Karnataka High Court
S C Narasamma vs Narasegowda @ Narasaiah on 22 August, 2013
Author: N.Kumar
Bench: N. Kumar
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IN THE HIGH COURT OF KARNATAKA AT BANGALORE
DATED THIS THE 22ND DAY OF AUGUST 2013
BEFORE
THE HON'BLE MR. JUSTICE N. KUMAR
REGULAR SECOND APPEAL No.665/2005 (DEC-INJ)
BETWEEN:
Smt. S.C. Narasamma
W/o. late Narasimhamurthy
Aged about 58 years
R/a. Somanahalli Village
Bangalore South Taluk
Bangalore 560 086 .. APPELLANT
(By Sri. N. Raghupathy, Adv.)
AND:
1. Narasegowda @ Narasaiah
S/o. Narasimhaiah
Since dead by his L.Rs.
a) Smt. Lakshmamma
W/o. late Narasegowda
Aged about 50 years
b) Smt. Saraswathi
D/o. late Narasegowda
2
Aged about 30 years
c) Smt. Gowramma
D/o. late Narasegowda
Aged about 27 years
d) Smt. Umavathi
D/o. late Narasegowda
Aged about 28 years
e) Mahadeva
S/o. late Narasegowda
Aged about 21 years
All are r/a. Somanahalli Village
Bangalore South Taluk
Bangalore District 560 086
2. D. Lakshmi Rao
S/o. Devarao Jamadade
Major
R/a. Somanahalli Village
Bangalore South Taluk
Bangalore District 560 086 .. RESPONDENTS
(By Sri. Joshua H. Samuel &
Sri. E. Christopher, Advs. For R-1(a) to R-1(e)
Sri. B.R. Suresh, Adv. For R-2)
This Appeal is filed under Section 100 of CPC,
against the judgment and decree dated 11.1.2005 passed
in R.A. No.165/1997 on the file of the District and
Sessions Judge, Bangalore District, Bangalore (FTC-IV),
etc.
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This Appeal coming on for Hearing this day, the
Court delivered the following :
JUDGMENT
This is the 1st defendant's second appeal against the concurrent findings of fact recorded by the Courts below that the sale deed in question is a nominal sale deed and therefore, the plaintiff continues to be the owner of the suit schedule property.
2. For the purpose of convenience, the parties are referred to as they are referred to in the original suit.
3. The subject matter of the suit is Sy. No.180/1 measuring 1 acre 30 guntas situated at Somanahalli Village in Bangalore South Taluk, Bangalore, within the boundaries mentioned in the schedule to the plaint and hereinafter referred to as the 'schedule property'. 4
4. The schedule property is an ancestral property of the plaintiff. His father Narasimhaiah borrowed a sum of Rs.1,500/- from one B. Shivappa and as a security for the same, the plaintiff and his father together executed a sale deed in respect of the schedule property in the year 1970. It was nominal sale deed. The possession of the land was not handed over to the purchaser B. Shivappa. Katha of the property was also not transferred in his favour. The plaintiff's father Narasimhaiah died in the year 1973. The plaintiff borrowed a sum of Rs.500/- from the said B. Shivappa, on the basis of the promissory note. As his father died without discharging the aforesaid loan of Rs.1,500/-, the said liability was also on him. In order to discharge the said liability, the plaintiff borrowed a sum of Rs.2,000/- from one Deva Rao Jamdade, the father of the 2nd defendant. As a security for due repayment of the aforesaid sum of Rs.2,000/-, the plaintiff along with B. Shivappa executed 5 a nominal sale deed in favour of Deva Rao Jamdade. Possession of the property was not handed over to Deva Rao Jamdade nor the mutation entries were altered, as the sale deed was never intended to be acted upon. The plaintiff being in financial difficulty, again, borrowed a sum of Rs.4,000/- from the said Deva Rao Jamdade and executed a promissory note, one, for Rs.1,000/- and another, for Rs.3,000/-. The plaintiff paid interest on the said loan amount, but he could not return the principal amount. In the mean while, Deva Rao Jamdade expired some where in the year 1978 and his son, the 2nd defendant, insisted the plaintiff to return the loan of Rs.6,000/-. In the mean while, there was a partition in the family of the plaintiff between him and his brothers. In the said partition, the schedule property was allotted to the share of the plaintiff along with the loan raised on the said property. Therefore, the plaintiff had to discharge the said amount of Rs.6,000/-. To discharge 6 the said amount, he borrowed a sum of Rs.6,000/- from the 1st defendant. As a security for the said loan, got executed nominal sale deed in respect of the schedule property from the 2nd defendant in favour of the 1st defendant on 29.7.1980. Again, possession of the schedule property was continued with the plaintiff and mutation entries were not changed.
