Karnataka High Court
Erakempaiah vs Munikempaiah on 1 October, 2013
Author: B.S.Patil
Bench: B.S.Patil
1
IN THE HIGH COURT OF KARNATAKA AT BANGALORE
DATED THIS THE 1ST DAY OF OCTOBER, 2013
BEFORE
THE HON'BLE MR.JUSTICE B.S.PATIL
R.F.A.No.1024/2002
C/w
R.F.A.1107/2002
IN R.F.A.NO.1024/2002:
BETWEEN
ERAKEMPAIAH S/O.MUNIVEERAPPA
SINCE DEAD BY L.RS.
1. CHANNAPPA S/O LATE ERAKEMPAIAH
SINCE DEAD BY L.RS.
(a) SHUSHEELAMMA, AGED ABOUT 32 YEARS
W/O LATE CHANNAPPA
(b) SHANKAR, AGED ABOUT 21 YEARS
S/O LATE CHANNAPPA
(c) ARUNA, MINOR
S/O LATE CHANNAPPA.
2. CHIKKANNA, AGED ABOUT 35 YEARS
S/O ERAKEMPAIAH
3. MANJUNATH, AGED ABOUT 30 YEARS
S/O ERAKEMPAIAH
4. VEERAPPA, AGED ABOUT 35 YEARS,
S/O ERAKEMPAIAH
ALL ARE R/AT NO.55, CHAGALATTI VILLAGE,
BAGALUR POST, CHIKKA JALA HOBLI,
BANGALORE NORTH TALUK,
BANGALORE DISTRICT. ... APPELLANTS
(AMENDED VIDE COURT ORDER DT.8.6.2007)
2
(By Sri. G D ASWATHANARAYANA, ADV. FOR A2, A3 & A4,
AND HE UNDERTAKES TO FILE V.K. FOR A1(a & b))
AND
1. MUNIKEMPAIAH
AGED 48 YEARS
2. NAGAPPA
AGED 44 YEARS
3. KRISHNAPPA
AGED 44 YEARS
4. RAMACHANDRA
AGED 38 YEARS
ALL ARE CHILDREN OF DODDAIAH
S/O.ERAPPA,
R/AT KALKERE VILLAGE
KRISHNARAJAPURAM HOBLI,
BANGALORE SOUTH TALUK.
5. KRISHNAPPA
SINCE DEAD BY L RS.
(a) VARALAKSHMAMMA, MAJOR
WIFE
(b) NAGAMMA
MAJOR, WIFE
(c) APPAIAH
MAJOR, SON
(d) NATARAJ
MAJOR, SON
(e) ERAPPA
MAJOR, SON
ALL ARE R/AT CHAGALATTI VILLAGE
DEVANAHALLI TALUK, BANGALORE DIST.
3
6. LAKSHMINARAYANA
MAJOR, S/O.MUNIVEERAPPA
7. SIDDAPPA
SINCE DEAD BY L.RS
(a) JAYAMMA W/O.PILLANNA
MAJOR,
DODDAKADIGENAHALLI
BADDAYALAVATTI POST, NANDI HOBLI
CHICKBALLAPUR TQ.
(b) PILLAMMA
W/O.UTHAKALAPPA
MAJOR, VIDYANAGAR POST
JALA HOBLI
8. MUNIKEMPAIAH
SINCE DEAD BY L.RS
(a) AKKAMMA, MAJOR, WIFE
(b) APPAIAH
MAJOR, SON
(c) MUNIRAJU
MAJOR, SON
(d) KUMAR
MAJOR, SON
SINCE DEAD BY L.RS. R8(a), (b), (c) WHO ARE
ALREADY ON RECORD
ALL ARE R/AT SINGALATTI VILLAGE,
BAGALUR POST,
DEVANAHALLI TALUK,
BANGALORE DISTRICT.
(AMENDED VIDE COURT ORDER DT.1.12.2004)
9. MUNIVEERAMMA
MAJOR, W/OF.LATE KEMPAIAH
9(i)(a) K.MANJUNATH
S/O LATE M.KRISHNAPPA & AMMAYAMMA
AGED ABOUT 30 YEARS
4
9(i)(b) K.SURESH S/O LATE M.KRISHNAPPA &
AMMAYAMMA
BOTH R/AT NO.88, VENUGOPALSWAMY TEMPLE
STREET, HORAMAVU, BANGALORE.
9(ii) SMT.CHIKKAMMA D/O LATE MUNIVEERAMMA
AGED 55 YEARS
R/O BYAPPANAHALLI,
BIDRAHALLI POST, BANGALORE.
(AMENDED VIDE COURT ORDER DT.9.8.07)
10. DODDAIAH
SINCE DEAD BY L.RS.
BEERAMMA, MAJOR
WIFE, R/AT KALKERE,
K.R.PURAM HOBLI,
BANGALORE SOUTH TALUK.
11. B.N.NAGARAJ S/O NAGAPPA
SINCE DEAD BY L.RS.
(a) GOWRAMMA W/O LATE B.N.NAGARAJ
AGED ABOUT 75 YEARS
(b) B.N.NAGENDRA S/O LATE B.N.NAGARA
AGED ABOUT 54 YEARS
(c) B.N.CHANDRASHEKAR S/O B.N.NAGARAJ
AGED 48 YEARS
(d) B.N.GAVIYAPPA S/O LATE B.N.NAGARAJ
AGED 46 YEARS
(e) B.N.MANJUNATH S/O LATE B.N.NAGARAJ
AGED 44 YEARS
(f) B.N.SRIKANTHA S/O LATE B.N.NAGARAJ
AGED 42 YEARS
(g) B.N.HEMANTH KUMAR S/O LATE B.N.NAGARAJ
AGED 40 YEARS
ALL ARE R/AT BAGALUR VILLAGE,
BAGALUR POST, JALA HOBLI
YALAHANKA, BANGALORE NORTH TALUK.
(AMENDED VIDE COURT ORDER DT.30.8.2011)
5
12. ERAPPA
S/O ERAKEMPAIAH
AGED ABOUT 34 YEARS
R/O CHAGALATTI VILLAGE
JALA HOBLI, BANGALORE NORTH TALUK.
13. B.M.ANAND KUMAR
S/O MARAPPA
AGED ABOUT 25 YEARS
R/O BEELEISELRALE
DODDAGUBBI POST
BANGALORE NORTH TALUK.
14. CHIKKAMMA, AGED 36 YEARS
D/O LATE ERAKEMPAIAH
R/AT A.RANGANATHPURA, NARAYANAPURA POST
VIJAYAPURA HOBLI, BANGALORE RURAL DISTRICT.
15. GIRIJAMMA, AGED 28 YEARS
D/O LATE ERAKEMPAIAH,
W/O RAJANNA,
R/AT PUTTA BAGEPALLI POST & TALUK
KOLAR DISTRICT.
16. MUNIRATHNAMMA, 26 YEARS
D/O LATE ERAKEMPAIAH
W/O NARAYANASWAMY,
HATTIVATHA, JADIGENAHALLI HOBLI
HOSKOTE TALUK
BANGALORE RURAL DISTRICT.
17. C.R.SIDDESH S/O RAMAKRISHNAPPA
AGED 48 YEARS,
CHAGALATTI VILLAGE, BAGALUR POST
DEVANAHALLI TALUK, BANGALORE NORTH TALUK
AND DISTRICT. ... RESPONDENTS
(AMENDED VIDE COURT ORDER DT.15.2.11)
(By Sri. V VISHWANATH, ADV. FOR C/R1,
Sri J.M.RAJANNA SHETTY, ADV. FOR R2-4
Sri K.SHIVASHANKAR, ADV. FOR R11(a-g)
Sri N.S.SANJAY GOWDA, ADV. FOR R12 & 13,
R5(a), (b), (c), (d) & (e), R6, R7(a), (b), R8(a), (b), (c),
R10 - SERVED
6
R8(a-c) ARE LRs of R8(d),
SRI VISHNUMURTHY AND ASSTS. FOR R12 & 13,
SRI SOMASUNDAR DIXIT, ADV. FOR R9(i)(a), 9(i)(b),
9(i)(ii),
NOTICE TO R15 - HELD SUFFICIENT,
R14, 16, 17 - SERVED, UNREPRESENTED)
IN R.F.A.No.1107/2002:
BETWEEN:
B N NAGARAJ S/O NAGAPPA
SINCE DEAD BY L.RS.
(a) GOWRAMMA W/O LATE B.N.NAGARAJ
AGED ABOUT 75 YEARS
(b) B.N.NAGENDRA S/O LATE B.N.NAGARA
AGED ABOUT 54 YEARS
(d) B.N.CHANDRASHEKAR S/O B.N.NAGARAJ
AGED 48 YEARS
(d) B.N.GAVIYAPPA S/O LATE B.N.NAGARAJ
AGED 46 YEARS
(e) B.N.MANJUNATH S/O LATE B.N.NAGARAJ
AGED 44 YEARS
(f) B.N.SRIKANTHA S/O LATE B.N.NAGARAJ
AGED 42 YEARS
(g) B.N.HEMANTH KUMAR S/O LATE B.N.NAGARAJ
AGED 40 YEARS
ALL ARE R/AT BAGALUR VILLAGE,
BAGALUR POST, JALA HOBLI
YALAHANKA,
BANGALORE NORTH TALUK. ... APPELLANTS
(By Sri K.SHIVASHANKAR, ADV.)
7
AND
1. MUNI KEMPAIAH
AGED ABOUT 48 YRS,
2. NAGAPPA
AGED ABOUT 44 YRS,
3. KRISHNAPPA
AGED ABOUT 44 YRS,
4. RAMACHANDRA
AGED ABOUT 38 YRS,
1- 4 ARE CHILDREN OF DODDIAH S/O ERAPPA
R/AT KALKERE VILLAGE
KRISHNARAJAPURAM HOBLI,
BANGALORE SOUTH TQ.,
5. ERAKEMPAIAH
AGED 65 YRS,
S/O MUNIVEERAPPA
6. KRISHNAPPA
S/O MUNIVEERAPPA
DEAD BY LRS.
(a) VARALAKSHMAMMA
W/O KRISHNAPPA,
AGED 45 YRS,
(b) NAGAMMA
W/O KRISHNAPPA,
AGED 40 YRS,
(c) APPAIAH
S/O KRISHNAPPA,
AGED 28 YRS,
(d) NATARAJ
S/O KRISHNAPPA,
AGED 26 YRS,
(e) ERAPPA
S/O KRISHNAPPA,
AGED 25 YRS,
8
5 TO 6(a) TO (d) R/AT CHAGALATTI VILLAGE,
DEVANAHALLI TQ., KOLAR DIST.,
7. LAKSHMINARAYANA
AGED 60 YRS,
S/O MUNIVEERAPPA,
8. SIDDAPPA
S/O ERAPPA SINCE DEAD BY LRS
(a) JAYAMMA
W/O PILLANNA,
AGED 45 YRS,
DODDAKDIGENAHALLI
BADDAYALAVATTI POST, NANDI HOBLI,
CHIKKABALLAURA TQ.
(b) PILLAMMA
W/O UTHAKALAPPA
AGED 45 YRS,
VIDYANAGAR POST
JALA HOBLI.
9. MUNIKEMPAIAH
S/O ERAPPA
DEAD BY LRS.
(a) AKKAMMA, W/O MUNIKEMPAIAH
AGED 45 YEARS
(b) APPAIAH S/O MUNIKEMPAIAH
AGED 30 YEARS
(c) MUNIRAJU S/O MUNIKEMPAIAH
AGED 28 YEARS
(d) KUMAR S/O MUNIKEMPAIAH
AGED 26 YEARS
9(a) TO (d) R/AT SINGALATTI VILLAGE,
BAGALUR POST,
DEVANAHALLI TALUK,
BANGALORE DISTRICT.
10. MUNIVEERAMMA
AGED 50 YRS,
WIDOW OF KEMPAIAH S/O OF ERAPPA
9
RESPS.7, 8 & 10 R/AT CHAGALATTI VILLAGE,
DEVANAHALLI TQ.,
BANGALORE DIST.,
11. DODDAIAH, MAJOR - DELETED
(a) BEERAMMA
W/O LATE DODDAIH
AGED 77YRS,
R/AT KALKERE ,K.R.PURAM,
HOBLI, BANGALORE SOUTH TQ. ... RESPONDENTS
(By Sri J N RAJANNA SHETTY, ADV. FOR C/R2 & 4,
R1, 3, 5, R6(b), (d), R7, R8(a), R9(a), R9(b), R9(c),
R10, R11 (a) - SERVED, UNREPRESENTED,
NOTICE TO R6(a) & (e), R8(b) & 9(d) - DISPENSED WITH)
R.F.A.No.1024/2002 FILED U/S 96 OF CPC AGAINST THE
JUDGMENT AND DECREE DATED: 9.7.02 PASSED IN OS
NO.5550/1980 ON THE FILE OF THE XXII ADDL.CITY CIVIL JUDGE,
BANGALORE, DECREEING THE SUIT FOR PARTITION AND
SEPARATE POSSESSION.
R.F.A.No.1107/2002 FILED U/S 96 OF CPC AGAINST THE
JUDGMENT AND DECREE DT. 9.7.02 PASSED IN O.S.NO.5550/80
ON THE FILE OF THE XXII ADDL. CITY CIVIL JUDGE, BANGALORE,
DECREEING THE SUIT FOR PARTITION AND SEPARATE
POSSESSION AND ETC.
THESE APPEALS COMING ON FOR PRONOUNCEMENT OF
JUDGMENT THIS DAY, THE COURT DELIVERED THE FOLLOWING:
JUDGMENT
1. These two appeals are filed challenging the judgment and decree dated 09.07.2002 in O.S.No.5550/1980 by the learned XXII Addl. City Civil Judge, Bangalore.
2. R.F.A.No.1024/2002 is filed by the 1st defendant, whereas R.F.A.No.1107/2002 is filed by the 8th defendant. 10
3. The suit was originally filed in the year 1975 and was numbered as O.S.No.666/1975, which is re-numbered as O.S.No.5550/1980. The suit was filed seeking partition and separate possession of the family properties with a direction that the alienations made by the 7th defendant - father of the plaintiffs was not binding on the plaintiffs. It is necessary to notice the genealogy and the relationship of the parties to better appreciate the facts involved.
4. One Erappa had six sons, out of them one of the sons by name Kempaiah died. His wife Muniveeramma succeeded to his estate as he had not left behind any issue. Muninagappa - another son also died.
5. Defendants 1 to 3 are the sons of Muniveerappa - the first son of Erappa. 4th defendant was another son of Erappa. He having died, his legal representatives are on record. 5th defendant - Munikempaiah having died, his legal representatives are on record. 6th defendant - Muniveeramma is the wife of another son of Erappa by name Kempaiah. 7th defendant is the father of the plaintiffs and he having died during the pendency of the suit, his wife Beeramma has been 11 brought on record. 8th defendant is the purchaser of one of the properties from the 7th defendant.
6. Respondents 12, 13 and 17 who were not parties before the Trial Court have been impleaded in this Appeal as they claimed that they are purchasers of some of the suit schedule properties and that the properties so purchased by them does not bind the share of the parties to the suit. Likewise, respondents 14, 15 and 16 who were also not parties before the Trial Court have been impleaded in this Appeal as they claimed that they are the daughters of the first defendant.
7. Plaintiffs claimed that their father Doddaiah - 7th defendant who was one of the sons of Erappa was entitled for 1/5th share in all the suit schedule properties which were the joint family properties of his father and his brothers and therefore they were entitled for partition and separate possession of their legitimate share out of the share to which their father Doddaiah was entitled. The plaintiffs further contended that 8th defendant was the purchaser of Item No.12 of the suit schedule properties from the 7th defendant 12 as per the registered sale deed dated 20.09.1960 and as the sale deed was not binding on them, they were entitled for partition and separate possession in the said property as well.
8. Plaintiffs have made allegations of collusion against their father - 7th defendant with the other defendants. It is their case that the 7th defendant fraudulently released his rights in the suit schedule property by executing a release deed dated 21.03.1960 in favour of the defendants and their predecessors in interest and that the said release deed was without any consideration. Plaintiffs further alleged that the 7th defendant fraudulently sold one item of joint family property on 01.08.1962 in favour of K.S.Anjanappa which was later on purchased by defendants 1 to 6 from the said Anjanappa. They contended that the said alienation was not for legal necessity and the same was not binding on the plaintiffs. They claimed 4/5th share in the 1/5th share of their father - 7th defendant.
9. Defendants 1 to 6 filed common written statement contending inter alia that the suit was engineered by the 7th 13 defendant - father of the plaintiffs. They asserted that the 7th defendant had relinquished all his rights in the suit properties in favour of the father of defendants 1 to 3 for valid consideration. It is urged by them that the suit properties were not the joint family properties of the plaintiffs and the defendants and that the plaintiffs were not in joint possession of the same. They contended that the plaintiffs were the permanent residents of Kalkere village and had never visited Chagalatti village where the suit properties are situated. It was alleged that the plaintiffs did not even know the location of the suit lands, let alone being in joint possession of the same. They alleged collusion against the plaintiffs and the 7th defendant. They asserted that defendants 1 to 6 were in joint possession of the properties after the death of the father of defendants 1 to 3.
10. 8th defendant filed separate written statement stating that Item No.12 of the suit property was jointly sold to him by the other surviving brothers of the 7th defendant and the 7th defendant had no right in it. He urged that the release deed was binding on the plaintiffs. According to him, 7th 14 defendant sold the properties that came to his share which were later on purchased by the other defendants. Thus, he contended that the conduct of the 7th defendant was highly depricable as he had worldly knowledge being an employee of ITI and had taken undue advantage of the innocence and ignorance of the other defendants. 8th defendant further urged that he was a bona fide purchaser who had purchased the property after due verification.
11. The 7th defendant - father of the plaintiffs admitted the plaint averments that the release deed was without consideration. He alleged that the release deed was got executed by exerting threat, force and coercion and by playing fraud on him. He further contended that inturn the properties were purportedly sold by him (7th defendant) in favour of third parties and the same was later on purchased again by the father of the 1st defendant. He admitted the shares claimed by the plaintiffs in the suit schedule property.
12. Additional written statement was filed by the 1st defendant - Erakempaiah and some of the other defendants who were brought on record as the legal representatives of 15 deceased defendants 2 & 4. They contended that from 1962 to 1975, plaintiffs and 7th defendant had kept quiet without challenging the release deed. Anjanappa - the purchaser of the properties from the 7th defendant was not made a party to the suit, hence, the plaintiffs were not entitled for any relief in respect of the said item sold. They further contended that the recitals of the sale deeds executed by the 7th defendant disclosed that the 7th defendant took his share from the joint family and after selling the properties, as per the release deed he sold the said properties to Anjanappa and out of the sale proceeds, he purchased the properties at Kalkere and Ramamurthynagar and the said purchase was for the benefit of the plaintiffs.
13. Based on the pleadings, the Trial Court framed the following issues:
Issues framed on 30.08.1977:
(i) Whether defendants 1 to 3 prove that the father of the plaintiff had executed a deed in favour of the father of the defendants releasing his rights to the suit property?16
(ii) Whether the defendants prove that the plaintiff is estopped from making any claim in the suit land?
(iii) Whether the plaintiffs prove that they are entitled to 4/5th share in the suit property?
(iv) To what relief the plaintiff is entitled?
Issues framed on 17.11.1981:
(i) Whether the plaintiffs proved that they are in joint possession along with defendants 1 to 7 of the suit schedule property?
(ii) Whether the plaintiffs prove that the suit schedule properties are their joint family properties?
(iii) Whether the suit valuation is proper and court fee paid is sufficient?
(iv) Whether the release deed dated 21.03.1960 executed by their father is void for the reasons alleged in para 7A of the plaint?
(v) Whether the plaintiffs prove that the sale deed dated 21.08.1962 executed by their father in favour of Anjanappa is not binding on them for the reasons stated in para 7A of the plaint?17
(vi) Whether the heirs of Anjanappa are necessary parties to the suit?
(vii) Whether the sale deed dated 21.08.1962 was for legal necessity and benefit of the estate?
(viii) Whether the property sold under the said sale deed is not included in the suit schedule? If so,
(ix) Are the parties not entitled to any relief in respect of the said item?
(x) Whether the suit is barred by limitation?
(xi) Are plaintiffs entitled to the relief of declaration and partition?
(xii) What order? What decree?
Additional Issues framed:
(i) Whether defendant No.8 proves that he is a bona fide purchaser for value without notice in respect of item No.12 of the plaint schedule property?
(ii) Whether 7th defendant has taken his share in the joint family properties and purchased properties at Kalkere and Ramamurthynagar out of the sale proceeds of the said properties?18
(iii) Whether the properties at Kalkere acquired in the name of the 7th defendant have been acquired out of the money given by the parents of Smt. Beeramma and the personal earnings of the 7th defendant?
14. On behalf of the plaintiffs, 1st plaintiff was examined as PW-1 and the 3rd plaintiff was examined as PW-2. Exs.P-1 to P-16 were produced and marked in their evidence. On behalf of the defendants, 1st defendant was examined as DW-1 and one Nagaraj and Beeramma - wife of 7th defendant were examined as DWs-2 & 3, respectively. Exs.D-1 to D-17 were produced and marked in their evidence.
15. The Trial Court recorded a finding regarding the nature of the suit schedule properties as to whether they were the ancestral properties of the plaintiffs and the defendants in the affirmative holding that the defendants had deposed before the Court that the suit properties were acquired by the paternal grandfather Erappa. It has further found in paragraph 16 of the judgment as under:-
"......... The defendants in the instant case in their written statement except pleading that the 7th 19 defendant, the father of the plaintiffs executed a release deed and contending that the plaintiffs have no manner of right in the suit schedule properties have not disputed about the nature of the suit schedule properties. Therefore, in view of admitting the nature of suit schedule properties as joint family properties of both the parties and admitting defendant No.8 who is the purchaser of one of the items of the suit schedule property, I am of the view that the evidence regarding the nature of suit schedule property under the facts and circumstances of this case, need not be discussed at length. In view of defendants not disputing the nature of suit schedule properties, being the ancestral properties, it is to be taken that the suit schedule properties were acquired by prepositor Erappa. ........."
16. As regards the release deed dated 21.03.1960, the Trial Court has recorded findings holding that only 2 acres and one vacant site had been given to the father of the plaintiffs - 7th defendant as per the said release deed. The details of the properties owned by the joint family were not even mentioned in the release deed. The survey number of the land and the number of the site which were given to the 7th defendant as per the release deed were not mentioned in the said release deed. For what reasons the 7th defendant executed the 20 release deed was not forthcoming. Hence, this release deed was not valid. In addition, the Trial Court found that the 7th defendant - father of the plaintiffs had no authority to execute the release deed - Ex.D-1. He further found that Ex.D-1 - release deed did not disclose the family and legal necessity for executing the same and did not spell out whether 7th defendant received any consideration amount by virtue of releasing his interest in all the other properties. Therefore, the release deed was illegal as there was no consideration. The Trial Court has further found that as the 7th defendant had alienated the properties to Anjanappa and Krishnappa, which were subsequently sold in favour of defendants 1 to 3, Ex.D-1 - release deed appeared to have not been acted upon and that merely because the 7th defendant started residing in Kalkere village, it would not take away the rights of the plaintiffs to seek partition. It has also held that the 7th defendant had no right to execute the release deed and the transaction entered into by him did not bind the plaintiffs.
21
17. Challenging the legality and correctness of this judgment, Counsel for the appellant has contended that father of the plaintiffs was employed in ITI. He had settled in Kalkere village. He had instituted a suit in O.S.No.50/1959 and had obtained an ex-parte decree for partition. However, no final decree proceedings were initiated. The father of the plaintiffs having taken two properties for himself, relinquished all his rights in the joint family property in favour of his brothers and settled down in Kalkere village. The two properties which he got after relinquishment of the rest were sold by him, one in favour of Anjanappa and the other in favour of Krishnappa. The grant of occupancy rights as per the order passed by the Deputy Commissioner for Inams Abolition vide Ex.P3 dated 02.01.1965, was in favour of Muniveerappa - the eldest son of Erappa. Therefore, they cannot be regarded as ancestral properties of the plaintiffs in which the plaintiffs had got right by birth. That O.S.No.2359/1995 was filed by one of the plaintiffs against their father (7th defendant) and other brothers (other plaintiffs) and in that suit, partition and severance of joint status between 7th defendant and his brothers has been 22 pleaded. It is also stated in the plaint in the said suit that their father sold the properties that fell to his share, went over to Kalkere village and settled there. Attention of the Court is drawn to Ex.D3 in this regard, which is the copy of the plaint in O.S.No.2359/1995. In paragraph 3, Munikempaiah S/o Doddaiah - 1st plaintiff herein has stated that his father had got certain properties in Chagalatti village, Jala Hobli, Bangalore South Taluk, in an oral partition. Subsequently, he sold all the properties at Chagalatti village that had fallen to his share and came over to Kalkere village and settled there along with his family. He has further stated in paragraph 3 of the said plaint that his father, out of the sale proceeds derived from the sale of the properties situated at Chagalatti village purchased several immovable and movable properties at Kalkere village. Thus, these averments made in Ex.D3 by the 1st plaintiff disclosed that admittedly father of the plaintiffs/ the 7th defendant separated from the family, took his share and migrated to Kalkere village, purchased properties there, by disposing of the properties that came to him in Chagalatti village and settled down at Kalkere.
23
18. Counsel for the appellants further contend that the relinquishment of the rights by the 7th defendant took place as back as on 21.03.1960. The 7th defendant sold the properties that fell to his share, in the said release/relinquishment deed, on 21.08.1962 vide Ex.D2 in favour of Anjanappa and vide Ex.D4 in favour of Krishnappa on 31.10.1969, whereas the suit has been filed in the year 1975 at the instance of 7th defendant - the father of the plaintiffs and in collusion with him. It is urged by the Counsel for the appellants that the intention of the 7th defendant and the plaintiffs was very clear that they intended to lay an illegal and unjust claim over the properties of the appellants having severed the connection with the family of the appellants more than 15 years back.
19. He has further contended that the 2 acres of land retained by the 7th defendant along with one site at Chagalatti village while relinquishing his rights in respect of the other lands, was indeed the consideration for releasing all other rights by the 7th defendant in the family properties in favour of his brothers. Therefore, the trial court was in 24 error in holding that there was no consideration for the release/relinquishment deed executed by the 7th defendant. He further points out that though it was neither pleaded nor substantiated in evidence by the plaintiffs that what was retained by the 7th defendant as per the release deed was not sold by him, the trial court has erroneously recorded a finding that there was nothing to show that the two properties sold were those that 7th defendant got under the Released Deed. It is further urged that though neither the 7th defendant nor the plaintiffs had pleaded the particulars of fraud and although no evidence in this connection was led to show that Exs.D2 & D4 - sale deeds were fraudulently got executed from the 7th defendant by his brothers, the trial court has made an inference of the same, which is baseless.
20. Counsel for the 8th defendant has further contended that the sale deed executed by the brothers of 7th defendant in his favour on 16.03.1968 in respect of Sy. No.35/3 was valid and binding because the 7th defendant had no share in the said property, much less his sons - the plaintiffs. It is submitted that the 8th defendant being the bona fide 25 purchaser for valuable consideration, having made due inquiry regarding the registered relinquishment/release deed executed by the 7th defendant, he had acquired absolute rights over the land. At any rate, he contends, the release and relinquishment deed was itself executed for the benefit of the family as the 7th defendant purchased properties in Kalkere village out of the sale proceeds received from the properties which he got under the release/relinquishment deed and hence, the plaintiffs who have derived benefit were not entitled to challenge the sale made in favour of the 8th defendant as back as in the year 1968 and therefore, the Trial court was not justified in holding that the said sale deed was binding on the plaintiffs. It is in this background, the learned Counsel is highly critical of the finding recorded by the trial court holding that Ex.D2 - sale deed was not for valid consideration, despite the specific averments found in Ex.D2 that the 8th defendant had paid a sum of Rs.1,000/- towards sale consideration to the defendants. Counsel has placed reliance on the judgment in the case of RANGANAYAKAMMA VS K.S.PRAKASH - AIR 2005 KAR 426, to contend that release can be without consideration. He has 26 placed reliance on the judgment in the case of SRI ERNATH VS SRI DIGAMEER & ANOTHER - 2000(1) KCCR 106, to contend that where there was conflict in the description of the property sold by the boundaries and by the areas, the description by the boundaries will prevail over the description by the areas and that where the land tallies with the boundaries and not with the number, the description of the boundaries shall prevail. To the same effect, reliance is placed on the judgment in the case of NARASIMHA SHASTRY VS MANGESHA DEVARU - ILR 1998 KAR 554.
21. Counsel for respondents 2 to 4 - plaintiffs 2 to 4, Mr. Rajanna Shetty supports the findings recorded and the judgment rendered by the Trial Court. He has strongly contended that the suit properties were the ancestral properties of the plaintiff. In this regard, he has invited the attention of the Court to Ex.P5 - statement given by Muniveerappa before the Deputy Commissioner for Inams stating that since 40-45 years having purchased the property from the jodidhars, he along with his elders were enjoying the property. He invites the attention of the court to the 27 evidence of DW-1, wherein he has stated that his father and grandfather got the land from Jodidhar. Referring to para 3 of the plaint, he contends that it has been specifically stated by the plaintiffs that the properties were the ancestral properties and the defendants have not denied the same. He also invites the attention of the court to Ex.P4 executed by Muniveerappa, wherein he has described the properties as 'ancestral'. He has placed reliance on Ex.D16 - compromise petition executed by the 1st defendant in favour of the 1st plaintiff on 20.11.1992, wherein also the properties are referred to as ancestral (pithrarjitha). Reliance is placed on the judgment in the case of DANDAPPA RUDRAPPA HAMPALI VS RENUKAPPA @ REVANAPPA - ILR 1993 KAR 1182, to contend that property inherited by the father amounts to ancestral property. He also points out that Ex.D1 - release deed is illegal in the eye of law as the 7th defendant had no right to release the shares to which the plaintiffs were entitled in the ancestral property. To support his contention that there is no need to challenge the sale deed executed in favour of the 8th defendant, as it was sufficient to seek a declaration that the sale was not binding on the plaintiffs, he 28 has relied on the judgment in the case of GANAPATI SANTARAM BHOSALE VS RAMACHANDRA SUBBARAO KULKARNI - ILR 1995 KAR 1115. He further relies on the judgment in the case of SHANKARA CO-OP. HOUSING SOCIETY LTD. VS M.PRABHAKAR & OTHERS - AIR 2011 SC 2161, particularly on paragraph 75, to contend that no co- owner has any definite right in any particular item or portion of the joint property as he has right in every part of the joint property. Reliance is also placed on the judgment in the case of SIDDESHWAR MUKHERJEE VS BHUBANESHWAR PRASAD NARAIN SINGH & OTHERS - AIR 1953 SC 487, to contend that 8th defendant ought to have sought for partition.
22. Contending that the effect of grant of occupancy in respect of leasehold rights held by the joint family will enure to the benefit of all the members of joint family and that they will not become the separate properties of the grantees, he has placed reliance on the judgments in the case of VEERABHADRAPPAM & ORS. VS VIRUPAXAPPA TOTAPPA BILEBAL - ILR 1998 KAR 2508, BOODA POOJARY VS THOMU POOJARTHY - ILR 1992 KAR 1359. He further places reliance on the decision in the case of KUPPUSWAMI CHETTIAR VS 29 S.P.A. ARUMUGAM CHETTIAR & ANOHTER - AIR 1967 SC 1395, to contend that a registered instrument styled as release deed releasing all the rights of the executant in any property in favour of the releasee for valuable consideration may operate as a conveyance, if the intention is to effect a transfer of title. If the release was without any consideration, then such transfer is a gift under Section 123 of the Transfer of Property Act. He therefore contends that Ex.D1 - release deed being one without consideration can only be treated as a gift. If that is so, a gift by a co-parcener of his undivided interest in the co-parcenery property is void as is laid down in the decision in the case of THAMMA VENKATA SUBBAMMA (DEAD) BY LR VS THAMMA RATTAMMA & OTHERS - AIR 1987 SC 1775.
23. Having heard the learned Counsel for both parties, the points that fall for consideration in this case are, (1) Whether the plaintiffs have proved that the suit properties were their ancestral properties in which they had right by birth and therefore, the 7th defendant had no right to release or relinquish their share in the properties?
30(2) Whether the registered release/relinquishment deed executed vide Ex.D1 has no legal effect as held by the court below?
(3) Whether the defendants-appellants herein proved that 7th defendant relinquished his share in the properties in favour of his brother Muniveerappa by taking two properties and thereafter settled down at Kalkere village?
(4) Whether the findings of the trial court holding that the release deed was without consideration and the subsequent sale deeds executed by the 7th defendant were the result of fraud practiced against him, are supportable from the pleadings and evidence on record?
(5) Whether the judgment and decree passed by the Trial Court is sustainable in law?
24. Point No.1:- It is not in dispute that the suit schedule properties have come to the family of defendants 1 to 7 by virtue of grant of occupancy rights under the provisions of the Inams Abolition Act. Ex.P3 is the order dated 02.01.1965 passed by the Addl. Deputy Commissioner for Inams Abolition granting occupancy rights in favour of Muniveerappa - father of defendants 1 to 3, who was the 31 eldest among the children of Erappa. If the family of Erappa and his children had been cultivating these lands under the Jodidhars and were thus entitled for grant of occupancy rights of the inam lands, then these lands become the properties of the joint family of the grantee - Muniveerappa and his brothers, in that, they will all be entitled for share in the said properties though the occupancy rights are granted exclusively in the name of Muniveerappa. The 7th defendant being one of the sons of Erappa and being the brother of Muniveerappa - the grantee of occupancy rights, was entitled for equal share along with all his brothers. The plaintiffs cannot claim right by birth in the occupancy rights granted in the name of Muniveerappa on the ground that they are the sons of the 7th defendant. No doubt, on the death of the 7th defendant, they will inherit the share of his father - 7th defendant in the joint family properties. But, in the instant case, 7th defendant during his life time and way back in the year 1960 as per Ex.D1 has relinquished his rights in favour of Muniveerappa by retaining two items of the properties. 7th defendant had absolute right to deal with these properties, as they were the properties in which he had a share along with 32 his brothers because the occupancy rights though granted in favour of one brother enured to the benefit of the other brothers who were the members of the joint family. This is not a case where Erappa - the grandfather of the plaintiffs was the absolute owner of the properties or was exclusively granted with occupancy rights and therefore, the suit properties became ancestral properties in the hands of the plaintiffs. The effect of the order passed by the Deputy Commissioner for Inams Abolition as is evident from Ex.P3 is that the grant of occupancy rights was made only in favour of Muniveerappa and he had stated before the Deputy Commissioner that he was cultivating the land from the time of his elders and was therefore, entitled for grant of occupancy rights. Reliance placed by the Counsel for the respondents on the judgments in ILR 1993 KAR 1182, ILR 1992 KAR 1359 (FB), ILR 1998 KAR 2508 would only lend support to the proposition that upon grant of occupancy rights, the leasehold rights get converted into freehold rights but without damaging the rights of the family and any member of the family can claim share in the said lands of which occupancy rights had been confirmed. In the full 33 bench decision reported in ILR 1992 KAR 1359 referred to supra, this Court has held that on an application made by a person claiming grant of occupancy rights as a tenant the question whether the tenancy is individual or on behalf of a joint family or for the benefit of a joint family can be considered only by the Tribunal and not by the Civil Court. Under Section 48-A of the Act, the Tribunal after holding inquiry, has the jurisdiction to determine as to who is entitled for grant of occupancy rights among the rival claimants. It is further laid down in the said judgment that after grant of occupancy rights in respect of an agricultural land, it would be open to the parties to get their share, title or interest decided in the Civil Court in respect of which occupancy rights are granted as regards the members of the occupants family.
25. In the instant case, the question is not whether the 7th defendant had no right in the properties in respect whereof, occupancy was conferred in favour of his brother. In fact his right is conceded by the defendants and that is how he has relinquished his rights in favour of his brothers in respect of 34 all other properties by retaining two properties for himself, which he has later on sold and has acquired other properties in his name at Kalkere village and has settled down there. There is no material produced to establish that the properties were the ancestral properties of the plaintiffs over which they had right by birth and therefore they could maintain a suit for partition of the said properties. Even assuming that the family consisting of the father of the plaintiffs, his brothers and Erappa - the grandfather of the plaintiffs together cultivated the land, as Erappa - the grandfather had passed away and neither he had claimed occupancy nor there was any grant of occupancy rights in his favour, the plaintiffs cannot assert that the grant of occupancy in favour of Muniveerappa resulted in the leasehold rights becoming the ancestral properties of the plaintiffs.
26. In any event, it is evident from the evidence on record that after disposing of the two properties that the 7th defendant got in the release deed, he has sold them for valuable consideration to third parties and has purchased properties at Kalkere, where he settled down. In Ex.D2 - sale 35 deed executed by the 7th defendant, sale consideration is shown as Rs.1,000/-. Ex.D2 is executed on 21.08.1962. Similarly, he has sold the other vacant property in favour of Krishnappa as per Ex.D4 dated 31.10.1969 for a sale consideration of Rs.100/-. The 7th defendant has purchased Sy. No.317 measuring 4 acres 26 guntas in Kalkere village by a sale deed dated 25.10.1962 barely two months after the sale deed executed by him selling the agricultural land at Chagaletti village. It is thus clear that he has invested the sale proceeds for purchasing the properties at Kalkere village which is for the benefit of his family consisting of himself (7th defendant) and the plaintiffs. It cannot, therefore, be said that the relinquishment of the share made by the 7th defendant has resulted in the 7th defendant sacrificing the rights of his family and the interest of his children to deprive the plaintiffs of whatever rights they had in the joint family properties of 7th defendant. There is no material to show that the properties had been acquired by Erappa. The pleadings and evidence on record has to be seen in the context of grant of occupancy in favor of Muniveerappa as per Ex.P3 dated 02.01.1965.
