Karnataka High Court
Shri. R. Sundararajan vs Smt. Alamelamma on 3 August, 2022
Author: Jyoti Mulimani
Bench: Jyoti Mulimani
1
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 3RD DAY OF AUGUST, 2022
BEFORE
THE HON'BLE MS. JUSTICE JYOTI MULIMANI
MISCELLANEOUS SECOND APPEAL NO.85 OF 2015
BETWEEN:
SHRI.R.SUNDARARAJAN
S/O LATE R.RAJAGOPAL,
AGED ABOUT 58 YEARS,
R/AT NO. E902, MANTRI ELEGANCE,
BEHIND SHOPPERS STOP,
BANNERUGHATTA ROAD,
BENGALURU - 560 076.
PRESENTLY R/AT: FLAT NO. 41,
PLOT NO. 82, NELAE,
4TH MAIN, 4TH CROSS,
BANNERGHATTA ROAD,
BENGALURU - 560 076. ... APPELLANT
(BY SRI.ASHOK B.PATIL., ADVOCATE)
AND:
1. SMT.ALAMELAMMA
W/O SELVA KUMAR,
AGED ABOUT 41 YEARS,
CLAIMING TO BE
R/AT NO. 57, DADDY'S GARDEN LAYOUT,
KAMMASANDRA VILLAGE,
ELECTRONIC CITY POST,
ANEKAL TALUK,
BENGALURU RURAL DISTRICT.
2. MR.D.H.BRITTO,
S/O.G.S.BRITTO,
2
AGED ABOUT 57 YEARS,
R/AT NO.104, 1ST FLOOR,
VIDYANAGAR, OPP. S.K.F.,
BOMMASANDRA,
ATTIBELI HOBLI, ANEKAL TALUK,
BANGALORE RURAL DISTRICT.
3. MRS.RENUKA BRITTO,
W/O.D.H.BRITTO,
AGED ABOUT 51 YEARS,
R/AT NO.104, 1ST FLOOR,
VIDYANAGAR, OPP. S.K.F.,
BOMMASANDRA,
ATTIBELI HOBLI, ANEKAL TALUK,
BANGALORE RURAL DISTRICT.
4. SHRI.K.V.VENKATARAMAIAH,
S/O K.VENTAKAPPA,
AGED ABOUT 66 YEARS,
R/AT NO. 57, DADDY'S GARDEN LAYOUT,
KAMMASANDRA VILLAGE,
ELECTRONIC CITY POST,
ATTIBELI HOBLI, ANEKAL TALUK,
BANGALORE RURAL DISTRICT.
SHRI.K.V.NARENDRA BABU
S/O.K.V.VENKATARAMAIAH,
SINCE DECEASED BY HIS LRS
5. S.SUMANGALA,
W/O.K.V.NARENDRA BABU,
AGED ABOUT 34 YEARS.
6. CHANDAN.N
S/O. LATE K.V.NARENDRA BABU,
AGED ABOUT 12 YEARS.
7. N.CHAITANYA
S/O.K.V.NARENDRA BABU,
AGED ABOUT 4 YEARS.
LRS R6 AND R7 BEING MINORS ARE
REPRESENTED BY THE NEXT FRIEND
3
AND NATURAL GUARDIAN THE
MOTHER, RESPONDENT NO.5
R5 TO 7 ARE R/AT NO.57,
DADDY'S GARDEN LAYOUT,
KAMMASANDRA VILLAGE,
ELECTRONIC CITY POST,
ATTIBELI HOBLI, ANEKAL TALUK,
BANGALORE RURAL DISTRICT.
8. SHRI.H.NAGARAJ
S/O.HANUMAPPA,
AGED ABOUT 57 YEARS,
R/AT:HEBBAGODI,
ATTIBELI POST, ANEKAL TALUK,
BANGALORE RURAL DISTRICT.
...RESPONDENTS
(BY SRI G.A.VISWANATHA REDDY, ADVOCATE FOR R1;
NOTICE TO R2 TO R8 ARE DISPENSED WITH)
THIS MSA IS FILED UNDER ORDER 43 RULE 1(u) OF
CIVIL PROCEDURE CODE, 1908.
