Lakshman S/O Rangappa Kanakani vs Smt.Kamalawwa W/O Mallappa Kamatagi
2025 Latest Caselaw 5695 Kant

Karnataka High Court

Lakshman S/O Rangappa Kanakani vs Smt.Kamalawwa W/O Mallappa Kamatagi on 18 August, 2025

Author: S.R. Krishna Kumar

Bench: S.R. Krishna Kumar

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                                                             RFA No. 100091 of 2019


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                             IN THE HIGH COURT OF KARNATAKA, DHARWAD BENCH
                                   DATED THIS THE 18TH DAY OF AUGUST 2025
                                                  PRESENT
                                 THE HON'BLE MR. JUSTICE S.R. KRISHNA KUMAR
                                                     AND
                                   THE HON'BLE MR. JUSTICE C.M. POONACHA
                            REGULAR FIRST APPEAL NO. 100091 OF 2019 (DEC/INJ-)

                       BETWEEN:

                       LAKSHMAN S/O. RANGAPPA KANAKANI,
                       AGE: 49 YEARS, OCC: AGRICULTURE,
                       R/O. LINGANUR-587 301,
                       TQ: JAMAKHANDI, DIST: BAGALKOT.
                                                                         ...PETITIONER
                       (BY SMT. SURABHI KULKARNI, ADVOCATE)

                       AND:

                       1.    SMT. KAMALAWWA W/O. MALLAPPA KAMATAGI,
                             AGE: 55 YEARS, OCC: AGRICULTURE,
                             R/O. CHIKKAHANCHINAL-587 301,
                             TQ: BILAGI, DIST: BAGALKOT.

                             MALLAPPA S/O. TAMMANNA ARAKERI,
YASHAVANT
NARAYANKAR                   SINCE DECEASED REPRESENTED BY LR'S.

Digitally signed by
YASHAVANT
NARAYANKAR
                       2.    SMT. TARAWWA W/O. MALLAPPA ARAKERI,
Location: HIGH COURT
OF KARNATAKA                 SINCE DECEASED BY LR'S.
DHARWAD BENCH
DHARWAD


                             [RESPONDENT NO.2 DIED ON 08/05/2021.
                             RESPONDENT NO.1 AND 3 ARE TREATED
                             AS LR'S OF RESPONDENT NO.2. V.O.D. 01/09/2022]

                       3.    SMT. LAKSHMIBAI W/O. SIDDAPPA GARI,
                             AGE: 66 YEARS, OCC: HOUSEHOLD,
                             R/O. LINGANUR-587 301,
                             TQ: JAMAKHANDI, DIST: BAGALKOT.
                                                                    ...RESPONDENTS
                       (BY SRI. MALLIKARJUNSWAMY B. HIREMATH, ADVOCATE FOR R1;
                           NOTICE TO R3-SERVED; R2-DECEASED,
                           R1 AND R3 ARE TREATED AS LRS OF DECEASED R2)
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                                                   NC: 2025:KHC-D:10352-DB
                                                   RFA No. 100091 of 2019


    HC-KAR




      THIS APPEAL IS FILED UNDER SECTION 96 OF CODE OF CIVIL
PROCEDURE PRAYING TO CALL FOR LOWER COURT RECORDS AND
SET-ASIDE THE JUDGMENT AND DECREE DATED 29.11.2018 PASSED
IN O.S.15/2008 ON THE FILE OF THE SENIOR CIVIL JUDGE AND
JMFC, BILAGI IN SO FAR AS DECREEING THE SUIT IN RESPECT OF
LAND BEARING R.S. NO.83/1 I.E., ITEM NO.1 OF THE SUIT
SCHEDULE PROPERTY AND ALLOTTING 1/3RD SHARE IN THIS
PROPERTY, IN THE INTEREST OF JUSTICE AND EQUITY.

