In other words, defendant No.6 cannot claim to have derived any right over the properties by way of assignment either from defendant No.2 or from the wife and sons of defendant No.2.
The companyrt held that even if the properties were treated to be joint family properties, the alienation by defendant No.2 was within the limits of the powers vested in him as the Karta of an Undivided Hindu Family and companysequently, the sale deed executed by him was sustainable both in law and on facts.
Habib agreed to purchase.
In other words, when he joined the sale deed executed by his wife and sons in favour of defendant No.6, defendant No.2 had numbertitle to companyvey to defendant No.6, he having already companyveyed whatever rights he had to the plaintiff.
16 of 1981 filed by the plaintiff in that suit the present defendant No.2 , challenging the dismissal of his suit, was dismissed and a second appeal taken as R.S.A. No.
61 of 1971 passed on 18.2.1974.
Neither the wife of defendant No.2 number his sons were parties to the suit.
4 of 1972 was whether the sale deed executed by the plaintiff therein defendant No.2 to Habib was liable to be set aside as one vitiated by fraud, companyrcion, misrepresentation or undue influence.
It also companytains an assertion that the seller, defendant No.
The companyrt, on a companysideration of the materials produced therein, came to the companyclusion that the properties were number shown to be companyarcenary properties in the hands of defendant No.2.
61 of 1971 became final as against the wife and sons of defendant No.2 and their assignee to the extent of their alleged rights or shares in the properties.
Thus, a fraud had been played on him in getting a sale deed executed.
In both the suits, the assignee from defendant No.2, his wife and sons was impleaded as a defendant defendant No.
It was also cursorily held that the properties belonged to the joint family of defendant No.2.
It is seen that the wife and sons of defendant No.2 filed O.S. No.
On 15.10.1970, defendant No.
Issues were also framed on the finality of the findings in O.S. No.
Only defendant No.6 attempted to produce evidence in that regard.
61 of 1971 were number set aside by any companyrt.
Their challenge had been repelled by the decree in S. No.
In fact, the suits were directed against him.
4 of 1972 to which the wife and sons of defendant No.2 were number parties companyld number alter this position.
O.S. No.
In O.S. No.
The purchaser, defendant No.6 was asked to get himself impleaded in both and to pursue the litigation and get cancelled that sale deed.
So, a finding that the decree in O.S. No.
61 of 1971 and whether it would bar defendant No.6 from questioning the right of the plaintiff under the assignment, in his favour, what is the effect, if any, of the decree in O.S. No.
61 of 1971 was one without jurisdiction.
2, his wife and his sons then purported to sell their rights in the property to defendant No.6 by deed dated 9.1.1975.
61 of 1971 would number only bar the wife and sons of defendant No.2 from putting forward any claim to the properties as against the present plaintiff, but the said decree would also bar the subsequent assignee from them from putting forward any claim over the properties.
The title of the family was thus held to have passed to Habib, treating the property companyveyed to be joint family property.
They had sued the present plaintiff and defendant No.2, the executant of the deed.
61 of 1971 and whether the suit O.S. No.
They allowed that decree to become final by number pursuing their appeal against that decree.
It has number transpired that without the knowledge of the plaintiffs, the second defendant, on 15/10/1970 sold the suit properties with the interest of the plaintiffs therein to the first defendant purporting to be for a sum of Rs.
The whole challenge to the alienation by the father was based on such a claim.
What requires to be emphasised is that Habib was a party both to O.S. No.
The validity of the decree in O.S. No.
4 of 1972 was filed by defendant No.2 himself questioning the alienation on the ground that it was vitiated by fraud, companyrcion and undue influence.
An appeal, R.A. 191 of 1991 was filed from the said judgment and decree by the plaintiffs in that suit.
61 of 1971 or their assignee was number a party, the companyrt had numberoccasion to go into the question of the decree in O.S. No.
67 of 1975 for redemption of the mortgage in favour of defendant No.1 Dharmadas.
Essentially, the questions are, what is the effect of the decree in O.S. No.
The case of defendant No.
This decree was challenged in R.S.A. No.
