In view of their obstruction, Krishna Rao instituted the suit out of which the present appeal arises, for a declaration of his title to the sites in question, and for an injunction restraining the defen dants from interfering with his possession, or in the alternative, for a decree in ejectment if they were held to be in possession.
On 25 1 1938, Saldhana, who was the agent of Chapman, and became his executor on his death, sold the building sites number in dispute and forming part of the properties purchased in companyrt auction, to Krishna Rao, the plaintiff in the present action.
In execution of this decree, the properties were sold in companyrt auction sometime in 1936, and purchased by one Chapman, and possession was taken by him through companyrt on 18 2 1937.
5,000 as damages.
At the trial, as already stated, the relief for possession and damages was given up, the question as to the companylusive character of the sale was abandoned, and a decree for sale was passed.
the title of the plaintiff to the suit properties was recognised.
On 28 5 1939 she executed a trust deed settling a moiety of these properties on the Anjaneyaswami Temple at Karaikal, and the trustees of that institution are the other appellants in this appeal.
The defendants appealed to the High Court, Mysore and by their judgment dated 8 3 1951 the learned Judges agreed with the District.
92 of 1938 39 in the companyrt of the Subordinate Judge, Bangalore for establishing his title to the suit properties, and for an injunction restraining Garudachar from interfering with his possession.
The properties which are involved in this suit are included in item 8 in schedule A annexed to all the three plaints.
The defendants companytested the suit on the ground, firstly, that as they were number impleaded as parties in the suit on the mortgage, O.S. No.
27 of 1921 22 and for possession of the properties on the basis of the lease dated 3 9 1918, and obtained a decree on 22 3 1932 but was unable to get possession, as the properties were in the occupation of third parties under claims of right.
S. No.
100 of 1919 20 and the decree passed therein were companylusive.
Abdul Huq died on 20 3 1933, and thereafter, his legal representatives filed on 30 8 1933 S. No.
He then filed a second suit against the mortgagors, O.S. No.
That was Miscellaneous Case No.
It is that the title of Chapman as purchaser in execution of the decree passed on the mortgage dated 1 9 1918 prevailed against all titles created subsequent to that date, and that accordingly Dr. Nanjunda Rao and his successors acquired under the sale deed dated 30 1 1920 numbertitle which companyld be set up as against that of the plaintiff.
27 of 192122 against Keshavananda and his two brothers for recovery of arrears of rent due by them under the lease deed, and obtained a decree on 21 10 1921 but was unable to realise anything in execution thereof, and the execution petition was finally dismissed on 22 1 1926.
To sum up, the claim on which the suit was laid was true and honest it was hotly companytested by the defendants, and prolonged proceedings in execution had to be taken for realising the fruits of the decree.
1 and 2 to Dr. Nanjunda Rao, but those properties are number involved in this litigation.
Thus far, the allegations are a mere repetition of what bad been stated in the prior proceedings.
Sri K. S. Krishnaswami Ayyangar, learned companynsel for the appellants, did number press before us the companytention urged by them in the companyrts below that when a plaint is presented in forma pauperis the lis companymences only after it is admitted and registered as a suit, which was in this case on 17 6 1920, subsequent to the sale under Exhibit VI a companytention directly opposed to the plain language of the Explanation to section 52.
The plaint alleged that the mortgagors had failed to pay rent as provided in the lease deed dated 3 9 1918, and had suffered companylusive decrees to be passed against them in the maintenance suits and other actions, and that properties had been sold fraudulently in execution of those decrees.
At the trial, the plaintiffs abandoned the relief as to possession and damages, and it accordingly became unnecessary to go into the question as to the companylusive character of the maintenance decrees and the execution sales.
On the death of Dr. Nanjunda Rao, his sons partitioned the properties, and in the division the suit properties fell to the share of one Raghunatha Rao, and on his death in 1938 his estate devolved on his widow, Nagubai, who is the first appellant.
But the plaint in the suit went further, and stated for the first time that the proceedings in O.S. No.
The suits were companytested, and decreed after trial on 12 12 1921.
84 of 1945 46.
Proceedings were also taken in execution of the decrees obtained by Chellammal and Srikantamma and of one Appalaraju, and all the properties companyprised in the mortgage were sold and purchased by third parties.
98 to 100 of 1919 20.
On 6 9 1918 the three brothers effected a partition under a deed, Exhibit K, which provided inter alia that they were to pay each a sum of Rs.
These proceedings are open to the same companyment as was made on the petition of Abdul Huq, and do number assist the defendants.
The suit was decreed on 23 7 1940, and the matter having been taken in appeal to the High Court by Garudachar, the parties entered into a companypromise, and a decree, Exhibit E 1, was passed in terms thereof on 18 9 1942.
Judge that by reason of section 52 of the Transfer of Property Act, the title of Dr. Nanjunda Rao based on the deed dated 30 1 1920 came to an end when Devamma purchased the proper ties in execution of her maintenance decree, and dismissed the appeal, but granted a certificate under article 133 1 of the Constitution, and that is how the appeal companyes before us.
378 and 379 of 1918 19 claiming maintenance and marriage expenses for them, and praying that the amounts decreed might be charged on the schedule mentioned properties.
377 of 1918 19.
In the alternative, they prayed for a decree for sale of the mort gaged properties for the amount due under the mortgage.
It also appears from the evidence of D.W. 5 that at about this time all of them left the place.
86 of 1931 32, for arrears of rent for a period subsequent to that companyered by the decree in S. No.
123 of 1947 48 arising out of the decree dated the 23rd June 1947 of the Court of District Judge, Bangalore in Original Suit No.
8 per mensem to their step mother, Chellammal, for her maintenance, and that their step sisters should be under their protection.
100 of 1919 20.
There was on the same date a sale by Brahmananda of plots Nos.
On appeal from the judgment and decree dated the 8th March, 1951 of the Mysore High Court in Regular Appeal No.
It remains to deal with a proceeding to which the present plaintiff was a party.
8 of 1933 34 to enforce their rights under the mortgage deed dated 1 9 1918.
In the result, he granted a decree in favour of the plaintiff for possession of the suit properties.
On 13 3 1947 they cross examined the plaintiff on the companylusive character of the proceedings in Exhibit J series, and filed documents in proof of it, The trial went on thereafter for nearly three months, the defendants adduced their evidence, and the bearing was companycluded on 2 6 1947.
On 30 1 1920 Keshavananda company veyed these properties to Dr. Nanjunda Rao under a deed of sale, Exhibit VI.
On 6 6 1919 Chellammal presented a plaint in forma pauperis claiming maintenance and praying that it might be charged on the properties specified in the plaint.
While these proceedings were going on, Abdul Huq, the mortgagee, filed on 16 8 1921, O.S. No.
But these allegations were made only as the basis of the claim for damages for number payment of rent under the lease deed dated 3 9 1918 and number surrender of possession of the properties, and their true import is that the suit was fraudulent and intended to deprive the mortgagee of the rents and profits to which be was entitled.
After obtaining this decree, Krishna Rao started building on the sites, when he met with fresh obstruction, this time from the appellants who set up that they were in possession under a claim of title.
On 17 6 1920 permission to sue in forma pauperis was granted in all the three cases, and they were registered as Suits Nos.
S. Krishnaswami Iyengar and M. S. K. Sastri for the appellants.
In execution of this decree, the properties with which we are number companycerned, were sold on 2 8 1928 and purchased by Devamma, the decree holder.
At the same time, she also presented as the next friend of her minor daughters, Srikantamma and Devamma, two plaints in forma pauperis, Miscellaneous Cases Nos.
The decree in 0.
100 of 1919 20 directed the defendants each to pay to the plaintiff a sum of Rs.6 per mensem for maintenance until her marriage and Rs.
Ganapathy Iyer and K. R. Krishnaswamy for the respondent No.
three sons by his predeceased wives, Keshavananda, Madhavananda and Brabmananda, and three minor daughters, Shankaramma, Srikantamma and Devamma.
379 of 1918 19, subsequently registered as Suit No.
CIVIL APPELLATE JURISDICTION Civil Appeal No.
This petition was ordered, and on 30 8 1933 O.S. No.
There was a lease back of the properties by the mortgagee to the mortgagors on 3 9 1918, and it was also for a period of three years.
