Karnataka High Court
Rajendra Babugouda Patil Ors vs Rajeshwari W/O Bhimanagouda Patil Ors on 18 January, 2012
Bench: N.Kumar, B.Sreenivase Gowda
IN THE HIGH COURT OF KARNATAKA.
CIRCUIT BENCH AT GULBARGA
DATED THIS THE 181T1 DAY OF JANUARY 2012
PRESENT
THE HON'BLE MR.JUSTICE N.KUMAR
AND
THE HON'BLE MRS.JUSTICE B.SREENIVASE GOWDA
R.F.A. NO.5020/2011
BETWEEN:
1. Rajendra Babugouda Patil
Age: 44 years, 0cc: Agriculture,
R/o Kakhandaki.
Tq. & Dist, Bijapur- 586108.
2. Mallikaijun Babugouda Patil
Age: 42 years, 0cc: Medical Service.
R/o Bijapur- 586101.
3. Shaila W/o Vithappagouda Sardesai
Age: 46 years. 0cc: Agriculture & H.H.
R/o Navalagund, Dist: Dharwad 586 606.
4. Rupa W/o Basheer Doddarnani
Age: 39 years, 0cc: H.H. Work.
R/o Bijapur- 586101.
APPELLANTS
(By Sri: D.P. Ambekar & V.B. Biradar, Advs.)
AND
1. Rajeshwari W/o Bhimanagouda Patil
Age: 79 years, 0cc: Agriculture,
R/o Shegnshi. Tq. & Dist. Bijapur- 586108.
2. Geeta W/o Banappagouda Path
Age: 53 years. 0cc: H.H. Work.
R/o C/o 1)r. B.K. PatiL
Behind NCC Office, Solapur Road.
Bijapur586 101.
3. Bapugoucla S/o Bhimanagouda Patil
Age: 5 1 years, 0cc: Agriculture,
R/o Shegnshi, Tq, & Dist: Bijapur- 586108.
4. Asha W/o Lingaraj Sardesai
Age: 46 years, 0cc: H.H. Work.
C/o L.S. Sirdesai A.E.)
PWD II Cross, Narayanpur,
Dist. Dharwad 586601.
5. Rekha W/o Kallanaouda Patil
Age: 44 years, Ccc: H.H, Work,
Rio At. Post, Kalabilagi,
Tq: Jarnakhandi. Dist: Bagalkot- 586104.
6. Appasaheb Sb Bhimanagouda Patil
Age: 42 years, 0cc: Agriculture,
R/o Shegnshi, Tq. & Dist: Bijapur- 586108.
7. Shashikala W/o Siddaraj Sardesai
Age: 54 years, 0cc: H.H. Work,
R/o Opp. Govt Hospital,
Navalagund. Dist: Dharwad 586606.
-
8. DevraJ Sf0 Doddappagouda Biradar
Age: 40 years. 0cc: Agriculture,
RIO: Halagani.
Tq. & Dist: Bljapur- 586108. RESPONDENTS
...
(By Sri: R.S. Lagali Adv R-8 &
Sri: Veeresh B. Path. Adv for R- ito R-7)
This RF.A. IS FILED U/S 96 OF CPC AGAINST
THE JUDGMENT AND DECREE DATED 23.04.2011
PASSED IN OS NO.83/2007 ON ThE FILE OF THE
PRL. SENIOR CWIL JUDGE. BIJAPUR WHERIEN,
DISMISSING THE SUIT OF THE PLAINTIFFS.
This appeal coming on for Admission this day,
N.KUMAR J., delivered the following
JUDGMENT
This Is plaintiffs' appeal against the Judgement and decree of the trial court which has dismissed the suit for declaration that they are endUed to 1/3" share in the plaint schedule properties on the ground that they have relinquished their interest In favour of one Shashikala. their aunt.
