JUDGMENT : A.V. Chandrashekara, J. 1. Plaintiff of an original suit bearing O.S. No. 93/2003, which was pending on the file of the Court of Principal Civil Judge (Sr. Dn.), Jamakhandi is before this Court by means of an appeal filed under Section 96 of CPC challenging the judgment and decree passed on 18.01.2005. Respondents herein were the defendants 1 to 10 in the said suit. Parties will be referred to as plaintiff and defendants as per their ranking given in the trial Court. Plaintiff chose to file a suit for the relief of declaration that he is the absolute owner of 7 acres of lands in R.S. No. 69/1+2/1 of Jana-wad village, Jamkhandi Taluk and also to declare that the judgment and decree passed in O.S. No. 11/1994 dated 27.06.2002 is null and void and it does not bind him and for consequential relief of permanent injunction. 2. The case of the plaintiff, as put forth in the trial Court was that the suit property in question belonged to Adiveppa, the defendant No. 1 and that Adviveppa had got this property at a partition that took place between himself and his mother Tangewa and other members of the joint family. According to the plaintiff, a suit had been filed in O.S. No. 66/1990 by his mother Tangewwa against him and others seeking partition and separate possession of the joint family properties, which are as follows: SI. No. R.S.No. Area A-G 1 196/1+2A 6-38 2 233/1 15-26 3 233/2 15-26 4 196/1+2B 06-39 5 69/1+2/1 07-00 6 69/1+2/2 09-06 3. According to the plaintiff, 7 acres of land in Sy. No. 69/1+2/1 i.e., item No. 5 mentioned above was allotted to Adiveppa and therefore he had become the absolute owner of the suit schedule property. Plaintiff is stated to have purchased the schedule property from defendants No. 1 - Adiveppa for a total consideration of Rs. 1,05,000/- through a registered sale deed dated 21.06.1995. Since then he is stated to be in lawful possession and enjoyment of the suit schedule property. The defendants/respondents started interfering with his lawful possession on the basis of a suit filed in O.S. No. 11/1994 for partition and separate possession. According to him, the said suit filed in O.S. No. 11/1994 is a collusive suit got filed by his vendor Sri. The defendants/respondents started interfering with his lawful possession on the basis of a suit filed in O.S. No. 11/1994 for partition and separate possession. According to him, the said suit filed in O.S. No. 11/1994 is a collusive suit got filed by his vendor Sri. Adiveppa himself through his son and wife and therefore, it does not bind on him. 4. Defendant No. 1-Adiveppa the vendor of the plaintiff did not chose to file written statement. On the other hand, his legally wedded wife defendant No. 3-Hanamawwa and his son defendant No. 2-Anilkumar chose to file the written statement. Defendant No. 2-Anilkumar chose to file a written statement, which came to be adopted by defendant No. 3 by means of a memo. 5. Defendant No. 2 has denied all the material averments found in the plaint and has called upon the plaintiff to strictly prove the contents of the same. According to him, the suit itself is not maintainable either in law or on facts and that the defendants are in possession of the schedule property and that he has no right to purchase the joint family property because defendants 1 to 3 have 1/3 share each. According to him, the judgment and decree drawn in O.S. No. 11/1994 binds the plaintiff. Suit is stated to have been filed with a mala fide intention to make unlawful gain. With these pleadings, he had requested the Court to dismiss the suit. Other defendants had not chosen to file any written statement. On the basis of the above pleadings, following issues came to be framed. i) Whether plaintiff proves that he is the owner in lawful possession of suit land R.S. No. 69/1+2/1, extent 7 Ac. 00 Gs as on the date of suit? ii) Does he prove that judgment and decree of O.S. No. 11/1994 on the file of this court is null, void, bogus, collusive and not binding upon the plaintiff? iii) Whether defendants 2 and 3 proves that decree of O.S. No. 11/1994 is binding upon the plaintiff and same would operated as res judicata for the present suit? iv) Ts plaintiff entitled for the relief of declaration and consequential relief of injunction as prayed? v) What judgment/order? 6. Plaintiff himself has been examined as P.W. 1 and two witnesses have been examined, apart from getting 15 exhibits marked on his behalf. iv) Ts plaintiff entitled for the relief of declaration and consequential relief of injunction as prayed? v) What judgment/order? 