Karnataka High Court
Eshwarappa S/O Basappa Kabinad vs Parwatawwa W/O Sharanappa ... on 9 June, 2014
Author: A.V.Chandrashekara
Bench: A.V.Chandrashekara
1 RFA No.1238/2005
C/W RFA No.1642/2005
IN THE HIGH COURT OF KARNATAKA,
DHARWAD BENCH
DATED THIS THE 9TH DAY OF JUNE 2014
BEFORE
THE HON'BLE MR. JUSTICE A.V.CHANDRASHEKARA
RFA No.1238/2005 (PAR)
C/W
RFA No.1642/2005
IN RFA No.1238/2005
BETWEEN:
1. ESHWARAPPA S/O BASAPPA KABINAD,
SINCE DECEASED BY L.RS.
1a. ERAMMA W/O ESHWARAPPA KABINAD,
AGE: YEARS, R/O KUDRIMOTHI, TQ.YALBURGA.
1b. SHAKUNTALA W/O BASAPPA GANAWARI,
AGE: YEARS, R/O GANGAVATHI,
TQ.GANGAVATHI.
1c. SARVAMANGALA W/O GAVISIDDAPPA,
AGE: YEARS, R/O GANGALPUR,
DIST: BELLARY.
2. PRABURAJ S/O ESHWARAPPA KABINAD,
AGE: YEARS, OCC: AGRIL. & EMPLOYEE,
R/O KUDRIMOTHI, NOW AT GANGAVATHI,
TQ.GANGAVATHI.
... APPELLANTS
(BY SRI.CHANDRASHEKAR P.PATIL, ADV.)
2 RFA No.1238/2005
C/W RFA No.1642/2005
AND:
1. PARWATAWWA W/O SHARANAPPA PATTANSHETTI,
MAJOR, OCC: AGRIL. R/O KUSHTAGI,
TQ.KUSHTAGI, DIST: KOPPAL-584121.
2. KANAKAPPA S/O YAMANAPPA DODDAMANI,
MAJOR, AGRIL. R/O KUDRIMOTHI,
TQ.YELBURGA, DIST: KOPPAL-584123.
3. HANAMAPPA S/O YAMANAPPA DODDAMANI,
MAJOR, AGRIL. R/O KUDRIMOTHI,
TQ.YELBURGA, DIST: KOPPAL-584123.
4. JAMBAPPA S/O YAMANAPPA DODDAMANI,
MAJOR, AGRIL. R/O KUDRIMOTHI,
TQ.YELBURGA, DIST: KOPPAL-584123.
5. BASAPPA S/O YAMANAPPA DODDAMANI,
MAJOR, AGRIL. R/O KUDRIMOTHI,
TQ.YELBURGA, DIST: KOPPAL-584123.
... RESPONDENTS
(BY SRI.B.SHARANABASAWA, ADV. FOR R1,
NOTICE TO R2-R5 SERVED)
THIS APPEAL IS FILED UNDER SECTION 96 OF CPC
AGAINST THE JUDGMENT AND DECREE DATED 07.11.2001
PASSED IN O.S.No.14/1996 ON THE FILE OF THE CIVIL JUDGE
(SR.DN.), KOPPAL, DECREEING THE SUIT FOR PARTITION AND
SEPARATE POSSESSION.
IN RFA No.1642/2005
BETWEEN:
SMT.PARVATEWWA,
W/O SHARANAPPA PATTANSHETTY,
AGE: MAJOR, OCC: AGRICULTURE,
R/O KUSHTAGI, KOPPAL DISTRICT.
...APPELLANT
3 RFA No.1238/2005
C/W RFA No.1642/2005
(BY SRI.B.SHARANABASAWA, ADV.)
AND:
1 ESHWARAPPA BASAPPA KABBINAD,
SINCE DECEASED BY HIS L.RS.
a. ERAMMA W/O ESHWARAPPA KABBINAD,
AGE: MAJOR, AGRIL. R/O KUDRIMOTHI,
TQ.YALBURGA, KOPPAL DISTRICT.
