A CHINDANADA Vs. LALITHA V NAIK

JUDGEMENT

(1.) This second appeal is by the plaintiffs being aggrieved by the judgment and decree passed by the I Additional Sessions Judge, Mangalore in R.A. No. 42 of 1989 in confirming the judgment and decree passed by the Civil Judge and Judicial Magistrate First Class, Puttur in O.S. No. 36 of 1984.

(2.) Plaintiffs filed a suit for cancellation of sale deed dated 27 -2 -1981 executed by defendants 1 and 2 in favour of defendant 3 and for partition of plaint 'B' schedule properties. According to the plaintiffs, they along with defendants 1 and 2 are governed by Hindu School of Mitakshara law. The propositus one Vasudev Naik died in the year 1972 leaving behind plaintiffs 1 and 2 and defendants 1 and 2. Plaintiff 1 is the son and plaintiff 2 is the daughter of Vasudev Naik and defendant 1 is the wife and defendant 2 is the son of Vasudev Naik and their family had certain immovable properties as described in 'B' Schedule. In the year 1962 the suit Schedule 'C' properties were allotted to the branch of plaintiffs' father in the registered partition deed dated 1 -9 -1962 and as such, the 1st plaintiff and the 2nd defendant are each entitled for 5/12th share and 2nd plaintiff and 1st defendant are entitled for l/12th share each in the entire properties on the death of Vasudev Naik. Plaintiff 1 was born on 4 -4 -1963 and plaintiff 2 was born on 29 -9 -1966 and at the time of death of Vasudev Naik both the sons were minors and the 1st defendant who was not aware of the worldly affairs being a innocent villager did not deal with the properties in a prudent manner and the 3rd defendant taking advantage of the same prevailed upon the 1st and 2nd defendants to execute the sale deed of the entire family properties which are morefully described in the 'B' schedule for a meager sum of Rs. 40,000/ - by a registered sale deed dated 27 -2 -1981. As per the said document out of the sale price of Rs. 40,000/ -, a sum of Rs. 20,000/ - was paid by the 3rd defendant to one Madhavan Nair and his wife Sarojini towards the consideration of alleged sale deed by them in favour of the 1st defendant.

(3.) At the time of admission on 2 -4 -2001, the following substantial question of law was raised for consideration: