Karnataka High Court
John Prakash vs Sri Sannaswamy Gowda on 27 September, 2024
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NC: 2024:KHC:41198
RSA No. 1008 of 2014
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 27TH DAY OF SEPTEMBER, 2024
BEFORE
THE HON'BLE MR JUSTICE ASHOK S.KINAGI
REGULAR SECOND APPEAL NO. 1008 OF 2014 (PAR)
BETWEEN:
1. JOHN PRAKASH
S/O LATE MATHEW
SINCE DECEASED BY HIS LEGAL REPRESENTATIVES
1(A) SMT SHEBANEERAJAKSHI
W/O LATE JOHN PRAKASH
AGED ABOUT 56 YEARS
1(B) SRI JOHN ABHISHEKH
S/O LATE JOHN PRAKASH
AGED ABOUT 24 YEARS
1(C) SRI JOHN ABHILASH
Digitally S/O LATE JOHN PRAKASH
signed by R AGED ABOUT 22 YEARS
DEEPA
Location: APPELLANTS 1(A) TO 1(C) ARE
HIGH R/AT N E S COLONY
COURT OF BEHIND MURALI HOTEL
KARNATAKA HUNASUR TOWN
HUNASUR 571 105.
2. SMT SILVA JAYAKUMARI
W/O JAYACHANDRA
AGE 65 YEARS, R/AT NO.679
SHALOOM, 3RD MAIN,
VIJAYANAGAR 1ST PHASE
MYSORE 570 001
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NC: 2024:KHC:41198
RSA No. 1008 of 2014
3. SMT STELLA REBACA
W/O SUNDARESH
AGE 61 YEARS, R/AT UG-28
SUGAR TOWN
MANDYA 571 401
...APPELLANTS
(BY SRI. ANJAN A.V., ADVOCATE FOR
SRI. LOHITHASWA BANAKAR, ADVOCATE)
AND:
1. SRI SANNASWAMY GOWDA
S/O CHIKKE GOWDA
AGED ABOUT 56 YEARS
2. SMT SHIVAMMA
W/O SANNASWAMY GOWDA
AGED ABOUT 49 YEARS
3. SRI H S SHIVAKUMAR
S/O SANNASWAMY GOWDA
AGED ABOUT 32 YEARS
4. SMT RAJAMMA
W/O SWAMINATHAN C
AGED ABOUT 46 YEARS
ALL ARE R/AT HUNDI MALA VILLAGE
UYIGONDANAHALLI DAKHALE
BILIKERE HOBLI
HUNASUR TALUK 571 105
MYSORE DISTRICT
...RESPONDENTS
(BY SMT. B.H. SUNITHA, ADVOCATE FOR
SRI. RAJANNA, ADVOCATE FOR R1 TO R4)
THIS RSA IS FILED U/S. 100 OF CPC., AGAINST THE
JUDGEMENT & DECREE DTD 10.6.2014 PASSED IN
R.A.NO.44/2013 ON THE FILE OF THE PRESIDING OFFICER,
FAST TRACK COURT, HUNSUR, ALLOWING THE APPEAL AND
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NC: 2024:KHC:41198
RSA No. 1008 of 2014
SETTING ASIDE THE JUDGEMENT AND DECREE DTD 7.11.2012
PASSED IN OS.NO.186/2007 ON THE FILE OF THE SENIOR
CIVIL JUDGE, HUNSUR.
THIS APPEAL, COMING ON FOR FINAL HEARING, THIS
DAY, JUDGMENT WAS DELIVERED THEREIN AS UNDER:
CORAM: HON'BLE MR JUSTICE ASHOK S.KINAGI
ORAL JUDGMENT
This regular second appeal is filed by the appellants challenging the judgment and decree dated 10.06.2014, passed in R.A.No.44/2013, by the Fast Track Court, Hunsur, Mysore District.
2. For convenience, the parties are referred to according to their ranking before the trial Court. Appellants are the legal representatives of deceased plaintiff i.e., appellant Nos.1 (a) to (c) are the legal representatives of deceased plaintiff No.1, appellant No.2 and 3 are plaintiff Nos.2 and 3, and respondents are the defendants.
