ASARAM BAPU WAGHMODE Vs. BHANUDAS DHONDIBA PATIL

JUDGEMENT

(1.) THE appellants in this appeal are original defendants and the appeal has arisen out of a judgment and decree passed by the learned Assistant Judge at Ahmednagar in appeal No. 431 of 1951 which arose out of suit No. 32 of 1950 filed in the Court of the Civil Judge, J. D. at Newasa.

(2.) A few facts leading upto this litigation may be stated. The Plaintiffs of the present suit are minors and the suit has been filed by them through their guardian, their father. It is a suit for a declaration that the sale-deed in respect of survey Number 70/2 which was passed by the lather of the plaintiffs on 22-12-1947 is void as it would be hit by the provisions of Section 40, B. A. D. R. Act and for possession of Section No. 70/2; or, in the alternative, the prayer made by the plaintiffs is that they should be granted a declaration that the abovementioned sale deed is not binding upon them as the transaction was entered into for immoral purposes and as there was no legal necessity for it. In the suit the plaintiffs have claimed three-fourths share in the suit property.

(3.) ON 23-4-1915 the father of the plaintiffs, Dhondiba Paul, passed a possessory mortgage deed of the suit property for Rs. 400/- in favour of the plication Ex. 43 to the Court established under the defendants. On 26-10-1945 Dhondiba made an ap- B. A. D. D. Act for the adjustment or his debts. In that application Dhondiba showed four creditors. Two of these four creditors were alleged to be mortgages in respect of the sale mortgage transactions and the other two creditors were the present two defendants. On 18-3-1947 Dhondiba passed a second possessory mortgage of the same property to the defendants for Rs. 300/ -. Thereafter, on 22-12-1947, Dhondiba took an additional amount of Rs. 900/-from the Defendants and passed a sale-deed of the suit property in their favour for Rs. 1,600/ -. On 12-1-1950, the Plaintiffs, who are the sons of Dhondiba, filed the present suit through their guardian Dhondiba. In the application which was filed by Dhondiba under the B. A. D. R. Act, he was held to be a debtor by the Court established under the B. A. D. R. Act on 11-10-1950. It may be noted that throughout the present litigation the abovementioned application filed by Dhondiba under the B. A. D. R. Act was pending. The trial Court came to the conclusion that, apart from the provisions of Section 40, B. A. D. R. Act, the transaction of the sale-deed dated 22-12-1947 was binding upon the plaintiffs as in the view of the learned trial Judge the transaction was not entered into by Dhondiba for any immoral purpose and also as there was no want or lack of legal necessity. But the learned Judge held that the transaction of the sale-deed was hit by the provisions of Section 40, B. A. D. R. Act and was, therefore, void. Accordingly, he decreed the suit in favour of the plaintiffs. On the matter going in appeal, the learned Assistant Judge confirmed the Judgment and decree passed by the trial Court. That is how the defendants have come in second appeal to this Court.