Karnataka High Court
Sumitra W/O Krishna Murari vs Shivamurthy S/O Irappa Alagundi on 24 January, 2014
Author: A.V.Chandrashekara
Bench: A.V.Chandrashekara
1
IN THE HIGH COURT OF KARNATAKA,
DHARWAD BENCH
DATED THIS THE 24TH DAY OF JANUARY 2014
BEFORE
THE HON'BLE MR. JUSTICE A.V.CHANDRASHEKARA
RSA No.51/2004 (PAR)
BETWEEN:
1. SUMITRA
W/O.KRISHNA MURARI
SINCE DECD BY HER L.RS
1A) ARAVIND KRISHNA MURARI
MAJOR, OCC.STUDENT
1B) KUM. PANKAJA
MAJOR,
1C) KUM. UJVALA
MAJOR.
1D) KRISHNA YAMANAPPA MURARI
AGE: MAJOR, AGRICULTURE,
1E) REKHA D/O KRISHNA MURARI,
AGE: MAJOR,
1A) TO 1C) AND 1E) ARE SON AND
DAUGHTERS OF KRISHNA YAMANAPPA MURARI,
ALL RESIDING AT HATTARAGI,
TALUK: HUKKERI, DIST: BELGAUM.
... APPELLANTS
(By Sri. HEMALEKHA K.S., ADV. FOR
SRI. R.M.KULKARNI, ADV.)
2
AND
1. SHIVAMURTHY
S/O.IRAPPA ALAGUNDI
(SINCE DECEASED BY HIS LRS)
1A) GURUSIDDAVVA W/O SHIVAMURTHY
ALAGUNDI,
AGED ABOUT 68 YEARS
R/AT.HATTARAGI, TQ.HUKKERI
DIST: BELGAUM.
1B) MAHADEVI
W/O.SATAPPA NINGANURI
AGED ABOUT 47 YEARS
R/AT.SHIVAPUR, TQ.HUKKERI
DIST: BELGAUM
1C) MALLAPPA S/O SHIVAMURTHY ALAGUNDI
AGED ABOUT 45 YEARS
R/AT.HATTARAGI, TQ.HUKKERI
DIST: BELGAUM.
1D) BASAPPA S/O SHIVAMURTHY ALAGUNDI
AGED ABOUT 45 YEARS
R/AT.HATTARAGI, TQ.HUKKERI
DIST: BELGAUM.
1E) SHIVAPPA S/O SHIVAMURTHY ALAGUNDI
AGED ABOUT 39 YEARS
R/AT.HATTARAGI, TQ.HUKKERI
DIST: BELGAUM.
2. GANGAPPA S/O IRAPPA ALAGUNDI,
AGED ABOUT 60 YEARS
OCC: AGRICULTURE,
3. SATAVVA W/O SHIVAPPA MARADI
(SINCE DECEASED BY HIS LRS)
3
3A) SHIVAPPA S/O MALLAPPA MARADI
AGED ABOUT 75 YEARS
R/AT.HATTARAGI, TQ.HUKKERI
DIST: BELGAUM.
3B) RAMAGOUDA S/O MALLAPPA MARADI
AGED ABOUT 49 YEARS
R/AT.HATTARAGI, TQ.HUKKERI
DIST: BELGAUM.
3C) MALLAPPA S/O SHIVAPPA MARADI
AGED ABOUT 45 YEARS
R/AT.HATTARAGI, TQ.HUKKERI
DIST: BELGAUM.
3D) SUNANDA W/O SURESH SHETTY
AGED ABOUT 41 YEARS
C/O R/AT.SHETTY HOTEL,
OPP: TO RAMADEV HOTEL,
DIST: BELGAUM.
3E) SHIVAPPA W/O NIJAPPA GUGGARI,
AGED ABOUT 39 YEARS
R/AT.ARJUNWAD, TQ.HUKKERI
DIST: BELGAUM.
3F) IRAPPA S/O MALLAPPA MARADI,
AGED ABOUT 38 YEARS
R/AT.HATTARAGI, TQ.HUKKERI
DIST: BELGAUM.
4. GAURAVVA,
W/O BABU SULADALE,
AGED ABOUT 35 YEARS,
5. IRAPPA
S/O. SHIVAPPA ALAGUNDI,
AGE: MAJOR, AGRICULTURE,
4
ALL R/AT.HATTARAGI, TQ.HUKKERI
DIST: BELGAUM.
... RESPONDENTS
(By Sri. M G NAGANURI, ADV. FOR R1(A-E),
SRI. B.S.KAMATE, ADV. FOR R2 & 4,
R3(A) TO (F) & R5 SERVED.)
THIS RSA FILED U/S 100 OF CPC AGAINST THE
JUDGMENT AND DECREE DATED: 16.9.2003 PASSED IN
R.A.NO.26/1999 ON THE FILE OF THE CIVIL JUDGE (SR.DN.),
HUKKERI ALLOWING THE APPEAL AND SETTING ASIDE THE
JUDGMENT AND DECREE DATED : 17.4.1999 PASSED IN
O.S.77/1997 ON THE FILE OF THE CIVIL JUDGE (JR.DN.),
SANKESHWAR.
THIS APPEAL COMING ON FOR FINAL HEARING THIS DAY,
THE COURT DELIVERED THE FOLLOWING:
JUDGMENT
Plaintiff in an original suit bearing O.S.No.77/1997, which was pending on the file of the Court of Civil Judge (Jr.Dn.) Sankeshwar has approached this Court being aggrieved by the divergent judgments of the first appellate Court passed in R.A.No.26/1999, which was pending on the file of the Civil Judge (Sr.Dn.) Hukkeri. The suit filed by the plaintiff is for the reliefs of partition and separate possession was allowed in part. There were 5 defendants in the said suit. Plaintiff Smt.Sumitra died during the pendency of the suit and her legal representatives brought on record in the original suit itself. Defendant Nos.1 to 4 of the said 5 suit filed an appeal under Section 96 of CPC challenging the said judgment and decree passed in O.S.No.77/1997. The said appeal has been allowed and thereby the suit of the plaintiff filed for the relief of partition and separate possession has been dismissed. Hence, the plaintiff is before this Court by filing an appeal under Section 100 of CPC challenging the divergent judgments given by the first appellate Court insofar as it relates to the dismissal of her suit.
2. It is very pertinent to note in the present case that, defendant No.2-Gangappa had filed a counter claim seeking preferential right under Section 22 of the Hindu Succession Act on the ground that the sale deed executed in favour of the deceased Sumitra by the deceased Kallawwa, the wife of the Shivappa as guardian of defendant Nos.5 was hit by the provisions of Section 22 of the Hindu Succession Act, more especially without making first offer to him i.e., defendant No.2. The said counter claim came to be dismissed only on the ground of non-payment of requisite court fee on the counter claim.
3. The facts leading to the filing of the suit by the appellants as plaintiffs before the trial Court are as follows: 6
One person by name Irappa who was the propositus is no more. He had three sons namely, Shivappa, who died in the year 1972, Shivamurthy defendant No.1, Gangappa defendant No.2. He had only one daughter by name Satawwa, defendant No.3.
Shivappa had a wife by name Kallawwa and she also died prior to the filing of the suit. She is survived by two children Gourawwa the daughter defendant No.4 and Irappa the son defendant No.5.
Kallawwa during her life time i.e., after the death of her husband chose to sell 1/3rd share in Sy.No.136 of Hattargai village in favour of deceased plaintiff Sumitra on 14.06.1978 for a total consideration of Rs.5,000/-. On the basis of the said sale deed, plaintiff Sumitra chose to file a suit for general partition seeking 1/3rd share in respect of 3 agricultural lands measuring 26 guntas in Sy.No.167/1A, 1.25 acres in Sy.No.167/5A-5B and 5 acres 18 guntas in Sy.No.136 and three houses described in schedule 'B' and two open sites bearing VPC No.837/1 and 837/2.
4. Defendant No.2-Gangappa chose to file a detailed written statement denying all the averments. He had admitted the relationship between defendants interse and the deceased Irappa and Kallawwa. The averment that Kallawwa had sold 1/3rd share 7 in his favour through a registered sale deed on 14.06.1978 has been specifically denied. The averment that purchaser was put into possession pursuant to sale deed dated 14.06.1978 has also been specifically denied. According to him, defendant Nos.1 to 4 have got preferential right to purchase the undivided share in the suit land bearing Sy.No.136. On the basis of the same, he had filed counter claim on the basis of the right of presumption under Section 22 of Hindu Succession Act. Defendant No.4-Gourawwa also chose to file written statement with a specific averment that there was no legal necessity or pressure on the estate of the joint family, her mother to sell the property. Hence, she had prayed for dismissal of the suit. Apart from that she has averred that defendant No.4 has preferential right under Section 22 of the Hindu Succession Act. She has specifically averred that the sale deed dated 14.06.1978 is illegal and ab initio void. A memo was filed on behalf of defendant No.1 and 3 adopting the written statement filed by defendant No.2 vide memo dated 26.07.1990. On the basis of the pleadings of the parties, following issues came to be framed.
i) Whether the defendants No.1 to 3 prove that the court fee paid by the plaintiffs is in proper?8
ii) Whether the plaintiff proves that the said propositus Irappa died prior to 1956?
iii) If not whether the plaintiff could maintain that purchase of 1/3rd share in the suit land through registered sale deed dated 14.06.1978 in the suit land purporting to be at the instance of defendant No.5 (being then minor) through his mother Kallawwais justified one?
iv) Whether the defendant No.1 to 3 could exercise their preferential right to purchase the said share in the suit land?
v) If not, to what share the plaintiff is entitled to by way of partition and separate possession in the suit said land?
vi) What decree or order?
Additional issues:
i) Whether the defendant No.4 along with defendant
Nos.1 to 3 has got preferential right to purchase the said share in the suit land?
ii) Whether the plaintiffs prove that they are entitled for mesne profits as prayed?
5. Plaintiff Sumitra herself examined as P.W.1 and as many as 9 exhibits have been got marked on her behalf. On behalf of the defendants, defendant No.2 alone is examined as D.W.1 and 5 exhibits have been got marked. After going through the records, the learned Civil Judge (Jr.Dn.), Sankeshwar has answered issue 9 Nos.2, 4 and additional issue No.1 in the negative and issue No.3 partly affirmative and issue No.5 in the affirmative. It is mentioned that issue No.1 had already been negatived vide considered order dated 16.04.1996. Consequently, suit came to be decreed and the share of the seller is determined as 1/5th, but the trial Court has ordered that allotting 1/3rd share to the plaintiff in Sy.No.136 would cover 1/5th share of the seller. The relief of preferential right under Section 22 of the Hindu Succession Act as sought for by defendant Nos.2 and 4 has been negatived vide considered judgment dated 17.04.1999.
6. As against the said judgment and decree, defendant Nos.1 to 4 of the said suit chose to file an appeal before the Court of Senior Civil Judge, Hukkeri. Several grounds have been urged in the appeal memo. After hearing the arguments from the learned counsel appearing for the parties, the learned Judge of the first appellate Court has allowed the appeal and consequently the suit is dismissed. The counter claim is upheld granting preferential right under Section 22 of the Hindu Succession Act. It is also specifically directed that defendant No.4 also to pay the requisite court fee within three weeks. The judgment and decree of the first 10 appellate Court is dated 16.09.2003. It is this divergent judgment of the first appellate Court passed by the Senior Civil Judge, Hukkeri, which is called in question on various grounds as set out in the appeal memo.
7. It is contended that the trial Court has not properly reassessed the evidence and that it has erred in allowing the appeal and thereby dismissing the suit and consequently granted preferential right under Section 22 of the Hindu Succession Act to appellant No.2. It is further contended that Kallawwa, the mother had absolutely right to alienate 1/3rd share for legal necessity and that the first appellate Court has not properly analyzed oral and documentary evidence in right perspective. It is further contended that dismissal of the suit on applying Article 97 of the Limitation Act is wholly improper and that the first appellate Court has not properly looked into the provisions of Article 97 of the Limitation Act. The first appellate Court is stated to have adopted a wrong approach to the real state of affairs and that the judgment and decree of the first appellate Court is stated to be opposed to law, facts and probabilities.
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8. Following substantial questions of law have been proposed as found in ink page 7 and 8 of the appeal memo.
i) Whether the Lower Appellate Court justified in dismissing the suit by not applying the principles enunciated by this Hon'ble Court in a judgment reported in ILR 1996 KAR 2765?
ii) Whether the Lower Appellate Court was justified in holding that the natural guardian has no right to alienate the minors interest as a whole?
iii) Whether the Lower Appellate Court is justified in holding that the alleged preemptive right alleged to have been exercised by respondents 1 to 3 was well within the period of limitation under Article-97 of the Limitation Act, when the Registered sale deed was executed in the year 1978 and the alleged preemptive right was admittedly set-up much after the period of limitation prescribed under Article-97 of the Act and particularly when the deceased appellants had claim on the share put in possession under the Registered sale deed?
iv) Whether the Lower Appellate Court was justified in holding that the respondents 1 to 3 can exercise the preemptive right even without paying the court fee on their alleged counter claim?
v) Whether the Lower Appellate Court was justified in holding that the registered sale deed executed by the 12 natural guardian for the minors benefit is null and void on the alleged ground that it is violative of Sections 11 and 12 of the Hindu Minority and Guardianship Act, 1956?
9. My learned predecessors has framed the following substantial questions of law on 11.07.2005
i) Whether the finding of the first appellate Court reversing the judgment and decree passed by the trial Court and decreeing the counter claim even when court fee had not been paid on the claim made in the written statement is perverse and arbitrary?
ii) Whether the finding of the first appellate Court reversing the finding of the trial Court and decreeing the counter claim, is perverse and arbitrary, being contrary to law and the material on record?
10. Arguments from the learned counsel appearing for the parties have been heard at length.
Reasons
11. The suit schedule properties are the ancestral properties of Irappa. The said Irappa is no more. He had three sons namely, Shivappa, Shivamurthy and Gangappa and only daughter Satawwa. The said Satawwa is already married. The 13 first son Shivappa died in the year 1972. One lady by name Kallawwa was the legal wedded wife of Shivappa and she died few days prior to the filing of the suit. She is survived by her daughter Gourawwa defendant No.4 and son Irappa defendant No.5. The said Kallawwa wife of Shivappa and the mother of Gourawwa and Irappa chose to execute a sale deed in favour of plaintiff Sumitra on 14.06.1978 for a total consideration of Rs.5,000/-. The property conveyed under the sale deed is marked as Ex.P8. Her 1/3rd share in Sy.No.136 is measuring 5 acres 18 guntas including 2 guntas of Kharab land. Looking to the contents of Ex.P8 and on the basis of the assessment of the said land, it is a wet land. As on the date of the execution of the sale deed vide Ex.P8, Gourawwa had already attained majority and Irappa i.e., her son was minor aged about 12 years. The contents of Ex.P8 would go to show that, she had already received a sum of Rs.1,800/- towards education expenses of her son and she was liable to repay a sum of Rs.1,200/- towards Hattaragi village Service Cooperative Society. There is a mention in Ex.P8 to the effect that purchaser should pay a sum of Rs.1,200/- out of total consideration of Rs.5,000/-. There is a further mention in the sale deed that, a sum of 14 Rs.2,000/- being the sale consideration should be paid to her as on the date of registration of the sale deed.
12. The learned counsel for the respondents has vehemently argued that, whatever is sold is only in respect of the undivided share that Irappa, her minor son had and that entire contents of Ex.P8 would disclose that, she had not sold her undivided share or the undivided share of her daughter Gourawwa. The initial portion of the sale deed would indicate that the Kallawwa executed a sale deed in favour of Sumitra representing herself as guardian of her minor son. If that initial portion of the sale deed were to be taken into consideration, it does not indicate that she had sold her share also. But on reading the entire contents of the sale deed, it is clear that whatever is sold by her is in respect of the entire share of the family consisting herself and her children.
