JUDGMENT : ASHOK S. KINAGI, J. 1. This Regular Second Appeal is filed by the appellants challenging the judgment and decree dated 26.11.2012 passed in R.A.No.58/2011 by the learned Senior Civil Judge and JMFC, Chintamani, and the judgment and preliminary decree dated 03.09.2011 passed in O.S.No.404/2008 by the learned Additional Civil Judge and JMFC, Chintamani. 2. For convenience, the parties are referred to, based on their rankings before the trial Court. The appellants were the plaintiffs, and the respondents were the defendants. 3. Brief facts, leading rise to the filing of this appeal, are as follows: The plaintiffs filed a suit against the defendants for partition and separate possession. It is the case of the plaintiffs that the plaintiffs are the children of Muniyappa i.e., defendant No.1. The suit schedule property was purchased by defendant No.1 out of the joint family nucleus and the said property is the joint family property of the plaintiffs and defendant No.1. The plaintiffs and defendant No.1 are the members of the Hindu undivided family, and no partition is effected. It is contended that defendant No.1 had no right to execute a registered sale deed in favour of defendant No.2 to the extent of 1 acre 20 guntas of land. The sale deed executed by defendant No.1 in favour of defendant No.2 is not binding on the plaintiffs. The plaintiffs demanded a partition and separate possession, however defendant No.1 refused to effect a partition. Hence, a cause of action arose for the plaintiffs to file a suit for partition and separate possession. Accordingly, prays to decree the suit. 3.1. Defendant No.1 filed a written statement admitting that the plaintiffs are his children, and they are the members of the Hindu Undivided joint family, and enjoying the suit schedule property till today. All the members are having equal right over the suit schedule property. It is contended that defendant No.1 was the owner of the property bearing land Sy.No.144/2, measuring 2 acres, 5 guntas, and it is his ancestral and joint family property and originally, the said property belonged to his father Munishamappa and after his demise, the Katha was transferred in the name of defendant No.1. Defendant No.1 sold the property bearing Sy.No.144/2 measuring 1 acre 12 1/2 guntas in favour of G.N. Dyavanna and Byrappa under a registered sale deed dated 25.03.1976. Defendant No.1 sold the property bearing Sy.No.144/2 measuring 1 acre 12 1/2 guntas in favour of G.N. Dyavanna and Byrappa under a registered sale deed dated 25.03.1976. Out of the said sale consideration the suit property was purchased under a registered sale deed dated 25.03.1976. Since then the plaintiffs and defendant No.1 are in joint possession and enjoyment of the suit schedule property. It is contended that the alleged sale deed is created and possession is not delivered to defendant No.2. Hence, prays to decree the suit. 3.2. Defendant No.2 filed a written statement denying that the suit schedule property is the joint family property of the plaintiffs and defendant No.1 and it is also denied that there is no prior partition between the plaintiffs and defendant No.1. It is contended that plaintiff No.2 and defendant No.1 have sold the suit land to the extent of 1 acre 20 guntas under a registered sale deed dated 05.02.1997 in favour of defendant No.2. Defendant No.2 is in possession of the suit schedule property since the date of purchase. It is contended that the plaintiffs have no right to claim a share in the land to the extent of 1 acre 20 guntas of land. It is also contended that the plaintiffs have questioned the sale transaction after lapse of 12 years and the suit filed by the plaintiffs is barred by limitation. It is contended that defendant No.2 became the owner of the suit schedule property by virtue of registered sale deed dated 05.02.1997. The plaintiffs are not entitled to a share regarding the property purchased by defendant No.2. Hence, prays to dismiss the suit against defendant No.2. 3.3. The Trial Court, based on the above said pleadings, framed the following issues: 1) Whether the plaintiffs prove that they have right in the suit property? 2) Whether the 2 nd defendant proves that he is a bonafide purchaser for value? 3) Whether the 1 st defendant proves that the sale deed executed in the name of the 2 nd defendant is a forged and created one? 4) Whether the plaintiffs are entitled for the relief as sought? 5) What order or decree? 3.4. The plaintiffs, to substantiate their case, plaintiff No.1 was examined as PW.1, examined three witnesses as PW.2 to PW.4, and marked 8 documents as Exs.P1 to P8. 4) Whether the plaintiffs are entitled for the relief as sought? 5) What order or decree? 3.4. The plaintiffs, to substantiate their case, plaintiff No.1 was examined as PW.1, examined three witnesses as PW.2 to PW.4, and marked 8 documents as Exs.P1 to P8. In rebuttal, defendant No.2 was examined as DW.1, defendant No.1 was examined as DW.2, and marked 18 documents as Exs.D1 to D18. 3.5. The Trial Court, after recording the evidence of the parties, hearing both sides, and assessing the verbal and documentary evidence, answered issue Nos.1 and 2 in the affirmative, issue No.3 in the negative, issue No.4 partly in the affirmative, and issue No.5 as per the final order. The suit of the plaintiffs was partly decreed vide judgment dated 03.09.2011 and it was declared that the plaintiffs are entitled to 3/4 th share each over the suit schedule property, except the property already sold away by defendant No.1 in favour of defendant No.2. 