Bangalore District Court
Rashmi vs Tulasiprabha on 2 September, 2024
KABC010101202007
Form No.9
(Civil) Title
Sheet for
Judgment in
Suits
R.P. 91 PRESENT: Sri. Chinnannavar Rajesh Sadashiv,
XVIII Additional City Civil Judge.
Dated this the 02nd day of September, 2024
PLAINTIFF: - 1. Kum.Rashmi
D/o. Sri V.Vasudeva,
Aged about 20 years,
2. Master Rakshith
S/oV.Vasudeva,
Aged 17 years,
since minor represented by his
natural guardian and mother Smt.
Nagarathna,
3. Smt. Nagarathna,
W/o V.Vasudeva,
Aged about 36 years,
All are R/at No.7, Annayappa Lane,
Doddamavalli, Bangalore.
[By Sri. R.S., Advocate]
/v e r s u s/
DEFENDANTS: 1. Smt. Tulasiprabha
W/o. Ramachnadraiah,
Aged about 62 years,
2. Smt. K.V.Sathyavathi
W/o. Udayshankar,
Aged about 58 years,
O.S.No.1610/2007
2
Both are R/at No.38,
Appayanna Street,
Doddamavalli, Bangalore-04.
3. Sri Vasudeva
S/o. B.M.Venkatanarayana,
Aged about 46 years,
R/at No.41, Appayanna Street,
Doddamavalli, Bangalore-04.
(D.1 and 2 by Y.M., Advocate)
(D.3 placed exparte)
Date of institution of the suit :: 23/2/2007
Nature of the suit :: Partition
Date of commencement of :: 9/11/2012
recording of the evidence
Date on which the Judgment :: 02/09/2024
was pronounced.
:: Year/s Month/s Day/s
Total duration
17 06 10
****
This suit is filed by the plaintiffs as against the defendants for the relief of partition and separate possession and to declare the sale deeds dated 09/06/1989 are not binding upon the plaintiffs.
2. The case of the plaintiffs in brief is as under:-
The plaintiff No.1 is the daughter, plaintiff No.2 is the son and plaintiff No.3 is wife of defendant No.3- Sri. V.Vasudeva. Defendant No.1 and 2 are the O.S.No.1610/2007 3 purchasers of the suit property. Suit property is the ancestral property of plaintiff No.1 and 2 and it is fallen to the share of defendant No.3-V.Vasudeva in O.S.No.373/1973 and decree was duly registered on 05/09/1983. The plaintiff No.3 married the defendant No.3 in the year 1986. Initially suit property was mortgaged under registered Mortgage Deed No.1926/1985-86, dated 28/08/1985 for a sum of Rs.20,000/- in favour of defendant No.2- Smt.K.V.Sathyavathi. By Virtue of Mortgage Deed defendant No.3 has delivered the possession of the suit property to defendant No.2 and he assured the plaintiff that he will get discharge the mortgage but went on postponing the same. Now, they came to know that defendant No.3 is not ready to discharge the debt and clear the encumbrance over the suit property. Defendant No.3 has no right to mortgage the ancestral property. Hence, they demanded their 3/ 4th share but it is refused by defendant No.3, hence cause of action arose to them to file this suit. They prayed to grant 3/4th share to them. They also prayed to O.S.No.1610/2007 4 declare the sale deeds executed by defendant No.3 in favour of defendant No.1 and 2 respectively are not binding upon them or over their share. Initially plaintiffs had sought the relief of partition and redemption of mortgage but later they got amended the suit and sought declaration of sale deeds as not binding upon them.
3. Initially the suit was decreed by my predecessor in office, it was challenged by the defendants by filing RFA No.160/2014 and said RFA was allowed by the Hon'ble High Court of Karnataka, Bengaluru by judgment dated 12/07/2021 and matter was remanded to this Court for fresh consideration. So, decree passed by this Court on 31/10/2013 was set-aside by the Hon'ble High Court of Karnataka, Bengaluru. Thereafter, defendant No.1 and 2 have appeared before this Court and they filed separate written statement with similar contentions. Defendant No.2 remained absent, hence he has been placed exparte.