6. Plaintiff himself has been examined as P.W. 1 and two witnesses have been examined, apart from getting 15 exhibits marked on his behalf. Defendant No. 3 is examined as D.W. 1 and three witnesses have been examined on behalf of defendants 2 and 3, apart, from getting 10 exhibits. After hearing the arguments and perusing the records, the learned Senior Civil Judge, Jamkhandi has answered issues 1, 2 and 4 in the negative and issue No. 3 in the affirmative. Consequently, suit is dismissed by means of a considered judgment dated 18.01.2005. It is this judgment and decree, which is called in question on various grounds as set out in the appeal memo filed under Section 96 of CPC. 7. It is contended that the trial Court has failed to frame proper issues based on the pleadings and that the trial Court has lightly ignored the existence of legal necessity in alienating the property by defendant No. 1 in favour of the plaintiff. It is further contended that the suit bearing O.S. No. 11/1994 is a collusive suit and that it does not bind him in any manner, more particularly, when the vendor has colluded with his wife and son. The trial Court is stated to have not appreciated the evidence in right perspective and stated to have adopted a wrong approach to the real state of affairs. It is further contended that the judgment and decree of the trial Court is stated to be opposed to law, facts and probabilities. 8. Several decisions have been cited before this Court by the learned counsel for the appellant and learned counsel for respondent Nos. 2 and 3. Before framing proper points for consideration in this case and before reassessing the evidence adduced by the parties in the trial Court, it is better to know certain important facts of the case. 9. One person by name Vithappa had a wife by name Tangemma and both of them are no more. They are survived by four sons and three daughters namely, Adiveppa-defendant No. 1, Hanamappa-defendant No. 4, Nandeppa-defendant No. 5, Pandappa who is dead, is survived by his wife and daughters Jayashree and Purnima defendants Nos. 8 and 9, Indira-defendant No. 6, Sarojani-defendant No. 7 and Sunanda-defendant No. 10. They are survived by four sons and three daughters namely, Adiveppa-defendant No. 1, Hanamappa-defendant No. 4, Nandeppa-defendant No. 5, Pandappa who is dead, is survived by his wife and daughters Jayashree and Purnima defendants Nos. 8 and 9, Indira-defendant No. 6, Sarojani-defendant No. 7 and Sunanda-defendant No. 10. Hanamawwa-defendant No. 3 is the wife of Adiveppa and Anilkumar-defendant No. 2 is the son of defendant No 1-Adiveppa. 10. Family managed by Vithappa consisted of six items of agricultural lands and a house property bearing VPC Nos. 746 and 757 in Bidari village of Jamkhandi Taluk. Tangewa the mother of defendant No. 1-Adiveppa and the wife of late Vithappa chose to file a suit in O.S. No. 66/1990 seeking partition and separate possession of six items of agricultural lands and a house against her sons and daughters. Later on the suit ended in a compromise. Ex. P7 is the certified copy of the compromise petition filed in O.S. No. 66/1990. At this partition, schedule property measuring 7 acres of land fell to the share of Adiveppa and 6.39 acres of land fell to the share of Tangewa. Certain portion of the house also fell to the share of the said Tangewa. 11. It is mentioned in paragraph 7 of Ex. P7-compromise petition, that the joint family had a loan of Rs. 1,00,000/- and that Tangewwa and 1st defendant - Adiveppa have to repay the same equally. When the partition took place between Tangewwa and his sons and daughters and defendant No. 2 - Anilkumar was already born. 12. Anilkumar and his mother Hanumawwa, who are defendants 2 and 3, chose to file a suit against Adiveppa and Smt. Tangewwa and other family members for partition and separate possession of the joint family property and two immovable properties bearing survey No. 196/1//2A measuring 6 acres 38 guntas and suit schedule property measuring 7 acres in survey No. 69/1+2/1 and houses bearing VPC Nos. 48, 746 and 757. 13. As could be seen from Ex. P8-the certified copy of the plaint filed in O.S. No. 11/1994 by Anilkumar and Hanumavva, first defendant - Adiveppa had clearly deserted them having extra marital relationship with one lady by name Hema of Sulibhavi village of Hungund taluka and that, he was addicted to vices like drinking, gambling etc. 13. As could be seen from Ex. P8-the certified copy of the plaint filed in O.S. No. 11/1994 by Anilkumar and Hanumavva, first defendant - Adiveppa had clearly deserted them having extra marital relationship with one lady by name Hema of Sulibhavi village of Hungund taluka and that, he was addicted to vices like drinking, gambling etc. They were apprehending that Adiveppa was trying to alienate suit schedule properties in