NOW R/O PRASHANTHANAGAR,
GANGAVATHI-583227, DIST: KOPPAL.
b. SHANKUNTALA,
W/O BASAPPA GANAVARI,
MAJOR, AGRIL. R/O GANGAVATHI, KOPPAL DISTRICT,
OPP. TO ANJANEYASWAMY TEMPLE,
BEHIND BUS DEPOT, KOTRESHWARA COLONY,
GANGAVATHI - 583227, DIST: KOPPAL.
c. SARVAMANGALA, W/O GAVISIDDAPPA,
AGE: MAJOR, R/O GANGALPUR-583119,
TQ.SANDUR, BELLARY DISTRICT.
2. PRABHURAJ S/O ESHWARAPPA KABBINAD,
MAJOR, OCC: AGRICULTURE,
WORKING AT APMC, GANGAVATHI - 583227.
R/O KUDRIMOTHI, NOW AT GANGAVATHI,
KOPPAL DISTRICT.
3. KANAKAPPA, S/O YAMANAPPA DODDAMANI,
AGE: MAJOR, R/O KUDRIMOTI,
YELBURGA TALUK-583236, KOPPAL DISTRICT.
4. HANMAPPA S/O YAMANAPPA DODDAMANI,
AGE: MAJOR, R/O KUDRIMOTI,
YELBURGA TALUK-583236, KOPPAL DISTRICT.
5. JAMBAPPA S/O YAMANAPPA DODDAMANI,
AGE: MAJOR, R/O KUDRIMOTI,
4 RFA No.1238/2005
C/W RFA No.1642/2005
YELBURGA TALUK-583236, KOPPAL DISTRICT.
6. BASAPPA S/O YAMANAPPA DODDAMANI,
AGE: MAJOR, R/O KUDRIMOTI,
YELBURGA TALUK-583236, KOPPAL DISTRICT.
...RESPONDENTS
(BY SRI.CHANDRASHEKAR P.PATIL, ADV FOR R1A-C & R2-R6)
THIS APPEAL IS FILED UNDER SECTION 96 OF CPC
AGAINST THE JUDGMENT AND DECREE DATED 07.11.2001 IN
O.S.NO.14/96 ON THE FILE OF THE CIVIL JUDGE (SR.DN.) AT
KOPPAL, DECREEING THE SUIT FOR PARTITION AND
POSSESSION.
THESE APPEALS COMING ON FOR FINAL HEARING THIS
DAY, THE COURT DELIVERED THE FOLLOWING:
JUDGMENT
Both these appeals have been filed under Section 96 of CPC challenging the judgment and decree passed in O.S.No.14/1996 by the learned Senior Civil Judge at Koppal. Plaintiff Smt.Parvatewwa in the said suit has filed appeal in RFA No.1642/2005. Defendant Nos.1a to 1c, the legal representatives of deceased defendant No.1-Eshwarappa, have filed connected appeal in RFA No.1238/2005. Defendant No.2-Prabhuraj has joined legal representatives of deceased defendant No.1 in filing the appeal in RFA 5 RFA No.1238/2005 C/W RFA No.1642/2005 No.1238/2005. The said suit has been decreed granting 1/3rd share to the plaintiff in all the suit properties.
2. Deceased defendant No.1-Eshwarappa is the only brother of the plaintiff. He died during the pendency of the appeal and his wife and children have come on record. Defendant No.2 is the son of deceased defendant No.1- Eshwarappa. He is aggrieved insofar as it relates to the grant of 1/3rd share to the plaintiff. According to him, item Nos.2 and 3 have been sold by him and his father for legal necessity, as Eshwarappa was having serious medical problems and therefore, substantial amount of money was spent for his cardiac treatment in Jaidev Hospital at Bangalore. According to the plaintiff, all the schedule properties are the self-acquired properties and therefore she is entitled for half share. Defendant Nos.2 and 3 had taken up a specific stand that they are absolute owners of the suit schedule properties. According to them, item Nos.2 and 3 6 RFA No.1238/2005 C/W RFA No.1642/2005 were sold for family necessity. Therefore, plaintiff is not entitled for any share.