O.S.No.1610/2007 5
4. The defendant No.1 and 2 have admitted the relationship of plaintiffs with defendant No.3 and also admitted that suit property is the ancestral property of the plaintiffs and defendant No.3. They also admitted that the suit property was initially mortgaged in favour of defendant No.2. But, they contended that later, defendant No.3 has executed the registered sale deeds in favour of defendant No.1 and 2 respectively and by virtue of said sale deeds they became the absolute owners and possessors of the suit property. Plaintiffs have no right to question the said sale deeds and they have no share in the suit property. They also contended that the suit is barred by law and limitation. They also contended that since defendant No.3 was in need of money, he had mortgaged the suit property in favour of defendant No.2 and later he sold the suit property in favour of of defendant No.1 and 2 for his legal necessity. The Deed of Mortgage was discharged on 09/06/1989 and thereafter defendant No.3 has executed two separate sale deeds in favour of of defendant No.1 and 2 O.S.No.1610/2007 6 respectively. They denied the contents of the plaint in para-wise and prayed to dismiss the suit with costs.
5. Based on the above pleadings, my predecessor in office has framed the following Issues:-
(1) Whether the plaintiffs are entitled to a deed of discharge sought for?
(2) Whether the plaintiffs are entitled to declaration sought for?
(3) Whether the plaintiffs are entitled to delivery of possession of the schedule property?
(4) To what decree or order?
ADDITIONAL ISSUE DATED 01/06/2022
1. Whether the plaintiffs prove that the suit schedule properties are the joint family property of the plaintiffs and defendants that are liable to be partition and on partition, the plaintiffs are entitled for 3/4th share in the suit schedule property?
6. In order to prove the case, the plaintiff No.3 has got examined herself as P.W.1 and got marked marked Ex.P-1 to 14. In order to rebut the case of the plaintiff, the defendant No.2 got examined herself as DW-1 and got marked Ex.D.1 to 33.
O.S.No.1610/2007 7
7. I have heard the learned counsel for plaintiffs as well as defendants and both of them filed written Synopsis also. The learned counsel for defendants has relied upon the following citations.
1) (2020) 9 SCC 1 between Vineeta Sharma Vs. Rakesh Sharma & Ors.,
2) (2018) 14 SCC 445 between Kehar Singh(Dead) Through legal Representatives & Ors., Vs. Nachittar Kaur & Ors.,
3) (2013) 9 SCC 419 between Rohit Chauhan Vs. Surinder Singh & Ors.,
4) (2009) 15 SCC 184 between M.Yogendra & Ors., Vs. Leelamma N & Ors.,
5) 2000 SCC OnLine Kar 449 between Smt.D.M.Jayamma Vs. Smt.Muniyamma & Ors.,
6) (1996) 8 SCC 54 between Sri.Narayan Bal & Ors., Vs. Sridhar Sutar & Ors.,
7) (1963) 1 SCR 648 between Radhakrishnadas & Anr., Vs. Kaluram (Dead) and after him his heirs & Legal Representatives & Ors.,
8) (1998) SCC OnLine Bom 279 between Ramesh Damodhar Deshmukh Vs. Damodhar Domaji Deshmukh & Ors., O.S.No.1610/2007 8
9) (1969) 1 SCC 386 between Mudi Gowda Gowdappa Sankh Vs. Ram Chandra Ravagowda Sankh.
8. I have perused the pleadings of the parties, evidence oral and documentary and written synopsis as well as citations relied by the defendants.
9. My findings on the above issues are as under:
Issue No.1 :- In the Negative, Issue No.2 :- In the Negative, Issue No.3 :- In the Negative, Addl. Issue No.1 :- In the Negative, Issue No.4 :- As per final order for the following:
10. ISSUES NO.1 to 3 & Addl.Issue No.1 : All these issues are interlinked with each other and in order to avoid repetition and to appreciate the evidence on record, they are taken up together for common discussion.
O.S.No.1610/2007 9 Before deciding the disputed points, the Court has to keep in mind the following admitted facts ; The plaintiff No.1 is the daughter and plaintiff No.2 is the son and plaintiff No.3 is the wife of defendant No.3/V.Vasudev.
The suit property was fallen to the share of defendant No.3 in O.S.No.373/1973.
The suit property was initially mortgaged by defendant No.3 in favour of defendant No.2 under registered Mortgage Deed dated 28/08/1985 for a sum of Rs.20,000/-. Later, defendant No.3 has executed two separate registered sale deeds dated 09/06/1989 in favour of defendant No.1 and 2 respectively by selling the ½ share to each of them.
Defendant No.2 has entered the possession of the suit property by virtue of Mortgage Deed and later continued the possession by virtue of sale deed.
Initially suit was for possession i.e., redemption of mortgage and later plaintiffs sought declaration of sale deeds as not binding upon them.
