Karnataka High Court
Sri Shivanand S/O. Mallikarjunayya And ... vs Sumangala W/O Mallikarjunaya ... on 15 November, 2022
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IN THE HIGH COURT OF KARNATAKA
KALABURAGI BENCH
DATED THIS THE 15TH DAY OF NOVEMBER, 2022
BEFORE
THE HON'BLE MR. JUSTICE SACHIN SHANKAR MAGADUM
RSA NO.200237/2016 (PAR)
BETWEEN:
1. SRI SHIVANAND
S/O MALLIKARJUNAYYA
GANCHINAMATH
SINCE DECEASED BY HIS LRS
1A. PURVIKA W/O SHIVANAND
GACHCHINAMANTH
AGED ABOUT 41 YEARS,
OCC:HOUSEHOLD WORK
1B. TEJASWINI D/O. SHIVANAND
GACHCHINAMANTH
AGED ABOUT 14 YEARS
OCC:NIL
1C. AKASH S/O. SHIVANAND
GACHCHINAMANTH
AGED ABOUT 12 YEARS
OCC:NIL
1D. VINAY S/O SHIVANAND
GACHCHINAMANTH
AGED ABOUT 10 YEARS
OCC: NIL
THE APPELLANTS NO.1B TO 1D
ARE MINORS REP BY THEIR
MOTHER GUARDIAN/APPELLANT-1A
2
ALL ARE R/O. MATHAPATHI GALLI
VIJAYAPUR
2. SUREKHA
W/O MAHANTESH HIREMATH
AGED ABOUT 35 YEARS,
OCC:HOUSEHOLD WORK
R/O. ADARSH NAGAR, VIJAYAPUR
TQ. & DIST. VIJAYAPUR
3. SANTOSH S/O MALIKARJUN
GACHCHINAMANT
AGED ABOUT 32 YEARS,
OCC:BUSINESS
R/O. MATHAPATHI GALLI,
VIJAYAPUR
...APPELLANTS
(BY SRI S. S. MAMADAPUR, ADVOCATE)
AND:
1. SUMANGALA W/O MALLIKARJUNAYA
GACHCHINAMANTH
AGED ABOUT 58 YEARS,
OCC:HOUSEHOLD WORK
R/O MAHTAPATI GALLI
VIJAYAPUR-586101
2. RAJASHEKHAR S/O. SHIVAYOGAPPA
BAGALKOT AGED ABOUT 47 YEARS,
OCC: PENSIONER
R/O. H.NO.168, LIG KHB COLONY
SOLAPUR ROAD,
VIJAYAPUR-586101
3. RATNA CHUDAMANI
S/O SAYABANNA UTNAL
3
AGED ABOUT 73 YEARS,
OCC: PENSIONER
R/O. VIDYA NAGAR,
GRAH NIRMAN SANGH
NEAR AMBABHAVANI TEMPLE,
VIJAYAPUR-586101.
...RESPONDENTS
(BY SRI SHIVASHANKAR H. MANAPUR, ADVOCATE FOR
R2;
R1 & R3 ARE SERVED)
THIS RSA IS FILED UNDER SECTION 100 OF CPC
PRAYING TO ALLOW ABOVE REGULAR SECOND APPEAL
AND SET ASIDE THE IMPUGNED JUDGMENT AND DECREE
DATED 06.04.2016, PASSED IN R.A.NO.20/2013 ON THE
FILE OF THE PRINCIPAL DISTRICT JUDGE, AT-VIJAYPUR,
DISMISSING THE APPEAL AND CONFIRMING THE
JUDGMENT AND DECREE DATED 21.01.2013, PASSED IN
O.S.NO.220/2005 ON THE FILE OF THE II ADDL. SENIOR
CIVIL JUDGE AT-BIJAPUR.
THIS RSA IS COMING ON FOR ADMISSION THIS
DAY, THE COURT DELIVERED THE FOLLOWING:
JUDGMENT
With consent of learned counsel for the parties, the appeal is taken up for final hearing as the suit is of the year 2005.
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2. The captioned second appeal is filed by the unsuccessful plaintiffs questioning the concurrent judgment and decree of the Courts below wherein plaintiffs' suit for partition and separate possession is dismissed by both the Courts.