3. Defendant Nos.3 to 6 have purchased item Nos.2 and 3 through four separate sale deeds for total consideration of Rs.2,44,000/-. According to them, they are bone fide purchasers for value after making valid enquiries about the existence of the family necessity. They have further averred that suit is not maintainable as all the joint family properties are included in this suit. They have alternatively averred that in case suit were to be decreed, the properties so purchased by them be allotted to their vendor, i.e., defendant No.2 son of deceased defendant No.1. On the basis of the above pleadings, following issues came to be framed.
i) Does plaintiff prove that she had got half share in all the suit schedule properties?
ii) Does defendant Nos.1 and 2 prove that they are the exclusive owners of the suit schedule properties?7 RFA No.1238/2005 C/W RFA No.1642/2005
iii) Do the defendant Nos.1 and 2 prove that the suit properties are sold for family necessity?
iv) To what shares they parties are entitled?
v) What order or decree?
Additional issues:
i) Do defendant Nos.3 to 6 prove that they have
purchased the suit properties i.e., Sy.No.80/c and 81/e under the registered sale deeds after enquiring about the necessity of the vendor for the valuable consideration, hence in the event of partition these properties be allotted to the share of their vendor?
ii) Do the defendant Nos.3 to 6 prove that this suit is not maintainable as all the joint family properties are not included in this suit?
4. Smt.Parvatewwa herself is examined as P.W.1 and she has got marked 13 exhibits on her behalf. Defendant 8 RFA No.1238/2005 C/W RFA No.1642/2005 No.2 is examined as D.W.1 and defendant No.5-Jambappa is examined as D.W.2 and 15 exhibits have been got marked on their behalf. Ultimately, the trial Court has held that plaintiff is entitled for 1/3rd share and defendant Nos.1 and 2 are not the exclusive owners of the suit schedule properties. Issue No.3 in regard to the sale of two items of land for family necessity has been held in the affirmative. Additional issue No.1 is held in the affirmative and additional issue No.2 in the negative. Ultimately, suit came to be decreed granting 1/3rd share in all the suit schedule properties to the plaintiff. It is this judgment which is called in question by defendant No.2 and legal representatives of deceased defendant No.1 in RFA No.1238/2005. Similarly, plaintiff has filed RFA No.1642/2007 on the ground that she is entitled for half share in all the suit schedule properties instead of 1/3rd share. Several grounds have been urged in the appeal memos filed under Section 96 of CPC.
9 RFA No.1238/2005C/W RFA No.1642/2005
5. In RFA No.1238/2005, it is contended that there was absolute necessity for defendant No.2 and deceased defendant No.1 to sell the suit schedule properties, more particularly defendant No.1 had serious heart problems. It is further contended that first defendant had to be taken to Jayadeva Institute of Cardiology at Bangalore several times and huge amount was spent for his treatment and in spite of treatment from February 2006 to June 2006, first defendant died. Therefore, it is contended that alienation of item nos.2 and 3 as described in the schedule is for the legal necessity of the family more particularly to look after the health of his father who was the manager of the joint family.
6. It is contended in the connected appeal R.F.A. No. 1642/2005 that all the schedule properties were self acquired properties of her father and therefore, half share should have been granted to her instead of 1/3 is calculated notionally. It is further contended that, no acceptable evidence is placed on record by the defendants to show that schedule properties 10 RFA No.1238/2005 C/W RFA No.1642/2005 were the ancestral properties of deceased first defendant. Hence it is prayed to allow the appeal.
7. Both the learned counsel appearing for the parties in the appeals have submitted their arguments. Perused the records of the trial Court and the appeal memorandum. On perusal of the same, the following points arise for consideration of this Court.
1) Whether the schedule properties are the ancestral properties of deceased Basappa, father of plaintiff and first defendant?
2) Whether there was absolute necessity for alienation of item nos.2 and 3 for legal necessity of the joint family?
3) What exactly should be share of the parties in this case?
4) Whether any interference is called for by this Court and if so to what extent?
