(1.) Defendant 2, who is the appellant in this second appeal, is the wife of defendant 1, and defendants 3, 4 and 5 are her brothers. The plaintiff brought a suit against all the defendants for recovery of possession of three items of the plaint schedule property and for mesne profit's claiming that he had purchased those items under two registered sale deeds dated 6-3-45 and 13-7-45 from defendant 1 and that by those purchases he could claim priority over a charge for maintenance which had been created in a maintenance suit which defendant 2 had filed against her husband. The suit was dismissed by the Munsiff and on appeal has been decreed as prayed for except for mesne profits.
(2.) So far as item 1 of the plaint schedule property is concerned, its sale in favour of the plaintiff was on 6-3-45 and that was before defendant 2 filed her in 'forma pauperis' suit :n Misc. 159 of 44-45 on 18-5-45, as well as the attachment which was also before these miscellaneous proceedings i.e. on 7-7-45 as per Ext. V. The ground on which the learned Munsiff found against the plaintiff even as regards that sale deed was that defendant 1 had purported to sell the same in favour of one Nanjappa by an earlier 'sale deed. It is not now seriously disputed that the item sold to Nanjappa was not item 1 but some other property as found by the learned Subordinate Judge and moreover defendant 2 did not plead that Nanjappa was the owner of the suit properties. Nanjappa was not examined and defendant 2 has let in no evidence that he had any substantial right, title and interest in item 1.
(3.) As regards items 2 and 3 the matter is not so simple. Those items were conveyed by defendant 1 in favour of the plaintiff under Ext. F on 13-7-45 for Rs. 1,000/-. The sale was in pursuance of a prior agreement of sale Ext. D dated 15-5-45 entered into by defendant 1 in favour of the plaintiff. Under that agreement defendant 1 agreed to sell those two items to plaintiff for Rs. 1,000/- in order to pay off one Junjappa a!ias Puttaswamiah, the. holder of an earlier mortgage decree against defendant 1 in O. S. No. 108/37-38. After receiving that amount, the decree-holder in that suit filed a memo on 15-5-1845 reporting receipt of the full decree amount with solatium; and full satisfaction was accordingly entered against that decree and the court sale was cancelled. Earlier defendant 1 had paid in court Rs. 200/- towards the same decree on 6-3-45 and secured postponement of the sale which was to be held in execution of that decree. This sum of Rs. 200/was obviously the amount raised by the sale of item 1 under Ext. B. It cannot, therefore, be urged that the sale under Ext. F was in any way not bona fide or supported by consideration. It was clearly made with a view to save not merely items 1 to 3 but several other properties which had been mortgaged by defendant 1 in favour of Junjappa and in respect of which he had filed a suit O.S. 108/37/38. He had taken out execution earlier in Exn. 564 of 41-42 and had subsequently filed Exn. 496 of 43-44, on 19-6-44 and applied for sale of the mortgaged properties. On 6-3-45 defendant 1 had paid Rs. 200/- as already noticed and got the sale adjourned to 27-3-45; on 27-3-45, he offered a sum of Rs. 80/- towards the decree and prayed for further time. The Court rejected his application and directed the sale to proceed on 31-3-45. On 31-3-45, the sale was held and the decree-holder purchased all the items of mortgaged properties for the decree amount with the permission of the Court. By the deposit of the decree amount and solatium, and the cancellation of the sale, items other than items 1 to 3 also wore saved for defendant 1 and the plaintiff has been able to secure a charge on those items.