3. Brief facts leading rise to the filing of this appeal are as follows:
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NC: 2024:KHC:41198 RSA No. 1008 of 2014 The plaintiffs filed a suit for partition and separate possession. It is contended that deceased John Prakash and plaintiff Nos.2 and 3 are Indian Christians and are governed by the Indian Succession Act, and they are children of the late Mathew and Smt. Flawrence Chandramma. The Special Commissioner, Mysore, granted the land bearing Sy.no.17/32, measuring 3 acres situated at Uyigondanahalli, Bilikere Hobli, Hunasur Taluk, along with other property granted in favour of the father of the plaintiffs. The Father of the plaintiffs died intestate in 1985, leaving behind the plaintiffs and their mother, Smt. Flawrence Chandramma. The plaintiffs and their mother have succeeded to the suit schedule property, and since, the mother being the eldest member of the family, khata mutated in her name. Plaintiffs and her mother continued the possession and enjoyment of the land. It is contended that the mother had no right over the suit schedule property, without the consent and knowledge of the plaintiffs, sold the said land in favour of defendant No.4 Smt.Rajamma under registered sale deed dated -5- NC: 2024:KHC:41198 RSA No. 1008 of 2014 29.03.1996 and the said Smt. Rajamma, in turn, sold the said land in favour of defendant Nos.1 to 3 by virtue of a registered sale deed dated 03.03.2007. The said sale transactions are not within the knowledge of the plaintiffs and they came to know in the year 2007 and obtained certified copies of the sale deeds and filed a suit for partition and separate possession to declare that the registered sale deeds executed by their mother in favour of defendant No.4 is null and void and not binding on the plaintiffs share.
4. The defendants filed a written statement denying the averments made in the plaint. But admitted the grant made in favour of plaintiffs father and also admitted the sale transactions and that khata was changed in the name of plaintiffs' mother and about the purchases made by them. It is contended that the plaintiffs had the knowledge of the sale transactions as on the date of execution of the registered sale deed and the suit filed by the plaintiffs without including other ancestral -6- NC: 2024:KHC:41198 RSA No. 1008 of 2014 properties in the suit schedule is not maintainable. Hence, the suit for partial partition is not maintainable. The suit filed by the plaintiffs is barred by limitation.
5. It is further contended that plaintiffs have never been in possession of the plaint schedule property at any point in time. Even at the date of the grant, the defendant's father-in-law cleared the jungle and made a suit property fit for cultivation. It is contended that the plaintiffs mother, Flawrence Chandramma, had entered into an agreement of sale on 02.03.1995 with the husband of defendant No.1 in respect of the plaint schedule property for valuable consideration of Rs.75,000/- and plaintiff No.2 to put her signature on the agreement of sale as a witness. Plaintiff No.1 and plaintiffs mother executed an agreement of sale dated 31.01.1996 in favour of defendant No.1 husband for valuable consideration of Rs.42,000/-. The mother of the plaintiffs received a sum of Rs.32,000/- as an advance in respect of the sale agreement and agreed to receive the balance -7- NC: 2024:KHC:41198 RSA No. 1008 of 2014 consideration amount at the time of registration of the sale deed. Thereafter, the mother of the plaintiffs executed the registered sale deed, and plaintiff No.3 fixed her signature on the sale deed as one of the attesting witnesses. Hence, plaintiffs have no right, title or interest over the suit schedule property and prays to dismiss the suit.
6. The Trial Court, on the basis of the above said pleadings, framed the following issues:
1) Whether the plaintiffs prove that the suit schedule property is the joint family property of them and their mother?
2) Whether the defendant Nos.1 to 4 prove that the suit is bad for non-inclusion of all their ancestral properties in the suit?
3) Whether the defendant Nos.1 to 4 prove that the suit is bad for non-joinder of mother of the plaintiff i.e., Flawrance Chandramma?
4) Whether the defendant Nos.1 to 4 prove that the suit is barred by law of limitation?
5) Whether the plaintiffs are entitled for partition? If so, at what rate?
6) What order or decree?-8-
NC: 2024:KHC:41198 RSA No. 1008 of 2014
7. The plaintiffs, in order to prove the case, plaintiff No.1, was examined as PW.1 and marked six documents as Exs.P1 to 6. Defendant No.2 was examined as DW.1 and examined three witnesses as DWs.2 to 4 and got marked 33 documents as Exs.D1 to 33. The trial Court, after recording the evidence, hearing on both sides, and on the assessment of oral and documentary evidence, answered issues Nos.1 and 5 in the affirmative, issues Nos.2 to 4 in the negative, issue No.6 as per the final order. Suit of the plaintiffs was decreed with costs. It was declared that plaintiffs are together entitled to a 2/3rd share in the suit property. The suit property shall be partitioned by metes and bounds and separate possession of the shares of the plaintiffs shall be delivered to them. It was ordered that there shall be an enquiry to ascertain mesne profit as per article 20 Rule 12 CPC. The defendants, aggrieved by the judgment and decree passed in the above-said suit, have preferred the appeal in R.A.No.44/2013 on the file of Fast Track court, Hunsur. -9-
NC: 2024:KHC:41198 RSA No. 1008 of 2014
8. The First Appellate Court framed the following points for consideration:
1) Whether the judgment and decree passed by the trial Court is erroneous, illegal, perverse and not sustainable in law and called for interference of this Court?
