Karnataka High Court
Mahadev Talawar vs Irappa Hatti on 3 April, 2018
Author: Krishna S Dixit
Bench: Krishna S. Dixit
IN THE HIGH COURT OF KARNATAKA
DHARWAD BENCH
DATED THIS THE 03rd DAY OF APRIL 2018
BEFORE
THE HON'BLE MR. JUSTICE KRISHNA S. DIXIT
REGULAR SECOND APPEAL NO.244 OF 2005 (DEC)
BETWEEN:
1. MAHADEV TALAWAR,
S/O.KAREPPA TALAWAR,
AGED ABOUT 40 YEARS,
R/AT MADARKHANDI, TQ-JAMKHANDI,
DIST-BAGALKOTE.
2. SADASHIV TALAWAR,
S/O.KAREPPA TALAWAR,
AGED ABOUT 38 YEARS,
R/AT MADARKHANDI, TQ-JAMKHANDI,
DIST-BAGALKOTE.
3. SATTEPPA TALAWAR,
S/O.KAREPPA TALAWAR,
AGED ABOUT 25 YEARS,
R/AT MADARKHANDI, TQ-JAMKHANDI,
BAGALKOTE.
4. SMT.KASAWWA TALAWAR,
W/O.KAREPPA TALAWAR,
AGED ABOUT 60 YEARS,
R/AT MADARKHANDI, TQ-JAMKHANDI,
DIST-BAGALKOTE.
.....APPELLANTS
(BY SRI.MRUTYUNJAY TATA BANGI, ADVOCATE FOR APPELLANTS)
2
RSA.No.244/05
AND:
1. SHRI.IRAPPA HATTI,
S/O.PANDAPPA HATTI,
AGED MAJOR, R/AT MADARKHANDI,
TQ-JAMKHANDI, DIST-BAGALKOTE.
NOW DECEASED BY L.Rs.
R1(a) SMT.VENKAVVA W/O.IRAPPA HATTI,
AGED ABOUT 75 YEARS, OCC-HOUSE HOLD,
R/AT MADARKHANDI, TQ-JAMKHANDI,
DIST-BAGALKOTE.
R1(b) SMT.INDRAVVA W/O.SHEKAPPA BADANUR,
AGED ABOUT 46 YEARS, OCC-HOUSEHOLD,
R/AT MELLIGERI, TQ-MUDHOL,
DIST-BAGALKOTE.
R1(c) SMT.PADAVVA W/O.RAMAPPA METAGUD,
AGED ABOUT 54 YEARS, OCC-HOUSEHOLD,
R/AT MANTUR, TQ-MUDHOL,
DIST-BGALKOTE.
R1(d) SMT.SHARAVVA W/O.VENKAPPA SANKRATTI,
AGED ABOUT 45 YEARS, OCC-HOUSEHOLD,
R/AT TUNGAL, TQ-JAMKHANDI,
DIST-BAGALKOTE.
LRs BROUGHT ON RECORD BY VIRTUE OF THE
ORDER PASSED ON IA.NO.2/2016 DTD.21.6.2017.
2. SHRI.RAMAPPA HATTI,
S/O.IRAPPA HATTI,
AGED MAJOR, R/AT MADARKHANDI,
TQ-JAMKHANDI, DIST-BAGALKOTE.
3. SHRI.LAXMAN HATTI,
S/O.IRAPPA HATTI,
AGED MAJOR, R/AT MADARKHANDI,
TQ-JAMKHANDI, DIST-BAGALKOTE.
3
RSA.No.244/05
4. SHRI.KAREPPA TALAWAR,
S/O.PARASAPPA TALAWAR,
AGED ABOUT 65 YEARS,
R/AT MADARKHANDI, TQ-JAMAKHANDI,
DIST-BAGALKOTE.
