Karnataka High Court
G. Hanumantharayappa vs Sri T S Anand on 13 May, 2025
Author: Ravi V Hosmani
Bench: Ravi V Hosmani
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NC: 2025:KHC:18236
RSA No. 2373 of 2010 R
C/W RSA No. 2374 of 2010
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 13TH DAY OF MAY, 2025
BEFORE
THE HON'BLE MR. JUSTICE RAVI V. HOSMANI
REGULAR SECOND APPEAL NO. 2373 OF 2010 (DEC)
C/W
REGULAR SECOND APPEAL NO. 2374 OF 2010 (PAR)
IN RSA NO.2373/2010:
BETWEEN:
1 G. HANUMANTHARAYAPPA,
SINCE DECEASED BY LRs
AMENDED V/O DTD 06.08.2015
1(a) SMT. HANUMAKKA,
W/O LATE G. HANUMANTHARAYAPPA,
SINCE DEAD BY LRs
1 (b) SMT. JAYAMMA,
D/O LATE G. HANUMANTHARAYAPPA,
W/O R G GOWDA,
AGED ABOUT 65 YEARS,
Digitally signed 1(c) SMT. KAMALAMMA,
by
GEETHAKUMARI D/O LATE G. HANUMANTHARAYAPPA,
PARLATTAYA S
AGED ABOUT 49 YEARS,
Location: High
Court of
Karnataka 1(d) SMT. LAKSHMAMMA,
D/O LATE G. HANUMANTHARAYAPPA,
W/O PILLAPPA,
AGED ABOUT 44 YEARS,
ALL ARE R/O TALAGAWARA VILLAGE,
KASABA HOBLI, DODDABALLAPUR TALUK,
BANGALORE RURAL DISTRICT.
...APPELLANTS
[BY SRI VINOD KUMAR B.N., ADVOCATE (PH)]
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NC: 2025:KHC:18236
RSA No. 2373 of 2010
C/W RSA No. 2374 of 2010
AND:
1. SRI T.S. ANAND,
S/O SUBRAMANYA,
AGED ABOUT 39 YEARS,
2. T. SUBRAMANYA,
S/O LATE G THIMMAIH,
AGED ABOUT 60 YEARS,
3. T. RAJANNA, AMENDED V/O DTD 04.03.2024
S/O LATE G. THIMMAIH,
AGED ABOUT 52 YEARS,
DEAD BY HIS LRs
3(a) SMT. RAMAMANI,
W/O LATE T. RAJANNA,
AGED ABOUT 55 YEARS,
3(b) SRI T.R. SRINIVASA,
S/O LATE T. RAJANNA,
AGED ABOUT 31 YEARS,
3(c) SRI T.R.SANTHOSH,
S/O LATE T. RAJANNA,
AGED ABOUT 33 YEARS,
3(d) SRI DAYANANDA,
S/O LATE R. RAJANNA,
AGED ABOUT 33 YEARS,
ALL ARE R/A TALAGAWARA VILLAGE,
DODDABALLAPUR TALUK - 561 203,
BANGALORE RURAL DISTRICT.
4. SMT. SHARADAMMA,
W/O CHENNEGOWDA,
AGED ABOUT 62 YEARS,
R/O KOLURU VILLAGE, KASABA HOBLI,
DODDABALLAPUR TALUK.
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NC: 2025:KHC:18236
RSA No. 2373 of 2010
C/W RSA No. 2374 of 2010
4(a) K.R.CHANNEGOWDA, AMENDED V/O DTD 26.06.2024
H/O SHARADAMMA,
AGED ABOUT 91 YEARS,
4(b) SMT. SUJATHA K.C.,
D/O SHARADAMMA,
AGED ABOUT 60 YEARS,
4(c) SRI NARAYANAPPA K.C.,
S/O SHARADAMMA,
AGED ABOUT 45 YEARS,
4(d) SRI. K.C. CHANNAKESHAVAIAH,
S/O LATE SHARADAMMA,
SINCE DEAD BY HIS LRs
4(e)(i) SMT. KANTHAMMA,
W/O LATE MRUTHANJAYA,
AGED ABOUT 38 YEARS,
4(e)(ii) SRI CHANDANA,
D/O LATE MRUTHANJAYA,
AGED ABOUT 28 YEARS,
4(e)(iii) SRI CHARITH,
S/O LATE MRUTHANJAYA,
AGED ABOUT 24 YEARS,
ALL ARE R/A KOLUR VILLAGE,
KASABA HOBLI, DODDABALLAPURA TALUK.
...RESPONDENTS
[(BY SRI M.S.VARADARAJAN, ADV. FOR SRI K. RAGHUNATHA, ADV.
FOR R1 & R2 (PH)
R3(a - d) ARE SERVED & UNREPRESENTED;
V/O/DTD. 03.03.2023 APPEAL IS DISMISSED
AS AGAINST R3 & R4;
V/O/DTD 04.03.2024 NOTICE TO R4 (a - d) & R4(e)(i-iii) H/S;
V/O/DTD 24.04.2024 R1 IS TREATED AS LR OF DECEASED R2]
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NC: 2025:KHC:18236
RSA No. 2373 of 2010
C/W RSA No. 2374 of 2010
THIS RSA NO.2373/2010 IS FILED U/S. 100 OF CPC AGAINST
THE JUDGEMENT AND DECREE DT. 24.6.2010 PASSED IN
R.A.NO.55/2007 ON THE FILE OF THE PRESIDING OFFICER, FAST
TRACK COURT-III, BANGALORE RURAL DISTRICT, BANGALORE,
DISMISSING THE APPEAL AND CONFIRMING THE JUDGEMENT AND
DECREE DT.20.3.2007 PASSED IN O.S.NO. 163/2003 ON THE FILE
OF THE CIVIL JUDGE (SR.DN), DODDABALLAPUR.
