JUDGMENT This second appeal is filed by the 2nd defendant who is the alienee of the suit properties being aggrieved by the order passed by the Additional Civil Judge (Senior Division), Tuffikur in R.A. No. 68 of 1999 in conforming the judgment and decree passed (Junior Division), Tumkur in O.S. No.5 of 1987. 2. Plaintiffs are the sons of one Ajjappa. The suit property is situate at Hikkal Village. It is stated that plaintiffs are entitled to share in the suit schedule property which was sold by 1st defendant in favour of 2nd defendant and that the property sold is not for legal necessities and as he was addicted to vices, he has alienated the suit property and that they are entitled to 3/4th share and that the 1st defendant had only 1/4th share in the property. As such, a suit was filed seeking for partition and separate possession and also for mesne profits. The suit was contested by the defendants contending that there were family debts and the property was earlier mortgaged to one Thimmakka for Rs. 800/- and possession was delivered to her and thereafter, to discharge the debts and for legal necessity of the family, 1st defendant entered into an agreement to sell the property. However, the 2nd defendant, by filing a suit, obtained a decree for specific performance and it is contended that it is not an alienation in the real sense of the word and the same was obtained by a Court decree and that there is no evidence to the effect that the 1st defendant was addicted to vices. It was also contended that the sale is binding on the plaintiffs and accordingly, sought for dismissal of the suit. 3. Based on the pleadings, the Trial Court has raised as many as six issues. After evidence was let in and after hearing the parties, it was held that plaintiffs are entitled to 3/4th share in the suit schedule property and for separate possession of their share and further, they were ordered to pay mesne profits from 1976-1977 at the rate of 3/4th share calculated at Rs. 5,000/- per year, till the date of payment. Being aggrieved by the same, appeal was preferred before the Civil Judge (Senior Division), Tumkur in R.A. No. 68 of 1999. The appeal came to be dismissed confirming the judgment and decree passed by the Trial Court. 5,000/- per year, till the date of payment. Being aggrieved by the same, appeal was preferred before the Civil Judge (Senior Division), Tumkur in R.A. No. 68 of 1999. The appeal came to be dismissed confirming the judgment and decree passed by the Trial Court. Hence, this appeal by the 2nd defendant-alienee. 4. At the time of admission on 6-12-2000, the following three substantial questions of law were raised: 1. Whether the suit in O.S. No.5 of 1987 on the file of the Civil Judge (Junior Division), Tumkur was not maintainable without liberty of Court to file a fresh suit on the same cause of action in O.S. No. 305 o£1979 on the file of the Civil Judge (Senior Division), Tumkur? 2. Whether the sale of the land in Sy. No. 41/1 of Hikkal Village which was transferred as per Court decree in O.S. No. 103 of 1978 on the file of the Civil Judge (Junior Division), Tumkur can be considered as an alienation? 3. Whether the decree passed by the Court below for the future mesne profits from the date of suit without any enquiry under Order 20, Rule 12(1)(c) or under Order 20, Rule 18 of the Civil Procedure Code is erroneous? 5. Heard the Counsel for the appellant and the Counsel representing the respondents. 6. It is the submission of the learned Counsel for the appellant that earlier the property was mortgaged to discharge the family debts and thereafter for legal necessities, the property was agreed to be sold. However, the 1st defendant did not execute the sale deed. Rather, it is only by the order of Court as there was a decree in favour of the appellant. As such, the transfer of property in favour of the appellant who 'is the 2nd defendant, does not amount to alienation in terms of its meaning as per the Law Lexicon which defines the word 'alienation' as, the voluntary act of the owner of the property in effecting transfer and submitted that there is no iota of evidence on record to hold that the 1st defendant was addicted to vices and that without there being any evidence let in, both the Courts below have concurrently held that plaintiffs are entitled to mesne profits which is against the provisions of law. It is also submitted that the Trial Court wrongly decreed the suit of the plaintiff and accordingly prayed for allowing the appeal. In support of his argument, learned Counsel has relied upon a judgment in the case of Puttegowda v Puttaswamygowda (since deceased) by L.R. 1 and also in the case of Udmiram Karoodimal and Another v. Balramdas Tularam and Others, to contend that it is for the son to establish such debts was tainted with immorality and that the alienee' was aware of the character of the debts. 7. As regards the first substantial question of law raised, it is the submission of the learned Counsel for the respondents that since the respondents herein were minors, they had filed the suit through their mother in O.S. No.5 of 1977 before the Civil Judge (Junior Division), Tumkur and thereafter, only after obtaining permission of the Court, another suit was filed by the respondents in O.S. No. 305 of 1979. Further, it is submitted by the respondents' Counsel, in the alternative, since this is a suit for partition and 'possession the sale bf the suit property in favour of 2nd defendant is not binding on him and only after attainment of majority the respondents have filed the suit as such, it is neither barred by limitation nor is it barred by res judicata. It appears, on a perusal of croer sheet at Ex. P. 6 in O.S. No. 305 of 1979, permission has been granted to the respondents to file the suit as the earlier suit O.S. No.5 of 1987 was filed when they were minors through their mother and it did not contain several particulars. In view of the• same, the substantial question of law raised has to be answered in favour of the respondents. 