NINGAPPA Vs. VITHAPPA CHANDRAPPA KADATAGAR

JUDGEMENT

(1.) The plaintiffs in CS. No.226 of 1963 are the appellants in this second appeal. The contesting respondents are defendants 1, 4 and 6. The suit was filed for partition and separate possession of 2(3 share of the appellants in the suit properties. They challenged the alienations effected by their father who was impleaded as defendant 1 in the original suit under Exts. 26, 27, 28 and 29 in favour of the 2nd defendant's father, 4th defendant and 6th defendant. It may further be mentioned that Exts. 26 and 27 are in favour of the 4th defendant. It is undisputed that defendant 1 and the plaintiff are members of an undivided joint Hindu family and that the suit properties are the ancestral properties. The plaintiffs challenge the binding character of the aforesaid alienations in so far as they are concerned on the ground that those alienations are not supported by legal necessity. They also impeached the alienations on the ground that they were tainted with immorality and illegality. The learned Munsiff took the view that the alienations are not supported by legal necessity. In view of this finding, he did not go into the question whether the alienations were tainted by immorality or illegality. On the basis of the finding that the alienations referred to above are not binding on the plaintiffs' share in the suit schedule properties, he decreed the suit declaring that the plaintiffs have a 2/3 share in the properties concerned in this appeal. He also granted future mesne profits from the concerned defendants in respect of their shares in the suit properties under Order XX, Rule 12 (c) of CPC. Defendants 2 to 4 being aggrieved with this decree preferred RA. No. 128 of 1964 before the Civil Judge, Bijapur. The learned Civil Judge modified the decree of the trial Court. He confirmed the findings of the learned Munsiff. On the 3rd issue in the case relating to the legal necessity, the Civil Judge held that the alienations referred to are not for legal necessity. He went into the question as to whether the transactions are tainted by immorality but gave a finding against the plaintiffs. It appears to me that this finding is quite immaterial in view of the fact that the appellate Court has confirmed the finding of the learned Munsiff that the alienations in question are not supported by the legal necessity. He was correct in confirming the decree of the trial Court, But the appellate Court proceeded to consider the question of the equities arising in the case. It observed:

(2.) This conclusion is considered necessary for considering the adjustment of equities in consequence of the finding that the transactions in question are not binding on the respondents and they being entitled to 2/3 share in each of the alienated properties. In adjusting the equities the appellate Judge relied on the decision of this Court in R.A. 121 of 1957,RA. 121/67. He held that the ruling given in the above case governs the present case. He therefore held that equities in favour of the respondents entitled them to the refund of a share of the consideration in respect of the alienations in their favour. He held that the respondents are entitled to the return of 2/3rd of the consideration amount of the respective transactions from the appellants before they take possession of their respective shares in the properties alienated. The decree passed by the trial Court was accordingly modified by the Civil Judge. Against this decision, the plaintiffs have preferred the above second appeal.

(3.) It is strenuously argued by Sri K. A. Swamy, learned Counsel for the appellants, that the condition imposed by the Civil Judge is opposed to law. He submits that in view of the concurrent finding that the alienations in favour of the respondents are not supported by legal necessity, the appellate Court ought to have confirmed the decree as passed by the learned Munsiff. His contention is that the decision in R.A. 121 of 1957(1) on the file of this Court is distinguishable and does not apply to the facts of the present case. Further, it is submitted that if the observations made by this Court in the above said decision are to be understood in the manner done by the Civil Judge, it is opposed to the decision of the Supreme Court in Virdhachalan Pillai v. Chaldhan Bank, AIR 1964 SC 1425.