Karnataka High Court
George Julien Rajesh S/O Julien Jaykar vs S J Pavan Kumar D/O S M Jayashankar on 11 July, 2017
RSA NO.2167/2012(DEC)
1
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 11TH DAY OF JULY, 2017
BEFORE
THE HON'BLE MRS. JUSTICE K.S.MUDAGAL
R.S.A No.2167/2012 (DEC)
BETWEEN:
George Julien Rajesh,
S/o Julien Jaykar,
Aged about 37 years,
Sri Rama Estate,
Valnoor Thyagathur Village,
Somwarpet Taluk-571 236. ...Appellant
(By Sri.G.Balakrishna Shastry, Advocate)
AND:
1. S.J.Pavan Kumar,
D/o S.M.Jayashankar,
Aged about 27 years,
R/o.Roseland Estate,
Valnoor Thyagathur Village,
Somwarpet Taluk,
Kodagu District-571 236.
2. S.M.Jayashankar,
S/o Late S.S.Mariyappa,
Aged about 65 years,
R/o No.42, Roseland Estate,
Valnoor Thyagathur Village,
Somwarpet Taluk,
Kodagu-571 236. ...Respondents
RSA NO.2167/2012(DEC)
2
(By Sri.Pundikai Ishwara Bhat, Adv., for C/R1
(CP.No.762/12), R2 Served)
This RSA is filed under section 100 of CPC, against the
judgment and decree dt:27.07.2012 passed in R.A.No.82/2011
on the file of District and Sessions Judge, Kodagu, Madikeri,
dismissing the appeal filed against the judgment and decree
dt:05.08.2011 passed in OS.No.85/2004 on the file of Senior
Civil Judge, Madikeri.
This appeal coming on for further hearing this day,
the Court delivered the following:
JUDGEMENT
This second defendant's appeal arises out of the judgment and decree passed by the District Judge, Kodagu, Madikeri in R.A.No.82/2011. By the impugned judgment, the trial Court has dismissed the appeal and confirmed the judgment and decree of the trial Court in O.S.No.85/2004.
2. Appellant is the second defendant in O.S. No.85/2004 before the Senior Civil Judge, Madikeri. The first respondent filed the said suit against the appellant and his father, the second defendant. The second respondent is the second defendant in the said suit. For RSA NO.2167/2012(DEC) 3 the purpose of convenience the parties will be referred to hereafter with their ranks before the trial Court.
3. The subject matter of the appeal is the land bearing Sy.No.155/10, measuring 4.22 acres, situated at Thyagathur village of Somwarpet Taluk. Plaintiff filed the suit contending that in family partition dated 24.06.1991, the suit property was allotted to his share and thereby he has become the absolute owner of the suit schedule property. He further contended that during his minority, the second defendant has sold the suit schedule property under the registered sale deed dated 21.04.1993, adverse to his interest. Therefore, he contended that the same does not bind him. Hence he sought for declaration of his title and mesne profits.
4. The first defendant did not appear before the trial Court and contest the matter. The second defendant RSA NO.2167/2012(DEC) 4 filed the written statement and contested the suit. His defence in brief is as follows:
i) It is denied that the plaintiff is the absolute owner of the suit schedule property. The partition deed dated 24.06.1991 was a sham one and was not intended to be acted upon. The said partition was brought into effect for the purpose of income tax. Even after that plaintiff, first defendant and plaintiff's brother Hiran Kumar continued to be the members of the joint family. The first defendant sold the suit schedule property to him for valuable sale consideration to discharge the family debts.
Therefore, sale binds the plaintiff.
5. Initially, the plaintiff had not claimed the mesne profits and introduced that claim by an amendment. Second defendant filed additional written statement contending that plaintiff is not entitled for mesne profits as he has invested huge amount to develop the land.