3.6. The plaintiffs, aggrieved by the judgment and decree passed in O.S.No.404/2008, preferred an appeal in R.A.No.58/2011 on the file of the Learned Senior Civil Judge and JMFC, Chintamani. 3.7. The First Appellate Court, after hearing the learned counsel for the parties, framed the following points for consideration: 1) Whether the trial Court is justified in holding that the sale deed executed by the 1 st defendant in the name of 2 nd defendant is genuine document relating to suit Sy.No.214/2 to an extent of 1 acre 20 guntas of land? 2) Whether the judgment and decree of the trial Court warrants interference? 3) What order? 3.8. The First Appellate Court, on hearing the parties and after re-appreciating the verbal and documentary evidence, answered point No.1 in the affirmative, point No.2 in the negative, and point No.3 as per the final order. The First Appellate Court dismissed the appeal vide judgement dated 26.11.2012 and confirmed the judgment and decree passed in O.S.No.404/2008 by the Additional civil Judge and JMFC, Chintamani. 3.9. The plaintiffs, aggrieved by the impugned judgments, filed this Regular Second Appeal. 4. The First Appellate Court dismissed the appeal vide judgement dated 26.11.2012 and confirmed the judgment and decree passed in O.S.No.404/2008 by the Additional civil Judge and JMFC, Chintamani. 3.9. The plaintiffs, aggrieved by the impugned judgments, filed this Regular Second Appeal. 4. This Court, on 04.07.2014, admitted the appeal to consider the following substantial question of law: “Is the finding of the trial Court and the judgment of the appellate Court to deny share to the plaintiff in respect of 1 acre 20 guntas of land covered under sale deed in favour of defendant No.2, sustainable in the absence of any specific pleading by the defendant No.2 that he is the bonafide purchaser for value without notice and that the sale in his favour was for legal necessity of the family?" 5. Heard the arguments of the learned counsel for the plaintiffs, and also the learned counsel for defendant No.2. 6. Learned counsel for the plaintiffs submits that the suit schedule property was owned and possessed by the father of defendant No.1 i.e., Munishamappa. After his death, the property devolved upon defendant No.1. He submitted that the suit schedule property is the ancestral property of plaintiffs and defendant No.1 and they are the members of the Hindu undivided family and no partition is effected between the plaintiffs and defendant No.1. He submits that the plaintiffs are the coparceners and they have a birth right in the suit schedule property. He submits that defendant No.1 alone has no right to sell the portion of the land to the extent of 1 acre 20 guntas in favour of defendant No.2. He submits that defendant No.2 has not acquired any right, title or interest over the portion of the suit schedule property. He submits that the said aspect was not adequately considered by the Courts below, and committed an error in not granting a share to the plaintiffs to the extent of 1 acre 20 guntas in the suit property. He also submits that defendant No.2 is a purchaser, who had purchased the portion of land from defendant No.1. He submits that there is no pleading regarding the bonafide purchasing. He submits that the Courts below have committed an error in passing the impugned judgments. Accordingly, on these grounds, he prays to allow the appeal. 7. He also submits that defendant No.2 is a purchaser, who had purchased the portion of land from defendant No.1. He submits that there is no pleading regarding the bonafide purchasing. He submits that the Courts below have committed an error in passing the impugned judgments. Accordingly, on these grounds, he prays to allow the appeal. 7. Per contra, learned counsel for defendant No.2 submits that the suit schedule property was acquired by Munishamappa from his ancestors, and after his demise, the property devolved upon defendant No.1, and he sold the suit schedule property to the extent of 1 acre 20 guntas in favour of defendant No.2 for family and legal necessity and he submits that defendant No.1 is the kartha of the family, and to maintain the family, he sold the suit schedule property for valuable consideration and executed a registered sale deed dated 05.02.1997. He submits that the sale deed was executed in 1997, and as on the date of execution of the registered sale deed, the plaintiffs were major and the plaintiffs have not challenged the registered sale deed executed by defendant No.1 in favour of defendant No.2. Hence, the suit for partition and separate possession without seeking the relief of declaration that the sale deed executed by defendant No.1 in favour of defendant No.2, is not binding is not maintainable. Both the courts below have rightly passed the impugned judgments. Hence, on these grounds, he prays to dismiss the appeal. 