5. In the year 1981, when the plaintiff was in sound financial position, he offered to return a sum of Rs.6,000/- to the 1st defendant and requested her to re- convey the schedule property, but she refused to do so. Hence, the plaintiff got issued the legal notice to the 1st defendant. The same was duly served on her. She sent a false reply claiming possession and title over the schedule property. She had also attempted to get the mutation entries in respect of the schedule property in her name. Therefore, the plaintiff filed the present suit 7 for declaration that, he is the owner of the suit schedule property and that, the sale deeds executed in respect of the said properly are the nominal sale deeds and never meant to be acted upon. He also sought for a decree of permanent injunction restraining the 1st defendant from interfering with his possession and enjoyment of the schedule property, and also sought for a direction to the 1st defendant to re-convey the property on receiving a sum of Rs.6,000/-.
6. After service of summons, the 1st defendant entered appearance through her Counsel and filed a detailed written statement denying the claim of the plaintiff. She also contended that the suit is barred by time. The suit for declaration is not maintainable since the plaintiff is not in possession of the schedule property. The Court fee paid is insufficient. The suit for cancellation of the sale deeds is not maintainable as the 8 said sale deeds are not the nominal sale deeds. On the other hand, the transaction is an absolute and a real transaction. She contended that the plaintiff is not in possession and enjoyment of the schedule property at any time since 1970. It is the subsequent purchasers, who were in possession and enjoyment of the schedule property. She produced ROR and P.L. copies to show her possession over the schedule property. She denied that the sale deed executed by the plaintiff is of the nominal one and the same is executed as a security for due repayment of the loan and therefore, she sought for dismissal of the suit.
7. Subsequently, the plaintiff's plaint came to be amended seeking the relief of possession on the ground that during the pendency of the proceedings, he has been forcibly dispossessed. In reply to the same, an additional written statement came to be filed by the 1st defendant 9 denying that he was in possession of the suit and that, he was dispossessed during the pendency of the suit.
8. On the aforesaid pleadings, the trial Court framed the issues and additional issues as under:
" Issues:
1. Whether the plaintiff is the owner of the suit property and entitled for possession ?
2. Whether the plaintiff proves that the sale deed dated 28.7.1980 executed by him in respect of the suit property is only a nominal deed and it has executed only as a security for the amount borrowed from the 1st defendant ?
3. Whether the plaintiff is entitled to the permanent injunction sought for ?
4. Whether the suit is barred by time ?10
5. Whether the 1st defendant proves that she is the absolute owner in possession of the suit schedule property ?
6. Whether the suit as brought is not maintainable for reasons stated in para 10 of the written statement of the 1st defendant ?
7. What decree or order ?
Additional issues:
1. Does the plaintiff is entitled for re-
conveyance of the schedule property ?
2. Does the suit property is properly valued ?
3. Does this Hon'ble Court has got pecuniary jurisdiction to entertain the suit ? "
9. The plaintiff in order to substantiate his claim examined himself as P.W.1. He has examined 11 B.Shivappa, in whose favour the 1st sale deed was executed, as P.W.2. He has also examined five other witnesses, who were well acquainted with the transaction in question, as P.Ws.3 to 7. He has produced four documents which are marked as Exs.P.1 to P.4. The 1st defendant was examined as D.W.1. She examined the 2nd defendant as D.W.2. She also examined a villager, who owns land near the schedule property, as D.W.3 and produced seven documents which are marked as Exs.D.1 to D.7.
10. The trial Court, on appreciation of the aforesaid oral and documentary evidence on record, held that the plaintiff has established his title to the schedule property. Further, the plaintiff has established that the sale deed dated 28.7.1980 is a nominal sale deed and it is executed only as a security for the amount borrowed from the 1st defendant. The suit is not barred by 12 limitation. The 1st defendant has failed to prove that she is the absolute owner of the schedule property. The suit is maintainable. Answering the 1st additional issue, the trial Court held that the plaintiff is entitled for re- conveyance of the schedule property, the suit is properly valued and that, the Court has pecuniary jurisdiction. Thus, it decreed the suit of the plaintiff declaring that the plaintiff is the owner of the schedule property and the sale deed dated 28.7.1980 is a nominal sale deed. It also directed the 1st defendant to execute a deed of re- conveyance by accepting Rs.6,000/- with interest at 6% p.a. from the date of the suit till the date of re- conveyance. The suit of the plaintiff for permanent injunction was dismissed.