IN RSA No.2374/2010:
BETWEEN:
1 G. HANUMANTHARAYAPPA,
SINCE DECEASED BY LRs
AMENDED V/O DTD 06.08.2015
1(a) SMT. HANUMAKKA,
W/O LATE G. HANUMANTHARAYAPPA,
SINCE DEAD BY LRs
1 (b) SMT. JAYAMMA,
D/O LATE G. HANUMANTHARAYAPPA,
W/O R G GOWDA,
AGED ABOUT 65 YEARS,
1(c) SMT. KAMALAMMA,
D/O LATE G. HANUMANTHARAYAPPA,
AGED ABOUT 49 YEARS,
1(d) SMT. LAKSHMAMMA,
D/O LATE G. HANUMANTHARAYAPPA,
W/O PILLAPPA,
AGED ABOUT 44 YEARS,
ALL ARE R/O TALAGAWARA VILLAGE,
KASABA HOBLI,
DODDABALLAPUR TALUK,
BANGALORE RURAL DISTRICT.
..... APPELLANTS
(BY SRI VINOD KUMAR B.N., ADVOCATE (PH))
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NC: 2025:KHC:18236
RSA No. 2373 of 2010
C/W RSA No. 2374 of 2010
AND:
1 . T SUBRAMANYA
S/O LATE G THIMMAIH,
AGED ABOUT 60 YEARS,
R/O TALAGAWARA VILLAGE,
DODDABALLAPUR TALUK.
2 . T RAJANNA,
S/O LATE G THIMMAIH,
AGED ABOUT 45 YEARS,
R/O TALAGAWARA VILLAGE,
DODDABALLAPUR TALUK - 561 203.
3 . SMT. SHARADAMMA
W/O CHENNEGOWDA,
AGED ABOUT 62 YEARS,
R/O TALAGAWARA VILLAGE,
DODDABALLAPUR TALUK - 561 203.
.... RESPONDENTS
[BY SRI M.S. VARADARAJAN, ADVOCATE FOR
SRI K. RAGHUNATHA, ADVOCATE FOR R1 (PH);
R2 - SERVED & UNREPRESENTED;
V/O DTD 08.01.2019 NOTICE TO R3 IS H/S]
THIS RSA IS FILED U/S. 100 OF CPC AGAINST THE JUDGMENT
AND DECREE DT.24.6.2010 PASSED IN R.A.NO. 27/2003 ON THE
FILE OF THE PRESIDING OFFICER, FAST TRACK COURT-III,
BANGALORE RURAL DISTRICT, BANGALORE, PARTLY ALLOWING THE
APPEAL AND SETTING ASIDE THE JUDGMENT AND DECREE DATED
7.10.2003 PASSED IN O.S.NO. 212/94 ON THE FILE OF THE CIVIL
JUDGE (JR.DN) AND JMFC, DODDABALLAPUR.
THESE APPEALS HAVING BEEN HEARD AND RESERVED FOR
JUDGMENT ON 19.12.2024, THIS DAY, THE COURT PRONOUNCED
THE FOLLOWING:
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NC: 2025:KHC:18236
RSA No. 2373 of 2010
C/W RSA No. 2374 of 2010
CORAM: HON'BLE MR JUSTICE RAVI V HOSMANI
CAV JUDGMENT
Challenging judgment and decree dated 24.06.2010 passed by Presiding Officer, Fast Track Court-III, Bengaluru Rural District, Bengaluru, in R.A.no.55/2003 and judgment and decree dated 20.03.2007 passed by Civil Judge (Jr.Dn) & JMFC, Doddaballapura, in O.S.no.163/2003, RSA no.2373/2010 is filed. While RSA no.2374/2010 is filed challenging judgment and decree dated 24.06.2010 passed by Presiding Officer, Fast Track Court-III, Bengaluru Rural District, Bengaluru, in RA no.27/2003.
2. Brief facts as stated are that appellants in RSA no.2374/2010 were legal representatives ('LRs') of original plaintiff in OS no.212/1994 filed for partition, separate possession and mesne profits insofar as their ½ share in items no.1 to 14 ('suit properties' for short) etc. In plaint, it was stated plaintiff and defendants were members of Hindu Undivided Family ('HUF'), wherein propositus was 'Giriyappa'. He had two sons namely Hanumantharayappa - plaintiff and Thimmayya, who was dead and succeeded by defendants no.1 and 2. It was stated, after death of propositus, plaintiff -7- NC: 2025:KHC:18236 RSA No. 2373 of 2010 C/W RSA No. 2374 of 2010 managed joint family. It was stated, plaintiff had three daughters, who were married and happily residing with their families. As he had no son, he lived with defendants. In year 1980, when plaintiff was hopelessly sick, he requested Thimmayya to manage joint family and suit properties, which were ancestral joint family properties, except item no.6, which was purchased by plaintiff as manager of HUF, in name of Smt.Gowramma w/o Thimmayya, as he was advised ceiling on holding of properties would apply if purchased in his name or his brother. It was stated, Thimmayya managed properties till his death, 4 years prior to suit.
3. Since, plaintiff was old, left management of entire properties to defendants no.1 and 2, he could not seek partition. It was stated, even Smt.Gowramma was suffering from throat cancer due to which her mental/physical faculties were diminishing. Taking advantage of same, defendants no.1 and 2 got executed Will in their favour from Smt.Gowramma in respect of item no.11 property, by undue influence and fraud. Therefore, same was void/vitiated. Only when defendants began negotiating for sale of item no.11 and under Will plaintiff resisted defendants' title over said property. Though on -8- NC: 2025:KHC:18236 RSA No. 2373 of 2010 C/W RSA No. 2374 of 2010 07.08.1994 plaintiff demanded partition, defendants refused his share. Hence, suit was filed.
4. On appearance, defendants filed written statement denying plaint averments and alleging prior partition in year 1990. It was stated, defendant no.3 and LRs of plaintiff had filed OS no.189/1991 for same relief. Said suit was between same parties in respective of same properties and dismissed on 16.06.1998 on ground of non-joinder and mis-joinder of parties. Admitting relationship with plaintiff but denying claim, suppression of fact was alleged. It was stated on death of propositus, plaintiff had taken share from his father and separated from HUF.
