JUDGMENT : V.SRISHANANDA, J. Heard Sri Satish K. learned counsel for the legal representatives of the appellant No.1(a) and Sri C.Pattabiraman, learned counsel for respondent No.3. 2. Unsuccessful plaintiffs are the appellants before this Court challenging the validity of the judgment and decree dated 06.07.2007 passed in O.S No.2137/1995 on the file of the XVIII Additional City Civil Judge, Bengaluru (CCH-32). 3. Facts in the nutshell which are utmost necessary for disposal of the present appeal are as under: A suit for partition and separate possession in respect of the following property hereinafter referred as ‘suit property’ came to be filed by the plaintiffs. “The residential premises bearing No.103, (Old No.24), 19 th Cross (formerly known as 18 th Cross), Lakshmipura, Ulsoor, Bengaluru-8, measuring 37½ feet East to West and 15 feet North to South and bounded as follows: East by: Road, West by: Andhara Block, North by: N.D.Abbaiah’s property, South by: House of Guruprasad.” 4. Plaint averments would reveal that suit property was owned by Andemala Venkataiah, who was the husband of first plaintiff and father of plaintiffs Nos.2 to 4 and defendant Nos.1 and 2. Said Andemala Venkataiah had purchased the suit property under the registered sale deed dated 14.11.1966 and he was in possession of the property. He died on 15.10.1974 leaving behind plaintiffs and defendant Nos.1 and 2 as his legal heirs. 5. During his lifetime, Andemala Venkataiah had mortgaged the suit property in favour of Mohd. Sanaulla Sharief on 14.09.1967 and it is the second defendant who got released the mortgage from Mohd. Sanaulla Sharief. Thereafter, the plaintiffs and defendants Nos.1 and 2 were in possession of the suit property. As such, defendant Nos.1 and 2 are not the absolute owners of the suit property. 6. It is further contented that first defendant being the eldest son in the family, was acting as Manager of the joint family and he is said to have entered into an agreement to sell in respect of the suit property. 7. It is further contented that defendant No.1 has no right to sell the share of the plaintiffs in the suit property and thus sought for partition of the suit property, as Andemala Venkataiah died intestate leaving behind plaintiffs and defendants Nos.1 and 2 are the legal heirs. 8. Defendant Nos.1 and 2 entered appearance before the Court, but failed to file any written statement. 9. 8. Defendant Nos.1 and 2 entered appearance before the Court, but failed to file any written statement. 9. It is defendant No.3 who alone contested the suit by filing detailed written statement. 10. In the written statement of defendant No.3, contention of plaintiff Andemala Venkataiah mortgaging the suit property to Mohd. Sanaulla Sharief is denied. Plaintiffs and defendant No.2 redeeming the said mortgage is also denied. Plaintiffs’ claim that they are in possession of the suit property is also denied as the defendant No.3 purchased the suit property from Andemala Venkataiah himself and not from second defendant after redeeming the mortgage. 11. There is a specific contention in the written statement of defendant No.3 that there was a sale deed executed by Andemala Venkataiah on 14.09.1967. Therefore even assuming that the Andemala Venkataiah died intestate, plaintiffs and Defendant Nos.1 and 2 are having right over the suit property by way of intestate succession cannot be countenanced in law and sought for dismissal of the suit. 12. Based on the rival contents of the parties, learned Trial Judge raised following issues: (1)(a) Whether the plaintiffs prove that suit property was mortgaged by Andemala Venkataiah in favour of Mohammed Sanaulla and the mortgage debt was discharged by D-2 In his capacity as Kartha of the family? (1) (b) Whether third defendant proves that suit property was sold by Andemala Venkataiah in favour of Mohammed Sanaullah and that it was in turn purchased by 1 st defendant? (2) Whether third defendant proves that suit was sold in favour of his brother-N.Kempanna by the 1 st defendant? (3) Whether the plaintiffs prove that they have 4/6 th share in the suit property? (4) Whether the plaintiffs are entitled for partition and separate possession of their share? (5) What decree or order?” 13. In order to prove the case of the plaintiffs, second plaintiff viz., Thirupathi is examined as PW-1. He has placed on record four documents viz., encumbrance certificate in respect of suit property, certified copy of the notice and reply notice and certified copy of the order passed in HRC No.10428/1998. 