BHAGYAMMA Vs. NIGAMMA

JUDGEMENT

(1.) HEARD the counsel for the parties.

(2.) THE facts as are necessary for the disposal of the present appeal are as follows : the appellants herein were the plaintiffs before the trial Court and the respondents were the defendants. They are referred to as plaintiffs and defendants, respectively, herein, for convenience. The suit was partition and separate possession of the plaintiffs' 4/5th share in the suit schedule properties and consequential reliefs. The plaintiffs claimed that their father, Sannappa, died about 13 years prior to the suit, leaving behind the first defendant, their mother, and the plaintiffs to succeed to his estate, as he had no male issues. It is the case of the plaintiffs that they were each entitled to an equal share, along with the first defendant to the same. It was alleged that the first defendant had sold item No. 1 of the suit schedule properties in favour of the second defendant, which was not in the interest of the plaintiffs and it was therefore contended that the said alienation would not affect their original share in the suit properties. And as there was a threat of the first defendant proceeding to alienate the other suit properties, at the instigation of defendant No. 2,, the suit came to be filed. The first defendant admitted the relationship but, pleaded ignorance of the sale transaction. It was contended that she had parted with the title deeds to item No. I of the suit properties in order to create a mortgage in respect of the property as she was in dire need of funds for the family and had sought the assistance of the second defendant in this regard. It was only upon the institution of the suit and upon the second defendant filing his written Statement in the suit, that the fraud played on her by the second defendant has dawned on her. In that, it was only then that she became aware that instead of the intended mortgage she had executed a sale deed in favour of the second defendant. She contended that she would therefore have no objection if the suit was decreed as prayed for. The second defendant contended that he was unaware of the suit properties being the ancestral properties of the plaintiffs and claimed to be a bona fide purchaser for value, of item No. 1 of the suit properties. That he had no notice of the alleged interest of the plaintiffs' interest, as he was assured by the first defendant that she had absolute authority to alienate the property, which he had purchased under a registered sale deed executed by the first defendant on 20-8-1982. That the first defendant was feigning ignorance of the sale and was acting in active collusion with the plaintiffs in the suit. He further claimed that the sale required to be protected in equity. It was contended that, in any event, the suit was barred by time as the suit was instituted on 13-1-1989. Defendant No. 1 died on 14-10-1992, during the pendency of the suit. Defendants 3 and 4 were minors at the time of institution of the suit and were represented by their elder sister, Plaintiff No. 2 as their guardian.

(3.) THE trial Court in framing issues as to whether the suit properties were the ancestral properties of the plaintiffs and whether they were entitled to 4/5th share in the same, cast the burden on the plaintiffs. The trial Court cast the burden on the second defendant to establish that the sale transaction relating to item No. 1 of the suit schedule properties, was for the legal necessity of the family of the first defendant and that he had been put in possession by defendant No. 1 pursuant thereto and whether the sale is binding on the plaintiffs.