collusion with his mother and other members of the family. Therefore, they had sought 1/2 share in the agricultural land and 1/4 share in the house property. The said suit came to be resisted by Adiveppa as 1st defendant. He had specifically denied the allegation of having vices and extra marital relationship with a lady by name Hema. He had admitted the partition that had taken place in O.S. No. 66/1990 and allotment of 7 acres of land in his favour in the said partition. According to him, there was loan of Rs. 50,000/- in respect of survey No. 69/1+2/1 of Janawad village and that, he had to sell the suit schedule property to repay the loan mentioned in the decree and to meet other family necessities. In the said suit, Hanamavva came to be examined as FW1. Ex. P10 is the certified copy of her deposition recorded in O.S. No. 11/1994. She was not cross-examined by the Counsel for defendant No. 1. Ultimately suit came to be decreed granting 1/3 share each to Smt. Hanamavva and Anilkumar. 14. During the pendency of O.S. No. 11/1994, in which written statement was filed by Adiveppa on 16.12.1997, Adiveppa chose to sell the entire suit schedule property of 7 acres of agricultural land for a sum of Rs. 1,05,000/- in favour of present plaintiff Hanmant Ragha and plaintiff as per sale deed marked as Ex. P11. 15. Learned Counsel for the appellant has vehemently argued that, the allotment of 7 acres of land to Adiveppa at a partition that culminated in a compromise decree was his self-acquired property and that, neither his wife nor his son have any right over the schedule property. P11. 15. Learned Counsel for the appellant has vehemently argued that, the allotment of 7 acres of land to Adiveppa at a partition that culminated in a compromise decree was his self-acquired property and that, neither his wife nor his son have any right over the schedule property. In this regard, he has relied upon the decision reported in 1986 (3) SCC 567 : AIR 1986 SC 1753 ) in the case of Commissioner of Wealth Tax, Kanpur and others v. Chander Sen and others, to contend that property so allotted in his favour was his self-acquired property and that he could deal with the same in any manner. It is to be seen that, no where in the plaint such a plea is taken up by the plaintiff Hanmanth Ragha. For the first time, such an argument is advanced before this Court, without there being any basis in the plaint filed before the trial Court. Even otherwise, we can consider this decision relied upon by the learned Counsel for the appellant. 16. On going through the grounds urged in the appeal memo, it is evident that the plaintiff is mainly relying upon the legal necessity that existed in regard to the alienation of the property in his favour by 1st defendant Adiveppa. Admittedly, the burden is upon the alienee to prove the existence of legal necessity or pressure on the estate, especially when the alienation takes place during the minority of the co-parcener. 17. The decision in Chander Sen's case ( AIR 1986 SC 1753 ) is relied upon mainly to impress upon the Court that the land measuring 7 acres, which fell to the share of Adiveppa, was his exclusive property and therefore, plaintiff cannot question the same. This Court is unable to accept such contention. In a decision reported in (2013) 9 SCC 419 : ( AIR 2013 SC 3525 ) in the case of Rohit Chauhan v. Surinder Singh and others, Hon'ble Supreme Court has specifically reiterated that, if a coparcener gets a property at a partition and at that time, he has a son, the property will be coparcenary property at the hands of his son. It is better to reproduce the observation made by the Hon'ble Supreme Court in Rohit Kumar's case as found in paragraph 14: 14. It is better to reproduce the observation made by the Hon'ble Supreme Court in Rohit Kumar's case as found in paragraph 14: 14. A person, who for the time being is the sole surviving coparcener as in the present case Gulab Singh was, before the birth of the plaintiff, was entitled to dispose of the corparcenary property as if it were his separate property. Gulab Singh, till the birth of plaintiff Rohit Chauhan, was competent to sell, mortgage and deal with the property as his property in the manner he liked. Had he done so before the birth of plaintiff, Rohit Chauhan, he was not competent to object to the alienation made by his father before he was born or begotten. But, in the present case, it is an admitted position that the property which defendant 2 got on partition was an ancestral property and till the birth of the plaintiff he was the sole surviving coparcener but the moment plaintiff was born, he got a share in the father's property and became a corparcener. As observed earlier, in view of the settled legal position, the property in the hands of defendant 2 allotted to him in partition was a separate property till the birth of the plaintiff and, therefore, after his birth defendant 2 could have alienated the property only as karta for legal necessity. It is nobody's case that defendant 2 executed the sale deeds and release deed as karta for any legal necessity. Hence, the sale deeds and the release deed executed by Gulab Singh to the extent of entire coparcenary property are illegal, null and void. However, in respect of the property which would have fallen in the share of Gulab Singh at the time of execution of sale deeds and release deed, the parties can work out their remedies in appropriate proceeding. 18. As already discussed, Anilkumar was already born when a partition takes place between Tangewwa and his sons by means of compromise petition. 19. In the light of the grounds urged in the appeal memo, following points arises for the consideration of this Court: i. Whether there was any legal necessity for alienation of the entire extent of 7 acres of land by Adiveppa - 1st defendant in favour of plaintiff- Ragha, more particularly during the pendency of O.S. No. 11/1994? ii. 19. In the light of the grounds urged in the appeal memo, following points arises for the consideration of this Court: i. Whether there was any legal necessity for alienation of the entire extent of 7 acres of land by Adiveppa - 1st defendant in favour of plaintiff- Ragha, more particularly during the pendency of O.S. No. 11/1994? ii. Whether any interference is called for by this Court and if so, to what extent? 20. Re Point No. 1: As already discussed, a person who purchases the undivided share of a minor from the Kartha, burden is upon the alienee i.e., the purchaser to effectively establish the existence of legal necessity or pres-1 sure on the joint family or its estate. It is to be seen that, in the suit filed in O.S. No. 11/1994 Anilkumar and his mother had specifically pleaded that, Adiveppa was addicted to vices and he had extra marital relationship. They had, gone to the extent of mentioning the name of the lady, with whom Anilkumar had extra marital relationship. The fact that entire suit schedule property of 7 acres had fallen to his share at partition and that Anilkumar was born at that time, is not seriously disputed. Therefore, from the evidence placed on record, it is evident that Adiveppa was a divided member by the time Anilkumar chose to file a suit seeking partition of his share and he was entitled to challenge the alienation made during his minority. It is to be seen that, appellant - Hanmant Ragha chose to purchase the property during the pendancy of O.S. No. 11/1994. What is argued before this Court by the learned Counsel for the appellant is that, the judgment and decree obtained in O.S. No. 11/1994 is a collusive decree and therefore, it does not bind him. In this regard, the learned Counsel for the appellant has relied upon the decision reported in AIR 1956 SC 593 in the case of Nagubai Ammal and others v. B. Shama Rao and others. A distinction is made between a collusive proceeding and a fraudulent proceeding in the said decision. Paragraph 15 of the said decision deals with distinction between the collusive proceedings and fraudulent proceedings. The same is extracted below: There is a fundamental distinction between a proceeding which is collusive and one which is fraudulent. A distinction is made between a collusive proceeding and a fraudulent proceeding in the said decision. Paragraph 15 of the said decision deals with distinction between the collusive proceedings and fraudulent proceedings. The same is extracted below: There is a fundamental distinction between a proceeding which is collusive and one which is fraudulent. Collusion in judicial proceeding is a secret arrangement between two persons that the one should institute a suit against the other in order to obtain the decision of a judicial tribunal for some sinister purpose. (Wharton's law Lexicon, 14th Edn., p. 212). In such a proceeding, the claim put forward is fictious, the contest over it is unreal, and the decree passed therein is a mere mask having the similitude of a judicial determination and worn by the parties with the object of confounding third parties. But when a proceeding is alleged to be fraudulent, what is meant is that the claim made therein is untrue, but that the claimant has managed to obtain the verdict of the Court in his favour and against his opponent by practicing fraud on the court. Such a proceeding is started with a view to injure the opponent and there can be no question of its having been initiated as the result of an understanding between the parties. While in collusive proceedings the combat is a mere sham, in a fraudulent suit it is real and earnest. 21. It is to be seen that no married lady would come before the Court and make an allegation that her husband has an extra marital relationship and that her husband is addicted to vices like gambling or drinking. In fact Adiveppa chose to appear before the Court by engaging a Counsel and denied all the material allegations by filing written statement. Just because he did not cross-examine P.W. 1 - Hanamawwa, his wife, it does not give rise to an inference that the decree obtained in O.S. 11/1994 is a collusive decree. On the other hand, conduct of Adiveppa would go to show that, he alienated the entire 7 acres of land, in which 2nd defendant had undivided right, for a meagre sum of Rs. 1,05,000/- to the plaintiff Ragha who ventured to purchase the same knowing very well about the suit filed by the wife and son of Adiveppa against Adiveppa. On the other hand, conduct of Adiveppa would go to show that, he alienated the entire 7 acres of land, in which 2nd defendant had undivided right, for a meagre sum of Rs. 1,05,000/- to the plaintiff Ragha who ventured to purchase the same knowing very well about the suit filed by the wife and son of Adiveppa against Adiveppa. Even if he did not have any personal knowledge of the same, Section 52 of the Transfer of Property Act presupposes the knowledge of the purchaser because the alienation was during the pendancy of a comprehensive suit for partition by a co-parcener during whose minority alienation had taken place. 22. In fact on 25.01.1994, plaintiffs got issued a legal notice to Adiveppa not to alienate the suit schedule property and a copy of the same was even got marked to the Sub-registrar Jamakhandi and intending purchaser namely Balappa Allappa Jamakhandi and also to the Village Account, Bidari. Ex. D2 is the copy of the legal notice and Ex. D1 is the postal acknowledgement signed by the Sub-registrar Jamakhandi. These acts would go to show that Hanamawwa and her son Anilkumar had lot of apprehension about Adiveppa alienating the property, even though there was no necessity as such. 23. Ex. P7 the compromise decree discloses that there was a loan of Rs. 50,000/- liable to be repaid by Adiveppa and therefore he had to alienate the property. Mere mentioning of loan of Rs. 50,000/- as liability of Adiveppa in the compromise petition would be insufficient. What was the nature of loan availed by the joint family and from whom it had been availed and what was the stage of such loan are not forthcoming. As already discussed, the burden is always upon the purchaser of the undivided share of a minor to effectively prove the same. Unless the initial burden is effectively discharged by the purchaser of minor share, the onus will not shift on the other side. 24. In a catena of decisions, the Hon'ble Supreme Court and this High Court have specifically held that mere well articulated covenants about legal necessity in a document of recent origin will not clothe the purchaser about the protection from such an attack. Some corroborative material should have been placed to demonstrate the existence of legal necessity or pressurise on the estate of the joint family. 25. Some corroborative material should have been placed to demonstrate the existence of legal necessity or pressurise on the estate of the joint family. 25. Having not done so, the plaintiff cannot turn round and say that the judgment and decree passed in O.S. No. 11/1994 is either a collusive or that there existed absolute legal necessity for Adiveppa to alienate the joint family property. Learned Counsel for the appellant has relied upon a decision in the case of Radhakrishnadas and another v. Kaluram (dead) and after him his heirs and legal representative and others, reported in AIR 1967 SC 574 to contend that a purchaser of an undivided share of minor is required to establish the legal necessity for the transaction and that it is not necessary for him to show that every bit of the consideration which he advanced was actually applied for meeting the family necessity. There is no second opinion about this proposition of law enunciated by the Hon'ble Supreme Court in Kaluram's case. But that does not give the purchaser of an undivided share a minor leverage to contend that there existed legal necessity for the joint family. Some cogent evidence should have been placed to show that the family owed some debt and to some particular person and that it was not a time barred debt. Therefore, mentioning of the existence of some debt in the joint family in the compromise petition will not be of any help to the appellant. 