RSA NO.2167/2012(DEC) 5
6. On the basis of the above pleadings, the trial Court framed the following issues and additional issues:
i) Whether the plaintiff proves that he is the absolute owner of the suit schedule property?
ii) Whether the plaintiff proves that sale deed dated 21.04.1993 executed by defendant No.1 in favour of defendant No.2 does not bind on him?
iii) Whether defendant No.2 proves that sale deed was executed by Defendant No.1 being the father as well as natural guardian of the plaintiff for legal necessity of his family?
iv) Whether defendant No.2 proves that he is a bonafide purchaser as averred in para- 8 to 10 of the written statement?
v) Whether the plaintiffs are entitled for the relief's as prayed for?
vi). What Order or decree?"
RSA NO.2167/2012(DEC) 6 ADDITIONAL ISSUES
i) Whether the plaintiff is entitled for current and future mesne profits as prayed in para-12 (aa) of the plaint?
ii) Whether the relief claimed in para-
12(aa) of the plaint is barred by
limitation?
7. The parties adduced evidence. On plaintiff's side P.W.1 is examined and Exs.P-1 to P-7 are marked.
On defendants' side D.W.1 and D.W.2 are examined and Exs.D.1 to D7 are marked. The trial Court after hearing the parties, partly decreed the suit granting declaration of title and possession and rejected the claim for future mesne profits on the following grounds:
i) Since the family partition between the plaintiff, first defendant and other members of the family under the registered partition deed dated 24.06.1991 is admitted, in the absence of the defendant No.1 RSA NO.2167/2012(DEC) 7 challenging the same, defendant No.2 cannot question that.
ii) The sale is hit by Section 8 of the Hindu Minority and Guardianship Act 1890,
iii) Defendant No.3 being a stranger to the family, cannot question the partition on the ground that it is inequitable.
iv) The sale deed Ex.P.1 itself states that the land is in neglected state and does not yield any income.
Moreover the said claim is introduced belatedly about 6 years of filing the suit, therefore claim for mesne profits untenable.
8. The second defendant challenged the said judgment before the Principal District and Sessions Judge, Kodagu, Madikeri in R.A. No.82/2011. In the said appeal the plaintiff filed the cross objections challenging the rejection of his plaint for future mesne RSA NO.2167/2012(DEC) 8 profits. Even before the First Appellate Court, the first defendant did not contest the matter.
9. The First Appellate Court on hearing the parties, by the impugned judgment dated 27.07.2012 dismissed the appeal. While dismissing the appeal the first appellate Court did not dispose of the cross objection of the plaintiff. Later he filed review petition No.1/2012 seeking disposal of the cross objection. The review petition came to be allowed on 10.01.2013 and cross objections were taken on record. The First Appellate Court after hearing on the cross objections, by the impugned judgment dated 02.02.2013 allowed the cross objections, reversed the judgment of the trial Court on mesne profits and decreed the suit for future mesne profits also.
RSA NO.2167/2012(DEC) 9
10. On 30.01.2014 the appeal came to be admitted for consideration of the following substantial questions of law:
"1. Whether both the Courts below were justified in decreeing the suit of the plaintiff, when admittedly, there is a defence to show that the alleged partition under Ex.P7 is only a make believe partition for the sake of convenience and in effect, there was no partition among the members of the family and that the entire property continued with 1st defendant as kartha of the joint family including himself, his son, plaintiff and other defendants?
2. Whether both the Courts below were justified in accepting that the partition vide Ex.P7 has taken place, without considering the evidence of plaintiff in accepting that he was never in exclusive possession of the suit property and against his specific admission in the Court below that the suit property was under the management of 1st defendant RSA NO.2167/2012(DEC) 10 together with other portions allotted to share of others as mentioned in Ex.P7?
3. Whether the suit for declaration is maintainable without specific prayer for cancellation of the sale deed, under which, 2nd defendant in the original suit is claiming title?"
11. Later the appellant filed IA No.2/2014 along with the certified copy of the subsequent judgment dated 02.02.2013 disposing of the cross objections and sought to raise additional grounds in the appeal memo. This Court vide order dated 22.03.2017 allowed I.A.No.2/2017 and permitted the appellant to raise the additional grounds. Since the question raised in the said additional grounds are already covered by the substantial questions of law framed, no additional question of law is framed.