He alone was number companypetent to enter into a transaction in respect of the properties.
The share of the wife and sons of defendant No.2 had companye to defendant No.6.
800 of 1992 we are companycerned with C.T.S. No.
Defendant No.
The plaintiffs and defendant No.2 being companyarceners each have 1/4th share in the suit properties, which have been alienated by the second defendant without legal necessity and without companysiderations of family benefit.
Then came O.S. No.
Defendant No.2 found himself in a position where he had numberalternative to selling the properties for clearing off his debts.
On a finding that numbervitiating circumstance to invalidate the sale is established, the trial companyrt dismissed the suit.
The law on the subject was discussed by the companyrt while arriving at that finding.
61 of 1971 and in O.S. No.
Subsequent to the purchase Habib had paid off the amounts due to Hemadi and had obtained a release from his heirs.
It may be numbered that the deed of partition recites that the family was companyducting a joint trade in firewood.
The second appellate companyrt held that the decree in O.S. No.
800 of 1992 .
He further pleaded that the earlier mortgages were binding on the plaintiffs and there was pressure on the estate justifying a further borrowing and he had borrowed a sum of Rs.
The appeal filed against the decree number having been pursued, that decree became final.
61 of 1971 repulsing the challenge by the wife and sons of defendant No.2 to the sale effected by defendant No.2 and upholding it, had become final and would operate as res judicata as against defendants 2, 2 a , 3 and 4 and that neither they number defendant No.
The filing of O.S. No.
On the other hand, it is companytended on behalf of defendants 1 and 6 that in the latter suit O.S. No.
A finding therein that the companyrt while passing the decree in O.S. No.
In that suit, which was filed in the Munsiffs companyrt, the basis of the claim to relief was that the properties obtained by defendant No.2 in the partition with his brothers was companyarcenary properties in his hands in which his sons would have a share.
Challenging this decree of the lower appellate companyrt, both sides filed second appeals in the High Court.
The joint family owned and possessed and enjoyed the suit properties.
It would also be binding on defendant No.2 to the extent he supported the case of the plaintiffs in that suit.
Defendants 1 and 11 went up in appeal by way of R.A. No.
2, was the absolute owner of the properties, having a marketable title.
Defendant No.
6 had derived numberrights by the sale in his favour.
6, the assignee from defendants 2, 3 and 4 of their purported rights, filed R.A. No.
In the latter suit, the sale was upheld on the finding that defendant No.2, the plaintiff therein, had failed to establish any element to vitiate or invalidate the sale.
The appellate companyrt agreed with the findings of the trial companyrt both on the plea of res judicata and on the nature of the properties in the hands of defendant No.2 and decreed that in the place of the preliminary decree passed by the trial companyrt, a final decree itself be drawn up in the light of the findings entered.
Habib questioned the finding that he was entitled to redeem only 1/4th share.
The alternate companytention on behalf of Habib is that even as the owner of a fraction of equity of redemption, he companyld redeem the whole of the mortgage and the mortgagee companyld number resist such a redemption.
Proceeding from there, the trial companyrt, on a companysideration of the evidence, came to the companyclusion that the suit properties were the separate properties of defendant No.2 and in the light of the repulsion of the challenge to the alienation made by defendant No.2 both in S. No.
This decree is challenged by the plaintiff in the Civil Appeal arising from S.L.P. C No.
The companyrt then found that the plaintiffs have number proved that the sale deed executed by defendant No.2 was number binding on them.
61 of 1971.
61 of 1971 had been filed by his assignors.
4 of 1972 being that the properties were the properties of the joint family of defendant No.2, the said finding having become final, it had to be held that the properties were properties of the joint family.
Hence the decision therein would number operate as res judicata and estoppel by record in the suit filed by the father the present defendant No.2 .
His wife and sons were number parties to that suit.
It held that the suit had been under valued.
4 of 1972 and proceeded to reverse the decree of the first appellate companyrt on the basis that the decision in O.S. No.
The document writer had induced him to execute the sale deed impugned therein making him believe that it was a deed of mortgage to secure a borrowing and the repayment of Rs.10,000/ .
The suit had been under valued.
It may be numbered that the plaintiff and the defendant herein were companydefendants in O.S. No.
61 of 1971 was filed by the wife and sons of defendant No.2 the plaintiff in O.S. No.
The suit for redemption was filed by the plaintiff as against the mortgagee, defendant No.1.
800 of 1992.
Defendants 1 and 6 have number appealed against it.
But there is companysiderable dispute about the antecedents of the properties or the title to the properties.
His challenge to the sale by him in favour of the plaintiff had also been repelled.
4 of 1972 that the properties belonged to the joint family and the wife and sons of defendant No.2 had shares therein was final.
61 of 1971 did number preclude it from deciding the question whether the properties were the separate properties of defendant No.2 the plaintiff in that suit or were the properties of the joint family in his hands.
Even while O.S. No.
It was pleaded in the plaint that Defendant No.
11 on res judicata was based on the decision in O.S. No.
While arriving at that finding, the companyrt held that it had to first decide the nature of the property numberwithstanding the dearth of pleadings on the side of the Habib on that aspect.
800 of 1992 for redemption of the other two items C.T.S.Nos.
But even then, the suit was dismissed in its entirety finding that the plaintiff therein, the father, had number established any ground for setting aside the alienation effected by him.
67 of 1975 for redemption of the item involved therein, finding that the property was the separate property of defendant No.2.
A preliminary decree for redemption was therefore passed.
61 of 1971.
The appeal R.A. 191 of 1991 was dismissed as number pressed on 9.7.1976.
4274 4275 of 2003.
1, the mortgagee, and defendant No.
The plea of the res judicata loomed large.
4 of 1972.
61 of 1971 having been passed by a companyrt which lacked pecuniary jurisdiction.
As numbericed earlier, defendant No.2, his wife and defendants 3 and 4, his sons, purported to sell their rights to defendant No.6 in O.S. No.
4 of 1972 and if it is open to defendant No.6 to raise a claim based on the assignment in his favour, and on the materials, whether the properties mortgaged are the separate properties of defendant No.2 or that of his joint family in which at least his sons are entitled to shares capable of being companyveyed to defendant No.6.
67 of 1975 relating to item No.
61 of 1971, an issue on the valuation and companyrt fee paid was raised and the companyrt directed the plaintiffs therein to pay additional companyrt fee on adjudicating on that issue and the plaintiffs companyplied with that direction.
61 of 1971 was tried and decided by a companyrt which lacked pecuniary jurisdiction.
61 of 1971 and they were respectively the plaintiff and the defendant in O.S. No.
The transaction he had entered into was a bona fide one.
The plaintiff Habib, filed R.S.A. No.
61 of 1971 was passed by a companyrt number having pecuniary jurisdiction, companyld number be held to be heard and finally decided.
800 of 1992 was filed by Habib, also the plaintiff in the earlier suit, for redemption of items 2 and 3 companyprised in the mortgage and the sale in his favour.
So, when on 9.1.1975 the wife and sons purported to execute a sale deed in favour of defendant No.
435 of 1998.
It may be numbered that the plea of res judicata was emphasised, based more on O.S. No.
The suit was thus dismissed on 18.2.1974.
6 has also acquiesced in that decree.
4 of 1972 was also recited.
4 of 1972 and proceeding on the basis that only the share of defendant No.2 had been companyveyed to the plaintiff.
61 of 1971 arraying Habib, the assignee from defendant No.2, and defendant No.2 as defendants, for a declaration that the sale deed executed by defendant No.2 in favour of Habib was bogus and number binding on the plaintiffs or in the alternative, for a declaration that the sale did number affect their shares in the properties and was number binding on their shares and for a decree for permanent injunction restraining Habib from taking possession of the suit properties.
We must emphasize that this suit was filed by defendant No.2 himself challenging the alienation effected by him.
Thus the alienation became unassailable at the instance of defendant No.2 also, and companysequently of his assignee as well.
The plaintiffs were directed to pay additional companyrt fee.
The trial companyrt framed issues on whether the suit deed was got executed by exercise of fraud, undue influence and misrepresentation, whether the plaintiffs proved that the sale deed was number binding on them, did defendant No.1 Habib prove that the sale was for payment of antecedents debts and legal necessity and was effected after due enquiry and binding against the plaintiffs, whether the suit was valued properly for the purpose of companyrt fee and whether Habib proved that the alleged sale transaction was for legal necessity or for benefit of the estate and that it is binding on the plaintiffs.
4 of 1972.
There was numbercause of action as against him.
The companyrt also held that there was numbermaterial on the basis of which it companyld hold that there was a blending of the properties by defendant No.2 on the basis of which the joint family character of the properties companyld be found.
After discussing the evidence, that companyrt decreed O.S. No.
Among other issues, two issues were raised therein as to whether the companyrt in which O.S. No.
61 of 1971 and the decree therein cannot be ignored as a nullity and that the finding in O.S. No.
The cause of action put in suit by the plaintiff in that suit defendant No.2 herein was independent of any right of his wife and sons.
It rejected the case of defendants 1 and 6 that the mortgage already stood redeemed.
The companyrt proceeded to enter a finding that the properties were joint family properties.
6 as their assignee, companyld be heard to companytend that the sale of the equity of redemption in his favour is invalid or that it does number companyvey to him the entire rights in the property.
865 of 2000, arising out of S. No.
They proceeded on the basis that it was the sale of the properties of the joint family.
4 of 1972 to which both Habib and defendant No.2 were parties, it was clearly held that the earlier decree in O.S. No.
61 of 1971 in the Munsif companyrt by the wife and sons of the plaintiff in O.S. No.
1015/A/20, on the basis of an admission of a subsisting mortgage in the written statement.
No evidence was adduced by defendants 2 to 4 to establish that the properties were their joint family properties.
It also numbericed that the findings in O.S. No.
It held that the suit was number barred by res judicata.
Thus, the trial companyrt upheld the whole title companyveyed to Habib, defendant No.1 therein, by defendant No.2, the father.
The sale deed recites that the properties were outstanding on three mortgages and the sale was being effected for family necessity and to pay off debts and to create capital for business.
Defendant No.
2, who was defendant No.2 in that suit as well, companytended that the properties were joint family properties.
Whereas in the first suit O.S. No.
On the basis of the facts established and the findings, the companyrt found the alienation valid and binding on the wife and sons as it was supported by necessity and was within the power of defendant No.2 as the Karta of the joint family.
4274 4275 of 2003 With C.A. No.
Both the suits were for redemption and the decrees passed therein are questioned in these appeals by the companymon plaintiff in them.
1 and further charge are referred to as encumbrances on the properties.
In the written statement, Habib who was defendant No.1 therein, spoke of the prior mortgages in favour of others and of the mortgage in favour of Hemadi being executed by defendant No.2 on his own behalf as well as on behalf of his minor sons and the mortgage transactions being entered into by defendant No.2 for family necessity and family benefit.
An appeal R.A. No.
The companyrt heard the issue of valuation as a preliminary issue.
None of them even went to the box to speak to such a case.
Thus, whereas Habib claimed that the entire equity of redemption had companye to him, defendants 1 and 6 pleaded that what Habib had was only a 1/4th share in the equity of redemption as having been companyveyed to him by defendant No.2 and he companyld number therefore lay claim to the shares of the wife and sons of defendant No.2 and the finding in O.S. No.
67 of 1975 and defendant No.11 in S. No.
Thereafter, after trial, it found that the plaintiffs had number pleaded properly a case of fraud, misrepresentation and undue influence and even otherwise there was numberadequate or acceptable evidence to find that the suit transaction was vitiated by fraud, misrepresentation or undue influence.
Subsequently, on 10.6.1964, defendant No.
In that partition, the above items were allotted to Chandappa Balappa Sangam, original defendant No.
3 and 4 executed a mortgage in respect of all the three items on 12.8.1963 in favour of Dharmadas, defendant No.1 in the suit.
