GOURAWWA Vs. BASAPPA

JUDGEMENT

(1.) THE brief facts leading to this appeal are that the 1st appellant is the legally wedded wife of the 1st respondent and appellants 2 to 5 are their children born from their legal wedlock and they constitute a joint family. It is alleged that misunderstanding arose between the appellants on the one side and the respondent No. 1 on the other and that the 1st respondent is residing and messing separately from the appellants. It is also alleged that the properties more fully described in the schedule of the plaint are the ancestral joint family properties standing in the name of the 1st respondent being the eldest male member of the joint family. Nonetheless, the appellants and the respondent No. 1 are in joint possession of the property. According to the appellants, the respondent No. 1 is addicted to vices and was squandering money for his selfsatisfaction, on his liquor, etc. Recently they came to know that the 1st respondent has sold landed property bearing S. No. 56/1b measuring 4 acres 5 guntas of Giriyal Village in favour of R-2 without any consideration when he was under the influence of liquor and possession was delivered to the R-2. The said sale is not binding on the shares of these appellants. It is also further alleged that the respondent No. 1 has not utilized the sale consideration amount for the benefit of the family and other better purposes and there was no legal necessity to alienate the property without the *regular First Appeal No. 331 of 1998 dated 19th March 2003 consent of the appellants. Therefore, they filed the suit for partition claiming 5/6th share in all the properties referred to in the plaint.

(2.) THE R-1 has remained exparte and he has not filed any written statement. Only the 2nd respondent who is the purchaser of the property filed a detailed written statement contending interalia that the suit is not properly valued; the boundaries were not properly given; the geneology given also is not correct; the schedule properties are the self acquired properties of R-1; as R-1 was in a financial stringency and for the purpose of cultivating the remaining property and liquidating the hand loans, he voluntarily sold the property on 18. 8. 94 transferring the S. No. 56/1b for a valuable consideration of Rs. 60,000/ -. It is also specifically denied that R1 was persuaded when he was under the influence of alcohol to execute the sale deed in favour of this respondent. Therefore, the sale deed dated 18. 8. 94. Executed in favour of the 2nd respondent is valid. It is also learnt that on 27. 7. 94 he executed an agreement of sale in favour of Sri Giriyappa Itagi having accepted an amount of Rs. 65,000/- as advance for the purchase of vehicle bearing No. KA-24/1390. Therefore, he submits that the suit is liable to be dismissed.

(3.) ON the pleadings of the parties, the following issues have been framed: