Karnataka High Court
Smt. Sujatha vs Smt. Deveeramma on 21 May, 2020
1
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 21ST DAY OF MAY 2020
BEFORE
THE HON'BLE MR. JUSTICE SREENIVAS HARISH KUMAR
REGULAR SECOND APPEAL No.1393 OF 2013
BETWEEN
Smt. Sujatha,
W/o. Dineshareddy,
Aged about 41 years,
R/at Koratikere Village,
Doddamagge Hobli,
Arkalagudu Taluk,
Hassan District-573102.
...Appellant
(By Sri.C.M.Nagabushana, Advocate)
AND
1. Smt. Deveeramma,
W/o. Late Shankaranarayana Reddy,
Aged about 74 years,
Reddy Koppal Village,
Kasaba Hobli, Mysore Taluk,
Mysore District.
2. Smt. Shakunthala,
Aged about 56 years,
W/o. Narayana Reddy,
D/o. Late Shankaranarayana Reddy,
R/at Kumbarakoppalu,
Near Sannegowda House,
2
Mysore Taluk,
Mysore District-570008.
3. Smt. Renuka,
Aged about 52 years,
W/o. Late Venkatesha Reddy,
D/o. Late Shankaranarayana Reddy,
R/at Narasimhaswamythittu,
Hunsur town, Mysore District-571150.
4. Smt. Ramadevi,
Aged about 50 years,
W/o. Chandrashekar Reddy,
D/o. Late Shankaranarayana Reddy,
R/at Narasimhaswamythittu,
Hunsur Town, Mysore District-571150.
5. Sri. Ramareddy,
Aged about 46 years,
S/o. Late Shankaranarayana Reddy,
6. Sri. Jayachandra Reddy,
Aged about 44 years,
S/o. Late Shankaranarayana Reddy,
7. Sri. Purshotham,
Aged about 44 years,
S/o. Late Shankaranarayana Reddy,
8. Sri. Venkatesha,
Aged about 36 years,
S/o. Late Shankaranarayana Reddy,
R5 to R8 are R/at Reddy Koppal Village,
Kasaba Hobli, Mysore Taluk,
Mysore District-570008.
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9. Smt. Anitha,
Aged about 26 years,
W/o. Srinivasa Reddy,
R/at Bhuvanamma Krupa Nilaya,
Bhavani Krupa Nilaya,
Shivamoga-Bhadravathi Main Road,
Shivamoga District-577201.
10. Smt. K.Sachitha,
Aged about 53 years,
D/o. B.P.Ramanna,
R/at New B.M.Road,
Hunsur Town,
Mysore District-571150.
11. B.R.Vishwanath,
Aged about 61 years,
S/o. Late Ramaiah,
R/at New B.M.Road,
Hunsur Town,
Mysore District-571150.
...Respondents
(By Sri.G.Papi Reddy, Advocate, for R1, R2, R5 to R9;
Sri G.Balakrishna Shastry, Advocate, for R10 & R11;
R3 and R4 are served)
This RSA is filed under Section 100 of CPC against
the judgment & decree dated 22.04.2013 passed in
R.A.No.418/2012 on the file of Presiding Officer, Fast
Track Court, Hunsur, dismissing the appeal and
confirming the judgment and decree dated 06.10.2012
passed in O.S.No.205/2007 on the file of Senior Civil
Judge and JMFC, Hunsur.
This RSA coming on for hearing this day, the
court delivered the following:
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JUDGMENT
In this second appeal, the plaintiff has assailed the correctness of the judgment of the Fast Track Court, Hunsur, in the first appeal, i.e., RA 418/2012. On 27.8.2013, the following two questions were formulated for consideration : -
"1. In a suit for partition, after declaring that the plaintiff has succeeded in establishing that she is the member of the joint family and is entitled to a share in the properties, are the courts below justified in negating the claim in respect of some of the properties only on the basis that the Kartha of the family had transacted to sell the property in favour of third person and that the agreement was binding on them?
2. Whether the courts below are justified in holding that a decree passed in a suit for specific performance of an agreement to which the plaintiffs are not parties would bind the defendants and dis-entitle them to a 5 share in the property merely because a decree has been passed but subject to appeal?"
2. The substance of the pleadings is as follows : -
The plaintiff is one of the daughters of the first defendant, Deveeramma and the deceased Shankaranarayana Reddy. Defendants 2 to 4, and 9 are her sisters; and defendants 5, 7 and 8 are her brothers. Defendants 10 and 11 are the persons in whose favour deceased Shankaranarayana Reddy and his sons executed agreements of sale in respect of certain items of plaint schedule properties. The plaintiff claimed partition and separate possession of her 1/10th share in as many as 14 items of landed properties as described in schedule 'A' and a house property described in schedule 'B' to the plaint. The premise of her suit is that some of the plaint schedule properties are ancestral and some others are self acquisitions of her father. She is in joint possession of all the 6 properties with defendants 1 to 9. Her father and brothers entered into agreements with defendants 10 and 11 on 27.3.1995 for selling items 3 and 7 to 9. Defendants 10 and 11 instituted suits for specific performance of contract, and obtained decree, but appeals filed by her father and brother against the said judgment are still pending. Since she was not a party to the said suit, the judgments in the suits for specific performance do not bind her. The defendants 1 to 9 did not consider her request for partition and hence the suit for partition.
