MAHADEVAPPA S/O SIDDAIAH Vs. B RAMEGOWDA

JUDGEMENT

(1.) The 2nd plaintiff having obtained a Judgment and decree dated 19.12.2003 allowing O.S.61/89, aggrieved by the judgment and decree dated 4.7.1995 allowing R.A.No.73/2003 (Old No.138/95), of the Addl. Munsiff, Nagamangala to dismiss the suit has presented this second appeal.

(2.) Facts briefly stated are: the 3rd respondent along with the appellant, jointly, instituted O.S.61/89 arraigning the 1st respondent as 1st defendant, the 2nd respondent as 2nd defendant and respondents 4, 5 and 6 as defendants No.3, 4 and 5, respectively, for a decree of redemption of the usufructuary mortgage under the deed dated 24.9.1981 along with an endorsement of discharge and to deliver possession of the mortgaged property situated in Govindaghatta, Bellur Hobli, Nagamangala taluk, bearing Sy.No.2/3 measuring 0.54 Aeirs; and for mesne profits under Order 20 Rule 12 CPC, in addition to costs. In the plaint it is asserted that the 4th defendant Siddaiah is the father of the 2nd plaintiff and grandfather of 1st plaintiff, a minor and that the suit schedule property at the hands of Siddaiah was a joint family property and being the Manager of the joint family executed a registered usufructuary mortgage deed dated 24.09.1981 in favour of one Narasamma, for a consideration of Rs.3,000/- and put her in possession of the said property. That Narasamma reportedly died leaving behind defendants 1 to 4 as the legal heirs, who continued in possession and enjoyment of the property. At paragraph 5 of the plaint, it is asserted that plaintiffs and the 5th defendant, jointly, divided the suit schedule property in a partition, whence, 14 guntas of land fell to the share of the 1st plaintiff while one acre fell to the share of the 2nd plaintiff, with a condition that the 2nd plaintiff should to redeem the usufructuary mortgage by paying the amounts due therein, following which a palupatti dated 2.2.1988 was executed between the members of the joint family, hence, plaintiffs are the owners of the suit schedule property, entitled to redeem the mortgage. In paragraph 6 it is alleged that the 5th defendant took advantage of the innocence of the plaintiffs, more appropriately the 1st plaintiff - a minor, colluded with the 1st defendant, despite the 2nd plaintiff s notice through his legal counsel on 30.1.1989 calling upon the 1st defendant to receive the principal amount under the mortgage deed and redeem the mortgage, and a petition to the Sub-registrar, Bellur to desist from registering any instrument of transfer/conveyance of the said property.

(3.) The 1st defendant, on notice, entered appearance and opposed the suit by filing a written statement dated 27.6.1990 inter alia denying that the suit schedule property belonged to the joint family, while asserting that it is an after thought of the plaintiffs since the 5th defendant - the absolute owner executed the usufractory mortgage deed of the said property in favour of Narasamma, the mother of the 1st defendant for consideration of Rs.3,000/-. Defendant No.1 admitted the fact that his mother was reportedly dead leaving behind defendants 1 to 4 as her legal representatives, in possession and enjoyment of the suit schedule property, while denying the plaintiffs assertion of a pareekath patti dated 2.2.1988, since the said property is not ancestral, hence no question of partition as between the plaintiffs and the 5th defendant. Plaintiffs not being persons interested, it is asserted cannot maintain the suit for redemption of the mortgage. At paragraph 4 of the written statement, it is asserted that the property belonged to the 5th defendant when mortgaged in favour of the mother of defendants 1 to 4 on 24.9.1981 for a consideration of Rs.3,000/-, the 2nd plaintiff and 5th defendant were not on good terms and were residing separately, while the 5th defendant was leading an independent life, though had two wives by name Sannamma and Gowramma and from out of the wedlock with Sannamma begot two sons by name Shivalingaiah and Shivanna and that Shivalingaiah took in marriage one Rathnamma, who gave birth to two daughters and one son none other than 1st plaintiff. The second wife by name Gowramma, is said to have begotten one son by name Mahadeva i.e. 2nd plaintiff. Shivalingaiah, the eldest son is reported to have died leaving behind Rathnamma and 1st plaintiff. The 2nd plaintiff being the uncle of 1st plaintiff, though Rathnamma, the mother is alive, not being the natural guardian of the 1st plaintiff the suit was not maintainable. At paragraph 5 of the statement of objections, 1st defendant admits the receipt of the legal notice dated 28.1.1989 and contends that the 5th defendant being an old man, for his maintenance and other legal expenses, contracted loans with the 1st defendant and being in dire straits, offered to sell the suit schedule property to the 1st defendant on 10.1.1989. It is said, that on that day there was an oral agreement to sell the property between the 1st defendant and 5th defendant and the mortgage was redeemed for consideration of Rs.3,000/-. It is further stated that in a panchayat the plaintiff and 5th defendant were present whence they assured the 1st defendant that he could purchase the suit property from the 5th defendant, reposing faith in the said assurance purchased the suit schedule property for a valuable consideration of Rs.25,000/- and hence, did not respond to the legal notice dated 28.1.1989. The mortgage whence redeemed as recorded in the acknowledgement on the mortgage deed, it is contended that the suit is not maintainable. In the backdrop of the said assertions it is alleged that the pareekath dated 2.2.1988 was fabricated and a document created to deprive the 1st defendant of the right, title and interest over the suit schedule property.