.....RESPONDENTS
(BY SRI.DINESH M.KULKARNI, ADV. FOR R-1(a) TO (d))
(BY SRI.M.C.HUKKERI, ADVOCATE FOR R-2 AND 3)
(BY SRI.RAJASHEKAR PASAPPAGOL, ADVOCATE FOR R-4)
THIS APPEAL IS FILED UNDER SECTION 100 OF CPC
AGAINST THE JUDGMENT AND DECREE DATED 10.11.2004 PASSED
IN R.A.NO.6/1997 ON THE FILE OF THE DISTRICT AND SESSIONS
JUDGE AND PRESIDING OFFICER, FAST TRACK COURT,
JAMAKHANDI ALLOWING THE APPEAL AND SETTING ASIDE THE
JUDGMENT AND DECREE DATED 26.11.1996 PASSED IN
O.S.NO.113/1989 (OLD O.S.NO.101/1982) ON THE FILE OF THE
PRL.MUNSIFF, JAMKHANDI.
THIS APPEAL HAVING BEEN HEARD AND RESERVED FOR
JUDGMENT ON 21.03.2018, COMING ON FOR
PRONOUNCEMENT OF JUDGMENT THIS DAY, THE COURT
DELIVERED THE FOLLOWING:
JUDGMENT
This Regular Second Appeal is directed against the Judgment and Decree dated 10.11.2004 passed by the learned District and Sessions Judge, Jamakhandi in R.A.No.6 4 RSA.No.244/05 of 1997, whereby the Judgment and Decree dated 26.11.1996 entered by the learned Principle Munsiff, Jamakhandi in O.S.No.113 of 1989 (Old O.S.No.101 of 1982) decreeing the suit have been reversed.
2. This Court admitted the matter vide order dated 09.01.2006 by framing the following substantial question of law :-
"Whether the finding of the first Appellate Court setting aside the Judgment and Decree passed by the trial Court and dismissing the suit of the Plaintiff is perverse and arbitrary being contrary to law and material on record as the Plaintiff had made alternative prayer for decreeing the suit for partition and separate possession of Plaintiff's share in the schedule properties?"
3. The brief facts stated are :
The Appellants i.e. two sons and their mother had filed O.S.No.104 of 1968 against their father-Kareppa for partition and separate possession of suit land. It came to be decreed on 29.06.1968 in terms of a Compromise Petition, where under
04 Acres, 02 Gunthas of land was allotted to father-Kareppa 5 RSA.No.244/05 and remaining 10 Acres, 31 Gunthas of land was allotted to Plaintiffs i.e., two sons and the mother.
4. Thereafter on 18.06.1976 their father sold 04 Acres, 02 Gunthas out of 10 Acres, 31 Gunthas of land that was allotted to plaintiffs under the said Compromise Decree. The suit in O.S.No.101 of 1982 is filed by the Appellants herein in which the after-born-son too is a party i.e. Plaintiff No.3 for setting aside the said alienation. The Respondents entered appearance and filed their separate Written Statements resisting the suit claim. Inter alia contending that, the family was a joint Hindu family notwithstanding the 1968 Partition Decree ; father-Kareppa was the karta of the family ; he has alienated a small portion of the joint family property, since there was a legal necessity for defraying the loans taken for the marriage of his sisters, the Compromise Decree is null and void.
5. The suit came to be decreed on 26.11.1996 whereby the Sale Deed dated 18.06.1976 was held not binding on the plaintiffs. Both the Plaintiff and the Defendants led the 6 RSA.No.244/05 evidence in support of their respective versions. Several documents were also marked on either side.
6. The 1st Appellate Court reversed the Judgment and Decree of the trial Court on the ground that: the Compromise Decree dated 29.06.1968 was a nullity, since it was not drawn up on a duly stamped paper; the suit was a collusive proceeding, as contended by the Defendant alinee ; the Compromise Decree was not acted upon by the parties; the after born son did not have any litigable right. The 1st Appellate Court further observed that, there was no disruption of joint family status inasmuch as Plaintiff No.3 was born subsequent to Compromise Decree and that the 1976 alienation was for the legal necessity of the family.
7. The counsel for the Appellants submits that, the Judgment and Decree of the 1st Appellate Court are bad because the Judgment and Decree of the trial Court remain to be valid and effective, though they are not engrossed on stamp paper although engrossment could be a condition precedent for the enforceability of the Decree. He draws 7 RSA.No.244/05 difference between validity of a Decree and enforceability of a Decree based on paragraph No.14 of the Judgment of Apex Court in the case of Hameed Joharan v. Abdul Salam reported in (2001) 7 SCC 573 which reads as under :
" 14. Needless to record that engrossment of stamped paper would undoubtedly render the decree executable but that does not mean and imply however, that the enforceability of the decree would remain suspended until furnishing of the stamped paper--this is opposed to the fundamental principle on which the statutes of limitation are founded.