Except prayer column plaintiffs have not pleaded about anything about the sale deeds in favour defendant No.1 and 2.
O.S.No.1610/2007 10 So, now I have to consider the case of the plaintiffs keeping in mind the above said admitted facts. The learned counsel for plaintiffs has argued that plaintiffs have proved the nature of the suit property by making a specific pleading in the plaint as well as by relying the Partition Deed and Partition Decree. In the plaint, they have specifically pleaded that the suit property is their ancestral property.
11. The learned counsel for defendants argued that the plaintiffs have not proved that the suit property is their ancestral property. But defendant No.1 and 2 in their separate written statements at para No.2 specifically admitted as under:-
"The defendant No.1 submits that, it is true that, the suit schedule property is the Ancestral Property of the 3rd defendant and that, the suit schedule property is devolved to the 3rd defendant by way of Partition in suit No.373/1973, which was came to be disposed before Hon'ble City Civil Judge, Bangalore"
"The defendant No.2 submits that, it is true that, the suit schedule property is the Ancestral Property of the 3rd defendant and that, the suit schedule property is devolved to the 3rd defendant by way of Partition in suit No.373/1973, which was came to be disposed before Hon'ble City Civil Judge, Bangalore"
O.S.No.1610/2007 11 So, defendant No.1 and 2 have admitted the nature of the suit property as ancestral property of plaintiffs No.1 and 2 and defendant No.3 and hence, now they cannot deny the said admissions.
12. Apart from this, the evidence on record discloses that suit property is the ancestral property of plaintiff No.1 and 2. Ex.P-1 is the certified copy of Partition Deed. Ex.P-10 is the certified copy of the Judgment and Ex.P-11 is the certified copy of decree passed in O.S.No.373/1973. Ex.P-10 discloses that the suit was filed by one V.Chandrashekar and present defendant No.3/V.Vasudeva. The said judgment at page No.9, Issue No.4 discloses that the said Court has held that the suit property is ancestral and joint family property. So, said suit was decreed by granting 2/3rd share to both plaintiffs. Ex.P-11 is the decree of said suit and Sl.No.5 is the present suit property bearing House No.38(G.22). Ex.P-12 is the report of Commissioner filed in said suit by demarketing the suit property. Ex.P-13 is the certified O.S.No.1610/2007 12 copy of Mahazar, which also discloses that the present suit property bearing House No.38 was shown as item No.5 and its measurement was shown as 45X36 feet and it is fallen to the share of plaintiff No.2 i.e., the present defendant No.3-Sri.V.Vasudeva. Ex.P-14 is the order passed by said Court by admitting the report of Court Commissioner. So by considering these documents as well as admissions given by defendant No.1 and 2 in their written statements, I hold that the plaintiffs have successfully proved that the suit property is the ancestral property of plaintiff No.1 and 2 and defendant No.3. Plaintiffs have converted their relief for discharge of mortgage into cancellation of sale deeds. So, deciding issue No.1 is not at all necessary. The issue No.1 has became infractious. Now, the prayer of the plaintiffs is grant of share and declaration of sale deed as not binding upon them.
13. Admittedly, the marriage of plaintiff No.3 took place with defendant No.3 in the year 1986. The O.S.No.1610/2007 13 age of the plaintiff No.1 is shown as 20 years and age of plaintiff No.2 is shown as 17 years when the suit was filed. So, the relationship of plaintiffs with defendant No.3 is not in dispute. Now, the dispute to be decided in this case is whether the plaintiffs have got share over the suit property and whether they can challenge the sale deeds of defendant No.3 in favour of defendant No.1 and 2.
14. The learned counsel for defendants by relying upon the judgment of Hon'ble Apex Court in (2020) 9 SCC 1 between Vineeta Sharma Vs. Rakesh Sharma & Ors., argued that the plaintiff No.1 being the daughter cannot question the sale deeds of her father, which was executed prior on 20/12/2004. The plaintiff No.1 was born to the defendant No.3 and she has been treated as a co- parcener. In the judgment relied by the defendant in (2020) 9 SCC 1 between Vineeta Sharma Vs. Rakesh Sharma & Ors., the Hon'ble Apex Court has held that the application of Section 6 of the Hindu O.S.No.1610/2007 14 Succession Act, 1956 is retrospective in nature and not prospective. But, exception to amendment, saves the registered sale deeds and partition decree if they have been executed before 20.12.2004. Hon'ble Apex Court in said Judgment at para No.137.1 and 137.2 held as under :-
"137.1.The provisions contained in substituted Section 6 of the Hindu Succession Act, 1956 confer status of coparcener on the daughter born before or after amendment in the same manner as son with same rights and liabilities.
