Karnataka High Court
Haralahalli Halappa S/O Kari ... vs Basavarajappa S/O Bhogendrappa on 29 June, 2011
Author: H N Nagamohan Das
Bench: H.N. Nag 2Amohan Das
IN THE HIGH COURT OF KARNATAKA AT BAN GALORE DATED THIS THE 29" DAY OF JUNE, 2071 BEFORE THE HON'BLE MR. JUSTICE H.N. NAG 2AMOHAN DAS" RS,A.No.252/2005 BETWEEN: | HARALAHALLI HALAPPA S/O KARI HANUMANTHAPPA™.° HINDU, AGED ABOUT. 70 YEARS:~ OCC: AGRICULTURE. R/O HARALAHALEI HARIHARA TALUK = .. ae DAVANA GERE DISTRICT- 583131, APPELLANT (By SRI }M-ANIL KUMAR, ADV) o 1. BASAVARAJAPPA "S/O BHOGENDRAPPA "AGED ABOUT 26 YEARS 2. REVANASIDDAPPA §/(O BHOGENDRAPPA .. AGED ABOUT 24 YEARS "3. Xyum.NIRMALA "D/O LATE BHOGENDRAPPA AGED ABOUT 19 YEARS me de livered the following; 4. Kum. YASHODA D/O LATE BHOGENDRAPPA AGED ABOUT 17 YEARS RESPONDNET No. 4 IS A MINOR AND SHE IS REPRESENTED BY _ HER NATURAL MOTHER AND GUARDIAN Smt. DHANAMMA WHO IS RESPONDENT No.5 HEREIN
5. Smt DHANAMMA .
W/O LATE BHOGENDRAPPA AGED ABOUT 50 YEARS © ALL THE RESPONDENTS 1 TOS.
ARE RESIDNETS GP. HARALIPURA | VILLAGE, BASAVAPATNA HOBLI-
CHANNAGIRI TAL UK, DAVE ANAGERE:
DISTRICT 577213. mo me RESPONDENTS (By SRIT. G GACHCHINAMATH; ADV. OR R1-3 AND R5,° Ra SERV ED) _ 'THIS: RSA. PILED. UNDER SECTION 100 OF CPC ~ AGAINST THE JUDGMENT AND DECREE DATED 17.12.2004 "PASSED IN R.A.No.69/2000 ON THE FILE OF THE DISTRICT JUDGE, DAVANAGERE AND ETC.
This appeal coming on for hearing this day, the court GMENT ~~ This second appeal is directed against the judgment and decree dated 9.8.1999 in O.S.No.94/1995 passed by the Civil Judge Sabet (Sr.Dn) at Bhadravathi and confirmed by judgment and decree dated 17.12.2004 in RA No.69/2000 passed by the District fudge of 15.1.1994 is a sham and not binding on the plaintiffs. | - :
2. Appellant is the defendant and' respondents are che plaintiffs before the Trial _ Court. ce this juidgmient for convenience the parties are referred to thei satus before the trial Court.
3. Plaintiffs contend thot the plain schedule property is the ancestral property of plainifl family. Plaintiffs 1 to 4 are the sons and plaintiff no's {8 the wife and one Bhogendrappa. In : the year 1993, Bhogendrappa was suffering from Tuberculosis, rental disorder, physica weakness etc. Bhogendrappa was taking 7 treatment as inpatient in a private nursing home at Shimoga "own, Defendant' wife by name Halamma is none other than the ~ sister of Bhogendrappa. Defendant and his wife taking advantage of the physical and mental inability of Bhogendrappa obtained a y-
a registered sale deed on 15.1.1994 in respect of the plaint schechile property. Plaintiffs on coming to know about the fraud:played by ' . the defendant, filed OS No.94/1995 to declare that the sole deed - dated 15.1.1994 in favour of defendant us shanty "eoncociedl, | fabricated and unenforceable docunient and. the, some is"hot binding on the right of the plaintiffs. ~ 4, Defendant entered. appedrarice helire the Trial Court and filed "written siatémient incest contending that Bhogendrappa was in sound state.of mind and for a valuable consideration of Ps 52000/- he exectited a sale deed on 15.1.1994 in favour of the defendant, - Since the date of sale deed, the defendant is. irr possessidit'and enjoyment of the plaint schedule relating. to che itlness of Bhogendrappa and the fraud played by
- the defendant are all denied. On the basis of pleadings, the Trial ~~ Couxt framed the following issues for its consideration:
1) Whether the plaintiff prove that the sale deed dated 15,.1.1994 in favour of the defendant Is 'sham, .
