Karnataka High Court
Raja Ram vs Smt. Asha Bi W/O Allabax Pendheri on 11 February, 2013
Author: A.N.Venugopala Gowda
Bench: B. Manohar, A.N.Venugopala Gowda
IN THE HIGH COURT OF KARNATAKA
CIRCUIT BENCH AT DHARWAD
DATED THIS THE 23RD DAY OF NOVEMBER 2012
BEFORE
THE HON'BLE MR.JUSTICE B. MANOHAR
*R.S.A.* NO.230/2004 (PAR) *Corrected Vide
C.O. dt.11.02.13*
BETWEEN:
P.S to Hon'ble
1. RAJA RAM ANVGJ
S/O.MAHADEV PHADAKE
SINCE DECEASED BY L.RS.
1(a) BHAGYASHREE,
W/O.RAJARAM
AGED ABOUT 60 YEARS.
1(b) SRI ATUL
S/O.RAJARAM @ BALACHANDRA
AGED ABOUT 39 YEARS.
1(c) SRI SAILESH
S/O.RAJARAM @ BALACHANDRA
AGED BOUT 33 YEARS.
APPELLANT No.1(a) to 1(c) ARE
R/A KACHERI ROAD, NEAR
SBI JAMKHANDI.
1(d) SMT.MANASI
D/O.RAJARAM @ BALACHANDRA
R/a.ERRADONA PARK
BEHIND INCOME TAX LANE
HOUSE No.61/22, BHARAT
2
NIVAS COLONY, AKSHAR DEV
BUNGALOW, PUNE,
MAHARASHTRA.
2. SRI.MUKUND
S/O.MAHADEV PHADAKE
MAJOR, C/O.AT LAXMI MEDICAL
STORES, NEAR STATE BANK,
JAMAKANDI, BAGALKOT DIST.
3. SRI.SUNIL
S/O.MAHADEV PHADAKE
MAJOR, C/O.AT LAXMI MEDICAL
STORES, NEAR STATE BANK,
JAMAKANDI, BAGALKOT DIST. APPELLANTS
(By Smt. V VIDHYA IYER, ADV.)
AND
1. SMT.ASHA BI, W/O.ALLABAX PENDHERI
MAJOR, OCC.HOUSEHOLD WORK
R/A PENDHARI GALLI, JAMKHANDI
2. SMT.MUNITAJBI
W/O.IMAMSAHEB PENDHERI
MAJOR, HOUSEHOLD WORK
R/AT.PENDHARI GALLI
JAMKHANDI.
3. SMT.ROSHANBI
W/O.GULAB PENDHERI
MAJOR, HOUSEHOLD WORK
R/AT.PENDHARI GALLI
JAMKHANDI
3
4. SRI.CHANDSAHEB
S/O.GULABSAHEB PENDHARI
MAJOR, OCC.MOTOR BUSINESS
R/AT.PENDHARI GALLI
JAMKHANDI
5. SRI.ABDULSAHEB
S/O.GULABSAHEB PENDHARI
MAJOR, OCC.MOTOR BUSINESS
R/AT.PENDHARI GALLI
JAMKHANDI
6. SRI.MUSA
S/O.GULABSAHEB PENDHARI
MAJOR, OCC.MOTOR BUSINESS
R/AT.PENDHARI GALLI
JAMKHANDI
7. SMT.JUBEDABI
W/O.ABDULLA PENDHARI
MAJOR, OCC.HOUSEHOLD WORK
R/AT.PENDHARI GALLI
JAMKHANDI
8. SMT.JARINA
W/O.MADARSAHEB SAYYAD
MAJOR, OCC.HOUSEHOLD WORK
R/AT.PENDHARI GALLI
JAMKHANDI
9. SMT.TAIMURA
W/O.MADARASAHEB SAYYAD
MAJOR, OCC.HOUSEHOLD WORK
R/AT.SUBASHNAGAR
NEAR MASJID, MIRAJ
DIST.SANGLI
4
10. SRI.ABDUL AZIZ
SINCE DECEASED BY L.Rs.
