Karnataka High Court
P Sreenivasulu S/O Late Payyavulu ... vs Ramesh S/O G Shivana Gouda on 25 May, 2010
Bench: N.Kumar, H.S.Kempanna
_<'.z: Q1- IN THE: HIGH CGURT GP' KARNATA1<A CIRCUIT " AT SHARWAD DAIFED THIS THE: 25% €i_i,%E<"i.é\/_£_;i\X i2::>':"::§7; J PRESENT V THE: HONBLE ME»; .
BETWEEN:
1 P.SRE3ENI»V'::Aj$h U';B§;§'-- % _ s/0. *PAYYAVULU4.B}I, 'EHVIAPPA AGEDJAXBQUT 2 P.VENKM'ES'ULLT_ A V S/QLATE PAYYAVULU BHEIEMAPPA " * AC§_E~D;'_ A»BQzUT 35""r"E3ARS.
3 P;}XEé=.fAD;iL5§'L:f:L§J % 3 LA1;";E2_P£:'YYAVULU BHEEMAPPA AGED 1AJ%iG;;m' 33 YEARS.
P. SAi"H'}'ANARAYANA LATE PAYYAVULU BHEEMAPPA ' ABOUT 31 YEARS.
% . .,,_..FiRADHA D/G. LATE PEEYYAVULU BHEEMAPPA //////am_w_-4-N. W... ..._ . .
ei>--ND= % % %%%%% S/0» (3%,.j's,"IxzANA GOUDA YEARS.
S/Q; G.'S'E£.IVANA comm AGEB ABOUT 28 . .... RMAMATHA L. ;
:3/05 LATE PAYYAVULULJ.%BH':":'EM2:§%PA'.% AGED ABOUTQ8 YErgRs«..j'; % «V ALL ARE RESI£':E'NT$. 0:3» WARD SASTRY BELLAI%Y.,, _ % A .
(BY SR1 BAHUBA A'."D}%---Ai'~I.AWADE SR1 SIKANDAR 'SV.'}:'3}_T"\R<'A'ifl-.£AN SR1 saK.'v.E1xIKATA"REp"j3Y, ADVOCATES) . . APPIEZLLANTS _ §3§%%R§*ARE R/AT VEDYANIKETAN SCHOOL 'LDARV/3§i'HI NAGAR, H MAIN : V-:.'?3';E_}§}faY?AP§\)f1\§§3 102' S/O. GSHIVANA GOUDA V% ..._.§{/IAJOR.
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No.9 are the daughters of Late G.Shivar1a Gauda piaintiffs as prayed far granting_-zj.¢{:§a:*;a;fié%:--:'_fvafi{% ',aivs_s:> ' preferential rights to acquire theiri;
scheduled. property.
2. For the purposr: ~Qf C«i3f}Vé§3.i'3IiC§fi, the" jj'é1rties are referréd ta as in the? Griginai 3- The 8. house property situated wi:h%in1%*:hé-'iigggkts .._§§f._::f:$ef"i}a.ry_ City wxunjcipamy within the regis191:atio'nVéifxéf-»:S§u};$¥::§gist:'étion district of Beflary in Block No.33*, P§lot "D_O0r=' No.17, Sastrynagar, Bellary measuring If£ast%._to We's't**'*" : 40 feet . H , N'QI€h"€Q South : 60 feet % ~ _;» ' " * EaS'_"c--._g¥'Rbad WG$f4j'.:--¥Ha11a 1 NQ1"'th --~ Plot No.45 Sfiuth -~ Plot No.47 H The plaintiff No.1 is the son, Plaintiff No.2 and E %/ // '% K '\.
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5. %/ §\§\\§§\§.t.\\\\\\\\bw\x\m m . ..... . _. _____ I7 rksxxxxxxxkiktxk§\\\\\\\\\\\\ §:§§...§€\\\\\\\\\¥$§ mm the renf:eiC1y:__bf.f;he defendants is only to file a suit for general ellatment of the share their vendor in their feV0ur.»'.4'Def9e§.1e£é1}1ts have absolutely no right to claim any suit property or to take possession of the suit by virtue of the sale deed. The plaintiffs who were béa}eii}ners of the suit praperty along with Gfihivanagouda proceedings against the plaintiffs as guardian appointed and guardian did net devfeAfi:i'«thet.L sf:
properly; Therefore: the decree Vpassedt dated 19.11.1994 is nuliity as;§§{t««..bine':n g4"as};e::1~%;e";51aie£1:;f£s§;AM:
The decree passed in OS-;Z'§IVo,1Q.3L'%;5§'§5é'i3z_.'ci<3es':1stAv'eiefeat the rights of the plaintiffs' property. Late G.Shivanag0uda and sale deed executed by abselute right, title and interest in p'1;e.peErty as if at all purchaser is entit1ed tQ' to the extent of share of Late G.Shivari&geude.~__ Ee'i:é+§" purchaser of undivided interest ;§'a1fEi=?;i.e11_.age;inst $21.1 the persons who have share in the said & E E: .
