BILIGA LAXMINARAYANA RAO Vs. A P FERNANDES

JUDGEMENT

(1.) A. S. No. 444 of 1951 arises out of a suit O. S. No. 48 of 1950, filed in the additional Sub Court, South Kanara, and the other appeal, A. S. No. 144 of 1932, arises out of another suit, O. S. No. 172 of 1947, filed in the same Court. Both the appeals are preferred by the plaintiffs. The first three of the sis plaintiffs in O. S. No. 172 of 1947 were the plaintiffs in O. S. No. 48 of 1950. Both the suits were filed to recover possession of the plaint-schedule properties together with mesne profits. The suit properties and other properties originally belonged to the family of one Somayya Karnika who had two wives. By the first wife, he had four sous, of whom the youngest was one Bha-vani Rao, and who died, leaving a son by name Somayya. That son Somayya also died in January 1892, leaving a widow, by name Lakshmi Aroma. By the second wife, the said Somayya Karnika had three sons, one of whom was ranga Rao. He died, leaving a son, by name Subba Rao, and the latter died, leaving five sons, Krishna Rao, Rauga Rao and plaintiffs 1 to 3 in both the suits; and Krishna Rao's sons are plaintiffs 4, 5 and 6 in O. S. No. 172 of 1947. When this family remained joint. Bhavani Rao's son, Somayya, who was then entitled to 1/4th share in the family properties, conveyed his share under the sale deed, Ex. A-1, in favour of his father-in-law, another Somayya Karnika, for Rs. 9,750/ -. On the basis of that sale deed, the said Somayya Karnika as well as his son-inlaw, somayya, filed a Suit, O. S. No. 1g of 1887, for partition and separate possession of that share, as against the other members of the family; and that suit resulted in a compromise decree, Ex. A-2, dated 4-10-1887. In accordance with the final decree passed in that Suit, the 1/4th share was allocated and delivered possession of to Somayya Karnika. Subsequently, in 1891 and 1893, under two sale-deeds, Exs. A-3 and A-4, somayya Karnika conveyed in favour of his daughter, Lakshmi Amma, all the properties which he got under the partition decree. Subsequently, Somayya karnika died in 1893, leaving a will, by which he bequeathed all his properties to his daughter, Lakshmi Amma. She was thus in possession of these properties which pertained to the share of her husband, Somayya, but which he sold in favour of his father-in-law, Somayya Karnika, who obtained possession thereof under the partition decree in O. S. No. 16 of 1887.

(2.) WHILE Lakshmi Amma was thus in possession of the properties pertaining to her husband's 1/4th share, but which she got from her father under the sale-deeds, exs. A-3 and A-4, she alienated the properties comprised in both the present suits. Under Ex. B-6, dated 12-7-1906, she alienated all the 26 items comprised in O. S. No. 172 of 1947 for Rs. 1,150/- in favour of one Subbayya Shetty as the yajaman of an aliyasanthana kutumba. The members of that family, on his death, are now represented by defendants 1 to 9 in that suit, and defendants 10 to 17 are persons said to be in possession of those properties as the mulgeni tenants of defendants 1 to y. As regards the properties comprised in O. S. No. 48 of 1950, Lakshmi Amma sold item 1 to one devappa for Rs. 260/- under the sale deed, Ex. A-5, dated 20-11-1903, and the first defendant in that suit is said to be the auction-purchaser of that item. As regards item 2, the said Lakshmi Amma conveyed the mulgeni rights therein under Ex. A-8, dated 15-8-1913, to one Damodata Bhatta, the father of defendants 6 and 7 in that suit, defendants 2 to 4 being alienees of that item. As regards item 3 of that suit, the mulgeni rights therein were conveyed by Lakshmi amma in favour of defendant 5 in that suit. It is common ground that all those alienees are in possession of the various suit items as purchasers since the date of their respective purchases.

(3.) SUBBA Rao, the son of Kanga Rao and the father of the present plaintiffs 1 to 3, as one of the reveisioners to the estate of Lakshmi Amma's husband, Somayya, filed a suit, O. S. No. 2 of 1911, for a declaration that the Sales under Exs. A-3 and A-4 in favour of Lakshmi Amma by her father were benami for her husband and that the alienations made by her were not supported by consideration, and therefore, not binding on the estate. That suit had a protracted course which it is unnecessary to trace, and ultimately, the trial court granted a declaration on 10-9-1917, as shown by Exs. A-9 and A10, that the transactions covered by Exs. A-1, A-3 and A-4 were benami for and for the benefit of Lakshmi Amma's husband, Somayya, and that she, as a widow, had only a limited estate and no absolute title, and that the alienations were not binding on the estate. As against that decree and judgment, there were two appeals preferred to this court, one by the widow and another by one of the alienees. The widow's appeal was dismissed, confirming the find-ings of the trial court; but the other appeal was allowed on the ground that the alienee was a bona fide purchaser for value under section 41 of the Transfer of Property Act. Thus, that litigation terminated in this court in February, 1919. About three years later, on 29-6-1922, the widow, lakshmi Amma, executed a deed of surrender, Ex. A-14, in favour of the said subba Rao, the plaintiff in that litigation and the father of the present plaintiffs 1 to 3, of all her rights in the properties, together with the right to recover them from the alienees after her death. Thereafter, in 1937, Subba Rao took a sale deed from one Huchuraya, the sister's son of the propo-situs Somayya, as he claimed to be the nearest re-versioner, and that sale deed in Ex. A-17 dated 4-12-1937. There was a partition of the properties as amongst Subba Rao and his Sons and grandsons under the partition deed, Ex. A-16, in 1934.