RSA NO.2167/2012(DEC) 11
12. Learned counsel for the plaintiff filed I.A.No.1/2017 under Order 41 Rule 27 of C.P.C. to adduce additional evidence. Under the said application, the plaintiff seeks to produce the following documents:
i. Certified copy of the petition in Misc.Case No.26/1992 before the Civil Judge at Madikeri. ii. Certified copy of the objection filed by the Respondents in Mis.Case No.26/1992 before the Civil Judge at Madikeri.
iii. Certified copy of the order sheet in Misc. Case No.26/1992 before the Civil Judge at Madikeri.
13. The plaintiff contends that before the sale of the property in favour of defendant No.2, defendant No.1 filed Misc. Case 26/1992 under Section 8 of the Hindu Minorities and Guardianship Act seeking leave to sell the minor's properties. It is contended that the brothers, mother, paternal grand mother and uncle are the respondents in the said petition and they contested the petition. It is contended that the first defendant did not RSA NO.2167/2012(DEC) 12 prosecute the matter, hence, it came to be dismissed for non-prosecution and to bring that fact on record, the application under order 41 Rule 27 of C.P.C. is filed. Defendant No.2 filed objections and opposes the said application.
14. Sri G. Balakrishna Shastry, learned counsel for the appellant seeks to assail the impugned judgment on the following grounds:
i. Plaintiff himself admitted that even after the registered partition deed dated 24.06.1991 as per Ex.P.7
- plaintiff, defendant No.1, mother, brother and grand mother of the plaintiff continued to live jointly which shows that the partition deed - Ex.P.7 is only a nominal one;
ii. Under partition deed - Ex.P.7, defendant No.2 is allotted only 76 cents of land with responsibility of maintaining 2 sons and wife and major portion of the properties namely 8.13 acres is allotted to the plaintiff RSA NO.2167/2012(DEC) 13 the minor son and 14.13 acres to his brother Hiran Kumar, which shows that the partition was nominal one;
iii. The fact of first defendant not contesting the suit shows that the suit is collusive one;
iv. Since the evidence on record shows that first defendant supported the plaintiff in pursing his studies at the cities like Mangalore and Bangalore and that itself shows that same was for legal necessity;
v. The sale under Ex.P.7 is voidable under Section 8 of the Hindu Minorities and Guardianship Act, 1890.
Therefore, plaintiff ought to have sought for cancellation of the same. Therefore, the suit as framed is defective, the valuation of the suit is incorrect and Court fee paid is insufficient;
vi. As per Ex.P1 - sale deed, the property was not yielding income and defendant No.2 developed the land investing his huge hard earned money and sale consideration. Therefore, First Appellate Court RSA NO.2167/2012(DEC) 14 committed error in reversing the trial Court's judgment regarding the mesne profits;
vii. The Courts below over looked all the aforesaid aspects without assigning any reasons, therefore, impugned judgment is liable to be set aside. In support of his arguments he relies upon the following judgments:
1. Dhurandhar Prasad Singh -vs- Jai Prakash University and others: AIR 2001 SC 2552
2. Vishwambhar and Others -vs- Laxminarayana (Dead) through L.Rs. and another: 2001 AIR SCW 2616
3. Vidhyadhar -vs- Mankikrao and another: AIR 1999 SC 1441:
4. Smt. Gangabai -vs- Smt. Chhabubai: AIR 1982 SC 20
15. Sri Pundikai Ishwara Bhat, learned counsel for respondent seeks to support the impugned judgment on the following grounds:
RSA NO.2167/2012(DEC) 15 i. The partition deed - Ex.P.7 is admitted by the parties, until revocation of the same by the parties, it cannot be said that such document is not acted upon;
ii. Under Section 8 of the Hindu Minorities and Guardianship Act 1890, it is mandatory to seek permission of the Court for sale of the property.
