TALARI ERAPPA Vs. MUTHYALAPPA

JUDGEMENT

(1.) This appeal arises out of a suit filed by the plaintiff for a decree declaring his title to the suit schedule properties, lor recovery of possession from the defendants, and for recovery of mesne profits from the date of suit till the date of delivery of the suit schedule properties to him. The facts that have given rise to this appeal are briefly thus: The plaintiff is a Hindu governed by the law of Mithakshara. The plaint schedule properties originally belonged to one Sinagarappa, paternal grandfather of the plaintiff and after his death, his sons Peddanna, Hanumanthappa, Karappa, Honnurappa, Vasanthappa (father of the plaintiff) succeeded to the properties and held the same as joint family properties. The plaintiff's father and his brothers lived as members of a joint Hindu family. The other brothers of Vasanthappa died issueless leaving behind them Vasanthappa and the plaintiff as the only surviving coparceners. The plaintiff's father was in possession and enjoyment of the suit schedule properties till his death in 1948 and thereafter the plaintiff succeeded to the properties as the sole surviving coparcener. At that time the plaintiff was s minor and on the date of the suit, he was aged about 20 years. During his minority, the 5th defdt. Narayanappa claiming himself as a de facto guardian of the plaintiff sold all the items of the suit schedule properties to defendants 1 to 4. We are concerned in this appeal only with the sale of item No. 1 in favour of defendant 2 under Ext. D-4 date 1 5-2-1959 after the coming into force of the Hindu Minority and Guardian ship Act, 1956 (hereinafter referred to as the Act) .

(2.) The trial Court decreed the claim of the plaintiff in respect of all the suit items except item No.1. Aggrieved by that decision, the plaintiff preferred R.A. No. 178 of 1965 and defendants .1 and 4 preferred R.A. No.30. of 1965 on the file of the District Judge, Tumkur. The main questions involved in the case were: (i) whether the 5th defendant sold the suit schedule properties to other defendants for legal necessity and benefit of the plaintiff ? (ii) whether the alienations were binding on the plaintiff ? (iii) whether the plaintiff ratified the acts of the 5th defendant, and if so, is he estopped from the bringing the suit.

(3.) On the first question, both the Courts came to the conclusion that the 5th defendant had not sold the properties for legal necessity and benefit of the plaintiff. On the question of ratification, the lower appellate Court disagreeing with the trial Court came to the conclusion that the ratification evidenced by the agreement Ext.D-5 dated 23-7-1961, was vitiated by fraud and undue influence. In the above view, the lower appellate Court dismissed the appeal of defendants 1 and 4 and allowed the appeal of the plaintiff. As against this, defendant 2 has preferred this second appeal.