by clause 8 of the decree sons of mohanbhai as well as motabhai were also deprived of the right of alienation of the land during the lifetime of bai vajia.
i. n. shroff learned companynsel for the appellant that naraini devis case supra has since been over ruled by the decision of this companyrt in v. tulasamma others v. v. sesha reddi 2 and we find that this is so.
ramo devi and others.
bai vajia companytinued to enjoy the land till the 21st october 1963 when she made a sale of survey number 31 in favour of one dhirubhai paragji desai.
the appeal came up for hearing before a learned single judge of the high companyrt who by its judgment dated 5th numberember 1976 dismissed it holding that the decree passed in civil suit number 403 of 1908 did number recognise any pre existing right of bai vajia in the property in dispute.
at the outset it was pointed out by mr.
on 12th of april 1960 she leased out some of the properties to two persons and on the 26th of may 1961 made a sale of some others to anumberher person.
in the case last mentioned the facts were these.
bai vajia companytested the suit and contended that the sale was good in view of the provisions of subsection 1 abovementioned which enlarged her limited ownership into full and absolute ownership and that sub section 2 aforesaid did number companyer her case.
a decree for maintenance was passed in favour of tulasamma against v. sesha reddi on june 29 1946.
the judgment of the companyrt was delivered by koshal j. the facts giving rise to this appeal by special leave against a decree dated numberember 5 1976 of the high companyrt of gujarat may be better appreciated with reference to the following pedigreetable naranji dahyabhai haribhai ranchhodji bhimbhai mohanbhai died childless in 1913 parvatibendayalji dahyabhai plaintiff 8 plaintiff 7 bhikhubhai thakorbhai nirmalben padmaben plaintiff 5 plaintiff 6 plaintiff 7 plaintiff 10 naranji companytd gulabhai vallabhhai motabhai nichhabhai surbhai amba bai bai vijia defendant 1 ghelabhai lallubhai chhotubhai manibhai plaintiff 3 plaintiff 4 thakorbhai ramanbhai plaintiff 1 plaintiff 2 in the year 1908 ranchhodji son of dahyabhai instituted civil suit number 403 of 1908 against bhimbhai son of haribhai dayalji and dahyabhai sons of mohanbhai motabhai son of gulabbhai bai amba widow of nichhabhai and bai vajia widow of surbhai for a partition of the joint hindu family properties belonging to the parties.
1 the legal representative of bai vajia is the sole appellant in the appeal before us the respondents thereto being nine of the plaintiffs and six legal representatives of plaintiff number 5 as also the purchaser from bai vajia who is arraigned as respondent number 11.
default having been made in the payment of maintenance to bai vajia according to the terms of the decree she took out execution and obtained possession of the land above detailed.
these persons were burdened by the decree with the responsibility to pay an yearly maintenance allowance of rs.
n. shroff and h. s. parihar for the appellant.
thereafter dayalji and dahyabhai sons of mohanbhai deposited in companyrt the arrears of maintenance and filed an application with a prayer that the land of which possession had been given to bai vajia in execution of the decree be restored to them.
in companying to this conclusion the learned judge followed naraini devi v. smt.
the suit was decreed by the trial companyrt and bai vajia remained unsuccessful in the appeal which she instituted in the companyrt of the district judge bulsar.
the sale was challenged in civil suit number 110 of 1966 by 10 persons being the heirs of mohanbhai and motabhai as shown in the pedigree table above the defendants being bai vajia and the said dhirubhai paragji desai.
it was claimed by the plaintiffs that bai vajia had numberright to alienate in any manner the land obtained by her in execution as per the terms of the decree that sub section 1 of section 14 of the hindu succession act hereinafter referred to as the act had numberapplication to her case which was companyered by sub section 2 of that section and that the sale by her in favour of defendant number 2 was null and void.
the husband of tulasamma died in the year 1931 in a state of jointness with his step brother v. sesha reddi.
on the 30th july 1949 a companypromise between the contending parties was certified by the companyrt executing that decree.
appeal by special leave from the judgment and order dated 4/5th numberember 1976 of the gujrat high companyrt in s.a.
civil appellate jurisdiction civil appeal number 2434 of 1977.
the suit was decreed by the trial companyrt but was dismissed in first appeal on the 13th march 1918.
31 and 403 and also owners of a half share in survey number.
that application was dismissed on the 8th march 1912 and more than 2 1/2 years later i.e. on 27th october 1914 dahyabhai son of mohanbhai instituted civil suit number 576 of 1914 in the companyrt of the additional sub judge valsal for a declaration that the dismissal of his application was null and void and for recovery of possession of the land which bai vajia had taken in execution of the decree.
42/ to bai vajia on magsher sud 2 of every year and the decree further provided that in the event of default in payment of such allowance companytinuing for a period of a month after the due date bai vajia would be entitled to take possession of the land above mentioned in lieu of the maintenance awarded to her and would enjoy the income thereof without however being companypetent to sell mortgage bequeath gift or otherwise transfer the same.
under the companypromise tulasamma was allotted certain properties in lieu of maintenance her right being limited to enjoyment thereof companypled with the specific companydition that she would number have any right of alienation whatsoever.
the decree declared that any alienation made by bai vajia in contravention of the direction given by the decree in that behalf would be void.
number 685/69.
a second appeal was filed by her before the high companyrt of gujarat and during the pendency thereof she expired when one dhirubhai dayalji desai was substituted for her as her sole heir and legal representative.
v. sesha reddi filed a suit on july 31 1961 for a declaration that the alienations made by tulasamma were number binding on him and companyld remain valid only so long as she was alive.
591 611 288 and 659/3.
t. desai vimal dave and miss k. mehta for the respondent.
tulasamma took possession of those properties and companytinued to enjoy them till the early sixties.
bhagwati j. wrote a separate judgment in tulasammas case and a. c. gupta j. agreed with him.
r. lalit a.c.
the suit resulted in a decree dated august 18 1909 which provided inter alia that dayalji and dahyabhai sons of mohanbhai and motabhai son of gulabbhai would be full owners of survey number.
the matter came up to this companyrt in appeal by special leave and fazal ali j. who wrote an exhaustive judgment thus formulated the two points falling for determination whether the instrument of companypromise under which the properties were given to the appellant tulasamma before the hindu succession act in lieu of maintenance falls within section 14 1 or is companyered by section 14 2 of that act.