Therefore, transaction in favour of the plaintiff is hit by the said section;
iii. The documents produced by way of additional evidence show that even before the sale as per Ex.P.7, defendant No.1 attempted to seek permission of the Court for alienation of the property, but that contention was not pressed & pursued and petition was dismissed for non-prosecution, in the light of that, it was not open for the first defendant to sell the property without leave of the Court;
iv. Nowhere, the plaintiff has admitted that defendant No.1 initially supported him for his education. Even RSA NO.2167/2012(DEC) 16 otherwise, it is the duty of the father to bring up his minor son. That does not lead to the conclusion that partition deed is nominal, one more so when the uncle and other members of the family have taken their share and enjoying them separately;
v. There is no need to seek declaration of sale deed.
16. In support of his arguments he relied upon the following judgments.
1. Mallikarjuna -vs- Marappa & Others: ILR 2007 KAR 5357
2. Subhrid Singh @ Sardool Singh -vs- Randhir Singh & Ors; AIR 2010 SC 2807.
17. The Apex Court in the case of Santosh Hazari, Vs. Purushottam Tiwari reported in AIR 2001 SCC 965 has held that the scope of interference in the second appeal is very narrow and what is to be considered is whether there is a substantial question of law to be decided in the case. It is further held that RSA NO.2167/2012(DEC) 17 on question of facts, the first appellate Court is the last Court and that cannot be reagitated or reconsidered in the second appeal. It is further held that even on the question of law, the first appellate Court is the last Court and only matter that is to be considered in the second appeal is the substantial question of law.
18. What are the substantial questions of law is explained in para 14 of the judgment which is relavant for the purpose of this case is as follows:
"A point of law which admits of no tow opinions may be a proposition of law but cannot be a substantial question of law. To be 'substantial', a question of law must be debatable, not previously settled by law of the land or a binding precedent, and must have a material bearing on the decision of the case, if answered either way, in so far as the rights of the parties before it are concerned. To be a question of law involving in the case there must be first a foundation for it laid in RSA NO.2167/2012(DEC) 18 the pleadings and the question should emerge from the sustainable findings of fact arrived at by Court of facts and it must be necessary to decide that question of law for a just and proper decision of the case. An entirely new point raised for the first time before the High Court is not a question involved in the case unless it goes to the root of the matter. It will, therefore, depend on the facts and circumstance of each case whether a question of law is a substantial one and involved in the case, or not; the paramount overall consideration being the need for striking a judicious balance between the indispensable obligation to do justice at all stages and impelling necessity of avoiding prolongation in the life of any lis."
This Court has to examine the matter in the light of the above principles.
19. Some of the admitted facts are as follows:
(i) The plaintiff is the son of the first defendant;
RSA NO.2167/2012(DEC) 19
(ii) There is a registered partition deed dated 24.06.1991 between the plaintiff, first defendant, younger brother and mother of the first defendant, plaintiff's elder brother S.J.Hiran Kumar and the sons of plaintiff's uncle Udayashankar;
(iii) under Ex.P.7 that the suit property is allotted to the share of the plaintiff;
(iv) First defendant has sold the property to the second defendant under the registered sale deed dated 21.04.1993;
(v) The date of birth of plaintiff is 28.04.1984 and at the time of execution of sale deed of Ex.P1, he was aged 9 years, still minor;
(vi) First defendant has not taken permission of the Court for such sale.
20. The second defendant succeeds in the appeal only if his contention that the partition deed -
RSA NO.2167/2012(DEC) 20 Ex.P.7 is only a nominal document and was not acted upon. Therefore, the burden of proving the fact that partition under Ex.P.7 was nominal and not acted upon is on the second defendant.
21. As already pointed, the first defendant- father did not contest the suit at all. Even assuming that the second defendant steps into his shoes, he had to prove that the document - Ex.P.7 was nominal one.
22. There is no dispute that the uncle of the plaintiff, who was allotted share under Ex.P.7 has taken his share and living separately. Hence, the transaction under Ex.P.7 cannot be split to say that part of it is intended to be acted upon and partly it was only nominal. In addition to that, relying on the oral and documentary evidence, both the Courts below have held that there was a partition under Ex.P.7 RSA NO.2167/2012(DEC) 21 between the family members and the suit property had fallen to the share of the plaintiff.
