R.K.ABICHANDANI - (1.)This appeal is filed by the original plaintiff against the judgment and decree passed by the learned Civil Judge (Senior Division), Navsari on 6th August, 1980 in Special Civil Suit No. 113 of 1977, dismissing the suit in which the appellant had sought a declaration that the registered sale deeds dated 14th August, 1973 and 27th November, 1973 made in favour of the respondent-original defendant, were void ab initio, being without consideration and not intended to be acted upon, and seeking possession of the properties in question which were agricultural lands.
(2.)As per the averments made in the plaint, the appellant was the owner of the lands bearing survey nos. 358, 359, 389, 223, 349, 240 and 294, situated at village Manekpor of District:Navsari. The plaintiff had inherited the lands under a registered Will dated 22nd December, 1971, which was executed by his elder brother Nathubhai. The plaintiff had entrusted the management of these lands to the defendant who was "Sadhubhai" (husband of wife's sister) of the plaintiff's nephew Thakorbhai alias Paragji Kikabhai Nayak. According to the plaintiff, he had earlier executed a power of attorney in favour of the defendant to enable him to manage the lands and keep proper accounts in respect of the yield, because, the plaintiff had implicit faith in the defendant. In para-5 of the plaint, it was contended that in July, 1973, the defendant had written a letter to the plaintiff, stating that the government was likely to tighten the laws by imposing ceiling on the land holdings, and that it would be prudent if the said lands which stood in the plaintiff's name were transferred to the name of the defendant, without intending to transfer the ownership, under a sale deed. The defendant had suggested that, for this purpose, a power of attorney may be executed by the plaintiff in the name of Thakorbhai Gopalji Desai, who was maternal uncle of the two sisters who were the wives of the defendant and Thakorbhai alias Paragji Kikabhai Nayak. The defendant had forwarded a draft of the power of attorney to England where the plaintiff ordinarily resided, and because the plaintiff had implicit faith in the defendant, he followed his instructions and executed the power of attorney in terms of the draft which was sent to him by the defendant. The defendant thereafter got executed two sale deeds dated 14.8.'73 and 27.11.'73 in his favour through the said power of attorney holder Shri Thakorbhai Gopalji Desai. Thus, the sale deeds were executed in favour of the defendant because of the plaintiff's implicit trust in him, and as per the advice and suggestion of the defendant that such a course was necessary to protect the land from the ceiling and other laws. According to the plaintiff, it was understood that the defendant was not to make any ownership claim on the basis of these documents which were nominally made and were sham and bogus, executed without consideration, and were not to be acted upon as per the prior understanding. It was further stated that both these documents were void, because, no amount towards the consideration as mentioned therein of Rs. 24,000/- or Rs. 7,000/- ever passed either in favour of the power of attorney-Thakorbhai Gopalji Desai or in favour of the plaintiff. According to the plaintiff, as per his information, financial condition of the defendant was so weak at that time that he could not have paid these amounts. It was further contended in para-5 of the plaint that, in reality, Thakorbhai Gopalji Desai was not authorised to sell or in any other manner transfer the lands in question to any one under the said power of attorney. On the contrary, there was a specific prohibition against effecting such transfer. Thus, the defendant did not acquire any right over these lands under the two sale deeds. However, the defendant filed a suit in the court of Civil Judge (Junior Division), bearing Civil Suit No. 61 of 1977, illegally asserting therein that he was the sole owner of the lands in question denying the ownership of the plaintiff and when the plaintiff came to know about such effort, he was constrained to file the present suit. In para-6, it was contended that the suit was being filed on the basis of title of the plaintiff for recovery of the property within 12 years, and due to the assertion of rights over the lands by the defendant by filing Civil Suit No. 61 of 1977 and, therefore, the suit was within limitation. In para-7 of the plaint, it was stated that the suit was valued at Rs. 1,08,000/- for the purpose of court fees and jurisdiction, further stating that the land in question was an agricultural land and the suit was valued for the purpose of jurisdiction and advocate's fees on the basis of the market value of the property which was Rs. 1.00 lac.
(3.)In the written statement exh. 29, the defendant asserted that he was the sole owner of the property in question in view of the two registered sale deeds executed in his favour in respect of these lands, and that he was in possession and occupation thereof. In para-4 of the written statement, he admitted that he was earlier managing the properties, but after the sale deeds, he had become the owner thereof. In para-5 of the written statement, it was denied that the defendant had written a letter to the plaintiff, stating that nominal sale deed may be executed in view of the provisions of the Land Ceiling laws. It was stated that the plaintiff wanted to sell his lands, and therefore, the defendant showed a desire to purchase them and the plaintiff had executed the power of attorney in favour of Thakorbhai Gopalji Desai for the purpose of making the sale deeds. It was admitted that he was advising the plaintiff as regards the procedure for effecting such sale, but denied that consideration was not to pass in respect of these two transactions. He has stated that the amounts were paid in cash, as mentioned in the sale deeds, to the power of attorney holder of the plaintiff. The defendant denied the contention that no authority was given under the power of attorney by the plaintiff for the sale or transfer of the lands in question. According to the defendant, the plaintiff had instituted the suit at the instigation of other relatives. It was also contended that the suit was not maintainable, in view of the provisions of Section 31 of the Foreign Exchange Regulation Act, 1973, because, the plaintiff was having British nationality. It was further contended that the suit was barred by limitation.