THIS MSA HAVING BEEN HEARD AND RESERVED FOR
JUDGMENT, COMING ON FOR PRONOUNCEMENT OF JUDGMENT
THIS DAY, THIS COURT DELIVERED THE FOLLOWING:
JUDGMENT
Sri.Ashok Patil, learned counsel for appellant and Sri. G.A.Vishwanath Reddy, for the first respondent have appeared in person.
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2. The facts are quite simple.
The Appellant is the Decree - Holder in Execution No.24/2011 on the file of the Senior Civil Judge and JMFC at Anekal which was filed against respondents 2 to 6. The decree is one for possession of the property bearing No.86/5, Jenger No.3056, Sl.No.2644, Assessment Register No.86/5 measuring to an extent of 3276 square feet.
The first respondent claiming to be the daughter of the fourth respondent filed an application under Order 21 Rule 97, 99, 101 read with Section 151 of CPC objecting the delivery of possession on the ground that she has 1/3rd share in the said property being the daughter of the fourth respondent. It is also said that the property in question is ancestral in nature. In paragraph 8 of the affidavit in support of the application, she has stated that her father sold the suit property to one Britto (JDR No.1) under sale deed dated:31.10.2002 who in turn sold the same to the 5 decree holder under a registered sale deed dated:14.05.2003.
The appellant opposed the said application by filing objections in which it was contended the father of the applicant had sold the said property in favor of Britto who is judgment debtor No.1 under a sale deed dated:31.10.2002 and the he purchased the property from Britto under a sale deed dated:14.05.2003 and therefore, she has no right in the said property and hence she cannot challenge the sale transactions.
The first respondent did not choose to lead any evidence on her application. In view of the admitted position that the first sale took place in the year 2002 and the second one in the year 2003, the Executing Court posted the case to hear the application on 29.02.2012 and the case was posted at intervals up to 16.02.2013. It is stated that the first respondent did not appear in the proceedings at all. The appellant filed written arguments dated:17.07.2012 along with a ruling of the Hon'ble Apex 6 Court reported in (2011) 9 SCC 788. Ultimately, by order dated:16.03.2013 the application filed by the first respondent came to be dismissed by a considered order.
The first respondent filed an appeal in R.A.No. 108/2013 against the dismissal of her application before the Court of III Additional District and Sessions Judge, Bangalore Rural District, Sitting at Anekal on the ground that the property is joint family property and she has 1/3rd undivided share and she was not made party in the suit. The appellant contested the appeal and urged that the sale having been made much before 20.12.2014 hence the first respondent cannot claim any equal share in the property in question by virtue of section 6 of the Hindu Succession Act 1956. It is also said that a comprehensive written arguments dated 27.06.2015 were also filed in this regard.
As things stood thus, the first respondent filed an application under Order 41 Rule 27 of CPC seeking leave to produce some documents as additional evidence. The said application was objected to by the appellant. Reply written 7 arguments were filed on 06.08.2015. The Appellate Court by judgment dated:26.10.2015 allowed the appeal and remanded the matter to the Execution Court with a direction to dispose of the same in accordance with Order 21 Rule 98 to 103 of CPC in the same manner as is done in a suit.
It is this remand order which is challenged in this Miscellaneous Second Appeal on several grounds as set out in the Memorandum of Second Appeal.
3. Learned counsel for appellant and respondent No.1 have urged several contentions.
4. Sri.Ashok Patil., learned counsel for appellant has relied upon the following decision:
(2020) 9 SCC 1 - VINEETA SHARMA Vs. RAKESH SHARMA AND OTHERS.
5. Sri.G.A.Viswanatha Reddy., learned counsel for respondent No.1 has relied upon the following decisions: 8
1. ILR 2005 KAR 568 - DODDAMMA Vs. MUNIYAMMA AND OTHERS.
2. 2003 (1) KCCR 711 - M.S. KHALID AND ANOTHER Vs. K.R. RANGASWAMY AND ANOTHER.
3. ILR 1991 KAR 254 - MESSERS PARAMOUND INDUSTRIES Vs. C.M. MALLIGA.
4. 2003 (2) KCCR 1363 - GOWRAMMA Vs. MUNIVENKATAMMA.
5. 1974 (1) KAR.L.J 44 - ERIAH VS BASAPPA ALIAS MALLAIAH AND OTHERS.