23. In the absence of proof of reunion in food, worship and properties, the contention that plaintiff/PW.1 has admitted in his cross-examination that himself, his father and brother continued to live together alone does not advance the case of the appellant. The fact of the uncle of the plaintiff taking his share and living separately and the other evidence on record show that document Ex.P.7 is acted upon. Therefore, there is no merit in the contention that the partition was not acted upon.
24. Once contention of the second defendant that Ex.P7 was not intended to be acted upon or not acted upon is rejected, the question of sale being for legal necessity etc., does not survive at all. Moreover, on PW1 denying that his father - first defendant RSA NO.2167/2012(DEC) 22 spending for his education, the burden lies on the defendants to prove that defendant No.1 incurred or sold the property for the welfare of the plaintiff. Defendants have failed to adduce any evidence to substantiate such contention. Therefore, the suit property becomes the absolute property of plaintiff by virtue of partition under Ex.P7. On holding so, it becomes mandatory for the first defendant to obtain permission of the Court as required under Section 8 of the Hindu Minority and Guardianship Act, 1956.
25. In this context the documents produced under I.A.No.1/2017 throw some light in the matter.
26. Production of document at the appellate stage is governed under Order 41 Rule 27 of CPC. The appellate Court can permit the parties to adduce evidence on the following three conditions:
RSA NO.2167/2012(DEC) 23
1) If despite due diligence of the parties seeking to produce sale evidence, could not produce them.
2) If trial Court refused to receive the said evidence or
3) If the document sought to be produce are required for the effective adjudication of the matter.
27. Having regard to the discussions made above judgments in Sri Narayan Bal's case, Vishwambhar's case and Ram Awadh's case referred supra are not applicable to the facts of the case.
28. So far as need of seeking declaration to set aside the sale deed, the Hon'ble Apex Court in Suhrid Singh's case referred to supra in Paras 6 and 7 has held as follows:
"6. Where the executant of a deed wants it to be annulled, he has to seek cancellation of the deed. But if a non-executant seeks annulment of a deed, he has to seek a RSA NO.2167/2012(DEC) 24 declaration that the deed is invalid, or non est, or illegal or that it is not binding on him. The difference between a prayer for cancellation and declaration in regard to a deed of transfer/conveyance, can be brought out by the following illustration relating to 'A' and 'B' - two brothers. 'A' executes a sale deed in favour of 'C'. Subsequently 'A' wants to avoid the sale. 'A' has to sue for cancellation of the deed. On the other hand, if 'B', who is not the executant of the deed, wants to avoid it, he has to sue for declaration that the deed executed by 'A' is invalid/void and non-est/illegal and he is not bound by it. In essence both may be suing to have the deed set aside or declared as non- binding. But the form is different and court- fee is also different. If 'A', the executant of the deed, seeks cancellation of the deed, he has to pay ad-valorem court-fee on the consideration stated in the sale deed. If 'B', who is a non-executant, is in possession and sues for a declaration that the deed is null or void and does not bind him or his share, he RSA NO.2167/2012(DEC) 25 has to merely pay a fixed court-fee of Rs.19.50 under Article 17(iii) of Second Schedule of the Act. But if 'B', a non- executant, is not in possession, and he seeks not only a declaration that the sale deed is invalid, but also the consequential relief of possession, he has to pay an ad valorem court-fee as provided under Section 7(iv)(c) of the Act. Section 7(iv)(c) provides that in suits for a declaratory decree with consequential relief, the court-fee shall be computed according to the amount at which the relief sought is valued in the plaint. The proviso thereto makes it clear that where the suit for declaratory decree with consequential relief is with reference to any property, such valuation shall not be less than the value of the property calculated in the manner provided for by clause (v) of Section 7.
