NATARAJA NAIDU Vs. RAMADOSS CHETTY

JUDGEMENT

(1.) THE question of law that arises for consideration in this second appeal is whether a third party purchaser from a co owner in respect of a small separate item of property can get his share allotted in a suit filed by the non alienating co owner for declaration and injunction in respect of the whole property impeaching the sale in favour of the purchaser. THE facts of the case are briefly as follows:

(2.) THE appellant Nataraja Naidu and the second respondent nallayya Naidu are brothers being the sons of one Ethirajammal. THE suit property, a vacant site, was purchased in the name of Ethirajammal by means of a sale deed dated 26. 3. 1960 marked as Ex. A-1 for Rs. 50. THE said Ethirajammal died in January 1977. THE case of the appellant is that the property was purchased by him benami for him in the name of Ethirajammal and that he had been in possession of the property and had also prescribed title to the same by continuous possession and enjoyment for well over the statutory period. THE respondents denied any such benami transaction and contended that the second respondent was allotted the western half share of the suit property, that the property was purchased by Ethirajammal out of her own funds, that she was the absolute owner thereof, that she died in 1977 leaving the appellant and the second respondent herein as legal representatives, that both the appellant and the second respondent were in possession of the suit property, that they orally divided the suit property allotting the western half share of 3 1/2 cents to the second respondent and the eastern half share of 3 1/2 cents to the appellants that the first respondent purchased the second respondent's share of 3-1/2 cents under a registered sale deed dated 17. 4. 1977 for Rs. 400 and that the appellant knew about the said sale and stood by and acquiesced with the same. It is also pointed out that the said Ethirajammal by means of another sale deed dated 19. 11. 1940 purchased another 52 cents in Survey No. 58/3 which she had settled in favour of one Kasturi. THE allegation that the appellant was tethering his cattle and storing hay-rick and stocking cowdung cakes are denied and in any event, if there is any such user it is only fugitive in character. In the additional written statement, the first respondent contended that the suit property was owned by Ethirajammal and after her death, in an oral division, the western share fell to the second respondent who sold the same to the first respondent as per Ex. B-2.

(3.) IT is contended on behalf of the appellant that the consideration under Ex. A-1 being only Rs. 400 there is every possibility of his paying the amountt as spoken to by P. W. 2 and P. W. 3 and both the Courts below had not considered this aspect of the case and findings of the Courts below in this regard are perverse. But there is no room for such an argument in this case because how the sale price under Ex. A-1 was paid is recited in the said document itself viz. , by adjusting the mortgage amount due under the mortgage in favour of Ethirajammal unless it is showing amount in the name of his mother, it cannot be said that that consideration for Ex. A-1 proceeded from the appellant. The appellant had not let in any evidence with reference to the amount advanced under the mortgage in favour of Ethirajammal. Under the circumstances, the concurrent findings of the Courts below that the consideration for the sale deed Ex. A-1 proceeded not from the appellant out from Ethirajammal are in accordance with the undisputable circumstances in this case and they will have to be affirmed.