BHIMDAS Vs. P KANTHAMMA DIED

JUDGEMENT

(1.) Defendants 3 to 7 are the appellants in Second Appeal. The 3rd defendant purchased the suit property from defendants 1 and 2 under a sale deed dated 10-9-1957 . The plaintiff who died subsequent to the filing of the second appeal, claimed that the property was inherited by her from her mother and sued for cancellation of the sale deed executed by defendants 1 and 2 in favour of the 3rd defendant and for possession of the suit property. According to the case of the 3rd defendant , the property originally belonged to the defendants 1 and

(2.) The 1st defendant sold the property to Janakamma, the mother of the plaintiff on 29-4-1946. Janakamma died in 1950. Before her death Janakamma joined her husband, the 1st defendant and his brother the 2nd defendant in executing a mortgage over the suit property. The mortgagee filed O. S. No. 208/1956 to enforce the mortgage. When the property was about to be brought to sale the 3rd defendant to whom the property had been sold in the meanwhile by defendants 1 and 2 paid off the amount of the mortgage and satisfied the decree. The 3rd defendant claimed that even the original sale in favour of defendants 1 and 2 was sham and nominal. The lower courts decreed the suit. After the filing of the second Appeal the plaintiff died. If her father , the 1st defendant that sold the second appeal is to be allowed since it was the 1st defendant that sold the property to the appellants. If, on the other hand, the father is not the heir but the second wife and the second wifes children of the father are the heirs then it is necessary to go into merits of the Second Appeal. 2. Sri N. V. Ranganadham, learned counsel for the appellants urged that under Section 15 of the Hindu Succession Act it was the father that was the heir of the plaintiff while Sri. P. Kodandaramayya, learned counsel for the respondents urged that it was the second wife and the children of the father of the second wife that were the heirs of the plaintiff. Section 15 is as follows :--

(3.) I think what the learned professor has said must, in reason, be accepted. The second appeal is, therefore, allowed. There will be no order as to costs. Leave granted to the petitioners in C. M. P. No. 7133 of 1973 to file an appeal under Clause 15 against the judgment in the Second Appeal.