3. The defendants 1 to 9 did not contest the suit; and the defendants 10 and 11 contended that the plaintiff's father Shankaranarayana Reddy and her brothers agreed to sell items 3, 7 to 9 to them for valuable consideration, that the said contract with them was for legal necessity of the family, that their suits for specific performance were decreed in their favour and 7 that judgments and decrees in their suits bind the plaintiff as well though she was not a party in their suits.
4. The trial court decreed the suit in respect of all the properties of the plaint schedule except items 3 and 7 to 9 of schedule 'A' by recording the reasons that agreements of sale executed by the plaintiff's father and brothers were for legal necessity and benefit of the family, and bound all the members of the family. The first appellate court dismissed the appeal preferred by the plaintiff questioning the correctness of denial of partition in items 3 and 7 to 9 of plaint 'A' schedule.
5. The learned counsel for the appellant/plaintiff argued that the plaintiff was not a party to the sale agreements and the suits filed by defendants 10 and 11. The decrees in those suits do not bind the plaintiff. While deciding plaintiff's suit for partition, the trial court should not have come to conclusion based on 8 judgments in the suits for specific performance filed by defendants 10 and 11, that the agreements of sale were for legal necessity. The issue in that regard should have been decided independently. He placed reliance on the judgment of the Supreme Court in Sanjay Gera vs Haryana Urban Development Authority and Another [(2005) 3 SCC 207] and submitted that both the courts below had committed an error in law and therefore the second appeal would deserve to be allowed.
6. The learned counsel for respondents/defendants 10 and 11 argued that the courts below have not committed any error in recording a finding that the agreements for sale were executed in favour of defendants 10 and 11 as there was legal necessity to discharge the debts. The plaintiff pleaded about the suits for specific performance in her plaint and for this reason, if the courts below held that the issue with regard to legal necessity had already been 9 decided in those suits, there was no illegality in those findings. He argued for dismissal of appeal.
7. Before adverting to the points urged by the learned counsel, if section 100 of the Civil Procedure Code is referred to, it may be stated that the High Court can entertain a second appeal against a decree of the appellate court only if a substantial question of law is involved in a case. Sub-section (5) of section 100 states that at the time of hearing of appeal, the respondent may contend that a substantial question is not involved. That means, despite formulation of a question at the time of admission, still it is open to the respondent to argue that the formulated question is not substantial.
8. With the above prelude, it may be stated now that so far as first question is concerned, there is no gainsaying that the Karta or Manager of a joint Hindu family possess absolute powers to alienate all or any of the joint family properties with or without consent of the 10 parties. If the alienation is with the consent of other members, they cannot question, and in case of without consent, alienation can be challenged; and in that event the alienee has to prove that alienation was for legal necessity, and if he succeeds, the alienation binds everybody including the members who are not parties to transaction of sale or any other kind of alienation. This is the settled position. On facts, both the courts below have held consistently that the agreements for sale were executed by Shankaranarayana Reddy and his sons for legal necessity of family. There is no perversity in appreciating the evidence to record findings to that effect. Therefore, I do not find a substantial question of law to be answered.
9. Probably, with reference to the second question, learned counsel for the appellant has relied on the judgment of the Supreme Court in Sanjay Gera (supra). What is held in this case is, "In civil matters, 11 the rights of the parties cannot be determined just on the basis of any other judgment on question of fact".
10. It is quite clear as to why the learned counsel has referred to this ruling. According to him the issue with regard to legal necessity of entering into agreements with defendants 10 and 11 should have been decided independently based on the evidence in the partition suit without being influenced by the findings in the specific performance suits, as the plaintiff was not a party to the latter.
11. It is trite to say that in a suit for specific performance, an issue relating to legal necessity may not arise, and in a suit for partition that kind of an issue arises depending on pleadings. Actually in the suit for specific performance filed by defendants 10 and 11, issue with regard to legal necessity was not there, but the court had to examine incidentally whether the necessity still existed in view of specific defence taken 12 by the plaintiff's father and brothers that there existed no necessity as on the date of filing the suit for specific performance. In the case on hand that issue arose and what is to be examined is whether the findings of the trial court confirmed by the first appellate court are independent of the observation made in the suits for specific performance or not? Therefore, if it is seen as to how the trial could come to conclusion that the agreements were for legal necessity, it appears that the plaintiff herself produced judgment of the trial court in one of the suits for specific performance, i.e., O.S.6/1996 and the depositions of witnesses including that of her father who had admitted that the intended sale was for clearing the bank loans and that he was the manager of the joint family. That apart, defendants 10 and 11 also produced certified copies of judgments in both the suits. These were the documents that were produced; based on these documents and the way plaintiff had answered in cross-examination, the trial 13 court drew an inference that the agreements were executed for legal necessity of the family. These findings have been confirmed by the first appellate court. Therefore, the issue has been answered independently. Merely for the reason that some of the documents that were produced in the suits for specific performance were also produced in the partition suit, that cannot be a reason for holding that the issue relating to legal necessity has not been considered independently. It is true that the plaintiff was not a party to the suit for specific performance, but she is the daughter of Shankaranarayana Reddy and bound by her father's transactions and thus becomes disentitled to claim partition in the properties that were subject matters of agreement. Now with regard to pendency of appeals against the judgments in specific performance suits, it is to be stated that by a separate judgment I have dismissed the appeals and therefore the judgments of the trial court have attained finality. There is no 14 infirmity in the findings of the trial court. Substantial question is answered affirmatively.
To conclude, the appeal fails and it is dismissed with costs.
Sd/-
JUDGE ckl