Decided on September 05,1960



N.M.MIABHOY - (1.)In this appeal the main question which requires to be decided is whether the two plaintiffs-appellants are or are not entitled to challenge certain transactions entered into by Sada defendant No. 1 according to the Baroda Hindu Code. The present suit was instituted by plaintiffs for a declaration that the transactions entered into by Sada were null and void against there interest and not binding on them. The impugned transactions are a compromise entered into on 11-11-1952 between Sada defendant No. 1 on the one hand and Gujarat defendant No. 2 and Sharda defendant No. 3 on the other gift made by Sada on 13-6-1953 in favour of defendant No. 4 and a sale made on 20-6-1953 in favour of defendant No. 5. The Trial Court has dismissed the suit from which this appeal arises on the ground that plaintiffs were not the next reversioners of their father Nathabhai Trikambhai or the next reversioners of their Brother Punjabhai Nathabhai and that as such according to the Baroda Hindu Code they were not entitled to bring the present suit for challenging the transactions effected by Bai Sada.
(2.)The suit was dismissed on a preliminary ground without taking any evidence in the matter. Therefore the question which requires to be decided in this appeal will have to be decided on the basis that the allegations made in the plaint are true.
(3.)The fact on the basis of which the point requires to be decided may shortly be stated as follows:--
One Nathabhai Trikambhai and his son Punjabhai constituted a joint Hindu family. Nathabhai had two wives named Ratu and Sada who is defendant No. 1 Ratu predeceased Nathabhai and by Ratu Nathabhai had two daughters Dahi and Son who are plaintiffs in the suit. By Sada Natha bhai had a son named Punjabhai. Nathabhai died on 3-7-1924 leaving behind him surviving Sada Punja and Dahi and Son. Plaintiffs admit that on as such he became the owner of the joint family properties. Punjabhai also died on 19-12-1942. Plaintiffs allege that by Gajara defendant No. 2 Punjabhai had a daughter named Sharda defendant No. 3. But they allege that Sharda was not the legitimated daughter of Punjabhai. They allege this on the ground that there was no valid marriage between Punjabhai and Gajara. Therefore according to plaintiffs on the death of Punjabhai his properties did not devolve on Gajara and Sharda is not his next reversioner. According to plaintiffs on the death of Punjabhai the properties in suit devolved on Sada defendant No. 1 as the mother of Punjabhai. It appears that in 1950 Sada filed a Special Civil Suit No. 126 of 1950 against Gajara and Sharda for recovering possession of the properties owned by Punjabhai. In that suit a compromise was made between the parties and under the compromise Sada got some of the properties held by Punja. The compromise is one of the transactions which the plaintiffs are challenging in this suit as not binding on them. It also appears that after the compromise was made Sada made a gift in favour of defendant No. 4 on 13-6-1953 of some of the properties which she got under the compromise and by a deed about a week thereafter she sold to defendant No. 1 the rest of the properties acquired under the compromise. These are the other two transactions which the plaintiffs challenge in the suit.


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