Sale executed for legal necessity within family relationships is valid unless substantial conditions for re-conveyance are clearly proven.

JUDGMENT :

SHIVASHANKAR AMARANNAVAR, J.

1. This second appeal is filed by appellants who are LRs of plaintiff, challenging the judgment and decree dated 19.01.2013 passed in R.A.No.30/2004 by the Presiding Officer, Fast Track Court-I/II, Bijapur and the judgment and decree dated 27.03.1995 passed in O.S.No.312/1987 by the Prl. Munsiff Court, Bijapur.

2. Heard learned counsel for the appellants and learned counsel for the respondents.

3. The appellants are LRs of plaintiff and respondents are LRs of defendant.

4. The plaintiff filed a suit for partition and separate possession of his ½ share in the suit properties. The suit properties are (i) R.S.No.500/1+2/A measuring 13 acres 02 guntas and (ii) R.S.No.500/1+2/B measuring 04 acres 08 guntas.

5. It is the case of the plaintiff before the Trial Court that plaintiff and defendant are full brothers and their father Jatteppa died 15 years ago and the suit lands are ancestral properties of the parties to the suit and they constitute a Joint Hindu Family and there was no partition between them. The further case of the plaintiff is that in the year 1944, the plaintiff was minor and at that time the family of the plaintiff was in financial difficulty. Therefore, the defendant and their mother as guardian of the plaintiff executed a registered sale deed and sold R.S.No.500/1+2 measuring 13 acres 02 guntas to one Ladlesaheb Talikot. It is the contention of the plaintiff that the said sale deed was not an out and out sale, but with a condition of re- conveyance. It is further case of the plaintiff that the suit property bearing R.S.No.500/1+2/B measuring 04 acres 08 guntas has been granted by the Land Tribunal in favour of defendant and the plaintiff is having ½ share in the said property.

6. The defendant in his written statement admitted the relationship between the parties and has also admitted that the mother of the parties sold property measuring 13 acres 02 guntas in R.S.No.500/1+2 for legal necessity of their family to one Ladlesaheb Talikot in the year 1944. The defendant contended that the land measuring 04 acres 08 guntas in R.S.No.500/1+2/B has been granted by the Land Tribunal on 28.10.1974 and subsequently, the plaintiff has executed a sale deed dated 14.05.1975 and sold his ½ share in favour of the defendant. The defendant has contended that the said Ladlesaheb Talikot who has purchased item No.1 of suit property has not been made as a party.

7. The Trial Court on the basis of the said pleadings has framed the following issues :-

I. Whether the plaintiff proves that the suit lands are the Hindu undivided joint family properties of himself and defendant?

II. Whether the plaintiff further proves that the defendant being their elder brother is the Manager of their joint family?

III. Whether the defendant proves that himself and plaintiff are separated about more than 30 years back?

IV. Whether the defendant further proves that the plaintiff has sold his half share (2 acres 4 guntas) of the suit Sy.No.500/1+2/B for his family and legal necessity under a registered sale deed dated 14.05.1975 for a valid consideration of Rs.3,500/-.

V. Whether the plaintiff proves that the grant of tenancy right in TNC.SR.No.111/5/74 dated 28.10.1974 and the order of the Land Tribunal Bijapur in order No.KLR.SR.4 dated 22.01.1975 are for the benefit of their joint family?

VI. Whether the defendant proves his exclusive title to the suit lands in his individual capacity?

VII. Whether this Court has no pecuniary jurisdiction to try this suit?

VIII. Whether the plaintiff has not paid the proper and sufficient Court fee?

IX. Whether the plaintiff proves that he has got his ½ sha