11. Aggrieved by the said judgment and decree of the trial Court, the 1st defendant preferred a regular 13 appeal. The Lower Appellate Court, after hearing the parties, formulated the following points for consideration.
"1. Whether the appellant has made out a ground for allowing of this appeal ?
2. What order ? "
12. On re-appreciation of the entire evidence on record, the Lower Appellate Court was also of the view that the sale deed in question is a nominal sale deed executed as a security for due repayment of the loan amount, which was not meant to be acted upon, and therefore, the 1st defendant in any manner has any right, title and interest over the schedule property. As such, it did not find any infirmity in the judgment and decree passed by the trial Court and accordingly, dismissed the appeal.
13. Aggrieved by the said judgment and decrees of the Courts below, the 1st defendant has preferred this 14 second appeal. The second appeal was admitted on 28.2.2006 considering the following two substantial questions of law.
"1 Whether the Courts below were justified in recording a finding that the sale deed impugned in this suit was only a nominal one and did not confer any title on the defendants?
2. Whether the finding of the Courts below that the suit was not maintainable is justified solely on the ground that there is no jural relationship between the plaintiffs and the first defendant ? "
14. Sri. Raghupathi, learned Counsel for the appellant assailing the impugned judgment and decrees contended that in Ex.D.1 sale deed, there is nothing to indicate that it is a nominal sale deed. The 1st defendant has examined the vendor, who executed Ex.D.1, as 15 D.W.2, who in turn deposed before the Court that it was not a nominal sale deed. It was executed for a valid consideration. The vendor has received a sum of Rs.6,000/- from the plaintiff and delivered possession of the schedule property to the plaintiff. On the basis of the said sale deed, the plaintiff has got mutation entries made in his name, which is evidenced by the ROR copies produced and marked in the case. Therefore, firstly, the suit filed by the plaintiff is not maintainable; secondly, the sale deed in question is not a nominal sale deed; and thirdly, the sale deed has been acted upon by the 1st defendant, who in possession is cultivating the said land, and mutation entries are made in her favour and that, she has been paying tax as an absolute owner thereof. This aspect has not been properly considered by the Courts below and have committed serious error in passing the impugned judgment and decrees. Therefore, he said judgment and decrees require to be set aside. 16
15. Per contra, learned Counsel for respondent Nos.1(a) to (e) has supported the impugned judgment and decrees of the Courts below. He contended that this Court has to take note of the series of transactions prior to the sale deed in question. The plaintiff had executed a sale deed in favour of B. Shivappa to discharge the loan, which his father had borrowed from B. Shivappa, in addition to what he had borrowed. Possession of the schedule property is not delivered to B. Shivappa nor mutation entries are changed. B. Shivappa, examined as P.W.2, has categorically stated that the sale deed executed in his favour is a nominal sale deed. The document was executed for due repayment of loan. When B. Shivappa demanded for repayment of loan, the plaintiff borrowed a sum of Rs.2,000/- from the father of the 2nd defendant. As a security for due repayment of the aforesaid sum of Rs.2,000/-, the plaintiff along with B. Shivappa executed a nominal sale deed in favour of the 17 father of the 2nd defendant, which document is also attested. Even after the sale of the property in favour of the 2nd defendant's father, possession was not delivered and mutation entries were not changed as the sale in question is a nominal one. Again after the death of the father of the 2nd defendant, when the 2nd defendant demanded refund of Rs.6,000/-, it was the plaintiff who arranged the sale of the property in favour of the 1st defendant. Again, it was a nominal sale deed. It is only when the 1st defendant got mutation entries in her favour, the plaintiff was constrained to file the suit. The evidence of D.Ws.1 and 2 would clearly establish that the 1st defendant was only a name lender and the sale deed executed in question is a nominal document and that the transaction in question is purely a loan transaction. Both the Courts below on proper appreciation of the materials on record have rightly decreed the suit of the 18 plaintiff. Therefore, he submits that no case for interference is required.
