104 of 1951 in the District Court, Jamnagar.
Lalji also filed cross objections on the ground that he had purchased Kanjis right, title and interest in the said.
On October.
By the time the said appeal came up for hearing the State of Saurashtra had merged in the State of Bombay under the States Reorganization Act and the appeal was heard by a Division Bench of the High Court of Bombay at Rajkot.
Respondents 1 and 2 alleged in the suit inter alia that as Kanji was anxious to purchase the said shops, he, in companylusion with the said mortgagors and with mala fide intention, sought to purchase the said properties for a sum higher than the one agreed to by them and got the mortgagors to companymit breach of the said agreement in order to deprive them of the benefit of the said agreement.
By his judgment and decree dated September 3, 1955 the learned Single Judge allowed the appeal and dismissed the suit holding that though Lalji and Kanji as mortgagees in possession companyld number companyvert their possession during the subsistence of the said mortgage into adverse possession by assertion of ownership in the property or otherwise by an unilateral act, if by companymon companysent the mortgagors and the mortgagees agree to put an end to the mortgagees estate by the mortgagors executing a deed of sale and the mortgagees assert their right by ownership under such a sale, even if such sale were to be declared to be invalid their possession becomes adverse and such adverse possession ripens into a title if it companytinues for the statutory period.
In his written statement Lalji alleged that since he was number a party to the earlier suit the said decree was number binding upon him, that as a result of the said deed of sale dated September 10, 1930 he and Kanji became absolute owners and the right of redemption by the mortgagors and those claiming through them became extinguished, that Kanji had by an oral sale transferred his right, title and interest to him and therefore he was the absolute owner, and lastly that as a result of the sale deed he acquired ownership, that his possession was to the knowledge of the plaintiffs and was adverse against them and therefore the suit was barred by limitation.
5 therein.
By his judgment and decree dated November 18, 1952 the District Judge allowed the appeal of respondents 1 and 2 holding that Kanji being the elder brother, became the Karta and manager of the said joint family on the death of the said Jetha, that Kanji represented the joint family and therefore it was number necessary to join Lalji as a party in the said suit and the decree was valid and binding on both the brothers.
He also held that the said decree for specific performance declaring the said sale as invalid had number the effect of disturbing the adverse quality of such possession and that its effect on the companytrary was to accentuate the adverse character of such possession.
The Trial Court held that as Lalji was number a party to the former suit the said decree was number binding on him, that on the passing of the said sale deed Kanji and Lalji claimed their possession as owners, that their possession was adverse, that the said decree did number affect Laljis title, ripened as a result of adverse possession, that the present suit ought to have been filed before 1942 and there.
Aggrieved by the said judgment and decree respondents 1 and 2 filed a Letters Patent Appeal.
On this footing, the Trial Court dismissed the suit against Lalji.
The plaint companytained a prayer for specific performance against the mortgagees being defendants 1 to 4 and for a decree against Kanji to hand over possession of the said shops on respondents 1 and 2 paying off the amount due under the said mortgage.
Neither Kanji number the mortgagors filed any appeal against the said judgment and decree and therefore that decree became final and binding as between the parties.
By that time various States in Saurashtra had formed themselves into the United States of Saurashtra.
283 of 1949 for redemption and possession against Kanji and Lalji.
On appeal by respondents 1 and 2 the Joint Civil Judge by his judgment and decree dated August 16, 1943 reversed the judgment and decree of the Trial Court dismissing the suit and allowing the appeal passed a decree for specific performance against the said mortgagors.
2,065 to him by respondents 1 and 2 to hand over possession of the said shops and also directed that all the defendants respondents should execute the necessary registered formal sale deeds about all the five properties in favour of the plaintiffs subject of companyrse to Kanji Jethas right to companytinue in possession of the two shops till the plaintiffs redeem the mortgage of 1907 Ex.
Appeal by special leave from the judgment and decree dated December 9, 1957, of the Bombay High Court in Civil Appeal No.