---
8. Point No.1: In all 11 items of properties described in the schedule appended to the plaint. Item nos.1 to 10 are the agricultural lands and item no.11 is a house bearing no. 287 in Ward No.2 of Kudarimothi village of Yellapur Taluk. Item nos.2 and 3 have been purchased by defendant nos.2 to 6 through different sale deeds dated 09.02.1996 vide Ex.D.12 to 11 RFA No.1238/2005 C/W RFA No.1642/2005 D.15 for a consideration of Rs.66,500/-, Rs.66,500/-, Rs.55,500/- and Rs.55,500/- respectively. The extent of remaining eight items of lands is 12 acres 34 guntas. Plaintiff has furnished RTCs of the schedule lands and they are marked as Ex.P.1 to Ex.P.5. Name of Eshwarappa, deceased first defendant is found in column no.9 and nature of acquisition is shown as pattadar. Plaintiff who is examined as P.W.1 has deposed that all the schedule properties came to her father from his father. In para no.2 of the plaint she has specifically averred that Basappa son of Shivappa was the exclusive owner and possessor of the suit schedule properties and they were his self acquired properties. The defendants have specifically denied the said averment.
9. In her examination in chief also P.W.1 has deposed that all the schedule properties are the self acquired properties of her father and that she is in joint possession of the same with her brother, the first defendant. But her assertion that the schedule properties were the self acquired 12 RFA No.1238/2005 C/W RFA No.1642/2005 properties of her father has not been challenged while cross examining her in any manner. Even in the written statement filed by deceased first defendant, there is no specific stand that the schedule properties are the ancestral properties of his father. Even in his examination in chief D.W.1 has not even whispered that these schedule properties were the ancestral properties of his father. The entire examination in chief and cross examination is focused more towards the amount spent for the treatment of Eshwarappa and the existence of family necessity and the properties inherited by plaintiff and defendants from their mother Basavannemma.
10. Even D.W.2 Jambappa who is examined in support of defendant nos.3 to 6 has not deposed that these properties were the ancestral properties of Basappa. His main focus is on the existence of family necessity more particularly the serious ailments of Basappa and the amount spent by second defendant towards the treatment and the incidental expenses incurred in connection with the 13 RFA No.1238/2005 C/W RFA No.1642/2005 treatment at Bangalore. This aspect of the matter has not been properly considered by the trial Court. If the properties are held to be the self acquired properties of deceased Basappa, then plaintiff will be entitled for half share. If properties are held to be ancestral properties of deceased Basappa, the properties will be divided into two shares and one notional share will be allotted to Basappa and out of that one notional share, the plaintiff will be entitled to only half share. Suffice to state that the trial Court has not assessed the evidence in right perspective and therefore the negative finding given by the trial Court on issue no.1 is incorrect. It should have held that that the schedule properties are the self acquired properties of deceased Basappa.
11. The stand of the deceased defendant no.1 is that at the time of the marriage of the plaintiff 15 tolas of gold and Rs.1,200/- had been given in lieu of her share and therefore she is not entitled for any share in the properties. But defendants have not been able to probabalise the same even 14 RFA No.1238/2005 C/W RFA No.1642/2005 remotely. What is observed by the trial Court is that, except the self serving statement of P.W.1 there is nothing on record to show that the properties are the self acquired properties of her father. In a civil case, evidence will be assessed on the touchstone of intrinsic probabilities. Proof beyond reasonable doubt as is expected in criminal cases is not required in civil cases. Plaintiff who is examined as P.W.1, has asserted that all the schedule properties are the self acquired properties of her father. Her assertion found in the examination in chief not at all challenged. Even otherwise, defendants have nowhere taken a stand in their written statement that the properties were the ancestral properties of deceased Basappa. Even D.W.1 and 2 have not asserted in their examination in chief or cross-examination that these properties were ancestral properties of Basappa. Therefore, on the basis of preponderance of probabilities and the incorporation of the name of Eshwarappa as the khatadar consequent upon the death of his father to the land, should be considered as self acquired properties of deceased Basappa. If the properties in 15 RFA No.1238/2005 C/W RFA No.1642/2005 question were really the ancestral properties of Basappa and had been inherited by deceased first defendant as the eldest son, in column no.10, nature of acquisition would have been mentioned as "Pitrarjita" (ancestral). No such entries are found in column no.10 of the RTCs marked as Ex.P.1 to 5.
