HIMATLAL JAMNADAS DANI Vs. BIRBHANGIRI BISHESHARGIRI

JUDGEMENT

(1.) BY an agreement in writing dated January 16, 1947, the defendant agreed to sell to the plaintiffs the land hereditaments and premises situate at Vithalbhai Patel Road, Bombay, at or for the price of Rs. 2,25,000. On or about July 17, 1947, the plaintiffs' attorneys served requisitions on the vendor's title and the defendant's attorneys answered the said requisitions on or about August 8, 1947. The answers to the material requisitions are set out in paragraphs 5 to 9 of the plaint which it is not necessary for me to set out in detail in this judgment. The plaintiffs submit that doubts have arisen as to whether there is a custom, as alleged by the defendant, by which the defendant has full and absolute right and authority to sell or dispose of the property agreed to be sold and that his chela or disciple has no right or interest in the said property and is not entitled to challenge alienation of the said property by the defendant. The plaintiffs further submit that doubts have arisen whether the said alleged custom is sufficiently and satisfactorily proved and established by reason of the judgment of the Honourable Mr. Justice Chagla in Nazlibai v. Birbhangir Raja Vishveshargir (1941) O. C. J. Suit No.1094 of 1941, decided by Chagla J. , on October 3, 1941 (Unrep.) and by the evidence referred to in answers to the said requisitions.

(2.) BY reason of the said doubts the plaintiffs have taken out this originating summons to decide the following questions: (1) Whether the defendant has made out a marketable title to the property agreed to be sold and referred to in paragraph 1 of the plaint free from all reasonable doubts ? (2) Whether the requisitions of the plaintiffs in respect of the defendant's title to the said property have been sufficiently and satisfactorily answered by the defendant? (3) Whether the plaintiffs are bound to accept the defendant's title to the said property and to purchase the same ? (4) If any of the said questions (1), (2) and (3) be answered in the negative, whether the defendant is bound to refund and pay to the plaintiffs the sum of Rs. 12,500 deposited as and by way of earnest money by the plaintiffs with the defendant and to pay to the plaintiffs all costs charges and expenses incurred by the plaintiffs in preparation of the said agreement for sale dated January 16, 1947, and the investigation of title, advertisements, battaki correspondence etc. ? (5) What provision should be made for costs of this suit ?

(3.) IN this case the plaintiffs are willing purchasers, but they felt some doubts whether the evidence which was called in Nazlibai's case was sufficient to justify the finding that the custom pleaded was proved. IN order to bring satisfaction to the mind of the plaintiffs and to leave no room for doubt as regards the defendant's right to sell the property in suit, the defendant has called before me one Dilaramgir. He deposed that one Mukundgir was the chela of the defendant, and Mukundgir adopted the witness as his chela, that Mukundgirji died about eleven years ago and ever since his adoption, as chela by Mukundgirji the witness has been living with the defendant and that the defendant had consented to the adoption of the witness by Mukundgirji, and after the death of Mukundgirji the defendant accepted the witness as his chela and that the defendant had no other chela. He deposed to the custom of the community according to which the defendant has the right to sell or mortgage the properties. He also deposed to the fact that the properties were not held on trust but belonged absolutely to the Gooroo. According to the custom prevailing in the community, the witness disclaimed any interest in the properties in suit and admitted the right of the defendant to sell off these properties and to the enjoyment of the income thereof for his own personal use. The witness said that prior to the transaction in suit, the defendant had sold other properties as the absolute owner thereof both in Hyderabad (Deccan) and in Bombay. IN cross-examination by Mr. Maneksha the witness said that the defendant had got no other chela.