- (1.) The facts giving rise to this appeal by special leave against a decree dated Nov. 5, 1976 of the High Court of Gujarat may be better appreciated with reference to the following pedigree-table. In the year 1908, Ranchhodji, son of Dahyabhai instituted Civil Suit No. 403 of 1908, against Bhimbhai son of Haribhai, Dayalji and Dahyabhai sons of Mohanbhai, Motabhai son of Gulabbhai, Bai Amba widow of Nichhabhai and Bai Vajia widow of Surbhai, for a partition of the joint Hindu family properties belonging to the parties. The suit resulted in a decree dated August 18, 1909 which provided, inter alia, that Dayalji and Dahyabhai sons of Mohanbhai, and Motabhai son of Gulabbhai would be full owners of Survey Nos. 31 and 403 and also owners of a half share in Survey Nos. 591, 611, 288 and 659/3. These persons were burdened by the decree with the responsibility to pay an yearly maintenance allowance of Rs. 42/- to Bai Vajia on Migsher Sud 2 of every year and the dscree further provided that in the event of default in payment of such allowance continuing for a period of a month after the due date, Bai Vajia would be entitled to take possession of the land above-mentioned in lieu of the maintenance awarded to her and would enjoy the income thereof without however being competent to sell, mortgage, bequeath, gift or otherwise transfer the same. The decree declared that any alienation made by Bai Vajia in contravention of the direction given by the decree in that behalf would be void. By clause 8 of the decree sons of Mohanbhai as well as Motabhai were also deprived of the right of alienation of the land during the lifetime of Bai Vajia.
(2.) Default having been made in the payment of maintenance to Bai Vajia according to the terms of the decree, she took out execution and obtained possession of the land above detailed. Thereafter Dayalji and Dahyabhai sons of Mohanbhai deposited in court the arrears of maintenance and filed an application with a prayer that the land of which possession had been given to Bai Vajia in execution of the decree be restored to them. That application was dismissed on the 8th March, 1912 and more than 2| years later, i.e., on 27th October, 1914, Dahyabhai son of Mohanbhai instituted Civil Suit No. 576 of 1914 in the Court of the Additional Sub-Judge, Valsad, for a declaration that the dismissal of his application was null and void and for recovery of possession of the land which Bai Vajia had taken in execution of this decree. The suit was decreed by the trial court but was dismissed in first appeal on the 13th March, 1918. 2A. Bai Vajia continued to enjoy the land till the 21st October, 1963 when she made a sale of Survey No. 31 in favour of one Dhirubhai Paragji Desai. The sale was challenged in Civil Suit No. 110 of 1966 by 10 persons being the heirs of Mohanbhai and Motabhai as shown in the pedigree-table above, the defendants being Bai Vajia and the said Dhirubhai Paragji Desai. It was claimed by the plaintiffs that Bai Vajia had no right to alienate in any manner the land obtained by her in execution as per the terms of the decree, that sub-sec. (1) of sec. 14 of the Hindu Succession Act (hereinafter referred to as the Act) had no application to her case which was covered by sub-sec. (2) of that section and that the sale by her in favour of defendant No. 2 was null and void. Bai Vajia contested the suit and contended that the sale was good in view of the provisions of sub-sec. (1) above-mentioned which enlarged her limited ownership into full and absolute ownership and that sub-sec. (2) aforesaid did not cover her case. The suit was decreed by the trial court and Bai Vajia remained unsuccessful in the appeal which she instituted in the Court of the District Judge, Bulsar. A second appeal was filed by her before the High Court of Gujarat and during the pendency thereof she expired when one Dhirubhai Dayalji Desai was substituted for her as her sole heir and legal representative. The appeal came up for hearing before a learned single Judge of the High Court who by his judgment dated 5th Nov., 1976 dismissed it holding that the decree passed in Civil Suit No. 403 of 1908 did not recognise any "pre-existing" right of Bai Vajia in the property in dispute. In coming to this conclusion, the learned Judge followed Naraini Devi v. Smt. Ramo Devi, (1976) 3 SCR 55 : (AIR 1976 SC 2198).
(3.) The legal representative of Bai Vajia is the sole appellant in the dapple before us, the respondents thereto being nine of the plaintiffs and Six legal representatives of plaintiff ND. 5 as also the purchaser from Bai Vajia who is arraigned as respondent No. 11.;