     THIS APPEAL COMING ON FOR FINAL HEARING THIS DAY,
JUDGMENT WAS DELIVERED THEREIN AS UNDER:

CORAM:         THE HON'BLE MR. JUSTICE S.R. KRISHNA KUMAR
                AND
                THE HON'BLE MR. JUSTICE C.M. POONACHA

                                ORAL JUDGMENT

(PER: THE HON'BLE MR. JUSTICE S.R. KRISHNA KUMAR)

This Regular First Appeal is filed by the

appellant/defendant No.2 challenging the judgment and decree

dated 29.11.2018 passed in O.S.No.15/2008 on the file of

Senior Civil Judge and JMFC, Bilagi1, whereby, the said suit filed

by respondent No.1/plaintiff against appellant/defendant No.2

and respondent Nos.2 and 3/defendants No.1(A) and 1(B) was

partly decreed by the Trial Court, thereby directing partition

and separate possession to respondent Nos.1 to 3 of 1/3rd

share each in the suit schedule properties and for other reliefs.

Hereinafter referred to as 'the Trial Court'

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2. The parties will be referred to as per their ranking

before the Trial Court, for the sake of convenience.

3. Briefly, the facts giving rise to the present appeal

are as follows:

The respondent No.1/plaintiff-Kamalawwa is the daughter

of late Mallappa Arakeri and respondent No.2/defendant

No.1(a)-Tarawwa. They had one more daughter, respondent

No.3/defendant No.1(b)-Laxmibai. During the lifetime of

Mallappa, respondent No.1/plaintiff instituted the said suit

against Mallappa/defendant No.1 and the appellant/defendant

No.2, seeking for partition and separate possession of his

alleged ½ share in the suit schedule landed properties, along

with other reliefs. As per the plaint, the suit schedule properties

comprise three items of landed properties, (i) R.S.No.83/1

measuring 07 acres 03 guntas,

(ii) R.S.No.73/3 measuring 07 acres 20 guntas, both situated at

Chikkahanchinal village of Bilagi Taluk; and (iii) a house

property bearing VPC No.250, situated at Linganur village,

Jamkhandi Taluk, Bagalkot District.

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4. During the pendency of the suit, Mallappa expired

after filing a written statement, wherein he specifically

contended that he, along with respondent Nos.2 and 3, had

sold Item No.1 of the suit schedule property in favour of the

appellant/defendant No.2 herein, vide registered Sale Deed

dated 27.06.2008 for legal necessity and benefit to the estate.

It was contended that, prior to execution of the said Sale Deed

by Mallappa/defendant No.1 along with his wife Tarawwa, in

which respondent No.3-Laxmibai was a consenting witness,

Mallappa had obtained a loan by mortgaging both items of suit

schedule properties, vide Mortgage Deed dated 31.08.2005,

executed by them in favour of the Corporation Bank. It was

contended that, as per the terms and conditions of Sale Deed

dated 27.06.2008, the appellant/defendant No.2 was liable to

repay the loan obtained by Mallappa in respect of Item No.1

property, and consequently, during his life time, the plaintiff

was not entitled to any share in the suit schedule properties,

and sought for dismissal of the suit.

5. The appellant/defendant No.2 also filed a separate

written statement disputing and denying the claim of the

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plaintiff and re-iterating that Mallappa/defendant No.1, as the

Karta of joint family, had executed a Sale Deed in his favour.

That the sale was for legal necessity and for the benefit of the

estate, and was binding not only upon the plaintiff but also

upon the other joint family members. Under these

circumstances, the appellant/defendant No.2 also sought for

dismissal of the suit.

6. Based on the pleadings of the parties, the Trial

Court has framed the following issues on 09.02.2009 and

additional issue on 27.04.2017:

1. Whether the plaintiff proves that the suit schedule properties are the ancestral properties of plaintiff and defendant No.1?

2. Whether the plaintiff further proves interference by the defendants?

3. Whether the defendant No.2 proves that he is a bonafide purchaser for value of suit property of R.S.No.83/1?

4. Whether the suit is bad for non-joinder of necessary parties?

5. Whether the plaintiff is entitled to ½ share in the suit properties?

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6. What order or decree?

Additional Issue

Whether defendant No.1A and 1B prove that they are entitled to 1/3rd share each in the suit schedule properties?

