JAVEED BASHA AND ORS. Vs. RUKKAMMA AND ORS.

JUDGEMENT

(1.) The Plaintiffs in O.S. No. 53 of 2005 on the file of Subordinate Judge, Hosur, are the appellants in this second appeal. The suit filed by the plaintiffs was dismissed by the trial court and it was partly allowed by the first appellate Court, which gave rise to the present second appeal by the plaintiffs.

(2.) For the sake of convenience, the parties to this appeal shall be referred to as "plaintiffs" and "defendants" as per their rank in the suit.

(3.) The Plaint averments in O.S. No. 53 of 2005 could be narrated in brief as follows:-The first defendant is the second wife of late K. Shivaram who died in the year 1992 and also mother of defendants 2 to 8. The ninth defendant is the first wife of deceased K. Shivaram. The 10th defendant is mother of plaintiffs 3, 4, 5 and 6. According to the plaintiffs, Krishnappa, father of late. Shivaram possessed immovable properties. The deceased Shivaram filed a suit in O.S. No. 59 of 1982 against his father Krishnappa seeking partition. The said suit ended in a compromise and it was recorded on 18.04.1990 in I.A. No. 427 of 1990 in O.S. No. 59 of 1982. The suit properties were allotted to the share of the deceased Sivaram consisting of four items. Subsequently, a final decree was passed in the suit in O.S. No. 59 of 1982 on 08.10.1991. Thus, the suit properties were in possession and enjoyment of the deceased Shivaram as Kartha and Manager of the joint family. According to the plaintiffs, the deceased Shivaram, as a Kartha and natural guardian for the minors in the joint family and for legal necessity, sold some of the properties fell to his share in the final decree aforesaid and discharged the debts incurred for the family, incurred expenditure for education and marriage of the girls and for general maintenance and protection of the family. In this context, the deceased Shivaram executed a registered sale deed dated 11.11.1991 in favour of the first plaintiff morefully described in "A" schedule of the plaint. On the same day, the deceased executed another sale deed in favour of second plaintiff, which is described as Schedule B in the plaint. Yet another sale deed dated 11.11.1991 was executed by the deceased in favour of one Shiva Kumari, daughter of Rudrappa. The said Shiva Kumari in turn sold the property purchased by her in favour of the third plaintiff on 15.03.2005 which is described as Schedule "C" in the plaint. On 11.11.1991, another sale was made in favour of Abdul Rasheed Sahib which is morefully described as schedule "D" in the plaint. After the death of Abdul Rasheed Sahib, the plaintiffs 3, 4, 5, 6 and 10, as legal heirs, have succeed to his estate and were in possession and enjoyment of the said properrty. Thus, the deceased Sivaram has alienated the suit properties for a legal necessity for and on behalf of the joint family and it is valid. While so, the defendants 1 to 8 served a caveat notice to the plaintiffs during February 2014 even though the sale deeds executed by the deceased Shivaram is binding on them. It is also not the case of the defendants that the deceased Shivaram alienated the suit properties for any immoral purpose. On 31.01.2005, the defendants 1 to 8 have also given a public notice in Tamil newspaper "Dinamalar" dated 01.02.2005 wherein they have alleged that after the death of the deceased Shivaram, they have entered into a partition deed and are in possession of the suit properties. By virtue of the public notice, the defendants have raised a cloud over the title of the plaintiffs in respect of the suit property. Subsequently, on 07.06.2005, the defendants 3, 5 and 6 along with some unknown persons attempted to enter upon the suit property and also to destroy the survey stones In those circumstances, the plaintiffs have filed the suit for a declaration to declare that they are the owners of the suit property and consequential permanent injunction.