137.2. The rights can be claimed by the daughter born earlier with effect from 9.9.2005 with savings as provided in Section 6(1) as to the disposition or alienation, partition or testamentary disposition which had taken place before 20th day of December, 2004".
So, as per the judgment of Hon'ble Apex Court, the daughter is treated as a coparcener irrespective of her date of birth i.e., whether born before of after the amendment. The daughter can claim share even though she born before 09/09/2005 but she cannot challenge the sale deed executed by her father or partition final decree and testamentary disposition, O.S.No.1610/2007 15 which had taken place before the 20/12/2004. Admittedly, in this case, the sale deeds executed by defendant No.3 in favour of defendant No.1 and 2 are dated 09/06/1989 i.e., prior to 20th December 2004. Hence, the plaintiff No.1-daughter cannot challenge the sale deeds of her father.
15. The plaintiff No.2 i.e., son of the defendant No.3 was born on 16/03/1990 that is as per Ex.P-6/ certified copy of Birth Certificate of plaintiff No.2. Ex.P-4 is his Adhaar card, wherein also his birth year is shown as 1990. As on the date of sale deeds, the plaintiff No.2 was not at all born. Hence, the question before this Court is whether he can challenge the sale deeds executed by his father.
16. The learned counsel for defendants relied upon the judgment of Rohit Chauhan Vs. Surinder Singh & Ors., in (2013) 9 SCC 419, wherein it has held that:-
"A. Family and Personal Laws-Hindu Law- Joint family property/joint property-coparcenary property or separate/self-acquired property -
O.S.No.1610/2007 16 Partition of ancestral property -Property falling in share of a single coparcener would be treated as his separate property vs-a-vis his relatives and he would be competent to alienate/deal with it in any manner he would like- But upon his marriage subsequently when a son is born (and after the 2005 Amendment to Hindu Succession Act, 1956, also a daughter), property in his hand would be treated as co-parcenary property in which son(s)/daughter(s) as coparceners would get shares-Hence after birth of a child, he could dispose of such property only as karta for legal necessity-Suit filed by son for declaration that alienations of such property by way of sale and gift after he was born, having not been made by his father as karta for any legal necessity, were null and void, deserved to be decree-However, in respect of property which would have fallen in share of his father at the time of execution of sale and release deeds, parties can work out their remedies in appropriate proceedings-Partition- Hindu Succession Act, 1956-Ss.6 and 8-Specific Relief Act, 1963-Ss.34-Transfer of Property Act, 1882-Ss.44, 38, 7, 8, 54 and 123-Partition Act, 1893, S.4."
O.S.No.1610/2007 17 So, by applying the above said citation, I hold that property held by defendant No.3, which was came to him during his partition was his separate property. The plaintiff No.2 had not at all born when the said property was sold by defendant No.3. Defendant No.3 had right to sell the suit property, which was allotted to him in his partition.
17. The Judgments of M.Yogendra & Ors., Vs. Leelamma N & Ors., in (2009) 15 SCC 184 as well as Rohit Chauhan Vs. Surinder Singh & Ors., in (2013) 9 SCC 419 are aptly applicable to the facts of this case. In Rohit Chauhan Vs. Surinder Singh & Ors., case, the Hon'ble Apex Court held that "son born subsequently cannot challenge the alienation made by his father". The suit property becomes coparcener property of plaintiff No.1 and 2 but plaintiff No.1 cannot challenge the sale deeds in view of explanation to Section.6 and plaintiff No.2 cannot challenge the sale deeds since he was not at all born when the sale deeds were executed by his father. The O.S.No.1610/2007 18 said sale deeds are produced by the defendants as per Ex.D.1 and 2. respectively. The plaintiff No.3 being the wife of defendant No.3 cannot claim her share in the suit property as she has no right to file suit for partition.
