NINGAPPA ADVIVAPPA DESAI Vs. MADIVALAPPA

JUDGEMENT

(1.) this appeal is preferred against the judgment and decree dated 23-8-1976 passed by the additional civil judge, dharwar in r.a. No. 91/1972. The facts relevant for the disposal of this appeal, briefly stated, are as under:

(2.) plaintiffs filed o.s. No. 230/1969 on the file of munsiff, dharwar praying for a decree against the defendant for declaration that the sale deed dated 29-6-1967 by their father in favour of the defendant in respect of the suit house and the decree obtained by the defendant in o.s. No. 49/1969 against their father are illegal and void and not binding on them and for a perpetual injunction restraining the defendant from executing the said decree in o.s. No. 49/1969.

(3.) the case of the plaintiffs as made out in the plaint can be briefly summarised as follows: the suit property comprising the house and a backyard bearing t.p.c. No. 832 of hebballi village in dharwar taluk is the coparcenary property consisting of plaintiffs and their father and that the plaintiffs have got distinct interest therein. The suit property has been in their possession and that of their mother and grand-mother. The father of the plaintiffs basappa desai was an extravagant man and he was addicted to all vices and so in order to meet out his expenses it appeared that he raised some petty loans by leasing the joint family lands. The joint family lands at that point of time were in the possession of savantrawa, the minor guardian of plaintiffs as she had left interest in the suit properties. Savantrawa filed a suit for injunction against the father of the plaintiffs and defendant and others restraining them from interfering with her enjoyment of the lands. Thereafter, the defendant failing in his attempts to satisfy his debt out of the lands it appears that he made the father of the plaintiffs to execute the sale deed (and a lease deed) dated 29-6-1967 in respect of the suit property. The transaction was fraudulent. The suit house was worth Rs. 3,000/- but the same was sold only for Rs. 2,000/-. Even the amount mentioned in the sale deed was not received in full by the father of plaintiffs. The whereabouts of the father of the plaintiffs were not known to the plaintiffs. The sale was without consideration and was not binding upon the plaintiffs. Sometime before the suit was filed, defendant filed a suit for eviction and arrears of rent against the father of the plaintiffs on the strength of the sale deed referred to earlier in o.s. No. 49/1969 on the file of the munsiff, dharwar. He obtained an ex-parte decree on 15-11-1969. The said decree was not binding upon the plaintiffs. Plaintiffs were not parties to the said suit. Under these circumstances, plaintiffs have filed the suit in question praying for the reliefs referred to earlier.