7. The plaintiff examined herself as PW.1 and three

more witnesses as PW.2 to 4. Ex.P1 to Ex.P22 were marked on

their behalf. Defendant Nos.1 and 2 are examined as DW.1

and DW.2. Ex.D1 to Ex.D5 were marked on their behalf. After

hearing the parties, the Trial Court come to the conclusion that

all the three items of suit schedule properties were joint family

properties, in which the plaintiff, her mother and her sisters-

defendants No.1(A) and 1(B) were entitled to 1/3rd share each

in the suit schedule properties upon the demise of Mallappa.

Consequently, the Trial Court has directed partition and

separate possession of 1/3rd share each of the respondent

Nos.1 to 3 in the suit schedule properties, by passing the

impugned judgment and decree, which is assailed in the

present appeal.

8. It is the matter of record and an undisputed fact

that, during the pendency of the present appeal, the

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respondent No.2-Tarawwa also died intestate without leaving

behind any will/testament, and her 1/3rd share in the suit

schedule properties has devolved upon the respondent

No.1/plaintiff and her sister respondent No.3, who are the only

legal representatives of deceased respondent No.2-Tarawwa.

9. Heard the submissions of learned counsel for the

appellant and the learned counsel for respondents. Perused the

materials available on record, including the records of the Trial

Court. The respondent No.3-Laxmibai having been served with

notice of this appeal, has remained unrepresented and has not

contested the appeal.

10. In addition to reiterating the various contentions

urged in the appeal and referring to the material on record, the

learned counsel for the appellant invited our attention to the

specific pleadings put forth by the appellant/defendant No.2 as

well as the deceased defendant No.1 in their respective written

statements. It was specifically contended that the Sale Deed

dated 27.06.2008, executed by defendant No.1 along with his

wife Tarawwa, to which the Laxmibai was a consenting witness,

was executed by defendant No.1 in his capacity as the Karta of

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the joint family, for legal necessity and for the benefit of the

estate. Therefore, the sale was binding not only on the other

family members but also on the plaintiff, who was not entitled

to challenge the same by way of the instant suit. It is

submitted that despite there being specific pleadings regarding

defendant No.1, being the Karta, and the sale of Item No.2 of

the suit schedule property in favour of the appellant for legal

necessity and for benefit of the estate, the Trial Court did not

frame any issue in this regard, though both the parties have

adduced oral and documentary evidence in this regard including

producing loan documents, Sale Deed, revenue records, etc.,

all of which, clearly established that the sale was for legal

necessity and benefit of the estate. It was also submitted that

since the parties have already adduced oral and documentary

evidence on this aspect of the matter, it would be just and

proper for this Court to exercise the powers under Order XLI

Rule 24 of the Code of Civil Procedure, 19082, and frame an

additional issue and dispose of the appeal by answering the

said issue accordingly.

Hereinafter referred to as the 'CPC'

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11. Per contra, the learned counsel for respondent No.1

would fairly admit that though there were pleadings put forth

by the appellant and defendant No.1 regarding the sale of Item

No.1 of the suit schedule property by defendant No.1 in favour

of the appellant, there was no specific issue framed by the Trial

Court in this regard. He would however submit that the sale by

defendant No.1 along with Tarawwa and Laxmibai as a

consenting witness was not for the legal necessity and the

same was not binding upon the plaintiffs 1/3rd share in the suit

schedule properties, and as such there is no merit in the appeal

and the same is liable to be dismissed.

12. We have given our anxious consideration to the

rival submissions and perused the material on record including

the records of the Trial Court. The following points arise for

consideration in the present appeal:

i) Whether the Trial Court committed an error

in not framing a specific issue regarding the

sale of Item No.1 of the suit schedule property

in favour of the appellant/defendant No.2 by

defendant No.1 along with his wife Tarawwa

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and his daughter Laxmibai as a consenting

witness, was for legal necessity and benefit of

the estate, vide registered Sale Deed dated

27.06.2008?

ii) Whether the procedure prescribed under

Order XLI Rule 24 of the CPC is required to be

followed for the purpose of disposal of the

present appeal?

iii) Whether the impugned judgment and decree

passed by the Trial Court warrants interference

in the present appeal?

