Karnataka High Court
Shekarappa B Ballolli Since Decd By His ... vs Gangavva on 21 February, 2014
Author: A.V.Chandrashekara
Bench: A.V.Chandrashekara
1
IN THE HIGH COURT OF KARNATAKA,
DHARWAD BENCH
DATED THIS THE 21ST DAY OF FEBRUARY, 2014
BEFORE
THE HON'BLE MR. JUSTICE A.V.CHANDRASHEKARA
RFA NO.11/2007 (PAR)
C/W
RFA NO.1823/2007
IN RFA.NO.11/2007:
BETWEEN:
SHEKARAPPA B BALLOLLI
SINCE DECEASED BY HIS LRS
1. SHARADAVVA,
W/O SHEKARAPPA BALLOLLI
AGE:56 YEARS
2. SHYLAJA
W/O BASAVARAJ KHOT
AGE:34 YEARS
3. UMA
W/O BASAVARAJ BENHAL
AGE:29 YEARS
4. SUMA
W/O AYYAPPA SHETTAR
AGE:28 YEARS
5. SHANTA
D/O SHEKARAPPA BALLOLLI
AGE:21 YEARS
6. VERATAPPA
S/O SHEKARAPPA BALLOLLI
AGE:16 YRS, MINOR, REP BY
BY HIS MOTHER AND NATURAL MOTHER
2
AND NATURAL GUARDIAN APPELLANT NO.1
SHARADAVVA.
ALL ARE R/O KUSHTAGI VILLAGE
DIST: KOPPAL-584121.
... APPELLANTS
(BY SRI. G I GACHCHINAMATH &
SRI. VEERESH H.M., ADVS.)
AND
1. GANGAVVA
W/O BASAPPA KARADI
AGE:50 YEARS, HOUSE WIFE,
R/O NAIKWADI STREET,
HALE BAZAR, KUSHTAGI,
DIST: KOPPAL-584121.
2. SOMASHEKAR
S/O VEERABHADRAPPA VIJAPUR
A/O 40 YEARS, BUSINESSMAN
R/O SAINATH WINE STORES
KOKILA CIRCLE, KUSHTAGI,
DIST: KOPPAL-584121.
... RESPONDENTS
(By Sri. M G NAGANURI & SRI. S V DESHPANDE,
ADVS. FOR R1,
SRI.RAVI.S.BALIKAI, ADV. FOR R2)
IN RFA NO 1823 OF 2007:
BETWEEN
GANGAVVA
W/O BASAPPA KARADI
AGED ABOUT 50 YEARS
HOUSEWIFE
R/O KUSHTAGI
3
DIST KOPPAL
... APPELLANT
(By Sri. M G NAGANURI & S V DESHPANDE, ADVS.)
AND
1. SOMASHEKAR
S/O VEERABHADRAPPA VAIJAPUR
AGED ABOUT 40 YEARS
BUSINESSMAN
R/O SAINATH WINE STORES
TQ AND DIST KOPPAL.
2. SMT SHARADAVVA
W/O SHEKARAPPA BALLOLLI
AGED ABOUT 57 YEARS
R/OF KUSHTAGI VILLAGE
DIST KOPPAL.
3. SHYLAJA
W/O BASAVARAJ KHOT
AGED ABOUT 35 YEARS
R/OF KUSHTAGI VILLAGE
DIST KOPPAL.
4. UMA
W/O BASAVARAJ BENHAL
AGED ABOUT 30 YEARS
R/OF KUSHTAGI VILLAGE
DIST KOPPAL.
5. SUMA
W/O AYYAPPA SHETTAR
AGED ABOUT 29 YEARS
R/OF KUSHTAGI VILLAGE
DIST KOPPAL.
6. SHANTA
D/O SHEKARAPPA BALLOLLI
AGED ABOUT 22 YEARS
R/OF KUSHTAGI VILLAGE
4
DIST KOPPAL.
7. VEERATAPPA S/O SHEKARAPPA BALLOLLI
AGED ABOUT 17 YEARS, MINOR R/BY HIS
MOTHER AND NATURAL GUARDIAN SHARADAVVA
R/OF KUSHTAGI VILLAGE DIST KOPPAL
ALL ARE LRS OF DECEASED SHEKARAPPA
B BALLOLLI.
