KALLAWA SHIDLINGAPPA ANGADI Vs. PARAPPA SANKAPPA

JUDGEMENT

(1.) THIS is an appeal by the defendant in a suit for a declaration that the suit properties were not liable for satisfaction of the decree passed in the defendants favour in suit No. 77 of 1928 and for a permanent injunction restraining the defendant from proceeding against the suit properties in execution of the decree. The facts which led to the litigation are shortly these. There were three brothers Bashetteppa, Chinnappa and Shidlingappa. The last one is dead and his widow is the defendant. The three brothers formed a joint Hindu family. On March 3, 1928, the defendant filed an application in the nature of a suit to take a decree in terms of a private award between herself and the two brothers of her husband. In the award it was directed that the plaintiff therein was entitled to receive Rs. 66 per year as her maintenance from the two brothers and the amount of maintenance was fixed upon three specified family lands on which a charge was created for the same. A decree was passed in terms of the award on March 31, 1928, in that proceeding which was registered as suit No. 77 of 1928.

(2.) THE plaintiff's father had purchased the three properties which were charged under the award decree from the two brothers on December 3, 1935, for Rs. 5,000. Out of that amount Rs. 4,000 were paid to a person who held a prior mortgage on these lands for Rs. 3,500. THE present defendant had filed a darkhast, No. 653 of 1939, presumably the first darkhast, to execute her maintenance decree against the three charged lands. THE plaintiff interceded in the execution proceedings and claimed that he had become the owner of the lands. That objection seems to have been overruled, with the result that the plaintiff filed the present suit for the declaration and injunction mentioned above. His case was that he was a bona fide purchaser for value without notice of the alleged charge of the defendant on the suit properties. THE defendant's contention was that the plaintiff's sale-deed was hollow and that the plaintiff's father was not a bona fide purchaser because he was well-acquainted with the family of her husband's brothers. THE learned trial Judge decided the suit against the plaintiff on the ground that it was not proved that his father was a bona fide purchaser for value without notice and that it was not proved that the purchase was free from the maintenance charge in favour of the defendant. THE suit was accordingly dismissed. On appeal by the plaintiff, the Assistant Judge held that the plaintiff's father was a bona fide purchaser for value without notice of the charge and that therefore the suit lands were not liable to be sold in execution of the defendant's decree. He based his decision on the ground that the defendant was only a charge-holder of the suit lands and that charge, under Section 100 of the Transfer of Property Act, 1882, could not be availed of against the person who purchased the lands without any notice of it. THE learned Judge relied on a decision of the Oudh Court in Mt. Indrani v. Maharaj Narain [1937], in which it was held that there was no difference in principle between a charge created by a decree and one created by a contract; and that the charge in the present case was governed by Section 100 of the Transfer of Property Act. This second appeal is filed by the defendant against the decree allowing the plaintiff's appeal.

(3.) THE appeal is allowed, the decree of the lower appellate Court is set aside, the decree of the trial Court is restored and the plaintiff's suit dismissed. THE appellant will be entitled to her costs in this Court and in the lower appellate Court. Each party will bear its own costs in the trial Court.