5. It was stated, boundaries and description of suit properties were incorrect and non-inclusion of all properties was contended to be fatal to suit. It was stated, description of item no.6 of suit properties was not proper. It was asserted, Smt.Gowramma purchased item no.11 of suit properties in her individual capacity from own her funds and money received from her parents. Therefore, she was its absolute owner and as such justified in bequeathing it under Will dated 09.05.1990 to -9- NC: 2025:KHC:18236 RSA No. 2373 of 2010 C/W RSA No. 2374 of 2010 TS Ananda son of defendant no.1 ('legatee', for short). Thus, plaintiff had no right over said property and despite being aware of Will, plaintiff had failed to seek for its cancellation, which was fatal. It was stated, averments in plaint paras no.6 to 8 were denied by contending that suit was filed without cause of action and Court fee paid was improper. Hence, sought dismissal of suit.
6. Based on pleadings, trial Court framed following issues in OS no.212/1994:
1. Whether the plaintiff proves that they and the defendants constitute joint family?
2. Whether the plaintiff proves that suit schedule properties are their ancestral and joint family properties?
3. Whether the plaintiff proves that item no.6 of the suit property was purchased on behalf of the joint family in the name of Gowramma W/o Thimmaiah the younger brother of deceased plaintiff?
4. Whether the plaintiff proves that, defendants no.1 and 2 have obtained Will in respect of item no.11 of the suit property by exercising undue influence and fraud over Gowramma?
5. Whether the plaintiff proves that, the will executed by Gowramma is null and void?
6. Whether the plaintiff is entitled for 1/2 share in the suit schedule property?
7. Whether the suit is bad for non-joinder of necessary parties?
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NC: 2025:KHC:18236 RSA No. 2373 of 2010 C/W RSA No. 2374 of 2010
8. Whether the suit relief is barred by principles of res-judicata?
9. Whether the suit is not maintainable?
10. Whether the plaintiff is entitled for the suit relief?
11. What order or decree?
7. In trial, plaintiff examined himself and another as PWs 1 and 2 and got marked Exhibits P1 to 19. In rebuttal, defendants no.1, 2 and another were examined DWs 1 to 3 and got marked Exhibits D1 to 29.
8. On consideration, trial Court answered issues no.1, 2, 6, 9 and 10 in affirmative; issues no.3, 7 and 8 in negative; issue no.4 and 5 as not arising for consideration and issue no.11 by decreeing suit, holding plaintiff entitled for half share in partition suit properties.
9. Aggrieved, defendant no.1 filed RA no.27/2003. It was connected with RA no.55/2007 filed against judgment and decree dated 23.07.2007 in OS no.163/2003.
10. Brief facts insofar as OS no.163/2003 was that it was filed by legatee for declaration that he was absolute owner in possession of property bearing Sy.no.12 and 20, totally
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NC: 2025:KHC:18236 RSA No. 2373 of 2010 C/W RSA No. 2374 of 2010 measuring 10 Acres 14 guntas and 10 Acres 38 guntas with common boundaries including kharab, situated at Maralenahalli village, Kasaba Hobli, Doddaballapur Taluk, ('Will property' for short) in pursuance of registered Will dated 09.05.1990 and also to declare judgment and decree dated 07.10.2003 passed by Civil Judge (Jr.Dn.) & JMFC., Doddaballapur, in OS no.212/1994 as not binding on plaintiff insofar as above property etc.
11. In plaint, it was stated legatee was son of T Subramanya ('defendant no.1' in OS no.212/1994) and grandson of Late Thimmayya and Smt.Gowramma. It was stated, defendants no.1 to 4 were wife and children of Late Hanumantharayappa ('LRs of plaintiff' in OS no.212/1994), while legatee's father - defendant no.5, defendants no.6 and 7 were other children of Late Thimmayya. It was stated joint family properties of Late Giriyappa were divided between children of Hanumantharayappa and G Thimmayya in year 1975. Since then they were living separately enjoying respective shares. Such being case, Smt.Gowramma - plaintiff's grandmother purchased property from Nanjundaiah, with consideration money of Rs.6,000/- given by her father, in year
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NC: 2025:KHC:18236 RSA No. 2373 of 2010 C/W RSA No. 2374 of 2010 1976 [said property is included in OS no.212/1994 and hereinafter referred to as 'item no.11 property'). Since then, she enjoyed said property as self-acquired property. It was stated on 07.01.1977, Smt.Gowramma had purchased item no.11 property. It was further stated Smt.Gowramma died on 06.07.1990 at Talagawara village and last rites were performed by plaintiff. Thereafter he came to know about bequeathal and claimed in view of death of testator, legatee became absolute owner of item no.11 property.
12. It was stated, OS no.212/1994 was filed for partition of properties including item no.11 property, without arraying legatee though he was 'necessary party'. In view of same, decree passed in said suit was null and void and not binding on legatee. It was also stated, OS 189/1991 was filed earlier by Sharadamma d/o Thimmayya, was dismissed after contest. But, said suit was decreed and RA no.27/2003 was pending.
13. It was stated, there was attempt to fraudulently deprive legatee's right under Will and there was no basis for claiming item no.11 property as joint family property. It was stated, on death of testator, his name was mutated and
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NC: 2025:KHC:18236 RSA No. 2373 of 2010 C/W RSA No. 2374 of 2010 thereafter he had also filed application for hadbast. Thereafter, survey report was prepared by Surveyor, describing legatee as 'hiduvalidar'. Legatee also claimed to have borrowed loan of Rs.25,000/- on 06.02.1999, Rs.30,000/- on 14.07.2000 and Rs.30,000/- on 06.08.2001 from Corporation Bank, Doddaballapura, which were not yet discharged. Therefore, inclusion of item no.11 property in OS 212/1994 was not justified, and decree passed therein was nullity and not binding on legatee. Hence, suit was filed.