18. The Rights Of Karta To Sell Ancestral Property :-
It is well settled position of law that the Karta can sell ancestral or joint family property for legal necessity and benefit of estate. The defendant No.3 is the father of plaintiff No.1 and 2. When the sale deeds were executed by him, the plaintiff No.1 and 3 were residing with him. In the sale deed/Ex.D.1 executed by defendant No.3 in favour of defendant No.1 dated 09/06/1989, the reasons for sale of the property is mentioned as under:-
"ನಿಮ್ಮ ಸಹೋದರಿಯಾದ ಶ್ರೀಮತಿ ಕೆ.ವಿ ಸತ್ಯವತಿಯವರಿಂದ ರೂ.20,000-00 ಇಪ್ಪತ್ತು ಸಾವಿರ ರೂಪಾಯಿಗಳನ್ನು ಸಾಲವಾಗಿ ಪಡೆದು ಸದರಿ ಸಾಲದ ಮೊಬಲಗಿಗೆ ನನ್ನ ಬಾಬ್ತು ಮೇಲ್ಕಂಡ ಸ್ವತ್ತನ್ನು ಭೋಗ್ಯ ಮಾಡಿಕೊಟ್ಟು ಸದರಿ ಭೋಗ್ಯ ಪತ್ರವನ್ನು ತಾರೀಖುಃ28-08-1985ರಲ್ಲಿ ಬೆಂಗಳೂರು ಬಸವನಗುಡಿ ಸಬ್ ರಿಜಿಸ್ಟ್ರಾ ರ್ರವರ ಆಫೀಸಿನಲ್ಲಿ 1ನೇ O.S.No.1610/2007 19 ಬುಕ್ಕು ,1422ನೇ ವಾಲ್ಯೂಂ, 179-182ನೇ ಪುಟಗಳಲ್ಲಿ 1926ನೇ ನಂಬರಾಗಿ ರಿಜಿಸ್ಟ್ರು ಮಾಡಿಸಿಕೊಟ್ಟಿರುತ್ತೇನೆ. ಸದರಿ ಸಾಲವನ್ನು ತೀರಿಸಲು ಬೇರೆಯವರಲ್ಲಿ ಕೈ ಬದಲು ಸಾಲ ಮಾಡಿರುತ್ತೇನೆ. ಈ ನನ್ನ ದರದು ನಿಮಿತ್ಯ ಅಂದರೆ ಮೇಲ್ಕಂಡ ಸಾಲದಿಂದ ಋಣ ಮುಕ್ತನಾಗುವುದಕ್ಕೂ ಗೃಹ ಕೃತ್ಯದ ಖರ್ಚುಗಳಿಗುಾ ನನ್ನ ಜೀವನೋಪಾಯಕ್ಕಾ ಗಿ ಯಾವುದಾದರಾ ವ್ಯಾ ಪಾರ ಮಾಡಲು ಅದರ ಬಂದವಾಳಕ್ಕೂ ಇತರೇ ನ್ಯಾ ಯವಾದ ಅವಶ್ಯಕತೆಗಳಿಗೂ ಸಹಾ ನನಗೆ ಜರೂರು ಮೊಬಲಗು ಬೇಕಾಗಿರುವುದರಿಂದ ಮೇಲ್ಕಂಡತೆ ನನ್ನ ಹಿಸ್ಸೆಗೆ ಬಂದಿರುವ ಸ್ವತ್ತನ್ನು ಮಾರದೇ ನನಗೆ ಬೇರೆ ಗತ್ಯಂತರವೇ ಇಲ್ಲದೆ ".