13. It is true that, Gourawwa though had attained majority, is not signatory of the said sale deed marked as Ex.P8. What is clearly averred by Gourawwa defendant No.4 in her written statement is that, the sale so made was not for legal necessity of the family. While construing the contents of the document, the 15 surrounding circumstances will have to be looked into by the trial Court and the first appellate Court.
14. We cannot forget that the reality that Kallawwa was facing. She was a widow and her husband had died six years prior to the sale deed. Her son was minor and her daughter though major was not yet married. Therefore, she was in dire circumstances to look after the affairs of her family. If really the other brothers of the husband had helped her, there would have been no occasion to execute a sale deed in respect of the share that Shivappa had. Suffice to state that the sale deed so executed by Kallawwa must be construed as not only the share of undivided share of her son but also undivided share of herself and her daughter and this has been taken into consideration by the trial Court while assessing the share of Shivappa's legal representatives as 1/5. Apart from this, Gourawwa who has specifically pleaded that there was no legal necessity has not chosen to substantiate her stand by entering into witness box. It is not her case that her mother adequately represented the family of Shivappa had vices and was incompetent to represent her.
16
15. Undivided share of the members in a joint family could be sold and the remedy left open for the purchaser is only to workout the remedy by filing a suit for general partition including all the joint family properties. It is in this regard, plaintiff chose to seek a general partition by way of a comprehensive suit including all the properties inclusive of land in R.S.No.136. As already discussed not only the land in Sy.No.136 is included, but also other two agricultural lands, three residential houses and two open sites have been included in the suit. If they had not been included and if land in Sy.No.136 alone had been included, there would have been scope for the defendants to contend that suit would not be maintainable without including all the joint family properties and thereby suit for partial partition would not be maintainable.
16. The first appellate Court has chosen to allow the appeal and grant the relief of preferential right under Section 22 of Hindu Succession Act to defendant Nos.2 and 4 applying the decision reported in (1989) Supp 2 SCC 429 between Dhanno Vs. Lehna Singh. Article 97 of the Limitation Act deals about the time limit to enforce a right of pre-emption. Admittedly, Section 22 of the Hindu Succession Act provides a right for a member of the 17 undivided hindu family to seek right of preemption of a undivided share. The time limit to enforce a such right of preemption under Section 22 of the Hindu Succession Act as per Article 97 would be one year from the date of handing over the physical possession or if the property is not capable of being handing over, one year from the date of execution the sale deed.
17. Admittedly, in the present case, Kallawwa could not have been handed over the possession of the suit schedule property. Whatever sold is only the undivided share of Shivappa. Even otherwise, defendants cannot come into possession of a property belonging to the joint family property on the strength of an sale deed, unless his share is demarcated in a suit filed for general partition by him or by any member of the joint family and thereafter working of the same in a final decree proceedings. Admittedly, no claim was made seeking preemption right as per Article 97 of the Limitation Act within one year from the date of execution of the sale deed, either by defendant No.2 or by defendant No.4. An attempt is made to exercise the right conferred under Section 22 of Hindu Succession Act long after the suit was filed that too by filing a written statement. In fact the trial Court 18 has properly looked into the said judgment rendered in Dhanno's case by the Hon'ble Supreme Court and has properly applied the provisions of Article 97 of the Limitation Act to hold that the claim made by defendant Nos.2 and 3 seeking right of preemption is specifically barred by time. Unfortunately the first appellate Court has not properly analyzed Article 97 and has misapplied the provisions of Article 97 of the Limitation Act to the facts of the case in order to hold that claim for preemption under Section 22 of the Hindu Succession Act was in time. In that view of the matter, the first appellate Court could not have granted the claim of preemption under Section 22 of the Hindu Succession Act to the defendants and the entire reasoning giving by the first appellate Court in this regard is perverse and arbitrary.