2. For the purpose of convenience, the parties are referred to as they are referred to in the original suit.
S C 4
3. The subject mailer of the suit is land bearing RS No. 332 measuring 15 acres 25 guntas, RS No. 333 measuring 12 acres 21 guntas and RS No. 792 measuring 15 acres 11 guntas all situate at Kakhandaki village in Bijapur taluk. Plaintiffs No.1 and 2 are the sons of deceased Babugouda Sb Bapugouda Paul and plaintiffs No.3 and 4 are his daughters. Defendant No.1 is elder brother of plaintiffs' deceased father Babugouda Paul and defendant No.2 Is his sister and she is a permanent resident of Navalgund in Dharwar district. Deceased Indumati W/o Bapugouda Path the mother of defendant No.1 and 2 and deceased Babugouda died at Shegunshi village in Bijapur taluka on 16-06- 1989 leaving behind defendants No.1 and 2 and the deceased Babugouda as her legal heirs. She was the owner in possession of suit lands at the time of her death and then her daughter defendant No.2 succeeded to the suit lands and they have became joint owners of suit lands. However, no varadi was given by defendant No.1 and 2 and Babugouda Paul to mutate their names as joint 1--• • 0 owners and kabjedars In the revenue records. Babugouda Path, the father of the plaintiffs died on 25- 02-1998 at Bijapur leaving behind him plaintiffs as his only legal heirs. After the death of Babugouda Paul joint varadi was given by plaintiffs and defendant No.1 and 2 together on 24-12-1999 to the vifiage accountant Kakhandakl village to mutate their names as joint owners and kabjedars In the revenue records. M.E. No. 12097 was made on 24-12-1999 and was duly certified on 09-03-2000. Thus. the names of the plaintiffs being the legal heirs of the deceased Babugouda and the names of defendants No.1 and 2 came to be entered as joint owners and kabjedars in the revenue records pertaining to the suit lands. PlaIntiff No.1 is permanent resident of village Kakhandakl where the suit lands are situated. Defendant No.1 Is the resident of Shegunshi and he has been unwell since long. Defendant No.2 being permanent resident of Navalgund In Dharwar district she has never stayed at Kakhandakl village. Under these circumstances plaintIff No.1 has been in S 6 the management and cultivation of suit lands tifi this day. Plaintiffs have reposed immense confidence in defendant No.1 who happens to be the eldest member In their family. He possesses sufficient knowledge regarding tenancy law. For the reasons best known to him he has asked plaintiff No.1 on 08-02-2000 to purchase two stamp papers worth Z10/- and Z5/- respectively. Accordingly plaintIff No.1 purchased two stamp papers of said value and asked him to write on those stamp papers as dictated by him. The plaintiff No.1 beIng under the Influence of defendant No.1 scribed the matter as dictated by him on those stamp papers. The plaintIff No.1 has after writIng matter questioned defendant No 1. As to why such a document Is prepared. To which the defendant No.1 has answered that It Is only a nominal document which is to be submitted along with varadi to the village accounrnt saying that the suit lands were given to defendant No.2 in the partition just to see her name alone nominally entered in the record of rights of the suit lands to avoid a a 7 stringent provisions of Land Reforms Act that may affect the ceiling area of the plaintiffs No.1 and 2 and defendant No.1. BelievIng these words of defendant No.1, the plaintiffs have acted in tune with the defendant No.1 and filed varadi along with the defendant No.1 and 2 on 08-03-2000 to the village accountant Kakhandaki for maintaining the name of defendant No.2 alone in the owner's column of record of rights. However said varadi dated 08-03-2000 and the document of partition undated filed along with varadi were not acted upon by the plaintiffs and defendants No.1 and 2 in actuality in spite of M.E.No. 12146 dated 08-03-2000 was made and certified In favour of the defendant No.2. The name of defendant No.2 came to be recorded in column No. 9 of the Record of rights of the suit lands as per M.E. No. 12146. However they were all nominal documents which did not clothe the defendant No.2 with the title of the suit lands. Admittedly plaintiffs and defendants No.1 and 2 do not constitute a joint Hindu family. As such there was no 1--
8question of any partition taking place amongst themselves. The very tenor of the said document Is exfacie. sham and nominal. The so called partition deed is not registered document In the absence of registered document to transfer Immovable properties the varadi perse cannot constitute a valid and legal transfer of the suit lands in favour of defendant No.2. The claim of right. title and interest In the suit lands on the basis of M.E. No. 12146 dated 08-03-2000 of Kakhandaki village by the defendant No.2 is unknown to law. M.E.No. 12146 recorded by the revenue authorities could not substitute for a registered document so as to invest a tide In the suit lands in favour of defendant No.2. The defendant No.2 did not in law acquire right or tide or Interest over the suit lands and the nature of suit lands as the joint holdings of plaintiffs and defendant Nos 1 and 2 even after M.E.No. 12146 remains the same as on today. Even though the name of defendant No.2 alone is mentioned In column No. 9 of the record of rights of the suit lands. Suit lands are joint holdings of them. The 9 plaintiffs are In actual management of the suit lands. The defendant No.2 takIng advantage of her name In record of rights has executed sale deed In respect of suit land bearing R.S.No. 332 measuring 15 acres 25 guntas in favour of defendant No.3 on 15-09-2006 for the redted consideration of ?4,53,500/-. The said sale deed is both sham and illegal. The defendant No.3 has not come into possession of the suit land bearing RS.No.332 In pursuance of alleged sale deed dated 15- 09-2006. Defendant No.2 is not the absolute owner of the suit land. She has not acquired valid and legal title over the suit lands. Therefore, the sale deed executed by her on 15-09-2006 in favour of 3"' defendant Is void abinitlo and It did not convey any right, title and interest in the said land in favour of the 3"' defendant. The plaintiffs have already filed their objections to the village accountant for mutating the name of 3"' defendant on the aforesaid sale deed. The said proceedings are pending. On the basis of aforesaid sale deed, the 3M defendant started denying the title of the 1--• 10 plaintiffs. Therefore, the plaintiffs were constrained to file suit for declaration that they are entitling 1 /3d share in the plaint schedule properties.
