CHANBASAYYA DEVAGAPPA YALIGAR AND Vs. BASAYYA

JUDGEMENT

(1.) This Second Appeal arises out ot L. C. Suit No. 27 of 1953 on the file of the Civil Judge, Junior Division, Haveri, The present first respondent had filed that suit for partition and possession of his half share in the suit schedule properties. The plaintiff had claimed that he was the adopted son of one Gurushiddayya who had died in the year 1919. He had alleged that Jam-bawa (defendant No. 6) the widow of Gurushiddayya had taken him in adoption on 20th of October 1950. Defendant No. 1 was the grandson ot Gurushiddayya's brother Charantayya., Defendant 1's father and grandfather were both dead. Defendants 2 and 3 were the sons of the first defendant. Under the sale deed Ex. 82 dated 16-12-1948, defendant 1 had sold one of the suit lands to defendant 4 for Rs. 1800/-: under the sale deed Ex. 81, dated 17-12-1948, defendant 1 had alienated some of the suit properties, namely, S. No. 567 and three plots in S. No. 568 in favour of defendant No. 5 for a sum of Rs. 1300/-. The alienees, namely the defendants 4 and 5 had denied the alleged adoption; they had pleaded that the alienations in their favour were justified by legal necessity and were for the benefit of the family; they had also pleaded that they had effected vast improvements. The trial Court held that the adoption of the plaintiff had been proved; it held that the alienations in favour of defendants 4 and 5 were not for legal necessity and that they were not for the benefit of the family; it also negatived the contention of the defendants 4 and 5 that they had effected vast improvements; consequently, the trial Court passed a decree in favour of the plaintiff for partition and possession of his half share in the suit schedule properties. Defendants 4 and 5 appealed to the District Judge of Dharwar. The learned District Judge confirmed the decree of the trial Court and dismissed the appeal by the defendants 4 and 5. It is against these decisions, that the defendants 4 and 5 have now come up in Second Appeal.

(2.) The appellants are concluded by the concurrent findings of the Courts below, on the questions of fact, namely that the plaintiff is the adopted son of Gurushiddayya and that defendants 4 and 5 have not proved the improvements alleged by them. Sri Datar the learned Advocate for the appellants has urged only the following points :

(3.) So far as the first point is concerned, it may be stated at once that there does not appear to be any substance in it. According to the recitals -in the sale deeds Exs. 81 and 82, the reasons for the sale of these properties were that as these lands were situated at some distance from the village, it was difficult to manage them properly, that they were not yielding any income and that the defendant No. 1 was put to the necessity of paying the assessment of the lands from out of his own pocket. As pointed out by the learned District Judge, these reasons cannot constitute either legal necessity or benefit to the family. The first defendant appears to be a fairly young man and the difficulty involved in his attending to the cultivation of these lands which were at some small distance from the village, would not be a sufficient excuse for the sale of the family lands; nor could the fact that he had to pay kandayam for these lands, justify the alienation of the same; when he neglected the cultivation of these lands, he could not expect a proper income therefrom. None of these circumstances, either singly or cumulatively, would constitute either legal necessity or benefit to the family, MO as to justify the alienations. Therefore, the alienees in the present case, cannot successfully resist the plaintiff's claim on the ground that the alienations were either for legal necessity or for family benefit