14. On appearance, Jayamma d/o Hanumantharayappa filed written statement denying plaint averments and specifically contending, propositus - Giriyappa owned ancestral and joint family properties. Division of same between his children - Hanumantharayappa and Thimmayya was denied. Even claim about Smt.Gowramma having self-acquired property was denied. It was alleged Will was concocted. Contention about non-arraying was denied by stating that legatee's father - Subramanya was defendant no.1 in OS no.212/1994 and as such represented entire branch of family. Therefore, decree was binding. Claim of loan taken from Corporation Bank, Doddaballapur, execution of sale deed and
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NC: 2025:KHC:18236 RSA No. 2373 of 2010 C/W RSA No. 2374 of 2010 Will were denied/disputed. Said contentions were taken and decided in OS no.212/1994 and cannot be re-agitated again in view of bar of res-judicata. On said ground sought dismissal of suit.
15. Based on pleadings, trial Court framed following issues in OS no.163/2003:
1. Whether plaintiff proves his ownership with possession of suit schedule property under a Regd. Will dated 19.05.1990 executed by his grandmother Smt.Gowramma?
2. Whether plaintiff further proves that decree in OS no.212/94 was fraudulently obtained by the defendant no.1 to 4 behind his back?
3. Whether 3rd defendant proves that plaintiff's suit is barred by the principles of res-judicata?
4. Whether plaintiff's suit valuation and court fee paid is not correct?
5. For what order or decree?
16. In trial, legatee examined himself and three others as PWs.1 to 4 and got marked Exs.P1 to P.38. In rebuttal, Jayamma examined herself as DW.1 and got marked Exs.D1 to D23.
17. On consideration, trial Court answered issues no.1 and 2 in affirmative, issues no.3 and 4 in negative; issue no.5
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NC: 2025:KHC:18236 RSA No. 2373 of 2010 C/W RSA No. 2374 of 2010 by decreeing plaintiff's claim and also declaring that judgment and decree dated 07.10.2003 passed in OS no.212/1994 as null and void.
18. Aggrieved thereby RA no.55/2007 was filed. It was connected with RA no.27/2003. Based on contentions urged in said appeals, first appellate Court framed following points:
1. Whether the appellants in R.A.27/03 have made out ground to permit additional evidence?
2. Whether the trial Court is justified in decreeing O.S.no.212/94?
3. Whether the trial Court is justified in decreeing O.S.no.163/03?
4. Whether the judgment and decree of the trial Court in O.S.no.212/94 is required to be interfered with in R.A.no.27/03?
5. Whether the judgment and decree of the trial Court in O.S.no.163/03 is required to be interfered with in R.A.55/07?
19. On consideration, first appellate Court answered point no.1 in negative, points no.2 and 4 partly in affirmative, point no.3 in affirmative and point no.5 partly in negative by allowing RA no.27/2003 insofar as item no.11 property was concerned and confirming trial Court judgment and decree of
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NC: 2025:KHC:18236 RSA No. 2373 of 2010 C/W RSA No. 2374 of 2010 partition of half share in respect of items no.1 to 10 and 12 to 14 of suit properties and dismissing RA no.55/2007.
20. Sri Vinod Kumar BN, learned counsel for LRs of plaintiff submitted aggrieved by divergent finding and allowing RA no.27/2003 in part, RSA no.2374/2010 was filed. While RSA no.2373/2010 was filed against concurrent findings and dismissal of RA no.55/2007.
21. It was submitted, propositus Giriyappa owned suit properties as ancestral properties. And after his death, they were inherited by his sons - Hanumantharayappa and G Thimmayya. Since Hanumantharayappa had no male issues, after marriage of his three daughters, he was residing with Thimmayya. And though there was no partition between them and when he demanded but denied share, suit was filed. It was submitted, suit was contested. On detailed consideration, suit was decreed holding plaintiff entitled for ½ share in suit properties.
22. While passing judgment and decree, trial Court took note of contention of defendants that item no.11 property was purchased by Smt.Gowramma and who had later bequeathed it
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NC: 2025:KHC:18236 RSA No. 2373 of 2010 C/W RSA No. 2374 of 2010 to legatee under Will. It turned down contention of defendants about item no.11 property being self-acquired property on ground that, once status of HUF was accepted, property purchased in name of one member would be presumed HUF property and burden would be on party propounding it to be self-acquired to establish same. It held as on date of acquisition of item no.11 property, HUF had sufficient nucleus for acquiring it and defendants failed to establish that it as self-acquired. But, said findings were overturned in appeal solely on recitals in sale deed and erroneously placing burden on plaintiff to establish item no.11 property was joint family property. Since existence of joint family nucleus was admitted, burden would be on defendants - who were asserting it to be self-acquired property to establish same.
23. In view of fact finding about nature of item no.11 property recorded in OS no.212/1994, re-agitation of same in OS no.163/2003 would be hit by principles of res-judicata. As father of legatee was party to OS no.212/1994 as defendant no.1, finding in said suit would be binding on legatee even on ground of acquiescence. Learned counsel sought to draw attention of this Court on conduct of legatee in sitting on fence
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NC: 2025:KHC:18236 RSA No. 2373 of 2010 C/W RSA No. 2374 of 2010 awaiting finding in OS no.212/1994 and filing suit staking his claim as legatee only after its disposal.
24. It was submitted, insofar as item no.11 property, claim of defendants and legatee was based on recital in sale deed about purchase from funds received from her father. It was submitted, bare recital in sale deed would not constitute proof and during cross-examination, legatee admitted that he was not aware, when amount was given to Smt.Gowramma. In fact, he contradicted himself stating it to be given at time of marriage and later stating it to be at time of purchase and thereafter admitting that he was minor and had no knowledge. On other hand, there was admission about sufficient income from HUF properties of Giriyappa, which would corroborate plaintiff's claim that it was purchased with joint family corpus. Thus, item no.11 property was HUF property and liable for partition.
25. It was further submitted, defence of prior partition between Hanumantharayappa and Thimmayya with no share being allotted to plaintiff would be contrary to reason. Therefore, finding to contrary in RA no.27/2003 and RA
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NC: 2025:KHC:18236 RSA No. 2373 of 2010 C/W RSA No. 2374 of 2010 no.55/2007 was liable to be set aside by allowing appeals and holding plaintiff entitled for ½ share in item no.11 property also. On above grounds sought for answering substantial question of law in favour of appellant.
