K C LAXMANA Vs. K C CHANDRAPPA GOWDA

JUDGEMENT

(1.) THE appellant is the original defendant No. 2, against whom, respondent No. l-original plaintiff, filed O. S. No. 262/91 in the Court of Munsiff at mudigere, for a declaration that, the settlement deed dated 22-3-80, executed by his father, respondent No. 2 in this appeal, who was original defendant No. l in the suit, in favour of the present appellant, is null and void and to set aside the same as not binding on him and for partition and separate possession of his l/3rd share in the suit property and for an enquiry into mesne profits and other consequential reliefs. For the sake of convenience, 1 will refer to the appellant as defendant No. 2 and respondent No. 1 as plaintiff, in the latter part of this judgment. The case of the plaintiff is that his father defendant No. 1, has executed a registered sale deed dated 22-3-1980 (Ex. PI), without his consent and behind his back, alienating the suit property in favour of defendant No. 2 without any legal necessity or for family benefit. It was contended that, the suit property is joint family property in which he has got undivided l/3rd share and interest. According to him, defendant No. 1, his father, had no right to transfer the suit property in favour of defendant No. 2, who is not a co-parcener or a member of their joint family and consequently the alienation made without his consent, under Ex. P1, is null and void and not binding on him.

(2.) THE suit was contested by the defendants. Defendant No. 1 filed the written statement, which was adopted by defendant No. 2. In the written statement, defendant No. 1 has admitted that, the suit property is a joint family property; that defendant No. 2 was brought up by him and out of love and affection and considering defendant No. 2 as also one of the members of joint family, the suit property was settled under Ex. P. 1, in his name. According to him, the joint family property which was available for partition was partitioned between himself, plaintiff and other son Subraya gowda on 23-3-1990 (Ex. P9 ). He has contended that, plaintiff having taken his share under Ex. P 9 without any demur, is not entitled to maintain the suit. Defendant No. 1 has supported the alienation of suit property made in favour of defendant No. 2.

(3.) LEARNED trial Judge, considering the pleadings of the parties, raised as many as 12 issues. After recording the evidence of PW-1 and PW-2 and DWs 1 to 3, considering Exs. P1 to P9 and Exs. D1 to D3, arrived at the conclusion that, the plaintiff is not entitled to the relief prayed and dismissed the suit. Dissatisfied by the Judgment and Decree of Trial court, the plaintiff filed appeal in the First appellate Court. Learned Judge of First appellate Court after reconsideration of the record and reassessment of the evidence, found the impugned judgment and decree of trial Court to be perverse and capricious and liable to be interfered with. Consequently, the appeal was allowed, Ex. P1 was declared as null and void, plaintiff was held entitled for l/3rd share and also for the accounts of his share from the defendants which can be ascertained by separate application and directed to draw preliminary decree accordingly.