10(a) SMT.GULSHAN BI
W/O.LATE ABDUL AZEEZ
AGED ABOUT 78 YEARS.
10(b) SRI MOHAMMED HANIF
S/O.ABDUL AZEEZ
AGED ABOUT 50 YEARS.
10(c) SRI IQBAL
S/O.LATE ABDUL AZEEZ
ALL ARE R/A.PENDHARI GALLI
NEAR MASJID, JAMAKHANDI
BAGALKOT DISTRICT
11. SRI.AMEER, S/O.CHANDSAB PENDHARI
MAJOR, OCC.MOTOR BUSINESS
R/AT.PENDHARI GALLI
JAMAKHANDI. RESPONDENTS
(By Sri M G NAGANURI, ADV. FOR R1-R3
R4 TO R9, R10(a) to (c) & R11 ARE SERVED)
RSA IS FILED U/S. 100 OF CPC AGAINST THE
JUDGEMENT & DECREE DATED 13.11.2003 PASSED IN
R.A.NO 117/1997 ON THE FILE OF THE PRL. CIVIL JUDGE
(SR.DN.), JAMKHANDI, DISMISSING THE APPEAL AND
CONFIRMING THE JUDGEMENT AND DECREE DATED
16.8.1997 PASSED IN O.S. NO 109/1982 ON THE FILE OF
THE I ADDL. MUNSIFF, JAMKHANDI.
5
*Corrected vide THIS *RSA HAVING BEEN HEARD AND RESERVED
C.o. dtd.11/2/13
AND COMING ON FOR PRONOUNCEMENT OF ORDER THIS
P.S to Hon'ble DAY, THE COURT DELIVERED THE FOLLOWING:
ANVGJ
JUDGMENT
The appellants are defendants in O.S.No.109/1982. Being aggrieved by the judgment and decree dated 13-11-2003 made in R.A.No.117/1997 passed by the Principal Civil Judge (Sr.Dn.), Jamkhandi dismissing the appeal and confirming the judgment and decree dated 16-08-1997 made in O.S.No.109/1982 passed by the Additional Munsiff, Jamkhandi, decreeing the suit filed by the plaintiffs, the appellants have filed this appeal.
2. For the purpose of convenience and better understanding, the rank of the parties is referred to as in the suit before the trial Court.
3. Respondents 1 and 2 in this appeal are the plaintiffs. They filed a suit seeking for partition and separate possession of their 1/4th share in the suit 6 schedule property by metes and bounds and also sought for setting aside the sale deed executed by defendants 4 to 6 in favour of defendants 1 to 3 to the extent of plaintiffs' 1/4th share in the suit schedule property. The plaintiffs have contended that CTS No.1535 two storied building measuring 43.88 sq.mtrs. situated at Jamkhandi is the suit schedule property. The plaintiffs 1 and 2 and defendants 4 to 6 are the sons and daughters of Khatunbi wife of Chandsaheb Pendhari. She died on 18-2-1969. Khatunbi is the owner of the said property and died intestate. The plaintiffs 1 and 2 and defendants 4 to 6 have jointly succeeded the suit schedule property and continued to be in joint enjoyment of the said property. As per the Mohammedan Law, the sons are entitled for double portions of the shares to that of daughters. In view of that, defendants 4 to 6 together entitled for 3/4th share and plaintiffs together entitled for 1/4th share in the suit schedule property. The defendants 1 to 3 were in possession of the suit schedule 7 property as tenants. The defendants 1 to 3 instigated defendants 4 to 6 to alienate the suit schedule property in their favour though the plaintiffs have right in respect of their 1/4th share in the said property by inheritance. Defendants 4 to 6 without the knowledge and consent of the plaintiffs alienated the suit schedule property on 28-04-1972 in favour of defendants 1 to 3 for a paltry sum of Rs.12,000/-. The plaintiffs are illiterate women and they were not aware of the sale deed dated 28-04-1972 executed by defendants 4 to 6. Immediately, after coming to know of the said sale deed, the plaintiffs got issued a legal notice to defendants 1 to 3 on 15-5-1976 stating that they have got 1/4th share in the suit schedule property and without their knowledge and notice, alienation has been made by defendants 4 to 6 which is not binding on them. Defendants 1 to 3 issued reply notice on 2-6-1976 denying the contentions of the plaintiffs stating that defendants 4 to 6 are the absolute owners of the property and they have alienated the 8 properties and plaintiffs have no right. In view of that the plaintiffs filed a suit seeking for partition and separate possession of their 1/4th share and also sought for setting aside the sale deed to an extent of sale of plaintiffs' 1/4th share in favour of defendants 1 to 3.
