Karnataka High Court
Smt Vasanthamma vs Sri R G Mohan on 26 September, 2022
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 26TH DAY OF SEPTEMBER, 2022
BEFORE
THE HON'BLE JUSTICE SACHIN SHANKAR MAGADUM
REGULAR SECOND APPEAL NO.1846/2016
BETWEEN:
1. SMT. VASANTHAMMA
W/O. LATE MUNIYAPPA
AGED ABOUT 50 YEARS
2. SRI. RAJESH
S/O. LATE MUNIYAPPA
AGED ABOUT 30 YEARS
3. SMT. AMARAVATHI
D/O. LATE MUNIYAPPA
AGED ABOUT 27 YEARS
4. SRI. ANIL KUMAR
S/O. LATE MUNIYAPPA
AGED ABOUT 25 YEARS
APPELLANT NOs.1 TO 4
ARE ALL RESIDENTS OF
CHENNASANDRA VILLAGE
BIDARAHALLI HOBLI
BENGALURU EAST TALUK-560 069.
... APPELLANTS
(BY SRI. ANUP HARANAHALLI, ADVOCATE FOR
SRI. YESHU MISHRA, ADVOCATE)
AND:
1. SRI. R.G.MOHAN
S/O. LATE V.R.GIRICHANDRAPPA
AGED ABOUT 62 YEARS
2
R/AT NO.14, CAMBRIDGE ROAD
ULSOOR, BENGALURU-560 008.
2. SRI. H.B. SHIVASHANKAR
S/O. LATE SRI. BYRAPPA
AGED ABOUT 55 YEARS
3. SMT. R. VARALAKSHMI
W/O. SRI. H.B.SHIVASHANKAR
AGED ABOUT 45 YEARS
RESPONDENT NOs.2 & 3
ARE RESIDENT OF
NO.130/2, NEW EXTENSION
CHANNASANDRA, KADUGODI POST
BENGALURU EAST TALUK.
4. M/S. PURAVANKA PROJECTS LETD.,
BUILDERS AND DEVELOPERS
REPRESENTED BY ITS MANAGING
DIRECTOR, NO.130/1, ULSOOR
ROAD, BENGALURU-560 042.
... RESPONDENTS
(BY SRI. CHITHAPPA, ADVOCATE FOR C/R2)
THIS RSA IS FILED UNDER SECTION 100 OF CPC PRAYING TO
SET ASIDE THE JUDGMENT AND DECREE IN R.A.NO.24/2015 ON THE
FILE OF 1ST ADDITIONAL DISTRICT AND SESSIONS JUDGE,
BENGALURU RURAL DISTRICT, BENGALURU AND TO RESTORE THE
JUDGEMENT AND DECREE PASSED IN O.S.NO.312/2007 DATED
29.01.2015 ON THE FILE OF THE II ADDTIONAL SENIOR CIVIL
JUDGE, BENGALURU RURAL DISTRICT, BENGALURU.
THIS RSA COMING ON FOR PART HEARD IN ADMISSION
THROUGH PHYSICAL HEARING/VIDEO CONFERENCING, THIS DAY,
THE COURT DELIVERED THE FOLLOWING:
3
JUDGMENT
The captioned second appeal is filed by the unsuccessful plaintiffs. The plaintiffs are questioning the divergent findings of the Court below wherein the suit for partition filed by the plaintiffs is decreed granting half share to plaintiffs jointly and the appellate Court has reversed the judgment and decree of the trial Court.