14. As against the evidence placed on record by the plaintiffs, N.Chandrashekar-defendant No.3 is examined as DW-1, who has placed on record eight documentary evidence which are exhibited and marked as Exs.D-1 to D-8, comprising of sale deed dated 14.09.1967 executed by Andemala Venkataiah in favour of Mohd. 14. As against the evidence placed on record by the plaintiffs, N.Chandrashekar-defendant No.3 is examined as DW-1, who has placed on record eight documentary evidence which are exhibited and marked as Exs.D-1 to D-8, comprising of sale deed dated 14.09.1967 executed by Andemala Venkataiah in favour of Mohd. Sanaulla Sharief, lease deed dated 13.09.1967, agreement of sale dated 28.08.1971, Sale deed executed by Mohd. Sanaulla Sharief in favour of defendant No.3 dated 31.05.1972, mortgage deed, reconveyance deed, sale deed dated 30.03.1995 and encumbrance certificate. 15. Learned Trial Judge, after conclusion of recording of the evidence, heard the arguments of the parties and dismissed the suit of the plaintiffs inter alia holding in paragraph Nos.9 to 13 as under: “9. Among the documents marked by the plaintiffs, Ex.P.1 is the Encumbrance Certificate, Ex.P.2 is the copy of legal notice, Ex.P.3 is the copy of legal notice, and Ex.P.4 is the certified copy of judgment of Small Causes Court, Bangalore in HRC 10428/1998. Among the documents marked by the 3rd defendant, Ex.D.1 is the sale deed under which Andemala Venktaiah had sold the property to Mohd. Sanaulla Sharief, Ex.D.2 is the certified copy of said sale deed, Ex.D.3 is the sale agreement, Ex.D.4 is the sale deed under which 1 defendant allegedly purchased the suit schedule property from Mohd. Sanaulla Sharief, Ex.D.5 is the registered mortgage deed executed by 1 st defendant in favour of Government of Karnataka, Ex.D.6 is the certified copy of reconveyance deed, Ex.D.7 is the sale deed executed by 1st defendant in favour of N.Kempanna, who is said to be the brother of 3rd defendant and Ex.D.8 is the Encumbrance Certificate pertaining to the suit schedule property. 10. The plaintiffs in the plaint at para-3 have stated that their father Andemala Venktaiah had mortgaged the suit schedule property in favour of Mohd. Sanaulla Sherief by a registered lease deed dated 14.9.1967 and subsequently, the 2nd defendant being the manager of the joint family, redeemed the mortgage by way if registered deed dated 31.5.1972. Plaintiffs have not produced any document to support their claim that their father Andemala Venktaiah had only mortgaged the suit schedule property in favour of Mohd. Sanaulla Sherief, and later the 2nd defendant redeemed the mortgage. PW1 in his cross-examination has stated that he has no document to show that his father had mortgaged the suit schedule property in favour of Mohd. Sanaulla Sherief. Sanaulla Sherief, and later the 2nd defendant redeemed the mortgage. PW1 in his cross-examination has stated that he has no document to show that his father had mortgaged the suit schedule property in favour of Mohd. Sanaulla Sherief. The 3rd defendant in his written statement has contended that Andemala Venktaiah had sold the suit schedule property during his life time to Mohd. Sanaulla Sharief and subsequently, the 1 st defendant had purchased the same from Mohd. Sanaulla Sherief under a registered sale deed. The 3 rd defendant in his oral evidence has stated that Andemala Venktaiah sold the suit schedule property to Mohd. Sanaulla Sherief under a registered sale deed dated 14.9.1967 and subsequently, the 1 st defendant purchased the property from Mohd. Sanaulla Sherief under registered sale deed dated 31.5.1972, and he had pledged that document with the Government of Karnataka to secure loan for purchase of property through a registered mortgage deed dated 15.6.1972. Ex.D.1 produced by the 3rd defendant is the registered sale deed executed by Andemala Venktaiah in favour of Mohd. Sanaulla Sherief. This document discloses that Andemala Venktaiah, father of plaintiffs and defendants 1 and 2 had sold the suit schedule property to Mohd. Sanaulla Sherief under a registered sale deed dated 14.9.1967. Ex.D.4 is the sale deed executed by Mohd. Sanaulla Sherief in favour of A.Venkataswamy s/o Andemala Venktaiah i.e., 1 st defendant in this