4. In pursuance to the notice issued by the trial Court, the defendants 1 to 3 entered appearance and defendant No.1 filed written statement and defendants 2 and 3 adopted the same. The defendants 4 and 5 though entered appearance through their counsel have not filed any written statement. The 6th defendant remained exparte. During the pendency of the suit, defendant No.4 expired and his legal representatives are brought on record and they remained exparte.
5. The first defendant in his written statement denied the entire allegations and assertions made in the plaint. The defendants 1 to 3 have denied the relationship of the plaintiffs as sisters of defendants 4 to 6 and the 9 daughters of Khatunbi. They also denied that Khatunbi was the owner of the suit schedule property. The plaintiffs have no right, title and interest over the suit schedule property. The defendants 4 to 6 are the owners in possession of the property and they have leased the suit schedule property to them. Due to the financial difficulties and in order to settle the dues of the Urban Co-operative Bank, they had alienated the property for a valuable consideration. Before purchasing the property, they had verified the title deed of defendants 4 to 6. The entries in City Survey Office show that defendants 4 to 6 are the owners of the property. The plaintiffs have not made any attempt to get their names entered in the records. A local enquiry made depicted that defendants 4 to 6 are the only owners of the property. Accordingly, they purchased the suit property and they are the bonafide purchasers of the property for a valuable consideration. Hence, they are protected under Section 41 of the Transfer of Property Act. Even assuming that 10 the plaintiffs are the sisters of defendants 4 to 6, they are not estopped from contending that they have any share much less 1/4th share. They have not exercised their rights and they have given implied consent to alienate the property. Further the suit filed by the plaintiffs is barred by limitation. The property was purchased on 28-4-1972 and the suit has been filed in the year 1982. It was barred by limitation and sought for dismissal of the suit.
6. On the basis of the pleadings of the parties, the trial Court framed the following issues and additional issues:
1) Do plaintiffs prove that they are the sisters of defendants 4 to 6?
2) Do they further prove that their mother Khatunabi was the exclusive owner of the suit property and they have got together 1/4th share in the suit property?
3) Do they also prove that defendants 1 to 3 malafidely made a common cause with defendant 4 to 6 to dupe and deprive the 11 valuable rights of the plaintiffs over the suit property?
4) Do they further prove that the sale-deed for Rs.12,000/- executed by defendants 4 to 6 in favour of defendant No.1 to 3 is not according to the actual consideration of Rs.24,000/- and thereby the defendants have committed fraud on the Stamp Law?
5) Do defendants 1 to 3 prove that they are the bonafide purchasers of the suit property after making reasonable enquiry?
6) Do they also prove that the plaintiffs have filed this suit in collusion with defendant 4 to 6?
7) Do they further prove that the suit is not maintainable without the prayer of declaration?
8) Whether the plaintiffs entitled for the suit claim?
9) What order or decree?
Addl. Issues
1) Whether defendants prove that plaintiffs are excluded from suit property more than 12 years back prior to the suit. Hence, the suit is barred by time?
12
2) Whether defendants 1 to 3 prove that they have become the owner of the suit property by Adverse possession?
