BAROT CHHABAJI MOHANJI v. PATEL JOITARAM UMEDRAM — 1972 DIGILAW 10 (GUJ)

C. V. RANE, J. ( 1 ) THIS appeal is directed against the decree passed by the learned District Judge Mehsana in civil appeal No. 187 of 1966 by which he confirmed the decree passed by the Civil Judge Junior Division Vijapur in civil suit No. 34 of 1962. The facts of the above suit were in brief as under :- Barot Kedarji Sanklaji and his brother Barot Mohanji had mortgaged the fields described in the plaint to Umed Jividas and his brother Shivram by executing a mortgage deed in their favour on 3-6-1925. Shivram Jividas sold his rights in the mortgaged properties to his brother Umed on 17-649. As the mortgage was with possession Umed Jividas was in possession of all the fields from 17-6-1949. Defendant No. 1 Chhabaji Mohanji who is the son of Mohanji Sanklaji filed an application for the adjustment of debts and redemption of mortgage under the provisions of the Bombay Agricultural Debtors Relief Act (hereinafter referred to as the Act ). Deceased Umed Jividas and his heirs had also filed applications under the above Act for the adjustment of debt and possession of a share in the fields. During the pendency of the above applications defendant No. 6 who is the son of Barot Kedarji Sanklaji sold 1 share of the family in the mortgaged fields to Umed Jividas on 31-1-1950. The B. A. D. R. Court held that nothing was found due on the mortgage and that the mortgage could be redeemed only as a whole and hence it directed that the possession of all the fields should be handed over to defendents Nos. 1 to 5 who are the heirs of original comortgagor Barot Mohanji. The plaintiffs who are the legal representatives of Umed Jividas filed the above suit for partition and recovery of possession of their 1/2 share in the suit also for mesne profits. The suit was resisted by defendants Nos. 1 2 3 and 5. Barot Ishwarji Kedarji who had sold 1/2 share of Kedarjis family in the suit fields to Umed Jividas was defendant No. 6 in the suit. Defendant No. 4 Manilal who is the granddon of Mohanji Sanklaji and defendant No. 6 did not come forward to contest the suit which was therefore heard exparte against them. 1 2 3 and 5. Barot Ishwarji Kedarji who had sold 1/2 share of Kedarjis family in the suit fields to Umed Jividas was defendant No. 6 in the suit. Defendant No. 4 Manilal who is the granddon of Mohanji Sanklaji and defendant No. 6 did not come forward to contest the suit which was therefore heard exparte against them. ( 2 ) THE learned Civil Judge allowed the plaintiffs suit and passed a preliminary decree for redemption and partition of the suit fields. He directed that defendants Nos. 1 1o 5 should give one half share in the suit fields to the plaintiffs by effecting partition and in case they failed to do so liberty was given to the plaintiffs to apply for a final decree for partition through the Collector. Mesne profits from 21st June 1961 onwards were also awarded to the plaintiffs. ( 3 ) BEING aggrieved by the above decree defendants 1 to 5 preferred an appeal to the court of the District Judge at Mehsana. The learned District Judge dismissed the appeal and confirmed the decree passed by the trial court being aggrieved by the above decree defendants Nos. 1 to 5 have come in appeal. ( 4 ) THE learned advocate for the appellants however vehemently argues that the sale deed exh. 43 executed by defendant. No. 6 Ishwarji Kedarji (respondent No. 9) on 31-1-1950 is not valid in view of the provisions of sec. 40 of the Act. The plaintiffs base their claim for one half share in the suit fields on the above sale deedunder these circumstances the most important question to be decided in this appeal is whether by virtue of the above sale deed the plaintiffs ever derived any title to the suit fields. Sec. 40 of the Act runs as under :-NOTWITHSTANDING any law or contract but subject to the provisions of secs. 41 and 53 no alienation of any property belonging to a debtor who is a party to any proceedings under this Act or an award registered under this Act made by him before all his debts are discharged shall be valid except with the previous sanction of the Court. LOOKING to the language of sec. 40 it becomes evident that alienation of property belonging to a debtor who is a party to the proceedings under the Act is prohibited. LOOKING to the language of sec. 40 it becomes evident that alienation of property belonging to a debtor who is a party to the proceedings under the Act is prohibited. The question whether the sale executed in contravention of sec. 40 of the Act was void has been considered by the Division Bench of the High Court of Bombay in the case of Himatsing Dhansing v. Somi (56 Bom. L. R. 69) on which reliance has been placed by the learned advocate for the appellants. In the above case the defendant had sold two fields by two sale deeds executed on April 6 1948 for Rs. 2000/and 4000/respectively. The plaintiffs case was that he was put in possession of the properties conveyed to him and that he was subsequently dispossessed. He