Karnataka High Court
Sri B S Sridhar S/O Late B K Shivaramaiah vs Sri A K Krishna S/O Late Itti Kelan on 4 July, 2022
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 4TH DAY OF JULY 2022
BEFORE
THE HON'BLE MR.JUSTICE ASHOK S. KINAGI
R. F. A. NO.918 OF 2006 (DEC)
BETWEEN:
SRI. B S SRIDHAR
S/O LATE B K SHIVARAMAIAH
AGED ABOUT 43 YEARS
R/AT. #103, "CHITRA", 7TH MAIN,
JAYALAKSHMIPURAM
MYSORE -571 102.
...APPELLANT
(BY SRI. C VINAY SWAMY & S K SHETTY, ADVOCATES)
AND:
1. SRI. A K KRISHNA
S/O LATE ITTI KELAN
AGED ABOUT 61 YEARS
R/AT SY NO.4 OF GUNDDENAHALLI VILLAGE
NEAR KOPPA, HARNAHALLI HOBLI
PERIYA PATNA TALUK - 571 107.
2. SMT. TSERING YANGIN
S/O LATE SAGE
AGED ABOUT 35 YEARS
R/AT BY LAKUPPE VILLAGE, HARNAHALLI HOBLI
PERIYAPATNA TALUK - 571 107.
....RESPONDENTS
(BY SRI. G. BALAKRISHNA SHASTRY, ADVOCATE FOR R-2
R-1 SERVED UNREPRESENTED)
2
THIS RFA IS FILED UNDER SECTION 96 OF CPC
AGAINST THE JUDGMENT AND DECREE DATED 24.1.2006
PASSED IN O.S.NO.124/97 ON THE FILE OF THE CIIVL
JUDGE (SR.DN), HUNSUR, DISMISSING THE SUIT FOR
DECLARATION, DELIVERY OF POSSESSION AND FOR
MESNE PROFITS.
THIS APPEAL COMING ON FOR FINAL HEARING THIS
DAY, THE COURT DELIVERED THE FOLLOWING:
JUDGMENT
The appellant aggrieved by the judgment and decree dated 24.01.2006, passed in O.S.No.124/1997 by the Civil Judge (Sr.Dn.), Hunsur, has filed this appeal.
2. The appellant is the plaintiff and respondents are the defendants before the Trial Court. Parties are referred to as per their ranking before the Trial Court.
3. Brief facts leading rise to filing of this appeal are as under:
Plaintiff filed a suit for partition and separate possession and mesne profit. It is the case of the plaintiff that the suit properties are the ancestral 3 properties of the plaintiff and his deceased father Sri.B.K.Shivaramaiah. The plaintiff being his only son was pursuing his independent avocation and his father being the head of the family was managing all the properties on behalf of the family. Plaintiff was under
the impression that family properties are looked after by his father and his interest was being safeguarded. As such, no necessity arose for him to enquire with his father with regard to any matter pertaining to the suit properties and other properties. When the plaintiff was in abroad, during the month of April 1995, his father passed away and to perform the religious ceremony, he had been to India. Thereafter, he went back to abroad and after finishing his higher studies, returned to India in the month of March 1997 and took over the management of the properties and to his shock and surprise, he learnt that the suit land was sold by his father under registered sale deed dated 24.12.1998, in favour of defendant No.1. It is 4 contended that plaintiff's father could not have sold the properties without his consent being one of the coparcener as he had ½ share in the suit schedule property. It is contended that the sale is not for any legal necessity and family necessity and the said sale deed is not binding on the interest of the plaintiff. As such, the plaintiff is entitled for share in the suit schedule property. The plaintiff after coming to know about the execution of the registered sale deed by his father in favour of defendant No.1, he got issued a legal notice to defendant No.1 calling upon him to deliver the possession of suit property and to pay the income derived therefrom. The defendant gave reply to the said legal notice. Hence the cause of action arose for the plaintiff to file the suit.