12. On a conjoint reading of the documentary and oral evidence and on reassessing the entire evidence afresh, it is certain that the schedule properties were the self acquired properties of deceased Basappa.
13. Point No.2: Admittedly, Basappa was the father of plaintiff and deceased first defendant. No partition had taken place during his lifetime. After his death, plaintiff and defendant became co-sharers. During the lifetime of Basappa item nos.2 and 3 were sold through four registered sale deeds vide Ex.D.12 to 15 for a total consideration of Rs.2,44,000/- on 09.02.1996. The defendants have placed materials in the form of medical bills and medical documents to establish that Eshwarappa was suffering from serious heart ailments and 16 RFA No.1238/2005 C/W RFA No.1642/2005 therefore he had been admitted in Jayadeva Institute of Cardiology, a branch of Victoria Hospital Complex for treatment. He had been admitted in the month of February 1996 for treatment and was discharged on 29.04.1996. Medical bills which have been marked as Ex.D.1 are 4 in number and they speak about the some purchase of medicine for his treatment. They are all medical bills issued by Prasad Medicals situated opposite to Vani Vilas Hospital to the Cardiology unit. On 16.03.1996 a sum of Rs.175/- had been paid by Eshwarappa for some TMT treatment. A sum of Rs.150/- was paid on 15.03.1996, Rs.200/- was paid on 15.03.1996 for eco examination. On 23.05.1996 Rs.50/- was paid for some treatment. Rs.5,000/- was paid on 25.04.1996 as advance. Similarly, Rs.25,000/- was paid on 25.05.1996 as further advance, Rs.1,038/- was paid on 25.04.1996 as hospital charges; Rs.10,000/- was paid on 10.06.1996 as further advance and on 19.06.1996 a sum of Rs.4,087/- was paid as hospital charges. These are all supported by valid slips and they are marked as exhibits. Ex.D.6 is the 17 RFA No.1238/2005 C/W RFA No.1642/2005 discharge certificate issued on 29.04.1996 having discharged Eshwarappa, the deceased, from the hospital after availing treatment.
14. A sum of Rs.6,038/- was paid on 20.04.1996 as hospital charges. A sum of Rs.39,087/- was paid as further hospital charges on 23.05.1996. He ultimately expired on 09.06.1996 at 09.45 p.m. Even if all the medical bills put together, the amount will not exceed Rs.1,00,000/-. But we cannot forget that he had to be taken to Bangalore several times and incidental expenses had to be incurred for his treatment. In a city like Bangalore, the attendants will have to pay amount for their daily food and for lodging and travelling expenses.
15. Even otherwise, Eshwarappa's daughter's marriage had been performed earlier to the sale deed and in this regard a sum of Rs.1,00,000/- had been availed. Except the agriculture, the deceased first defendant had no 18 RFA No.1238/2005 C/W RFA No.1642/2005 avocation. Even the first defendant's son, i.e., second defendant, had no avocation other than agriculture.
