Karnataka High Court
Smt.R.Mala vs Ramanna @ Doddaramanna on 28 July, 2022
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IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 28TH DAY OF JULY, 2022
BEFORE
THE HON'BLE MR. JUSTICE SACHIN SHANKAR MAGADUM
R.S.A. NO.12 OF 2010 (PAR)
BETWEEN:
1. SMT.R.MALA,
D/O SRI RAMANNA @
DODDARAMANNA,
AGED ABOUT 28 YEARS,
2. SMT. JAYASHEELA,
D/O SRI. RAMANNA @
DODDARAMANNA,
AGED ABOUT 26 YEARS,
3. SRI. R. PRAVEEN,
S/O SRI. RAMANNA @
DODDARAMANNA,
AGED ABOUT 21 YEARS,
APPELLANTS 1 TO 3 ARE
RESIDENTS OF
YERRAPANAHALLI VILLAGE,
ANNESHWARA DHAKLE,
DEVANAHALLI TALUK,
BANGALORE DISTRICT -562 110.
...APPELLANTS
(BY SRI.ABHINAV R., ADVOCATE)
2
AND
1. SRI.RAMANNA @ DODDARAMANNA,
S/O LATE NANJAPPA,
AGED ABOUT 59 YEARS,
RESIDING AT YERRAPANAHALLI VILLAGE,
ANNESHWARA DHAKLE, KASABA HOBLI,
DEVANAHALLI TALUK - 10.
2. SRI. KUDDUSH PASHA,
AGED ABOUT 49 YEARS,
S/O MOHD. YUSUF,
3. SMT. JABEEN TAJ,
AGED ABOUT 32 YEARS,
W/O SRI. KUDDUSH PASHA,
DEFENDANTS 2 AND 3 ARE
RESIDING AT JALAPATHI ROAD,
DEVANAHALLI TOWN,
BANGALORE DISTRICT - 110.
...RESPONDENTS
(BY SRI.KEMPEGOWDA, ADVOCATE FOR R2
AND R3 (ABSENT);
R1 SERVED)
THIS RSA IS FILED UNDER SECTION 100 OF CPC.,
AGAINST THE JUDGMENT AND DECREE DATED 20.8.2009
PASSED IN R.A.NO.112/2008 ON THE FILE OF THE PRL.
DISTRICT & SESSIONS JUDGE, BANGALORE RURAL
DISTRICT, BANGALORE, PARTLY ALLOWING THE APPEAL
FILED AGAINST THE JUDGMENT AND DECREE DATED
25.3.2008 PASSED IN O.S.985/2006 ON THE FILE OF THE
CIVIL JUDGE (SR.DN) & JMFC., DEVANAHALLI.
THIS RSA COMING ON FOR FURTHER HEARING, THIS
DAY, THE COURT DELIVERED THE FOLLOWING:
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JUDGMENT
The captioned second appeal is filed by the plaintiffs questioning the concurrent judgment and decree of the Courts below in dismissing the suit in respect of item Nos.2 and 3 of the suit schedule property.
2. For the sake of convenience, the ranks of the parties in trial Court is referred to. The family tree of plaintiffs and defendant no.1 is as follows.
FAMILY TREE
Nanjappa (died)
Muniakkayamma (died)
Doddapillappa Chikkapillappa Doddaramanna
(62 years) (60 years) (58 years)
Subbamma
(45 years)
R. Mala R. Jayashree R. Praveen
(27 years) (25 years) (21 years)
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3. The present suit for partition is filed by the daughters and son against father who is arrayed as defendants no.1. Defendant no.2 is the purchaser and defendant no.3 is the General Power of Attorney (for short GPA) holder. The plaintiffs have specifically contended that they along with defendant no.1 constitute Hindu Undivided Joint Family. Further it is specifically pleaded that suit schedule properties are the joint family ancestral properties. It is further stated that defendant no.1 is the 'Karta' of the family. Plaintiffs have specifically pleaded that the three properties, annexed in the schedule, are the coparcenery properties and were originally belong to the paternal grandfather of plaintiffs no.1 to 3. Plaintiffs have further pleaded that their father succeeded in the present suit schedule properties in a family partition dated 29.07.1984.
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4. The plaintiffs' grievance is that second defendant has managed to obtain registered sale deed in his favour on 23.011.2004 in respect of item no.2 and 3, from the defendant No.1 through GPA holder i.e., defendant no.3. On the basis of said registered sale deed, defendant No.2 claims to be an absolute title holder of items No. 2 and 3 of the schedule properties. Plaintiffs claimed that defendant No.1 had no authority to execute a GPA in favour of defendant No.3. Plaintiffs claim that they are not at all parties to the said GPA dated 04.08.1997 and therefore have filed the present suit seeking relief of partition and separate possession. Plaintiffs have also sought relief of declaration to declare that the sale deed dated 23.11.2004 executed by first defendant through GPA holder in favour of defendant no.2 has no binding on plaintiffs' legitimate share in the suit schedule items No.2 and 3 property.