26. P.W. 1 has been cross-examined at length by the learned Counsel for the defendants 2 and 3. During the course of his cross-examination, he has deposed that he had filed an appeal against the judgment and decree in O.S. No. 11/1994 and that it was dismissed. Later on he has volunteered to state that he withdrew the same after filing the said suit. What is contended before this Court by the learned Counsel for the appellant is that, this is only a stray admission it should not have been blown out of proportion, more particularly, when defendants 2 and 3 have not furnished any document to that effect. Even if this were to be considered as a stray admission, there are certain other admissions which have been culled out from his mouth. Even if this were to be considered as a stray admission, there are certain other admissions which have been culled out from his mouth. In para-graph-13 of his deposition P.W. 1 has feigned ignorance about the date of the marriage of the daughters of Tangawa and the marriages of defendant Nos. 4, 5 and the deceased Pandappa. By the time the partition took place marriages of all the daughters and sons of Tangawa had been performed. When the suit was filed by the plaintiff in the year 2003, daughters of Tangawa were aged more than 50 years. Therefore the assertion of plaintiff that family had raised loans to perform the marriage does not stand to reasoning and the same has to fail. 27. Viewed from any angle, the trial Court has properly analysed the entire oral and documentary evidence keeping in mind the burden cast upon the plaintiff the purchaser. In this view of the matter, it can be said with certainty that the judgment and decree passed in O.S. No. 11/1994 definitely binds the plaintiffs and defendants 1 to 3 have 1/3rd share each as decided in O.S. No. 11/1994. 28. In this view of the matter, it is to be held that the plaintiff-appellant has thoroughly failed to prove that there existed legal necessity for the joint family headed by Adiveppa consisting of plaintiffs as members to alienate the property. Even otherwise, the plaintiff has ventured to purchase this property during the pendency of the suit. Therefore it is hit by principles of lis pendens as contemplated under Section 52 of Transfer of Property Act. Hence, point No. 1 is answered in the negative. 29. Though the appeal is liable to be dismissed interference is called to a limited extent. Admittedly, Adiveppa has 1/3rd undivided share as decided in O.S. No. 11/1994. He was competent to alienate his undivided share to anybody he liked. In the light of alienation already made in favour of the plaintiff, the alienation will be valid only to the extent of 1/3rd share of Adiveppa and not beyond that. Admittedly, Adiveppa has 1/3rd undivided share as decided in O.S. No. 11/1994. He was competent to alienate his undivided share to anybody he liked. In the light of alienation already made in favour of the plaintiff, the alienation will be valid only to the extent of 1/3rd share of Adiveppa and not beyond that. It is to be seen that the judgment and decree drawn in O.S. No. 11/1994 has attained finality and it is held in this case that the judgment and decree drawn in O.S. No. 11/1994 binds the plaintiff Ragba and that his title is restricted to the extent of 1/3rd share that his vendor Adiveppa has. Therefore, the trial Court should have made an observation to that effect while dismissing the suit. Though the plaintiff suit is liable to be dismissed, some observation is required in regard to the plaintiff Ragha stepping into the shoes of his vendor Adiveppa and therefore the plaintiff is entitled for 1/3rd share. He could work out his share in the final decree proceedings arising out of O.S. No. 11/1994. ORDER Appeal filed under Section 96 of CPC is dismissed holding that plaintiff is entitled for 1/3rd share only in the suit schedule property measuring 7 acres i.e., to the extent of the share that Adiveppa had as per the judgment rendered in O.S. No. 11/1994. The plaintiff has to get his share demarcated by filing necessary final decree proceedings as contemplated under Section 54 of CPC. If a final decree proceeding is already filed in accordance with the judgment and decree passed in O.S. No. 11/1994, he can also participate in the same and get his share demarcated. If the final decree proceeding is already pending pursuant to judgment and decree in O.S. No. 11/1994, the learned Judge dealing with final decree proceeding shall expedite the matter without further delay and parties shall cooperate with him with the Court in the final decree proceedings. In view of the relationship of the parties and circumstances of the case, there is no order as to costs.