7. The plaintiffs in order to prove their case examined plaintiff No.1 as P.W.1 on behalf of both the plaintiffs and examined 4 other witnesses as P.W.2 to P.W.5 and relied upon Ex.P.1 to Ex.P.19. On behalf of the defendants the first defendant got examined himself as D.W.1 and examined 2 other witnesses as D.W.2 and D.W.3 and got marked the documents as Ex.D1 to Ex.D15.
8. The trial Court after considering the arguments addressed by the parties on appreciating the oral and documentary evidence let in by the parties held issue No.1 to 3 & 8 in the affirmative and issues 4 to 7 in the negative. Consequently, by its judgment and decree dated 16-08-1997 decreed the suit and declared that the plaintiffs are entitled for 1/4th share in the suit schedule property and they are entitled for partition and separate 13 possession in the suit schedule property by metes and bounds. The defendants 1 to 3 who are the purchasers of the property from defendants 4 to 6 are entitled for 3/4th share in the suit schedule property.
9. The defendants 1 to 3 being aggrieved by the judgment and decree dated 16-08-1997 made in O.S.No.109/1982 filed R.A.No.117/1997 on the file of the Principal Civil Judge (Sr.Dn.) Jamkhandi, contending that the judgment and decree passed by the trial Court is contrary to law, facts and evidence on record. The trial Court has not properly appreciated the oral and documentary evidence adduced by the parties. The trial Court misunderstood and misread article 59 of the Limitation Act. Further, the trial Court has failed to appreciate Section 41 of the Transfer of Property Act in proper perspective. The sale transaction is of the year 1972 and the suit has been filed in the year 1982, hence the suit filed by the plaintiffs is barred by limitation. The 14 plaintiffs ought to have filed the suit within a period of 3 years from the date of death of their mother. Though their mother died in the year 1969, a legal notice was issued to defendants 1 to 3 only in the year 1976 and the suit has been filed in the year 1982. The suit filed by the plaintiffs is barred by limitation. The trial Court ought to have dismissed the suit on the said grounds and considered the Limitation issue as a preliminary issue. The entire approach made by the trial Court is contrary to law and sought for setting aside the same.
10. The Lower Appellate court after considering the arguments addressed by the parties framed the following points for its consideration:
1. Whether the trial Court committed any error in appreciating the evidence brought on record both oral and documentary?
2. Whether the trial Court committed any error in granting the relief of declaration when the defendants 1 to 3 are the statutory tenants in respect of the suit schedule property?15
3. Whether the trial Court committed any error in relying on the documents produced by the plaintiffs for establishing their relationship with Khatunbi?
4. Whether the trial Court failed to discern that the plaintiffs suit is barred by time and that defendants 1 to 3 have perfected their title by adverse possession & also they being the owners of the property in pursuance to the Registered Sale Deed dated 28.4.1972?
5. What Order?
11. The Lower Appellate Court on reappreciating the oral and documentary evidence adduced by the parties, held all the points against the appellants, consequently, by its judgment and decree dated 13-11-2003 dismissed the appeal confirming the judgment and decree passed by the trial Court with a modification to the extent that the plaintiffs shall pay the adequate court fee on their share in the suit schedule property. It is held that the plaintiffs are entitled for 1/4th share in the suit schedule property and they are also entitled for partition and separate possession of the suit schedule property by 16 metes and bounds. It is declared that the sale deed dated 28-04-1972 is not binding on the plaintiffs to the extent of their 1/4th share in the suit schedule property. The appellants being aggrieved by the judgment and decree passed by the Appellate Court filed this appeal.
