The court ruled that plaintiffs failed to prove a mortgage, and the property was validly sold, negating their claims to the property as heirs.

JUDGMENT :

V.SRISHANANDA, J.

Heard Sri Satish K. learned counsel for the legal representatives of the appellant No.1(a) and Sri C.Pattabiraman, learned counsel for respondent No.3.

2. Unsuccessful plaintiffs are the appellants before this Court challenging the validity of the judgment and decree dated 06.07.2007 passed in O.S No.2137/1995 on the file of the XVIII Additional City Civil Judge, Bengaluru (CCH-32).

3. Facts in the nutshell which are utmost necessary for disposal of the present appeal are as under:

A suit for partition and separate possession in respect of the following property hereinafter referred as ‘suit property’ came to be filed by the plaintiffs.

“The residential premises bearing No.103, (Old No.24), 19^th Cross (formerly known as 18^th Cross), Lakshmipura, Ulsoor, Bengaluru-8, measuring 37½ feet East to West and 15 feet North to South and bounded as follows:

East by: Road,

West by: Andhara Block,

North by: N.D.Abbaiah’s property,

South by: House of Guruprasad.”

4. Plaint averments would reveal that suit property was owned by Andemala Venkataiah, who was the husband of first plaintiff and father of plaintiffs Nos.2 to 4 and defendant Nos.1 and 2. Said Andemala Venkataiah had purchased the suit property under the registered sale deed dated 14.11.1966 and he was in possession of the property. He died on 15.10.1974 leaving behind plaintiffs and defendant Nos.1 and 2 as his legal heirs.

5. During his lifetime, Andemala Venkataiah had mortgaged the suit property in favour of Mohd. Sanaulla Sharief on 14.09.1967 and it is the second defendant who got released the mortgage from Mohd. Sanaulla Sharief. Thereafter, the plaintiffs and defendants Nos.1 and 2 were in possession of the suit property. As such, defendant Nos.1 and 2 are not the absolute owners of the suit property.

6. It is further contented that first defendant being the eldest son in the family, was acting as Manager of the joint family and he is said to have entered into an agreement to sell in respect of the suit property.

7. It is further contented that defendant No.1 has no right to sell the share of the plaintiffs in the suit property and thus sought for partition of the suit property, as Andemala Venkataiah died intestate leaving behind plaintiffs and defendants Nos.1 and 2 are the legal heirs.

8. Defendant Nos.1 and 2 entered appearance before the Court, but failed to file any written statement.

9. It is defendant No.3 who alone contested the suit by filing detailed written statement.

10. In the written statement of defendant No.3, contention of plaintiff Andemala Venkataiah mortgaging the suit property to Mohd. Sanaulla Sharief is denied. Plaintiffs and defendant No.2 redeeming the said mortgage is also denied. Plaintiffs’ claim that they are in possession of the suit property is also denied as the defendant No.3 purchased the suit property from Andemala Venkataiah himself and not from second defendant after redeeming the mortgage.

11. There is a specific contention in the written statement of defendant No.3 that there was a sale deed executed by Andemala Venkataiah on 14.09.1967. Therefore even assuming that the Andemala Venkataiah died intestate, plaintiffs and Defendant Nos.1 and 2 are having right over the suit property by way of intestate succession cannot be countenanced in law and sought for dismissal of the suit.

12. Based on the rival contents of the parties, learned Trial Judge raised following issues:

(1)(a) Whether the plaintiffs prove that suit property was mortgaged by Andemala Venkataiah in favour of Mohammed Sanaulla and the mortgage debt was discharged by D-2 In his capacity as Kartha