KARIYAIAH Vs. CHELUVAIAH

JUDGEMENT

(1.) THIS appeal under Section 100 of the Civil Procedure Code, has been preferred by defendant 2 in the suit, challenging the judgment and decree dated 23-10-1990, delivered by Sri K. M. Thammaiah, civil judge/j. M. F. C, hunsur, in regular appeal No. 21 of 1989, whereby the first appellate court had in part allowed the appeal of defendant 2 after having held that to the extent of 1/4th share, defendant 1 could make a transfer as defendant 1's share in the property was 1/4th and held the sale deed to that extent of 1/4th share to be valid, while setting aside that sale deed dated 7-2-1972, to the extent of 3/4th share and modified the trial court decree as mentioned above, which has been passed in regular suit No. 228 of 1984.

(2.) THE facts of the case in brief are that plaintiffs and respondents filed the regular suit claiming the following reliefs: (a) a declarative decree declaring that the transfer purporting to be a sale and executed by the registered sale deed dated 7-2-1972, was in the nature of mortgage deed and to further order the redemption of mortgage directing the delivery of possession of the property in suit in favour of the plaintiffs; or in the alternative it was prayed as relief No. (b) that if the sale deed is taken on its face value as sale by plaintiffs father, i. e. , defendant 1, in favour of defendant 2 that is the present appellant, the plaintiff-respondent prayed for the grant of decree for cancellation of that sale deed and for restoration of the possession of the plaintiffs. Plaintiffs also claimed cost of the suit.

(3.) PLAINTIFFS' case as per plaint allegations has been, that the suit property has been joint family property of the joint coparcenery consisting of defendant 1 and plaintiffs 1 to 3, in other words to be the joint ancestral property of present respondents 1 to 4. The plaintiffs further alleged that defendant 1 that is the present respondent 4 had transferred the property mentioned in the schedule in favour of defendant 2 namely the present appellant vide, sale deed dated 7-2-1972, without any legal necessity and during minority of plaintiffs 1 to 3 namely respondents 1 to 3. Plaintiffs averred that they learnt that the said sale was never intended and defendant 1 wanted to borrow loan on security of property and so he mortgaged it, but, defendant 2-appellant having practised fraud and misrepresentation got executed the sale deed instead of mortgage deed. The plaintiffs' case has been that the deed dated 7-2-1972, which on its face value appears to be sale deed has been illegal, null and void and had not been binding on the plaintiffs, as the said transaction had been entered into without any legal necessity. the plaintiffs averred that if the plaintiffs plea is accepted that it is a mortgage, a declaration may be given to that effect and order for redemption may be issued, but if on the face value of it is taken to be the sale deed it may be declared to be illegal, as defendant 1 that is respondent 4 could not make the transfer of the property in dispute by the said document as there did not exist any legal necessity, nor there was any need to pay an antecedent debt. Defendant 2 in the suit, namely the present appellant filed the written statement denying and challenging the plaint allegations. It was denied that the property in dispute was joint family property having been inherited by defendant 1. the defendant further denied the case of mortgage set up by the plaintiffs in the plaint as well as denied the plea of fraud taken by the plaintiffs in the suit. The defendant's case has been that the deed had not been executed without any legal necessity. defendant admitted that it is true that plaintiffs made repeated demands from the second defendant that is the present appellant to deliver the suit land and also issued notice, but the said notice had been properly replied. Defendant 2 asserted that he purchased the suit property for valuable consideration from respondent 4 that is defendant 1. It was asserted that the suit was filed for wrongful gains. In paragraph 2 it has been stated that it is further false to say that the first defendant sold the suit schedule property without necessity.