12. Smt.V.Vidya, learned counsel appearing for the appellants contended that the judgment and decree passed by the courts below are contrary to law, highly illegal and unjust. The courts below have committed serious illegalities in holding that sale deed executed by the defendants 4 to 6 does not bind the plaintiffs. While ordering so, the courts below have not considered the material records. The non-consideration of materials and evidence on record resulted in miscarriage of justice. Further, the courts below failed to appreciate the fact that the appellants had purchased the property in the year 1972 and prior to the purchase of the said property, they were statutory tenants. The suit came to be filed in 17 the year 1982, though the plaintiffs were aware of the purchase of the property by the defendants 1 to 3 much earlier. Hence, the suit filed by the plaintiffs is barred by limitation and the limitation prescribed is for a period of 3 years. After lapse of 10 years, the prayer for declaration has been sought hence it is barred by limitation. Further, the mother of the plaintiffs died on 28-2-1969. As per the Article 65 of the Limitation Act, the limitation prescribed to file a suit is 12 years from the date of death of a Hindu or Muslim Female. In the instant case, the mother of the plaintiffs died on 28-2-1969 and the suit has been filed in the year 1982. Hence, the suit is barred by limitation. The courts below have not considered the effect of Section 65 of the Limitation Act. Further, the appellants are entitled to protection under Section 41 of the Transfer of Property Act since they are bonafide purchasers of the property for a valuable consideration. She has relied upon the judgment reported in II (2006) CLT 37(SC) (JAGAT RAM 18 v/s VARINDER PRAKASH). Hence sought for allowing the appeal by setting aside judgment and decree passed by the both the courts below.
13. On the other hand, Sri.M.G.Naganuri, learned counsel appearing for the Respondents 1 to 3 argued in support of the judgment and decree passed by the courts below and contended that Khatunbi is the propositus of the property and she has two daughters and three sons. She died intestate. After her death, her children became the co-owners of the suit schedule property and each one of them are having definite share in the said property. As per the Mohammedan Law, sons are entitled for double share than the daughters. By operation of law, both the plaintiffs are entitled for 1/4th share whereas defendants 4 to 6 together are entitled for 3/4th share. The possession of defendants 4 to 6 is as co-owners and they cannot alienate the shares of the plaintiffs, though the mutation entries stand in their names. Further, the 19 appellants are fully aware of the fact that the Respondents 1 and 2 are entitled for 1/4th share in the property. The records clearly disclose that the mother of the plaintiffs and defendants 4 to 6 has leased the property in favour of the father of defendants 1 to 3. In the sale deed dated 28-4-1972 it was averred that along with defendants 4 to 6 their sisters are also the owners of the suit schedule property. The defendants 1 to 3 are fully aware of the said fact. No effort has been made to obtain the consent of the plaintiffs. Hence it is not open to the defendants 1 to 3 to contend that they are the bonafide purchasers of the property. Hence, they are not entitled for protection under Section 41 of the Transfer of Property Act. Further, immediately after coming to know of the execution of the sale deed, a legal notice was issued to the appellants on 15-5-1976 stating that the sale deed dated 28-4-1972 is not binding on the plaintiffs. In the reply notice they have denied that the plaintiffs are the sisters of the defendants 4 to 6 and 20 children of Khatunbi and contended Khatunbi is not the owner of the property though they have taken the property on lease from Khatunbi herself. The suit has been filed in the year 1982 within a period of 12 years from the date of their knowledge. Hence, the suit is not barred by limitation. Article 65 covers the field. Articles 58 and 59 of the Limitation Act are not applicable to the case on hand and sought for dismissal of the appeal.
14. I have carefully considered the arguments addressed by the parties and perused the oral and documentary evidence adduced by the parties.
15. The above appeal has been admitted on 24-8-2004 to consider the following substantial questions of law:
(i) Whether the courts below are justified in holding that the suit is in time in view of the provisions of the Limitation Act in the given circumstances?
(ii) Whether the courts below are justified in giving a finding against the appellant in the light of Section 41 of the Transfer of Property Act?21
(iii) Whether the approach of the court below is justified in law in the light of the bonafide nature of sale transaction of the appellants?
