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TMI Blog1966 (10) TMI 159X X X X Extracts X X X X X X X X Extracts X X X X ..... id properties to Lalji Jetha and Kanji Jetha, the sons of said Jetha Roopchand, for ₹ 3,400. The said Lalji and Kanji both died and the appellants and respondents 3(1) to 3(9) are the heirs and legal representatives of the said Lalji and Kanji respectively. On October. 1, 1930, respondents 1 and 2 filed a suit being suit No. 263 of Samwat Year 1987 (1931 A.D.) for specific performance of the said agreement dated August 25, 1930 against the said mortgagors and the said Kanji, being defendant No. 5 therein. Lalji, however, was not made a party defendant. Respondents 1 and 2 alleged in the suit inter alia that as Kanji was anxious to purchase the said shops, he, in collusion with the said mortgagors and with mala fide intention, sought to purchase the said properties for a sum higher than the one agreed to by them and got the mortgagors to commit breach of the said agreement in order to deprive them of the benefit of the said agreement. The plaint contained a prayer for specific performance against the mortgagees being defendants 1 to 4 and for a decree against Kanji to hand over possession of the said shops on respondents 1 and 2 paying off the amount due under the said mortgag ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... atement supporting Lalji in regard to his having transferred to him his right, title and interest in the said shops. The Trial Court held that as Lalji was not a party to the former suit the said decree was not binding on him, that on the passing of the said sale deed Kanji and Lalji claimed their possession as owners, that their possession was adverse, that the said decree did not affect Lalji's title, ripened as a result of adverse possession, that the present suit ought to have been filed before 1942 and there. fore a preliminary decree for redemption could only be passed against Kanji. On this footing, the Trial Court dismissed the suit against Lalji. This decree meant that the Trial Court did not accept the contention of Kanji and Lalji that the former had parted with his right, title and interest in favour of Lalji as alleged by them. Respondents 1 and 2 filed Appeal No. 104 of 1951 in the District Court, Jamnagar. Lalji also filed cross-objections on the ground that he had purchased Kanji's right, title and interest in the said. properties before the decree was passed in the former suit and therefore the decree being only against Kanji it was not binding upon him. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... o accentuate the adverse character of such possession. Aggrieved by the said judgment and decree respondents 1 and 2 filed a Letters Patent Appeal. By the time the said appeal came up for hearing the State of Saurashtra had merged in the State of Bombay under the States Reorganization Act and the appeal was heard by a Division Bench of the High Court of Bombay at Rajkot. The Division Bench allowed the appeal, reversed the judgment and decree passed by the learned Single Judge and restored the judgment and decree passed by the District Judge. The Division Bench took into account the fact of a deed of conveyance dated April 29, 1947 having been executed through the court in pursuance of the said decree for specific performance by the mortgagors. and signed by Kanji as an attesting witness. On the strength of this deed the Division Bench held that Kanji and Lalji held the said shops in their capacity as mortgagees only, as the said shops were now conveyed to respondents 1 and 2. But the Division Bench also held that even before the execution of the said deed dated April 29, 1947 Kanji and Lalji were not in adverse possession since their possession could never amount to adverse poss ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... him had since been in possession. In 1904, in a suit to which the first respondent had been joined as a party at his own request, a decree was passed declaring the validity of the said trust but no steps had been taken in consequence of that decree prior to the instant suit. The Privy Council observed that though the real argument in favour of the appellant was that in the presence of the purchaser it was declared that the said trust was valid and that the said property was trust property the contention that the said declaration operated as res judicata against the respondents and prevented them from asserting that the property was theirs was not tenable: At the moment when it was passed the possession of the purchaser was adverse, and the declaration that the property had been made subject to a trust disposition, and therefore ought not to have been seized, did not disturb or affect the quality of his possession, it merely emphasised the fact that it was adverse. No further step was taken in consequence of that declaration until the present proceedings were instituted, when it was too late. This decision was followed in Dagadabhai v. Sakharam(A.I.R. 1948 Bom. 149.) where ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the contract creates an obligation which is recognised by section 3 of the Specific Relief Act, 1877 and section 91 of the Indian Trusts Act, 1882. Section 3 of the Specific Relief Act defines an obligation as including every duty enforceable by law and a trustee as including every person holding expressly, by implication or constructively a fiduciary character. Illustration (g) to that section reads as follows : A buys certain land from B, with notice that B has already contracted to buy it. A is a trustee, within the meaning of this Act for B, of the land so bought. This principle is embodied in section 91 of the Indian Trusts Act which lays down that where a person acquires property with notice that another person has entered into an existing contract affecting that property, of which specific performance could be enforced, the former must hold the property for the benefit of the latter to the extent necessary to give effect to the contract. In Lala Durga Prasad Anr., v. Lala Deep Chand Ors.( [1954] S. C.R. 360.)- this Court after considering these provisions observed that in spite of the existence of a previous contract of sale, a sale to a subsequent purch ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... had acquired and Kanji and Lalji being in a fiduciary position, their possession was not adverse as against respondents 1 and 2. Therefore their suit for redemption cannot be said to be barred even though the statutory period had expired. We thus arrive at the same result which the High Court reached though on different reasons. The contention of Mr. Sarjooprasad, however, was that the said decree for specific performance cannot effect the adverse nature of possession of Kanji and Lalji as even when respondents 1 and 2 obtained the deed of sale from the court in April 1947 Kanji was not made one of the conveying parties but was made an attesting witness. As pointed out in Lala Durga Prasad's([1944] S.C.R. 360.) case the logical course is to provide in such a decree that both the vendors and the subsequent purchaser should join in the deed of conveyance. The decree for specific performance did in fact provide that all the defendants in that suit that is, including Kanji should sign the deed of conveyance. But it appears that through some misconception Kanji was not made to join in that conveyance and was only made to attest that document. But that would not, in our view, mak ..... X X X X Extracts X X X X X X X X Extracts X X X X
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