case, and this document shows that the 1 st defendant had purchased the suit schedule property for a consideration of Rs.8000-00 from Mohd. Sanaulla Sherief. Ex.D-5 is the mortgage deed executed by 1 st defendant in favour of Government of Karnataka for taking loan of Rs.8520 on 15.6.1972. It is significant to note that as per Ex.D.3, the 1 st defendant had entered into agreement of sale with Mohd. Sanaulla Sherief on 28.8.1971 and registered sale deed was executed as per Ex.D.4 on 31.5.1972. Therefore, it is clear that the 1 st defendant had raised loan from his employer i.e., Government of Karnataka for purchase of the suit schedule property. The documents at Ex.D-1 and 4 clearly show that the suit schedule property was sold by Andemala Venktaiah in favour of Mohd. Sanaulla Sherief and later it was purchased by 1 st defendant from the said Mohd. Sanaulla Sherief. The documents at Ex.D-1 and 4 clearly show that the suit schedule property was sold by Andemala Venktaiah in favour of Mohd. Sanaulla Sherief and later it was purchased by 1 st defendant from the said Mohd. Sanaulla Sherief. Absolutely there is no evidence on record to show that Andemala Venktaiah had mortgaged the suit schedule property and 2 nd defendant had discharged the mortgage debt of Mohd. Sanaulla Sherief. Hence, I am constrained to hold that the plaintiffs have failed to prove that the suit schedule property was only mortgaged by Andemala Venktalah in favour of Mohd. Sanaulla Sherief and 2 nd defendant discharged the mortgage debt as a kartha of the joint family, and the property was restored to the family. Hence, I have answered issue No.1[a] in the negative. 11. I have already pointed out supra that Ex.D1 clearly shows that Andemala Venktaiah had sold the suit schedule property under a registered sale deed in favour of Mohd. Sanaulla Sherief and in turn 1 st defendant had purchased the property under a registered sale deed as per Ex.D.4. Further the document at Ex.D.5 shows that the 1 st defendant had raised loan from his employer by mortgaging the property. Therefore, I hold that the 1 st defendant has clearly proved Venktaiah in favour of Mohd. Sanaulla Sharief, and in turn it was purchased by 1 st defendant through a registered sale deed for valuable consideration. Hence, I have answered issue No.1[b] in the affirmative. 12. Reasons on issue No.2: It is the specific case of the 3 rd defendant that the suit schedule property was sold by 1st defendant in favour of his brother N.Kempanna under a registered sale deed. The defendant in his affidavit evidence has also stated that after 1 defendant purchased the suit schedule property from Mohd. Sanaulla Sherief, he sold the same to his brother N.Kempanna under a registered sale deed dated 30.3.1995 and Ex.D.7 is the said sale deed. Even though the plaintiffs have claimed that the 1st defendant had discharged the mortgage on the suit schedule property by paying the mortgage amount to Mohd. Sanaulla Sherief, it is found that there was no mortgage at all on the suit schedule property as alleged by the plaintiffs and on the other hand, the plaintiffs father had sold the suit schedule property to Mohd. Sanaulla Sherief, it is found that there was no mortgage at all on the suit schedule property as alleged by the plaintiffs and on the other hand, the plaintiffs father had sold the suit schedule property to Mohd. Sanaulla Sherief under a registered sale deed as per Ex.D.1. The document at Ex.D7 fully support the claim of 3 rd defendant that 1 st defendant has sold the suit schedule property to his brother Kempanna for valuable consideration. I have already pointed out supra that 1 st defendant had purchased the suit schedule property from Mohd Sanaulla Sherief by raising loan from Government of Karnataka by pledging the suit schedule property. Therefore, the suit schedule property was the self acquired property of 1 st defendant and hence he was having absolute right to sell that property to N.Kempanna the brother of 3 rd defendant. From the oral and documentary evidence of 3 rd defendant it is crystal clear that 1 st defendant has sold the suit schedule property to the brother of 3 rd defendant by name Kempanna under a registered sale deed dt. 30.3.1995 as per Ex.D7. Therefore, I have answered issue No.2 in the affirmative. 