16. The records clearly disclose that the plaintiffs 1 and 2 and defendants 4 to 6 are the children of Khatunbi wife of Chandsaheb Pendhari. She is the owner of CTS No.1535, a two storied building at Jamkhandi town. The said building was purchased by Khatunbi from Kadappa Veerabhadrappa Manoji. Ex.D.1 discloses the said fact. The said property was leased in favour of the father of defendants 1 to 3. Ex.P6 and Ex.P7 rent notes clearly disclose that Khatunbi leased the property in favour of father of defendants 1 to 3. Hence, Khatunbi is the absolute owner of the said property. She died on 18-2-1969 leaving behind two daughters and three sons. As per the Mohammedan Law, the plaintiffs are entitled for 1/4th share and defendants 4 to 6 are entitled for 3/4th share. It was in the joint occupation of the 22 plaintiffs and defendants 4 to 6 and they became the co- owners to the definite share in the said property. Hence one co-owner cannot claim adverse possession against another co-owner. Defendants 4 to 6 though they are the owners of their 3/4th share, they alienated entire extent of suit schedule property in favour of defendants 1 to 3 who were the tenants in possession of the suit schedule property. In the sale deed dated 28-4-1972, a recital has been made to the extent that apart from defendants 4 to 6 two of their sisters are also owners of the said property and the sisters have no objection to alienate the property. If there is any dispute, the defendants 4 to 6 will solve the same. This recital clearly discloses that the plaintiffs 1 and 2 are the owners of the property. The defendants 1 to 3 have not taken the consent of plaintiffs who are the owners in respect of 1/4th share in the suit schedule property. On the other hand, the case of the defendants 1 to 3 is that Khatunbi is not the owner of the suit schedule property and plaintiffs 1 and 2 are not the 23 sisters of defendants 4 to 6 and daughter of Khatunbi. The voluminous documents have been produced before the court to show that the plaintiffs are daughters of Khatunbi. In support of their contentions, they examined four witnesses and produced the documents at Ex.P1 and Ex.P12 and Ex.P13(a) and (b) which are the marriage extract and Nikha registration. The School transfer certificate is also produced to show that the plaintiffs are the daughters of Khatunbi. The defense of the defendants 1 to 3 that before purchasing the property, they had verified the records and found that the names of defendants 4 to 6 have been entered in the revenue records and they are the bonafide purchasers for a valuable consideration and they are entitled for protection under Section 41 of the Transfer of Property Act cannot be accepted. The documents produced by the plaintiffs clearly disclose that the defendants 1 to 3 were fully aware of the fact that the plaintiffs are the owners in respect of 1/4th share and Ex.P9 the sale deed dated 24 28-4-1972 discloses the said fact. The said sale deed was prepared by the Advocate of defendants 1 to 3 and they were fully aware of the contents of the said sale deed. Hence, it is not open to them to contend that they were not aware of the fact that the plaintiffs are the owners in respect of 1/4th share. Hence, the appellants are not entitled for any protection under Section 41 of the Transfer of Property Act and they are not the bonafide purchasers of the property.
17. With regard to the limitation is concerned, the main contention urged before the courts below is that Articles 58 and 59 are applicable and suit ought to have been filed within a period of 3 years. In the instant case, the suit has been filed after 10 years and the suit is barred by limitation. The court below considered the contention raised by the appellants and found that the plaintiffs have sought for partition and separate possession of their 1/4th share in the property and also sought for setting 25 aside the sale insofar as their 1/4th share is concerned and they have not sought for setting aside the entire sale deed. This court in a judgment reported in AIR 1991 KAR 273 in the case of SESHUMALLU M.SHAH v/s SAYED ABDUL RASHID AND OTHERS has held that article 65 of the Limitation Act is applicable and not Article 58. I find that there is no infirmity or irregularity in the said finding. Though the defendants 4 to 6 executed the sale deed on 28-4-1972, immediately after coming to know of the same, the plaintiffs issued a legal notice to the defendants 1 to 3 on 25-5-1976 and the suit has been filed in the year 1982. Hence, the suit has been filed within the limitation period of 12 years under Article 65 of the Limitation Act.