4. After service of summons, defendants No.1 and 2 have ified their written statement. They admitted relationship between the parties as pleaded in the plaint. Their specific case is that plaintiffs' father Babugouda Path and defendant No.1 did not claim any interest in suit properties and according to them their mother Indumati on her will and wish gave the entire suit properties to defendant No.2. The allegation that after death of Babugouda joint varadi was given by the plaintiffs and defendants No.1 and 2 to the village accountant to mutate their names and accordingly M.E.No. 12097 was made on 24-12-1999 and duly served Is false. Suit lands are In the possession of defendant No.2 and In her own cultivation since the death of her mother Indumatl. On being Informed that their father and defendant No.1 have voluntarily 4we ii relinquished their Interest in favour of 2nc defendant. Plaintiffs voluntarily with full knowledge executed a document titled as Watni patra on 08-03-2000 on stamp paper. On the basis of that joint varadi was given and the name of defendant No.2 was entered in record of rights. The allegation that said varadi patra was executed under the influence of defendant No. I Is denied. The father of plaintiffs and defendant No.1 had not claimed any interest In the suit properties after the death of Indumati and had given up their right in respect of suit properties In favour of defendant No.2 and consequently defendant No.1 had become absolute owner of the suit properties in her own right of ownership. She has sold Sy.No. 332 of suit land to defendant No.3. Rest of the allegations were denied and they sought for dismissal of the suit.
5. 3rd defendant has filed a separate written statement. 3ix1 defendant specifically contended that schedule properties were given to deceased Indumati In 4 12 the year 1955 towards her maintenance by Ramanagouda Bhlmanagouda Path. Thus. the suit lands were absolute properties of Indumati. The names of her legal representatives came to be entered to the properties standing In the name of Indumatl on her death. In the family of plaintiffs and defendant No.2 earlier also a partition was taken place and the said partition was aiso based on varadi and the certification of mutation entry and as such earlier partition cloths father of plaintiffs and defendant No.1 and 2 with title while partition of the year 2000 does not cloth the defendant No.2 with title is not explained by the plaintiffs. Thus, the claim advanced by the plaintiffs in the suit Is malaflde Intention and to screw some money from defendant No.3. Thus, defendant No.3 who is bonafide purchaser of one of the suit land from defendant No.2 after verifying the records pertaining to the suit lands. A partition has taken place between the parties during the year 1955 as evident from ME No. 3574 of Kakhandaki. Suit lands were fallen to the share C 13 of Ramanagouda Bhimanagouda Paul who was the elder brother of the grand father of the plaintiffs by name Bapugouda. Said Ramanagouda was having no Issues. Therefore, during the year 1955 itself he has given suit lands to Indumati which is evident from ME No. 3576. Father of plaintiffs and defendant No.1 were not members of joint family. Since the date of partition of 1955 they were separated and they were enjoying the properties which were standing in the name of the father of the plaintiffs and were enjoyed by the plaintiffs. PlaintIff No.2 Malllkarjun has sold about 20 acres of land which was standing in his name. Said land bear Sy.No.99/1, 99/2 of Shegunashi village. Plaintiff No.3 Shalla is none else the daughter in law of defendant No.2. Husband of plaIntiff No.3 Vithappagouda was the son of defendant No.2 who died in the road traffic accident. 3ircl plaintiff after the death of her husband raised a dispute with defendant No.2 and said dispute was ended in compromise in the suit ified at Civil Judge Sr.Dn. Dharwar which was
--4 , 14 pertaining to the properties situated at Navalagund. If at all the plaintiff No.3 had any share in the suit lands she could have Included the suit properties also in the said suit. This itself goes to show that partition of the year 2000 has been acted upon. Suit of the plaintiff is also barred by limitation. Defendant No.3 as a bonafide purchaser purchased land R.S.No. 332 for valuable consideration. If at all the plaintiffs are able to prove that partition has not taken place in the family as per the document of partition of the year 2000, in such circumstance 3n1 defendant makes a counter claim for the relief of partition and separate possession in the suit lands. Suit lands were given to Indumati W/o Bapugouda Paul towards her maintenance, therefore, it was her absolute property. Therefore. after the death of Indumati, father of plaintiffs and defendants No.1 and 2 each have got 1/3rd share. Defendant No.2 be awarded 1/3rd share In the suit properties. Consequently RS.No.332 to be allotted to the share of defendant No.2 and accordingly the defendant No.3 being the 15 purchaser of suit land and the said land to be allotted to defendant No.3 and accordingly sale deed dated 15-09- 2006 be confinned and the possession of defendant over the said land be confirmed in the interest ofjustlce.
