Bangalore District Court
Kum. Harika vs Sri.N.Nagaraju on 18 November, 2016
IN THE COURT OF XXII ADDL. CITY CIVIL & SESSIONS JUDGE
BENGALURU (C.C.H.No.7).
Dated: This the 18th Day of November, 2016.
Present: Sri. M.S.Patil, B.Sc., LL.B.
XXII Addl. City Civil & Sessions Judge.
Bengaluru.
O. S. No. 8 7 6 0 / 2006
Plaintiff 1. Kum. Harika,
Aged about 22 years,
D/o.N.Nagaraju,
... attained majority and prosecuting
personally.
2. Master Kushal Varma,
Aged about 19 years,
s/o. N.Nagaraju,
... attained majority and prosecuting
personally.
Both are residing at No.1573,
11th Main, 4th 'T' Block, Jayanagar,
Bengaluru-560041.
by Sri.Fayaz Khan, Advocate.
Vs.
Defendants 1. Sri.N.Nagaraju,
Aged about 44 years,
s/o.late N.Narasaraju,
residing at No.1573, 11th Main,
4th 'T' Block, Jayanagar,
Bengaluru-560041.
2. Sri.N.Jayarami Reddy,
Aged about 69 years,
s/o.late Babi Reddy, residing at
No.27/2, Raghuvanahalli, Kanakapura
Road, Bengaluru-560062.
2 O.S.No.8760/2006
3. Sri.N.Sridhara Reddy,
Aged about 38 years,
s/o.Jayarami Reddy,
c/o. Balaji Industries,
No.27/2, Raghuvanahalli,
Kanakapura Road,
Bengaluru-560062.
4. Sri.B.Lokandha Naidu,
Major by age,
s/o. B.Narayanaswamy Naidu,
at No.1197/C, 2nd 'A' Cross,
BSK II Stage, Bengaluru-560070.
5. Sri.B.Manjunath,
Major by age,
s/o. B.T.Thimmaiah,
at No.79/7, 26th Cross,
14th Main, 4th Block East,
Jayanagar, Bengaluru-560011.
D1-by Sri.J.S.Krishna Murthy, Advocate.
D2, D3, D5 - Exparte
D4 - by Sri.B.H.Shamanna, Advocate.
Date of institution of suit 30-09-2006
Nature of the suit Partition and separate
possession,
Mesne profits and
Declaration.
Date of commencement of 18-11-2009
recording of evidence
Date on which Judgment 18-11-2016
was pronounced
Total duration Days Months Years
18 01 10
3 O.S.No.8760/2006
JUDGMENT
This suit filed by the plaintiffs is for partition and separate possession of their 2/3rd share in the suit properties and for mesne profits on the suit properties and to declare the sale deed dated 23-1-2004 executed by 1st defendant in favour of 2nd defendant through 3rd defendant and sale deed dated 18-10-2004 executed by 2nd defendant in favour of defendants 4 and 5 through defendant No.3 as General Power of Attorney, are null and void and not binding on the shares of plaintiffs in item N o.3 of suit schedule property, together with costs and any other reliefs, which Court deems fit, in the circumstances of this case.
2. The brief facts of the plaint averments are that, plaintiffs being minors, are represented by their mother and natural guardian, are the daughter and son of defendant No.1 and that, defendant No.1 and his father N.Narasaraju had jointly purchased the suit property out of the income derived from their joint family properties and that, suit property fell to the share of defendant No.1 in a partition between defendant No.1 and his brothers after death of N.Narasaraju on dated 24-10-1996 and that, suit item No.1 to 3 properties fell to the share of defendant No.1 under said partition dated 6-11-2003 and that, plaintiffs and defendant No.1 forming joint family, were enjoying the suit 4 O.S.No.8760/2006 properties jointly as joint owners and that, defendant No.1, with an intention to deprive the share of plaintiffs, has sold suit item No.3 property to defendant No.2 on 23-1-2004 through defendant No.3, as G.P.A. and defendant No.2, in turn has sold suit item No.3 property on dated 18-10-2004 to defendants No.4 and 5 through defendant No.3 as G.P.A. and that, sale deeds dated 23-1-2004 and 18-10-2004, under which defendants 1 and 2 sold suit properties in favour of defendants No.4 and 5 are not binding on the shares of plaintiffs. Hence, this suit for partition and separate possession of plaintiffs' 2/3rd share in the suit properties and for declaration of sale deeds dated 23-1-2004 and 18-10-2004 not binding on the plaintiffs so far as their shares are concerned and for mesne profits in respect of suit properties and for costs and any other reliefs which Court deems fit, in the circumstances of the case.