... RESPONDENTS
(BY SRI SRI.RAVI.S.BALIKAI, ADV. FOR R1
SRI.G.I.GACHCHINMATH & SRI.VEERESH H.M.
FOR R-2 TO R-7)
THESE RFAs ARE FILED U/S 96 OF CPC AGAINST
THE JUDGEMENT AND DECREE DATED 26.09.2006
PASSED IN OS.NO.126/1998 ON THE FILE OF THE CIVIL
JUDGE (SR.DN.) KOPPAL, PARTLY DECREEING THE SUIT
FOR PARTITION AND SEPARATE POSSESSION.
THESE APPEALS HAVING BEEN HEARD AND
RESERVED FOR JUDGMENT AND COMING FOR
PRONOUNCEMENT OF JUDGMENT ON THIS DAY, THE
COURT DELIVERED THE FOLLOWING:-
JUDGMENT
Both these appeals filed under Section 96 of CPC have arisen out of the considered judgment in an original suit bearing O.S.No.126/1998, which was pending on the file of the Court of Civil Judge (Sr.Dn.), Koppal. Appellants in RFA No.11/2007 are the defendants 1(a) to 1(f) in the said suit. Respondent Somashekar, in both these appeals is the second defendant in the said suit. First defendant Shekarappa, 5 died during the pendency of the suit and hence, his legal representatives have been brought on record in the trial Court.
2. Suit filed by the plaintiff-Gangamma in O.S.No.126/1998 had been resisted by second defendant Somashekar. The said suit has been decreed in part by a considered judgment dated 26.09.2006 and it is this judgment and decree, which is called in question on various grounds by plaintiff Smt.Gangamma by filing an appeal in RFA No.1823/2007 and legal representatives of defendant No.1 in RFA No.11/2007. Hence, both these appeals will be taken up together for disposal by a common judgment. Parties will be referred to as plaintiff and defendants 1 and 2 as per their ranking given in the trial Court.
3. One person by name Veratappa is no more. He had a wife by name Kurubasamma and she is also no more. The plaintiff Gangamma is the only daughter to her parents Veratappa and Kurubasamma. The 6 deceased first defendant Shekarappa was the only son and elder brother of Gangamma and he died during the pendency of the suit.
4. Veratappa had both ancestral properties and self-acquired properties and he died intestate. Shekarappa, being the only son was looking after the schedule properties i.e., three buildings as described in the schedule appended to the plaint, as the manager of the joint family. He agreed to sell the suit item No.1 bearing House No.1292 bearing Town Panchayat Sl.No.2282 situated in Kushtagi town of Koppal in favour of second defendant Sri.Somashekar for a consideration of Rs.1,36,000/-. Even prior to the execution of the agreement of sale in favour of second defendant, the second defendant was in possession of the premises as a tenant. He is running a wine shop in the said premises bearing House No.1292. Since the vendor-Shekarappa did not come forward to execute a regular sale deed on the basis of the agreement of sale executed by him, second defendant Somashekar chose 7 to file a suit for the relief of specific performance by means of a suit in O.S.No.68/1994 before the Court of Civil Judge at Koppal of erstwhile, Raichur District. The said suit ended in a compromise and it was agreed between the parties that if a sum of Rs.1,36,000/- were to be returned by Shekarappa to the plaintiff therein within one year from the date of the agreement, Somashekar, would not enforce the agreement of sale. It is further mentioned that if the agreed sum of Rs.1,36,000/- is not returned within a year as agreed in the compromise petition, he could execute the decree and get the sale deed from the Court in respect of property bearing No.1292 bounded on the East: by house of the defendant, West:Road, North:Malige bearing No.1293/4 and South:Open space.
5. Shekarappa did not repay the amount in time as agreed. After the expiry of one year's time, he chose to file an application under Section 148 of CPC requesting the Court to extend time so that he could deposit Rs.1,36,000/-. The petition was filed in 8 Misc.No.63/1995 and the petition was dismissed after contest. Later on decree holder Sri Somashekar, i.e., second defendant herein enforced the decree by filing an Execution Petition in E.P.No.176/96. The evidence of Shekarappa is recorded in E.P.No.176/96 and he is examined as PW1.
