M. B. VISHWANATH, J. ( 1 ) THIS second appeal under Section 100 of the Civil Procedure code has been filed by defendants-1 and 2. ( 2 ) THE plaintiff filed Original Suit No. 408 of 1973 before the Additional Munsiff, Madhugiri, against defendants-1 to 3 praying for declaration that the plaintiff is the owner of the suit schedule property which is one-third share in Survey No. 40, being the purchaser of the equity of redemption. He has also prayed for a direction to the first defendant to accept the mortgage money from the plaintiff and give an endorsement of discharge and to deliver possession of the suit schedule property. He has also prayed for mesne profits. ( 3 ) THE Trial Court dismissed the suit. ( 4 ) AGGRIEVED by the judgment passed by the learned Munsiff, the plaintiff preferred Regular Appeal No. 36 of 1984 before the civil Judge, Madhugiri. ( 5 ) THE learned Civil Judge allowed the appeal and granted the decree prayed for by the plaintiff. ( 6 ) DEFENDANTS-1 and 2 have filed the present second appeal. ( 7 ) THE plaintiffs case is : The property at Survey No. 40, mentioned in the plaint schedule, formerly belonged to two brothers Cheluvaiah and gangappa, both sons of Channarayappa. Both Cheluvaiah and gangappa had become divided from their elder brother chikkanna. A portion of the suit at Survey No. 40, 1/6 belonged to Chikkanna. This portion was purchased by the first defendant channappa. The remaining 2/6th share of Cheluvaiah and gangappa was mortgaged by Gangappa alone in favour of the first defendant under a registered mortgage deed dated 6-6-1966 for Rs. 200/- (Ex. P-2 ). The above said Cheluvaiah and Gangappa executed a registered sale deed (Ex. P-1) of the mortgaged property in favour of the plaintiff for Rs. 800/- on 6-12-1968, subject to the said mortgage in favour of the first defendant. The first defendant is bound to receive the mortgage money from the plaintiff and deliver the mortgage deed dated 6-6-1966 executed by Gangappa and deliver possession of the property. Hence the suit. ( 8 ) THE first defendant has contended in his written statement: The plaint schedule property at Survey No. 40 belonged to chikkanna and this defendant. "in the Inam Abolition Account", it was made out in the joint khatha of this defendant and channappa (since deceased ). Hence the suit. ( 8 ) THE first defendant has contended in his written statement: The plaint schedule property at Survey No. 40 belonged to chikkanna and this defendant. "in the Inam Abolition Account", it was made out in the joint khatha of this defendant and channappa (since deceased ). Chikkanna alone was the owner of 1/2 share in Survey No. 40. This defendant took mortgage of this property under the registered mortgage deed dated 23-6-1960. Cheluvaiah and Gangappa, who are the brothers of Chikkanna and who were living with their sister at some other place, had no right in Survey No. 40. Ganagappa, though he had no right, wanted to sell Survey no. 40 to someone. In order to avoid litigation, this defendant paid Rs. 200/- to him and took a mortgage deed from him. Neither Gangappa nor Cheluvaiah was in possession. It was chikkanna and the first defendant who were in possession of suit property at Survey No. 40. The sale deed dated 6-12-1968 is not genuine and is not supported by consideration. The alleged vendors of the plaintiff had no title to the suit property. The plaintiff does not get any title to the suit property. Hence the relief of redemption cannot be given to the plaintiff. The property in dispute (1/3 rd share in survey No. 40) cannot be identified without demarcation. The alleged shares of Gangappa and Cheluvaiah in Survey no. 40 has to be determined and demarcated. If that is to happen, a fragment will be created. The plaintiff cannot get any relief. ( 9 ) THIRD defendant Cheluvaiah, not unnaturally, in his written statement, supported the plaintiff. Second defendant chikkanna has remained ex parte. ( 10 ) IN the additional written statement filed by the first defendant, the first defendant has contended: the first defendant has taken a usufructuary mortgage dated 23-6-1960 in respect of the 1/2 share in Survey No. 40 for Rs. 400/- from Chikkanna. This portion is in possession of this defendant as a mortgagee. This defendant had the right to purchase the share claimed by the plaintiff. The sale in favour of the plaintiff if any is opposed to the provisions of Consolidation and Fragmentation Act. The suit is barred by limitation. 400/- from Chikkanna. This portion is in possession of this defendant as a mortgagee. This defendant had the right to purchase the share claimed by the plaintiff. The sale in favour of the plaintiff if any is opposed to the provisions of Consolidation and Fragmentation Act. The suit is barred by limitation. ( 11 ) IN the reply filed by the plaintiff, he has stated that the first defendant is estopped in law from denying the title of his mortgagors. ( 12 ) THE first defendant has stated in his reply that Chikkanna had 1/2 share in the suit Survey Number and chikkanna, Cheluvaiah and Gangappa were together entitled to 1/2 share as they were sons of Channarayappa, brother of the first defendant. ( 13 ) IN the additional reply statement filed by the plaintiff, he has asserted his case set out in the plaint. ( 14 ) AS has already been stated, the Trial Court