- (1.) This appeal arises out of a suit, commenced by the plaintiff respondent, in the court of the District Judge of Bellary, being Original Suit No. 17 of 1944, for establishment of his title to one-half share of the land described in the schedule to the plaint and for recover of possession of the same after partition with defendant No. (1) who is the appellant before us. The suit was dismissed by the trial Judge by his judgment dated 23rd of July 1945. On an appeal being taken against that decision by the plaintiff to the High Court of Madras, a Division Bench of the High Court by its judgment dated the 28th of March 1949 allowed the appeal and reversed the judgment of the trial court. The defendant No. 1 has now come up on appeal to this court on the strength of a certificate granted by the High Court under Article 133 of the Constitution read with Sections 109 and 110 of the Civil Procedure Code.
(2.) To appreciate the contentions that have been raised before us it may be necessary to give a short resume of the material facts. The land in suit, which has an area of a little over 9 acres, was admittedly the property of one Basappa who died some time before 1918, leaving three daughters 'to wit' Paramma, Pompamma and Hamgamma. Under a settlement entered into with the immediate reversioner of Basappa which is evidenced by two registered deeds --- Exs. P-2 and P-3 --- executed respectively in the years 1918 and 1919, the three sisters got about 15 to 16 acres of wet land in absolute right. Hampamma subsequently took away her one-third share in these lands and we are not concerned with her any further in this litigation. Paramma and Pompamma continued to enjoy the remaining two-thirds share of the property and it is this two-thirds share comprising 9 acres 49 cents of wet land which forms the subject-matter of the present suit. Pompamma married one Nagana Gowd and after giving birth to two sons 'to wit' Siddalingana and Chenabasavana, she died in the year 1923. It is not disputed that her share in the lands mentioned above devolved upon these two sons. After Pompamma's death, Nagana married again and stayed with his second wife in his ancestral village, while these two infant sons of Pompamma remained at village Kampli with Paramma, their mother's sister, who reared them up as her own sons. On the 22nd June 1923 Paramma executed a deed of gift in favour of the two sons of her sister by which she conveyed to the later her own share in the suit property. The result was that the two sons of Pompamma got the entitety of 9 acres 49 cents of land which was owned jointly by their mother and their mother's sister Paramma. Shortly after this gift was made, Siddalingana, the elder son of Pompamma, died in the year 1924 and the plaintiff's case is that his half-share in the disputed property devolved upon his father Nagana under the Hindu Law of Inheritance. It is admitted however that Paramma continued to possess the entirety of the land on behalf of the younger son Chenabasavana who is defendant No. 1 in the suit. On the 25th August 1946 there was a lease deed (Ex. D-1) and its counter part (Ex. D-2) executed by and between Paramma on the one hand and Nagana as the father and guardian of the infant Chenabasavana on the other by which the infant represented by his father purported to grant a lease of the entire property to Paramma for a period of 12 years at a rental of Rs. 500 a year. Two rent receipts passed by Nagana to Paramma in token of the receipt of rents, reserved by this lease, on behalf of Chenabasavana have been proved in this case (Exs. D-4 and D4-1) and they are of the years 1927 and 1932 respectively.
(3.) It appears that in 1934 Nagana instituted a suit as guardian of his infant son Chenabasavana in the Munif's court at Hospet to recover a sum of Rs. 500 as rent from Paramma on the basis of the lease mentioned above. The suit was decreed 'ex parte' and the decree was discharged later on by a document (Ex. D-3) dated the 14th November 1934 executed by Nagana, which contains a recital that as Paramma had borrowed much money to purchase lands for the minor, all future rents payable under the lease were also to be considered as fully paid. It is in evidence and not disputed, that near about this time Nagana became financially involved and on the 27th of August 1935 he executed a deed of mortgage by conditional sale in respect of half share of the disputed land in favour of defendant No. 2 to secure an advance of Rs. 3,000. The document recites that the half share of the land which was kept as security devolved upon the mortgagor on the death of his son Siddalingana and that he was in possession of the same. On the 16th July 1936 Nagana sold the mortgaged property by a deed of sale (Ex. P-6) to the mortgagee himself for a consideration of Rs. 3000 which was the principal sum due under the mortgage. It is admitted that the purchaser did not and could not obtain possession of the property at any time since then and on the 2nd May 1944 he sold the property to the plaintiff by a conveyance which is Ex. P-1. On the 16th July 1944 the plaintiff brought the present suit against Chenabasavana as defendant No. 1 for recovery of a demarcated half share of the disputed property after partition with the latter on the strength of the purchase mentioned above and his own vendor was impleaded as defendant No. 2 in the suit.;