NAGARAJA Vs. JAYALAKSHMAMMA

JUDGEMENT

(1.) THIS appeal is by the plaintiffs against the judgment passed by the learned Civil Judge (Sr. Dn.) & JMFC, Devanahalli, in O.S. No. 1943/2006, on an application filed by the respondents under Order VII Rule 11 of CPC. The trial Court by the judgment dated 17th October 2006, allowed the application rejecting the plant filed by the plaintiffs -appellants herein.

(2.) PLAINTIFFS filed suit in O.S. No. 1943/2006 seeking for a direction to defendant No. 1/respondent No. 1 viz., Jayalakshmamma, to formally convey the suit schedule property to the family of B.M. Anjanappa, consisting of plaintiffs and defendants on the basis of the document dated 8.3.1981 executed by Venkateshappa in favour of B.M. Anjanappa and to declare, the suit schedule property as the property of the joint family of B.M. Anjanappa of which the plaintiffs and the defendants are the members and to effect partition of the suit schedule property by metes and bounds holding that plaintiffs together are entitled for 6/8th share, defendant No. 1 to an extent of 1/8th share and defendant Nos. 2 to 5 together are entitled to an extent of 1/8th share as plaintiffs and defendant No. 1 are the children of B.M. Anjanappa, son of Munishamappa and defendants 2 to 5 are the legal heirs of deceased Krishnappa who was one of the son of late B.M. Anjanappa.

(3.) ACCORDING to the plaintiffs, the joint family consists of themselves, defendant No. 1 and father of defendants 2 to 5 and the property purchased by B.M. Anjanappa was out of the income derived from the joint family properties. It is contended that B.M. Anjanappa started cultivating the said land along with other properties held by joint family. Defendant No. 1 was the eldest member of joint family and she had been given in marriage to Venkateshappa. After marriage Venkateshappa came to the family of B.M. Anjanappa and started looking after the affairs of joint family of B.M. Anjanappa. It is stated that B.M. Anjanappa had incurred some debts and in order to clear the debts and might be due to pressure, he had executed nominal Sale Deed dated 30.4.1970 in respect of 4 acres 3 guntas of land in Survey No. 30 in favour of one Kempaiah S/o. Bachappa of Bagalur Village, for a sum of Rs. 1,000/ -. According to the plaintiffs, Anjanappa might have incurred some debts with Kempaiah and Kempaiah seems to have pressurized Anjanappa to execute a nominal sale deed in his favour as security for the loan advanced by him. It is further stated that, in order to clear the debt incurred with Kempaiah, Anjanappa borrowed some money from Venkateshappa, who was the husband of defendant No. 1 and Venkateshappa while advancing loan to B.M. Anjanappa, seems to have persuaded B.M. Anjanappa to convey the property in his name till the loan is cleared. B.M. Anjanappa budging to the pressure of Venkateshappa might have requested Kempaiah to convey the land bearing Survey No. 30, measuring 4 acres 3 guntas of Bagalur village in favour of Venkateshappa on 21.8.1972. According to the plaintiffs, as per the sale transaction, the said document is only in the form of security for due repayment of the money borrowed by B.M. Anjanappa from Venkateshappa. It is also contended that B.M. Anjanappa in the year 1961 had purchased 2 acres 1 1/2 guntas of land for a sum of Rs. 10,000/ - and that there could not be any reason for Kempaiah to convey the same in favour of Venkateshappa for a sum of Rs. 475/ - in the year 1972, that too, for the whole extent of 4 acres 3 guntas. Under these circumstances, it is stated that the document dated 21.8.1972 is executed only as a security for repayment of the debt incurred by B.M. Anjanappa from Venkateshappa and not an outright sale and as such, the Sale Deed dated 21.8.1972 is only a nominal Sale Deed. It is stated that B.M. Anjanappa after purchasing the property in the name of Venkateshappa, directed Venkateshappa to convey 13 guntas of land in favour of one Raghavendra so as to clear his debts. Accordingly, Venkateshappa on 13.1.1981, conveyed 13 guntas of land in favour of Raghavendra for a sum of Rs. 2,000/ -. After alienation of 13 guntas of land, remaining extent of 3 acres 30 guntas of Survey No. 30 of Bagalur Village, is the subject matter of suit.