19. Likewise, in the sale deed executed by defendant No.3 in favour of defendant No.4/Ex.D.2, the reason for sale is mentioned as under:-
"ಶ್ರೀಮತಿ ಕೆ.ವಿ ಸತ್ಯವತಿ ಆದ ನಿಮ್ಮಿಂದ ರೂ.20,000-00 ಇಪ್ಪತ್ತು ಸಾವಿರ ರೂಪಾಯಿಗಳನ್ನು ಸಾಲವಾಗಿ ಪಡೆದು ಸದರಿ ಸಾಲದ ಮೊಬಲಗಿಗೆ ನನ್ನ ಬಾಬ್ತು ಮೇಲ್ಕಂಡ ಸ್ವತ್ತನ್ನು ಭೋಗ್ಯ ಮಾಡಿಕೊಟ್ಟು ಸದರಿ ಭೋಗ್ಯ ಪತ್ರವನ್ನು ತಾರೀಖುಃ28- 08-1985ರಲ್ಲಿ ಬೆಂಗಳೂರು ಬಸವನಗುಡಿ ಸಬ್ ರಿಜಿಸ್ಟ್ರಾ ರ್ರವರ ಆಫೀಸಿನಲ್ಲಿ 1ನೇ ಬುಕ್ಕು , 1422ನೇ ವಾಲ್ಯೂಂ, 179-182ನೇ ಪುಟಗಳಲ್ಲಿ 1926ನೇ ನಂಬರಾಗಿ ರಿಜಿಸ್ಟ್ರು ಮಾಡಿಸಿಕೊಟ್ಟಿರುತ್ತೇನೆ. ಸದರಿ ಸಾಲವನ್ನು ತೀರಿಸಲು ಬೇರೆಯವರಲ್ಲಿ ಕೈ ಬದಲು ಸಾಲ ಮಾಡಿರುತ್ತೇನೆ. ಈ ನನ್ನ ದರದು ನಿಮಿತ್ಯ ಅಂದರೆ ಮೇಲ್ಕಂಡ ಸಾಲದಿಂದ ಋಣ ಮುಕ್ತನಾಗುವುದಕ್ಕೂ ಗೃಹ ಕೃತ್ಯದ ಖರ್ಚುಗಳಿಗುಾ ನನ್ನ ಜೀವನೋಪಾಯಕ್ಕಾ ಗಿ ಯಾವುದಾದರಾ ವ್ಯಾ ಪಾರ ಮಾಡಲು ಅದರ ಬಂದವಾಳಕ್ಕೂ ಇತರೇ ನ್ಯಾ ಯವಾದ ಅವಶ್ಯಕತೆಗಳಿಗೂ ಸಹಾ ನನಗೆ ಜರೂರು ಮೊಬಲಗು ಬೇಕಾಗಿರುವುದರಿಂದ ಮೇಲ್ಕಂಡಂತೆ ನನ್ನ ಹಿಸ್ಸೆಗೆ ಬಂದಿರುವ ಸ್ವತ್ತನ್ನು ಮಾರದೇ ನನಗೆ ಬೇರೆ ಗತ್ಯಂತರವೇ ಇಲ್ಲದೆ ".
O.S.No.1610/2007 20 So, the property was sold by defendant No.3, which was initially mortgaged by him in favour of defendant No.2. The specific reason is mentioned in the sale deed that in order to discharge the said debt and for domestic expenses as well as to start the business, the property was sold. So, when the property was sold by the defendant No.3, he was in legal necessity to sell it. Plaintiffs though pleaded that the property was simply mortgaged but not sold but the entire plaint is on the point that the mortgage is not discharged, but plaintiffs have not at all pleaded that there was no legal necessity to the defendant No.3 to sell the suit property. Absolutely there is no pleading that defendant No.3 was addicted to bad vices etc., and hence, he sold the suit property. So, looking to the plaint averments, I hold that this suit is filed by the plaintiffs colluding with the defendant No.3 and only in order to defeat the rights of the defendant No.1 and 2.
O.S.No.1610/2007 21
20. On The Point Of Right Of Karta To Sell The Suit Property, The Following Citations Are Considered By Me.
1. As per the citation reported in (2020) 14 SCC 436, between Arshanoor Singh vs Harpal Kaur and others, Hon'ble Apex Court held as under:
"B. Family and personal laws - Hindu Law- Karta/ manager - Alienation of property / legal necessity - Alienation of co-parcenery property
-Karta's power - Karta can sell co-parcenery property for legal necessity or for benefit of estate- Onus of proof that co-parcenery property was alienated for legal necessity or for benefit of estate, held, is on alienee."
2. The Hon'ble Apex Court in 1970 (3) SCC 722, between Rani -vs- Santa Mulla held that onus for establishing the existence of legal necessity is on the alienee. It is held as under:
"It is settled law that the power of a karta to sell co-parcenary property is subject to certain restrictions viz., the sale should be for legal necessity or for the benefit of the estate. The onus for establishing the existence of legal necessity is on the alienee."
O.S.No.1610/2007 22
3. The Hon'ble Apex Court in AIR 1967 SC 574, between Radhakrishnadas -s- Kaluram, (Judgment relied by defendants) after referring Privy Council decision held as under:
"It is well established by the decisions of the Courts in India and the Privy Council that what the alienee is required to establish is legal necessity for the transaction and that it is not necessary for him to show that every bit of the consideration which he advanced was actually applied for meeting family necessity."
4. The Hon'ble Apex Court in AIR 1971 SC 1028, between Smt. Rani and another -vs- Smt. Santa Bala Debnath and others, held as under:
"The onus of proving legal necessity may be discharged by the alienee by proof of actual necessity or by proof that he made proper and bonafide enquiries about the existence of the necessity and that he did that was reasonable to satisfy himself as to the existence of the necessity and that he did that was reasonable to satisfy himself as to the existence of necessity.
