Khumansinh Pratapsinh Parmar(Now ... vs Ladhubha Pratapsinh Parmar & 9 on 16 December, 2015

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Gujarat High Court

Khumansinh Pratapsinh Parmar(Now ... vs Ladhubha Pratapsinh Parmar & 9 on 16 December, 2015

Bench: R.D.Kothari

                    C/SA/257/2015                                               ORDER




                    IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

                               SECOND APPEAL NO. 257 of 2015


                                               With
                            CIVIL APPLICATION NO. 12464 of 2015
                                                 In
                               SECOND APPEAL NO. 257 of 2015
         ==========================================================
              KHUMANSINH PRATAPSINH PARMAR(NOW DECEASED) THORUGH
                             LEGAL HEIRS,....Appellant(s)
                                      Versus
                  LADHUBHA PRATAPSINH PARMAR & 9....Respondent(s)
         ==========================================================
         Appearance:
         MRS VD NANAVATI, ADVOCATE for the Appellant(s) No. 1 - 1.3
         MR AB GATESHANIYA, ADVOCATE for the Respondent(s) No. 3 , 4.1 - 4.6 , 5
         -9
         ==========================================================

                   CORAM: HONOURABLE MR.JUSTICE R.D.KOTHARI

                                        Date : 16/12/2015


                                         ORAL ORDER

1. The appellants challenge the reversal of decree passed by the trial Court.

2. Heard Ms.V.D. Nanavati, learned advocate for the appellant. Since Mr.A.B. Gateshaniya, learned advocate was appearing in delay condonation application, his name is shown in the board. He is heard on behalf of respondents No.3, 5 to 9 and LRs of respondent No.4. Learned advocate Mr. Gateshaniya vehemently opposes the admission of appeal.

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HC-NIC Page 1 of 3 Created On Thu Dec 17 03:16:03 IST 2015 C/SA/257/2015 ORDER

3. Those respondents are purchasers of the suit property. The plaintiffs have instituted a suit against his brother (defendant No.1) and others, for setting aside the sale deed executed by defendant No.1 in favour of other defendants. It is say of the plaintiff that suit property is undivided property of joint family. The defendants have sold the suit land by executing a sale deed in favour of other defendants in 1964. The present suit is instituted by the plaintiffs in the year 2006.

4. Learned advocate for the appellants Ms. Nanavati has submitted that point for determination was not framed by the Appellate Court. One of the principal question is of limitation. The trial Court has framed the issue of limitation. The trial Court has found in favour of the plaintiffs on the ground that sale deed executed by defendant No.1 is void ab initio and limitation would not come in the way of plaintiffs. In the appeal, apart from the plea that no points were framed while considering the question of limitation, the Appellate Court embark upon altogether different inquiry. It has found that if the plaintiff was minor at the time of transaction, this fact ought to have been proved by the plaintiff. It has also held that the learned trial Court has wrongly held that permission under the Guardians and Wards Act was required since the plaintiff was minor at the time of transaction. On perusal of relevant discussion of the trial Court, it would appear that trial Court has not considered the Guardians and Wards Act on this aspect. Infact, it is not the case of the plaintiffs that they were minor at the time of transaction and without obtaining permission under Guardians and Wards Act, the transaction has taken place. Proceedings on this footing, the Appellate Court held that plaintiffs ought to have filed a suit within three years of attaining the age of majority. On the other hand, trial Court found that transaction has Page 2 of 3 HC-NIC Page 2 of 3 Created On Thu Dec 17 03:16:03 IST 2015 C/SA/257/2015 ORDER void ab initio and therefore, limitation does not come in the way.

5. Mr. Gateshaniya, learned advocate appearing for respondents Nos.3, 5 to 9 and LRs of respondent No.4, opposing the admission of appeal, has drawn attention of the Court to the following case laws :

(i) Kantabhai Wd/o. Chhitabhai Ranchhodbhai versus Ukadbhai Bhaijibhai Tadvi, 2012 (0) GLHELHC 227508 ;

(ii) Ramti Devi (Smt.) versus Union of India, (1995) 1 SCC 198 ;

(iii) Becharbhai Zaverbhai Patel & Another versus Jashbhai Shivabhai Patel & Others, 2013 (1) GLR 398.

6. Prima facie, I am of the view that issuance of notice for final disposal would serve the interest of justice.

7. In view of above, issue NOTICE for final disposal returnable on 21.01.2016. Mr. A.B. Gateshaniya, learned advocate waives service of notice on behalf of respondents Nos.3, 5 to 9 and LRs of respondent No.4.

(R.D.KOTHARI, J.) Amar Page 3 of 3 HC-NIC Page 3 of 3 Created On Thu Dec 17 03:16:03 IST 2015

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