Reg. Point Nos.(i) and (ii):

13. Before adverting to the rival submissions, it is

necessary to state at the outset that, the appellant/defendant

No.2, being the purchaser of Item No.1 of the suit schedule

property, the scope of consideration of the present appeal is

only restricted/limited to Item No.1 of the suit schedule

property. The impugned judgment and decree insofar as it

relates to Item Nos.2 and 3 of the suit schedule properties, not

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being the subject matter of the present appeal, the same are

not interfered with in the present order.

14. In this context, it is relevant to refer the pleadings

of the parties in relation to Item No.1 of the plaint schedule

properties. In the plaint, the plaintiff has stated as under:

"6. The plaintiff has constructed a shed in the said land and has been cultivating the lands, Apart from this the plaintiff has acted as surety for all the loans raised by the defendant No.1 in respect of the suit land. The defendant No.2 who is aware of all these facts has created a bogus sale deed. Absolutely there was no necessity either for the defendant No.1 of for the plaintiff to sell any of the lands. The defendant No.2 who had obtained the sale deed fraudulently is making attempt to take possession of the suit land. If the defendant No.2 becomes successful in his oblique motive the plaintiff would be put to irreparable loss, injury hardship. The tutored conduct of defendant No.1 in executing the registered sale deed does not bind the plaintiff and her undivided interest in the suit lands. Hence the plaintiff is constrained to file this suit for declaration that she has got ½ share in the suit lands bearing R.S.No.77/3 and 83/1 of Chikka- Hanchinal village Tal. Bilagi and for consequential injunction restraining the defendant No.2 and his persons from interfering with the possession and enjoyment of the plaintiff in respect of the suit lands

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and a further consequential injunction restraining the defendant No.2 from further alienating any of the suit lands in favour of anybody."

15. In response thereto, the defendant No.1, has stated

in his written statement as under:

"6. The contents of para No.6 of the plaint are false and they are therefore specifically denied by this defendant. It is false to aver that without legal necessity this defendant sold land bearing R.S.No.83/1 infavour of defendant No.2. It is equally false to aver that the defendant No.2 fraudulently obtained the sale deed in respect of suit land bearing R.S.No.83/1 from this defendant. This defendant humbly submits that in order to meet family necessities and repayment of loan raised by this defendant and also for maintenance of their family sold the suit land bearing R.S.No.83/1 in favour of the defendant No.2 for a valuable consideration of Rs.8,34,000/- under a valid and legal sale deed dt:27-6-2008 and put the defendant No.2 in actual possession and enjoyment of the said suit land bearing R.S.No.83/1 on the date of execution of sale deed itself. It is further false to aver that the sale deed executed by this defendant infavour of defendant No.2 in respect of the suit land bearing R.S.No.83/1 is not binding on the plaintiff. It is false to aver that the plaintiff is cultivating the suit land. It is further false to aver that the plaintiff has

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constructed the sheds in the suit land. In fact this defendant has constructed the sheds in suit properties. It is false to aver that the plaintiff has got ½ share in suit properties. It is equally false to aver that the plaintiff is cultivating the suit properties. It is further false to aver that the defendant No.2 has never come in possession of suit land bearing R.S.No.83/1 of Chikka-Hanchinal by virtue of registered sale deed dated:27.06.2008. In fact the defendant No.2 is in lawful possession and enjoyment of suit land bearing R.S.No.83/1 of Chikka-Hanchinal village in Bilagi Taluka by virtue of registered sale deed dated:27-06-2008. Hence, contrary averments one made in para No.6 of the plaint are hereby specifically denied by this defendant.

9. The plaintiff is not entitle to any of the reliefs as sought by her in relief column of the plaint. The plaintiff is not entitle to ½ share in suit properties. The plaintiff is not in exclusive possession of suit properties and as such she is not entitle to a decree for permanent injunction against this defendant and against defendant No.2. Admittedly this defendant is the Karta of family and he has every right to alienate the properties as and when legal necessity aroses and as such injunction restraining this defendant from alienate the properties is not maintainable."

