HIRJI MADHA Vs. NAGJI KURJI
HIGH COURT OF GUJARAT
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(1.) This civil revision application raises an interesting question regarding the interpretation of Section 25(ii) of the Bombay Agricultural Debtors Relief Act 1947 which is hereinafter referred to asthe Act .
(2.) This matter relates to two pieces of land bearing survey Nos. 232 and2 3/2 2situate in the village Sarasia in Dhari Taluka of the Amreli District. This land belonged to one Purji the father of respondents I and 2 in this petition. On March 2 1933 Purji executed a saledeed in favour of one Dawood Vora the father of the third respondents in this petition whereby he conveyed these lands to the father of respondent No. 3. This sale deed was duly registered under the Indian Registration Act. Respondent No. 1 who gave evidence in this case deposed that till the year 1939 possession of the land sold to the father of the third respondent was not given to him and I am informed that this position as it obtained till that year has not been disputed by the parties.
(3.) On May 8. 1943 the petitioner purchased these lands from the father of the third respondent by a sale deed of that date. This sale deed was also duly registered under the Indian Registration Act. In pursuance of this sale the father of the third respondent put the petitioner in possession of these lands. On January 11 1950 the respondent No. 1 made an application to the Civil Judge ( Junior Division ) Dhariunder sec. 4 of the Act. In this application the second respondent was added as a partyapplicant subsequently. In this application amongst the creditors was impleaded the third respondent. Subsequently the petitioner was also added as a party thereto. One of the allegations in the application of the respondents Nos. 1 and 2 was that the first transaction with respect to the said lands was though on the face of it a transaction of sale was really in the nature of a mortgage. The impugned transaction was the transaction of sale entered into by the father of respondent Nos. 1 and 2 on March 2 1933 The respondents Nos. 1 and 2 contended that under sec. 24 of the Act they were entitled to a declaration from the Court that the transfer was in the nature of a mortgage. The respondents Nos. 1 and 2 also claimed an account on the footing that this transaction was in the nature of a mortgage. On the other hand the petitioner contended that whatever be the real nature of the transaction that section did not apply to him inasmuch as he was a bona fide transferee for value without notice of the real nature of such transfer and since he as such transferee held lands in question under a registered deed executed on or before January 1 1948 (being the date applicable to the District of Amreli) within the meaning of sec. 25(ii) of the Act the respondents Nos. 1 and 2 were not entitled to reopen the prior dealings in respect of the said property purchased by him.;
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