3. Defendant No.1, being father of plaintiffs, has filed his written statement, wherein he admits the relationship with plaintiffs and admits that, suit item No.3 property bearing Sy.No.12/3A of Mallasandra Village, is purchased by himself and his father out of joint family funds and denies that, suit property is sold by him to defendant No.2, who in turn sold suit property to defendants 4 and 5 and contends that, the alleged sale deed dated 5 O.S.No.8760/2006 23-1-2004 said to have been executed by him in favour of defendant No.2 through defendant No.3 is a created document by the interested persons against the interest of 1st defendant and on this ground, he prays for dismissal of this suit with costs.
4. Defendant No.4 has filed his written statement and additional written statement, admitting the relationship of defendant No.1 with plaintiffs 1 and 2 and admits that, item No.3 of suit property was purchased by defendant No.1 with his father, but denies that, sale deed dated 23-1-2004 said to have been executed by defendant No.1 in favour of defendant No.2 is a created document and he further contends that, defendant No.1 has sold suit item No.3 property for the benefit of the family and for legal necessities of the family in favour of defendant No.2 through defendant No.3 as G.P.A. and that, defendant No.2, in turn has sold suit item No.3 property in favour of himself and defendant No.5 through defendant No.3 as G.P.A. under registered Sale Deed dated:18-10-2004 and that, defendant No.4 and 5 have got their name entered in BBMP records in respect of suit item No.3 property after it's purchase from defendant No.2 and since then, they are in lawful possession and enjoyment over item No.3 property and on these grounds, defendant No.4 prays for dismissal of this suit with costs.
6 O.S.No.8760/20065. On the basis of these rival contentions taken by both the parties, following Issues are framed:
1. Whether the plaintiffs prove that, the suit properties are joint family properties of the plaintiffs and defendants 1 to 3?
2. Whether the plaintiffs prove that, the registered Sale Deed dated: 23-1-2004 and 18-
10-2004 between the defendants is not binding on the plaintiffs?
3. Whether the plaintiffs have 2/3rd share in the suit properties?
4. Whether the plaintiffs are entitled for mesne profits?
5. Whether defendant No.4 is a bonafide purchaser for value?
6. Whether defendant No.4 proves sale of suit properties for benefit of estate and for family necessities of plaintiffs and defendant No.1?
7. Whether the court fee paid is insufficient?
8. What Decree or Order?
Additional Issue:
1. Whether suit is barred by limitation?7 O.S.No.8760/2006
6. The plaintiffs, to prove their case, examined their mother and natural guardian as P.W.1 and relied upon 14 documents marked as Exs.P1 to P14 and closed their side.
On the other hand, Defendant No.4 has examined himself as D.W.1 and relied upon 12 documents marked as Exs.D1 to D12 and closed his side.
7. Heard arguments of Learned Counsels for both the parties and learned counsel for defendant No.4 files his written arguments and citations.
8. My answer to the above Issues are as under:
Issue No.1 - in the Negative;
Issue No.2 - in the Negative;
Issue No.3 - in the Negative;
Issue No.4 - in the Negative;
Issue No.5 - in the Affirmative;
Issue No.6 - in the Affirmative;
Issue No.7 - in the Negative;
Issue No.8 - as per Final Order below;
Additional Issue No.1 - in the Negative;
for the following:8 O.S.No.8760/2006
Reasons
9. The relationship between plaintiffs and defendant No.1 are undisputed and that, purchase of suit item No.3 property by defendant No.1 and his father under registered sale deed, is also not in dispute and that, plaintiffs have attained their majority and therefore, the guardianship of plaintiffs by their mother, is discharged.
10. Issue Nos. 1, 2 and 6 : For the sake of convenience and to avoid repetition of facts and in view of the fact that, these Issues are inter-linked and inter-connected with each other, these Issues are taken-up together for common consideration.