6. In the meanwhile, plaintiff Gangamma chose to file a suit seeking partition and separate possession of her share in the suit schedule properties bearing House No.1292, 1293/3 and House No.1293/4. According to her, first defendant Shekarappa was addicted to vices and that he did not look after the joint families properly and that her brother even had gone to the extent of agreeing to sell her undivided share in favour of second defendant without her consent. According to her, the decree obtained in O.S.No.68/1994 does not bind her and that it is a collusive decree. It is averred that as a co-sharer, she is entitled to the right of preemption as provided under Section 22 of Hindu Succession Act. 9 With these pleadings, she had requested the Court to grant her share.
7. The first defendant did not file written statement, but after his death, his legal representatives chose to file a detailed written statement with clear averment that the alienation made by Shekarappa was not for legal necessity and that the suit properties are the absolute properties of Veratappa. Virtually they had sailed with the plaintiff.
8. Second defendant chose to file a detailed written statement denying all the material averments. According to him, schedule properties are the ancestral properties of deceased Veratappa and that first defendant Shekarappa was managing all the properties as the Manager and that he had repaid loan to him and that he was the absolute owner of item No.1 and therefore he believed his words and agreed to purchase the property for a consideration of Rs.1,36,000/-. It is his case that the plaintiff very well knew about the 10 agreement of sale executed by her brother in his favour and consequently suit was filed in O.S.No.68/94 and the same ended in a compromise and Misc. Petition was filed in Misc.No.63/1995 by Shekarappa seeking extension of time to pay Rs.1,36,000/-. It is his specific case that having failed in all his attempts, deceased first defendant chose to set up his sister to file a suit. Hence the present suit is rolus vexatious and collusive in nature. It is his further case that two agricultural lands bearing No.423/E and 3/2 of Kushtagi are the ancestral properties of Veratappa and they have been mutated in the name of Shekarappa's wife and that they have not been purposefully included in the suit. Therefore he has averred that the suit is not maintainable for non- joinder of all the family properties in the suit. Alternatively, he has requested the Court to work out equities and allot the property in question to the share of defendant No.1 so that the property in question could be allotted to him eventually. With these pleadings, he had requested the Court to dismiss the suit. 11
9. After filing the written statement by the second defendant, plaintiff chose to file a rejoinder as contemplated 8 Rule 9 CPC stating that second defendant cannot get any title under the agreement of sale and that the decree obtained for specific performance does not create any absolute right in favour of the second defendant, more particularly, when the sale deed is got executed after the filing the suit. It is her case that plaintiff and first defendant have been in joint possession of the suit properties and that both defendants 1 and 2 have colluded to defeat her legitimate share. It is her case that her father had given sufficient money to the deceased first defendant to put up building in the suit schedule property and hence her father wanted Shekarappa to transfer the agricultural lands in her favour in lieu of the financial assistance provided by him. Therefore, it is her case that she has become the absolute owner of the agricultural lands and they are not joint family properties. It is her case that she has filed a petition under Section 22 of Hindu Succession Act in Misc.No.54/1998 seeking right of 12 peremption as contemplated under Section 22 of Hindu Succession Act.
10. On the basis of the above pleadings following issues came to be framed on 26.06.2001:
1. Does Plaintiff prove that all the suit properties were the self-acquired properties of her father?
2. Does plaintiff prove that the decree in O.S.NO.68/94 passed between defendant nos.1 and 2 is not binding on her with respect to house property bearing no.1292?
3. To what share the plaintiff is entitled?
4. Does defendant no.2 prove that he is a bonafide purchase for value without notice?
5. What order or decree?
11. Plaintiff is examined as PW1 and she has got marked two exhibits. Defendant No.2 is examined as DW1 and D1(b) is examined as DW2. In all seven 13 exhibits have been got marked on behalf of the defendant No.2. After hearing the arguments and analysing the evidence placed on record, the learned Civil Judge has answered issues 1 and 4 in the affirmative and 2 in the negative. Ultimately the suit has been allowed in part granting half share in items 2 and 3 and suit is dismissed in respect of item No.1. It is this considered judgment and decree dated 26.09.2006 which is called in question by the plaintiff and legal representatives of the deceased defendant No.1 separately under Section 96 of CPC.