3. For the sake of brevity, the parties are referred to as per their rank before the trial Court.
4. The family tree of the parties is as under:
Mallikarjunayya (Def-1) | (Sumangala) (Def-2) |
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| | | Shivanand Surekha Santosh (Plt.1) (Plf.2) (Plf.3)
5. The present suit is filed by the plaintiffs who are the sons and daughter of defendant Nos.1 and 2. The present suit is filed by the plaintiffs by 5 claiming that they have got 1/5th share in the suit schedule properties. The plaintiffs claimed that suit schedule properties are joint family ancestral properties. The plaintiffs alleged that the defendant No.1 is addicted to vices and is mismanaging the suit schedule properties and therefore, demanded their legitimate share in the month of July, 2005. It is further alleged that defendant No.1 refused to effect partition and give plaintiffs their legitimate share.
This compelled plaintiffs to verify the revenue records and on verification they found that suit item No.1 bearing Sy.No.113/2 was sold by defendant No.1 in favour of defendant Nos.3 and 4. The plaintiffs claimed that defendant No.1 has sold item No.1 without there being legal necessity. The plaintiffs further claimed that defendant No.1 sold agricultural land to meet the expenses of his vices and therefore, claimed that the alienation made by the defendant 6 No.1 is not binding on the plaintiffs legitimate share and hence, filed the present suit for partition and separate possession.
6. On receipt of summons, the defendant Nos.1 and 2 did not contest the proceedings and were placed exparte, while defendant No.3 who is the purchaser filed written statement and stoutly denied the entire averments made in the plaint. The defendant No.3 contended that suit land bearing Sy.No.113/1B was allotted to defendant No.1's share in a family partition effected in 1982. The defendant No.3 claimed that defendant No.1 who was acting as a kartha and had availed loan from Veejapur Co- operative Society as well as from PLD Bank, who had incurred expenses for having renovated the existing old well in the suit land was compelled to sell the land. The defendant No.3 further contended that though defendant No.1 made several attempts to grow cash 7 crops and tried to repay the loan, however, on account of draught, the defendant No.1 was not in a position to repay the loan. Therefore, under compelling circumstances, defendant No.1 to clear the loan was forced to sell a portion of the loan in favour of defendant No.3 and accordingly, executed sale deed on 28.07.1989. The defendant No.3 claimed that sale was on behalf of joint family members and the same was for legal necessity. The defendant No.3 also contended that he has made reasonable enquiry in regard to the legal necessity and thereafter he has purchased for sale consideration of Rs.20,000/-. The defendant No.3 further specifically contended that suit is barred by limitation as the suit is not filed within 12 years.
7. Defendant No.4 on similar line, has also taken same contention contending that alienation was 8 for legal necessity and therefore, he also claimed to be bonafide purchaser for valuable consideration.
8. The plaintiffs and defendants to substantiate their claim let in oral and documentary evidence.
9. The trial Court having examined oral and documentary evidence referring to the recitals in the sale deed held that defendant No.1 who is the kartha of the plaintiffs' family has alienated for legal necessity. While examining additional issue No.4 relating to limitation, trial Court having examined the school certificate of plaintiffs vide Exs.P-7 to P-9 was of the view that the plaintiffs who were quite aware of the alienation have not brought in a suit for partition within 12 years as contemplated under Article 109 of Limitation Act. The trial Court while answering additional issue No.4 in the affirmative and against the plaintiffs has come to conclusion that though 9 plaintiffs were minors at the time of alienation, however, they have not filed suit for partition within three years of attaining majority and therefore, the trial Court proceeded to dismiss the suit as barred by limitation.
10. The Appellate Court being final fact finding authority has independently assessed oral and documentary evidence. The Appellate Court referring to Exs.D-6 and D-8 found that there is a recital that defendant No.1 has offered to sell the suit land on account of legal necessity. The Appellate Court has also examined the other material on record and having come to conclusion that though plaintiffs have attributed serious allegations against defendant No.1 that he was addicted to vices, Appellate Court however was of the view that said allegations are not substantiated by plaintiffs. One more relevant factor which has gone against the plaintiffs is that admission 10 elicited in cross-examination of PW.1. PW.1 has admitted in unequivocal terms that plaintiffs and defendant Nos.1 and 2 are all found to be residing in the same house. Therefore, Appellate Court held that at the time of filing of the suit and even at the time of marriage of plaintiff No.2, the material on record clearly reveals that plaintiffs and defendant Nos.1 and 2 were all residing together under one roof. It is in this context, the Appellate Court was not inclined to interfere with the judgment and decree of the trial Court.
