INDIRABAI DATTATRAY VAIDYA Vs. VIJAYA DATTATRAYA VAIDYA

JUDGEMENT

(1.) The original plaintiffs in Special Civil Suit No. 165 of 1971 decided by the Joint Civil Judge, Senior Division, Nagpur by his judgment and decree dated 10-8-1973 preferred First Appeal No. 29 of 1974. The original defendant No. 2 preferred First Appeal No. 35 of 1974 against the same judgment and decree. The defendant No. 1 filed cross-objections. Both the appeals and cross-objections are being disposed of by this judgment.

(2.) The following facts are not disputed before me. The suit house bearing No. 10 (new 04) situated at Ward No. 26 (New) of Kelibag Road, Mahal, Nagpur was owned by Dattatraya Pandurang Vaidya having inherited it from his father. Dattatraya died in the year 1963, leaving behind him, his widow Indirabai, plaintiff No. 1 and his son Vijaya, defendent No. 1 and his wife Mamta, plaintiff No. 2. The plaintiffs 3 (a) and (b) are the daughters and plaintiff No. 3 (c) is the son Ketan of defendant No. 1 Vijaya and his wife Mamta. Ketan was born on 7-4-1970. The defendant No. 1 on 31-1-1969 executed a document of agreement of sale in respect of the suit house in favour of defendant No. 2 for a consideration of Rs. 15.000/-, out of which, it is mentioned therein that Rs. 7.500/ were paid as earnest money. As the defendant No. 1 failed to exeucute the sale-deed as per the agreement of sale dated 31-1-1969, the defendant No. 2 instituted a Special Civil Suit No. 78 of 1969 in the Court of Civil Judge, Senior Division, Nagpur against the defendant No. 1 for specific performance of the agreement. The suit was resisted by the defendant No. Ion the ground that he obtained a loan of Rs. 5,000/- from the defendant No. 1 and the document dated 31-1-1969 was executed by way of security for repayment of the loan. The defence raised by the defendant No. 1 in that suit was negatived and the suit was decreed. The original defendant in that suit i. e. Vijaya preferred First Appeal No. 91 of 971 in this Court. That appeal was dismissed on 26-3-1981. After the Special Civil Suit No. 78 of 1969 was decreed, the appellants in First Appeal No. 29 of 1974 on 30-4-1971 instituted Special Civil Suit No. 465 of 1971.

(3.) The case of the appellants, who were plaintiffs, was that the suit house was the ancestral property in the hands of Dattatraya and on the death of Dattatraya in. the year 1963 the plaintiffs and the defendant became the owners thereof. They averred that on the death of Dattatraya the widow Inirabai (plaintiff No. 1) was in possession of the ancestral property left by Dattatraya and she was managing the property. She avers that she was the manager of the joint family property and the defendant No. 1 was never incharge of the property nor he had any control over the same. She further averred that the defendant No. 1 was in the habit of wasting money and his activities were adverse to the interest of the family and the family property. He was secretary of one physical institution and it appeared that for raising funds for the said institution, he had taken loan from defendant No. 2 without the knowledge of the plaintiffs and that the plaintiffs were not at all concerned with the said loan. They alleged that the alleged agreement of sale dated 31-1-1969 was not binding on the shares of the plaintiffs in the properly as the said transaction was not for the benefit of the family or for legal necessity. They submitted that they were never parties to the proceedings in the Court of Civil Judge, Senior Division, Nagpur and, therefore, they were not bound by the decree passed in Civil Suit No. 78 of 1969. According to them, they learnt about the transaction in or about the month of February, 1971 and therefore, they instituted the suit for declaration that the alleged agreement of sale dated 31-1-1969 between defendants Nos. 1 and 2 in respect of th suit property was unlawful, illegal and not enforceable under the law and fur further declaration that the plaintiffs were the owners of the suit pr 5pe ty and without their consent and knowledge the property could not be disposed of by the defendant No. 1.