The Court further observed regarding legal necessity as follows:
"Recitals in a deed of legal necessity do not by themselves prove legal necessity. The recitals are, however, admissible in evidence, their value varying according to the circumstances in which the transaction was entered into. The recitals may be used to corroborate other evidence of the existence of legal necessity. The weight to be attached to the recitals varies according to the circumstances".
O.S.No.1610/2007 23
5. The Hon'ble Apex Court in AIR 2018 SC 3907,between Kehar Singh (D) through L.Rs. and others -vs-Nachittar Kaur and others(Judgment relied by the defendants) held as under:
"Hindu law - Ancestral property - Alienation by Karta - Existence of legal necessity proved -Co- parcener (son) has no right to challenge sale made by Karta of his family."45.In said judgment it has been held that once the factum of existence of legal necessity stood proved, then no co-parcener (son) has a right to challenge the sale made by the karta of his family.
In said judgment the Hon'ble Apex Court at para No.22 considered Article 254 of Mulla's HinduLaw, which is as under:
"Article 254: Alienation by father - A Hindu father as such has special powers of alienating coparcenary property, which no other co-parcener has."
6. The Hon'ble Apex Court in Narayana Bal & Ors., Vs. Sridhar Sutar & Ors., (1996) 8 SCC 54 (Judgment relied by the defendants) held as under:
"The kartha enjoys wide discretion in his decision over existence of legal necessity and as to in what way such necessity can be fulfilled. The exercise of powers given the rights of the Karta on fulfilling the requirement of legal necessity or betterment of the estate is valid and binding on other coparceners."
O.S.No.1610/2007 24
7. The Hon'ble Bombay High Court in Ramesh Damodhar Deshmuk Vs. Damodar D Deshmukh, 1999(1) Bom CR 863 (Judgment relied by the defendants) held as under:-
"The Karta or manager can alienate the coparcenary property by sale or mortgage for legal necessity or benefit of the estate or otherwise. The Karta is not required to obtain the consent of the other coparceners for alienation and if the alienation is for legal necessity, it will bind the other coparceners".
In this case, defendant No.1 and 2 have discharged the burden that there was the legal necessity to the defendant No.3 to sell the suit property.
21. ON THE POINT OF LIMITATION :-
Admittedly, the suit is filed by the plaintiff No.1 and 2 to set aside the sale deed executed by their father dated 06/09/1989 in favour of defendant No.1 and 2.
So, Article 109 of Limitation Act, applies. As per this Article, the limitation prescribed to file a suit to set-
aside the alienation of ancestral property by the father O.S.No.1610/2007 25 is 12 years from the date of alienee taking possession of the such property. The date of sale deeds were 06.09.1989 and in the sale deeds itself, there is a recital that the possession of the property was handed over by the seller in favour of the purchaser.
Defendant No.2 came into possession of the said property from the date of mortgage itself i.e., from 28/08/1985. Admittedly, the suit was filed by the plaintiffs on 23/02/2007 i.e., after lapse of 18 years. So, the suit is beyond the period of 12 years, hence it is barred by law of limitation. Though the issue is not framed on limitation but both parties have proceeded with the case knowingly that question of limitation is involved in this suit.
22. The judgment relied by the defendants in Smt.Sunandamma Vs. Sri.M.M.Kumaraswamy-RFA No.7/2006, is applicable to the facts of this case. In said judgment the Hon'ble High Court of Karnataka held as under:-
"Under Mitakshara Law, father has right to alienate ancestral properties, including the rights O.S.No.1610/2007 26 of the son, for legal necessity or for the benefit of the estate or for discharging antecedent debt. Since possession was delivered in 1984, it amounted to invasion of rights of son (plaintiff) in the family property. It is only when possession is taken by alliance, cause of action accrues to the son under Article 109. In the present case, sale deed is dated 27.1.1984 and suit is filed on 11.4.2000. After expiry of 12 years, son's right to dispute the alienation is barred and therefore the suit property ceases to be joint family property".
The present suit is not covered under Article 58 of Limitation Act, but it is covered under the Article 109 of Limitation Act. It is not the case of the plaintiffs that they were not aware about the mortgage deed of the year 1985. But it is their pleading that they were under impression that defendant No.3 will discharge the debt and will give share to them. PW1 during her cross examination specifically admitted that she came to know about the mortgage of the property in the year 1988. So, the suit is barred by Law of Limitation. Hence, I answer issue No.1 to 3 in the negative and additional Issue No.1 also in Negative.
