FAKIRAPPA Vs. VENKATESH

JUDGEMENT

(1.) The legal representatives of defendant-1 and defendants 2 to 6 in L. C. Suit No. 44/1961 on the file of the Munsiff, Laxmeshwar, are the appellants in this second appeal. The plaintiffs who are respondents 1 and 2 in this second appeal instituted the said suit for a declaration that the alienation of the suit schedule property made by their father Parashuram in favour of defendant-1 Devendrappa was not binding on them and for partition and separate possession of their 2/3rds share in the suit property. Their case was that the suit land belonged to the joint family consisting of their father Parashuram and themselves that Parashuram alienated it in favour of defendant-1 under a sale deed dated 12-6-1942, although, the said transaction was not supported by legal necessity or family benefit and that therefore the alienation was not binding on them. They also pleaded that the consideration alleged to have been paid under the said sale deed was inadequate. Defendant-2 is the son of defendant-1. Defendants 3 to 6 are the sons of defendant-2. They pleaded that the sale deed was executed in favour of the 1st defendant by the father of the plaintiffs for the purpose of discharging two mortgage debts contracted by him earlier, that the consideration paid under the sale deed was actually utilised for discharging those antecedent debts and that therefore, the sale was binding on the plaintiffs. They also pleaded that the transaction was supported by legal necessity and family benefit. The plaintiffs did not file any rejoinder stating that the antecedent debts in question were not in existence on the date of the sale nor did they plead that the said debts were avyavaharika debts. At the conclusion of the trial, the learned Munsiff came to the conclusion that the defendants had not proved that the sale in favour of the 1st defendant was binding on the plaintiffs and accordingly made a decree in their favour. The lower appellate Court has affirmed the said decree. Hence, this second appeal.

(2.) Sri S. R. Bannurmut, learned Counsel for the appellants contended that the decision of the lower appellate Court which proceeded on the basis that in the instant case where the father had sold the property in order to discharge his antecedent debts, it was necessary to prove that there was legal necessity or family benefit in order to sustain the sale was erroneous, in the absence of any plea on the part of the plaintiffs that the antecedent debts were tainted with immorality. Shri Raghuramachar, learned Counsel for the respondents, did not dispute the correctness of the legal proposition put forward by the learned Counsel for the appellants. He, however, argued that in the instant case the defendants had not established the existence of the debts for discharging which the sale deed in question was executed by the father of the plaintiffs. The sale deed is dated 12-6-1942. The suit was instituted in the year 1961 and the learned Munsiff tried it in the year 1967 nearly 25 years after the date of the sale deed in question. By the, time the case was taken up for trial, defendant-1 who had purchased the property under the sale deed was dead. The father of the plaintiffs who had executed the sale deed had died before the institution of the quit. The defendants in support of their case relied upon the recital in the sale deed Exhibition stating that it had been executed by the father of the plaintiffs in favour of defendant-1 for the purpose of discharging two mortgaged loans which he had obtained from Shivanagouda Patil under two registered mortgage deeds dated 27-3-1924 and 24-11-1930 and that the said mortgage deeds had been handed over to defendant-1 with the endorsements of discharge recorded on them by the mortgage. They also produced before the Court Exhibit-D-2 which was the certified copy of the registered mortgage deed dated 24-11-1930 and Exhibit-D-3 which was the certified copy of the registered mortgage deed dated 27-3-1924, in order to prove that there existed before Exhibit-D-1 came into existence two mortgage debts referred to above. They also produced Exhibit-D-4 which was a part of the original of Exhibit, D-3. They stated that the remaining part of Exhibit D-4 and the original of Exhibit D-2 had been lost by them. The certified copies were received as secondary evidence in the case. Exhibits D-2 and D-3 prove that the, father of the plaintiffs had borrowed Rs. 1,100/- under the original of ExhibitD-3 and Rs. 400/- under the original of Exhibit-D-2. The plaintiffs who were aware of the contents of Exhibit-D-1, the sale deed, before they instituted the suit, did not state in the course of their plaint that the two debts referred to in Exhibits-D-2 and D-3 were not in existence on the date of Exhibit-D-1. The 2nd defendant who was examined as D. W. 1 stated in the course of his evidence that the debts in question were discharged as stated in one of the recitals contained in Exhibit D-1. Defendant-4 who was the son of Shivangouda Patil, in whose favour the documents had been executed, also stated that the said documents had been executed by Parashuram, the father of the plaintiffs.

(3.) It was argued by Sri Raghuramachar that the evidence before the Court was not sufficient to establish the existence of the two antecedent debts on which the defendants relied. The debts in question, as mentioned earlier, were respectively of the year 1924 and of the year 1930. The trial of the suit out of which this appeal arises took place in the year 1967. Both the mortgagor and the mortgagee were dead by the time the trial commenced. In these circumstances, it may not be reasonable to expect any better evidence than what has been produced by the defendants in this case. I am of the view that the observations made by the Privy Council in Banga Chandra v. Jagat Kishore, (AIR 1916 PC 110) would furnish true guidance with regard to the assessment of the evidence in cases of this nature. That was a case in which certain transactions entered into by two widows who had life estate in the properties in question came up for consideration while determining their binding nature on the reversioners. In that connection the Privy Council observed as follows: