IN THE HIGH COURT OF DHARWAD BENCH

Dated this the 15 th September, 2014

Before

THE HON’BLE MR JUSTICE HULUVADI G RAMESH

Regular First Appeals 3090 / 2010 c/w 614 / 2006

Between

1 Sri Ishwar S/o Shivaling Mugali 44 yrs, R/o , Taluk

2 Sri Basavanni S/o Shivaling Mugali 39 yrs, R/o Belkud, Chikodi Taluk common Belgaum Appellants

(By Sri Srinand Pacchapure & Sri Jagadish Patil, Adv.)

And

In RFA 3090/2010

Sri Shidram S/o Vithal Gurav Since dead – by LRs

1 Sri Ramappa Vithal Gurav 64 yrs

2 Sri Kempanna S/o Vithal Gurav 54 yrs 2

3 Sri Balappa S/o Vithal Gurav 50 yrs

All are r/o Donawad, Chikodi Tq Belgaum

4 Smt Shivavva Ramappa Gurav Since deceased by LRs

A Sri Basavanni Mallappa Gurav 39 yrs, R/o , Belgaum

5 Smt Sevakka W/o Bharat Gurav 49 yrs, R/o , Chikodi Tq Belgaum

6 Sri Honnappa S/o Vithal Gurav @ Hugar 59 yrs, R/o Honapure (Prabhu Nagar) Dharwad

7 Smt Prabhavati D/o Honnappa Gurav @ Hugar 37 yrs

8 Sri Prakash S/o Honnappa Gurav @ Hugar 35 yrs

9 Sri Somashekhar S/o Honnappa Gurav @ Hugar 33 yrs

10 Smt Anuradha D/o Honnappa Gurav @ Hugar 31 yrs

11 Smt Vinoda W/o Honnappa Gurav @ Hugar 49 yrs 3

7-11 are r/o Honapure (Prabhu Nagar) Dharwad

12 Smt Gangavva W/o Sidaram Gurav R/o Donawad, Post Chikodi Tq, Belgaum

13 Smt Dundawwa W/o Kushal Gurav 35 yrs, R/o Hullolihatti, Hukkeri Tq Belgaum

14 Smt Shobha W/o Bharma Nilkantannavar 33 yrs R/o Hargapuragad, Hukkeri Belgaum Respondents

(By Sri S R Hegade, Adv. for R1,2,3,4(b), 5, 12-14; Sri B S Kamate, Adv. for R7-11)

In RFA 614/2006

1 Sri Ramappa Vithal Gurav 64 yrs

2 Sri Kempanna S/o Vithal Gurav 54 yrs

3 Sri Balappa S/o Vithal Gurav 50 yrs

4 Smt Nilawwa W/o Vithal Gurav 84 yrs

All are r/o Donawad, Chikodi Tq Belgaum 4

5 Smt Shivawwa W/o Mallappa Gurav 67 yrs, R/o Hullolihatti, Hukkeri Tq Belgaum

6 Savakka W/o Bharat Gurav, 44 yrs R/o Donawad, Karagaon Post Chikodi Tq, Belgaum

7 Honnappa Vithal Gurav @ Hugar 45 yrs

8 Prabhavati D/o Honnappa Gurav @ Hugar 23 yrs

9 Prakash Honnappa Gurav @ Hugar 21 yrs

10 Somashekhar S/o Honnappa Gurav @ Hugar 19 yrs

11 Anuradha D/o Honnappa Gurav @ Hugar 27 yrs

12 Smt Vinoda W/o Honnappa Gurav @ Hugar 45 yrs

7-11 are r/o (Prabhunagar) Dharwad

13 Sidagouda Basagouda Patil, 45 yrs R/o C/o Sugar Factory Saidapur, Mudhol Taluk, Bijapur

14 Smt Gangawwa W/o Sidram Gurav 54 yrs, R/o Donawad, Karagaon Post Chikodi Tq, Belgaum 5

15 Smt Dundawwa W/o Kushal Gurav 31 yrs, R/o Hullolihatti, Hukkeri Tq Belgaum

16 Smt Shoba W/o Bharama Neelakantannavar 29 yrs, R/o Haragapurgad, Hukkeri Belgaum Respondents

(By Sri B S Kamate, Adv. for R8-12)

First Appeals are filed under S.96, CPC praying to set aside the order dated 8.7.2010 in FDP 6/2006 by the Civil Judge (Sr.Dvn.), Chikodi; order dated 13.12.2005 in OS 103/1996 by the Sr. Civil Judge, Chikodi.

First Appeals coming on for final hearing, the Court delivered the following: JUDGMENT

RFA 3090/2010 is by the third party purchasers against the order rejecting their claim in FDP 6/2006 wherein some allocation has been made by the executing court in favour of plaintiff and defendants 1 to 6 in the suit filed for partition. The trial court has concluded the Final

Decree Proccedings while rejecting the claim of these appellants for protecting their interest in the sale of property of their vendor and to 6 earmark the same to the vendor to see that property which is already purchased by these appellants pendentelite be made absolute.

RFA 614/2006 is also filed by defendants 11 and 12/third party purchasers challenging the preliminary decree on the ground that property although was sold for legal necessities by the kartha but the same has not been considered and also the trial court failed to consider to allocate property purchased by them towards their vendor so as to make the sale deed unconditional.

It appears the third party purchasers have pendente lite purchased the property from one of the co-sharer viz., kartha. The stand taken by the appellants is, when property which is sold by the kartha is for legal necessities, the property to the extent of 19.15 acres should be allocated to his share in the partition by metes and bounds, so that the grievance of the appellants would be met with.

On the other hand, respondents’ counsel submitted, there was no such legal necessity to dispose of the property. However, there would 7 be no problem for allocation of share of the co-parcener in favour of the purchasers to the extent held by him as per the partition by metes and bounds.

It appears there are five sharers. One is the kartha who claims to have sold the property to these appellants for legal necessities.

However, this aspect has not been contested seriously by the respondents except on the ground that there was no legal necessity to part with the property in favour of the appellants. The fact remains whether the trial court was justified in rejecting the contention of the appellants as to the allocation of share of that of the vendor in favour of the vendor; whether property sold by one of the co-parcener is binding on the other co-parceners and whether the property was sold for legal necessities.

Having heard the counsel representing the parties, it is noticed the trial court held that property was not sold for legal necessities.

However, no issue was framed in this regard. The matter requires reconsideration at the hands of the trial court so far as the right of the 8 appellants/purchasers is concerned. Unless and until such a finding is rendered as to whether the property was sold for legal necessities or not rather it is difficult to ascertain or to come to the conclusion that the property sold by one of the co-parcener in favour of the appellants is binding on the other co-parceners so as to grant immunity to the appellants and to confer right on the property held by them by virtue of the sale by one of the co-parceners.

For the limited purpose, matter is remitted to the trial court to raise an issue with regard to the aspect of disposal of share of other co- parceners without there being any legal necessity and if there is any legal necessity or not. If there is any legal necessity to dispose of the share of other co-parceners at least to that extent, the appellants may question the finding of the trial court. If it is found that it is sold for legal necessities, then of course the appellants would succeed to the extent of the property allotted to the share of the kartha and not to the entire extent. This exercise shall be done within three months from the date of receipt of this order. 9

Accordingly, impugned order is set aside. The finding rendered on other issues would be binding. Both the appeals are disposed of.

Send back the records.

Sd/- Judge

An