2) What order or decree?
9. The first Appellate Court on reassessment of oral and documentary evidence, answered point No.1 in the affirmative, and point No.2 as per the final order. The first Appellate Court allowed the appeal with costs. Judgment and decree passed in O.S.No.186/2007 dated 07.11.2012 passed by Senior civil Judge and JMFC, Hunsur, was set aside and consequently, dismissed the suit of the plaintiffs.
10. The plaintiffs, aggrieved by the judgment and decree passed by the first Appellate Court in R.A.No. 44/2013, filed this regular second appeal.
11. Learned counsel for the plaintiffs submits that, admittedly, the suit property was owned and possessed by
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NC: 2024:KHC:41198 RSA No. 1008 of 2014 the father of the plaintiffs and after his demise, the plaintiffs and their mother succeeded to the suit schedule property. He submits that the mother alone had no right to alienate the suit schedule property in favour of defendant No.4 and the sale deed executed by the mother of the plaintiffs in favour of defendant No.4, which is not binding on the share of the plaintiff. Hence, he submits that the trial Court was justified in decreeing the suit of the plaintiffs, and the first Appellate Court committed an error in passing the impugned judgment. Hence, he submits that the first Appellate Court has not properly appreciated the material placed on record. Hence, on these grounds, prays to allow the appeal.
12. Per contra, learned counsel for the defendants submits that admittedly, the suit property was owned and possessed by the plaintiffs father and after his demise suit property was transferred in the name of the mother, Lawrence Chandramma, and she sold the suit schedule property in favour of defendant No.4 for valid
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NC: 2024:KHC:41198 RSA No. 1008 of 2014 consideration and executed a registered sale deed and she also submits that prior to the execution of the registered sale deed in favour of defendant No.4 and mother had executed an agreement of sale in favour of defendant No.4, wherein plaintiff No.2 has affixed her signature as attesting witness, and she also submits that plaintiff No.3 has also signed in the registered sale deed as an attesting witness. The plaintiffs filed a suit for partition and separate possession in regard to the alienated property, but the plaintiffs have not included other properties left by the deceased father. Hence, the suit for partial partition is not maintainable. She submits that the mother of the plaintiff filed suit in O.S.No.185/2007 against the husband of defendant No.1, challenging the registered sale deed. The said suit was dismissed. Hence, she submits that the plaintiffs have also filed one more suit for partition and separate possession, which was dismissed. She submits that the first Appellate Court was justified in passing the impugned judgment. Hence, on these grounds prays to dismiss the appeal.
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NC: 2024:KHC:41198 RSA No. 1008 of 2014
13. This court admitted the appeal on the following substantial question of law :
"When the trial Court dismissed the suit for partition and separate possession of the share of the appellant in the suit property on the basis of the evidence placed on record, whether the first Appellate Court was justified in reversing the findings of the trial Court and in doing so, did not appropriate reasons to overcome the findings of the trial Court and thereby committed an illegality in the impugned judgment and decree?"
[Note: In the substantial question, it is mentioned as trial Court dismissed the suit, but it was decreed.]
14. SUBSTANTIAL QUESTION OF LAW: Plaintiff No.1 was examined as PW.1, and he has deposed that the suit schedule property was owned and possessed by the father of the plaintiffs, and he died, leaving behind the plaintiffs and his mother as legal heir. After the demises, the mother, being an elder member of the family, transferred the property in the name of the mother. He
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NC: 2024:KHC:41198 RSA No. 1008 of 2014 has deposed that the mother had no right to execute a sale deed in favour of defendant No.1 under a registered sale deed dated 29.03.1996. The sale deed executed by the mother in favour of defendant No.1 is not binding on the plaintiffs. The plaintiffs, in order to substantiate their case, produced the documents, i.e., Exs.P1 to P3 are the RTC extracts which disclose that the suit property was standing in the name of the father of the plaintiffs, Exs.P4 to P6 are the copies of sale deed which discloses that the plaintiffs' father had purchased the suit schedule property under the registered sale deeds. In the course of cross- examination, it is admitted that the ancestors' property bearing assessment No.1483/1833/30 and the said house is situated behind murali hotel and it measures 60 x 40 feet. Further, it is elicited that their mother was residing with him. Ex.P6 is the sale deed, which discloses that the mother, the plaintiffs have, purchased the property in the year 1980-81. Further, PW.1 had admitted that the plaintiffs have not included the other property in the suit, i.e., in Sy.No.17/43 and the said land was granted in
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NC: 2024:KHC:41198 RSA No. 1008 of 2014 favour of the father of the plaintiffs and after the demise of their father, the property was devolved upon the plaintiffs and their mother.