8. The second substantial question of law is whether the land in Sy. No. 41/1 of Hikkal Village which was transferred to 2nd defendant who is the appellant herein is as per decree in O.S. No. 103 of 1978 amounts to alienation: In this regard, learned Counsel for the appellant has relied upon the meaning of the word 'alienation' in Law Lexicon wherein it does not refer to transfer by order of Court but refers to voluntary act of the owner of the property and accordingly contended that the sale does not amount to alienation. 9. 9. Incidentally, it may have to be discussed in this context whether such an alienation/transfer does not bind the alienee or that the plaintiffs are also bound by such transfer as there was an agreement entered into between defendants 1 and 2 to sell the suit property. As discussed by the Trial Court while answering issue 4, it is noticed that 1st defendant who is the father of the plaintiffs is said to have mortgaged the suit property on 3-7-1969 and as per Ex. D. 2 and there was said to be a redemption of mortgage on 1-11-1975. It is the case of the defendants that the suit property was mortgaged for discharge of antecedent debts and also for family necessity and further, according to the defendants, the agreement to sell entered into between defendants 1 and 2 is to get the mortgage redeemed. It is noticed that the agreement to sell is dated 14-4-1997 at Ex. D. 3. It is much subsequent to the redemption of mortgage. It is the case of the plaintiffs that 1st defendant-their father, was addicted to vices and also in the company of bad elements and he had become a spend thrift and went to disposing of the properties belonging to the joint family. As such, it was not for legal necessity and the amount of Rs. 2,000/- collected under the agreement agreeing to sell the property for Rs. 3,000/- was tainted with immorality and it does not bind them. 10. Learned Counsel for the appellant has relied upon the decision rendered by the Nagpur High Court wherein it is held that a Hindu son bound by Mitakshara Hindu Law comes to a Court as plaintiff claiming relied from alienation by his father for discharging his antecedent debts on the ground that the such debts had been tainted with immorality, the son cannot succeed without proof that the alienee was aware of the character of the debts. 11. It is the argument of the learned Counsel for the respondents that the 2nd defendant the alienee definitely had the knowledge as he filed a suit for specific performance and the execution of the sale deed by the order of the Court was subsequent to the filing of the suit in question and as such, the above decision is not applicable to the case on hand. 12. 12. It is also argued by the respondents' Counsel that, although there is transfer by decree of the Civil Court by ordering specific performance in favour of 2nd defend'ant, the basis for such an order was the agreement executed/entered into between defendants 1 and 2 wherein 1st defendant has disposed of the suit property belonging to the joint family without there being any legal necessity and also it is tainted with immorality and at the time of transfer of the property in favour of 2nd defendant, it was known to the 2nd defendant that the suit is filed against him and also the 1st defendant was seeking for 3/4th share in the suit property. Having regard to the factual position that the sale was effected by virtue of the Court order subsequent to the filing of the suit wherein the 2nd defendant had also knowledge of the immoral purposes as stated in the suit, had been communicated to him and under the circumstances, it cannot be said that the alienee-appellant had no knowledge that the property was alienated by the 1st defendant for his immoral purposes. Moreover, there is evidence of the plaintiffs and also one more witness to the effect as to how the 1st defendant was addicted to vices. 13. Insofar as alienation by way of transfer of property in favour of 1st defendant to 2nd defendant by order of Court, that could be treated as alienation as contended by the Counsel for respondents and the basis for such an order of specific performance was the agreement at Ex. D. 3 executed by 1st defendant in favour of 2nd defendant. In that view of the matter, it has to be held that the transfer even though by order of the Court, in favour of 2nd defendant is as if it is an alienation by 1st defendant to 2nd defendant for immoral purposes when there is specific evidence adduced by the plaintiffs and another independent witness on their behalf. Accordingly, I hold the substantial question raised in favour of the respondent. 14. Insofar as the 3rd substantial question of law is concerned, a perusal of the order of the Trial Court and the lower Appellate Court has no foundation to direct the 2nd defendant to pay mesne profits from 1976-1977 till payment as per 3/4th share at the rate of Rs. 5,000/- per year. 14. Insofar as the 3rd substantial question of law is concerned, a perusal of the order of the Trial Court and the lower Appellate Court has no foundation to direct the 2nd defendant to pay mesne profits from 1976-1977 till payment as per 3/4th share at the rate of Rs. 5,000/- per year. The Trial Court or the lower Appellate Court ought to have resorted to an enquiry as per Order 20, Rule 12 of the CPC or in the alternative, there should have been cogent evidence made available on record. Having regard to the facts and circumstances of the case, the order directing to pay mesne profits does not sustain in the absence of any cogent evidence in that regard and it also does not call for interference to determine the mesne profits as per Order 20, Rule 12 of the CPC and the finding of the Trial Court as well as the lower Appellate Court in this regard has to be reversed. 15. Accordingly, the appeal is allowed in part thereby setting aside the finding of the Trial Court to the effect that the defendant is directed to pay mesne profits to the plaintiffs in respect of 1 acre of the suit schedule property from 1976-1977 till the date of payment at the rate of 3/4th share at Rs. 5,000/- per year while affirming the judgment and decree passed by the Trial Court and confirmed by the lower Appellate Court holding that the plaintiffs are entitled to 3/4th share in the suit schedule property and for separate possession of their share. Parties to bear their own costs.