the defendant's application for anction was pending and it was, therefore, necessary to stay the proceedings in view of pendency of application for sanction. However, the said request was declined and suit was not stayed.