HILLAYA SUBBAYA HEGDE Vs. NARAYANAPPA TIMMAYA

JUDGEMENT

(1.) The facts of the case, as found by the Court below, are shortly these. The property belonged to one Ganpaya who died in the year 1878, leaving him surviving a widow by name Devamma, and a widowed sister-in-law. These two widows on the 24th of September 1878 sold the property to one Ganpaya Adenaya. Ganpaya Adenaya in the year 1892 mortgaged it to the respondent- plaintiff s uncle Devappa. Ganpaya Adenaya died in 1901 and in the year 1897 Devamma died. The respondent now sues to foreclose; the appellant resists the claim on the ground that Devamma had no right to mortgage the property beyond her life-time, and that he, as the reversionary heir of her husband, is entitled to it, free of the mortgage.

(2.) The District Judge, without finding whether the appellant is reversionary heir, has allowed the respondent s claim. He has held that Ganpaya Adenaya, the respondent s mortgagor, became owner of the property under the sale from Devamma. That view of the law cannot be accepted as sound in the absence of a finding that the sale by Devamma, who had a Hindu widow s estate, was for necessary purposes, and was, therefore, binding on her husband s reversioners, and that the appellant was the reversionary heir he claimed to be.

(3.) If, therefore, the case had rested solely upon the considerations above dealt with, the decree of the District Judge would have had to be reversed. But the District Judge has also recorded another finding which is decisive of the case against the appellant. The suit was brought by the respondent for foreclosure against defendants 1 and 2, his mortgagors. The District Judge has found as a fact upon the evidence that the appellant (defendant No. 3) revived his "old claim" against Ganpaya Adenaya and "contrived to slip into possession" of this property "by inducing Ganpaya s sons, defendants 1 and 2 to favour his claim". At the conclusion of his judgment that finding is repeated by the Judge in these words : "Defendant 3 may or may not be the reversionary heir of Ganpaya, but having failed to take possession from Ganpaya Adenaya of the property now in dispute for nearly twenty years, he can derive no advantage from getting fraudulent possession through defendants 1 and 2 or their tenants".