11. The plaintiff contends that, suit properties are the joint family properties of plaintiffs and defendant No.1 and that, suit item No.3 property was purchased by defendant No.1 and his father N.Narasaraju out of joint family funds and after death of Narasaraju, defendant No.1 and his brothers got partitioned under registered partition deed on 6-11-2000 and under the said partition, suit properties fell to the share of defendant No.1 and thus, suit properties have become the joint family properties of plaintiffs 1 and 2 and defendant No.1 and that, defendant No.1, with an intention to deprive the right and share of the plaintiffs in the suit property, sold item No.3 of suit property in 9 O.S.No.8760/2006 favour of defendant No.2 through defendant No.3, as his G.P.A. and defendant No.2, in turn, has sold item No.3 of suit property in favour of defendants No.4 and 5 through defendant No.3 as G.P.A. and that, sale of suit item No.3 property through registered sale deeds dated 23-1-2004 and 18-10-2004 stated above, are not binding on the plaintiffs, so far as their 2/3rd share in the suit properties are concerned.
12. In order to substantiate their contention, plaintiffs have examined their mother and natural guardian as P.W.1, who has reiterated the same facts in her evidence.
13. In order to substantiate their contentions, plaintiffs have relied upon Ex.P1-copy of Sale Deed dated:23-1-2004 executed by defendant No.1 through defendant No.3 as G.P.A., in favour of defendant No.2, in respect of item No.3 of suit property bearing Sy.No.12/3A measuring 2 acres of Mallasandra Village; Ex.P2-Sale Deed dated:
18-10-2004 executed by defendant No.2 in favour of defendants No.4 and 5 through defendant No.3 as G.P.A. in respect of item No.3 property; Ex.P6-Birth Certificate of plaintiff No.1; Ex.P7-Sale Deed dated:
22-1-1975, under which, defendant No.1 and his father have purchased suit item No.1 property; Ex.P9-copy of registered partition deed dated 8-11-2000, under which defendant No.1 has got suit properties as his share in a partition between himself 10 O.S.No.8760/2006 and his brothers and Ex.P1-Birth Certificate of plaintiff No.2.
14. On perusal of these documents, it goes to show that, plaintiffs No.1 and 2 are the daughter and son of defendant No.1-Nagaraju and that, suit property at item No.3 is purchased by defendant No.1 and his father through registered Sale Deed Dated:22-1-1975 and that, suit properties are partitioned between defendant No.1 and his brothers, by name Srinivas Raju, Nagaraju (defendant No.1), Madhusudan Raju and Nandakumar and suit properties have fallen to the share of defendant No.1.
15. On the other hand, defendants No.4 and 5admit in their written statement that, the plaintiffs are the children of defendant No.1 and further admit that, the suit item No.3 property is purchased by defendant No.1, with his father, but contend that, they are (defendants No.4 and 5) bonafide purchasers of suit property, on the ground that, defendant No.1 has sold suit item No.3 property to defendant No.2 through defendant No.3 as G.P.A. and defendant No.2 in turn, has sold item No.3 property in favour of defendants No.4 and 5 under registered Sale Deed Dated:18-10-2004 through defendant No.3 as his G.P.A. and in view of the said sale deeds dated 23-1-2004 and 18-10-2004, defendants No.4 and 5 have become absolute 11 O.S.No.8760/2006 owners in possession of suit item No.3 property and that, item No.3 of suit property has been sold by defendant No.1 in favour of defendant No.2 under registered Sale Deed Dated:23-1-2004 for the benefit of his family and for legal necessities of his family and thus, the sale made by defendant No.1 in favour of defendant No.2 is valid and binds plaintiffs 1 and 2 also in respect of their shares.
16. In order to substantiate their contention, defendants 4 and 5 have relied upon Exs.D3 and D1, which are original registered sale deeds dated 23-1-2004 executed by defendant No.1 in favour of defendant No.2, through defendant No.3 as G.P.A., in respect of item No.3 property and original sale deed dated 18-10-2004 executed by defendant No.2 in favour of defendant Nos.4 and 5 through defendant No.3 as his G.P.A., respectively. Exs.D3 and D1 are respectively Exs.P1 and P2, which plaintiffs have also produced and relied upon.