16. The defendant No.2, in his written statement, has

stated as under:

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"2. The plaintiff has absolutely no manner of right, title or interest over suit properties. This defendant prior to purchase of suit land bearing R.S.No.83/1 verified revenue records and mutation entries and satisfied about legal title of defendant No.1 over the same. This defendant prior to purchase of suit and bearing R.S.No.83/1 enquired the existence of legal necessities and family need of defendant No.1 and satisfied himself about existence of legal necessity and further enquired about possession of defendant No.1 over suit land from neighbouring land owned and after necessary enquiry purchased suit land bearing R.S.No.83/1 under registered sale deed dated:27.06.2008 for valuable consideration of Rs.8,34,000/-. Without prejudice to what is stated above this defendant submits that the sale by defendant No.1 in favour of this defendant is for and also on behalf of joint family and the sale is to protect the interest of joint family and the defendant No.1 in the capacity of Karta of joint family executed the sale deed infavour of this defendant and as such the sale deed is not only binding on plaintiff and also the other coparceners of family of defendant No.1. This defendant is a bonafide purchaser for a value and his interest is required to be protected under the provisions of Section 41 of T.P.Act. The defendant No.1 put this defendant in actual possession and enjoyment of suit land bearing R.S.No.83/1 on the date of sale deed itself. After entering into possession

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this defendant invested huge amounts for improvement of suit land.

3. This defendant further submits that for any other reasons if this Hon'ble Court please to decree the plaintiff's suit then share of plaintiff be adjusted in suit land bearing R.S.No.77/3 of Chikka-Hanchinal village and in general partition suit land bearing R.S.No.83/1 allotted to this defendant. The shares of daughter of defendant No.1 and wife of defendant No.1 be also adjusted in land bearing R.S.No.83/1 and allot the same infavour of this defendant. The wife of defendant No.1 has also a party to the sale deed and daughter of defendant No.1 is a witness to the sale deed. Hence, this defendant humbly pray that R.S.No.83/1 of Chikka-Hanchial be allotted to this defendant and share of plaintiff be adjusted in R.S.No.77/3 and remaining area in the said land be adjusted to sharers who are entitled to do so."

17. If the aforesaid pleadings of the parties are

examined, it is clear that the defendant Nos.1 and 2 have

categorically and specifically stated that the sale of Item No.1

property by defendant No.1 along with his wife Tarawwa and

daughter Laxmibai as a consenting witness, was by him in

favour of the appellant/defendant No.2 as the Karta of the joint

family, and that the same was for legal necessity and benefit of

the estate. However, despite the said specific pleadings put

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forth by defendant No.1 as well as defendant No.2, necessary

issue in this regard was not framed by the Trial Court.

However, the parties have adduced oral and documentary

evidence in this regard as can be seen from the evidence of

plaintiff-PW.1, the evidence of defendant Nos.1 and 2/DW.1

and DW.2 as also the loan documents marked as Ex.P4 to

Ex.P10, the Sale Deed at Ex.D1, revenue records and the

certificate issued by the Manager of Corporation Bank,

Jamakhandi-Ex.D5, etc. Under these circumstances, we are of

the considered view that this is the fit case to exercise the

powers conferred upon us under Order XLI Rule 24 of the CPC,

which reads as under:

"24. Where evidence on record sufficient, Appellate Court may determine case finally.- Where the evidence upon the record is sufficient to enable the Appellate Court to pronounce judgment, the Appellate Court may, after resettling the issues, if necessary, finally determine the suit, notwithstanding that the judgment of the Court from whose decree the appeal is preferred has proceeded wholly upon some ground other than that on which the Appellate Court proceeds".

18. Under these circumstances, we deem it just and

appropriate to frame the following additional issue for the

purpose of disposal of the present appeal.

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Additional Issue

"Whether the sale of Item No.1 of the suit schedule property by defendant No.1/Mallappa along with his wife Tarawwa and daughter Laxmibai, vide registered Sale Deed dated 27.06.2008, was for legal necessity and benefit of the estate/joint family?

19. As stated supra, there already exist pleadings as

well as oral and documentary evidence in relation to the

aforesaid additional issue, which have not been considered or

appreciated by the Trial Court in the impugned judgment and

decree. Hence, we are of the considered opinion that there is

no necessity to remit the matter to the Trial Court for re-

consideration or for consideration of the aforesaid additional

issue, which arises from the pleadings of the parties.