13. Reasons on Issue Nos.3 and 4: Plaintiffs have claimed that the suit schedule property is the property acquired by their father, and it continues to be the property of themselves and defendants 1 and 2, and therefore, they are entitled for share in the property. It is admitted by PW1 that the suit schedule property was the self acquired property of his father Andemala Venktaiah. The evidence produced by the 3rd defendant and also plaintiffs also discloses that Andemala Venktaiah had sold the suit schedule property to Mohd Sanaulla Sherief for valuable consideration, and afterwards, the said Mohd. Sanaulla Sherief sold that property to the 1 defendant and in turn the 1 st defendant has sold that property to the brother of 3 rd defendant Kempanna, and therefore, the property is not with the family members of the plaintiffs. Hence, the claim of plaintiffs that they have got share in the suit schedule property and therefore they are entitled for partition and separate possession of their share in the suit schedule property cannot be accepted. Hence, I have answered Issue Nos.3 and 4 in the negative.” 16. Hence, the claim of plaintiffs that they have got share in the suit schedule property and therefore they are entitled for partition and separate possession of their share in the suit schedule property cannot be accepted. Hence, I have answered Issue Nos.3 and 4 in the negative.” 16. Being aggrieved by the same, it is the plaintiffs who have filed the present appeal on the following grounds: - “The Learned Judge has passed the impugned order without hearing the Appellants. The order passed is against the principles of Natural Justice. The Learned Judge has posted the case for arguments on 23/6/2007 and the Learned Judge refused adjournment prayed for by the counsel for Appellant and Respondents and posted the matter for judgment to 6/7/2007. Without notice to the Appellants the matter was taken up for hearing on 2/7/2007 and only the Respondents are heard and without hearing the Appellants the Learned Judge dismissed the suit which is violative of principles of Natural Justice. - The judgment pronounced is in clear violation of the Provisions of Order XX Rule 1 which contemplates that, "The Court, after the case has been heard, shall pronounce judgment in an open Court, either at once, or as soon thereafter as may be practicable and when the judgment is to be pronounced on some future day, the Court shall fix a day for that purpose, of which due notice shall be given to the parties or their pleaders." - The Learned Judge acted with material irregularity while dismissing the Amendment Application filed by the Appellants. The copy of the orders dated 17/4/2007 passed an Amendment Application is produced as ANNEXURE C. - The Learned Judge has failed to appreciate the intentions of the parties to the various transactions. Without hearing the Appellants came to the conclusion that Andemala Venkataiah sold the property in favour of Mohammed Sanaulla Shariff and 1 st Respondent purchase the property from Mohammed Sanaulla Shariff and it is the self-acquired property The Learned Judge ought to have treated the deeds as mortgage by conditional sale. - The Learned Judge has not appreciated the conduct of 1 st Respondent who remained absent throughout the proceedings. The 1 st Respondent is the manager of the Hindu Undivided Family and he obtained the Sale Deed in his name from Mohammed Sanaulla Shariff in the capacity of the manager. - The Learned Judge has not appreciated the conduct of 1 st Respondent who remained absent throughout the proceedings. The 1 st Respondent is the manager of the Hindu Undivided Family and he obtained the Sale Deed in his name from Mohammed Sanaulla Shariff in the capacity of the manager. The Respondents do not deny this contention of the Appellants. When the 1 st Respondent abstains from entering the Witness Box to rebut the contention of the Appellants, the Learned Judge ought to have drawn an adverse inference against the Respondents under Section 114 III (g) of the Evidence Act, 1872. The Learned Judge erred in holding that the 1 st Respondent is not the Kartha of the family and further erred in holding that there was no transaction of mortgage between Andemala Venkataiah and Mohammed Sanaulla Shariff and 1 st Respondent has not discharged the debt as Kartha of the family. The Learned Judge failed to appreciate the intentions of the parties. - The finding of the Learned Judge that the 4 th Respondent purchased the property