18. What exactly is the role of the first appellate Court while dealing with an appeal under Section 96 of CPC has been eloquently explained by the Hon'ble Supreme Court in Santosh Hazari, Vs. Purushottam Tiwari (dead) by Lrs reported in AIR 2001 SC 965. If the first appellate Court wants to confirm the factual findings of the trial Court, it need not reiterate the entire facts of the case and it is sufficient, if it confers with the factual findings of 19 the trial Court by giving cogent reasons. If the first appellate Court wants to upset a well written judgement of the trial Court, it has come to a close quarters and assign its own reasons as to how the trial Court has gone wrong. In the present case, the first appellate Court has not kept in mind the important principles enunciated in the said decision while dealing with a well considered judgment of the trial Court.
19. In fact the first appellate Court has made an attempt to interpret the contents of Ex.P8 in a manner unknown to law and the approach adopted by the first appellate Court is contrary to the well established principles dealing with a first appeal filed under Section 96 of CPC. The whole focus of the appellate Court judgment is on the application of Article 97 to the facts of the case and thus it has adopted a wrong approach to the real state of affairs.
20. In fact there are factual mistakes in regard to the calculation of the share to the parties based on the law applicable to them. Admittedly, Irappa is no more. He is survived by three sons and a daughter. Admittedly, Irappa had a wife and she died in the year 1966. This fact is not seriously disputed. Since 20 Belgaum district comes within erstwhile Bombay provenance, a widow will also be entitled for a share at a partition. Though a widow is entitled for a share at a partition, she cannot herself demand a partition. But if a partition takes place between her husband and sons, she is entitled to receive a share equal to that effect and to hold and enjoy that share separately even from her husband, as decided by the Hon'ble Supreme Court in the case of Siromani Vs. Hemkumar reported in AIR 1968 SC 1299.
21. Therefore, we will have to consider what exactly the share of the parties. As per Section 6 of Hindu Succession Act, (unamended), a notional partition is to be presumed. In that notional partition, Irappa is to be given 1 share, three sons would get one share each and Irappa's wife would also get 1 share. Then the share of Shivappa, the husband of Kallawwa would be 1/5th share. Out of 1/5th share of deceased Irappa, the same will have to be divided between his wife, three sons and one daughter. That means, this 1/5th share will have to be divided between these five members, that would be 1/5th out of 1/5th which would be 1/25.
22. Similarly, the share of Irappa's wife will have to be divided as per Section 15(1)(a), and if so done, three sons and one 21 daughter would be entitled to 6/100 each. Then the share of Shivappa which devolved on his wife and two children would be 1/5th + 1/25 + 6/100 = 3/10. Then the total share of Shivappa would be 3/10. Therefore, what is sold by Kallawwa in favour of Sumitra was 3/10 and to this extent the purchaser will be entitled as his share in all the suit properties inclusive of R.S.No.136.
23. Court dealing with the suit for partition and separate possession is only expected to declare the shares of the parties and not to workout any equitable remedy, as final decree Court alone is competent to workout equities. A final decree Court can workout equities between the parties on the basis materials furnished to that effect. Therefore, the exercise made by the trial Court holding that 1/3rd share in Sy.No.136 would be equivalent to the share sold by Kallawwa cannot be construed as proper and correct. This could be well taken into account by the final decree Court provided sufficient materials are placed. Final decree Court is at liberty to take a holistic view in this regard.
24. Hence, both the substantial questions of law are to be answered in the negative. Consequently, appeal is to be allowed as under by modifying the judgment and decree of the trial Court. 22
ORDER
25. The pleas set out by the defendants in the counter claim on the basis of Section 22 of the Hindu Succession Act by means of counter claim is rejected and the decree passed by the trial Court is upheld subject to modification. By making it clear that the plaintiff is entitled for 3/10 share in all the schedule properties and all the equities will have to be worked out in the final decree proceedings under Section 54 of CPC read with Order 20 Rule 18 of CPC.
26. In view of the relationship of the parties and the nature of the suit, parties to bear their own costs Accordingly, the appeal is allowed in part.
Sd/-
JUDGE.
MBS/-