concocted, fabricated and inenforceable" and the,» same is not t binding on the right, title and, int erest of
i) Whether the defendant proves hat che. devez sased i Bogendrappa had legal necé ssity ang ior fami ly benefit sold the suit schedule properiy by execiiting the registered sale deed dated 15.1. 19947 ll) Whether the pledaeit ive? the cause of action to the suit? . DO Iv) Whether the plaintif® are 'enuitled for the relief sought for? ° vy) : | Wwaek yoo _--
5. » Before the Trial Court plaintiffs examined three witnesses us PW. i to PW and got marked Exs.P1 to P21. The | » defendants examined five witnesses as DW.1 to DW.5 and got nuke red pa D1: toD D4. The Trial Court on appreciation of the : - pleadings , 'oral and documentary evidence held _ that = bhogendrapp was not in sound state of mind when he executed a : sale 'deed in favour of the defendant. Further it is held that Bhogendrappa alone was not the owner of the suit schedule property and consequently under the impugned judges ER o, judgment and decree of the Trial cou ti bowing sist . appeal before the first Appellate Court in RA No.69/2000. : After hearing arguments, the first Appellate Court framed the following points for its consideration: -- - 7 : '
i) Whither the defendant appelioii kas made out grounds to show that the. judgment and decree of the Trial Court is either erroneous or opposed to law and facts of the "Case."
ii). Whether the plaint:'Ts/respondents have successtully "esta blished ~ -that the document in favour of the defendant appellant was the result of undue advantage, . fraud and mis-representation taking advantage of the alleged ill- health and the mentally unsoundness of the " deceased Bhogendrappa as contended?
iti) ~~ What is the order?
6:. ~ On reappreciation of the entire material on record, . the firsé Appellate Court dismissed the appeal and confirmed the : judgment of the Trial Court. Hence this second appeal. Re "J
7. This court by order dated 31.8.2006 admitted 'the appeal on the following substantial question of law:
8. On 13.6.2011 thé-matter, was heakd in part, 'Today I heard further arguinents ui the side of the respondents and perused the entite appeal papers, "8 |
9. s Plaintiffs are the wile and children of deceased Bhogendrappa. Defendant 1 the brother in law of Bhogendrappa. Plaintiffs conténd that. Bhogendrappa was suffering from Tuberculosis and. mental and physical disorder and he was taking treatment. Taking advantage of such a situation, the defendant and his wile by playing fraud obtained a registered sale deed on
- : 15.1.1994 On the other hand, the defendant contend that on the date of executing the sale deed, Bhogendrappa was in sound state 'of mind and he was capable of making rational judgment. As against this rival contention there is the evidence of PW.3, the Doctor by name K.R.Sridhar who treated Bhogendrapria_ petween. :
stated that he examined Bhogendrappa_ and he was inpatient in his nursing home at Shimoga. Ex.P2i% the case sheet produced by PW.3 in proof of the fact that Bhogendrappa was inpatient and he was treated for Psychosis. with Dement 'and "hypertension, Ex.P3 and P4 are thi: prescription chits issued by the Nursing Home. fic.P5 isthe medical certificate issued by PW.3's hospital. PW.3 further deposed that at the time of treatment of Bhogendrappa's. condition. wae not normal, his hands and legs 5 vere shaking 1088 of meiiory power, unable to identify persons, place.and Hime, not capable of taking independent decision. The ailment that 'Bhogendrappa was suffering related to disorder in
- "brain ete. This evidence of PW.3 is not under serious challenge.
Notining worth is elicited in the cross-examination of PW.3. This _ eral and documentary evidence establishes the fact that on the 9 date of sale, Bhogendrappa was not in a sound state of mind. Beth the courts below by considering this evidence on record, have. ~ outcome of fraud played by the defendant. ° Accordingly, the question of law framed above is answered in affirmative... For the reasons stated above; the..appeal is hereby 4 dismissed.