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The appeal is allowed, and the decree passed by the lower appellate Court is set aside and that passed by the trial Court on April 24,1964 was restored

Ishita Desai ,
  26 September 2020       Share Bookmark

Court :

Brief :
The appeal is allowed, the decree passed by the lower appellate Court is set aside and that passed by the trial Court on April 24, 1964, is restored. The plaintiffs to pay the costs of defendant No. 1 throughout and bear their own. The rest of the respondents to bear their costs throughout.
Citation :
Appellant: SakharamSheku Shinde Respondant: Shiva DeoraoJamale Citation: (1974) 76 BOMLR 267

THE HINDU MINORITY AND GUARDIANSHIP ACT, 1956 – CASE LAW –SECTION 8 AND SECTION 6 – SAKHARAM SHEKU SHINDE VS. SHIVA DEORAO JAMALE

Bench:

Justice Apte

Issue:

Whether the sale-deed of the property was under fraud and undue influence, and whether the uncle of respondent No. 3 was binding on 1/5th share of the property?

 

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Facts:

• Respondent No. 2 is the wife of respondent No. 3 and respondents Nos. 1, 4 and 5 are their sons. Maruti is the uncle of respondent No. 3. Together, they formed a joint Hindu family.

• On September 30, 1957, respondent No. 3, the father, along with his eldest son Bhimrao, who is respondent No. 4 and his uncle Maruti executed a deed of sale in respect of the property in favour of the appellant. At the time of sale, respondent No. 1 Shiva and respondent No. 5 Hari, both brothers, were minors.

• The minors, along with their mother Prayagbai, respondent No. 2 had said that their consent was not taken, and this sale was a result of fraud and undue influence.

• The plaintiffs has not got the right of 1/5th share each.

• When the case was first filed, defendant No. 1 was the only one who resisted the plaintiffs’ claims. He had also denied that the sale was without consideration. He had said that he had paid full consideration mentioned in the sale-deed and that the sale-deed was executed by the three executants for legal necessity, namely for the maintence of the family and to defray antecedent debts.

• The lower court had upheld this, and so, the appeal ws taken to a higher court, where the contentions are as follows:

Appellant's Contentions:

• It was put forward to the court of law that the sale-deed was not in any way for the purpose of legal necessity.

• It was also contented that the consideration was not taken on their behalf.

• They had relied on the Section 8(2) of the Hindu Minority and Guardianship Act, 1956 which providesthat the natural guardian of a Hindu minor shall not, without the permission of the Court, in any way transfer any part of the immovable property of the minor.

Defendant's Contentions:

• Maruti had stated that he held ½ share in the suit property since he was a party to the sale-deed.

• It was further also stated as in the provisions of the Prevention of Fragmentation and Consolidation of Holdings Act, this case cannot be filed.

Judgements:

The appeal is allowed, the decree passed by the lower appellate Court is set aside and that passed by the trial Court on April 24, 1964, is restored. The plaintiffs to pay the costs of defendant No. 1 throughout and bear their own. The rest of the respondents to bear their costs throughout.

 
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Published in Constitutional Law
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