17. Mother and natural guardian of plaintiffs, who is examined as P.W.1, has admitted in para No.31 of her cross-examination that, the plaintiffs and defendant No.1 form Hindu Joint family and that, defendant No.1 is not addicted to any bad vices and that, her husband never intended to harm the interest of herself (P.W.1) and her children (plaintiffs 1 and 2).
12 O.S.No.8760/200618. On going through Ex.P1(Ex.D3) - copy of Sale Deed dated:23-1-2004 executed by defendant No.1 through defendant No.3 as his G.P.A. to defendant No.2 in respect of item No.3 of suit property, we find that, there is a recital to the effect that, "for want of finance for family benefits and for discharge of some of the hand loans, Sy.No.12/3A measuring 2 acre of Mallasandra Vilalge is sold by defendant No.1 in favour of defendant No.2 through defendant No.3 as his power of attorney holder."
19. In view of this recital stated supra in Ex.P1, it goes to show that, suit property at item No.3 is sold by defendant No.1 for paying off his hand-loans and for family benefits and for want of finance and therefore, said alienation of suit item No.3 property by defendant No.1 in favour of defendant No.2, through his General Power of Attorney Holder, also binds plaintiffs 1 and 2.
20. My view is supported by proposition laid down by Hon'ble Supreme Court of India, held in case of Sunder Das and others Appellants vs. Gajananrao and others respondents, reported in AIR 1997 Supreme Court 1686, wherein it is held that:
13 O.S.No.8760/2006"(B) Hindu Law-Ancestral property-Alienation by Karta-Legal necessity -Existence of-
Mention in sale deed as to sale being for family necessity-Alienator's son who was six years old when transaction took place examined-He could not possible tell as to what transpired when sale was effected- Father serving as Upper Division Clerk in Court-He not shown to have been addicted to immoral conduct-Being Clerk in Court he must be taken to be well versed in the ways of the world and disposed of property, house which was a ruin-Sale must be taken to be for family necessity-Father could have disposed of share of minor sons-Vendees also making all possible enquiry as to legal necessity of family-Sale is binding on minor sons as father could have disposed of share of minor sons for family necessity."
21. In view of the reasons stated above, I hold that, though plaintiffs 1 and 2 are the sons of defendant No.1 and that, plaintiffs and defendant No.1 form Hindu Joint Family, however, having regard to the fact that, suit item No.3 property is sold by defendant No.1 for want of finance and for family benefits and for discharging his hand-loans, I hold that, suit property is alienated legally by defendant No.1 in favour of defendant No.2 through defendant No.3 as his G.P.A. and that, defendant 14 O.S.No.8760/2006 No.2 in turn, has sold suit property to defendants No.4 and 5 under registered sale deed dated 18-10-2004 through defendant No.3 as his G.P.A. and accordingly, the alienation made by defendant No.1 in favour of defendant No.2 and alienation of item No.3 property by defendant No.2 in favour of defendants No.4 and 5 is valid alienation and binds the shares of plaintiffs also in respect of item No.3 property. Accordingly, I hold Issue Nos.1 and 2 in the Negative and Issue No.4 in the Affirmative.
22. Issue Nos. 3, 4 and 5 : In view of my answer to Issue No.2 in the Negative, Issue Nos. 3 and 4 are held in the Negative and Issue No.5 is held in the Affirmative.
23. Issue No.7 and Additional Issue No.1:
The defendant No.4 has contended that, the suit is barred by limitation and the court fee paid is insufficient, but, to substantiate these contentions, defendant No.4 has not adduced any evidence. Hence, in the absence of any evidence available on record, produced by defendant No.4 in support of these Issues, I hold these Issues in the Negative.15 O.S.No.8760/2006
24. Learned Counsel for plaintiffs has relied upon the following citations:
1). Suraj Lamp & Industries Pvt. Ltd. vs. State of Haryana & Anr. reported in AIR 2012 SC 206, wherein it is held that:
"Transfer of Property Act (4 of 1882), Ss. 5, 54-Registration Act (16 of 1908), S.17- Powers of Attorney Act (7 of 1882), S.2- Succession Act (39 of 1925), S.63-Immovable property-Transfer-Can be validly made only by registered sale deed-Not by sale agreement/ general power of attorney or Will.