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27. Point Nos.2, 3, 4 & 5:- Ex.D1 is styled as release deed, it is clear from the recitals of the said document that 7th defendant who had executed the said document on 21.03.1960, has given up all his rights in respect of all other properties for which occupancy rights had been granted to his eldest brother Muniveerappa by retaining two properties to himself. The nature and effect of this document is that 7th defendant takes his share in the property and relinquishes his rights in respect of other properties in favour of Muniveerappa. The background in which this document is executed can be better appreciated if it is kept in mind that Muniveerappa alone had filed application for grant of occupancy rights and occupancy had been granted exclusively in his favour in respect of all the lands. That, 7th defendant also had rights in the properties for which occupancy was granted in favour of Muniveerappa and that he intended to severe his connection with the family by taking two items of properties is clear from Ex.D1. The 7th defendant was employed in ITI is not in dispute. Further, he had settled at Kalkere village and had indeed purchased a 37 house property there as back as on 13.09.1960 as is evident from Ex.D10 also makes it clear that his conduct in relinquishing his rights in other properties at Chagalatti village was neither unnatural nor unreasonable. Even while executing the sale deeds vide Exs.D2 & D4 - selling the properties that had fallen to his share as per Ex.D1, 7th defendant has furnished his address stating that he was residing at Kalkere village. In Ex.D4 he has stated that the property had fallen to his share and he has sold them for valuable consideration. It is further evident from the plaint averments made by the 1st plaintiff in O.S.No.2359/1995 filed against his own father - 7th defendant, that the 7th defendant had taken the properties from the joint family falling to his share and had sold them and thereafter, he went over to Kalkere village and settled there, by purchasing several properties, but the trial Judge misdirected himself in construing and wrongly rejecting the relinquishment/release deed and the subsequent sale deeds executed by the 7th defendant and in holding that the suit schedule properties being the ancestral properties of the plaintiffs, 7th defendant 38 had 1/5th share and out of 7th defendant's share, plaintiffs had equal share with the 7th defendant.
28. The sequence of these events clearly disclose that the 7th defendant having been employed in ITI intended to severe his connection from the family consisting of himself and his brothers and hence he took two items of properties and gave up his rights in respect of rest of the properties of Chagalatti village and thereafter, sold the said two items and purchased other properties at Kalkere where he had settled down. Nearly after 15 years from the date of Ex.D1 -
relinquishment deed, he has got this suit filed through his sons in collusion with them setting up a plea that the release deed was without consideration and was not binding on the plaintiffs.
29. The 7th defendant has not given any particulars in the written statement about the alleged threat, coercion or fraud committed against him. His written statement is totally bald in this regard. He has not stated in his written statement that he did not get any property under the release deed. There is no pleading or evidence to establish that the sale 39 deeds which the 7th defendant had executed receiving consideration as per Exs.D2 & D4 had been fraudulently created. The court below had absolutely no material to make an inference like that contrary to the recitals in the registered documents. The Trial Court has erroneously recorded a finding that there was no consideration for Ex.D1. Consideration for Ex.D1 was in the form of two properties which 7th defendant retained absolutely to himself, which were otherwise granted in favour of Muniveerappa. These two properties he has sold subsequently. If fraud has to be established, first there must be pleadings giving the details of fraud and then there must be evidence. Neither there is any pleading nor any evidence in this connection either by the plaintiffs or by the 7th defendant and his legal representatives.
30. The Trial court also seriously erred in making an unwarranted and unnecessary inference that the identity of the properties given to 7th defendant and those sold by him to third parties was not established. In fact, this is not the case of either the plaintiffs or the 7th defendant. In this 40 background, it is clear that the document Ex.D1 was validly and legally executed. Therefore, reliance placed by the respondents on the judgments of the Apex Court in connection with the consequences of a release deed executed without consideration are not relevant for the purpose of the present case. It cannot be disputed that in a joint family, parties would be free to arrive at an arrangement which according to them is just and equitable in the circumstances of the family at that relevant time. If the 7th defendant has retained some properties and relinquished some rights over the others with a view to settle down in another village by purchasing properties elsewhere because of his peculiar situation, the said document which is a registered one and which has been acted upon for nearly 15 years, cannot be regarded as one without consideration and was the result of fraud practiced against the 7th defendant. It will not take 15 years for anybody to realize that fraud had been practiced against him. If the 7th defendant was indeed defrauded by his brothers, he could not have kept quiet till 1975. The fact that he made his sons to file the suit and joined hands with them by filing written statement alleging fraud against his brothers 41 disclose that he had come up with utter falsehood to make unlawful enrichment by setting up his children. Hence, I have no hesitation to hold that the findings recorded by the Trial Court holding that the release deed had no legal effect and that the same was without consideration and further that fraud had been committed against the 7th defendant by which he was made to dispose of properties falling to his share in the release deed are all baseless and unsupportable from the evidence on record.
31. The reasons given herein above clearly show that the defendants proved that 7th defendant had relinquished his rights by receiving the two properties towards his share and therefore, points 2, 3 & 4 are answered accordingly in favour of the appellants. The judgment and decree under challenge is not sustainable in law and the plaintiffs are not entitled for any share in the suit schedule properties. Point No.5 is answered accordingly.
32. The other judgments relied on by the Counsel for the respondents not being relevant for the present purpose need 42 not be referred, particularly keeping in mind the findings recorded by me on point Nos.2 to 4.
33. In view of the above, these appeals succeed and the same are hereby allowed. The impugned judgment and decree are set aside. The suit of the plaintiffs is dismissed. Having regard to the relationship between the parties, the parties are directed to bear their respective costs.
Sd/-
JUDGE KK