12. Several grounds have been urged in the memorandums of appeal filed before this Court. Learned Counsel for the appellant-plaintiff has vehemently contended that the deceased first defendant had only half right in the suit properties and therefore, he could not have alienated the entire suit item No.1 without her consent and therefore the decree obtained for specific performance does not bind her in entirety. It is further argued that it is in this regard, petition came 14 to be filed under Section 22 of Hindu Succession Act to enforce her right of per-emption in order to purchase the share of her brother more particularly, when the compromise decree has not attained finality. It is further contended that the non-inclusion of two agricultural lands is not fatal to the present case, since they stand in the name of defendant No.1(a) wife of late Shekarappa.
13. It is further argued that the sale deed executed by the Court pursuant to a compromise decree is not maintainable, more particularly, when it is executed during the pendency of the original suit filed in O.S.No.126/98 and the Misc. Petition filed under Section 22 of Hindu Succession Act.
14. Learned Counsel appearing for the appellants has submitted that the trial Court could not have dismissed the suit against item No.1, more particularly, when the very compromise petition is not maintainable either in law or on facts. The trial Court is stated to 15 have adopted a wrong approach to the real state of affairs insofar as it relates to item No.1. It is further argued that the trial Court has unnecessarily held that two items of agricultural land are the joint family properties and that they been have left out. After hearing the arguments and perusing the records the following point arise for consideration of this Court:
"Whether the trial Court is justified in dismissing the suit in respect of item No.1 bearing House No.1292, Town Panchayat Sl. No.2282?"
REASONS
15. Relationship between the parties is not in dispute. Second defendant Somashekar is the purchaser of the property of item No.1 from deceased first defendant Shekarappa. Admittedly, Shekarappa died during the pendency of the suit and his wife and children have been brought on record. The second defendant has not challenged the finding given on issue No.1. The trial Court has specifically held that all the three items of properties described in the schedule 16 appended to the plaint are the self-acquired properties of Veratappa, father of plaintiff and grandfather of defendant No.1(b) to 1(f) and father-in-law of defendant No.1(a). After the death of Veratappa, Shekarappa became the sole surviving co-parcener. Plaintiff also has equal right in respect of the suit schedule properties as they were self-acquired properties of Veratappa. Defendant No.2 has taken a specific stand that land in Sy.Nos.423/E and 3/2 of Kushtagi, have been mutated in the name of defendant No.1(a), inspite of those properties being ancestral properties of Veratappa. According to him, these properties have not been intentionally included in the suit and hence suit is liable to be dismissed. Specific defence is taken up to this effect in paragraph-5 of page No.3 of the written statement of defendant No.2. Of course, no specific issue has been framed to this effect stating that the suit is not maintainable for not including of the ancestral properties, more particularly, a suit being filed by Gangamma, the daughter of Veratappa, seeking partition and separate possession of the joint family 17 properties. But anyhow parties have led evidence in regard to this aspect knowing fully well the controversy surrounding these two lands. Hence non-framing of a specific issue about suit being for partial partition only does not assume much importance.
16. Gangamma herself has been examined as PW1. She has reiterated the contents of the plaint in her examination-in-chief in the form of affidavit. She has admitted in her cross-examination that her father Veratappa had 4 acres 12 guntas in Sy.No.3/2 and 8 acres in Sy.No.423/E of Kushtagi. The record of rights given in pahani patrika to these two lands issued by Tahsildar Koppal, Kushtagi, in the year 2003-04 have been got marked by the Counsel by the defendants after confronting the same to her. They have been got marked as Exs.D1 and D2. She has further admitted that these properties indicated in Exs.D1 and D2 had come to her father from his father. Therefore, these two agricultural lands were ancestral properties at the hands of Shekarappa, the only son and hence the 18 ancestral at the hands of his sons also. These properties have not been included knowing fully well that they are ancestral properties.
17. These two agricultural lands bearing Sy.Nos.3/2 and 423/1 and 2 of Kushtagi, have been mutated in the name of defendant No.1(a) Sharadavva, by late Shekarappa and Ex.D7 is the copy of the mutation. Mutation was effected on 25.02.1981 by Revenue Inspector Kushtagi, after accepting the report of the Village Accountant. What is mentioned in Ex.D7 is that an application had been filed by Shekarappa requesting the Tahsildar to mutate khata of these two lands in the name of his wife, as the khatedar Veratappa was dead. Revenue entries do not confer any title in favour of the persons whose names find a place in the revenue records, unless they are supported by valid documents. Thus these revenue entries do not take away the character of these properties as ancestral properties of Shekarappa and his children. Nothing is 19 forthcoming as to why this mutation was got done in her name.
