Karnataka High Court
Vadde Sanna Hulugappa And Others vs Vadde Sanna Hulufappa (Deceased) By ... on 18 February, 1998
Equivalent citations: AIR1998KANT325, ILR1998KAR2127, 1998(4)KARLJ365, AIR 1998 KARNATAKA 325, (1998) ILR (KANT) 2127, (1998) 4 KANT LJ 365, (1998) 3 ICC 709, (1998) 4 CIVLJ 201
Author: M.B. Vishwanath
Bench: M.B. Vishwanath
JUDGMENT
1. The appellants in this appeal under Section 100 of the CPC are the plaintiffs. The present respondents are the defendants. The first respondent-first defendant, who is the contesting party, is since deceased and his L.Rs have been brought on record.
2. The plaintiffs filed the suit O.S. No. 32 of 1982 before the Principal Munsiff, Bellary, for partition and separate possession of their 2/3 share in the suit schedule property bearing D. No. 64, Ward No. XIV situated within the municipal limits of Bellary city. The Trial Court dismissed the suit for partition.
3. The plaintiffs filed appeal in R.A. No. 17 of 1989 on the file of the Civil Judge, Bellary.
4. The appeal filed by the plaintiffs was dismissed by the First Appellate Court by its judgment dated 12-6-1991, i.e., the First Appellate Court confirmed the judgment and decree passed by the learned Munsiff.
5. At the outset it should be observed that both the Courts have come to the conclusion that the plaintiffs are entitled to % share in the suit schedule property, but they dismissed the suit of the plaintiffs solely on the ground that the plaintiffs had not prayed for cancellation of the sale deeds executed by the first defendant in favour of the fourth defendant (alienee).
6. At the time of admission, the substantial question of law framed by this Court says, "Whether the Courts below were justified in dismissing the suit of the appellants-plaintiffs on the ground that though they had 2/3 share in the suit property, they had not specifically prayed for cancellation of the alienations made by the first defendant?"
7. The first defendant sold the suit property to one Seenappa. The first defendant purchased it back from Seenappa and sold it to the second defendant. The second defendant sold it to the third defendant on 6-10-1975. This third defendant is none other than the wife of the first defendant. The third defendant in turn sold it to the fourth defendant. This fourth defendant is entirely a stranger to the joint family. The suit property is the joint family property of the plaintiffs and the first defendant.
8. To repeat, both the Courts have held that the suit house is the joint family property of the plaintiffs and the first defendant, but they dismissed the suit solely pn the ground that the plaintiffs had not specifically prayed for cancellation of the sale deeds.
9. The plaintiffs have specifically contended in paragraph 8 of the plaint that they are not parties to the sale transactions made by the first defendant and others and all the sale deeds are nominal and have not been acted upon. They have further contended that the alienations are not binding on them. It should be remembered that the plaintiffs are not parties to any of the alienations made by the first defendant in favour of Seenappa or sale by first defendant in favour of the second defendant or the sale by second defendant to the third defendant or to the sale by the third defendant to the fourth defendant.
10. It has been laid down by this Court in Ganapati Santaram Bhosale and Another v Ramachandra Subbarao Kulkarni and Others, that in a suit for partition by a Hindu coparcener, it is not necessary to seek setting aside of alienation and it is sufficient to seek his share and possession with declaration that he is not bound by the alienations.
11. It bears repetition. In the instant case the plaintiffs are not parties to any of the alienations made by the first defendant and others. So there was no legal obligation on their part to specifically pray that the alienations were not binding on them.
12. The view taken by the Courts below is illegal and perverse.
13. For the aforesaid reasons I hold the substantial question of law framed by this Court at the time of admission in the negative, that is in favour of the appellants-plaintiffs.
14. It is argued by the learned Counsel for the first respondent-first defendant that the suit property is a single dwelling house and the alienation made by the first defendant was for the purpose of legal necessity and so the matter should be remanded with a direction to the Court below to give a finding on whether the alienation was for legal necessity or not.
15. In the instant case there is no evidence adduced by the first defendant-alienor that the alienation was for legal necessity. This argument has not been canvassed in the Courts below nor is that point covered by the substantial question of law framed by this Court at the time of admission.
16. If this Court were to accept the argument canvassed on behalf of the contesting first respondent-first defendant (since deceased by L.Rs), it would amount to not seeing the wood in counting the trees. That cannot be done in a second appeal under Section 100 of the CPC.
ORDER The appellants-plaintiffs are entitled to 2/3 share and separate possession of their share in the suit schedule property. There shall be a preliminary decree accordingly.
The second appeal is allowed as stated herein. Each party to bear his/her own costs.