RAOJI THAKARAM PATEL NIHARKAR Vs. HEMRAJ SADARAM MARWADI

JUDGEMENT

(1.) The plaintiff in this case sued to recover possession of certain Survey Numbers on the strength of a sale-deed passed in his favour by Laxman and his wife Jai who purported to act on behalf of Bhavdya, the minor son of Jai, by her first husband. It appears that the property originally belonged to Laxman but before his marriage with Jai he conveyed the property to the minor Bhavdya in 1905. After the sale deed in favour of the plaintiff, Bhavdya apparently mortgaged the property in suit to the defendants in 1916 and sold the same to them in 1918. Bhavdya's whereabouts at the date of the suit were not definitely known. The suit was filed on the 18 December 1919 and the question between the parties was really as to the merits of their respective titles.

(2.) The Trial Court disallowed the plaintiff's claim on the ground that the sale- deed in favour of the plaintiff was not proved.

(3.) The plaintiff appealed to the District Court, and that Court directed further evidence to be taken on the 1 June 1921. After the further evidence was received the learned Judge came to the conclusion that the sale-deed was proved. But the question as to whether the Sale deed was binding upon the minor Bhavdya does not appear to have been considered in the Trial Court, nor in the lower Appellate Court. It appears that in the Trial Court on the 9 September 1920 the defendants made an application requesting the Court to raise an issue as to whether the conveyance in favour of the plaintiff was for the benefit of the minor Bhavdya. They wanted to raise the question as to whether the sale-deed was really for the benefit of the minor but the Trial Court rejected the application and did not raise the issue on the ground that it was inconsistent with the defendant's contention.