Immovable property can be legally and lawfully transferred/conveyed only by a registered deed of conveyance. Transactions of the nature of 'General Power of Attorney Sales' or 'Sale agreement/WILL transfers' do not convey title and do not amount to transfer, nor can they be recognized as valid mode of transfer of immovable property. The Courts will not treat such transactions as completed or concluded transfers or as conveyances as they neither convey title nor create any interest in an immovable property. They cannot be recognized as deeds of title, except to the limited extent of Section 53A of the TP Act. Such transactions cannot be 16 O.S.No.8760/2006 relied upon or made the basis for mutations in Municipal or Revenue Records. This rule applies not only to deeds of conveyance in regard to freehold property but also to transfer of leasehold property. A lease can be validly transferred only under a registered Assignment of Lease."
2). Smt.Shefali Roy Appellant vs. Hero Jaswant Dass and others, reported in AIR 1992 Allahabad 254, wherein it is held that:
"(A) Civil P.C. (1908), O.39, R.1-Temporary injunction-Grant of -Principles to be followed-
Prima facie case, balance of convenience, irreparable loss, seriousness of question involved are some of the broad factors to be considered.
(C) Specific Relief Act (47 of 1963), S.34, Proviso-Applicability-owner in possession of suit property-Suit simplicitor for declaration that sale deed, to which owner was not party, is null and void-proviso to S.34 would not bar suit on ground that no other relief is claimed.
(D) Civil P.C. (1908), O.39, R.1-Temporary injunction-Grant of -Suit by owner for declaration that alleged sale deed of suit property is null and void-Owner not party to 17 O.S.No.8760/2006 sale deed-Fraud alleged-Circumstances like inadequate consideration, ambiguity in recitals, not obtaining permission from Ceiling department etc.-Not inspiring confidence prima facie that sale deed passed title-Fit case to grant interim injunction."
3). Kamalammal, Appellant vs. A.M.Shanmugham and others, reported in AIR 1976 Madras 235, wherein it is held that:
"(A) Civil P.C. (1908), O.32, Rr.1, 2-Suit filed by minor-Plaintiff attaining majority during pendency of suit-Suit held could be disposed of according to law."
4). Krishna Chandra Sharma v. Rishabha Kumar, reported in AIR 1939 Nag. 265, wherein it is held that:
".... all the High Courts are unanimous on the view that a guardian's contract for sale or purchase made on behalf of the minor is not enforceable by or against this minor. The principle underlying the view enunciated by their Lordship of the Privy Council evidently appears to be that a minor is not personally bound by any contract made on his behalf by his guardian as was laid down by Their Lordships of the Privy Council in Waghela Rajsaanji v. Shekh Masludin. A contract for sale 18 O.S.No.8760/2006 of immovable property does not of itself create an interest in or change on such property: see Section 54, T.P.Act. If it is a contract of purely personal nature and no personal liability can be imposed on the minor, it must logically follow that the minor cannot be compelled to perform the contract; for the same reason he cannot take advantage of the contract and ask for specific performance. There is another aspect to the question: Can the purchaser recover compensation form the minor for a breach of contract by the guardian? In every case when there is refusal to implement the contract of sale by the guardian the breach is committed by the guardian and never by the minor. The purchaser therefore, can only claim compensation against the guardian and not against the minor or his property except in the case where the guardian uses the money obtained from the purchaser for the improvement of the minor's estate, a case which stands on a separate footing. The purchaser is not entitled to hold the minor personally responsible for the breach of contract of sale made by his guardian and he is not therefore, entitled to claim compensation from him. If that is so, Section 24-A Specific Relief Act, debars the purchaser from claiming the relief of specific performance; against the minor."19 O.S.No.8760/2006
25. Learned Counsel for defendant No.4 has relied upon the following citations:
1). Sunil Kumar and another Appellants vs. Ram Parkash and others Respondents, reported in AIR 1988 SC 576, wherein it is held that:
"Specific Relief Act (47 of 1963), S.38(h), S.41- Permanent injunction-Father, a Karta of joint family intending to alienate house property for legal necessity-Suit for permanent injunction for restraining him from alienating property, by coparcener-Not maintainable. "
2). Anil Rishi vs. Gurbakash Singh reported in AIR 2006 SC 1971, wherein it is held that:
"(A) Evidence Act (1 of 1872), S.101, S.102, S.111-Burden of proof-Suit for declaration that sale deed was forged, fabricated-Defendant disputing allegations-Reframing issue as to whether deed is valid and thereby putting burden of proof on defendant-Not proper in absence of proof of fiduciary relationship."