6. AIR 1998 SC 1827 - SHREENATH AND ANOTHER Vs. RAJESH AND OTHERS.
7. AIR 1987 A.P. 206 - SMT. TAHERA SAYEED Vs. M. SHANMUGAM AND OTHERS.
8. AIR 2004 KAR 450 - U.G. SRINIVAS RAO Vs. VINAYKUMAR S.RAO AND OTHERS.
9. 1987 (3) KLJ 240 - ANNEPPA SHARANAPPA HALKAI VS BABU RAO SHARANAPPA HALKAI AND OTHERS.
10. AIR 1966 SC 470 - M.V.S. MANIKAYALA RAO Vs. M.NARASIMHASWAMI AND OTHERS.
11. 2008 (3) KCCR 1551 - SRI.
VENKATARAYAPPA Vs. SRI. G.MUNIYAPPA AND OTHERS.
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6. Heard the contentions urged on behalf of appellant and respondent No.1 and perused the records with care.
7. The case really falls within a small compass. The execution case was simple, but as it went on appeal, it has widened out.
Suffice it to note that the appellant being the plaintiff filed a suit on the file of Senior Civil Judge and JMFC at Anekal in O.S.No.1993/2006 (Old Case No. O.S.No.18/2006) against one Mr.D.H.Britto, Mrs.Renuka Britto, K.V.Venkataramaiah, K.V.Narendra Babu and H.Nagaraj seeking the relief of cancellation of sale deeds and possession. The suit came to be dismissed by the Trial Court vide Judgment and Decree dated:28.08.2010. The appellant preferred an appeal in R.A.No.296/2010 and the Appellate Court decreed the suit holding that sale deed dated:13.12.2004 registered as document No.19788/2004-05 and 19789/2004-05 in the office of the 10 Sub-Registrar, Anekal executed by D.H.Britto in favor of Venkataramaiah are cancelled and also directed the third and the fourth defendant to hand over possession of the suit property vide Judgment and Decree dated:19.03.2011. It is noticed that D.H.Britto and Mrs.Renuka Britto preferred an appeal before this Court in R.S.A No.1643/2011 and this Court on 24.05.2012 dismissed the appeal.
Pursuant to the decree for possession, the appellant filed Execution Petition against the third and fourth defendants in Execution No.24/2011. It is interesting to note that the first respondent claiming herself to be the daughter, moved an application under Order 21 Rule 97, 99 and 101 read with Section 151 of CPC and objected and resisted execution.
The application is filed along with the appeal memo. I have perused the same with utmost care. It is filed by one Alamelamma wife of Selvakumar. Smt.Alamelamma has sworn to an affidavit. It is stated that the suit schedule 11 property is joint family property. In paragraph 8 of the affidavit, she has stated that her father K.V.Venkataramaiah has sold the property to one Britto under a registered sale deed dated:31.10.2002 who sold the same to Decree Holder vide registered sale deed dated:14.05.2003.
While addressing argument, Sri.G.A.Vishwanath Reddy learned counsel for the first respondent submitted that the suit property is Inam land and it is a joint family property. The first respondent being a coparcener has an undivided interest.
By way of answer, Sri.Ashok Patil, learned counsel for appellant strenuously urged that the property in question has already been sold by the father of the first respondent. It is also submitted that the first respondent has no right in the property and counsel has drawn attention of the Court to Proviso to Section 6 of the Hindu Succession Act, 1956 (As amended by Act No.39 of 2005). 12
I have considered the rival contentions urged on behalf of respective parties.
I think, it is helpful to refer to Section 6 of the Hindu Succession Act, 1956 (As amended by Act No.39 of 2005) in indicating the right approach.
6. Devolution of interest in coparcenary property.-- (1) On and from the commencement of the Hindu Succession (Amendment) Act, 2005 (date of commencement 09.09.2005), in a Joint Hindu family governed by the Mitakshara law, the daughter of a coparcener shall,--
(a) by birth become a coparcener in her own right in the same manner as the son;
(b) have the same rights in the coparcenary property as she would have had if she had been a son;
(c) be subject to the same liabilities in respect of the said coparcenary property as that of a son, 13 and any reference to a Hindu Mitakshara coparcener shall be deemed to include a reference to a daughter of a coparcener:
Provided that nothing contained in this sub-section shall affect or invalidate any disposition or alienation including any partition or testamentary disposition of property which had taken place before the 20th day of December, 2004.
The proviso to Section 6 is plain and clear. All dispositions, alienations, testamentary dispositions including partition effected prior to 20.12.2004, shall not be reopened. In the present case, the alienation has effected prior to the cut off date. Hence, the first respondent cannot question the same and she has not right to claim share on the ground that she is a coparcener.
