LexSONI LALJI JETHA & ORS. versus SONI KALIDAS DEVCHAND & ORS.
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SONI LAI.JI JE11IA & ORS.
v.
SONI KALIDAS DEVCHAND & ORS.
October 14, 1966
[K. SUBBA RAO, C. J., R. S. BACHAWAT AND
J. M. SHEI..AT, JJ.]
Adverse possession-Agreement to sell mortgaged propertie.f--Subse-
quent sale 'IC mortgagee in possession-Possession of · mortgagee, if ad-
verse-Trusts Act (2 of 1882), s. 91-Transfer of Property Act {4 o/
1882), s. 40, para 2.
The karta of a joint Hindu family executed in 1907 a deed of mortgage
with poss=ion in respect of certain family properties.
After the death
of the karta, the coparceners, by an agreement of sale in 1930 agreed to
sell, subject to the mortgage, the properties to respondents 1 and 2. Later,
the coparceners, by a registered ~ale deed, sold the properties to L and
K, sons of the original mortgagee.
Respondents 1 and 2 filed a suit for
specific performance of the earlier agreement. The suit was decreed. In
die sale deed obtained from the Court, in pursuance of the decree, K was
not made one of the conveying parties, but was made an attesting witness.
In 1947, respondents 1 and 2 filed a suit for redemption and possession
against L and K.
L contendca, inter a/ia, that as a result of the later sale
deed, he and K became absolute owners and the right of redemption by
the mortgagors and those claiming through them became extinguished; that
his J>OSSe&Sion, being to the knowledge of respondents 1 and 2, was adverse
against them and therefore the suit was barred by limitation; and that
the-decree for specific performance could not affect the adverse nature of
the possession of K. and L as K was not one of the conveying parties but
only an attesting witness. In· appeal by L, this Court,
HELD : In spite of the existence of a previous contract of sale, a sale
to a subsequent purchaser even with notice is not void, but voidable at
the instance of the party agreeing to purchase under a previous contract
and except for the obligation arising from s. 91 of the Trust Act and para-
graph 2 ofs. 40 of the Transfer of Property Act, the title to the property
would pass from the vendor to the subsequent transferee.
[879 0-HJ
The sale in favour of K and L was not void but voidable at the
instance of respondents 1 and 2 by reason of their earlier contract and
though as between the mortgagors and K and L the sale was valid and
binding. it was subject to the right of specific performance which respon.:
dents 1 and 2 had acquired and K and L being in a fiduciary position, their
possession was not adverse as against respondents 1 and 2.
'Therefore
the suit for redemption was not barred even though the statutory period
had expired. [880 E-F]
Further, being an attesting witness, K, both for himself and on behalf
of L, was made fully aware that the· sale deed conveying the title of the
property was being passed in favour .of respondents 1 and 2 and that the
only right in them was to receive the mortgage amount and no more.
[881 B-C]
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· La/tJ·Durga Prasad''· La/tJ Deep Chand, [1954) S.C.R, 360, relied on.
Gafur v. Bhukajir Govind, I.LR. 21) Bom. 159, Sathiraju v. Venkenna
A.I.R. 1935 Mad. 333 and Appa Rao v. Keerana, A.I.R. 1953 Mad. 409,
approved.
"Ml7Sup. court/66-11
874
SUPRBMB COUllT llBPOllTS
(1967] I S.C.t..
CIVIL APPELLATE JURISDICTION : Civil Appeal No. 727 of
1964.
Appeal by special leave from the judgment and decree dated
December 9, 1957, of the Bombay High Court in Civil Appeal No.
2 of 1956.
A
Sarjoo Prasad and D. N.
Mukherjee, for the appellants.
B
J. A. Baxi, A. Rehman and K. L. Hat/U, for respondents Nos. 1
and 2.
The Judgment of the Court was delivered by
Sbclat, J. One Soni Virji Sundarji for himself and on behalf
of the Hindu joint family of which he was the Karta executed a
deed of mortgage dated December 11, 1907 in respect of two shops
in Jamnagar in favour of Jetha Roopchand. to secure repayment
of Rs. 800 advanced to the said family. The said mortgage was
with possession and was redeemable in 8 years. On August 25,
1930 the coparceners of Virji, who had died in the meantime, by
an agreement of sale agreed to sell and respondents I and 2 agreed
to purchase the said two shops together with certain other properties
for Rs. 3,200, subject of course to the said mortgage. In spite of the
said agreement of sale the coparceners of Virji by a registered deed
of sale dated September IO, 1930 sold the said shops and the said
properties to Lalji Jetha and Kanji Jetha, thExcerpt shown. Read the full judgment & AI analysis in Lexace.