16. The few facts that emerge from the material on record which are not in dispute are that the plaintiff was the owner of the plaint schedule property. He executed a registered sale deed in favour of one B Shivappa who is examined as P.W.2 in this case, for a consideration of Rs.2,000/-. The said sale deed is registered as document No.3376/70-71. Though in the sale deed it is averred that the schedule property is given possession to the purchaser in his evidence before the Court as P.W.2, he has categorically admitted that no possession was delivered in the sale deed. Similarly, he did not make any application to get the mutation entries changed to his name. The reason is it was a nominal sale deed. There was no intention to sell the property to him. The document was executed as a security for the repayment of Rs.2,000/- which he had paid to the plaintiff. When 19 P.W.2 demanded repayment of the loan plaintiff was not ready with the funds. Therefore, plaintiff raised funds. Therefore, what the plaintiff did was he got the sale deed executed by P.W.2 in favour of 2nd defendant's father Devarao on 16.6.1975. The said document was registered as document No.1697/75-76. He received Rs.2,000/- and paid it to P.W.2. Thus, he discharged the loan of P.W.2. Again this sale deed was also a nominal one executed as a security for the due repayment of Rs.2,000/-. It is clear from the fact that though in the sale deed it is mentioned that possession is delivered on the date of the sale admittedly, no possession was delivered under the agreement of sale. Similarly, no mutation entries were also made out in the name of the purchaser. In fact, it is the case of the plaintiff he also borrowed another additional amount of Rs.4,000/- from Devarao executing a promissory note. Therefore, he was due in a sum of Rs.6,000/- to him. Devarao died before 20 the debt could be discharged. The 2nd defendant after the death of his father demanded the payment of Rs.6,000/-. Plaintiff did not possess the requisite funds. Therefore, plaintiff arranged for execution of the sale deed Ex.D1 dated 28.7.1980 in favour of 1st defendant for a sum of Rs.6,000/- and the said Rs.6,000/- was paid to the 2nd defendant. Though in the sale deed there is a recital that the possession is delivered by the seller to the purchaser as seller himself was not in possession, no possession was delivered to the purchaser. In fact, the 1st defendant who is examined in this case as D.W.1 in cross-examination in unequivocal terms has admitted that possession was not delivered to her on the date of the sale and even on the date the suit is filed, the plaintiff continued in possession of the property.
17. Plaintiff is an attesting witness to the sale deed in favour of the 2nd defendant's father and he is also an 21 attesting witness to Ex.D1. If the sale deed executed by the plaintiff in favour of B Shivappa is a genuine transaction and the sale deed executed by Shivappa in favour of 2nd defendant's father is a genuine transaction, the plaintiff had no role to play in the execution of Ex.D1 by the 2nd defendant in favour of the 1st defendant. His hand can be seen in all these three transactions. It is in this context we have to appreciate the evidence of D.Ws.1 and 2.
18. D.W.2 in his examination in chief has categorically stated when he was in need of money after the death of his father, plaintiff came forward to find a purchaser for sale of the schedule property. Thereafter, plaintiff brought the 1st defendant's husband and the 1st defendant to him for purchase of the property. The plaintiff participated in the sale transaction. He admits even after sale of the property, plaintiff was in possession 22 of the property even after purchase by him and only subsequently he requested him to vacate. But in the cross-examination he admits that he did not participate at the time of sale transaction or at the time of registration of the sale deed or subsequently. He does not know what talks took place between his father, plaintiff and B Shivappa. The 2nd defendant took active part in execution of sale deed in favour of the 1st defendant. There was no direct talk between him and the 1st defendant. He spoke to 1st defendant through the plaintiff. It is the plaintiff who made arrangements for execution of the sale deed along with one Venkataramana Shastry, Muniyappa and Nanjunda Shettar. He did not read the sale deed. The recital in the sale deed shows that it is the self acquired property is not correct. He did not instruct the scribe to write to this effect. After the death of the father he did not get the khata made out in his name in the RTC. In fact plaintiff volunteered to get 23 the sale deed written and registered. There was some chit transaction between his father and the plaintiff. He do not know whether plaintiff had borrowed a sum of Rs.2,000/- from his father. After his father purchased the property, plaintiff himself continued to cultivate the land for a period of two years. The plaintiff had handed over possession of the schedule property two months prior to the execution of Ex.D1. He do not know that plaintiff continued in possession even after the sale deed in favour of B Shivappa, because it was a nominal sale deed. The plaintiff had agreed to give a portion of the produce grown in the schedule property, but he did not keep his word. He has sold 1 acre of land in the year 1983 for a sum of Rs.23,000/- or Rs.24,000/-. The said land is also in Somanahalli. It is at a distance of 1 km. from the schedule property.