from the 1 st Respondent is erroneous and capricious. - The findings of the Learned Judge that the Appellants are not entitled to 4/6 th share and further entitled for partition and separate possession of their share is erroneous. - The Learned Judge ought to have declared the Sale Deed executed by 1 st Respondent in favour of 4 th respondent as null and void as the same is executed violating the orders of Temporary Injunction passed against the 1 st Respondent. - The findings of the court below are perverse. The Learned Judge has not at all appreciated the Provisions of Hindu Law. Hindu Law clearly states that by virtue of the operation of Doctrine of blending the property ought to have been treated as the joint family property as admittedly after the Sale Deed in the name of 1 st Respondent the property remained in possession of Appellants and Appellants have not paid any rent to the 1 st Respondent. - The Learned Judge ought to have dismissed the plea of the 3 rd Respondent which states that the 1 st Respondent handed over 2/3 rd portion of the Suit Schedule Property, whereas the judgment passed in HRC No.10428/1998 clearly discloses that the Appellants are in possession of the property.” 17. - The Learned Judge ought to have dismissed the plea of the 3 rd Respondent which states that the 1 st Respondent handed over 2/3 rd portion of the Suit Schedule Property, whereas the judgment passed in HRC No.10428/1998 clearly discloses that the Appellants are in possession of the property.” 17. Sri Satish K. learned counsel representing legal representatives of first appellant reiterating the grounds urged in the appeal memorandum, vehemently contended that learned Trial Judge failed to note that the suit property was the ancestral property of Andemala Venkataiah. 18. When Andemala Venkataiah died intestate, first defendant acted as kartha of the family. Then he executed the agreement to sell with Mohd. Sanaulla Sharief. The suit property was mortgaged during the life time of Andemala Venkataiah and redemption of the mortgage should enure to the benefit of the entire family. Therefore, dismissal of the suit has resulted in miscarriage of justice. 19. He would also contend that Mohd. Sanaulla Sharief had no title whatsoever to sell the suit property in favour of the third defendant. Therefore, the third defendant portraying himself as the absolute owner of the suit property cannot be countenanced in law and thus sought for allowing the appeal. 20. Per contra, Sri C.Pattabiraman, learned counsel representing the third respondent who was the third defendant before the Trial Court, supports the impugned judgment by contending that there is no document placed on record by the plaintiffs to show that Andemala Venkataiah in his lifetime has executed a mortgage deed in favour of Mohd. Sanaulla Sharief which was redeemed by the second defendant and first defendant clandestinely entered into an agreement with Mohd. Sanaulla Sharief. 21. He would further conted that, on the contrary, material documents would go to show that it is Andemala Venkataiah who had sold the property in favour of Mohd. Sanaulla Sharief who transacted the property by mortgaging the same with the Government of Karnataka and obtained the loan and after clearing the loan, he got redeemed the said mortgage. Thereafter, he had entered into an agreement with the third defendant and third defendant purchased the suit property through registered sale deed. 22. Therefore he is the bonafide purchaser of the suit property for value and since Mohd. Sanaulla Sharief was the owner of the property, and the sale deed executed by Andemala Venkataiah in favour of Mohd. Thereafter, he had entered into an agreement with the third defendant and third defendant purchased the suit property through registered sale deed. 22. Therefore he is the bonafide purchaser of the suit property for value and since Mohd. Sanaulla Sharief was the owner of the property, and the sale deed executed by Andemala Venkataiah in favour of Mohd. Sanaulla Sharief is not being challenged, the suit of the plaintiffs is rightly dismissed by the Trial Judge and thus sought for dismissal of the appeal. 