dismissed the suit. On appeal by the plaintiff, the Appellate Court granted the decree prayed for by the plaintiff. ( 15 ) IN this Court, at the time of admission, the following two substantial questions of law have been framed: (I) Whether the lower Appellate Court has traversed beyond the cases of the parties in framing Point No. I for determination and recording its finding on it? and because of that the conclusions of the lower Appellate court are vitiated? (II) Whether the decree passed by the lower Appellate court granting past mesne profits is in accordance with law? ( 16 ) THE point No. I framed for determination by the First Appellate Court is: (1) Whether the plaintiff has proved that half of suit at survey No. 40 belongs to defendant-2 Chikkanna, defendant-3 cheluvaiah and their brother deceased gangappa jointly ? ( 17 ) THE substantial question of law formulated by this Court suggests that Point No. 1 for determination framed by the First appellate Court traverses beyond the pleading. The plaintiff, in fact, has pleaded in the reply filed by him on 22-2-1974 that chikkanna, defendant-3, Cheluvaiah and Gangappa were together entitled to 1/2 share. Point No. 1 framed by the first appellate Court for determination, is clear and did not go beyond the pleadings. So the substantial question of law framed by that Court was not correct. The plaintiff, in fact, has pleaded in the reply filed by him on 22-2-1974 that chikkanna, defendant-3, Cheluvaiah and Gangappa were together entitled to 1/2 share. Point No. 1 framed by the first appellate Court for determination, is clear and did not go beyond the pleadings. So the substantial question of law framed by that Court was not correct. ( 18 ) AFTER hearing both Counsel, I have formulated, by virtue of the power conferred on the Court under proviso to Section 100 (5) of the Civil Procedure Code, the following substantial questions of law: (1) Whether the First Appellate Court was not right in holding that the suit property jointly belonged to defendants-2, 3 and deceased Gangappa? (2) Whether the First Appellate Court was not right in holding that Ex. P-1 was a valid sale deed conveying full title to the plaintiff? (3) Whether the First Appellate Court was not right in holding that deceased Gangappa had the right to mortgage the suit property as per Ex. P-2? (4) Whether the interpretation put by the First Appellate court on the joint grant in favour of first defendant channappa and second defendant Chikkanna as per ex. D-1 enures to the benefit of the two brothers of chikkanna viz. , third defendant Cheluvaiah and deceased gangappa, in respect of 1/2 portion granted is correct? (5) Whether the First Appellate Court was not right in holding that the suit schedule property was partible amongst the brothers, third defendant Cheluvaiah, deceased Gangappa and second defendant Chikkanna in respect of 1/2 portion granted under Ex. D-1? ( 19 ) THE pedigree, which is admitted, is ( 20 ) FOR the sake of convenience I will take up substantial question of law No. 4. ( 21 ) IN the instant case, the pedigree should be clearly borne inmind. ( 22 ) THE plaintiffs case is that second defendant Chikkanna had 1/6th share in the suit property and this portion was purchased by first defendant Channappa. The remaining 2/6th share of Cheluvaiah and deceased Gangappa was mortgaged by gangappa alone in favour of first defendant Channappa under the registered mortgage deed Ex. P-2, dated 6-6-1966 for a consideration of Rs. 200/ -. The remaining 2/6th share of Cheluvaiah and deceased Gangappa was mortgaged by gangappa alone in favour of first defendant Channappa under the registered mortgage deed Ex. P-2, dated 6-6-1966 for a consideration of Rs. 200/ -. ( 23 ) THE further case of the plaintiff is that deceased Gangappa and third defendant Cheluvaiah sold the suit property (1/3 share in 1 acre 16 guntas in Survey No. 40) under registered sale deed Ex. P-,1 dated 6-12-1968 for a consideration of Rs. 800/-, subject to the mortgage Ex. P-2 in favour of the first defendant. The plaintiff has, therefore, prayed that he should be permitted to redeem the mortgage as per Ex. P-2. The mortgage ex. P-2 was executed by deceased Gangappa alone in favour of first defendant Channappa. The plaintiffs case is that the grant of suit property at Survey No. 40 measuring 1 acre 16 guntas enures to the benefit of the two brothers of Chikkanna, viz. , third defendant Cheluvaiah and deceased Gangappa. ( 24 ) SO Ex. D-1 assumes importance. 1 acre 16 guntas of land in Survey No. 40 has been granted by the Inams Abolition deputy Commissioner on 4-1-1964 in favour of first defendant channappa and second defendant Chikkanna 'jointly'. It is clearly stated that this 1 acre 16 guntas of land has been 'jointly' granted. It could be seen from the pedigree that Channappa and chikkanna were not members of the same family. Second defendant Chikkanna is the son of Channarayappa and this channarayappa is the brother of first defendant Channappa. If the grant of the suit property at Survey No. 40 measuring 1 acre 16 guntas were to go to the benefit of the joint family, it would have been granted in favour of first defendant Channappa and his brother deceased Channarayappa. But, to repeat, it has been granted in favour of first defendant Channappa and his brother's son second defendant