15. In rebuttal, defendant No.2 was examined as DW.1, and he reiterated the plaint averments and contended that the mother of the plaintiffs had sold the suit schedule property in favour of defendant No.1 and defendant No.1, in turn, sold the suit schedule property in favour of defendant Nos.2 and 3 and the mother of the plaintiffs had put defendant No.1 in possession of the suit schedule property. Defendants Nos.2 and 3 became the absolute owners of the suit schedule property by virtue of registered sale deeds. The defendants have produced the documents i.e., Exs.D1 to D3 i.e., the certified copy of the registered sale deeds, Ex.D4 is the copy of legal notice issued by plaintiff No.1 to defendant No.1 dated 15.05.2007, Ex.D6 is the certified copy is the registered sale deed executed by the mother of the plaintiffs, Ex.D7 is the grant certificate, Ex.D8 is the agreement, Ex.D9 is
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NC: 2024:KHC:41198 RSA No. 1008 of 2014 certified copy of the plaint in O.S.No.185/2007 which discloses that the plaintiffs have filed a suit against the defendants for partition and separate possession, Ex.D10 is the certified copy of the written statement filed by the defendants in O.S.No.185/2007, Exs.D11 to D24 are the RTC extracts in respect of the suit schedule property, Exs.D25 to D27 are the mutation register extracts, Ex.D28 is the sale deed, Exs.D29 to D32 are the kandayam receipts and Ex.D33 is the death certificate of the mother of the plaintiffs who died on 13.01.2008 and the defendant also examined the witnesses to establish that the mother of the plaintiffs had included the registered sale deed in favour of defendant No.1. Defendant No.1 in turn executed a registered sale deed in favour of defendant Nos.2 and 3. Nothing has been elicited from the mouth of these witnesses to disbelieve the evidence.
16. From the perusal of the entire evidence placed on record, the plaintiffs have filed a suit in O.S.No.185/2007 on the file of Senior Civil Judge and
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NC: 2024:KHC:41198 RSA No. 1008 of 2014 JMFC, Hunsur, against the husband of defendant No.1 for partition and separate possession. The husband of defendant No.1 filed the written statement as per Ex.D10, wherein it is contended that the suit for partial partition in respect of plaint schedule property therein was not maintainable. Further, the plaintiffs have filed the present suit only in respect of alienated property but have not included other properties which have fallen to the share of the father of the plaintiffs, i.e., Sy.No.17/43. Further, the said suit in O.S.No.185/2007 was dismissed. The plaintiffs were aware of the execution of the registered sale deed by their mother in favour of defendant No.1. The plaintiffs did not challenge the registered sale deed executed by their mother in favour of husband of defendant No.1. The plaintiffs without including all the family properties have filed a suit for partition and separate possession. Hence, the suit filed by the plaintiffs for partial partition is not maintainable.
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17. In view of the law laid down by the Hon'ble Apex Court in the case of T. K. MOHAMMED ABUBUCKER (D) THR. LRS. & ORS. VS. P.S.M.AHAMED ABDUL KHADER & ORS. reported in AIR 2009 SC 2966 the first Appellate Court has rightly recorded a finding that the suit for partial partition is not maintainable and also considering the registered sale deed executed by the mother of the plaintiffs in favour of defendant No.1 and defendant No.1 executed the registered sale deed in favour of defendant Nos.2 and 3 and the plaintiffs have admitted that the mother being a manager of the family has sold the property for family and legal necessity. The sale deed executed by the mother of the plaintiffs is binding on the plaintiffs. The first Appellate Court, on re-assessment of all the evidence on record, rightly passed the impugned judgment. In view of the above discussion, I answer substantial questions of law in the affirmative, holding that the findings recorded by the first Appellate Court are just and proper and do not call for any interference.
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NC: 2024:KHC:41198 RSA No. 1008 of 2014
18. In view of the above discussion, I proceed to pass the following:
ORDER The appeal is dismissed.
The judgment and decree passed in
R.A.No.44/2013 is confirmed.
No order as to the costs.
Sd/-
(ASHOK S. KINAGI)
JUDGE
SKS, SSB