PUTTAPPA KARIYAPPA HUCHAPPA BIJJUR Vs. BANAPPA FAKIRAPPA SHIGGAUV

JUDGEMENT

(1.) This is an appeal by the plaintiff in a suit for a declaration that certain transactions consisting of three mortgages made by his father in respect of which an award decree had been obtained between him and his creditor and two sale-deeds of other properties were not binding on the plaintiff as they were without legal necessity as well as for immoral and illegal consideration.

(2.) The plaintiff was born in 1918. Some time before that, his father, who is defendant No. 4 in this case, had separated from his uncle and had got lands yielding about Rs. 1,800 per year. He had no business except cultivation of those lands. Very soon after the partition defendant No. 4 began to purchase properties out of the income of his lands and for that purpose he incurred several mortgage debts. The first debt was incurred in June, 1926, by mortgaging two of the lands, for Rs. 5,000 to defendant No. 1's father. About three months later he passed a second mortgage to the same person of other lands for Rs. 2,000, and in May, 1927, he passed a third mortgage of all the remaining lands in his possession to the same person, for Rs. 10,000. In the next year on July 7, 1928, he passed a sale-deed of two of his lands to defendant No. 1's father for Rs. 8,000, and about ten years later in 1938 he passed a sale-deed of one land to defendant No. 1 for Rs. 700. In respect of the three mortgage deeds defendant No. 1's father brought a suit against the plaintiff's father alone, the matter was referred to arbitration and an award decree was passed on December 20, 1928, under which Rs. 19,906 were to be paid to the plaintiff for the mortgage debt and Rs. 2,568 were to be paid for certain money debts. The amount was to be paid by several instalments, and in default of payment of two instalments, the whole amount was to be recovered by sale of the mortgaged property. The said property was also kept as a charge for the money debt. It was further provided that if there was any deficit after the sale, it was to be recovered personally from defendant No. 4.

(3.) On October 11, 1930, the then plaintiff, i.e. the present defendant No. 1's father, brought a darkhast to recover Rs. 25,717 which comprised the decretal amount with interest. The mortgaged property was sold in execution and most of it was purchased by defendant No. 1's father himself. A sale certificate was granted to him on April 27, 1932. Two of the lands were purchased by defendants Nos. 2 and 3. The darkhast was finally disposed of as the decree was satisfied on September 21, 1932. Thereafter the present suit was brought by the plaintiff on August 26, 1939, after he became major. Defendant No. 1, his father having died in the meanwhile, was impleaded as the main defendant and the plaintiff's father was joined as defendant No. 4. The plaintiff asked for a partition and possession of his half share of the property sold in execution of the award decree as well as by the two private sales on the ground that the sales were not justified by legal necessity and that the transactions for which the debts were incurred by his father were also illegal and immoral. The defence was that all the properties in suit were not ancestral properties of the plaintiff's father but some were acquired by the father himself, that the transactions which were sought to be impeached were all justified by legal necessity, nor were the father's debts illegal or immoral, that the award decree as well as the, auction sale were binding on the son in any case on account of his pious obligation to discharge his father's debts, that the private sales were for legal necessity and that therefore the plaintiff was not entitled to any relief. Defendant No. 4, the father, supported the defendants in some particulars but he contended that there was no consideration for some of the suit transactions.