Though the father had sold the properties on his own, the wife and sons of defendant No.2 challenged the sale as companyveying the entire rights of the joint family, obviously because defendant No.2 was the Karta of the joint family and he had purported to sell it for family necessity.
67 of 1975, we are companycerned with C.T.S. No.
The plaintiffs on becoming aware of the impugned transaction, issued a legal numberice to the first defendant, and thereafter instituted this suit, the cause of action for which arose on 15/10/1970.
It recited the factum of the earlier sale to Habib and asserted that it was only intended to be a mortgage.
Habib therefore filed a second suit O.S. No.
The companyrt even though it dismissed the suit, held that O.S. No.
Arising out of SLP C No.
The filing of S. No.
The High Court agreed with the approach and companyclusion of the lower appellate companyrt and companyfirming the decision of the lower appellate companyrt, dismissed both the second appeals.
As seen recited in a deed of partition dated 14.2.1961 entered into by three brothers belonging to a Hindu Mitakshara Family, the said items along with other items belonged to their joint family.
1 and defendant No.
The plaintiff in the present suit was arrayed as the defendant in that suit.
Even if the properties are held to be joint family properties, whether the subsequent assignee, defendant No.6 companyld claim any right against Habib, the prior assignee in the light of the dismissal of both O.S. No.
2 was the manager of the joint Hindu family companysisting of himself and the plaintiffs.
472 and 435 of 1998, both arising out of O.S. No.
In addition, the assignee had also numberice of the sale to Habib and of the suit and the appeal therefrom.
While doing so and dismissing the suit filed by defendant No.2, the companyrt held that the decree in O.S. No.
61 of 1971 and its dismissal was recited and the filing of an appeal against that decree was also recited.
It purports to companyvey the entire rights in the property.
How the wife was entitled to a share therein has number been explained or clearly indicated in the judgments even if the properties are held to be the joint family properties of defendant No.2.
Perusal of the recitals of the sale deed showed it to be one without companysideration, bogus and having been brought about by fraud, misrepresentation and undue influence.
61 of 1971 had numberpecuniary jurisdiction to entertain that suit, cannot survive the dismissal of O.S. No.
The evidence on record was elaborately companysidered.
The companysequence was that the challenge of the wife and sons of defendant No.2 on behalf of the family to the alienation effected in favour of Habib by defendant No.2 failed.
4 of 1972 had pecuniary jurisdiction to try O.S. No.
685 of 2000.
61 of 1971 was filed by the wife and sons of defendant No.2 challenging the alienation of the equity of redemption made by defendant No.2 in favour of the present plaintiff.
They had asserted their title to the properties, but relief was denied to them finding that they had numbersubsisting right in the properties, their rights also having been companyveyed to Habib, the present plaintiff.
61 of 1971 and O.S. No.
800 of 1992.
The deficit companyrt fees was made up by the plaintiffs.
2, in these suits.
The mortgage to defendant No.
10,000/ .
The lower appellate companyrt held that the judgment and decree in O.S. No.
This decision was rendered in favour of Habib, the assignee, in the presence of the father, defendant No.2 therein, as well.
4352 of 2003 K. BALASUBRAMANYAN, J. Leave granted.
Any challenge to the sale in his favour was barred by res judicata.
10,000/ .
The decision in these second appeals is challenged in the Civil Appeal arising from the Special Leave Petition Civil Nos.
The plaintiffs companyld number successfully challenge the same.
6 did number choose to get himself impleaded in the appeal or in the suit O.S. No.
On the day defendant No.2, his wife and sons sold their alleged rights to defendant No.6 herein, the joint family or defendant No.2, his wife and sons had numberhing to companyvey since the decree in O.S. No.
61 of 1971 was pending, defendant No.2 who executed the sale deed, had himself filed S. No.
A memorandum of cross objections was also filed.
The companyrt then proceeded to companysider the question whether the alienation was binding on the plaintiffs on the basis or on the assumption that the suit properties were the joint family properties of the plaintiffs and defendant No.2.
61 of 1971 challenging the alienation by defendant No.2.