xuA...<w9$§\\§.w\\««\§&\\\\\\\\\\\\\\§\V\\ @ 9th defengdant.
preemption is also available to the-__.tpiaigztiffsttttittrief' 22(1) to {3} of the Hindu Succession of intestate from whom the estate~...of latev:Layatakshaxr;ammaI devolved. Plaintiffs; Late G.Shit{atta;got1uda fidefendant have acquired the suit being class ~--~1 heirs. Even though» the sold by Late G.ShiVanagouc§;1ai'.~v owner, the sale is valid partially: share in the property sold and at the instance of non-
alienating co:o~v\{r1e1fs' Le, plaintiffs 1 and 2 and "'E.r:V'--tile'"te:ir'é},umstanees§ plaintiffs 1 and 2 and 9m VVare:'i..:_»e:ntit}ed to purchase the share of Late in the suit house after determination of his and value of the said share. Even though the have obtained possessions through Court the right of preemption is not lost or extinguished, The 35: , z'%////K / //(/////////1/////ma"" ' /
-.4.' defendants peseession ef the entire house ii3Ze'gVe1E'.d V' sale enly is partially valid Since E1§eAA»vdefend_a1<:_":eV:_f§Qeeeesidn -3 is illegal, the defendants are liable mega}; mange use and occupation of the premi$e:é'--dat «dd per mensum till the date ,o"£7.§;aeaf;ifig the'§:*1femiseS"."""'
6. Therefore... setting aside and canceling passed in O.S.No. Ieridncipal Munsiff, Bellary as not ehd for declaration that sale deed dated by Late C:.Shiva:1agouda in favour Q:f;_°LeJ.:e was met binding on the plaintiff.
'C<3r1:'se.q_Vi1'en'i§j{; "the preliminary decree for partition and of the plaintiff 2/3" share in the Adddvvvdseheduie pr;jpef7fiy and direct the defendants to sell the share ' W " 'T G.S"r1.i§7anag0uda to the piaintiffs.
After the service of the summens to the .R"~.__bdedfefidants, the first defendant filed written statement %'[_/ /N . . x.x\«\\\\\\\\\\\x\\\A\\\\\\\\\n..V\\\\\ _ premises. When he refused to Vacate, the' defémaaef [am to 5 filed a suit in O.S.No§1034/1989 on Principal Munsiff, Bellary against the plaintiffs .fethe1'!»é.éhivana Gouda. During the pendency of the suit "».__DLefewuTG.Shivar1ag0ude, died, at that time plaintiffs were wf@®«:":ee.§& fie eév gdated 24.9197? agreed {:0 reeerfiéy.-f.h'e_.331$: * property for same Consideration consideration mentioned in the sale Late G.Shivanahouda has not' The":
defendant's father~P.Bhima§>pa p}aifk.'Cif£":'$ father G.Shivanagouda to reside :e1";er the sale deed and in fact there:"'»d:e}7eje1dant's father P.Bhimappa te__ VVC';'Shivana Geuda to vacate the defendant's notice to the G.Shivana Gouda, did not vacate the property. After «:V> f""1eiee____«ciefendant's father~P.}3himappa, the (A.iLefe1*2§:I;*3;3f;§ f;:::..VA_feqeiesiged the said p1air1tiff's father--GgShivana % V N G.Shivahag0uda has left behind several The suit property is also treated as joint and therefore the present suit filed for "t Without including the other properties of Late V'stUsGtfihivarzagouda is not maintainahle. The property was sold V "to discharge the mortgage loan and for family necessity. The rrzirzers. 9&1 respondent ~ s§ster_v"tx{e:s The aiiegatieh that she Wes not te act as guardian and that she her duty and failed ts prosecute"'»the safeguard the interest of the are not entitled to share in_th.e correct to contend that the deCree~».e,,, 1034/ 1989 on the file of Principe} a. nullity and not binding on d_efeh'd'an.t...is not in the possession of the suit Gouda is not the absolute owner of the
7 «7X6/%/ 4w)&//////x//r//xxx»222nun»,~ / suit was not filed within three years from the date of attaining /// the majority' The judgment and decree in C3.S.N0,jiO34;'1989 's.
i:%/// i:/" V adopted the additional written statement 3.130.