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19. Therefore, the evidence of the vendor of the 1st defendant makes it very clear that the plaintiff took active part in execution of Ex.D1. He was cultivating the land even after the sale in favour of his father. Mutation entries were not made in the name of his father and after his death in his favour. Even the sale deed was written at his instance. Therefore, if plaintiff is a total stranger to the schedule property he would not have taken active part as admitted by D.W.2 in his evidence. It is in this background we have to look at the evidence of D.W.1, the purchaser/ 1st defendant. Though in the examination in chief she has stated that she was present at the time of talks of sale, in the cross-examination, she has categorically stated that it is her husband who participated in the talks. She was not present at the time of those talks, but she was present at the time of registration of the sale deed. Therefore, she do not know what talks took place and what is the nature of 25 transaction. She does not know what all talks took place and her husband also not told her. She did not enquire with her husband what talks took place; for how much amount he is purchasing the property; from whom he is purchasing the property and what is the extent. She had not read the sale deed Ex.D1 before purchase nor after purchase. It is her husband who read the document. In this context it is to be noticed, she categorically admits that plaintiff is none other than her uncle's son. She admits that B Shivappa was not cultivating the land. She admits that plaintiff was cultivating the land till the property was sold to Devarao. She admits after the property was sold in favour of Devarao, the 2nd defendant's father, plaintiff continued to cultivate the property. Till she got possession of the property, it was the plaintiff who was cultivating the land till the mutations were made in her name which stood in the name of plaintiff. She admits even after Ex.D1 was 26 executed for nearly one year, plaintiff was cultivating the land. She also admits even on the date the suit was filed and subsequently also, the plaintiff continued in possession of the property. She denies the suggestion that plaintiff got the sale deed executed in favour of her to see that the property is not lost to third persons. This admission in the case clearly shows the sale deeds executed by plaintiff in favour of B Shivappa, B Shivappa in favour of Devarao and 2nd defendant in favour of 1st defendant were all nominal sale deeds. Throughout this period, plaintiff continued to cultivate the land and plaintiff's name continued in the mutation register. It is only when the 1st defendant attempted to get the mutation entries changed in her name, plaintiff became alert, got a legal notice issued and then filed the suit for declaration. The evidence on record shows the property which is the subject matter of sale is worth much more than the consideration mentioned in the sale deed. 27 There is evidence to show that the property around that area is worth Rs.1 lakh per acre. D.W.2 admits that he has sold 1 acre of land for a consideration of Rs.23,000/- to Rs.24,000/-. It is the case of the plaintiff on the date of Ex.D1, the property was worth roughly for about Rs.60,000/- per acre. Plaintiff's witnesses have supported the case of plaintiff to the full extent. Therefore, this evidence clearly demonstrate, though sale deeds came to be executed from time to time with the recital that the possession of the property was delivered to the purchasers on the date of purchase itself, neither possession was delivered nor mutation entries were made in the name of purchasers. The consideration mentioned was nominal. The consideration of the sale deed is the security for repayment of the loan advanced. Material on record shows as long as plaintiff was selling the property in favour of outsiders his interest was secured. When he sold the property in favour of his relative he got into 28 difficulty. Both the Courts have on proper appreciation of oral and documentary evidence on record, coupled with the admission in the case, have rightly held that sale deeds executed were all nominal one and plaintiff continues to be absolute owner of the property. Plaintiff, therefore, is the owner of the property on the date of the suit and subsequently it is only later after getting the mutation entries made in the name of 1st defendant by force possession was taken, which cannot be countenanced and recognized by his Court. Therefore, the plaintiff has succeeded in proving his case.
20. In the light of the aforesaid discussions, I do not find any justification to interfere with the concurrent finding of fact recorded by both the Courts. Accordingly, both the substantial questions of law are answered in favour of the plaintiff and against the 1st defendant. 29
Hence, appeal is dismissed. Parties to bear their own costs.
Sd/-
JUDGE cs/bkp