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5. On receipt of summons, defendant No.2, who is the purchaser, tendered appearance and filed written statement and strongly denied entire averments made in the plaint. Defendant No.2 along with defendant No.3 specifically pleaded that on the basis of registered GPA, defendant No.3 has executed a sale deed in favour of defendant No.2 for a valuable sale consideration. Therefore, defendant No.2 contended that the sale deed executed by defendant No.1 through his agent would bind plaintiffs also and therefore the suit is liable to be dismissed insofar as items No.2 and 3 are concerned. Defendant No.3 who claims to be the GPA holder at paragraph No.10 has contended that there is valid authorisation in his favour and based on said authorisation, the sale deed is executed and the plaintiffs are fully aware of the authorisation given by defendant No.1. On these set 7 of defences, defendant Nos. 2 and 3 sought for dismissal of suit.
6. Plaintiffs, to substantiate their claim, have led oral and documentary evidence and have produced 11 documents which are marked as Exs.P.1 to P.11. Defendants by way of rebuttal evidence have examined two witnesses as DW-1 and DW-2 and have produced 7 documents which are marked as Exs.D.1 to D.7.
7. The trial Court having examined the oral and documentary evidence, has answered issues no.1 to 3 in negative and issue no. 5 in the affirmative. The trial Court having examined the title documents produced by the defendants, which is marked as Ex.D.7, has recorded a categorical finding that defendants No.2 and 3 have succeeded in proving their ownership over the suit schedule property. While 8 dealing with issue no.5, the trial Court was of the view that there is valid authorisation by defendant No.1 and in terms of GPA, defendant No.3 has alienated items No. 2 and 3 properties and therefore trial court was of the view that the sale is for valuable consideration and would bind the plaintiff and therefore proceeded to dismiss the suit.
8. Feeling aggrieved by the judgment and decree passed by the trial Court, plaintiffs preferred an appeal before the lower appellate Court in R.A. No. 112/2008. Appellate Court having independently assessed oral and documentary evidence, was of the view that the judgment and decree of the trial Court in dismissing the entire suit is palpably erroneous. The appellate Court was of the view that there was a serious contest only in respect of items No.2 and 3, which are subject matter of alienation under Ex.D.7. Therefore, the appellate Court was of the view that 9 when there is no dispute in regard to suit item No.1, being an ancestral property, appellate Court was of the view that the plaintiffs were entitled for share, atleast in item no.1, of the suit schedule property. On this short point, appellate Court reversed the finding of the trial Court and partly decreed the suit granting share in item no.1, while the decree passed in respect of items No.2 and 3 has was confirmed by the appellate Court.
9. Plaintiffs feeling aggrieved by the concurrent findings recorded by Courts below, insofar as item nos. 2 and 3 are concerned, are before this Court. This Court was pleased to admit the matter on 09.03.2012 on following substantial questions of law. It would be useful for this Court to refer to the substantial questions of law and same are culled out as under:
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"1. Whether in the absence of evidence establishing legal necessity, the sale of suit schedule property by the 1st defendant in favour of 2nd defendant on behalf of the plaintiffs is legal and valid?
2. Whether the trial Court, in the circumstances, was justified in dismissing the suit?
3. Whether, in the circumstances, the lower Appellate Court was justified in decreeing the suit for partition in regard to item No.1 and 1 gunta in item No.3 and dismissing the suit in respect of item No.2 and 2 guntas in item No.3 of suit schedule property?"
Additional Substantial Question of Law:
"Whether the Appellate Court was justified in granting share to plaintiff No.3 in the suit schedule properties as the sale deed executed by his father i.e., defendant No.1 would not bind on plaintiff No.3?"
10. Learned counsel appearing for plaintiffs referring to the substantial questions of law framed by this Court on 09.03.2012 and additional substantial question of law framed by this Court, would 11 vehemently argue and contend before this Court that the judgment and decree of the Courts below in denying the share in favour of plaintiff No. 3, who is a son, suffers from serious perversity.
11. Learned counsel appearing for plaintiffs referring to the recital in the GPA as well as in the sale deed would rightly point out that there is no dispute in regard to nature and character of the suit schedule property. Even in GPA, the properties are referred as ancestral properties. Even in sale deed, the recital clearly indicate that the properties are referred as joint family ancestral properties. In this background, he would contend that in absence of plea set-up by purchasers that the alienation by Karta was for legal necessity, both the Courts erred in not granting share, atleast to the son, who is arrayed as plaintiff no.3. To buttress his arguments, reliance is placed on the judgment of Hon'bler Supreme Court in the case of 12 Subhodkumar and Others Vs. Bhagwant Namdeorao Mehetre and others reported in 2007 (10) SCC 571. Placing reliance on the judgment, learned counsel would contend that also Karta is vested with power of disposing of joint family property. However, such an alienation would bind the other non-alienating coparceners provided a plea raised by the purchaser that the alienation was for legal necessity. The same needs to be pleaded and proved in accordance with law. Referring to the averments made in the written statements, he would contend that there are absolutely no pleadings to that effect which would even bind plaintiff no.3. Therefore, he would contend the purchaser would only get Karta's share and plaintiff's independent share is not at all bound by the alienation made by his father.
