NANJUNDEGOWDA Vs. RANGEGOWDA

JUDGEMENT

(1.) This appeal arises out of a suit for declaration of plaintiff's title in respect of 4 Hems of properties mentioned in the plaint schedule. The plaintiff has succeeded in both the Courts below to the extent that there has been a declaration of his half right to items 1, 2 and 4 as he is the adopted son of the first defendant.

(2.) The short point for consideration in this appeal is whether the sale of item 3 for Rs. 450/under Exhibit IV on 5-5-35 by the first defendant is binding on his adopted son, the-plaintiff. The sale-deed was executed for a consideration of Rs. 450/- as already stated, out of which a sum of Rs. 48/- was paid in cash and, the balance was utilised for discharging the debt due under Ext. I. Ext. I is a hypothecation-deed executed by the first defendant himself for clearing a debt due under the original of Ext. V executed on 5-4-22. According to the recital in Ext. V, the debt was contracted for the expenses of taking the plaintiff in adoption and for purposes of buying bullocks, and that it is to discharge such a debt that the debt under Ext. I was contracted has been sworn to by Khivananjegowda, D. W. 1. Considering that there are recitals in the old document to support the evidence there is hardly any doubt that the debt due under Ext. V was contracted for legal necessity. It need hardly be said that the debt due under Ext. I must also be construed as having been contracted for legal necessity and it may be stated also that the plaintiff has attested that document. It cannot however be said that while there is absolutely no doubt that the 3rd item was sold for discharging a debt due by the family, there is any evidence to any pressing necessity to sell the property or any evidence of "the plaintiff having consented to the alienation by sale. As is clear by the Full Bench decision of this Court in - 'Thammayya v. Ramalingam', 54 Mys H. C. R. 571 (A) unless the adult co-parcener gives consent to the alienation expressly or impliedly he cannot be bound by the alienation.

(3.) The right which a member of joint family gets by birth cannot be defeated except by his consent express or implied to an alienation made by the manager of the family. Legal necessity is a substitute for such a consent only when on account of minority or other reason the co-parcener is unable to give such a consent as stated by Mitakshara. An alienation by the manager of a joint family for legal necessity without the express or implied consent of adult coparceners does not affect their rights. As regards the reasons see--'54 Mys. H. C. R. 371' (A). In this case there is nothing to show that the plaintiff gave his consent expressly or impliedly to the alienation of item 3 by sale and it cannot be binding on him. At the same time, he cannot get possession of half the property unless he deposits half the consideration passed under Ext. IV. In the result, the appeal is allowed, the judgments and decrees of the lower Courts against the plaintiff are set aside and in addition to the decree passed by the lower Courts in his favour, there will be a decree for partition of item 3 of the plaint schedule property in case he deposits in Court the sum of Rs. 225/-within six months from this date. Otherwise, the judgments and decrees of the lower Courts will stand and the appeal will be deemed to have been dismissed. Mesne profits will be allowed in respect of Item 3 only from the date on which the sum of Rs. 225/- will be deposited and this will be enquired into on an application under Order 20, Rule 12, C. P. C. In the circumstances of the case, the parties will bear their own costs.