Chikkanna. ( 25 ) SO the joint grant in favour of first defendant Channappa and second defendant Chikkanna as per Ex. D-l, in my opinion, does not enure to the benefit of second defendant Chikkanna's two brothers, Gangappa and third defendant Cheluvaiah. This covers my answer to substantial question of law No. 4. ( 26 ) THE First Appellate Judge was wrong in holding that the joint grant enures to the benefit of the two brothers of second defendant Chikkanna, viz. D-l, in my opinion, does not enure to the benefit of second defendant Chikkanna's two brothers, Gangappa and third defendant Cheluvaiah. This covers my answer to substantial question of law No. 4. ( 26 ) THE First Appellate Judge was wrong in holding that the joint grant enures to the benefit of the two brothers of second defendant Chikkanna, viz. , Gangappa and third defendant cheluvaiah. He has relied on two decisions of this Court to hold that the joint grant enures to the benefit of the joint family. Those rulings are rendered under different enactments, not under the Inams Abolition Act under which the joint grant as per Ex. D-l has been made. ( 27 ) SECONDLY, the rulings relied by the learned First Appellate Judge relate to regrant. But as per Ex. D-l, it is not regrant, but a grant made jointly. ( 28 ) IN view of the aforesaid discussion, deceased Gangappa had no right to mortgage the suit property as per Ex. P-2 in favour of first defendant Channappa. Further the learned First appellate Judge was not right in holding that the suit schedule property was partible amongst the brothers, third defendant cheluvaiah, deceased Gangappa and second defendant chikkanna in respect of 1/2 portion under Ex. D-1. This covers my answer to substantial question of law Nos. 1 and 5. ( 29 ) THE reasoning of the learned First Appellate Judge, without correctly interpreting Ex. D-l, is perverse. ( 30 ) I have already stated that the joint grant was made in favor of first defendant Channappa and second defendant chikkanna and that if the grant under Ex. D-l was intended to the benefit of the joint family, it would have been made in favour of first defendant Channappa and his brother Channarayappa. But the grant has been made jointly in favour of first defendant channappa and second defendant Chikkanna. Second defendant chikkanna is the son of Channarayappa. The joint grant does not mention the names of other two sons of Channarayappa viz. , deceased Gangappa and third defendant Cheluvaiah. ( 31 ) THE reasoning of the First Appellate Court that the deceased Gangappa, one of the sons of first defendant's brother channarayappa to whom grant under Ex. D-l was not made, had the right to mortgage the suit property as per Ex. P-2 is perverse. , deceased Gangappa and third defendant Cheluvaiah. ( 31 ) THE reasoning of the First Appellate Court that the deceased Gangappa, one of the sons of first defendant's brother channarayappa to whom grant under Ex. D-l was not made, had the right to mortgage the suit property as per Ex. P-2 is perverse. Deceased Gangappa had no right to mortgage the suit property as per Ex. P-2 in favour of second defendant channappa. This covers my answer to substantial question of law No. 3. ( 32 ) THE joint grant as per Ex. D-l was made in favour of first defendant Channappa and second defendant Chikkanna. They have not executed any sale deed in favour of the plaintiff. The sale deed Ex. P-1, dated 6-12-1968 for a consideration of Rs. 800/- was executed by deceased Gangappa and third defendant cheluvaiah in favour of the plaintiff. It is clear from the above discussion that deceased Gangappa and third defendant cheluvaiah had no right in the suit property and they were not competent to execute the sale Joed Ex. P-1 in favour of the plaintiff conveying title to the plaintiff. The sale deed Ex. P-1 does not convey any title to the plaintiff. ( 33 ) THE First Appellate Court was not right in holding that Ex. P-1 was a valid sale deed conveying full title to the plaintiff. This covers my answer to substantial question of law No. 2. The reasoning of the First Appellate Judge is perverse and cannot be sustained in law. ( 34 ) THE learned Appellate Judge has applied the principle of estoppel by deed. On the facts and in the circumstances of this case, there was no scope to apply that principle. ( 35 ) ONE salient point has to be noticed in this case. In the plaint schedule what is stated is 1/3 share in 1 acre 16 guntas in survey No. 40. What exactly is the extent of the 1/3rd share has not been stated. I say this because 1 acre 16 guntas means 56 guntas. 1/3rd of 56 guntas will be 18. 66 guntas. The plaintiff was not sure of his own case. So the plaint schedule is vague. ( 36 ) FOR the aforesaid reasons, the second appeal is allowed. The judgment and decree dated 30-11-1984 passed in Regular appeal No. 36 of 1984 by the Civil Judge, Madhugiri, are set aside. 1/3rd of 56 guntas will be 18. 66 guntas. The plaintiff was not sure of his own case. So the plaint schedule is vague. ( 36 ) FOR the aforesaid reasons, the second appeal is allowed. The judgment and decree dated 30-11-1984 passed in Regular appeal No. 36 of 1984 by the Civil Judge, Madhugiri, are set aside. The judgment and decree dated 9-4-1984 passed in original Suit No. 408 of 1973 by the Additional Munsiff, madhugiri, are restored. No costs. --- *** --- .