therefore filed two suits to obtain possession of the sand two fields. It was the defence in the above suits that the sale deeds executed in favour of the plaintiff were invalid and conveyed no title to him in view of the provisions of sec. 40 of the Act. THE above sale deeds were executed during the pendency of the proceedings under sec. 4 of the Act. When the matters went in appeal to the High Court the Division Bench took the view that This section in terms declares that no transaction which is made contrary to its provisions shall be valid. In the context this expression must mean that the offending transactions are invalid altogether and that if a transfer is made contrary to the provisions of sec. 40 it is void and conveys no title to the transferee. Thus according to the above decision a transaction in contravention of sec. 40 of the Act was void for all purposes irrespective of the question as to whether its validity was challenged by the vendor himself or any other person having interest in the property. ( 5 ) THE learned District Judge took the view that the validity of sale can be challenged only by the vendor and that looking to the facts of the case the suit was governed by the decision in the case of Asaram v. Bhanudas (A. I. R. 1956 Bom. 6871 and not by the decision in the case of Himatsing Dhansing (supra ). 6871 and not by the decision in the case of Himatsing Dhansing (supra ). According to him Vyas J. has taken the view in the case of Asaram v. Bhanudas that the validity of sale on the above ground cannot be challenged by any person other than the vendor himself. In the case of Asaram v. Bhanudas in which the decision in the case of Himatsingh (supra) has been considered one Dhondiba the manager of an undivided Hindu family had made an application to the court established under the Act for the adjustment of his debts. Later on he took an additional amount from the creditor and passed a sale deed of property in his favour. Three minor sons of Dhondiba then filed a suit through their guardian Dhondiba for a declaration that the sale deed passed by Dhondiba was void as it was hit by the provisions of sec. 40. Throughout the above litigation the application filed by Dhondiba was pending. Vyas J. held in the above case that the suit had been filed by the plaintiffs in respect of a matter pending before the court established under the Act and hence under sec. 51 (1) (a) of the Act the civil court had no jurisdiction to entertain it. He also held :-NOW if we come to the conclusion as I think we must upon a reading of the application exh. 48 made by Dhondiba before the court estabished under the Bombay Agricultural Debtors Relief Act that the said application was made by Dhondiba in his invididual capacity then the property belonging to the debtor within the meaning of sec. 40 of the Act would be only one-fourth share in the suit property and a challenge under the provisions of sec. 40 of the Act could be made only in respect of that share (one fourth) ? the suit property and that too by Dhondiba himself and not by his sons. The sons share in the suit property would be to the extent of three-fourths but that share would not be the property of the debtor Dhondiba. Therefore so far as the three-fourths share of the sons in the suit property is concered that at any rate would not be hit by the provisions of sec. 40 Bombay Agricultural Debtors Relief Act. Even if it be held that the application Exh. Therefore so far as the three-fourths share of the sons in the suit property is concered that at any rate would not be hit by the provisions of sec. 40 Bombay Agricultural Debtors Relief Act. Even if it be held that the application Exh. 48 was made by Dhondiba on behalf of the undivided Hindu family of which he was a manager even so I must uphold Mr. Tarkundes contention that so long as Dhondiba is alive the suit must be filed by him and not by his sons. It is Dhondiba who received the monies under all the three transactions. For the first possessory mortgage it was Dhondiba who obtained Rs. 400:- under the second possessory mortgage it was Dhondiba who received a sum of Rs. 300. 00; and under the sale deed in question it was Dhondiba who conveniently got for himself Rs. 900. 00. Having regard to all these circumstances even if the application Ex. 48 be deemed to have been made by Dhondiba on behalf of the undivided Hindu family. I fail to see how the present suit filed by Dhondibas sons and not by Dhondiba himself could be maintainable. For this reason also I am of the view that Mr. Tarkundes objection must prevail. ( 6 ) IT will appear from the above decision that Dhondiba had filed the application for the adjustment of his debts in his individual capacity and as he had only 1/4th share in the suit property it was held that the challenge under the provisions of sec. 40 of the Act could be made only in respect of that share and that too by Dhondiba himself and not by his sons. The above view seems to have been based on the ground that as long as Dhondiba was alive his sons had no interest