6. On the aforesaid pleadings the trial court has framed followIng 05 issues:
1. Whether plaintiffs prove that, even after the execution of registered sale deed by the defendant No.1 In favour of defendant No.3 in respect of suit item No. 1 on 15-09-2006. stIll they and defendants I and 2 are owners of suit lands?
2. Whether plaintiffs further prove that they and defendant No.1 and 2 are entitled for the relief as prayed in the plaint?
3. Whether defendant No.3 proves that he is bonafide purchaser of suit item No.1?
4. Whether defendant No.3 further proves that he is entitled for partition by way of counter claim, as pleaded in his written statement para No. 19?
.4 I 16
5. What order or decree?
7. PlaintIffs in order to substantiate their claim examined 1st plaintiff as PW 1 and produced 06 documents which were marked as Ex.P- 1 to P-6. On behalf of defendants, 3rd defendant was examined as DW 1, son of 1st defendant was examined as DW 3 and one Siddappa was examined as DW 2 and they have produced 05 documents which were marked as Ex.D-1 to 1)-S.
8. The trial court on appreciation of aforesaid oral and documentary evidence on record held that plaintiff No.1 himself has written Ex.D- 1 and the plaintiffs are well aware of the fact about partition of the year 1955 between their father and defendant No.1 and also aware of partition dated 08-03-2000 that took placed between plaintiffs and defendant No.1 and 2 in spite of that plaintiffs came up with cock and bull story by suppressing Ex.D-1. D-3 and D-4. Therefore, it was of the view of execution of Ex.D- 1 the plaintiffs have lost C .4%"..
17
their title to the plaint schedule properties and therefore they are not entitled to relief of declaration as sought for in the plaint. Similarly the plaintiffs have not asked any consequential relief. Therefore, u/s 34 relief of declaratory suit would not give any consequential relief, the suit Is not maintainable. The 3M defendant Is a bonafide purchaser for valuable consideration, the plaintiffs have failed to prove that he Is not a bonafide purchaser and therefore, It held suft of the plaintiff Is liable to be dismissed. Accordingly dismissed the suit.
9. AggrIeved by the said judgement and decree of the trial court, the plaintiffs are In appeal. The learned counsel for the plaintiffs assailing the Impugned judgement and decree contends that Ex.D- 1 relied by defendants Is not a document of partition as understood by the trial court. It Is a document under which 1st defendant and the plaintiffs purported to have relinquished their rights about plaint schedule properties In favour of Shashikala 2M defendant. Thus, S m • 18 ft is conferred exclusive right in the schedule properties in her favour. It is well settled that where relinquishment of interest in any immovable properties can be done only through a registered document and document is not registered. There is no transfer of interest and therefore, relinquishment does not take effect. Then the rights of the parties are Intact. Admittedly plaintiffs are entitled to 1/3rd share. 1st defendant is entitled 1/3M share and it is that declaration plaintiffs are seeking in the suit. Unfortunately the trial court has not appreciated the scope of the suit relief sought for in the suft. Thus ft committed a serious error in dismissing the suit of the plaintiffs. Therefore, he submits a case of interference and for declaration is made out.
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10. Per contra the learned counsel for defendant submitted that from the material on record ft Is clear plaintiffs have relinquished their rights and Interest In writing in their own handwriting in favour of .1.• 19 211d defendant and they are estopped from going back on the said relinquishment. Though the case of undue influence and fraud is pleaded, no evidence is adduced in support of the same and therefore, said document Ex.D- 1 stands proved. Consequently relinquishment stands proved and plaintiffs have no right in the suit schedule properties. Therefore, the trial court was Justified in dismissing the suit. Even otherwise he contended that if court reverse the said finding then the 3rd defendant being purchaser from one of the coparcener has sought for partition and separate possession by filing counter claim. Then this counter claim has to be allowed and therefore. he submits the appeal lacks merits and It is to be dismissed.
