Karnataka High Court
G Narayan Rao @ G Narayanappa vs G Venkataramana @ Venkataramana Reddy on 21 August, 2014
IN THE HIGH COURT OF KARNATAKA
DHARWAD BENCH
Dated this the 21st day of August, 2014
Before
THE HON'BLE MR JUSTICE HULUVADI G RAMESH
Regular First Appeal 1131 / 2004 c/w
Regular Second Appeal 1824 / 2007
In RFA 1131/2004
Between
Sri G Narayan Rao @ G Narayanappa
54 yrs, S/o late G Adivappa
R/a Shastri Nagar Extension
Near Canal, Bellary Appellant
(By Sri K Raghavendra Rao/ V Vidya Iyer, Adv.)
And
1 Sri G Venkataramana @ Venkataramana Reddy
S/o late G Adivappa, Lorry Owner
R/a # 10, Ward # 16(1), Gopichennappa Street
Bellary
Now Care of Auto Eranna, Binjar Street
Ward # 15, Bellary
2 Sri M V Mallappa S/o N Baramappa
R/a # 10(2), Ward # V
Sri Shivasharana Medar
2
Kethaiah Shiva Bhajana Mandira
Opp Prabhat Talkies, Car Street
Bellary
3 Sri M Kethurappa S/o M Parasappa
R/a # 10(2), Ward # 5
Sri Shivasharana Medar
Kethaiah Shiva Bhajana Mandira
Opp Prabhat Talkies, Car Street
Bellary
4 Sri M H Ramappa S/o M Yethinahatti
Hulugappa, R/a # 10(2), Ward # 5
Sri Shivasharana Medar
Kethaiah Shiva Bhajana Mandira
Opp Prabhat Talkies, Car Street
Bellary
5 Sri M Neelakantappa S/o M Mallappa
R/a # (2), Ward # 5
Sri Shivasharana Medar
Kethaiah Shiva Bhajana Mandira
Opp Prabhat Talkies, Car Street
Bellary
6 Sri G Thimmappa S/o late Ganta Adiveppa
Working in Health Department
NMEP, Kurugodu
7 G Govindappa S/o late G Adivappa
R/a # 16(2), Ward # 10
Gopin Chennappa Street
Bellary
8 Ganta Venkatappa - since dead by LRs
3
A Smt G Anasuyamma, 45 yrs
W/o late G Venkateshappa
2 Kum. G Jyothi, 21 yrs
D/o late G Venkateshappa
Both are r/a EWS 240
KHB Colony, Opp: Vasavi School
Ward # 25, Bellary Respondents
(By Sri V P Kulkarni, Adv.) for R2-5)
In RSA 1824/2007
G Narayan Rao @ Peddanarayanappa
57 yrs, S/o late Ganta Adiveppa
R/near Canal, Shastry Nagar Extension
Bellary Appellant
(By Ms Vidya Iyer, Adv.)
And
1 Sri G Venkataramana @ Venkataramana Reddy
S/o late G Adivappa, Lorry Owner
R/a # 10, Ward # 16(1), Gopichennappa Street
Bellary
Now Care of Auto Eranna, Binjar Street
Ward # 15, Bellary
2 G Thimmappa S/o late Gantaadivappa
65 yrs, Working in Health Department
NMP, Jurugodu
3 Ganta Govindappa, 63 yrs
S/o Ganta Adivappa, Agriculturist
4
Gopi Channappa Street
D # 16(2), X Ward, Bellary
4 Ganta Venkateshappa - since dead by LR
Smt Anasuyamma, 43 yrs
R/a XXI Ward, Indira Nagar
Kolagal Road, Bellary
5 Smt Lakshmi Devi Widow of Chinna
Narayana Reddy, 29 yrs
C/o Ganapal Narayana Reddy
Dammur Village, Bellary Taluk
6 Ganta Sanjeeva Reddy, 50 yrs
S/o late Ganta Adivappa
Stamp Vendor, Shastrinagar
Bellary
7 Thimmakka @ Lakshmidevi
59 yrs, W/o Y Narayana Reddy
C/o Y Narayana Reddy
Asst. Manager, State Bank of Mysore
Shastrinagar Extension, Near Canal
Bellary
8 Medar Samaja - by its Secretary
Residence by the side of Shiva Bhajin
Mandir, Car Street, Bellary
9 M B Mallappa, 65 yrs
S/o Bharmappa
10 M Kyatharappa, 63 yrs
S/o M Parasappa
11 M H Ramanna, 62 yrs
S/o Hulugappa
5
12 Neelakantappa, 62 yrs
S/o Hulugappa
9-12 are members of R8
R/a Car Street, Bellary Respondents
(By Smt Sharmila Patil, Adv. for R4;
Sri V P Kulkarni, Adv. for R1-2;
Sri Lakshminarayan, Adv. for R8, R10-12)
First Appeal is filed under S.96 of the CPC praying to set aside
the judgment dated 7.7.2004 in OS 362/2001 by the Addl. Civil Judge
(Sr.Dvn), Bellary.
