MANOHAR SHIVRAM SWAMI Vs. MAHADEO GURULING SWAMI

JUDGEMENT

(1.) This is a plaintiffs second appeal. The facts, so far as they are material for the disposal of this second appeal, are these : Plaintiff appellant Manohar is one Shivrams son. This Shivram had two other brothers by name Hari and Vithu. Defendant No. 1-respondent No. 3 Dhondubai and one Dattu were the two issues of Hari. Defendants Nos. 2 to 5 (respondents Nos. 1, 2, 4 and 5) are sons of Vithu. The properties in dispute consist of land and a house. All these properties originally belonged to Dattu. By a Will dated 13th June, 1962 he bequeathed them to the plaintiff. The properties vested in the plaintiff for good on the death of Dattu ion 1966. The plaintiff executed a sale-deed in respect of these properties in favour of defendant No. 1 on 22nd June, 1968. It appears that the parties are Jangams by caste. One of the vendees convenant is :

(2.) Plaintiff sued defendants Nos. 1 to 6 for a perpetual injunction restraining them from interfering with his possession of the suit property, on the allegation that by selling away the suit property to defendants Nos. 2 to 5, defendant No. 1 had committed breach of the covenant extracted above by me. It is not necessary to refer to other averments made by him in the plaint, as they are not material for disposal of this second appeal. The trial Court held that defendant No. 1 had committed breach of the aforesaid covenant. It negatived the defence that the aforesaid limitation was void under section 10 of the Transfer of Property Act. Eventually the trial Court passed a decree in favour of the plaintiff declaring that the sale-deed executed by defendant No. 1 in favour of defendants Nos. 2 to 5 was void and not binding on the plaintiff. It further directed defendants Nos. 2 to 5 to reconvey the property to the plaintiff for Rs. 2000/- which is the consideration paid by them to defendant No. 1.

(3.) In the appeal carried to the District Court, the learned Extra Assistant Judge took the view that the restriction quoted in the first paragraph of the judgment was void, being hit by section 10 of the Transfer of Property Act. Resultantly he upheld the validity of the sale-deed. He negatived the plaintiffs alternative stand based on breach of covenant. According to him defendants Nos. 2 to 5 who are first cousins of plaintiff and defendant No. 1 also belong to the Jangam Gharana of the plaintiff. Accordingly he allowed the appeal, dismissing the suit in its entirely with costs.