Iawfui and binds the piairztiffe and therefere; t?1e3?"se1;;g}§f:_Li dismissal 0f the suit,
8. Defendant No.2 ta 8 flee a A1:;1e::;§ are adopting the written sta:em..eh&; agézieet._theéV"a§§e§'ef:damtV No.1. 151 defenéant aise' w1;{fite1*:""eiateznent contending that the sisters are owners of the was sold by plaintiffs' fathe€if:'Vfc':'>::;*" 3. joint family and Late .faAi"f'ief <3f the plaintiff and sold property fer. end also for satisfying the antecedeAnt.,sA'The right of preemption sought by limitation, The right of preemption if to be worked out only at the time of ""Vpassingfijf __.ihe i'.:--'f§na1 decree after the preliminary decree.
"*'3-Ti,'The'z?ef0re," sought: for dismissal of the suit. Defendant % \,.AA9'.e\s.s\¥x\«\.~§¢§»\\\x% ........... . .. .
20»
12. The learned ceunsei fee the appellant judgment and decree ef the Trial Court e<::r1te;1__<iié::i View of the judgment: and decree which the piaintiffs and 9%': defer1»dent gm; parties:,, .» suit was barred by the prén.eipiee""e f»resjeieii.e'eite;e'§ Wfather Sold the property for as for discharging a mortgage the Qvmer of the the sale deed is binding on ' The sale deeds have been and the suit filed in the year 199;? ie'e1e2§1'1;.§A/V time. He further contended that ever1 e;3'tE1erxxeee;v Tziourt committed a serious error «the 9*' defendant who had not filed a su'it._'fQ_:. '€ie'cv1a1*éijti€>n or for partition and therefore, he hslibmits judgment and decree is liable to be set % 3 3 7 eegpassessm as rightly held by the Trial Court as such it is
13. Per Centre; the learned eetmsel for 4_ submit that earlier Igteeeedings xx?as.:beetweez': tlfle"e=ii'efe:"3_l£et:'itS V ' 7 and Late.G.Shivanagou<:ia, aftel9'. representatives were brought has executed a 2:'egisterecl»,s..et1e ef-thevvielaintiffs, and not delivered the was filed. In the said could not have set up their owners as held by the Trial judgment and decree passed in blind them as rightly held by the Trial and their father were class I ~t_o_..ti'1e estate of their deceased mother, equal share in the schedule property and vtherefoteg' could not have alienated their separate p1'opert3tl1 aside' family preperty. He had no right to do so L tlf1'e1*eAfol:e, plaintiffs and 9"? defendant have not right to do _se.L suit is filed within 3 years from the date of V,de'ij:ree.
net barred by time. The eteferidant No.9 has paid for declaration of I ,2' 43" share which has been V' The plaintiffs are also entitied to de§ii5e'e"fe:i e:§:e~:<;utfIc§--}f;.ef' deed in their favour, by virtue ef fH1'I}dflv.St;;«CpC€SS7i'(§i_;*1.;";C'§ aif-:.
as Section 4- of the Partition thei"efe'f"e,* ttiere is 11::
infirmity in that portion deeree of the Triai Court.
14. In (X..'fth'e..:_.;3tte.fe3ai§tontentions and the material on _r€CO_t"v€:'t~._ii.f1t§'1 't_hat: 'emse for consideration are:
a) Whether' is bared by the Doctrine of resjudj_C'ata A'\Ii>e'w_»_ or the judgment and decree passed O,_S.No;.10'34/89.
t b) fwihgtigeg the'A'V"sal-emeieed executed by father binds his V A _ "Chi1éi:}'er_1'." A A"cfV£Zfiet'1tie:j2_ti<§.eviiefendant No.9 entitled to I /4"" share in ' «the suit'Sie§iedu1ed property.
decree of preemption BC) the Trial Court is justified in granting the while passing the preliminary W.'? fl»%A2r227/xx//x/z/,m»»mm»...mM»--W -
' decided. Merely because they were the partiee to 1:
fer pessessien, During ihe perzdeney of the Gouda died. Plaintiffs and defenda::t'"Ne; "3;ze:f.e:Abé:'o1§ghit ea': '_f:
record as his iegal heirs, Plain't:'ffS-._ hrere'1_mi::efe;_""aficiV defendant: :10. 9 was a. major, a;:V5pQi'1:tAei;{ by the Ceurt to repreeetzfg the.A"i11:3e'reVe-€_ of aeiaihtfifs. The materials on record diseieees '' di'<:"i.e}:':g(':>':. file a written statement, her eolgheei Vfieif; the plaintiffs.