8. Per contra, the counsel for the Respondents submits that, a Decree if not engrossed on duly stamped paper is a nullity and that it would not bring into existence an intended transaction. He relied upon para No.21 of the Judgment of Calcutta High Court reported in AIR 1988 Cal 1 in the case of Bholanath Karmakar and Others v.Madanmohan Karmakar and Others which reads as under :
8RSA.No.244/05
"21. We would accordingly hold that the decree for partition does not become enforceable until the same is engrossed on requisite stamp papers and, therefore, the period of limitation for its execution shall not begin to run under Article 136 of the Limitation Act of 1963 until the decree is so drawn up. That being so, as indicated at the very outset, we would accordingly hold that the execution in this case was not barred by time and we would allow the revision." .
9. I have carefully considered the arguments and the counter arguments advanced at the bar as to validity of a Compromise Decree which has not been engrossed on the stamp paper. The Argument that a Decree is a nullity till it is so engrossed is too farfetched and is not supported by the ruling of Calcutta High Court mentioned above. No such ratio decidendi emanates from it. Therefore, I accept the contention of the learned counsel for the Appellants and hold that, the Compromise Decree in question is effective and valid.
10. The counsel for the Appellants next contends that, the Plaintiffs had become the owners of 10 Acres 31 Gunthas 9 RSA.No.244/05 of land including 04 Acre, 02 Guntha alienated by the father and therefore the said alienation is bad as being one made without the leave of the Court, since interest of the minors was involved. He quotes the provisions of the Hindu Minority & Guardianship Act, which require the permission of the Court for alienating minor's interest in property.
11. The learned counsel for the Respondents per contra contends that, for alienating the interest of the minor member of the family in the joint Hindu family property there is no need for taking any permission from any Court if such alienation is for legal necessity. This argument proceeds on a premises that there is a joint Hindu family which owns joint property. However by virtue of the Compromise Decree having been held to be valid and effective, there is disruption of joint status of the family and therefore this argument of the learned counsel for the Respondents is liable to be rejected.
12. The learned counsel for the Appellants invokes the provisions of Section 5 and 7(A) of the Karnataka Village Offices Abolition Act, 1961 which prohibit alienation of re- 10 RSA.No.244/05 granted land for a period of 15 years and therefore the alienation in question was legally invalid since alienation within this period. In support of this contention he relied upon a Full Bench Judgment of this Court in the case of Sayed Bhasheer Ahamed v.State of Karnataka reported in 1994 (1) KLJ 385 paragraph 30 of the Judgment, which reads as under :
"30. What emerges from the above discussion may be summarized thus, in continuation and clarification of the ten answers given in Lakshmana Gowda ((1981) 1 Kant LJ 1) :
(a) xxxxxx
(b) Under Ss.5(1) and 6 of the Act, any holder of a village office or any authorised holder has a vested right to obtain re-grant of the service inam land, which was held by him immediately before 1-2-1963 (that is as at the end of 31-1-1963) subject to payment of occupancy price in terms of the Act and the Rules; the fact that the holder or authorized holder had alienated the land and divested himself of possession of the land after 1-2-1963 and before 7-8-1978 will not disentitle him, to re-grant under S.5(1) or 6 of the Act, as what is relevant 11 RSA.No.244/05 for re-grant is holding of such land of the end of 31-1-1963.
(c) Alienation of service Inam land between 1-
2-1963 and 7-8-1978, by a holder or an authorized holder before re-grant, is not invalid, as he had a vested right to get re-
grant and as there was no bar regarding alienation during that period; but the alienee will be a person with imperfect title entitled to continue in possession and when the land is re-granted to the alienor, the title obtained by the alienor will enure to the benefit of the alinee ;"
13. The learned counsel for the Respondents per contra, contends that nowhere in the above full Bench Judgment it is stated that, the alienation of re-granted property before the expiry of 15 years from the date of re- grant is null and void. He also points out that the material facts invoking for the proposition advanced by the counsel for the Appellants are lacking in this Appeal and therefore the larger question may not be treated at all. There is lot of force in this contention of the learned counsel for the Respondents 12 RSA.No.244/05 and therefore I accept the same and leave the question unanswered since this Appeal can be disposed off without touching the said question, which does not relate to the substantive question of law framed in the case.
