DYAVIAH AND Vs. SHIVAMMA AND

JUDGEMENT

(1.) This second appeal arises out of a decree in a suit where the plaintiffs sought to avoid the sale transaction purported to have been entered into by their predecessor-in-title on the ground that she was a minor at the date of the transaction. The plaintiffs claim to be the heirs of one Thayamma. She and her brother Chikkanna were owners of the suit property, each having a half and half interest in it. Both of them purported to sell the suit property to defendant 1 under the sale deed Ext. IV dated 24-10-40. After the document was duly executed by both of them, it was taken to the Sub-Registrar for registration. He suspected that Thayamma may not be a major. Although he registered the sale deed as executed by Chikkanna, he declined to register it as executed by Thayamma with an endorsement to that effect below the document. Nothing further appears to have been done to rectify the matter and it appears that defendant 1 continued to be in possession of the whole of the suit property. Defendant 1, however, sold the same to defendant 2. After the death of Thayamrna, plaintiffs have filed the suit as her heirs praying for a declaration that the alienation in favour of defendants 1, 2 and 3 is not binding on Thayamma's half share in the suit properties and for possession of that share. They also prayed for past mesne profits for three years amounting to Rs. 783/- and future profits and costs. A joint written statement was put in on behalf of defendants 1 and 2 whereby they practically admitted most of the allegations but they denied the fact that Nanjundiah, father of Thyamma fraudulently brought about the sale deed. They also contended that several debts were contracted by Chikkanna and Nanjundiah as guardian of Thayamma for legal necessity and that in order to discharge these debts the properties were sold to the defendants under Ext. IV. The trial court held that Thayamma being a minor at the date of the sale transaction Ext. IV. her half share was not affected by the sale and decreed the plaintiffs' claim for a half share together with past mesne profits of Rs. 783/-. On appeal by defendants 1 and 2, the decree of the trial Court was confirmed. Hence this second appeal by the same defendants.

(2.) It was urged by the learned Advocate for the appellants that in the trial Court the defendants put in an application seeking permission to amend the written statement and that the same was wrongly rejected by the trial Court. It is found that this application was filed on 25-11-50 after the hearing of the case was over and after even the arguments were heard and the case was closed. By the amendment the defendants wanted to add one more ground of defence under Section 53-A of the Transfer of Property Act. Apart from the merits of the additional contention, the application was made at too late a stage. If it was granted, that would have necessitated a fresh issue and a fresh recording of evidence. The trial Court was therefore right in rejecting such a belated application.

(3.) The first ground urged by the learned Advocate for the appellants was that the deceased Thayamma, through whom the plaintiffs claim a half share in the suit property, had herself no right or title to that share. He urges that the plaintiffs have produced the will Ext. A dated 29-5-31 to show that Thayamma had a half share. That is a will executed by Chaluvamma, monther's mother of Chikkanna and Thayamma. The testator Chaluvamma had a half share in the suit property and some others. By the said will Ext. A, she bequeathed her interest in favour of Chikkanna. As there was no bequeathal in favour of Thayamma the learned Advocate urges that the will gives no right or title to Thayamma in respect of a half share in the suit property. It is not the plaintiffs' case that Thayamma got a half share as a legatee under the will. According to the plaintiffs, Thayamma had otherwise inherited a half share. They relied on the will to show firstly that Chikkanna's share was only half. Secondly they rely on a recital in the will that Thayamma had a half share in the property although it is not the subject-matter of the bequeathal. In addition to this, there is the defendants' own admission in the written statement that Thayamrna had a right to a share in the suit properties although it does not admit that the share was half. In the course of his deposition in Court, their witness Chikkanna D. W. 5 admits that he got a half share in the properties under the will and also that the minor plaintiffs have a half share. Similar is the admission of defendant No. 1 who is D. W. 6 in the case. It is thus proved beyond doubt that Thayamma had a half share in the suit properties.