WUNTAKAL YALPI CHENABASAVANA GOWD Vs. RAO BAHADUR Y MAHABALESHWARAPPA

JUDGEMENT

(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.

(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.