SUBHASH MAHADEVASA HABIB Vs. NEMASA AMBASA DHARMDAS

JUDGEMENT

(1.) The first of the Civil Appeals challenges the decree of the High Court of Karnakata in R.S.A. Nos. 472 and 435 of 1998, both arising out of O.S. No. 67 of 1975. The second challenges the decree in R.S.A. No. 865 of 2000, arising out of O.S. No. 800 of 1992. Both the suits were for redemption and the decrees passed therein are questioned in these appeals by the common plaintiff in them.

(2.) Three items of properties situated in Hubli City in the State of Karnataka are the subject matters of these two suits. Whereas in the first suit O.S. No. 67 of 1975, we are concerned with C.T.S. No. 1015/A/20 having an extent of 29.38 square yards, in O.S. No. 800 of 1992 we are concerned with C.T.S. No. 1015/A/19 having an extent of 14.7 square yards and 1028/2A having an extent of 75 square yards. As seen recited in a deed of partition dated 14.2.1961 entered into by three brothers belonging to a Hindu Mitakshara Family, the said items along with other items belonged to their joint family. But there is considerable dispute about the antecedents of the properties or the title to the properties. In that partition, the above items were allotted to Chandappa Balappa Sangam, original defendant No. 2, in these suits. He along with his two minor sons who are defendant Nos. 3 and 4 executed a mortgage in respect of all the three items on 12.8.1963 in favour of Dharmadas, defendant No.1 in the suit. This was followed by a deed of further charge dated 28.8.1963. Subsequently, on 10.6.1964, defendant No. 2 acting for himself and as the guardian of his minor sons, defendant Nos. 3 and 4, executed a simple mortgage in respect of the properties to one Hemadi, a moneylender. The document recites that a sum of Rs. 2500/- was taken as a loan for his trade. It may be noted that the deed of partition recites that the family was conducting a joint trade in firewood. On 15.10.1970, defendant No. 2, on his own, sold the properties, rather, the equity of redemption, to Habib, the plaintiff in these suits for redemption. The sale deed recites that the properties were outstanding on three mortgages and the sale was being effected for family necessity and to pay off debts and to create capital for business. The best price had been offered by the purchaser. It purports to convey the entire rights in the property. It also contains an assertion that the seller, defendant No. 2, was the absolute owner of the properties, having a marketable title. The mortgage to defendant No. 1 and further charge are referred to as encumbrances on the properties.

(3.) It is seen that the wife and sons of defendant No.2 filed O.S. No. 61 of 1971 arraying Habib, the assignee from defendant No.2, and defendant No.2 as defendants, for a declaration that the sale deed executed by defendant No.2 in favour of Habib was bogus and not binding on the plaintiffs or in the alternative, for a declaration that the sale did not affect their shares in the properties and was not binding on their shares and for a decree for permanent injunction restraining Habib from taking possession of the suit properties.