Second Appeal is filed under S.100, CPC praying to set aside the
judgment dated 9.4.2007 in RA 101/2002 by the Addl. Civil Judge
(Sr.Dvn.), Bellary.
First Appeal & Second Appeal coming on for hearing this day, ,
the Court delivered the following:
JUDGMENT
Suit OS 362/2001 was filed by the plaintiffs against the defendants who are family members i.e., brothers seeking to set aside the sale deed dated 27.11.2000 in No. P-61/2000-01 executed by the 1st defendant in favour of defendants 2 to 4 as void and illegal. It is stated, plaintiffs along with defendants 6 & 7 are the absolute owners of the suit property by virtue of the Will dated 15.9.1953 executed by one G Gangappa, brother of the plaintiffs' father - Ganta Adivappa and that 6 the suit property is in possession of both the plaintiffs and defendants 6 & 7. In another suit filed by one Ganta Basi Reddy & others i.e., OS 81/1999 before the Civil Judge, Bellary against one G Thimappa and others, the present plaintiffs and defendants 5 & 7 are also defendants there. During pendency of the suit, the 1st defendant has entered into an agreement to sell the suit property in favour of defendants 2 to 4 and subsequently has executed a registered sale deed on 27.11.2000 for Rs.1 lakh in respect of the suit property. It is stated, the 1st defendant is not the absolute owner of the suit property and has no right to convey the same. Accordingly, the suit came to be filed. The matter was contested. In the written statement it is stated, 1st defendant got the suit property under the Will dated 16.6.1980 executed by his mother who in turn got the same in partition deed dated 5.4.1973. The plaintiffs who were majors then did not question the partition deed as well as the Will. The 1st defendant has got mutated his name and became absolute owner of the suit. He is in possession of the property for the past twenty five years and has perfected his title by adverse possession. The trial court having raised as many as six issues and one additional issue for consideration, dismissed the suit. The reasoning given by the trial court 7 is, plaintiffs have simply sought for cancellation of the sale deed dated 27.11.2000 without seeking declaration of title and also the said sale deed is not yet registered. However, having noted the Will executed on 16.6.1980 by virtue of which the 1st defendant has become the owner held that the sale deed dated 27.11.2000 is executed properly and the same is binding on the plaintiffs. It appears defendants 2 to 4 have purchased the property for a valuable consideration of Rs.1 lakh and they are bonafide purchasers of the suit property, the trial court has answered in their favour thereby, the suit came to be dismissed. Hence, the RFA.
The case put forth is, suit property had been sold in favour of defendants 2 to 4 by the 1st defendant. The 1st defendant claims to have got the property by virtue of the Will executed in his favour by the mother. It transpires there was an earlier partition among the co-sharers including Adivappa who is the father of plaintiffs and defendants 6 & 7. Thereafter, after the death of Adivappa, property was given to his wife for enjoyment by way of maintenance. It appears, in the meanwhile, the 8 very execution of the Will in favour of 1st defendant in respect of the entire extent of land is being challenged.