The defendants filed separate written statements admitting the relationship between the plaintiff and defendants' vendor. It is admitted that the father of the plaintiff was managing all the properties for and 5 on behalf of the family. It is denied that the father was well placed in the society and he had no liabilities. It is denied that the defendant No.1 got executed registered sale deed taking undue advantage of the old age and connected ailments. It is contended that the father of the plaintiff was in need of money for the litigation expenses in respect of inam lands along with his brothers against government. In order to meet out the litigation expenses and to discharge the hand loan, has sold the property in favour of defendant No.1 under registered sale deed dated 24.12.1988. It is contended that plaintiff was aware about the execution of registered sale deed in favour of the defendant No.1. The defendant No.1 is a bona fide purchaser for value without notice. It is pleaded that the father of the plaintiff owned and possessed more than 100 acres of land, one house at Mysore, 3 houses at Koppa and sites, out of which, a very minute portion is sold in favour of the defendants. 6 The defendant No.1 has sold it to defendant No.2, Smt. Tsering Yangin. Father of plaintiff has sold other properties in favour of third parties. The plaintiff has not included the said properties in the suit and has not challenged the alienation made by his father. It is pleaded that plaintiff has suppressed all the alienations and filed suit only against the defendants. It is denied that the sale was not for legal necessity. It is contended that the sale is for family and legal necessity. The suit is not maintainable for non-joinder of necessary parties and properties, and prayed to dismiss the suit.
The Trial Court, on the basis of pleadings, framed the following issues:
1. Whether the defendant No.1 proves that the sale deed dated 24.12.1988 with respect to the suit schedule property executed by the father of the plaintiff was for legal necessity?7
2. Whether plaintiff proves that the alleged sale deed dated 24.12.1988 executed by his father is not binding on him?
3. Whether the plaintiff is entitled for possession of the suit schedule properties?
4. Whether the plaintiff is entitled for past mesne profits and future mesne profits as prayed in the plaint?
5. Whether defendant proves that the suit is bad for non-joinder of necessary parties?
6. Whether the defendant proves that the suit as brought is not maintainable?
7. What decree or order?
The plaintiff in support of his case examined himself as PW-1 and got marked documents Ex.P1 to Ex.P6. The power of attorney holder of defendant No.2 got examined as DW-1 and got marked documents at Ex.D1 to Ex.D16. The Trial Court after recording the evidence and considering the material on record, held that the defendant No.1 has proved 8 that the sale deed dated 24.12.1988, with respect to the suit schedule property executed by the father of plaintiff was for legal necessity and recorded a finding that plaintiff has failed to prove that the alleged sale deed dated 24.12.1988 executed by his father is not binding on him. Further recorded a finding that the plaintiff has failed to prove the possession of the suit schedule property and further recorded a finding that the plaintiff is not entitled for past mesne profit and future mesne profit and held that the defendants have proved that suit is barred for non-joinder of necessary parties. Further recorded a finding that the suit filed by plaintiff is not maintainable and consequently dismissed the suit of the plaintiff. The plaintiff aggrieved by the dismissal of suit, has filed this appeal.
4. Heard learned counsel for the plaintiff and learned counsel for the defendant No.2. 9
5. Learned counsel for the plaintiff submits that the impugned judgment and decree is perverse and without consideration of material facts. He submits that the Trial Court has committed an error in noticing that there was no antecedent debt and further committed an error in recording a finding that the defendants have established that the sale is for legal necessity. He submits that there was no legal necessity for the father of the plaintiff to sell the suit property. Hence he submits that the Trial Court has committed an error in dismissing the suit of the plaintiff. Hence on these grounds, he prays to allow the appeal.
6. Per contra, learned counsel for the defendant No.2 supports the impugned judgment and decree. He submits that the father of the plaintiff has sold several properties in favour of third parties. He submits that the plaintiff has not challenged the sale deeds executed in favour of third parties. He further 10 submits that the suit is bad for non-joinder of necessary parties and also suit for partial partition is not maintainable. He submits that the father of the plaintiff has incurred a huge amount towards litigation expenses and he was in need of money and borrowed money. In order to clear the debt, has sold the suit property in favour of defendant No.1. The Trial Court, after considering the material on record, was justified in dismissing the suit of the plaintiff. Hence on these grounds, he prays to dismiss the appeal.
7. Perused the records and considered the submissions made by learned counsel for the parties.
8. The following points arise for my consideration:
(1) Whether the defendant No.1 proves that the father of the plaintiff executed the registered sale deed dated 24.12.1988, for the family and legal necessity?11
(2) Whether the plaintiff has made out any grounds to interfere with the impugned judgment and decree?