18. Smt.V.Vidya, advocate appearing for the appellants contended that as per Article 65B of the Limitation Act, where the suit is filed by a Hindu or Muslim entitled to possession of immovable property on the death of Hindu 26 or Muslim female, the possession of the defendant shall be deemed to become adverse only when the female dies. In the instant case, Khatunbi died on 28-2-1969. The plaintiffs ought to have filed a suit within a period of 12 years, from the date of death of the said Khatunbi. This aspect of the matter has not been considered by the courts below. She also relied upon the judgment reported in II (2006) CLT 37 (SC) cited supra. On the other hand, Sri.Naganuri, advocate appearing for Respondents 1 to 3 contended that article 65B of the Limitation Act is applicable only in the case of holder of limited estate. After their death, it reverses back to the original holder. In the instant case, Khatunbi is the absolute owner of the suit schedule property and after her death, by operation of law, the plaintiffs as well as defendants 4 to 6 became the co-owners and each one of them are having definite share in the property. Hence, article 65B is not applicable to the facts of the present case. He relied upon the commentary on Limitation Act, 27 1963 by Sanjeeva Rao, IX Edition. He also relied upon the judgment reported in AIR 1991 KAR 273 (SESHUMULL M SHAH v/s SYED ABDUL RASHID AND OTHERS) wherein this court examined articles 65 and 68 of the Limitation Act and held that the suit for declaration that the plaintiffs are the owners of the property and possession has been claimed as consequence of declaration, which governs article 65 and not article 68 of the Limitation Act. In the instant case, the plaintiffs have sought for partition and possession of the property and also declaration that the sale deed dated 28-4-1972 is not binding on the plaintiffs insofar as their 1/4th share is concerned. Hence, article 65 of the Limitation Act is applicable and the suit has been filed within the period of limitation.
19. Both the courts below on appreciating oral and documentary evidence produced by the parties came to the conclusion that Khatunbi is the owner of the suit 28 schedule property and after her death, plaintiffs as well as defendants 4 to 6 became the co-owners and each one of them are having a definite share in the suit schedule property by operation of law. The defendants 4 to 6 without the consent of the plaintiffs alienated their 1/4th share in favour of defendants 1 to 3. Ex.P9 clearly discloses that the plaintiffs are the co-owners in respect of the suit schedule property, which was alienated by defendants 4 to 6 in favour of defendants 1 to 3. The defendants 1 to 3 were fully aware of the said fact. Ex.P9 was prepared by the advocate of defendants 1 to 3. On the instructions of the said advocate, it was written by one Appaji Master. The recital in the sale deed clearly discloses that apart from defendants 4 to 6, two of their sisters are also the owners of the said property. The two sisters are none other than the plaintiffs in the suit. Without the consent of the plaintiffs, the defendants 1 to 3 purchased the entire property though the defendants 4 to 6 are the owners only in respect of 3/4th share in the 29 property. They cannot sell the entire property. The evidence clearly discloses that the defendants 1 to 3 were fully aware of the said fact. Hence, they cannot claim that they are the bonafide purchasers of the property and entitled to claim protection under Section 41 of the Transfer of Property Act. The plaintiffs are lawful owners of their 1/4th share and they cannot be denied their property right. The judgment relied upon by the appellants is not applicable to the facts of the present case.
20. I find that there is no infirmity or irregularity in the finding arrived at by the trial Court in decreeing the suit and also declaring that the plaintiffs are entitled for 1/4th share in the property. The finding arrived at by the court below is on the basis of the evidence available on record. The appellants have not made out a case to interfere with the concurrent finding recorded by both the courts below. The substantial questions of law framed in this 30 appeal are held against the appellants. Accordingly, the appeal is dismissed.
Parties to bear their own costs.
Sd/-
Judge mpk/-*