NEELAKANTH Vs. SIDDALINGAYYA

JUDGEMENT

(1.) THE appeal is filed against the judgment and decree in R. A. No. 91/91 on the file of District Judge, Bijapur arising out of the judgment and decree passed in O. S. No. 109/90 on the file of Principal civil Judge, Bijapur. The appellants are defendants 3 and 4 in the suit. The first respondent is the plaintiff. The respondents 2 and 3 are defendants 1 and 2. The plaintiff is the son of second defendant. The first defendant is the coparcener of the second defendant. The defendants 3 and 4 are purchasers of the suit lands from the first defendant under registered sale deed Ex. P. 17 and P. 18. The plaintiff contends that the property under Ex. D. I was sold by second defendant in favour of first defendant without his knowledge. The plaintiff had reposed full trust in second defendant. The second defendant took the plaintiff to Tahsildars office took his signature under the pretext as a witness to the document without informing the contents. The first defendant was totally dependent on the second defendant and had no capacity to pay huge consideration of a sum of Rs. 36. 000/- and odd towards the purchase of the suit land under ex. D. 1. Therefore, the sale deed executed by first defendant under Ex. D. 9 is only nominal and not acted upon. The plaintiff further claims that the grandfather of defendants 3 and 4 with full knowledge of voidable circumstances purchased the property in the name of minor/defendant No. 3 represented by his father as the guardian and in the name of defendant No. 4, where the grandfather acted as a guardian. Therefore plaintiff contends that the sale deed executed is void and not binding on him, seek a declaration that he is the absolute owner of the suit property. The second defendant has remained absent. The first defendant has not filed any written statement and contested the case. The defendants 3 and 4 are the only contestants. They deny the plaint allegations, contend that the first defendant had full rights to sell the property. The second defendant executed the sale deed in favour of the first defendant to which the plaintiff is a consenting witness, therefore contends that plaintiff is estopped from denying title of the first defendant and cannot assail the sale made in favour of defendants 3 and 4.

(2.) THE trial Court found that defendants 3 and 4 have failed to establish that they are the bona fide transferees u/s. 41 of the transfer of Property Act, held that to the extent of share of the plaintiff the sale made by second defendant in favour of first defendant is not binding and so also the sale by first defendant in favour of defendants 3 and 4 is not binding and granted a decree for partition declaring half share to the plaintiff in the suit property and directed the parties to work out remedy in final decree proceedings. The appellate Court confirmed the judgment and decree and dismissed the appeal of the defendants. The cross-objections filed by the plaintiff is also dismissed. Hence this appeal.

(3.) THE following substantial questions of law are formulated for consideration in this appeal by the admission Judge :