11. These concurrent findings are under challenge.
12. Heard learned counsel appearing for the plaintiffs and learned counsel appearing for the defendants. Perused the concurrent findings of the Courts below.
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13. This Court has formulated the following substantial questions of law:
1) Whether the Appellate Court having held that the relief of partition in respect of agricultural land bearing Sy.No.113/2 is barred by limitation erred in dismissing the suit even in respect of residential house bearing CTS.No.351/C which is joint family ancestral property and the same is available for partition?
2) Whether both the Courts were justified in dismissing the suit as barred by limitation insofar as agricultural land is concerned?
Re: Point No.1:
14. Though both the Courts were justified in dismissing the suit as barred by limitation insofar as agricultural land is concerned which was the subject matter of alienation in 1989, this Court is unable to understand as to how both the Courts could have 12 dismissed the suit even in respect of second item i.e., property bearing CTS No.351/C. Admittedly CTS.No.351/C was not the subject matter of alienation. It has come in evidence that plaintiffs and defendants are residing together in ancestral house. Therefore, if the relief of partition is barred by limitation in respect of alienated property, that would not take away the rights of the plaintiffs in a residential house. Therefore, this Court is of the view that both the Courts erred in dismissing the suit insofar as residential house is concerned. The concurrent findings of the Courts below in declining a share in the residential house suffers from serious perversity.
15. The defendant No.1 died during the pendency of the suit. The parties are governed under the Bombay School of law as the parties are residents of Bijapur District to which the Bombay school is 13 applicable. The residential house is also ancestral property and there is no dispute in that regard. After the death of defendant No.1, plaintiffs and defendant No.2 are entitled for equal share in the residential house. The plaintiffs are entitled for 1/4th share each while defendant No.2 is also entitled for 1/4th share. Accordingly, point No.1 is answered in the affirmative. Re: Point No.2:
16. It is trite law that Kartha has a wide discretion to deal with ancestral property. Admittedly, alienations are of the year 1989 and the sons have filed suit for partition in 2005. This Court has to also look into the conduct of defendant No.1 who has not chosen to contest the proceedings. The defendant No.1 is placed exparte. Therefore, all these significant details would only lead to one inference that this is a collusive suit filed by children attributing false allegations against their father i.e., defendant No.1 14 and these serious allegations are not countered by defendant No.1 who is the father. After long lapse of time, the alienee cannot be called upon to explain and give minute details relating to legal necessity which prompted kartha to sell the ancestral property. It would be too harsh on an alienee after lapse of 25 to 26 years to give evidence in regard to existence of legal necessity which compelled Kartha to sell the property. Therefore, the recitals in the sale deed would carry presumptive value. Whereas partition suit is filed by non-alienating co-parceners after lapse of considerable time.
17. The recitals as to legal necessity in documents are not by themselves proof of facts asserted, provided sale deed is challenged at or near the time of execution, when independent evidence is available and alienee is in a position to place on record the material relating to legal necessity. But if by lapse 15 of time, all those tangible evidence, which were available at the time of execution of sale deed may not be available to the alienee when alienation is questioned by the transferee's family after lapse of time. In such a case the recital is clear evidence of the representation to the alienee, as to the existence of the necessity and if the circumstances are such which would probabilise the case of alienee, that alienation by the Kartha was for legal necessity, the recital in the sale deed coupled with the circumstances would be sufficient evidence to support the deed.
18. It is a trite law that a recital consistent with the probability and circumstances of the case, assumes greater importance and cannot lightly be set aside; for it should be remembered that the actual proof of necessity which justified the sale deed is not essential to establish its validity. It is only necessary that a representation should have been made to the 16 purchaser that such necessity existed, and that the alienee should have acted honestly and made proper enquiry to satisfy himself of its truth. Therefore, recitals in the sale deed after lapse of time would play significant role when proof of actual enquiry has become impossible.
19. In that view of the matter, this Court is not inclined to interfere with the concurrent findings of the Courts below. Accordingly, point No.2 is answered in the affirmative.
20. For the foregoing reasons, I pass the following:
ORDER
(i) The second appeal is allowed in part;
(ii) The preliminary decree passed by the Courts below is partly modified;17
(iii) The suit is decreed insofar as residential house bearing CTS.No.351/C and plaintiffs are awarded 1/4th share each in the residential house;
(iv) The pending interlocutory
application does not survive for
consideration.
Sd/-
JUDGE
CA