20. The aforesaid Sale Deed dated 27.06.2008, which is

marked as Ex.D1, reads as under:

:d«ÄãÀÄ Rjâ ¥ÀvæÀ :

¸ÀgÀPÁj ªÀÄÄzÁæAPÀ ±ÀÄ®Ì: 71,310=00 gÀÆ

©Ã¼ÀV vÁ®ÆPÀ ¥ÉÊQ aPÀ̺ÀAa£Á¼À UÁæªÄÀ zÀ°ègÄÀ ªÀ ºÉƼɬÄAzÀ ¤ÃgÁªÀjªÀżÀî ¨sÁUÁAiÀÄvÀ AiÀÄj ªÀÄtÂÚ£À d«ÄãÀÄ Rjâ ¥ÀvæÀzÀ Rjâ QªÀÄävÀÄÛ gÀÆ: 8.34,000/-(JAlÄ ®PÀëzÁ ªÀÄƪÀvÁß®ÄÌ ¸Á«gÀ gÀÆ. ªÀiÁvÀæ)

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§eÁgÀ ¨sÁªÀzÀ QªÀÄävÄÀ Û gÀÆ: 8.34,000/-(JAlÄ ®PÀëzÁ ªÀÄƪÀvÁß®ÄÌ ¸Á«gÀ gÀÆ. ªÀiÁvÀæ) ¸ÀzÀjà ¥ÀvæÀPÌÉ ªÀÄÄzÁæAPÀ ±ÀÄ®Ì «£Á¬ÄÛ E®è.

²æÃAiÀÄÄvÀ : ®PÀëät vÀA.gÀAUÀ¥àÀ PÀtPÀt »AzÀÆ ±ÉÃvÀÌj, ªÀAiÀiÁ 38 ªÀµÀð, ¸Á:°AUÀ£ÀÆgÀ, vÁ®ÆPÀ dªÀÄRAr, f¯Áè ¨ÁUÀ®PÉÆÃl EªÀjUÉ.

Rjâ ¥ÀvÀæ ¨Éùä:

£ÁªÀÅ 1) ªÀÄ®è¥àÀ vÀA.vÀªÄÀ ätÚ CgÀPÉÃj »AzÀÆ ±ÉÃwÌ, ªÀAiÀiÁ 75 ªÀµÀð, ¸Á:°AUÀ£ÀÆgÀ 2) vÁgÀªéÀ UÀA. ªÀÄ®è¥àÀ CgÀPÉÃj »AzÀÆ ±ÉÃwÌ, ªÀ ªÀÄ£ÉUÉ®¸À, ªÀAiÀiÁ 68 ªÀµÀð ¸Á: °AUÀ£Æ À g, vÁ. dªÀÄRAr, f¯Áè ¨ÁUÀ®PÉÆÃl §gÀPÉÆqÀĪÀ £ÀªÄÀ ä ªÀiÁ°Ì ªÀ»ªÁn ºÉƼɬÄAzÀ ¤ÃgÁªÀjªÀżÀî ¨sÁUÁAiÀÄvÀ AiÀÄj ªÀÄtÂÚ£À d«ÄãÀÄ Rjâ ¥ÀvæÀ K£ÉAzÀgÉ.

zÀ¸ÀÛ §gɹPÉÆAqÀªÀgÀ ¸À» zÀ¸ÀÛ §gÉzÀÄPÉÆlÖªÀgÀ ¸À» ®PÀëöä¥Àà gÀAUÀ¥Àà PÀ£ÀPÀt ªÀÄ.vÀ. CgÀPÉÃj

21. A perusal of the recitals contained in the aforesaid

Sale Deed is sufficient to come to the conclusion that, even

according to the vendor, Mallappa, there were pre-existing

loans taken by him, including the loan obtained from

Corporation Bank in relation to Item No.1 of the suit schedule

property. In fact the Sale Deed itself states that the purchaser,

i.e., appellant/defendant No.2, would be liable to repay the pre-

existing loans in relation to the suit schedule property taken by

Mallappa. However, since the appellant/defendant No.2 was the

purchaser only in respect of Item No.1 of the suit schedule

property, and it is undisputed that the appellant had neither

purchased nor acquired any manner of right, title, interest or

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possession over Item No.2 of the suit schedule property, the

liability of the appellant/defendant No.2, being a purchaser,

would be restricted to repayment of the loan in respect of Item

No.1 property, and the same cannot not be extended to Item

No.2 of the suit property.

