ABEHSANG JIVABHAI Vs. DHIRAJLAL MANEKLAL

JUDGEMENT

(1.) THIS is an appeal by the plaintiffs and it arises out of a judgment and decree passed by the learned Assistant Judge of Kaira at Nadiad in Civil Appeal No. 125 of 1951 which arose out of Regular Civil suit No. 245 of 1950 which was filed in the Court of the Civil Judge J. D. at Umreth.

(2.) THE suit of the plaintiffs was filed under the D. A. R. Act for taking accounts of a certain transaction dated 12-7-1912, which was an oral transaction and which according to the contention of the plaintiffs, was a transaction in the _ nature of a mortgage, This transaction was effected by one Ander Jaga, the father of the plaintiffs Nos. 3, 4 and 5 in favour of one Maneklal, the father of defendant No. 1. In the suit a prayer was also made for redemption of the suit property and for recovering possession thereof from the defendants.

(3.) THE suit property in this case is survey No. 154 of Malvan Taluka Thasra. This property, along with certain other property, was mortgaged to the grand-father of defendant No. 1 on 15-12-1898. The mortgaged properties were the ancestral properties of one Gotabhai, an ancestor of the plaintiffs. If we turn to the pedigree in this case, which is to be found at page 11 of the print, it would appear that Gotabhai had two sons, Jaga and Bhagwan. Jaga had a son named Ander and Bhagwan's son was Jiva and plaintiffs Nos. 3, 4 and 5 are the sons of Ander. It is the case of the plaintiffs that they are agriculturists under the D. A. R. Act. On 12-7-1912, the father of the present defendant No. 1 viz. Maneklal, took a sale-deed of the suit property from. Ander, the son of Jaga for Rs. 305/ -. It is the plaintiffs' contention in the suit that although the document was a sale deed the real nature of the transaction was a mortgage and it is , of this transaction that the plaintiffs are seeking to take accounts under the D. A. R. Act in the suit which they have filed.