23. Having heard the arguments of both sides, following points would arise for consideration. (i) Whether the appellants have made out a case that Andemala Venkataiah had never executed a sale deed in favour of Mohd. Sanaulla Sharief and it was a mortgage deed? (ii) Whether the appellants further prove that the mortgage deed executed by Andemala Venkataiah in favour of Mohd. Sanaulla Sharief has been redeemed by second defendant and the said redemption would enure to the benefit of the appellants and respondent Nos.1 and 2? (iii) If so, whether appellants are entitled for their share in the suit property? (iv) Whether the impugned judgment is suffering from legal infirmity and perversity? (v) What Order? 24. REGARDING POINT Nos.1 to 4: These points are taken up together for consideration in order to avoid the repetition of the discussion on the material evidence on record. 25. Admittedly as per the plaint avements itself, the suit property was purchased by Andemala Venkataiah under the registered sale deed dated 14.11.1966. Therefore, at no stretch of imagination, it could be considered that the suit properties are ancestral properties. 26. Third defendant has specifically stated in the written statement that Andemala Venkataiah to meet his necessities, sold the suit property in favour of Mohd. Sanaulla Sharief who is not made as a party to the suit, by way of a registered sale deed dated 14.09.1967. The said document is placed on record on behalf of the defendant No.3 and marked as Ex. D-1. 27. Andemala Venkataiah however continued to reside in the suit property as a tenant by executing a lease deed in favour of Mohd. Sanaulla Sharief which is marked as Ex.D-2. Thus, it could be safely concluded that the contentions of the plaintiffs that Ex.D-1 was a mortgage deed cannot be countenanced in law. 28. D-1. 27. Andemala Venkataiah however continued to reside in the suit property as a tenant by executing a lease deed in favour of Mohd. Sanaulla Sharief which is marked as Ex.D-2. Thus, it could be safely concluded that the contentions of the plaintiffs that Ex.D-1 was a mortgage deed cannot be countenanced in law. 28. Certified copy of the eviction proceedings are marked by the plaintiff themselves as Ex.P-4. When such is the glaring and undisputable factual aspect of the matter, it should not lie in the mouth of the plaintiffs that Andemala Venkataiah did not execute any sale deed in favour of Mohd. Sanaulla Sharief. But, they executed only mortgage deed. 29. Further, on 31.05.1972, Mohd. Sanaulla Sharief sold the suit property to the first defendant vide Ex.D-4. Mortgage deed marked at Exs.D-5 and D-6 would go to show that the suit property was mortgaged to the Government of Karnataka for obtaining the loan and after payment of the entire loan, there is redemption. 30. These aspects of the matter would clearly make out a case that Andemala Venkataiah had lost all rights over the suit property by virtue of Ex.D-1 on 14.09.1967 itself. Pertinently, Andemala Venkataiah did not challenge Ex.D.1 in his life time. 31. When such is the factual aspect of the matter, after the death of Andemala Venkataiah, second defendant as kartha redeeming the mortgage would not arise at all. 32. Moreover, there are no documents to establish that Andemala Venkataiah had mortgaged the property in favour of Mohd. Sanaulla Sharief which was redeemed by the second defendant and that redemption should enure to the benefit of the plaintiffs and defendant Nos.1 and 2 cannot be countenanced in law. 33. Therefore, when all the rights of Andemala Venkataiah who was the absolute owner of the suit property had parted away his rights in favour of Mohd. Sanaulla Sharief vide Ex.D-1, the question of plaintiffs claiming right, title or interest over the suit property by way of intestate succession cannot be countenanced in law. As such, the finding recorded by the learned Trial Judge, if not in so many and happy words needs no interference. 34. Therefore, this Court is of the considered opinion that the appellants have failed to make out their right to claim the suit property. 35. In view of the above discussion, point Nos.1, 2 and 4 are answered in the negative. 34. Therefore, this Court is of the considered opinion that the appellants have failed to make out their right to claim the suit property. 35. In view of the above discussion, point Nos.1, 2 and 4 are answered in the negative. Point No.3 would not arise for consideration. 36. REGARDING POINT No.5: In view of the finding of this Court on point Nos.1 to 4 as above, the following: ORDER (i) Appeal is meritless and is hereby dismissed. (ii) No order as to costs.