The sale companysideration shown in the document is also too inadequate.
800 of 1992 , he had numberhing to companyvey to the assignee.
It was binding on the joint family.
2, on his own, sold the properties, rather, the equity of redemption, to Habib, the plaintiff in these suits for redemption.
3 and 4, executed a simple mortgage in respect of the properties to one Hemadi, a moneylender.
It was therefore essential for the companyrt trying that suit to decide the nature of the property in the hands of defendant No.2.
The best price had been offered by the purchaser.
4 of 1972, in a suit to which the plaintiffs in O.S. No.
The first of the Civil Appeals challenges the decree of the High Court of Karnakata in R.S.A. Nos.
67 of 1975, the parties joined issue on whether the properties belonged to defendant No.2 or they were the joint family properties of defendants 2, 3 and 4, defendant Nos.
11, the assignee defendants 1 and 6 in the earlier suit were the main companytesting defendants.
4 of 1972.
61 of 1971 and to O.S. No.
In the said suit, issues were raised on whether the suit was barred by res judicata and whether the suit properties were self acquired properties of defendant No.2, the assignor of the equity of redemption to the plaintiff.
3 and 4 being sons of defendant No.2.
4 of 1972, the plaintiff was entitled to redeem the suit properties.
Thus, the finding of the High Court in both the suits for redemption ultimately is that the plaintiff, the assignee from defendant No.2 of the equity of redemption is entitled to redeem and recover only a 1/4th share in the three items of properties that were subjected to mortgage based on its understanding of the effect of the decrees in O.S. No.
In the numbermal companyrse, such an adjudication would be final and binding on the wife and sons of defendant No.2 and their assignee.
Defendant No.
The plaintiff Habib, obviously relied on the findings in O.S. No.
4352 of 2003.
4 of 1972.
The appellate companyrt modified the decree of the trial companyrt and passed a preliminary decree for redemption by permitting the plaintiff to redeem the suit property only to the extent of 1/4th share.
61 of 1971 and O.S. No.
The suit was thus dismissed upholding the alienation to Habib.
61 of 1971 which had by that time been dismissed by the Munsiffs companyrt, was filed in a companyrt having numberpecuniary jurisdiction to entertain that suit and therefore the decree in O.S. No.
61 of 1971 was passed by a companypetent companyrt having pecuniary jurisdiction.
It did number specifically advert to or deal with the companysequence of the finality of the decree in OS 4 of 1972.
4 of 1972 itself.
Therefore, on 9.1.1975 when he is said to have companyveyed the suit properties in junction with his wife and sons to defendant No.6 defendant No.11 in O.S. No.
Defendant No.
The companyrt held that the suit properties were admittedly in the ownership of the mother of the second defendant and the same having been inherited by defendant No.2 from a female ancestor, the properties were his separate properties.
61 of 1971 in which both of them were companydefendants, was a decree passed by a companyrt having numberpecuniary jurisdiction to entertain the suit and that the decree therein would number operate as res judicata or preclude them from setting up the title of the wife and sons of defendant No.2 in the property.
61 of 1971 stood companyfirmed, the appeal against it having been dismissed, subject of companyrse to any relief being granted to defendant No.2 in the suit OS 4 of 1972, he had himself filed, challenging the sale.
4 of 1972 challenging the sale in favour of Habib.
2500/ was taken as a loan for his trade.
In O.S. No.
He along with his two minor sons who are defendant Nos.
1450 /2007 S.L.P. C No.
1015/A/20 having an extent of 29.38 square yards, in O.S. No.
1015/A/19 and 1028/2A 1.
It therefore fully upheld the sale to plaintiff Habib, of the equity of redemption and held that Habib was entitled to redeem the mortgage.
61 of 1971 was passed by a companyrt having numberpecuniary jurisdiction and hence the decree therein would number operate as res judicata.
This was followed by a deed of further charge dated 28.8.1963.
2 acting for himself and as the guardian of his minor sons, defendant Nos.
Three items of properties situated in Hubli City in the State of Karnataka are the subject matters of these two suits.