26. On other hand, Sri MS Varadarajan, learned counsel for legatee opposed appeal. It was submitted, in written statement filed by LRs of plaintiff in OS no.163/2003, there was no specific pleading about purchase of item no.11 property with joint family funds. It was submitted, there was no dispute about relationship of parties and about existence of HUF. Item no.11 property was self-acquired, purchased by Smt.Gowramma on 07.01.1977 from N Nanjundaiah. After purchase, entries in revenue records were mutated in her name. Till her death, there was no dispute that it was her self- acquired property. There is also no explanation why no objections were raised during her lifetime.
27. Further, when plaintiff claimed item no.11 property was HUF property, initial burden would be on him to establish same. To substantiate same, plaintiffs relied on Ex.P1 - registered sale deed (in OS no.212/1994) executed in favour of
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NC: 2025:KHC:18236 RSA No. 2373 of 2010 C/W RSA No. 2374 of 2010 Smt.Gowramma. Recital in said deed itself was that it was purchased from funds given by her father. To corroborate same, Ex.P9 - letter dated 20.8.1976 (in OS no.163/2003) stating that sum of Rs.6,000/- was given to Smt.Gowramma was produced. Same would establish item no.11 was her self- acquired property and same her Stridhana property. Therefore, she would be absolute owner under Section 14 of Hindu Succession Act, 1956 ('HSA' for short). Consequently, execution of registered Will dated 09.05.1990 at Ex.P37 bequeathing item no.11 property to legatee would be lawful.
28. It was submitted, Ex.P.9 could not be invalidated merely on ground that stamp paper was purchased more than a year earlier, except where it was pleaded to be concocted and evidence led to substantiate such contention.
29. It was further submitted, legatee had complied with provisions under Section 63 of Evidence Act and 68 of Indian Succession Act, examined attesting witness and scribe as PWs.2 and 3 and established Will was duly executed, without any suspicious circumstances. On appreciation, trial Court rightly decreed legatee's claim holding item no.11 property was
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NC: 2025:KHC:18236 RSA No. 2373 of 2010 C/W RSA No. 2374 of 2010 self-acquired property of Smt.Gowramma and decree in OS no.212/1994 was not binding on legatee. Same was confirmed by first appellate Court.
30. It was submitted, though contention is urged that OS no.163/2003 was barred by res-judicata, trial Court framed specific issue and answered it in negative on ground that legatee was not party in OS no.212/1994. And first appellate Court concurred. It was submitted, both Courts had concurrently arrived at finding of fact that item no.11 property was self-acquired property of testator and same could not be interfered in second appeal under Section 100 of CPC. It was submitted, they had concurrently held, Will dated 09.05.1990 was proved. Thus entire contentions in appeals were without merit and sought dismissal of appeal.
31. In reply, learned counsel for LRs of plaintiffs submitted, when Ex.P.9 was not signed by Smt.Gowramma, mandatory requirements of Section 122 of Transfer of Property Act, 1882, would not be complied rendering it void. However, first appellate Court erred in ignoring said aspect and passing impugned judgment and decree relying on Ex.P.9. It was
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NC: 2025:KHC:18236 RSA No. 2373 of 2010 C/W RSA No. 2374 of 2010 submitted, stamp paper on which Ex.P.9 was issued by Treasury Office on 29.04.1975 and sold to Hanumaiah on same day, but used more than one year and four months later i.e. on 29.08.1976, without explanation. Therefore it was spurious and as such unacceptable. Without appreciation of said circumstances, impugned judgment and decree is passed.
32. Heard learned counsel, perused judgment and decree and records.
33. These appeals are by plaintiff/his LRs challenging finding about item no.11 property being self-acquired property of testator, excluding it from claim for partition and upholding claim of legatee under Will as well as holding that legatee was not bound by judgment and decree in OS no.212/1994.
34. It is seen earlier suit i.e. OS no.212/1994 was filed by plaintiff for partition, separate possession, mesne profits etc., in respect of items no.1 to 14 of suit properties including item no.11 property which was subject matter of bequeathal in favour of legatee. Though legatee was not party to said suit, his father was defendant no.1. After contest, suit was decreed in respect of all suit properties. While, RA no.27/2003 was filed by
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NC: 2025:KHC:18236 RSA No. 2373 of 2010 C/W RSA No. 2374 of 2010 defendant no.1 against said decree, legatee filed OS no.163/2003 against LRs of plaintiff claiming title over item no.11 property as legatee under Will dated 09.05.1990 and for declaring that judgment and decree in OS no.212/1994 as null and void and not binding on legatee. Said suit was decreed and assailed by LRs of plaintiff in RA no.55/2007. After clubbing both appeals, first appellate Court allowed defendant's appeal allowed in part excluding item no.11 property from decree of partition and dismissing appeal by LRs. of plaintiff. There is no further appeal by defendants. Thus, decree for partition in respect of all other suit properties except item no.11 property has attained finality. Thus common challenge in both appeals is about nature of item no.11 property, whether as HUF property and therefore amenable for partition or self-acquired property of Smt.Gowramma - testator and therefore impartible.
35. Appeals were admitted on 05.01.2021 to consider following common substantial questions of law:
1. Whether first Appellate Court was justified in setting aside the judgment and decree passed by the trial Court in respect of item no.11 property and holding that it belonged to Smt.Gowramma exclusively?
2. Whether first Appellate Court erred in not holding that the deed dated 29.08.1976 was a void
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NC: 2025:KHC:18236 RSA No. 2373 of 2010 C/W RSA No. 2374 of 2010 document because it was hit by Section 122 of the Transfer of Property Act?
36. In OS no.212/1994, claim of plaintiff for partition of his half share was on assertion that all suit properties were HUF properties except item no.6 purchased in name of Smt.Gowramma while he was manager of HUF with its funds. Explanation offered that same was to avoid purchase falling foul of ceiling on holding of property. Existence of HUF between plaintiff and defendant is not disputed. Even nature of properties as HUF properties was not contested except insofar as item no.11 property. Insofar as item no.11 property, it was stated to be purchased by Smt.Gowramma with money given by her father as Stridhana.
