BAI ASMALBAI WD O VORA MAHOMEDALLI EBRAHIMJI Vs. ESMAILJI ABDULLALLI
HIGH COURT OF GUJARAT
BAI ASMALBAI WD/O.VORA MAHOMEDALLI EBRAHIMJI
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(1.) The appellant who was original defendant No. 1 is the widow of one Mahmadalli Ibrahimji who died on 8-10-1947. After his death 5 persons filed a suit No. 31 of 1949 against 8 persons for administration of the properties of the deceased Mahmadalli Ibrahimji who was the uncle of defendant Nos. 1 to 5 and maternal uncle of defendant Nos. 2 to 7.
(2.) The Civil Judge J.D. Balasinor granted a decree for administration and appointed a Commissioner to work out the partition of the properties of the deceased amongst his heirs. In appeal the learned Assistant Judge at Nadiad dismissed the appeal with a slight variation of the decree passed by the lower Court. The variation was that the administration should be in respect of 2/3 rd of 20 tolas of gold instead of 30 tolas of gold. The learned Assistant Judge also upheld the finding of the trial court that the sale-deed of a house by the deceased Mahamadalli executed by the deceased in favour of his wife defendant No. 1 was a sham transaction and that the house was therefore available for administration.
(3.) Aggrieved by the order of the appellate court the defendant No. 1 widow has now come in second appeal and the following points were urged:--
(1) The suit for administration does not lie because there was also a prayer to hold that the sale deed executed by the deceased in the name of his wife was nominal and executed as a result of undue influence.
(2) It is contended that the suit is not maintainable in view of the provisions of Order 2 Rule 2 of the C. P. Code. The contention is that the earlier suit No. 51 of 1947-48 which was re-numbered as 30 of 1949 was for a declaration that the sale deed was fictitious that the suit was dismissed on the ground that the suit for a mere declaration does not lie whereupon another suit namely 52 of 1947-48 which was re-numbered as 31st of 1949 was filed on the same day for administration. It is contended that the earlier suit having been dismissed the second suit is barred by provisions of order 2 rule 2 of of the C. P. Code The third contention is that the suit was barred by Article 91 Schedule I of the Limitation Act. The contention is that the prayer regarding the sale deed in respect of a house was in fact a prayer to set aside the sale deed and therefore the suit fell under sec. 39 of the Specific Relief Act. It is therefore contended that the suit should have been filed within 3 years as provided in Article 91 Schedule I of the Limitation Act. It is also contended that the prayer relating to the sale deed of a house was introduced by an amendment application and was allowed on 7-1-1952 and that on that date the suit in respect of the sale deed of the house wasbarred by the Limitation Act. It is therefore contended that the amendment of the plaint should not have been allowed as by doing so a claim which was barred by the limitation on the date of the amendment was made by the plaintiff.;
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