Virtually she decree came to be passed, said decree. On the Contrary hexecution and the plaintiffs
were disp0sseesiedv.f1ee1hVAfhehécheduie property. The question :_i.;c:Jghe sLx1':EA'C"':.x,:*a$'.whethe3' the plaintiff in the said suit ié'.e:1fiitie_§i 4:e'pe.eee_$sien by virtue of the Sale deed. The sale Vdeed'v§e.-sh challenge. The questien whether the piaintiffei he:'feiii"'.and the defendant: no. 9 had any share in the .g «TSLi'ift.._"p:';e~per'e§r, was not the subject matter of the suit. N0 is-::*§ue';3: were framed and the said queetion was not heard and he 2:
...............A§3\»\\\\\\\\«x\««\ .' :f i"e'.§;iet_5éi$puted as she had get 1;' 4% share in the schedule name sf Smt.LaVaLiai<shmma. After her cieeth, .:f:i':e devolved eajgher legal heirs. The sai<i.rp:*epert§} V' family property. Therefere, Late property which is not a joint the loan of jeint family car fzhe 1_oa_::1"'i_e:éf'g3.1'9ie-e_<:1 bf} 'h'ie»»w5;fe would in no way bind the Iega} heiiie"ef.§'$'r;:1t._i}2§§Za}é:1{shm:na. After devolution of the , it would be a " . e eeaas ». . .
separate preperty. _.f'{.'1:'ez'efQre_;-. :h--e__ E:I'i1?§(3}.})1€S of 1%; obhgataen 13 not ' e.9.:g?ttc_i tf;e:*e1'<:«;fe,_ the "ea1d sale would not bmd the ether lezgral' hei1'sL Learajzlafiishmma to the extent 0f their share.
1 cue for declaration and for partition and sepe;r3§*£e_ goéseevesize-n.--:;:' In a suit for partitien and separate pe_$sessi'e___n shgfirer who was arrayed as a defendant is also 'H":ef:tifie@_tGuseek his er her share by payirig necessary Court feee:.é:1 'ibe«A"written statement {fmee the share sf 'SW1 defendant '--eV;o{ion 4 of the Partition Act; The question of a Sharer Ia 3,» e» »b,» property she was justified in Seeking dee1aration--3:.§'hé-ghécefioiieionh'V of her share by paying Cour: fee""'a;-nd '«'€3~oie:ft '_;
committed no error in granting de<:u:*.ee1._'eiieh he: hféivofir, Therefore the said finding do ho{~oe:'i1bforA
17. The suit is for: _basVeoeVon the title deed dated 16.3.1973. Thevt--£he;'.f'oVffivthe:VVpAi'é1_§heiffs was denied when they were" of the Court decree on 21.o'4 . on o3.o3.1997. The period h from the date of therefore, the suit is well within time.
--vEh'~so.fezr_as the right of preemption is concerned, it was 'ooh?en§ie%§."_:b§fe:=hi}h*tue of Article 97 of the Limitation Act the shit ought..hé}.ze been filed within one year from the date of .g and therefore the said claim is barred by either 11/ S 22 of the Hindu Succession Act or under 'R \\ claiming the ehare of enethez' pereeh weuid Cieuri decrees the emit declaring Ceurt. That was not the subjeet ef decree at all. The trial Court error in' granting a decree for seageh 'ef"§31V*e1iminary decree itself. Therefore requires to be set aside org' have been the subject matterief In that View of the matter vihto the question of the limitation. of the decree granting preemptie:-1 which was purchased by the fyithehhfhjvurisdietien and is set aside, 3 Vv H aforesaid facte it is clear late Lhavaiakeizafhgriéihhwas the absolute owner, she died intestate. eleeth the property devolved on her husband;
da33%§h'ter..'A"and two sons who are the class I heirs, In other each one are entitled to 1/4"? share. When
- -_3<;;;_ Shivanageuda executed a registered 24,09.i9'?"? as an abseiute Qwrier, as§:iiieix5va;si*:iie:: _e.bS'e1ufe 53 owner and he had only 1;' 4?? shiafe__ thep_roperi;5;'--.:}ieVV purchaser acquired only i /' triaii Court was justified in deeiagfing 1,"-dead 2 and defendant no. 9 are entitled the property and remaining 1/415 sir1a:i*'e._'_to was purchased by defendant of the matter the judgment arid except to the extent stated abcive Accordingly it is allowed. Henee..§%§7e pie1ssi'f=}ie«..i7€3I10x>ving order.
V Order partly aliowed.
b) and decree of the trial Court is affirmed .g extent of the direction issued directing the defei1--deiriis te reeonvey the suit preperty in favour of plaintiffs