37. While passing judgment and decree, trial Court took note of rival pleadings and evidence, to conclude that there was no dispute about existence of HUF. In view of above admission, it observed, burden to establish item no.11 property being self- acquired property of Smt.Gowramma would lie on person asserting it to be so i.e. defendant no.1 and father of legatee. Noting that no material was placed, it held in favour of plaintiff.
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38. While passing judgment and decree in OS no.163/2003, it was observed revenue records produced by legatee would show mutation of his name and PW.1 deposed as absolute owner of item no.11 property, testator executed Will in his favour and sustaining cross-examination. It relied on conduct of LRs of plaintiff not objecting plaintiff borrowing loan from Corporation Bank and their failure to substantiate contribution of HUF funds for purchase of item no.11 property. It noted though Ex.P9 was marked subject to objection, payment could be established without receipt. It also rejected challenge of Ex.P9 on ground that Gowramma was resident of Talagavara village of Doddaballapura and her father was resident of Hanumanthpura village of Gowribidanur Taluk, there was no explanation for purchase of stamp paper at Bagalur of Devanahalli Taluk. It also noted failure to examine either of witnesses named in Ex.P9, but on ground that there was nothing unusual for a father to give money to his daughter by executing document. It observes Ex.P9 was more than 30 years old and attracted benefit under Section 90 of Evidence Act. Thereafter, referring to recital in Ex.P9, it held purchase of property was exclusively by Gowramma.
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39. Thereafter, it examined evidence regarding Will and holding same as proved. It observed recital in sale deed and Ex.P9 would be sufficient to establish item no.11 property was self acquired property of Gowramma and she would become its absolute owner under Section 14 (1) HSA. It observed, deposition of DW.1 that suit property being ancestral was without supporting material and concluded that there was no reason for ignoring deposition of PW.1 and decreed suit.
40. In Appeal, first appellate Court observes there was no dispute about relationship. It noted plaintiffs' claim that items no.6 and 11 were purchased in name of Gowramma and therefore burden would be on him to establish it. Likewise, taking note of defendants about prior partition, it holds burden would be on them to establish same. Thereafter, it refers to deposition of PW.1 that suit property was HUF property and also not aware of prior partition and admission in cross- examination that she was unaware when item no.6 was purchased. It noted though PW.2 deposed suit properties were HUF properties and there was no partition, he pleaded ignorance to suggestion made about prior partition and also
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NC: 2025:KHC:18236 RSA No. 2373 of 2010 C/W RSA No. 2374 of 2010 stated that he does not know nature of item no.11 property. It refers to deposition of DW.1 (legatee's father) who asserted prior partition between Thimmayya and plaintiff, but admitted, after death of propositus, they were jointly cultivating suit properties and despite stating partition was by signing of panchayat palupatti, failed to produced same to conclude that there was no prior partition.
41. It observed, while PW.1 admitted ignorance, deposition of DW.1 that item no.11 property was purchased by Gowramma with money given by her father was supported by Ex.P9 in OS.no.163/2003 and deposition of legatee. Thereafter, it held ratio laid down in case of Santanu Kumar Das v. Bairagi Charan Das reported in AIR 1995 Ori. 300 that presumption about purchase of property in name of joint family member would be joint family property, would not apply, if property was purchased in name of female member would be attracted, to conclude that item no.11 property was not HUF property. Consequently, it held testator had right to bequeath it and there were no suspicious circumstances as alleged.
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NC: 2025:KHC:18236 RSA No. 2373 of 2010 C/W RSA No. 2374 of 2010
42. It observed legatee was not party to earlier suit and relief sought in was for partition, whereas later suit was for declaration negatived contention about res-judicata. Insofar as contention about legatee being necessary party in OS no.212/1994, it observed prayer in said suit was only about suit properties being liable for partition and not about proof of Will, which was exclusive subject matter in OS no.163/2003, to conclude that suit was not hit by non-joinder. On said findings, it passed impugned judgment and decree.
43. As noted above, main grounds urged are about invalidity of Ex.P9 and about perversity of findings of first appellate Court. It is seen, conclusions of first appellate Court pivot on recital in sale deed about purchase of property with money given by her father. Defendants/legatee rely on Ex.P9 to establish same. Contentions about Ex.P9 being invalid as gift and it being spurious were urged, but not directly addressed by first appellate Court. It overruled same by taking judicial notice of fact that it was not unusual for a father to execute deed for giving money to his daughter.
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44. It is seen Ex.P9 was marked noting objections. In cross-examination, legatee examined as PW.1 admitted he does not know about execution of Ex.P9, but stated that it was written by Tindlu Nagaraja and attested by Putta Mallappa and Muniyappa. Insofar as item no.11 property he initially stated that it was given by Smt.Gowramma's father at time of her marriage, but later stated it was at time of purchase. Though PWs.2 and 3 (in OS no.163/2003) deposed about payment of money by Smt.Gowramma's father for purchase of item no.11 property, they deny it in cross-examination. This would show that there is contradiction about contribution and nature of item no.11 property. However apart from Ex.P9, there is specific recital in sale deed is about contribution of purchase money by Smt.Gowramma's father. Normally, recital in registered deed is binding on parties to deed and on persons claiming under them. When, item no.11 property is claimed to be HUF property due to its purchase by Smt.Gowramma, recital in purchase deed would attract presumption. Though, it was open for plaintiff to rebut presumption. It is seen, unlike pleaded insofar as item no.6, there is neither pleading nor any evidence insofar as item no.11 property. On other hand, plaintiffs claim is by
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NC: 2025:KHC:18236 RSA No. 2373 of 2010 C/W RSA No. 2374 of 2010 invoking general presumption about purchase of property in name of any member of HUF as being HUF property. Same would be supported by ratio laid down by Hon'ble Supreme Court in case of D.S. Lakshmaiah v. L. Balasubramanyam, reported in (2003) 10 SCC 310:
"18. The legal principle, therefore, is that there is no presumption of a property being joint family property only on account of existence of a joint Hindu family. The one who asserts has to prove that the property is a joint family property. If, however, the person so asserting proves that there was nucleus with which the joint family property could be acquired, there would be presumption of the property being joint and the onus would shift on the person who claims it to be self-acquired property to prove that he purchased the property with his own funds and not out of joint family nucleus that was available."
