DEOKARAN MOHANLALJI CHANDAK Vs. VISHWESHWAR LAXMAN DABHADE

JUDGEMENT

(1.) One Laxman Dabhade died on Aug. 26, 1937 leaving behind him two widows by name Banubai and Vithabai, Banubai being the senior widow of the two. Before his death, Laxman left a will executed on the same day, namely, 26th. Lax man was possessed of agricultural lands and houses at Nimbhora, Pragane Badnera, tahsil and district Amravati City of Amravati and also some other agricultural lands in village Andarsul taluq Yeole, district Nasik. Laxman had a brother by name Trimbak who had three sons Shriram, Kesheo and Vishwanath. In the disposition which Laxman made of his property by the will, he made certain disposition in respect of his properties situates in the town of Amravati and lands at villages Nimbhora and Andarsul in favour of his two widows and also directed his junior widow Vithabai to adopt a son to him, namely, Vishwanath, his nephew. Accordingly, Vishwanath was adopted by Vithabai and was named as Vishweshwar. This adoption took place on Oct. 16, 1937.

(2.) On Oct. 24, 1962, Vithabai executed an agreement of sale in respect of 1 acre 33 gunthas of land from out of survey No. 11/2 and 59/2 of village Nimbhora in favour of one Deokaran Mohanlal. This property, namely, survey No. 11/2 and 59/2 also appears to have been the subject of transfers and litigation during the life time of Vithabai. On Oct. 14, 1958, Vishweshwar, the adopted son purported to sell this very land, described therein by him to be 2 acres in extent, to Tarabai. Prior to the agreement of sale, dated Oct. 24, 1963 and subsequent to the sale by Vishweshwar to Tarabai, Vithabai on Dec. 7, 1960 sold 2 acres and 7 gunthas out of this land to one Balmukund. It appears that Vithahai had entered into an agreement of partnership for the cultivation of this land, namely, a portion of survey Nos. 11/2 and 59/2 which was apparently in her possession and which was remaining in her possession with one Murlidhar Shankarlal. Subsequently Vithabai filed a suit against this Murlidhar for cancellation of the partnership deed and for possession of that land. While this suit was pending and after the agreement of sale in favour of Deokaran, Vithabai died on Feb. 8, 1964. On Vithabai's death her legal representatives were not brought on record of that suit against Murlidhar Rathi. Consequently the suit abated and was dismissed.

(3.) The present suit was commenced by Deokaran on Oct. 6, 1964 claiming specific performance of the agreement dated Oct. 24, 1963 executed by Vithabai in his favour from the legal representatives and heirs of Vithabai, namely, Vishweshwar, Murlidhar Shankerlal who was apparently in possession of this property under a partnership deed entered into between him and Vithabai, and Tarabai in whose favour on Oct. 14, 1958 Vishweshwar had purported to sell this very property.