18. On the other hand, PW1 has termed that her brother and her sister-in-law are living together and were cultivating these lands jointly. It is her case that no share is given to her in respect of these two lands as indicated in Exs.D1 and D2. Inspite of having a right to seek share in respect of these two properties, she has not included these two properties intentionally.
19. In fact the attempt had been made by the plaintiff to give an explanation as to why the name of her sister-in-law Sharadavva, is mutated in respect of these two lands, in the rejoinder which came to be filed on 26.09.2000 stating that her brother Shekarappa had availed financial assistance from the father of Sharada Bai at the time of constructing houses and since he could not repay the same, his father-in-law i.e., the father of Sharadabai had told him to transfer these lands in favour of Sharada Bai and therefore, these 20 properties have been given to Sharada Bai. But not even a single word is spoken to by DW1 about the contents of rejoinder which is part and parcel of the pleadings of PW1. In the light of not speaking anything about the contents of rejoinder in her evidence, it can be held with certainty that the two agricultural lands indicated in Exs.D1 and D2 are the ancestral properties and they have been purposefully left out in a suit filed for the reliefs of partition and separate possession.
20. Admittedly, PW1 was living along with her husband who was teacher. Her marriage was solemnized 30 years prior to 2004 and this is evident from her deposition recorded on 05.10.2004. By the time she tendered evidence before the trial Court during 2004 her husband had already retired 4 or 5 years earlier. It is her case that she was living with her husband in the places of his posting. She has deposed that she came to know of the change of khata in favour of her sister-in-law at the instance of Shekarappa and that she came to know of this after death of her father. 21 She has further deposed that she came to know of the suit being filed by second defendant Somashekar against her brother Shekarappa in respect of item No.1 about ten years earlier and that she came to know from her mother. She has admitted that Shekarappa, was looking after the affairs of the joint family being the elder member of the family, she came to know that second defendant had obtained an agreement of sale from Shekarappa. It is culled out from her mouth that a decree had been obtained by Somashekar against her brother and that her mother and her elder brother were in cordial terms till her mother died.
21.Admittedly her mother died after the agreement was executed and suit was filed by second defendant against the deceased first defendant and more particularly, after the compromise was entered into. Inspite of having known about the suit filed by second defendant against her brother she did not object to the same. What is deposed by her is that she is ready to purchase half share by paying the requisite money. 22 Though she has denied the suggestion put to her that Shekarappa instigated her to file a suit, the admissions culled out from her mouth would unequivocally indicate that it is a collusive suit.
22. It is not as though the second defendant had obtained an agreement of sale by fraudulent means in the suit filed by him. A compromise was entered into under which Shekarappa was given liberty to repay consideration of Rs.1,36,000/- to him within one year from the date of compromise lest Somashekar could execute the decree and obtain a sale deed from the Court. Of course second defendant has obtained a decree during the pendency of the present suit, more particularly, during the pendency of a petition filed under Section 22 of Hindu Succession Act filed by the present plaintiff. A reference is made to that effect in her evidence.
23. What is argued before this Court by the learned Counsel for the appellant Gangamma is that 23 right of peremption as contemplated under Section 22 is an important right which cannot be lightly ignored. Whether under the circumstances of the case, right of peremption under Section 22 of Hindu Succession Act, could be really enforced in the present case, is the question.
24. It is true that Article 97 speaks about the limitation of one year from the date of registration of the conveyance deed and if conveyance deed is not registered, one year is fixed from the date of handing over possession. Admittedly, second defendant had been a tenant of item No.1 even prior to the execution of agreement of sale and enforcement of the same. The formality of executing of sale deed alone was left, since the decree for specific performance had already been passed. Even the application filed for extension of time to pay a sum of Rs.1,36,000/- also came to be dismissed by the Court. Section 22 does not apply where the transfer has been actually concluded but only applies to a proposed transfer. In the former case, a 24 regular suit may have to be instituted. However, in the case of a proposed transfer, an application can be filed in a partition suit as held in the case of Shri Dwijabrata Das and others Vs. Shri Debabrata Das and another reported in AIR 1994 Gauhati 88.
