SITARAM NARAYAN Vs. GANPATI APPAJI

JUDGEMENT

(1.) THIS is an appeal by plaintiff 1 and it arises out of a judgment and decree passed by the learned Assistant Judge, South Satara at Sangli, in Civil Appeal No. 178 of 1951 which arose out of a judgment and decree in Civil Suit No. 67 of 1950 which was filed in the Court of the Jt. Civil Judge J. D. at Islampur.

(2.) THE facts of the case which have led to this litigation may now shortly be stated. The suit property in this case is a house in Kalawadl a village in South Satara District. This property originally belonged to one Hari Raghu Shimpi. Hari Raghu died on 25-8-1907 leaving surviving behind him his widow Bai Ganga and daughter Bai Vithabai. It is not disputed that even during the lifetime of Hari Raghu, Hari's wife Bai Ganga was living an unchaste life. She was living a life of adulterous intercourse with one Sakharam Gopal and as a result of this adulterous intercourse of Bai Ganga with Sakharam Gopal, an illegitimate daughter Bai Soni was born to Bal Ganga on 1-11-1905. It may be noted at this stage that Bai Vithabai was the natural daughter of Hari by his wife Bai Ganga. Vithabai died somewhere about the year 1925. Bai Ganga died on 11-3-1938. Now, the important transactions with which we are concerned in this litigation are the two transactions of mortgages and one transaction of sale. The first mortgage transaction is evidenced by Ex. 29. It is a transaction dated 15-5-1908, whereby Bai Ganga mortgaged the suit house to Bala Hari for Rs. 100/ -. The second transaction is evidence by Ex. 30. It is also a mortgage transaction dated 18-5-1908 whereby Bat Ganga again mortgaged the suit house to Bala Hari for Rs. 200/ -. The third transaction is evidenced by Ex. 31 and it is a transaction of sale whereby on 30-10-1935 Bai Ganga sold the suit house to the present defendant for Rs. 500/ -. It may be noted that to this document of sale Ex. 31 Bai Soni, the illegitimate daughter of Bai Ganga, was a co-executant. After the suit house was sold by Bai Ganga to the defendant on 30-10-1935, the defendant filed Suit No. 771 of 1936 to redeem the mortgage transaction dated 15-5-1908, via. , the transaction referred to in the mortgage deed Ex. 29. On 12-4-1938, Bai Saraswati who is the daughter of Bai Vithabai, sold the suit house to the present plaintiff 1 for Rs. 200/ -. The sale deed in this connection is Ex. 24. It may be noted that Bai Saraswati who, as I have just said, is the natural daughter of Bai Vithabai was born in the year 1918. She is plaintiff 2 in this suit. She sold the suit house to the present plaintiff 1 subject to the mortgage of 18-5-1908 which is evidenced by Ex. 30. In execution of the mortgage decree obtained by the present defendant in his Suit No. 771 of 1936, he (defendant) obtained possession of the suit house on 20-8-1939. The present suit was filed by Bai Saraswati and Sitaram, the purchaser from Saraswati, on 2-3-1950 and it was a suit to recover possession of the suit house on the ground that there was no legal necessity for Bai Ganga to sell this house to the present defendant by the sale deed Ex. 31.

(3.) THE learned trial Judge came to the conclusion that the sale deed Ex. 31 was partially passed for legal necessity. In the view of the learned Judge, there was legal necessity for that transaction to the extent of Rs. 150/ -. Accordingly, the learned Civil Judge ordered the sale as evidence by Ex. 31 to be set aside on condition that the plaintiff 1 Sitaram paid Rs. 150/-to the defendant, upon which payment the plaintiff 1 was to recover possession of the suit house from the defendant. From the above mentioned decision of the learned Civil Judge J. D. at Islampur, the defendant went in appeal. The appeal was heard and decided by the learned Assistant Judge, South Satara. In the appeal the question of legal necessity was not pressed at all. The only point which was raised and pressed in appeal on behalf of the defendant was that Bai Ganga had become an absolute owner of the suit house by adverse possession and that it was as absolute owner that she had sold the house to the defendant. The learned Assistant Judge accepted the defendant's contention and held that Bai Ganga had become a full owner of the suit house by adverse possession and that, therefore, it was perfectly competent to Bai Ganga to sell the house to the defendant who had, by virtue of the sale become full owner of the house. It is this view of the learned Assistant Judge which is challenged in this appeal by the learned Advocate Mr. Madbhavi appearing for the original plaintiff 1, the purchaser from Bai Saraswati who is plaintiff 2.