12. In the alternative he would also make feeble attempt and contend that plaintiffs no.1 and 2- 13 daughters, if not under 2005 amendment, under Section 6(a) are also entitled for a share in the property which was alienated by the first defendant. Therefore, he would contend that the judgment and decree of the Court below would warrant interference in light of substantial questions of law framed by this Court.
13. Have engaged a lawyer, learned counsel appearing for respondents no.2 and 3 has failed to represent on previous date and even today there is no representation. Therefore, this Court deems it fit to proceed with the matter.
14. Defendant no.1 through his agent - defendant No.3 has alienated items No. 2 and 3 in favour of defendant No.2 under registered sale deed dated 23.11.2004. The present suit is filed by daughters and son on 05.010.2005 and the alienation 14 made by defendant No.1 in favour of defendant No.3 is questioned. Plaintiffs have sought relief of declaration to declare that the alienation made by defendant No.1 in favour of defendant No.2 will not bind the legitimate share of plaintiffs in suit schedule properties. Appellate Court has partly allowed the appeal and suit is partly decreed in granting share to the plaintiffs in item no.1 property.
15. Now the question that needs to be determined by this Court is, as to whether the alienation by defendant No.1 in favour of defendant No.2 on 23.11.2004 is saved in terms of amendment to Section 6 of 2004. Amendment to Section 6 of Hindu Succession Act ('Act' for short) was brought into force with effect from 20.10.2004, while defendant No.1 has sold items no.2 and 3 on 23.11.2004. Provisions to Section 6 clearly contemplates that any alienation including partition or testamentary 15 dispossession of property which have taken place before 20.10.2004 are saved and therefore, even if plaintiffs on account of amendment to Section 6 would acquire the status of coparcenery, plaintiffs no.1 and 2 being daughters would not be entitled to any share in suit schedule property.
16. Though coparcenery is confirmed by way of legal fiction, on account of alienation, plaintiffs No.1 and 2, being daughters, cannot enforce and seek share in property which was already dealt by father. The proviso clearly indicates that as on the date of alienation, i.e., 23.11.2004, plaintiffs No.1 and 2 had no subsisting right or independent right in the property. Though plaintiffs No.1 and 2, for the first time before this Court, have made an attempt by contending that plaintiffs No.1 and 2 being unmarried daughters are entitled for share even in items no.2 and 3 and the alienation would not affect their rights 16 in terms of State amendment under Section 6(a) of the Act, the said contention cannot be examined for want of pleadings and issues. Therefore, plaintiffs No.1 and 2 cannot rake up issue at this stage and cannot be permitted to take benefit under Section 6(a) of the Act.
16. However, this Court finds force in the submission made by the learned counsel appearing for plaintiff No.3. Admittedly plaintiff No.3 being the son is a coparcener, and therefore he has acquired independent right by birth.
17. It is nobody's case that items no.2 and 3 were sold by defendant No.1 for legal necessity. It is more than trite, that the burden is always on purchaser to prove that the alienation of ancestral property was for legal necessity. It is nobody's case that items no.2 and 3 were sold by defendant No.1 17 through his agent for legal necessity. If an ancestral property is sold without there being legal necessity, that alienation would not affect the rights of non- alienating coparceners and it is presuppose that the alienations would not bind the legitimate share in the suit schedule property. Therefore, on this short point the substantial questions of law framed by this Court has to be partially answered in affirmative.
18. Insofar as plaintiff No.3 is concerned, the alienation made by defendant No.1 would not bind plaintiff No.3 and therefore, the sale deed executed by defendant No.1 in favour of defendant No.2 is valid only to the extent of defendant No.1's legitimate share in items no.2 and 3. Plaintiff No.3 is entitled to half share in items No.2 and 3. Accordingly, substantial questions of law framed by this Court are answered in the affirmative.
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19. For the foregoing reasons, the second appeal is allowed in part. Suit filed by plaintiff No.3 is decreed even in respect of items No.2 and 3. It is declared that plaintiff No.3 is entitled for half share in items no.2 and 3. It is further declared that the sale deed executed by defendant No.1 in favour of defendant No.2 will not bind plaintiffs' legitimate half share in items no.2 and 3.
Insofar as claim of plaintiffs 1 and 2 is concerned, the second appeal stands dismissed thereby confirming the judgment and decree of the Courts below.
Draw decree accordingly.
Sd/-
JUDGE BVK