2. For the sake of brevity, the parties are referred as they are ranked before the Trial Court.
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3. The plaintiffs who are widow and children of late Muniyappa filed a suit for partition in O.S.No.312/2007. It is the specific case of the plaintiffs that they constitute Joint Hindu Undivided Family and the suit schedule properties are the ancestral properties of the plaintiffs. It is specifically pleaded that the suit schedule properties were allotted to their father under a registered partition deed dated 1978. The plaintiffs claim that they being the wife and children of deceased Muniyappa have independent share in the suit schedule properties. It is alleged by the plaintiffs that without any authority and exclusive right, their father Muniyappa has sold Item No.1 under a registered sale deed dated 26.08.1994 in favour of the defendant No.1 who in turn has alienated the scheduled property in favour of defendants-2 and 3. The plaintiffs have alleged that the sale of Item No.1 by their father Muniyappa was not for family necessity and having come to 5 know about the said alienation, they filed a suit stating that they have legitimate share in the suit schedule property.
4. On receipt of summons, defendants-1 to 3 tendered appearance and filed their written statement and stoutly denied the entire averments made in the plaint. The said defendants seriously disputed the status of wife and children of Muniyappa. The defendants further contended that the plaintiff No.1 left the house of deceased Muniyappa way back in the year 1963 and started living with one C.M.Venkataramana and therefore question of plaintiffs continuing as joint family members does not arise at all. The defendants also contended that the alienation by the plaintiffs ancestor was in the year 1994 and the suit is filed in the year 2006, and therefore plea of limitation was raised in the written statement.
5. To substantiate the claim, wife of deceased Muniyappa is examined as PW1 and got marked documents as per Exs.P1 to 10, while the defendants who are the purchasers have also let in evidence. Defendant No.1 is examined as DW1 and Defendant No.2 is examined as DW2 and rebuttal documentary evidence was adduced and marked as Exs.D1 to 6 D7. The trial Court having examined the record, answered Issue No.1 in affirmative and thereby recorded a finding that the plaintiffs have succeeded in proving that they constitute Joint Hindu Undivided Family and suit schedule properties are their ancestral properties, while examining Issue No.2, the Court held that defendants-2 and 3 failed to prove that they are bona fide purchasers. The trial Court answering additional Issue No.2 in negative held that the suit is well within time and accordingly decreed the suit granting half share to the plaintiffs. Feeling aggrieved by the judgment and decree of the trial Court, the defendants who are the purchasers filed Regular Appeal in RA No.24/2015.
6. The appellate Court has independently assessed the oral and documentary evidence. The appellate Court, while reappreciating the entire material on record has not gone into the alienation made by Muniyappa insofar as other items are concerned. The appellate Court found that the plaintiffs have admitted the sale deed of house property made in favour of one Srinath. While examining Ex.D4-compromise petition filed by the Srinath in O.S.No.423/2007, the appellate Court found that the plaintiffs have admitted in the said suit that the residential 7 house was sold in favour of shamanna and Srinath is legally valid and binding. The appellate Court on going through the material on record has taken note of the fact that during pendency of the present suit, the plaintiffs filed an application to delete the name of defendant No.4 in view of the compromise arrived at O.S.No.423/2007.
7. The Appellate Court has also examined the recitals in the sale deed executed by Muniyappa in favour of defendant No.1 by way of a registered sale deed 26.08.1994 and further examined that there is covenant in the sale deed indicating that sale was made by Muniyappa for legal necessity. The appellate Court has also come to the conclusion that the alienation is made by the Karta of the family and therefore, it will bind the plaintiffs. On these set of pleadings, the appellate Court reversed the finding recorded by the trial Court and allowed the appeal and consequently, dismissed the suit.