O.S.No.1610/2007 27
23. ISSUE NO.4: In view of my finding on the above issues, I proceed to pass the following:
The suit of the plaintiffs is hereby dismissed with costs *** [Dictated to the Stenographer, after transcription, the Script is corrected directly on computer, signed and then pronounced by me, in the Open Court on this the 2nd day of September, 2024.] [Chinnannavar Rajesh Sadashiv] XVIII Additional City Civil Judge.
BENGALURU.
1. List of witnesses examined on behalf of the Plaintiff/s:
PW.1 :: Nagarathna
2. List of witnesses examined on behalf of the Defendant/s:
DW.1 :: K.V.Sathyavathi
3. List of documents marked on behalf of the Plaintiff/s:
Ex.P-1 Certified copy of partition deed; Ex.P-1(a) Typed copy of partition deed;
Ex.P-2 Encumbrance certificate;
Ex.P-3 Copy of mortgage deed;
O.S.No.1610/2007
28
Ex.P-3(a) Typed copy of Ex.P.3;
Ex.P-4 & 5 Aadhar Cards;
Ex.P-6 & 7
Birth Certificates;
Ex.P-8 Ration Card;
Ex.P-9 Indemnity Bond and Affidavit of
undertaking of Smt.Muniyamma;
Ex.P-10 Certified Copy of judgment passed
in O.S.373/1973;
Ex.P-11 Certified Copy of decree passed in
O.S.373/1973;
Ex.P-12 Certified Copy of Commissioner
report in O.S.373/1973;
Ex.P-13 Certified copy of Mahazar in
O.S.No.373/1973;
Ex.P-14 Certified copy of order in
O.S.No.373/1973
5. List of documents marked on behalf of the defendants:
Ex.D.1 Original Sale deed dt. 09.06.1989 ; Ex.D.2 Original Sale deed dt. 09.06.1989 ; Ex.D.3 to 6 Encumbrance certificates ;
Ex.D.7 Khata certificate ;
Ex.D.8 Khata extract ;
Ex.D.9 Khata certificate ;
Ex.D.10 Khata extract ;
Ex.D.11 to 14 BBMP endorsements ;
Ex.D.15 Certified copy of the order sheet in
execution case 1140/2014;
Ex.D.16 Certified copy of the execution
O.S.No.1610/2007
29
petition 1140/2014 ;
Ex.D.17 Certified copy of the statement of objections in execution case 1140/2014 ;
Ex.D.18 Certified copy of the memo dt.
16.04.2014 in execution case 1140/2014 ;
Ex.D.19 Certified copy of the memo dt.
17.01.2015 in execution case 1140/2014 ;
Ex.D.20 Certified copy of the memo dt.
12.12.2016 in execution case 1140/2014 ;
Ex.D.21 Certified copy of the memo dt.
05.12.2016 in execution case 1140/2014 ;
Ex.D.22 Certified copy of the memo dt.
04.02.2017 in execution case 1140/2014 ;
Ex.D.23 Certified copy of the memo dt.
04.02.2017 in execution case 1140/2014 ;
Ex.D.24 Certified copy of the memo dt.
28.01.2017 in execution case 1140/2014;
Ex.D.25 Certified copy of the memo dt.
28.03.2017 in execution case 1140/2014;
Ex.D.26 Certified copy of the memo dt.
19.04.2017 in execution case 1140/2014;
Ex.D.27 Certified copy of the objections to the memo dt. 28.03.2017;
Ex.D.28 Certified copy of the memo dt.
24.07.2017 in execution case 1140/2014;
O.S.No.1610/2007 30 Ex.D.29 Certified copy of the memo dt.
08.09.2021 in execution case 1140/2014;
Ex.D.30 Certified copy of the Memo dt.
17.09.2021 in execution case 1140/2014;
Ex.D.31 Certified copy of the
relinquishment of Mortgage Deed
dtd.09/06/1989;
Ex.D.31(a) Typed copy of Ex.D.31;
Ex.D.32 Certified copy of Discharge Deed
dtd.09/06/1989;
Ex.D.32(a) Typed copy of Ex.D.32;
Ex.D.33 Certified copy of order
dtd.12/07/2021 passed in RFA
No.160/2014.
[Chinnannavar Rajesh Sadashiv ]
XVIII Additional City Civil Judge.
BENGALURU.