(3) What decree or order?
9. Point No.1: It is the case of the plaintiff that the suit property is the ancestral property of the plaintiff and his father and father of the plaintiff has no right to alienate the suit schedule property without the consent of the plaintiff. The said sale deed is not binding on the plaintiff. The sale is not for legal and family necessity. The plaintiff in order to prove his case, examined himself as PW-1. PW-1 in his examination-in-chief has deposed the nature of suit property and how it was acquired by his father. He has further deposed that from 1994 to 1997 he had gone to Germany for higher studies and after the death of his father he came back to perform the obsequies ceremony and returned back to abroad and after completing his higher studies, he came back to 12 Indian in the year 1997. After his return to India, he came to know about this sale. He has further deposed that after coming to know about the sale, he approached defendant No.1 to handover the property and also got issued a legal notice to defendant No.1. Hence he filed the suit. He has further deposed that his father had no legal necessity to alienate the suit schedule property and that his father has not spent any amount for his higher studies. He has further deposed that since he had reposed confidence in his father, he neither enquired or questioned the acts and deeds of his father nor verified the same. He has further deposed that his father did not take his consent to alienate the suit schedule property in favour of defendant No.1. He has further deposed that since he had half share in the suit schedule property, the sale deed is not legal. He has further deposed that at the time of alienation, his father was aged about 68 years and was suffering from blood 13 pressure and was also diabetic. PW-1 has also alleged that during that period, defendant No.1 with mala fide intention got the sale deed executed in his favour by the father of PW-1. In order to substantiate that plaintiff's father was suffering from blood pressure and diabetes, no material has been produced. Further, no evidence is let in to show that any pressure tactics was played or that any fraud was played upon his father by defendant No.1 to get this sale deed executed. Hence, the allegation made by PW-1 in his evidence has no basis and is liable to be rejected.
10. Defendant No.1 has pleaded in the written statement that the father of plaintiff was entangled in the long drawn litigation against the government in respect of land situated at Guddenahalli Village which came up to this Court in W.P.No.7996/1978 and in order to clear the debt incurred towards litigation expenses, has sold the said properties in favour of defendant No.1. There is a recital in Ex.D1 regarding 14 the necessity for putting the suit land for sale. The defendant has produced certified copy of the sale deeds executed by the father of plaintiff in favour of third parties and the said sale deeds are marked at Ex.D5 to Ex.D16. The plaintiff has not challenged the alienation made in terms of Ex.D5 to Ex.D16, except challenging the alienation made in favour of defendant No.1. From the perusal of Ex.D1, D5 to D16, the defendant No.1 has proved that the father of plaintiff was in need of money for litigation expenses and to clear the debts, has sold the suit property in favour of defendant No.1. The defendant No.1 has proved that the sale is for legal necessity. In view of the above discussion, point No.1 is answered in the affirmative.
11. Point No.2: The plaintiff has not included the said properties for partition in the present suit. Failure to include all the properties of the joint family in the suit, is not maintainable. The plaintiff has filed the suit challenging registered sale deed executed in 15 favour of defendant No.1 in the instant suit. In a suit for partition, the parties have to include all the joint family properties and also all coparceners. As observed above, the plaintiff has not included all the joint family properties and not challenged the registered sale deed executed by his father in favour of third parties. Hence, the suit filed by the plaintiff is not maintainable. The said view is supported by the decisions of this Court and Hon'ble Apex Court in the case of TUKARAM VS. SAMBHAJI & ORS., REPORTED IN ILR 1998 KAR 681, SRI. G. M. MAHENDRA VS. G. M. MOHAN, REPORTED IN 2011 (4) KCCR 2461 AND S.SATNAM SINGH & ORS. VS. SURENDER KAUR & ANR., REPORTED IN AIR 2009 SC 1089. As observed above, the suit for partial partition is not maintainable. The Trial Court, considering the material on record, was justified in passing the impugned judgment and decree. The plaintiff has not made out any grounds for 16 interference. Accordingly, point No.2 is answered in the negative against the plaintiff.
12. Point No.3: In view of the above discussion, I proceed to pass the following:
ORDER The appeal is dismissed.
SD/-
JUDGE RD