8. Reg. Substantial Question of Law: It is an undisputed fact that, Munishamappa had acquired the property in the partition effected between him and his siblings, and the said property is the ancestral property of the plaintiffs and defendant No.1. After the demise of Munishamappa, the property was transferred in the name of defendant No.1, and defendant No.1 had no right to execute a registered sale deed in favour of defendant No.2 to the extent of 1 acre 20 guntas of land. After the demise of Munishamappa, the property was transferred in the name of defendant No.1, and defendant No.1 had no right to execute a registered sale deed in favour of defendant No.2 to the extent of 1 acre 20 guntas of land. The plaintiffs, to substantiate their case, plaintiff No.1 was examined as PW.1, and she reiterated the plaint averments in the examination-in-chief, and to prove that the suit schedule property was the ancestral and joint family property of the plaintiffs and defendant No.1, produced the documents i.e., Ex.P1 is the genealogical tree, Exs.P2 and P3 are the RTC extracts of the suit schedule property, Exs.P4 and P5 are the mutation register extracts, Ex.P6 is the encumbrance certificate, Exs.P7 and P8 are the certified copies of the sale deeds. The plaintiffs also examined three witnesses as PW.2 to PW.4, and they deposed in the same lines of PW.1. 9. In rebuttal, defendant No.2 was examined as DW.1. He reiterated the written statement averments in the examination-in-chief and to prove his defence, he has produced the original sale deed marked as Ex.D1, which discloses that defendant No.1 executed a registered sale deed in favour of defendant No.2 and defendant No.1 had received the valuable consideration from defendant No.2. Ex.D2 is the RTC extract, which discloses that defendant No.2 is the owner and in possession of the land to the extent of 1 acre 20 guntas, Ex.D3 is the mutation register extract, which discloses that the name of defendant No.2 was entered based on the registered sale deed executed on 05.02.1997, Ex.D4 is the tax paid receipt, Ex.D5 is the certified copy of the registered sale deed dated 25.03.1976, Ex.D6 is the original registered sale deed, Exs.D7 to D10 are the RTC extracts, Ex.D11 is the mutation register extract pertaining to suit schedule property, Ex.D12 is the electricity paid bill and Exs.D13 to D18 are the tax paid receipts. Defendant No.1 was examined as DW.2 and he has reiterated the written statement averments in the examination-in-chief. 10. From the perusal of the entire records, it discloses that the suit schedule property was acquired by Munishamappa in the partition effected between him and his siblings and in the said partition, the suit schedule property fell to the share of Munishamappa. After his demise, the property was transferred in the name of defendant No.1. 10. From the perusal of the entire records, it discloses that the suit schedule property was acquired by Munishamappa in the partition effected between him and his siblings and in the said partition, the suit schedule property fell to the share of Munishamappa. After his demise, the property was transferred in the name of defendant No.1. Based on the mutation effected, defendant No.1 executed a registered sale deed in favour of defendant No.2 on 05.02.1997. As of the date of execution of the registered sale deed, the plaintiffs were major, and the plaintiffs have a knowledge regarding the execution of the registered sale deed by defendant No.1 in favour of defendant No.2. The plaintiffs filed a suit in 2008, almost after lapse of more than 10 years from the date of execution of the registered sale deed by defendant No.1. There is a recital in the sale deed that the sale transaction between defendant No.1 and defendant No.2 is for family and legal necessity. The plaintiffs have contended that the same is not for family and legal necessity. When there is a specific recital in Ex.D1, as per Section 92 of the Evidence Act, 1872, the parties cannot be allowed to lead evidence to vary or modify the terms of the instrument. Any amount of oral evidence to contradict the terms and conditions of the same is void. The First Appellate Court has recorded a finding that defendant No.1 failed to prove that defendant No.2 created the alleged sale deed, and forged the signature. The plaintiffs have admitted in the plaint that defendant No.1 alienated the property to the extent of 1 acre 20 guntas in favour of defendant No.2. Defendant No.1 being an elder member of the family and kartha, has alienated the suit schedule property on behalf of the family. From the perusal of the impugned judgments, it is clear that both the Courts below have not recorded a finding that defendant No.2 is the bonafide purchaser for a value without notice, as admittedly there is no pleading in the written statement filed by defendant No.2, and from the perusal of the recital of Ex.D1, it is evident that the sale is for family and legal necessity. Both the Courts below have rightly declined to grant a share to the plaintiffs in portion of land to the extent of 1 acre 20 guntas of the land covered under the sale deed in favour of defendant No.2. Both the Courts below have concurrently recorded a finding of fact against the plaintiffs insofar as portion of land measuring 1 acre 20 guntas sold by defendant No.1 in favour of defendant No.2, and the said sale is for family and legal necessity. Both the Courts below have appreciated and re-appreciated the entire evidence on record, and have rightly passed the impugned judgments. Hence, I do not find any error in the impugned judgments. In view of the above discussion, I answer substantial question of law in the Affirmative. 11. In view of the above discussion, I proceed to pass the following: ORDER: i. The Regular Second Appeal is dismissed. ii. The judgments and decrees passed by the Courts below are hereby confirmed. iii. No order as to the costs. iv. The pending applications, if any, shall stand disposed off accordingly.