25. The plaintiff herself knew very well about the suit being filed by second defendant against her brother and suit having ended in compromise and her brother having failed to get an extension of time for payment of Rs.1,36,000/- as per the covenant found in the compromise petition accepted by the Court. Here is a plaintiff who has purposefully avoided including two ancestral properties in the suit filed by her for partition and separate possession. The learned Judge of the Trial Court has specifically held that plaintiff has suppressed this material fact without bringing these two properties as schedule properties in the suit.
26. Taking into consideration the important admissions culled out from her mouth and the events 25 that followed, it can be said that the first defendant had set up his sister to file a suit. This cannot be considered as ill-founded. It is in this regard, the Trial Court has dismissed the suit in respect of item No.1 purchased by the first defendant. Courts will have to be cognizant of collusive suits and that collusion is apparent in the present case. A lady who has a definite share in the agricultural lands which are admittedly the ancestral properties of her father, it is ununderstandable as to how those two important properties could be left out.
27. A Civil Court dealing with a suit for partition is virtually a partition Court. It has all rights to do equities in the preliminary decree itself, more particularly, in a case of this nature. Normally equities will have to be worked out in the final decree proceedings. Here is an exception for a Civil Court dealing with the partition suit to work out such a remedy in order to protect the interest of a bonafide purchaser. The Trial Court could have even dismissed 26 the whole suit itself on the ground of non-inclusion of all the joint family properties in the suit filed for partition. Instead of doing so, the Trial Court has granted a decree to the plaintiff in respect of the remaining two properties and has rightly dismissed the suit in respect of item No.1. In view of the peculiar facts and circumstances of the case, the Trial Court is justified in rejecting the petition filed under Section 22 of the Hindu Succession Act also.
28. In this view of the matter, the approach adopted by the Trial Court cannot be considered as a wrong approach by any stretch of imagination. The Trial Court has assessed the entire oral and documentary evidence in right perspective. What is argued before this Court is that in the sale deed executed by the Trial Court in favour of second defendant pursuant to the compromise decree, the larger extent is mentioned.
27
29. An application is filed on 06.08.2013 in RFA No.11/2007 stating that the measurement of the schedule property bearing TMC No.1292 is mentioned as 28' x 50' and that it is in excess of what is mentioned in the compromise decree.
30. Perused the compromise decree drawn in O.S.No.68/94 on 25.10.1994. Schedule is mentioned as Malagi No.1292 bounded by East: by house of defendant, West: by Road, North by Malige No.1293/4, South: Open space.
31. When this was brought to the notice of the learned Counsel for the second defendant purchaser, Sri Ravi Balekai, learned counsel has fairly submitted that his client is not interested even an inch in excess of the boundaries mentioned in the schedule appended to the compromise petition. He has further made it clear that the open space existing to the Southern side of the schedule Malige No.1292 is the space belonging to the plaintiff and her brother and second defendant does not 28 have any right over the said space and does not claim anything. Therefore, he has made it clear that his client's claim is only restricted to the existing Malige building bearing No.1292. Therefore, the learned counsel Sri Ravi Balekai, has submitted that his client's claim is restricted to an extent measuring 26' x 24' ft, building and not beyond that and that the open space abutting on the south side is not a part and parcel of the area purchased by him under the agreement of sale. The said submission is taken on record.
32. It is made clear that there cannot be any apprehension in the mind of the plaintiff or the legal representatives of first defendant that the purchaser would lay a claim in excess of what is mentioned in the boundaries of the compromise petition. In this view of the matter point No.1 is stated to be answered in the affirmative.
33. In view of affirmative finding on point No.1, both the appeals are liable to be dismissed stating that the sale deed executed by the Court in favour of second 29 defendant pursuant to the compromise decree will be applicable in respect of the boundaries mentioned in the compromise decree and not beyond that and that the second defendant's claim is applicable only in respect of the building bearing TMC No.1292 and not beyond that.
Accordingly both the appeals are liable to be dismissed.
ORDER
Appeals in RFA No.11/2007 c/w RFA
No.1823/2007 are dismissed. Consequently, the
judgment and decree dated 26.09.1996 passed in O.S.No.126/1998, by the Civil Judge (Sr.Dn.), Koppal, is upheld.
In view of the facts and circumstances of the case, there is no order as to costs.
SD/-
JUDGE JT/-