SANNAMMA Vs. SHIVANNA

JUDGEMENT

(1.) THIS second appeal is against the order of the Civil Judge (Sr. Dvn ). , Nanjangud in RA 17/1998 by order dated 26. 8. 1999 wherein the lower appellate court has passed an order on remand by this Court in RSA 506/1994 wherein this Court had directed the lower appellate court to consider whether the sale is valid without the court permission; whether the mother can be a defacto guardian entitled to act under S. 11 and whether such a sale is valid; whether there is any legal necessity in the eye of law; even if it be held, whether the sale is binding so far as the mother's share is concerned. While answering the above points raised by this Court, the lower appellate court dismissed the appeal filed

(2.) BY the defendants. Hence, this appeal. As it transpires, the original suit property bearing Sy. No. 4/1 measuring 3. 30 acres situate at Madalli Village of Nanjangud taluk was mortgaged by one Nanjundappa in favour of the deceased Mallappa on 10. 9. 1956 for a sum of Rs. 2,500/- It appears subsequently the mortgagor Nanjundappa is shown to have disappeared and on the presumption of natural civil death, his wife has sold the property in the year 1963 in favour of mallappa the mortgagee stating family necessities and as well as for discharging the mortgage debt. Thereafter, the plaintiffs filed a suit challenging the sale deed by their mother. The said suit was contested by the defendants alleging that for family and legal necessities the property was sold by the mother of the plaintiffs and that in continuation of the usufrctuary mortgage there was such a sale by the mother of the plaintiffs in favour of the defendants and the question of survival of the mortgage right does not arise. The trial court having raised as many as seven issues, decreed the suit for redemption against which defendants preferred an appeal before the Civil Judge (Sr. Dvn ). The appeal came to be dismissed while confirming the order of the trial court. Against the said order, second appeal was preferred by the defendants before this Court and in the earlier round of the second appeal, there was an order of remand to the appellate court on the points raised as noted above. On such remand also, on suffering an order of dismissal, the defendants are before this Court assailing the order of both the courts below on various grounds.

(3.) HEARD the counsel for the appellants and the respondents. It is the submission of the appellants that though the suit filed by the plaintiffs was for redemption and possession and for mesne profits in respect of the suit property, since there was a sale deed in respect of the defendants, the mortgage right merged with the sale deed and, as to the contention of the defendants that, it is a subsequent sale by the mother of the plaintiffs in favour of the defendants, there was no denial by way of pleading except the oral evidence. The plaintiffs not even examined their mother who executed the sale deed in favour of the defendants and in the absence of any such denial, there was no question of considering the case of the plaintiffs for allowing the suit for redemption as the mortgage right has merged with the sale. It is further submitted that even on the question of right to sell the minors' property is concerned, as per the decision of the Apex Court in the case of narayan BAL vs SRIDHAR SUTAR referring to S. 8, the Apex Court has held that any member of the family or the kartha in the management of the joint family property can alienate the property in the family which involves an undivided interest of the minor in the said joint family and accordingly submitted that the bar under S. 11 of the Hindu Minority and Guardianship Act, 1956 will not come in the way of disposal of the property by the mother of the minors in the joint family in the undivided interest. Accordingly, it is submitted that the finding of the trial court as well as the appellate court are perverse. To a similar effect, learned counsel also relied upon the decision PALCHURI hanumayamma vs TADIKAMALLA KOTLINGAM (DEAD) BY LRS and ORS. Learned counsel for the respondents submitted that when both the courts below in a concurrent finding have held that the sale deed is not validly proved and also there is a bar for selling the minors' interest, then the mortgage rights of the mortgagor remains and they could very well seek for redemption, as such, the finding of the trial court as well as the appellate court does not call for interference and the mother of the plaintiffs had not right to minors' share and accordingly, there is no perversity in the order of both the courts below.