K R SUBBAKRISHNA Vs. NINGIAH

JUDGEMENT

(1.) This appeal is directed against the judgment and decree of the Court of the Additional Civil Judge and Chief Judicial Magistrate, Mandya, in R.A. No. 175/75 allowing the appeal of the legal representatives of the first defendant in O.S. No. 82/74 before the Munsiff Court, Malavalli, challenging the judgment and decree of the trial Court decreeing the suit of the plaintiff for possession of the suit property.

(2.) Briefly stated the facts are that Ramanna the father of the present appellant was the owner of the schedule property measuring 0-20 guntas of wet land bearing Survey No. 356 of Kirugavalu village, Malavalli Taluk, Mandya District, under a release deed dt. 6-5-1953. The said Ramanna released all his right, title and interest in favour of the present appellant and his wife Smt. Jayamma, who was also one of the defendants in the original suit. In the original suit, the plaintiff in whose favour also there was a release jointly with his mother contended that the sale of the property on 26-4-1965 (under Ext.P-5) by his mother Jayamma was invalid and not binding on him. She was also aware that the property is alienated to the first defendant Basavegowda, who died during the pendency of the suit under a sale deed for Rs. 4,000/-. At that time the plaintiff was admittedly a minor, he having born on 6-2-1951 perhaps he was about 14 years of age then. The challenge was on two grounds, namely, that no permission was obtained by Smt. Jayamma from the District Court under S.8 of the Hindu Minority and Guardianship Act, 1956, when she was selling a portion of the property or more; there was interest of the minor in this entire property sold in favour of Basavegowda. He claimed that it is the ancestral property and Jayamma was asked to look after not only of her interest, but also that of her minor son Subbakrishna in respect of the property. Ramanna died on 3-10-1966. At that time he had no subsisting title or interest in the schedule property. He further contended that his mother Jayamma did not get any title or interest in the suit property as he became the sole coparcener and absolute owner of the schedule property even if there was a release or relinquishment of coparcenary interest of Ramanna in this property. First defendant resisted the suit contending that 2nd defendant sold away this property for legal necessity and to discharge the debts.' Defendant-1 who was in possession of the same by virtue of the sale deed, it is not mandatory to Jayamma to get any sanction from any Court and that the plaintiff cannot challenge the sale. He also contended that defendant-2 along with the plaintiff had become the owner of the schedule property and other properties under this deed. The trial Court among other issues framed also an issue whether the property was the ancestral and joint family property of the plaintiff and his father, whether the sale deed executed by Jayamma was not valid and not binding on the plaintiff and whether the sale was for legal necessities. Considering first two issues are material and on assessment of the evidence, he found that alienation by Jayamma was invalid in view of the fact that she could not derive any interest under a release deed and also for the fact that no permission was obtained from the District Court as required under S.8 of the Hindu Minority and Guardianship Act, 1956. He also held that the question of legal necessity would not survive and decreed the suit.

(3.) The first Appellate Court however found that though the first defendant did not become the absolute owner of the suit property and that the sale deed dt. 26-4-1965 does not bind the plaintiff found that it is valid as far as the share of the mother is concerned and that the sale by her was legal and valid and dismissed the suit of the plaintiff by allowing the appeal.