45. But, it is to be noted that item no.11 property, in instant case, if purchased in name of Smt.Gowramma. It is held by High Court of Orissa in Santanu Kumar Das's case (supra) that general presumption would not apply in case of purchase in name of female member of family. Said view is reiterated with emphasis by High Court of Delhi in Nikhil Batra v. Diwakar Batra, reported in 2019 SCC OnLine Del 8253, wherein it is held:
"17. Mention may also be made of a judgment of a learned Single Judge of the High Court of Orissa
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NC: 2025:KHC:18236 RSA No. 2373 of 2010 C/W RSA No. 2374 of 2010 in Santanu Kumar Das v. Bairagi Charan Das AIR 1995 Ori. 300 and with which I respectfully agree. In that case, the property was purchased in the name of a female, when the family members were living jointly and the husband of the said female was the manager and karta of the family. It was the case of the son of the said female that the property was purchased from joint family fund and it was so purchased in the name of the female to maintain goodwill with her. It was held that the Courts below were under a misconception of law that when a property is purchased in the name of a female member of the joint family and there is sufficient nucleus, the said property should be presumed to be joint family property. Such a presumption was held to be available only in the case of a male member of the family, but not a female member. It was held that a female may continue to be a member of the joint family, but property purchased in her name is not joint family property. Reliance was placed on earlier judgment of the Division Bench of the same High Court in Manahari Devi v. Choudhury Sibanava Das AIR 1983 Ori 135 and which in turn relied on yet another judgment of the High Court of Madras in Nagayasami Naidu v. Kochadai Naidu AIR 1969 Mad 329.
18. However, the aforesaid judgments are also of an era when benami as a plea was permitted in the Indian Courts. The Benami Transactions (Prohibition) Act which came into force on 5th September, 1988 changed the said position. Section 4 thereof bars a suit claim or action to enforce any right in respect of any property held benami against the person in whose name the property is held or against any other person, on behalf of a person claiming to be the real owner thereof. However the said bar, per Section 4(3) does not apply to the person in whose name the property held is a coparcener in a HUF and the property is held for the benefit of coparceners in the family or where the person in whose name the property is held is a trustee or otherwise standing in a fiduciary capacity and who holds the property for the benefit of any other person for
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NC: 2025:KHC:18236 RSA No. 2373 of 2010 C/W RSA No. 2374 of 2010 whom he is a trustee or for whom he stand in such capacity. However, the said exceptions would not be attracted inasmuch as neither can a Hindu female be a coparcener nor is Kanta Batra said to be standing or stood in law in a fiduciary capacity qua her husband or qua the alleged HUF.
19. The aforesaid Act has been amended with effect from 10th August, 2016 and is now known as Prohibition of Benami Property Transactions Act, 1988. Section 4 of the Amended Act also bars a suit to enforce any right in respect of a property held benami.
20. The plea of the plaintiff in this suit, of Kanta Batra being the benami owner of the property and HUF of K.N. Batra being the real owner of the property, is in the teeth of the said law.
21. As far as the judgments cited by the counsel for the defendant no. 1 are concerned, (i) Ashok Sardana and Marabasappa supra concerned with claims, of the property in the name of a female being the property of the HUF, referred to Section 14 of the Hindu Succession Act, 1956 mandating that any property of a female Hindu is her absolute property and she has full ownership thereof; (ii) Surender Kumar and Satyawati supra explain what constitutes a coparcenary/Hindu undivided family; and, (iii) Saurabh Sharma supra was also a case of a property of a female Hindu and also holds that the same cannot constitute a property of the HUF."
46. And by High Court of Andhra Pradesh in case of Sharada Bai v. Jamuna Bai, reported in 2001 SCC OnLine AP 473, holding:
"13. Now, let us examine the exhibits which were exhibited during the trial to show that the
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NC: 2025:KHC:18236 RSA No. 2373 of 2010 C/W RSA No. 2374 of 2010 property in fact was self acquired property of Sharbathi Bai. The first and foremost are the agreements of sale Exs. A2 and A3 and then the sale deed by Sharbathi Bai in favour of the plaintiff i.e., Ex. A4. Ex. A17 is application moved by Sharbathi Bai under Section 27 of the Urban Land Ceiling and Regulation Act for transfer of the property. These documents and the evidence of the plaintiff's witnesses and defendants witnesses show conclusively that the property was self acquired property of the Sharbathi Bai. It is also stated by defendant No. 2 that Sharbati Bai had landed properties in some village. There are other documents showing that there was Rice Mill in the name of Sharbathi Bai. Those documents are contained in Ex. A29 and A30. Although they are in the name of Saraswathi Bai w/o Ganesh Lal but it has come in evidence that Sharbathi Bai was known as Saraswathi Bai also. Therefore, there are strong grounds to believe that the property in question was self acquired property of Sharbathi Bai. On the other hand the defendants case was that it was a joint property but the evidence even from defendants suggest that the joint family had collapsed much earlier. The defendants have not brought any documents on record but there is statement of DW2 who is defendant and who is wife of one of the sons of Ganesh Lal. She in her statement accepted that certain properties were given to other brothers. She also stated that she along with another son of Ganesh Lal sold properties which belonged to the joint family. Therefore, one does not find that a nucleus of a joint family continued till 1981 when the sale deeds were executed. One could also not construe that the house which was purchased by Sharbathi Bai was purchased by her from the wife of her brother was in fact a benami transaction. There has been evidence that the original house purchased by Sharbathi Bai was demolished and a new house was constructed. It might be true that the new house was constructed but there is no evidence to suggest that the new house was constructed from the funds of joint family. Even if, for the sake of argument, it is accepted that this house was constructed as the joint family
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NC: 2025:KHC:18236 RSA No. 2373 of 2010 C/W RSA No. 2374 of 2010 property those were not the only properties belonging to so called joint family. The father of the parties had huge properties. He had land in many areas to which a reference has been made. He had also many houses. Those lands have been sold by sons including the defendants and houses are occupied by sons including the defendants. Is the suit property only house which was the joint property. No evidence had been led by the defendants to show as to how they came into possession of the properties which were sold by them. Even the learned single Judge did not held that the sale deed was sham. Therefore the appeal has been filed by the defendants. The sale deeds in respect of suit property could have not been declared sham. This is also in evidence that the execution of the sale deed was known to the defendants, yet they chose not to challenge the sale deed. Suit for partition was not even filed although the father of the parties died in the year 1973. The only argument that was made on behalf of the defendants was that a compromise had been arrived at between the parties. This compromise has rightly been rejected by the trial Court as well as by the learned single Judge. This compromise was arrived at during the proceedings in a suit. The suit had been dismissed. So, the compromise did not become a decree and also this compromise was neither registered nor stamp duty was paid. There was no evidence led by the defendants to show that the suit property was joint property. At best they were able to show that at the time of purchase of the house by Sharbathi Bai the family was joint. That would not mean that property held by Sharbathi Bai was a joint family property. The onus was on the defendants to prove that the property purchased in the name of Sharbathi Bai was property of joint family. It was suggested by the learned Counsel for the respondents that basically it was a benami transaction and Ganesh Lal had purchased the property in the name of his wife. The Counsel for the plaintiff submits that this argument was not accepted even by the learned single Judge and the sale deeds were not held to be sham. He relies on judgment of Orissa
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NC: 2025:KHC:18236 RSA No. 2373 of 2010 C/W RSA No. 2374 of 2010 High Court in Santanu Kumar Das v. Bairagi Charon Das, AIR 1995 Ori. 300. In this judgment it was held that, in case of property purchased in the name of female member of Hindu family there is no presumption that it is a joint family property. He submits that the burden of proving that a particular sale was benami and that the purchaser was not a real owner always rests on the person asserting it to be so and there is no evidence led by the defendants to show that the consideration of sale deed executed in favour of Sharbathi Bai had come from her husband. He also relies on a judgment of Supreme Court in Jayadayal Poddar v. Bibi Hazra, (1974) 1 SCC 3: AIR 1974 SC 171. In this judgment the Supreme Court laid down the tests for examining whether a particular transaction was benami, or not as under:
"It is well settled that the burden of proving that a particular sale is benami and the apparent purchaser is not the real owner, always rests on the person asserting it to be so. This burden has to be strictly discharged by adducing legal evidence of a definite character which would either directly prove the fact of benami or establish circumstances unerringly and reasonably raising an inference of that fact. The essence of a benami is the intention of the party or parties concerned; and not unoften such intention is shrouded in a thick veil which cannot be easily pierced through. But such difficulties do not relieve the person asserting the transaction to be benami of any part of the serious onus that rests on him; nor justify the acceptance of mere conjectures or surmises, as a substitute for proof. The reason is that a deed is a solemn document prepared and executed after considerable deliberation, and the person expressly shown as the purchaser or transferee in the deed, starts with the initial presumption in his favour that the apparent state of affairs is the real state of affairs. Though the question whether a particular sale is benami or not, is largely one of fact, and for determining this question, no absolute formulae or acid test,
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NC: 2025:KHC:18236 RSA No. 2373 of 2010 C/W RSA No. 2374 of 2010 uniformly applicable in all situations, can be laid down; yet in weighing the probabilities and for gathering the relevant indicia, the Courts are usually guided by these circumstances: (1) the source from which the purchase money came; (2) the nature and possession of the property, after the purchase; (3) motive, if any, for giving the transaction a benami colour; (4) the position of the parties and the relationship, if any, between the claimant and the alleged benamidar; (5) the custody of the title deeds after the sale and (6) the conduct of the parties concerned in dealing with the property after the sale".
14. Although the Supreme Court laid down tests yet it cautioned that examples given would not be exhaustive and the question as to whether a particular sale deed was benami or not would be essentially a question of fact and would have to be tested in each case.
15. In another judgment being Vidyadhar v. Usman Gani, (1974) 2 SCC 338: AIR 1974 SC 658, the Supreme Court held that, for arriving at a conclusion that a transaction was benami or not the real test would be as to what was the source from which the consideration came but when it was not possible to establish conclusively as to where from the consideration came the case must be dealt with on reasonable probabilities and legal inferences.
16. Applying the tests of weighing the probabilities and for gathering the relevant indicia and seeing the source from which the purchase money came and also the nature and possession of the property after the purchase, we believe that the purchase was not benami. We have already indicated that Sharbathi Bai had lands and even a Rice Mill was in her name. Even the subsequent events show that the property was not a benami transaction and Sharbathi Bai was dealing with the property. Ex. A33 is the permission granted to her by the Municipal Corporation of Hyderabad for making additions and alterations and the rent deeds Ex. A23 and A24 were also in her name. Ex. A45 is the Tax receipt issued by
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NC: 2025:KHC:18236 RSA No. 2373 of 2010 C/W RSA No. 2374 of 2010 Municipal Corporation in her favour. Ex. A46 is the notice to Sharbathi Bai for payment of the tax."
47. In view of above, merely establishing sufficient income from HUF properties, plaintiff cannot seek to lay claim over item no.11 property on basis of general presumption without specific evidence that if was purchased with HUF funds. It is seen, while passing impugned judgment and decree, first appellate Court has referred to recital in sale deed and Ex.P9 as well as admission about joint family properties yielding income, while weighing probabilities and arrived at conclusion by assigning reasons. Same cannot held to be suffered from perversity as would necessitate interference in second appeal. Thus, substantial question of law no.1 is answered in affirmative, substantial question of law no.2 is in negative.
48. Consequently, following:
ORDER RSA.no.2373/2010 and RSA.no.2374/2010 are dismissed. No order as to costs.
Sd/-
(RAVI V. HOSMANI) JUDGE psg*/AV/GRD:List No.: 1 Sl No.: 2