14. The counsel for the Respondents next submits that, the Compromise Decree being more in the nature of a contract was never acted upon and therefore what happens to an non-acted-upon-contract happens to this Decree inasmuch as a Compromise Decree is nothing but a contract between the parties with super added seal of the Court. A Decree of a competent Court be it the result of full fledged trial or a settlement between the parties possesses validity and efficacy on its own. It is sanctity and enforceability are su igenerous, regardless of parties acting or not acting on it. Therefore the finding of the lower Appellate Court cannot be faltered.
15. It is true that, a Compromise Decree is invariably founded upon an agreement concluded between the parties. It is also true that, a Compromise Decree is contract with a seal of the Court superadded. But the argument that a 13 RSA.No.244/05 Compromise Decree is nothing more than that is the contract between the parties appears to be two farfetched. The validity and efficacy of a Compromise Decree did not differ from that of a Decree made after a full-fledged trial. A Compromise Decree is no less executable than an ordinary Decree. Therefore the contention that, the said Decree has not been acted upon and consequently it is ceases to be a Decree is not legally acceptable. Therefore this contention of the counsel for the Respondents fails.
16. The counsel for the Respondents next contends if the Compromise Decree did not result into disruption of the statutes of the family in the eye of law, then joint Hindu family continues. This is supported by the fact that Appellant No.3 is born after the Compromise Decree and therefore the alienation was by the Defendant in his capacity as 'Karta' for the legal necessity. He points out that, the very Sale Deed dated 18.06.1976 itself states that, Defendants' father acted as the 'Karta' for and on behalf of the minor member of the 14 RSA.No.244/05 family too, since the money was required for discharging the family debts incurred on account of sisters marriage.
17. The contention of the learned counsel for the Respondents that the Compromise Decree being a nullity in the eye of law and that the same has lost its efficacy because the parties did not act upon it and consequently the joint Hindu family continuous have already been considered above and rejected. Therefore the contention founded on the said premises that there is no disruption of the status of the joint Hindu family in the eye of law. the contention that, the very Sale Deed dated 18.06.1976 whereby alienation was made itself speaks about the Defendants' father being the karta of the family. As a consequence of this, the contention that the Defendants' father had alienated the property for legal necessity of the family fails.
18. He next contends, the lower Appellate Court grossly erred in treating the question of collusive proceeding without specifically framing an issue and without putting the same to the Appellants to answer the same; even otherwise also there 15 RSA.No.244/05 is no sufficient pleadings and evidence for treating the said issue. Thus, the principles of natural justice are grossly violated inasmuch as the Appellants/Plaintiffs were not afforded a reasonable opportunity of hearing on this important issue. Therefore, this finding of the Court below is upset.
19. Per Contra, the learned counsel for the Respondents submits that, the question of framing an issue as to collusive proceeding pales into insignificance inasmuch as parties have fought the legal battle with the full understanding as to what were the battle lines. He also points out that, the Apex Court has laid down the law to the effect that non framing of the issues is irrelevant if parties went to trial after knowing the questions to be addressed in the suit. But the counsel is not in a position to point out as to how this proposition is invocable in the case inasmuch as at no point of time the opposite parties were given any inkling by the Appellate Court that the issue of collusive proceeding was involved in the case. Therefore, I reject this contention and accept the contention of the counsel for the Appellants and 16 RSA.No.244/05 hold that, there is absolutely no material to record the finding as to their being collusive proceeding.
20. All other contentions which both the sides have loosely urged in the course of hearing have not been considered since they were miles away from the substantive questions of law framed in this case.
21. In the above facts and circumstances I make the flowing:-
ORDER The Regular Second Appeal is allowed ; the impugned Judgment and Decree dated 10.11.2004 passed by learned District and Sessions Judge and Presiding Officer, Fast Track Court, Jamakhandi in RA.No.6 of 1997 have been reversed and consequently, the Judgment and Decree dated 26.11.1996 made by the learned Principal Munsiff, Jamakhandi in O.S.No.113 of 1989 (Old OS.No.101 of 1982) are revived and restored.
Costs made easy.
Sd/-
ckk JUDGE