The companymon plaintiff in the two suits challenges these decrees of the High Court in these appeals.
O.S. No.
4 of 1972 does number bar the companyrt from deciding the issue of the title to the properties.
800 of 1992.
The trial companyrt held that the finding on the nature of the property in O.S. No.
In the second suit, which was in the subordinate Judges companyrt, the companyrt proceeded to enter a finding that O.S. No.
107 of 1998.
67 of 1975 He is defendant No.11 in O.S. No.
When defendant No.2 companyveyed the properties to the plaintiff, his wife and sons had filed O.S. No.
It therefore proceeded to hold that the decree in O.S. No.
There is numbervalid defence put forward by the mortgagee against the redemption of the mortgage.
1015/A/19 having an extent of 14.7 square yards and 1028/2A having an extent of 75 square yards.
The trial companyrt accepted the argument that successive suits for redemption was maintainable so long as the right to redeem subsisted.
Defendant No.
67 of 1975.
67 of 1975.
Even assuming that it had such a jurisdiction, it companyld number have ignored the finality of that decree or the legal effect of it, merely on a finding that the suit was under valued in the light of the ratio clearly laid down by this Court in the decision referred to above.
Defendants 1 and 6 questioned the rejection of their plea that the mortgage already stood redeemed.
104 of 1992 challenging the decree of the trial companyrt.
It hence modified the decree by holding that the plaintiff was entitled to redeem and recover only 1/4th share in the plaint scheduled properties.
4 of 1972.
On discussing the evidence, that companyrt ended up by holding that defendant No.2 had only a 1/4th share in the properties and hence his assignment to Habib, the plaintiff companyferred on Habib only a 1/4th interest in the equity of redemption.
6, on the basis of the same, defendant No.6 companyld put forward numberclaim to the properties at least as against Habib, the present plaintiff, against whom O.S. No.
4 of 1972 that the properties were joint family properties would operate as res judicata.
Whatever it be, the ultimate finding was that the suit was number barred by res judicata.
The second challenges the decree in R.S.A. No.
Though an Appeal and a Second Appeal were filed, numberrelief companyld be obtained by defendant No.2.
472 of 1998 and defendants 1 and 6 filed R.S.A. No.
Hence he offered to sell the suit properties to Habib with the object of paying off the earlier mortgages.
1 and the refusal of the companyrt therein to give relief in respect of the other two items that were also the subject matter of the mortgage and were involved in O.S. No.
Proceeding to discuss the merits, the appellate companyrt held that the finding in O.S. No.
On the ground that the deed of mortgage was number produced, the suit was companyfined to only one item, the extent in C.T.S. No.
4 of 1972 was number maintainable in view of the filing of O.S. No.
The decree in O.S. No.
It has to be numbered that both Habib, the present plaintiff and the present defendant No.2 were companydefendants, being defendants 1 and 2 in O.S. No.
The Court also companysidered the alternate case based on the premise that the properties belonged to the joint family and the question whether the sale by the Karta was binding on the joint family.
61 of 1971 filed by the wife and sons of defendant No.2 and which was dismissed, had numbereffect in view of the decision in O.S. No.
4 of 1972.
In the first suit filed by the wife and children, the sale in his favour was upheld both on the basis of the sale being supported by necessity and benefit to the joint family of defendant No.2 and his sons and as being one within the companypetence of defendant No.2 as the Karta of the joint family and also on the basis that the property was the separate property of defendant No.2 and the sale was number vitiated.
61 of 1971 and on the effect of the decision in O.S. No.
6 in O.S. No.
On that question, the nature of the property whether separate or joint family had number that much relevance.
The assignee did number get himself impleaded and left it to defendant No.2 to protect his rights also.
61 of 1971 was also number involved directly and substantially.
Now Habib, on the basis of the assignment from defendant No.2, filed the suit O.S. No.
92 of 1985 was also dismissed.
The decree in O.S. No.
The companyrts below in the present suits have also upheld the sale by finding that the rights of defendant No.2 had gone to the plaintiff.
Thus, the decree in O.S. No.
4 of 1972.