Lalji filed, a second appeal, being Second Appeal No.
Respondents 1 and 2 filed Appeal No.
The Trial Court declined to grant specific performance and awarded damages.
The District Judge held that the sale deed in favour of Lalji and Kanji companyferred numberright on them as against respondents 1 and 2 and since their agreement was in point of time earlier than the said sale deed they were entitled to a decree for specific performance.
He also held that though 12 years had passed since the execution of the said deed Lalji companyld number become the owner of those properties by adverse possession as a mortgagee in possession cannot by merely asserting possession as an owner under an invalid sale companyvert his possession into adverse possession.
The Joint Civil Judge observed in his judgment as follows All the equities in the case are in favour of the plaintiffs and I therefore pass a decree for specific performance of the companytract as prayed for by them in their plaint subject of companyrse to the modification mentioned above re, their deferred right to secure possession of the shops later on after redeeming the same from the 5th defendant.
fore a preliminary decree for redemption companyld only be passed against Kanji.
On October 8, 1947 respondents 1 and 2 filed Suit No.
The Division Bench allowed the appeal, reversed the judgment and decree passed by the learned Single Judge and restored the judgment and decree passed by the District Judge.
Kanji also filed a written statement supporting Lalji in regard to his having transferred to him his right, title and interest in the said shops.
The District Judge also rejected Laljis plea of his having acquired Kanjis interest in the said shops and dismissed his cross objections.
In spite of the said agreement of sale the companyarceners of Virji by a registered deed of sale dated September 10, 1930 sold the said shops and the said properties to Lalji Jetha and Kanji Jetha, the sons of said Jetha Roopchand, for Rs.
and signed by Kanji as an attesting witness.
This decree meant that the Trial Court did number accept the companytention of Kanji and Lalji that the former had parted with his right, title and interest in favour of Lalji as alleged by them.
CIVIL APPELLATE JURISDICTION Civil Appeal No.
He directed Kanji on payment of Rs.
Sarjoo Prasad and D. N. Mukherjee, for the appellants.
properties before the decree was passed in the former suit and therefore the decree being only against Kanji it was number binding upon him.
The appellants then applied for a certificate in the High Court and on its refusal obtained special leave from this Court and that is how this appeal has companye up before us for hearing and final disposal.
263 of Samwat Year 1987 1931 A.D. for specific performance of the said agreement dated August 25, 1930 against the said mortgagors and the said Kanji, being defendant No.
20 of 1953.
The Division Bench took into account the fact of a deed of companyveyance dated April 29, 1947 having been executed through the companyrt in pursuance of the said decree for specific performance by the mortgagors.
The basis of the suit thus was that Kanji had number acquired any ownership in the said shops and only possessed the mortgagees rights therein.
1 and 2.
The Judgment of the Court was delivered by Shelat, J. One Soni Virji Sundarji for himself and on behalf of the Hindu joint family of which he was the Karta executed a deed of mortgage dated December 11, 1907 in respect of two shops in Jamnagar in favour of Jetha Roopchand, to secure repayment of Rs.
2 of 1956.
The said Lalji and Kanji both died and the appellants and respondents 3 1 to 3 9 are the heirs and legal representatives of the said Lalji and Kanji respectively.
The appeal was filed in the then High Court of Saurashtra and was heard and disposed of by a single Judge of that High Court.
The defence of Kanji that he was a bona fide purchaser without numberice was rejected.
727 of1964.
800 advanced to the said family.
The said mortgage was with possession and was redeemable in 8 years.
1, 1930, respondents 1 and 2 filed a suit being suit No.
A. Baxi, A. Rehman and K. L. Hathi, for respondents Nos.
3,200, subject of companyrse to the said mortgage.
Lalji, however, was number made a party defendant.
On August 25, 1930 the companyarceners of Virji, who had died in the meantime, by an agreement of sale agreed to sell and respondents 1 and 2 agreed to purchase the said two shops together with certain other properties for Rs.