26. The principles laid down in the above citations are followed by me while disposing this Judgment.
20 O.S.No.8760/200627. Issue No. 8 : In view of the foregoing reasons and in the result, I proceed to pass the following:
ORDER Suit of the plaintiffs is dismissed.
No Order as to costs.
(Dictated to the Judgment Writer, transcribed and computerised print-out taken thereof is corrected, signed and then pronounced by me in Open Court on this the 18th day of November, 2016.) (M.S.PATIL) XXII Addl. City Civil & Sessions Judge, *sb Bengaluru.21 O.S.No.8760/2006
ANNEXURE List of witnesses examined for the plaintiffs:
P.W.1 Smt.N.Jamuna P.W.2 Harika
List of witnesses examined for defendants:
D.W.1 B.Lokanadha Naidu List of documents exhibited for the plaintiffs:
Ex.P1 Copy of Sale Deed dated:23-1-2004 executed by defendant No.1 through defendant No.3 as his G.P.A. to defendant No.2, in respect of Sy.No.12/3A measuring 2 acres of Mallasandra Village (Ex.D3) Ex.P2 Copy of Sale Deed dated:18-10-2004 executed by defendant No.2 through defendant No.3 as his G.P.A. in favour of defendants 4 and 5 in respect of item No.3 of suit schedule properties. (Ex.D1) Ex.P3 Record of Rights of suit item N o.3 property standing in the name of defendants 4 and 5 jointly.
Ex.P4 Mutation Register in respect of suit property standing in the name of defendants 4 and 5 jointly.
Ex.P5 Death Certificate of Narasaraju showing that, he died on 24-10-1996.
Ex.P6 Birth Certificate of plaintiff No.1 showing her date of birth as 8-11-1990.
22 O.S.No.8760/2006Ex.P7 Copy of Sale Deed dated:22-1-1975 in respect of suit property (Ex.D5) Ex.P8 Copy of Sale Deed dated:22-10-1986 (Ex.D4) Ex.P9 Copy of registered partition deed dated 8-11-2000 Ex.P10 Birth Certificate of plaintiff No.2 showing date of birth as 31-3-1993 Ex.P11 Birth Certificate of plaintiff No.1 showing date of birth as 8-11-1990.
Ex.P12 to P13 - Photographs Ex.P14 Negatives of Exs.P12 and P13 List of documents marked for defendants:
Ex.D1 Original Sale Deed dated:18-10-2004 (Ex.P2) Ex.D2 Original G.P.A. executed by defendant No.1 in favour of defendant No.3 dated 26-2-2003 Ex.D3 Original registered Sale Deed Dated:
23-1-2004 executed by defendant No.1 to defendant No.2 through his G.P.A. defendant No.3 in respect of item No.3 of suit property (Ex.P1) Ex.D4 Original Sale Deed dated:22-10-1986 executed by MUnibairappa and MuniPapa in favour of defendant No.1 and his father in respect of suit property. (Ex.P8) 23 O.S.No.8760/2006 Ex.D5 Original Sale Deed dated:22-1-1975 executed by Munibyrappa and Munipapa in favour of Narasaraju and his father Venkataraju in respect of Sy.No.12/3 (Ex.P7) Ex.D6 Conversion order of Government in respect of suit item No.3 property issued in favour of defendants No.4 and 5 Ex.D7 Endorsement by Special Deputy Commissioner for Conversion of suit item No.3 property to pay Rs.1,08,955/-.
Ex.D8 Encumbrance certificate from 1-4-1974 to 4-3-1987 Ex.D9 Record of Rights of suit item No.3 standing in the name of defendant No.1 and his father Ex.D10 Record of Rights of suit item No.3 in the name of defendants No.4 and 5 Ex.D11 Agreement of sale between defendants No.1 and 2 in respect of item No.2 Ex.D12 G.P.A. executed by defendant No.2 in favour of defendant No.3 to sell suit item No.3 property (M.S.PATIL) XXII Addl. City Civil & Sessions Judge, Bengaluru.24 O.S.No.8760/2006