in his 1/4th share in the property. As regards the 3/4th share of Dhondibas sons it was held that; it would not be hit by the provisions of sec. 40 of the Act because it was not the property of the debtor. As regards the 3/4th share of Dhondibas sons it was held that; it would not be hit by the provisions of sec. 40 of the Act because it was not the property of the debtor. It has also been made clear in the above case that even if it be held that application for adjustment of debts was made by Dhondiba on behalf of undivided Hindu family of which he was a manager the suit must be filed by him and not by his sons as long as he was alive. It will appear from what is stated above that no proposition has been laid down in the above case that no person other than the alienator himself can challenge the sale on the ground that it is hit by sec. 40 of the Act even if such person has an interest in the property affected by the sale and also a capacity or legal competency to raise such a plea or take an action. I therefore find that the learned District Judge has committed an error in construing the decision in the case of Asaram (supra) in the manner in which he has done. It may also be pointed out that in view of the clear decision of the Division Bench in the case of Himatsingh (supra) there is no justification for taking any other view in the matter. ( 7 ) IN the present case the appellants have one half share in the suit properties and it is not disputed that as they have redeemed the entire suit properties they have acquired the same rights as the original mortgagees had in those properties as contemplated by sec. 92 of the Transfer of Property Act. Under these circumstances they have genuine interest in the entire suit properties and hence it is open to them to challenge the validity of the sale in the ground that it is in contravention of sec. 40 of the Act. Looking to the object of sec. 40 of the Act it appears that all the persons having interest in the property affected by the sale are entailed to challenge its validity on the ground that it is hit by sec. 40 of the Act especially when as held in the case of Himatsingh (supra) a sale of the property in contraventions of sec. 40 of the Act it appears that all the persons having interest in the property affected by the sale are entailed to challenge its validity on the ground that it is hit by sec. 40 of the Act especially when as held in the case of Himatsingh (supra) a sale of the property in contraventions of sec. 40 of the Act is void ab initio and it confers no title on the transferee. It is therefore open to the appellants to challenge the validity of the sale. ( 8 ) THE learned advocate for the respondents No. 1 to 8 however relying on the decision in the case of East India Co. v. O. L. Raj Ratna (XI G. L. R. 457) argues that the sale of 1/2 share in the suit field would be void only against the transferor and that as respondent No. 9 Ishwarji has supported the plaintiffs claim for partition on the basis of the sale deed the appellants have no right to challenge the validity of the sale. The decision in the above case mainly related to he effect of the order passed by a court or tribunal against the person who has not been given an opportunity of being heard before passing the order in question. The principle of audi alteram partem was considered in the above case and it was held that a decision give in breach of audi alteram partem rule would therefore be void as against the party affected but it would be valid as against the rest of the world. In the present case however as held in the case of Himatsingh (supra) the sale is void ab initio in view of the fact that it is in contravention of the mandatory provisions of sec. 40 of the Act. The principle laid down in the case of East India Company which has nothing to do with a case like the present one would not therefore apply to this case. The view that the sale in the instant case is void even against the appellants is further supported by the decision in the case of Bapurao Khusal v. Baliram (60 Bom. L. R. 1424); ( 9 ) FOR the reasons stated above I hold that the sale in respect of share in the suit fields being in contravention of sec. The view that the sale in the instant case is void even against the appellants is further supported by the decision in the case of Bapurao Khusal v. Baliram (60 Bom. L. R. 1424); ( 9 ) FOR the reasons stated above I hold that the sale in respect of share in the suit fields being in contravention of sec. 40 of the Act is void and that it does not confer any title on the plaintiffs (respondent Nos. 1 to 8) and in that case they are not entitled to any of the reliefs claimed in the suit which is therefore liable to fail. The appeal is therefore allowed and the decrees passed by the trial court and the District Court are set aside and the suit is dismissed. As the plaintiffs have paid proper consideration for one half share of Ishwarji in the suit fields it would be just and fair to order that the parties should bear their own costs throughout. .