VITTALDAS BHAGAVANDAS DARBAR Vs. GURULINGAPPA CHANNAGOWDAPPA PATIL

JUDGEMENT

(1.) In RSA. 285166. the appellants are the legal representatives of the 6th defendant and respondent No. 1 is the plaintiff. Respondents 2 to 6 are the defendants 1 to 5. In RSA.576/66, the appellants are defendants 3 & 4, respondent-1 is the plaintiff and respondent-2 is the second defendant. According to the plaintiffs, the suit lands bearing S. Nos.76 and 80 of Hirebevanur village in Indi Taluk, originally belonged to three brothers, Bheema Rao, Bavan Rao and Ranga Rao, sons of Panduranga Rao. They were living separately and they were enjoying the usufruct of the lands separately. Bheema Rao had incurred a debt on a promissory note with the plaintiff. The plaintiff obtained a decree against him in CS. No.7/30 for recovery of money due on the pronote. On 16-1-30, there was an award decree and it created a charge on the undivided 1/3rd interest of Bheema Rao in the suit lands for the amount due to the plaintiff under the decree. After passing of the award decree, Bheema Rao died. The plaintiff filed the execution darkast No.18/42 against Sahurao, son of Bheema Rao. Sahurao died in about the year 1931-32 and his widow Padmavathi Bai was brought on record. She died in the year 1935 and her daughter Indirabai was brought on record. She also died in 1950, and therefore her husband defendant-1 was brought on record. In the execution proceedings, the 1/3rd interest of Bheema Rao in the suit lands was brought to sale and it was purchased by plaintiff himself on 6-2-1952 for Rs.3,500. He obtained the sale certificate in CS.87/54 and took symbolical possession of the properties in C.No.106/54 on 4-10-54. Defendants 2 to 4 sold the land S.No.76, to deceased father of defendant-5 on 4-7-55, who in turn sold the same to defendant-6 on 5-4-56. Defendants 2 to 4 are in possession of S.No.80. Defendant-6 is in possession of S.No.76. Since the defendants refused to give the plaintiff 1/3rd share in the suit lands, the suit for partition and separate possession of 1/3 share in the two suit lands and for future mesne profits etc., has been filed. Defendants 1 and 5 remained ex parte.

(2.) The contentions of the third defendant which were adopted by defendants 2 and 4 as well are as follows: The suit lands belong to himself and his two deceased brothers. Bheemarao as well as Sahurao died as undivided members of the joint family. After the death of Bheemarao and his son Sahurao, Bheemarao's brothers became the owners of the suit lands by survivorship. Bheemarao's debt with the plaintiff was not for family benefit and the award decree does not bind the other coparceners, that the sale of the interest of deceased Bheemarao in favour of the plaintiff in the execution proceedings does not bind the other coparceners, that the surviving coparceners have not been made parties in Darkast No.l8/42, that the daughter of Bheemarao i.e., Indira Bai was brought on record as the legal representative in that execution proceedings, therefore, the Darkast proceedings and the execution sale do not bind the third defendant and the other surviving coparceners, that Indira Bai was not the legal representative of Bheemarao, that Indira Bai also gave a statement in the darkast, proceedings that she was not the legal representative, but the plaintiff instigated her and her husband and made her to file the statement that she was the legal representative of Bheemarao, that the sale had taken place in collusion, that the sale certificate granted in lavour of the plaintiff is hollow, that there was an encumbrance on S.No.76 and defendants 2 to 4 have discharged the same by selling it to defendants 5 and 6, that even if the sale is binding on defendants 2 to 4, unless the plaintiff pays the amount which the defendants 2 to 4 have paid, the plaintiff cannot recover possession.

(3.) The contentions of defendant-5 are that the sale of S.No.76 in favour of defendant-6 is hollow and that the plaintiff has impieaded her unnecessarily in the suit and mat me suit may be dismissed.