16. Defendant nos.3 to 6 have purchased the lands on 09.02.1996 and they made bonafide enquiry and this is borne out from the medical records and slips produced by defendant no.2 in the trial Court. Therefore, the stand of the defendant nos.3 to 6 that they had made bonafide enquiry about the existence of family necessity, is borne out of the records. This Court in the decision of Muniyappa Vs. Ramayya (AIR 1996 KAR 321) has specifically held that, as a manager of the joint family, kartha is entitled to alienate the joint family property inclusive of the rights of other coparceners. In such an event, the only remedy is to file a suit for partition and recover possession of respective sharer and alienee can continue his possession until it is properly availed. Paragraph no.12 of the said decision is relevant and the same is extracted below:
"The manager of a Joint Hindu Family is entitled to alienate the joint Family property for joint family necessity or for the benefit of the estate, in certain 19 RFA No.1238/2005 C/W RFA No.1642/2005 circumstances. Whether the manager is the father or not, will not make any difference. If such an alienation is made by the manager of the Joint Hindu Family of joint family property, the sale would bind not only his share in the property but the share of the other coparceners as well. No doubt, the other coparceners may be entitled to file a suit for partition and recover their share if the alienation was not for family necessity or for the benefit of the estate. The burden in such cases will also lie on the alienee to prove family necessity or the benefit to the estate to uphold the alienation by the manager. But that right of a coparcener does not affect competency of the manager to alienate the joint family property. When once such alienation is made, the alienee is entitled to be in possession of the property and right of any other coparcener is to sue for partition and recover possession of his share in the joint family properties. The sale being only voidable unless it is avoided by an action, the alienee is entitled to continue in possession. The position may be different if one coparcener alienates his share alone, but once the alienation is made by the manager of the property, it will be effective until it is properly avoided by the non-alienating coparcener by filing a suit for partition."
---
17. The burden cast upon the alienee in the present case has been effectively discharged by producing the sale deeds marked as Ex.D.12 to 15 and the medical documents relating to the treatment of deceased first defendant for his severe heart ailment in Jayadeva Institute of Cardiology of 20 RFA No.1238/2005 C/W RFA No.1642/2005 Bangalore. It is also forthcoming from the evidence of the parties that Eshwarappa had to perform marriage of his daughter when he was hale and healthy and he wanted money and therefore the sale consideration mentioned in Exs.D.12 to 15 is inclusive of the amount availed by him from defendant nos.3 to 6 at the time of performing the marriage of his daughter.
18. Suffice to state that the trial Court has rightly held that there was legal necessity for the family and therefore the alienation made by defendant nos.12 to 15 is valid. Inspite of this, the trial Court has decreed the suit in its entirety granting half share in the properties alienated in favour of defendant nos.3 to 6 also. Inspite of this, the trial Court has held that she has got 1/3rd share in respect of these properties alienated in favour of defendant nos.3 to 6 and the same is not proper and correct. This could not have been decreed against the defendants in respect of item nos.2 and 3 alienated for the purpose of family necessity borne out. Hence point no.2 is answered in the affirmative. 21 RFA No.1238/2005 C/W RFA No.1642/2005
19. Point Nos.3 and 4: In view of the fact that the properties are the self acquired properties of deceased Basappa, plaintiff has succeeded to half share and the deceased first defendant to an extent of half share. As already discussed item nos.2 and 3 will have to be left out from the decree. In respect of other eight items measuring 12.34 acres, decree will have to be granted holding that plaintiff is entitled for half share pertaining to item nos.1 and 4 to 11 inclusive of schedule house. To this extent, interference is called for pertaining to both the suits. Accordingly, both the appeals will have to be allowed as under:
ORDER Appeals filed u/S 96 of CPC are allowed. Judgment and decree of the trial Court is modified holding that the plaintiff-
Parvathavva is entitled for half share in item nos.1 and 4 to 11 inclusive of the house and the defendant nos.1(a) to (c) and 2 have to render accounts. There shall be no decree in respect of item nos.2 and 3 against the defendants and the 22 RFA No.1238/2005 C/W RFA No.1642/2005 suit stands dismissed as against all the defendants in respect of item nos.2 and 3.
Office to draw amended decree accordingly. There shall be preliminary decree as contemplated u/S 54 r/w Order 20 Rule 18 of CPC.
Prayer for mesne profits is rejected since in a suit for partition and separate possession, no mesne profits shall be awarded under Order 20 Rule 12 of CPC. However, there shall be a direction to render accounts under Order 20 Rule 18 of CPC r/w Sec. 54 of CPC.
Office to keep original judgment in R.F.A. No. 1238/2005 and a copy in the connected R.F.A. No. 1642/2005.
Taking into facts and circumstances of the case and the relationship of the parties there is no order as to costs.
Sd/-
JUDGE.
MBS/BVV