7. In this case, there is no prayer for cancellation of the sale deeds. The prayer is for a declaration that the deeds do not bind the "coparcenery" and for joint possession. The plaintiff in the suit was not the executant RSA NO.2167/2012(DEC) 26 of the sale deeds. Therefore, the court-fee was computable under Section 7(iv)(c) of the Act. The trial court and the High Court were, therefore, not justified in holding that the effect of the prayer was to seek cancellation of the sale deeds or that, therefore, court-fee had to be paid on the sale consideration mentioned in the sale deeds."
29. The above judgment is a complete answer to the contention that the plaintiff ought to have sought declaration that the sale deed is null and void and paid the ad valorem Court fee. There is no merit in the contention.
30. As per defendant No.2 himself, he is entitled to take all the defence that is available to the first defendant. He contends that since Ex.P7 is nominal one and not intended to be acted upon, he was not required to take permission of the Court under Section 8 of Hindu Minority and Guardianship Act, 1956. The RSA NO.2167/2012(DEC) 27 documents said to be produced are the certified copies of the petition and objection statements.
31. Documents produced with I.A.No.1/2017 reveal that they are produced and marked in O.S.No.85/2004 before the Hon'ble Civil Judge(Sr.Dn), Kodagu at Madikeri. Those documents show that the first defendant filed a petition under Section 8 of Hindu Minority and Guardianship Act, 1956 seeking leave of the Court for sale of the property nos.155/10, 155/56 and 154/4 to one N.K.Pemmaiah who is DW1 in this case. Out of them, Sy No.155/10 is the subject matter of this suit. If at all Ex.P7 was nominal and not intended to be acted upon, there was no need for defendant No.1 to apply for permission to sell the properties. Further, he did not prosecute the said matter and that came to be dismissed for non- prosecution. Having regard to that the defence that the RSA NO.2167/2012(DEC) 28 partition under Ex.P7 was not intended to act upon or nominal one etc., is not open to any of the defendants. The Court is satisfied that the documents said to be adduced in I.A.No.1/2017 are required for effective adjudication of this matter. Therefore, I.A.No.1/2017 is allowed.
32. So far as awarding the future mesne profits, in Ex.P1 sale deed it is said that the property is in uncultivable condition without any income. Such property is sold to defendant No.2. His contention that he purchased the said property for the purpose of research and progressive farming and he developed the property is not disputed. Defendant No.2 has purchased the property for a valuable consideration of Rs.2,12,000/- on 21.04.1993.
RSA NO.2167/2012(DEC) 29
33. Section 2 (12) of Code of Civil Procedure defines the "mesne profit" of property, which reads thus:
"Those profits which the person in wrongful possession of such property actually received or might with ordinary diligence have received therefrom, together with interest on such profits, but shall not include profits due to improvements made by the person in wrongful possession".(emphasis supplied)
34. From the evidence on record it is clear that at the time of the sale the property was not yielding any income and if defendant no.2 received any income from the land later, it is only because of the developments made by him. Further the sale transaction under Ex.P.1 is not void ab-initio but that is voidable one.
RSA NO.2167/2012(DEC) 30
35. The plaintiff filed suit after two years of he attaining majority. The trial Court noting the conduct of the plaintiff in amending the plaint to seek mesne profits after seven years of the filing of the suit and the above said facts, rejected the claim for mesne profits. The First Appellate Court after two years of disposal of the appeal, took up cross-objections for hearing and granted mesne profits without considering the above said aspects. Therefore, impugned judgment insofar as grant of mesne profits does not sustain. Hence, appeal succeeds to that extent and allowed partly. The substantial questions No.1, 2 and 3 are answered accordingly.
36. The impugned judgment and decree dated 27.7.2012 in R.A.No.82/2011 on the file of the District and Sessions Judge, Kodagu, Madikeri is hereby partly set aside. The suit is partly decreed.
RSA NO.2167/2012(DEC) 31
37. It is declared that the plaintiff is absolute owner of the suit schedule property. The second defendant is hereby directed to handover the possession of the suit property to the plaintiff within one month from the date of receipt of copy of this order. The prayer for mesne profits is rejected. Draw the decree accordingly. No order as to cost.
Sd/-
JUDGE HR