We are companycerned in this appeal with only one of them, the suit of Devamma which was Miscellaneous Case No.
3 and 4 to the west of East Lal Bagh Road in the plan, Exhibit G. These are the very plots, which form the subject matter of the present suit.
Devamma was the third defendant in this action.
Under the partition deed entered into by the mortgagors on 6 9 1918 Exhibit K , Keshavananda was allotted two plots, Nos.
216 of 1953.
It must be mentioned that all the three brothers were adjudicated insolvents on their own application, Brahmananda by an order dated 23 3 1923 in Insolvency Case No.
1,500 for marriage expenses, and the payment of the amount was made a first charge on the properties.
A sale certificate was issued to her on 21 11 1930 Exhibit J 5 .
A period of three years was fixed for redemption.
4 of 1925 26.
And he also companyceded and quite rightly, that when a suit is filed for maintenance and there is a prayer that it be charged on specified properties, it is a suit in which right to immovable property is directly in question, and the lis companymences on the date of the plaint and number on the date of the decree, which creates the charge.
7 of 1921 22 and Keshavananda and Madhavananda by an order dated 19 2 1926 in Insolvency Case No.
8 of 1933 34, their right of redemption remained unaffected by the decree passed therein or the sale in execution thereof and secondly, that the suit was barred by limitation, because the plaintiff was number in possession within 12 years of the suit, and also because the defendants had acquired title to the suit properties by adverse possession for over 20 years.
Under this decree.,
16,000 in favour of one Abdul Huq over a bungalow and vacant sites in cluding the properties companycerned in this litigation.
April 26.
The Judgment of the Court was delivered by VENKATARAMA AYYAR J. This appeal arises out of a suit instituted by one Krishna Rao, since deceased, and number represented by his son and heir, the respondent herein, for a declaration of his title to certain building sites situate in Bangalore in the State of Mysore, and for companysequential reliefs.
These properties belonged to one Munuswami, who died leaving him surviving his third wife Chellammal.,
On 1 9 1918 the three brothers executed a usufructuary mortgage for Rs.
The District Judge of Bangalore, who tried the suit, held that the title of Dr. Nanjunda Rao to the suit properties under the sale deed dated 30 1 1920 was, under section 52 of the Transfer of Property Act, subject to the result of the maintenance suit of Devamma O.S. No.
3 of 1933 34 was instituted.
Among the defendants who were impleaded in this suit were the mortgagors Keshavananda and Madhavananda, Gururaja, son of Brabmananda who bad died, the Official Receiver and the purchasers of the mortgaged properties in execution of the maintenance decrees and the decree of Appalaraju.
The sale was companyfirmed on 21 11 1930, and the sale certificate, Exhibit J 5, was issued, and she got into possession.
The suit was companytested, and issues raised as to whether the sales were companylusive, and whether the plaintiffs were entitled to possession and damages, and alternatively, as to what amounts were payable under the mortgage and to what reliefs the plaintiffs were entitled.
In this suit, as already stated, the plaintiffs sought to recover possession of the properties on foot of the usufructuary mortgage, and ancillary to that relief, they claimed damages from the defendants who were in possession, on the ground that the execution proceedings under which they got into possession were companylusive and fraudulent.
100 of 1919 20 praying for a charge was presented on 6 6 1919, the sale to Dr. Nanjunda Rao subsequent thereto on 30 1 1920 would prima facie fall within the mischief of section 52 of the Transfer of Property Act, and would be hit by the purchase by Devamma on 2 8 1928 in execution of the charge decree.
On the basis of these allegations, the plaintiffs prayed for a decree for possession as against the purchasers including Devamma, and for a sum of Rs.
On 26 9 1935 a decree was passed determining the amount payable to the plaintiffs on redemption, providing for payment thereof on or before 26th January 1936, and in default, directing the sale of the properties.
When Krishna Rao attempted to take possession of the sites, he was obstructed by one Garudachar, claiming title under a sale deed dated 1 12 1932 executed by one Lokiah, the husband of Srikantamma, sister of Devamma, and be accordingly filed O.S. No.
The claim made in the plaint is a simple one.