22. As stated earlier, the aforesaid facts and

circumstances, including the material on record comprising the

pleadings of the parties, the undisputed fact that Mallappa was

the Karta of the joint family, the clear recitals in the Sale Deed,

which has been executed at an undisputed point of time,

revenue records, loan documents, etc., would cumulatively

establish that the sale of Item No.1 of the suit schedule

property by Mallappa, Tarawwa and Laxmibai was for legal

necessity and for benefit of the estate, in particular to repay

the loan taken by Mallappa prior to execution of the Sale Deed.

However, such liability of the appellant/defendant No.2 to repay

the loan, is subject to the condition that the liability of

repayment of loan by the appellant in terms of the Sale Deed

must be restricted only to Item No.1 of the suit schedule

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property and the same cannot be extended to Item Nos.2 and 3

of the suit schedule properties.

23. Under these circumstances, we answer point Nos.(i)

and (ii) in the affirmative holding that the sale of Item No.1

property was for legal necessity and for the benefit of the

estate, and that the appellant's liability to repay the loan shall

be confined solely to Item No.1 property and the appellant shall

not have any liability in relation to the remaining two items of

the suit schedule properties. Accordingly, the suit filed by

respondent No.1/plaintiff is to be dismissed to that extent, and

the present appeal is to be allowed accordingly.

Regarding Point No.(iii):

24. While dealing with point Nos.(i) and (ii) (supra), we

have already come to the conclusion that, the sale of Item No.1

property by Mallappa, Tarawwa and Laxmibai, as a consenting

witness was by the Mallappa as the Karta of the joint family

and for legal necessity and benefit of the estate. Consequently,

the same would be binding upon the respondents' alleged share

in the suit schedule properties. It follows there from that since

the sale in favour of the appellant in relation to the entire

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extent of Item No.1 property has already been held by us to be

a valid sale transaction, the same would be binding upon

respondent No.1, who would not be entitled to any share in

Item No.1 of the suit schedule property.

25. We have already noticed above, that the present

appeal is restricted only to Item No.1 property and not in

relation to Item Nos.2 and 3 of the suit schedule properties, in

relation to which, the impugned judgment and decree would

have to be confirmed.

26. However, the liability of the appellant/defendant

No.2 to repay the loan would necessarily have to be restricted

only to Item No.1 of the suit schedule property, of which he is

the purchaser and his liability would not stand extended or

involve Item Nos.2 and 3 property, which were not purchased

by him nor were the subject matter of Sale Deed. Accordingly,

the present appeal deserves to be allowed and the impugned

judgment and decree passed by the Trial Court deserves to be

modified by dismissing the suit in respect of the Item No.1 and

confirming the impugned judgment and decree in relation to

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Item Nos.2 and 3 of the suit schedule properties by imposing

certain conditions.

27. Hence, the following:

ORDER

a) The appeal is hereby allowed;

b) The judgment and decree dated 29.11.2018

passed in O.S.No.15/2008 on the file of Senior

Civil Judge and JMFC, Bilagi, is modified to the

extent of Item No.1 of the suit schedule

property;

c) The suit of the plaintiff in respect of Item No.1

property is hereby dismissed and the impugned

judgment and decree in relation to the said

property is hereby set aside;

d) The impugned judgment and decree in respect of

Item Nos.2 and 3 of the suit schedule properties

is hereby confirmed;

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e) The appellant/defendant No.2 is liable to repay

the entire loan amount only insofar as Item No.1

of the suit schedule property is concerned and his

liability will not be extended and will not be in

relation to Item Nos.2 and 3 of the suit schedule

properties;

f) Registry to draw modified decree accordingly;

Sd/-

(S.R. KRISHNA KUMAR) JUDGE

Sd/-

(C.M. POONACHA) JUDGE

PMP CT-MCK