11. Tn the light of aforesaid rival contentions, the point that arises for our consideration is;
Whether the plaintiffs have 1/3rd share in the plaint schedule properties and they are entitled to seek declaration or other consequential relief? 1 20
12. The facts are not in dispute. One Bhimanagouda was prepositor. He had two sons namely Ramanagouda and Bhlmanagouda. There was partition somewhere in the year 1955. In so far as share which is fallen to Bhlmanagouda is concerned, his 03 sons have effected partition and they are not joint family members any more. Ramanagouda during his life time gave the property which fallen to his share to Indumati i.e., Bapugouda's wife. 3rd defendant asserts that schedule property absolutely belonging to Indumati. In other words it is Stree dhan property. She died leaving behind 03 children. On her death two sons and a daughter are entitled to 1/3rd share In the suit properties. Plaintlff& father Babugouda Patfi was having l/3' share. On his death plaintiffs are entitled to 1 /3n1 share each. These facts are not in dispute. The case said to be made out is plaintiffs and Bhlmanagouda executed Ex.D- 1 relinquishing theIr 1/3rd share each in the plaint schedule properties In favour of Shashikala, 21d .
Cr.
21
defendant Thai court construes this document as Ex.D- 1 and holds even though partition is not registered not duly stamped as It Is a document entered between the family members they are estopped from going back what is written there. Unfortunately the trial court did not look Into the document Contents of the document discloses It was not partition deed but It was relinquishment. This relinquishment deed Is In respect of property the value of which Is more than ZiOO/-. As such document requires registration. Admittedly document Is not registered. 1/3M Interest of the plaintiffs and 1/3M Interest of theist defendant Is not transferred to the 21K! defendant. Therefore, they continued to hold saId i/31x1 share. Ex.D- 1 do not have the effect of extinguishing the plaintIffs 1 /3rd share each In the suit schedule properties.
13. It Is also not In dispute that Shashikala has sold one of the Item of the plaint schedule property under a registered sale deed dated 15-09-2006 on the 22 assumption that she Is absolute owner, though she was not. Therefore, the 3zct defendant cannot claim that he has become absolute owner of that property which Is the subject matter of the sale. At the best he can only claIm 1 /3r1 share in the said property. Therefore. he has ified counter claim seeking for general partition and further claiming partition. Thus entire property may be allotted to the share of his vendor i.e., 2nd1 defendant. Therefore, sale In his favour kept In tact. Said counter claim is dismissed. No appeal is ified. Even otherwise though purchaser can ifie suit for general partition and make a request that the property which he has purchased may be allotted to the vendor exclusively, that exercise has to be done at the stage of final decree proceedings not at the stage of passing of a preliminary decree.
14. Under these circumstances from the aforesaid undisputed facts and the documentary evidence on record it is clear that plaintiffs, 1st defendant and 2 p.
23 defendant are entitled to 1 /3nt share each in all plaint schedule properties.
15. Though the relief sought for is to be declaration that plaintiffs. 1st defendant and 2nd defendant are the joint owners of suit schedule properties the way in which the relief Is claimed shows want of knowledge on the plaintiffs and their counsel. The relief should have been for declaration that plaintiffs are entitled to 1/3rd share and for partition and separate possession. However, In spite of these shortcomings, this court is expected to deliver Justice. For the mistake of counsel the party cannot suffer. It is stated that counsel is officer of the court and it is settled law that no action of the court including its officer shall be hurt the interest of poor litigant. Under these circumstances we hereby feel it proper to mould the relief suitably and grant declaration that plaintiffs are entitled to 1/3M share each and grant a decree of partition and separate possession. So that Justice Is done to the parties who have been litigating before the 24 court from 2007 onwards. In so far as right of the 3rd defendant purchaser is concerned, in the final decree proceedings he could make a request which he has made in the written statement or in the court. That would meet the ends of justice. Hence, we pass the following:
ORDER
(a) Appeal is allowed.
(h) The judgement and decree of the trail court is hereby set aside.
(c) It is declared that plaintiffs are entitled to 1/3 share each in all suit schedule properties and preliminary decree for partition shall be drawn declaring that plaintiff, 1 sI defendant and 2nd defendant each are entitled to 1/31d share.
(d) The plaintiffs are also entitled to partition and separate possession of their 1 /3n1 share in the suit schedule properties.25
(e) As the plaintiffs are in possession of the suit schedule properties. they are not entitled for mesne profits.
(f) No costs.
sd/ 3UDGE *MK Sd! JUDGE