DANEYI GURUMURTY Vs. RAGHU PODHAN

JUDGEMENT

(1.) THE second defendant is the natural mother of the first defendant who was a minor The disputed property belongs to defendant 1 and was inherited from his adoptive father. The adoptive parents of the first defendant are dead. The second defendant as guardian of the first defendant sold to the plaintiff homestead land of 9 x 150 cubits for Rs. 500/- on 6-6-57 by a registered sale deed Ex. 1. The sale was effected for repayment of mortagage dues under Kx. 2 dated 20-7-53 executed by the adoptive father of the first defendant in favour of one Bai mahapatrani. Plaintiff's case is that the possession of a portion of the land measuring 4 x 38 cubits (disputed portion) was not delivered. He accordingly brought the suit for recovery of the disputed portion, not delivered, or in the alternative for refund of Rs. 200/- out of the sale consideration representing the proportionate value of the disputed portion. Defendants 1 and 2 filed separate written statements. Defendant-1 contested the suit alleging that there was not legal necessity for the transfer, that defendanf-2 was not his guardian and that the plaintiff fraudulently purchased the homestead at a low price though the real value of the properly was Rs. 500/ -. Defendant-2 admitted execution of the sale deed and receipt of Rs. 500/-towards consideration. She pleaded that the plaintiff promised to pay Rs. 200/- more and that she was prepared to take back the land on return of the entire consideration money.

(2.) THE learned Munsif held that defendant-2 was not the guardian of the minor first defendant and the transfer was void. He, however, dismissed the plaintiff's suit on the finding that the contract cannot be split up and a suit for recovery of a portion of the consideration does not lie. The learned Subordinate Judge held that the first defendant lived with the second defendant who was his de facto guardian. He also held that the sale was for consideration and legal necessity and that the transfer by the de facto guardian for legal necessity was voidable and not void. On these findings he decreed the plaintiff's suit for recovery of Rs. 200/- representing the value of the disputed portion. Against the reversing appellate Courts decree, the second appeal has been filed.

(3.) THE following questions arise for consideration in the second appeal-