So far as cancellation of the sale deed is concerned, it is purchased by defendants 2 to 4 from 1st defendant and 1st defendant is said to have got the same by virtue of the Will made by their mother. As regards the legal position in respect of the property of the deceased Adivappa is concerned, the finding rendered by the trial court is, under the impression that they are seeking to re-open the partition, it has dismissed the suit. It appears, the stand taken by the parties is the properties standing in the name of Adivappa has fallen to the share of his children and wife, the wife also gets equal share with that of co- parceners under notional partition. If the wife has created any Will in favour of one of the sons, then necessarily such transaction / extent of the property beyond the share of 1st defendant is treated as void transaction though it is provided therein. But the finding rendered by the trial court that it would amount to re-opening of the partition or filing the application for re-opening the partition appears to be illegal and without understanding the implication. Though the earlier partition 9 is accepted but on the death of Adiveppa being the father of other co- parceners, then his wife and also his children are equally entitled to the property. Now what is brought on record is, wife was given the property for enjoyment in lieu of maintenance. The entitlement of wife is one of the share to be given to her along with her sons. Each son has got one share. The Will if any, created in excess of the share of each of his sons including the share of 1st defendant, to that extent it has to held as void. So far as property which is sold in favour of defendants 2 to 4 in this appeal (respondents 2 to 4) is concerned, it is only to the extent of 2.00 acres that could be saved treating that as the share towards the mother and also that of 1st respondent/1st defendant. As per the Will that is shown to be executed, total extent of land available is 8.00 acres. After 2.00 acres being sold, what is left out while confirming the very sale deed in favour of defendants 2 to 4 without interfering with, in the suit filed by these plaintiffs against the mother and son, the finding rendered by the trial court favoured the mother on the ground that the property was given to her towards maintenance and in turn, the Will created by her binds on the other person and accordingly, proceeded to pass an order.
10
In the case on hand, while re-opening the issue as the right of the mother is only to the extent of one share and also the share of the consenting witness, if the property is disposed of in such a fashion to respondents 2 to 4 in RFA 1131/2004, that could remain undisturbed and also remedy could be worked out in the RA 101/2002 wherein the lower appellate court has opined that the Will had not been challenged and so also the earlier partition against Adivappa and his children has not been challenged as such, there was no scope for maintaining the appeal whereas the trial court has held that there is legitimate share available to all the parties, against which this second appeal i.e., RSA 1824/2007.
RFA 1131/2004 was separately filed challenging the alienation of the property by some of the co-sharers in favour of third parties i.e., respondents 2 to 4. The RSA is filed against the finding rendered by the lower appellate court setting aside the order of the trial court effecting share on each of the co-sharers out of the property available to Adivappa on his death. It appears, after disposal of the property in a separate sale deed by two of the parties - one is a consenting party and 11 another was the executor of the sale deed, the same has been challenged regarding execution of sale deed in respect of 2.00 acres of land in favour of respondents 2 to 4, that could be kept open to be decided as it is under challenge in a separate suit by other co-sharers against the alienor and the alienee..
The substantial questions of law that arise for consideration in the second appeal are -
Whether the lower appellate court was justified in holding that there was no challenge as to the earlier partition and also Whether the lower appellate court is justified in holding that in view of the mother becoming the absolute owner of the property and in turn disposition of the property under Will was justified.
So far as the property at the hands of Adivappa is concerned, on his death under notional partition it should be made available to the co- sharers including the wife of Adivappa. Now 2.00 acres of land is sold by one of the co-sharer in favour of respondents 2 to 4 in the RFA. As per the averment made, though it is clarified that by mistake it is mentioned as 6.00 acres, totally the subject matter of the Will was 8.00 12 acres. However, the property that is available and as per the recital in the Will forms the basis to claim share. Under notional partition all the properties should be made available at the hands of the mother though it was given temporarily for her maintenance out of which, only her share can be disposed of and not the entire share available to the co-sharers. So far as the property mentioned in the Will, even if it is taken that the Will is duly proved, the mother could have alienated only her share and not beyond that. The remaining other co-sharers are entitled for equal share in the property available as is mentioned in the Will/property available for sharing.
Accordingly, while answering the substantial questions of law, the second appeal is disposed of. While working out the share of the respondents in the property which is alienated in favour of respondents 2 to 4 in RFA is concerned, to the extent of the property sold by the vendor for which they are entitled to and for the remaining extent, it shall be made available to the appellant in RFA as well as the RSA as per his entitlement. It has to be concluded, out of the property available in the hands of Adivappa, equal share shall be allotted to all his sons and 13 also one share to the wife - since wife is dead and she has bequeathed her share including the other properties as well, to the extent of share which she bequeathed on one of the co-sharer, that could be made available to him in addition to his share. The remaining extent shall be made available to the appellants and other co-sharers. Ordered accordingly.
In view of the observation made above, the first appeal also stands disposed of.
Sd/-
Judge An