SA/148/1992 1/7 JUDGMENT IN THE HIGH COURT OF GUJARAT AT AHMEDABAD SECOND APPEAL No. 148 of 1992 For Approval and Signature: HONOURABLE MR.JUSTICE R.S.GARG ========================================================= 1 Whether Reporters of Local Papers may be allowed to see the judgment ? 2 To be referred to the Reporter or not ? 3 Whether their Lordships wish to see the fair copy of the judgment ? 4 Whether this case involves a substantial question of law as to the interpretation of the constitution of India, 1950 or any order made thereunder ? 5 Whether it is to be circulated to the civil judge ? ========================================================= JAYANTILAL G CHAUHAN - Appellant(s) Versus AMINA WD/O.ALIBHAI OSMANBHAI & 13 - Defendant(s) ========================================================= Appearance : MR MEHUL S SHAH for MR SURESH M SHAH for Appellant None for the Respondents though RULE IS SERVED ========================================================= CORAM : HONOURABLE MR.JUSTICE R.S.GARG Date : 19/03/2007 ORAL JUDGMENT 1. Shri Mehul S. Shah, learned counsel for the appellants. None for the respondents though served. SA/148/1992 2/7 JUDGMENT 2. The appeal has been admitted for hearing the parties on the following substantial questions of law:- [1] Whether the plaintiff no.1 can institute suit as guardian of the plaintiffs no. 2 to 8 despite the fact that their natural guardian is the defendant no.1? [2] Whether the sale of suit property by sale deed, exh.88 is binding to the plaintiffs nos. 2 to 8? [3] Whether defendant no.2 is a bonafide purchaser for value without notice of right of plaintiffs from the ostensible owner, the defendant no.1? [4] Whether decree of declaration passed by the lower court is legal and valid? [5] Whether the suit as it is framed is maintainable without further relief of possession or partition? 3. The plaintiffs said to be minors 7 in number, filed the suit through one Bai Amina, widow of SA/148/1992 3/7 JUDGMENT Alibhai Osmanbhai. Sultanali Kamalali, both sons of Alibhai also joined the suit on the ground that sale of land in dispute does not bind them or adversely affect their right in the property. The suit was filed against Bai Rambhiabai, widow of Dawood, who happened to be mother of 7 minor plaintiffs, and against Jayantilal Jagibhai Chauhan, who had purchased the property from Bai Rambhiya. The defendants raised many pleadings including the plea that the suit for declaration simplicitor was not maintainable unless a prayer for possession was made. The suit was contested on the merits also, however, at the time of framing of the issues, the defendant no.2 did not remind the court that the issue relating to maintainability of the suit on the ground that suit for declaration simplicitor was not maintainable, was not framed. The parties were happy and content with the issues already raised. The trial court proceeded with the suit, evidence of the parties was recorded and ultimately the suit was dismissed by the trial court. An appeal came to be filed by all the SA/148/1992 4/7 JUDGMENT plaintiffs. The appellate court, after hearing the parties, vide its judgment held that Bai Amina, widow of Alibhai, and Sultanali, Kamalali, both sons of Alibhai had no rights in the property and the property exclusively belonged to Dawoodbhai, son of Usmanbhai and could be succeeded only by defendant no.1 and the minor children. It is to be noted that before the first appellate court, question relating to maintainability of the suit on the ground that it was a suit for declaration simplicitor was not raised. 4. Shri Mehul S. Shah, learned counsel for the appellant has pressed into service two questions only; [i] Whether defendant no.2 [appellant] being a bonafide purchaser for value without notice of right of any plaintiff from the ostensible owner would not suffer any defect in title? [ii] Whether the suit as framed was maintainable unless a decree for possession or partition was sought? 5. So far as the first question is concerned, this SA/148/1992 5/7 JUDGMENT Court must immediately hold against the interest of the appellant. Once any purchaser makes an inquiry into the rights of a party to sell the property, then, that inquiry shows his bonafides, but would not obliterate right of a person who has some right in the property. If the widow of Dawood sold property showing herself to be an absolute owner, right of minors who could succeed to the property left by the deceased Dawood cannot be put in jeopardy. Minors, certainly had full rights in the property and the mother, contrary to the interest of those minors could not sell the property in favour of the appellant [defendant no.2]. Under the law, a minor, within three years of attaining majority can file the suit or somebody in the name of the minor challenging the action of the natural guardian or next friend can always file the suit and any court on satisfaction that the guardian acted in an illegal manner can always allow the suit to continue. In the present matter, the suit was filed in the year 1975, more than 32 years have SA/148/1992 6/7 JUDGMENT passed, but none of the plaintiff had come before the Court to declare that the guardian was unjustified in filing the suit on their behalf. So far as the other question is concerned, the question would be that if a particular party raises particular plea, but does not press it before the trial court at the time of framing of the issue or before the appellate court at the time of the arguments, then, could such party be allowed to raise a question at the second appellate stage. True it is that pure question of law going to the very root of the matter can be raised at the second appellate stage, but present is a case where question was raised, party did not pursue it and at the appellate stage the issue was abandoned. If the defendant, knowing well the legal position, abandoned the plea raised by him, then, at the second appellate stage, he cannot be allowed to say that the question raised by the defendant being pure question of law should be taken up for consideration. 6. It is also to be seen that present is a case SA/148/1992 7/7 JUDGMENT where the plaintiffs had prayed for a declaration that the sale deed does not affect their right, title or interest. The appellate court had granted the decree that the sale deed so far as it relates to property of Rambhiya is concerned, shall bind her and sale deed executed by Bai Rambhiya would not adversely affect the rights of the other plaintiffs. In case like that, consequential relief of possession is not required to be claimed, because, by sale of property, Bai Rambhiya could make the present appellant co-owner only. 7. I find no reason to interfere, the appeal deserves to and is accordingly dismissed. No costs. Interim relief, if any, is vacated. [R.S. GARG, J.] pirzada/-