HUCHU SAB Vs. SAHAJABI

JUDGEMENT

(1.) This appeal by the plaintiffs is directed against the Judgment and decree dt. 28-6-1975 passed by the District Judge, Bijapur, in RA. No. 3 of 1974, on his file allowing the appeal, on setting aside the judgment and decree dt. 13-12-1973 passed by the P1. Civil Judge, Bijapur, in OS. No. 17 of 1971, on his file, decreeing the suit of the plaintiffs as prayed for.

(2.) Plaintiffs instituted a suit for declaration that defendant-1 has only a life interest in the suit lands and that the suit sale is not binding on the plaintiffs after the death of defendant-1 or, in the alternative, for a declaration that defendant-1 is only a 'benamidar ' of the suit lands and that the suit sale is not binding on the plaintiffs' right, title or interest in the suit lands.

(3.) The brief facts which give rise to the suit are these : The plaintiffs and defendants 3 and 4 are brothers. Defendant -2 is their sister. Defendant-1 is the mother of the plaintiffs and the defendants. The father of the plaintiffs had another wife, by name Chandbi from whom he had a son by name Lalsab. Lalsab, even during the life time of his father, took some lands and other properties and relinquished all his rights to succeed to his father. This was in or about the year 1941. It was a partition, of his share, from the rest. The present suit lands are Block No. 613 (Old Sy. No. 547) and Block No. 575 (Old Sy. No.544), both of Mulwad, Tlk. : Basavanabagewadi. These lands were purchased by the deceased father of the plaintiffs and husband of defendant-1 in the name of defendant-1, respectively in the year 1923 and 1940. Though these lands were in the name of defendant-1, it was 'benami' for the family, the real owner being the father of the plaintiffs. Plaintiffs' father also purchased other lands similarly in the name of his wife (defendant-1) - some of which were given to the share of the plaintiffs step brother Lalsab. Even other properties are acquired after Lalsab took away his share, by the family. The father of the plaintiffs expired about 27 (amended as '3') years prior to the institution of the suit in the year 1971. According to the plaintiffs, about three years prior to the institution of the suit, the parties to the suit effected a partition-cum-family arrangement between themselves in which the two suit lands were also put into the hotchpot. In the said partition, the suit lands which were standing in the name of defendant-1 were given to defendant-1 for 'Potgi to be enjoyed till her death and the same were to be divided between the plaintiffs and defendants 3 and 4 after ner death. Defendant-1 was given only lite interest in, the suit lands and she was not the full owner. After the partition-cum-family arrangement a 'Yadi' was also prepared reciting the terms thereof to which defendant-1 was also a consenting party, she having affixed her thumb impression on the same. Thereafter, however, the dispute arose between, plaintiffs on the one hand and the defendants on the other. All the defendants made common cause against the, plaintiffs in order to harass and cause loss to the plaintiffs. In furtherance of that, taking advantage of the fact that the suit lands were standing in the name of defendant-1, she passed a, registered sale deed dt. 20-11-1970 in respect of the suit lands in favour of defendant- 2, her daughter, for an alleged consideration of Rs, 12,000. The said sale deed, according to the plaintiffs, was bogus and colourable. No consideration passed. They further contended "that defendant-1 having been given only a life interest in the suit lands, she had no power or authority to pass such a sale deed in favour of Deft.2 her daughter. The sale deed was void and not binding on the plaintiffs. They alternatively, submitted that if the court were to hold that there was no partition, as stated above, in the year 1965, defendant-1, being a 'benamidar', as stated above, the sale in question was not binding on the plaintiffs and, hence, they instituted the suit on 23-3-1971 before the Prl. Civil Judge, Bijapur, in OS. No. 17 of 1971 with the prayers, as stated above, for a declaration of their title and, alternatively, for possession of their 7/22nd share.