I find it necessary to say that the issue is no longer res-integra. The law in this regard is also recently well 14 settled by the Apex court in VINEETA SHARMA's case. The law has not been altered. Therefore, I have no hesitation in concluding that the first respondent being the objector has failed to establish that the she is having undivided interest in the property. The contention of the appellant that the first respondent has no right is to be accepted.
Learned Counsel Sri.G.A.Viswanatha Reddy., in presenting his argument on behalf of the first respondent drew attention to the fact that there is a non-compliance of provisions of Order 21 of the Code and vehemently contended that the Executing Court has not followed the procedure as contemplated while adjudicating the dispute.
On the other side, Sri.Ashok Patil., learned counsel for the appellant submitted that the first respondent has no right, hence the application itself is not maintainable. It is also submitted that the first respondent did not participate in the proceedings. Hence, the Executing Court 15 considered the matter on merits and is justified in dismissing the application.
I have considered the submission.
It is not in dispute that the first respondent except objecting the Execution, did not lead any evidence and she has not participated in the proceedings. There was no participation by the first respondent in the Executing Court. Hence, the Executing Court having left with no other option to post the case from date to date and ultimately proceeded to hear the appellant and dismissed the application on merits.
No doubt, the objections under Order 21 Rule 97 or 99, the claim petition is required to be heard and decided as it were a suit. All the questions relating to right, title and interest in the property, which is the subject matter of the Execution, may have to be decided by the Court, but neither the result nor the execution proceedings would be 16 vitiated if the entire procedure of the suit were not followed in deciding the objection.
The contention of the first respondent must necessarily fail for the simple reason that the objector is none other than the daughter of the judgment debtor and she is bound by the decree. Further, as already noted above, when she has no right, she cannot maintain application for obstruction. In my opinion, the Executing Court is justified in dismissing the applications. The Executing Court is also justified in directing to issue possession warrant to the Tahasildar, Anekal for handing over the possession of the schedule property as per the decreetal demand.
As already noted above, the first respondent did not participate in the proceedings. Hence, the contention must necessarily fail.
I may venture to say that the Appellate Court has failed to have regard to relevant considerations and 17 disregarded relevant matters. I have no doubt at all that the decision at which the learned Judge arrived is substantially against the provisions or canons of the provisions of the Code. The judgment or the order should have been the other way. In my considered opinion, the order of remand is totally against the canons of Civil Procedure Code.
As is well known that Order 41 Rule 23 of the Code of Civil Procedure deals with remand in other cases i.e., where the Court from whose decree an appeal is preferred has disposed of the case otherwise than on a preliminary point, and the decree is reversed in appeal and a re-trial is considered necessary, the Appellate Court shall have the same power as it has under Rule 23.
Suffice it to note that the Apex Court in NADAKERAPPA (SINCE DECEASED) BY LRS. AND OTHERS VS. PILLAMMA (SINCE DECEASED) BY LRS. AND OTHERS reported in AIR 2022 SC 1609 has held that an order of remand cannot be passed for the mere 18 purpose of remanding a preceding to the Trial Court or to the Tribunal. An endeavor has to be made by the Appellate Court to dispose of the case on merits. It is also held that where both the sides have led oral and documentary evidence, the Appellate Court has to decide the appeal on merits instead of remanding the case to the Trial Court or to the Tribunal.
In the present case also, the Appellate Court has remanded the matter without any justification. It is needless to say that the power of remand should be exercised sparingly.
The facts and circumstances of the case do not illustrate that the matter requires a remand. For the reasons stated above, I have no hesitation to say that the order of remand is unjust and illegal.
Counsel for the first respondent has cited a number of cases, but I do not think that the law is in doubt. Each 19 decision turns on its own facts. The present case is also tested in the light of the aforesaid decisions.
The substantial question of law is answered accordingly.
Resultantly, the appeal is allowed. The Judgment and decree dated:26.10.2015 passed by the Court of III Additional District and Session Judge, Bengaluru Rural District sitting at Anekal in R.A.No.108/2013 is set aside. It is needless to say that the order dated:16.03.2013 passed by the Court of Senior Civil Judge and JMFC at Anekal in Execution No.24/2011 is confirmed.
Sd/-
JUDGE TKN