8. Heard learned counsel for the plaintiffs and learned counsel for the defendants.
9. The subject matter of the present appeal is only with regard to Item No.1, which was sold by first plaintiff's 8 husband and father of defendants-2 to 3 to defendant No.1. There is a clear recital in the registered sale deed indicating that Item No.1 was sold for legal necessity. Coupled with the recital in the sale deed, defendant No.1- purchaser has specifically averred in paragraph-2 of the written statement that late Muniyappa was compelled to sell the suit property for legal necessity. Therefore, the clinching evidence on record clearly establishes that first plaintiff's husband Muniyappa has alienated item No.1 for legal necessity. Therefore, it is the accepted position that on 26.8.1994, husband of first plaintiff alienated item No.1 property in favour of defendant No.1. It is a trite law that where Karta alienates joint Hindu family property for value either for legal necessity or benefit of estate it would bind the interest of all undivided members of the family even when they are minors or widows. The Apex Court in the case of Beereddy Dasaratharami Reddy .vs. V. Manjunath and another1 has held that Karta enjoys wide discretion over existence of legal necessity. The Apex Court was of the view that right conferred on Karta would bind on all non-alienating co-parceners where the alienation is for legal necessity. If 1 2021 SCC Online SC 1236 9 plaintiffs have admitted that alienation of a residential house was for legal necessity by the karta, they cannot selectively challenge the alienation of an agricultural land i.e. item No.1 in favour of defendant No.1.
10. If these significant details are looked into then two aspects are to be examined in the present case on hand, while the first sale deed dated 26.08.1994 by deceased Muniyappa, conveyed title in favour of defendant No.1. Defendant No.1 was in exclusive possession pursuant to the registered sale deed and he was enjoying the property till 2006. The first defendant in turn has sold it to defendants-2 and 3 under a registered sale deed dated 23.06.2006. The father of the plaintiffs-Muniyappa died on 13.06.2006 and the suit was filed by the legal representatives i.e., by widow and children on 03.02.2007 seeking relief of partition and separate possession. Though it is a trite law that non-alienating coparceners need not question the alienation, but a formal declaration needs to be asked for in a partition suit to the limited extent that the said alienation is not binding on their legitimate share. The said formal relief of declaration becomes far more relevant when the alienation is questioned by the legal representatives after passage of time. 10 If the father of the plaintiffs-2 to 4 had alienated Item No.1 way back in the year 1994 and if the property has changed hands by subsequent transfers, then the law mandates that the plaintiffs have to seek relief of declaration to declare that the alienation made by their ancestors is not binding on their legitimate share. The present kind of litigation is more ramphant and has become normal on account of price escalation. Therefore, the rights of the plaintiffs have to be examined not only in the context in their property rights but has to be meticulously and cautiously examined by looking into their conduct.
11. The rebuttal evidence rather indicates that the plaintiffs have selectively entered into compromise with other purchasers wherein they have admitted that the sale made by their father is valid and for legal necessity. The compromise petition and compromise decree are produced by the defendants vide Exs.D4 and D5 wherein the present plaintiffs admit the title of purchasers. Therefore, the short question that arises for consideration before this Court is, if the property has changed hands and if there is subsequent purchaser, whether his valuable rights acquired under the registered sale deed can 11 be taken away on the premise that alienated property is an ancestral property.
12. The Apex Court in the case of Chhedilal Yadav and others v. Hari Kishore Yadv (dead) through LRs. and others reported in (2018) 12 SCC 527 while dealing with the rights acquired by a party under a registered document was of the view that if a party acquired rights under the registered documents and the third party to be in a settled position and if the rights are crystallized, the same cannot be taken away by granting share in the property already alienated. If the parties complaining that the alienation have affected their right, if subsequent transfer and alienation is done in the present case, this Court would find that the plaintiffs in all property have no chance in the present partition.
13. The clinching rebuttal evidence clearly establishes that the sale made by Muniyappa was for legal necessity by producing the registered sale deed and by leading oral evidence, the defendants have discharged their burden that the sale was for legal necessity. This aspect gets further strengthened in the light of compromise entered into by the 12 plaintiffs with other purchasers wherein they have admitted that the alienation made by their father is legal and valid one. These significant details are dealt with by the appellate Court and the appellate Court has taken note of the subsequent details while reversing the finding and reasoning recorded by the trial Court. Therefore, this Court is of the view that the conclusion arrived at by the appellate Court is based on the clinching rebuttal evidence and has rightly set aside and reversed the judgment and decree of the trial court. Therefore, no substantial question of law arises for consideration.
14. Accordingly, the appeal is dismissed.
Sd/-
JUDGE TL