DEVKUBAI N MANKAR Vs. RAJESH BUILDERS

JUDGEMENT

(1.) This is an appeal of the successors of original defendant

(2.) The relevant facts of the case, briefly stated, are as follows. The appellants (hereinafter, for the sake of convenience, referred to as "the heirs of Warli") are the heirs and legal representatives of one Madhya Govind Warli who was defendant No. 2 in the suit filed by M/s. Rajesh Builders, respondent No.1 herein. On or about 5th July, 1973, Mr. Warli, the predecessor of the appellants, had executed a power of attorney in favour of one Mahendra Damodar Patil, original defendant No. 1 (since deceased and represented by his legal representatives who are respondents in this appeal), in respect of certain immovable properties bearing Survey No. 327, Hissa No. 3 and Survey No. 328, Hissa No. 11 (hereinafter referred to as "Warli property"). Identical power of attorney was also executed by one Mr. Mhase, original defendant No. 3 in respect of certain property belonging to him. Another appeal, being Appeal No. 958 of 1995, which is clubbed with this appeal for hearing, pertains to the property belonging to Mr. Mhase and the alleged agreement of sale executed by Mr. patil in respect of the said property.

(3.) The suit in question was filed by respondent No. 1 against the predecessor of the appellants for specific performance of an agreement of sale dated 10th June 1983 executed by the power of attorney holder Mr. Patil for sale of the Warli property. The case of respondent No. 1 in the suit was that by the agreement dated 10th June, 1983 executed by Mr. Patil in his individual capacity for his own property, as a constituted attorney for the predecessor of the appellants in respect of Warli property, and on behalf of Mr. Mhase property were agreed to be transferred or conveyed to the respondent No. 1 for development. The agreement is a composite one for development of the personal property of Mr. Patil as well as Warli property and Mhase property. In this appeal, we are concerned only with Warli property and so henceforth we would refer only to that property. The case of the appellants is that the said transaction is collusive. According to the appellants, Mr. Warli never received any consideration. Admittedly, he was all throughout in the possession of the said property. It appears that in course of time, some differences arose between respondent No. 1, the developer, and Mr. Patil, the power of attorney holder, as a result of which respondent No. 1 filed a suit for specific performance of the agreement of sale dated 10th June, 1983. The said suit was numbered as Suit No. 2421 of 1983. In that suit, respondent No. 1, original plaintiff, also took out a Notice of Motion No. 1953 of 1983 and prayed for appointment of a receiver and injunction. Prayer (b) of the Notice of Motion which is relevant for the purposes of the present controversy is set out below: