HANMANTAPPA RAMAPPA ILAGAR Vs. DUNDAPPA BIN FAKIRAPPA HUILGOL

JUDGEMENT

(1.) This is an appeal from a decree dismissing the plaintiff's suit for a half share in two fields at Gadag, which were sold on June 24, 1913, by Dharmappa, defendant No. 10 in the suit, to defendant No. 1. The consideration for the sale was Rs. 5,000. These two fields formed part of the estate of Bhimappa (father of Dharmappa and of Ramaswami defendant No. 9), who died at the end of 1912 or early in 1913. On his death Dharmappa became the manager of the joint family, and between that time and the end of 1916 he disposed of all the family properties, so that now there is none left. Ramaswami the younger brother was a minor. He appears to have come of age in 1919, and on November 13, 1922, he sold his undivided half share in the two fields to the plaintiff, who filed the suit, from which this appeal arises, on June 9, 1925. The plaint was presented first in the Court of the Second Class Subordinate Judge but was returned on November 3, 1925, on the ground that the value of the suit exceeded the pecuniary jurisdiction of the Court and was re-presented in the First Class Subordinate Judge's Court on November 4, 1925.

(2.) The trial Court dismissed the suit holding that Bhimappa was heavily indebted at the time of his death and the suit lands were alienated for legal necessity. On that issue, which was the only one to which any importance was attached at the trial, the arguments of the learned advocate for plaintiff-appellant have derived some adventitious support from the manner in which the learned trial Judge approached the case. He framed the issue correctly as follows: Do defendants Nos. 1 to 8 prove that the alienation of the suit properties evidenced by the sale-deed, Exh. 32, dated June 24, 1913, was either for legal necessity or for the benefit of the joint family of defendants Nos. 9 and 10. But in dealing with it he apparently overlooked the fact that the burden of proof was on the alienee. He has discussed the plaintiff's evidence first. He criticises him for not having produced better evidence as to the property and resources of Bhimappa and for not having shown that the subsequent alienations by Dharmappa were not justified. He even says that the plaintiff ought to have examined both Ramaswami and Dharmappa and allowed them to be cross-examined and he considers the failure to do this a great weakness in his case. But Ramaswami was a minor at the material time and Dharmappa the manager of the family ought obviously to have been examined on behalf of the alienee on whom the onus is to prove necessity for the sale. One might rather say that the defendants omission to examine Dharmappa would have told against them had it not been for the fact that they appear to have done their best to procure his evidence. Dharmappa was summoned as a witness and was asked to produce certain documents to which I shall refer later. But it appears from the roznama that he was unable to attend on the date fixed because he had been injured in a motor accident. Another summons was asked for and granted, but Dharmappa was still suffering from the effects of the accident and further time of fifteen days was applied for. Why Dharmappa did not appear after that the record does not show, but at any rate defendant No. 1 had taken the trouble to have two summonses served upon him.

(3.) Apart from the question of the burden of proof, the effect of the evidence has not in some respects been quite fairly stated. The learned Judge says that the plaintiff has told "desperate untruths" about Bhimappa having property in Belgaum. But among Dharmappa's alienations, which have been proved by the production of the sale-deeds, six relate to various properties in Belgaum: see Exhs. 146, 148, 149, 150, 153 and 154 and although some of these appear to have been devised to Dharmappa under the will of San Tammappa, his grandfather's brother, the others apparently formed part of the joint family estate.