Karnataka High Court
Siddesha S/O Somashekarappa vs Smt Honnamma on 10 September, 2012
Author: Ajit J Gunjal
Bench: Ajit J.Gunjal
IN THE HIGH COURT OF KARNATAKA AT BANGALORE
DATED THIS THE 10th DAY OF SEPTEMBER 2012
BEFORE
THE HON'BLE MR. JUSTICE AJIT J.GUNJAL
R.S.A. NO.2189/2005
BETWEEN :
Siddesha,
S/o.Somashekarappa,
Agriculturist,
Resident of Yadapura,
Kasaba Hobli,
Arsikere Taluk,
Hassan District - 573 103. ...APPELLANT
(By Sri.A.V.Gangadharappa &
Sri.G.Ravishankar, Advs.)
AND :
1. Smt.Honnamma,
Claims to be the wife of
Late Y.P.Shivakumar,
Aged about 50 years,
2. Smt.Sumithra,
Claims to be the daughter of
Late Y.P.Shivakumar,
Aged 25 years,
3. Smt.Taramani,
Claims to be the daughter of
Late Y.P.Shivakumar,
Aged 23 years,
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4. Arun Kumar,
Claims to be the son of
Late Y.P.Shivakumar,
Age: 15 years, minor,
Represented by mother
And natural guardian
Smt.Honnamma,
Respondent No.1 above.
All are presently residing
At Yadapura, Arsikere Taluk,
Hassan District - 573 103. ...RESPONDENTS
(By Sri.Vinayak, Adv. for
Sri.Ashok Haranahalli Assts., Advs.
for C/R1 to R4)
. . . .
This R.S.A. is filed under Section 100 of the Code
of Civil Procedure against the judgment and decree
dated 25.02.2005 passed in R.A.No.27/2000 on the file
of the Civil Judge (Sr.Dn. Arsikere partly allowing the
appeal and modifying the judgment and decree dated
08.12.1999 passed in O.S.No.334/97 on the file of the
Principal Civil Judge (Jr.Dn.) Arsikere.
This R.S.A. coming on for hearing, this day, the
Court delivered the following:
JUDGMENT
The appeal was admitted to consider the following substantial question of law:
Whether the Courts below were justified in granting the decree for partition in a suit for a total stranger to the family?-3-
2. After hearing the learned counsel appearing for the plaintiff as well as the defendants, I am of the view that the substantial question of law is to be re-framed and the following substantial questions of law would arise for consideration:
1. Whether the Judgments and decrees passed by the Courts below stand vitiated for non-considering the evidence on record and also for not considering the scope of Section 3 of the Limitation Act whether the suit is barred by a statute?
2. Whether the evidence adduced by the plaintiff would substantiate the fact that the sale was not for legal necessity?
3. I have heard Mr. A.V.Gangadharappa, learned counsel appearing for the defendant as well as Mr.Vinayak, learned counsel appearing for the plaintiffs.
4. The plaintiffs would contend that the suit property is a Joint Family Property. The 1st plaintiff's husband and father of plaintiffs 2 to 4 one Shivakumar, along with the other two got the schedule properties in a -4- family partition. The plaintiffs would aver that one H.Papaiah and his wife Chandramma are the parents of Shivakumar, husband of 1st plaintiff as well as the other children i.e., Papannaiah, Shyamanna, Ramalingappa and Indramurthy. The family properties were partitioned between the brothers and the property in question was allotted to the share of the 1st plaintiff's husband. It is the specific case of the plaintiffs that it is a Joint Family and ancestral property. They would aver that during the lifetime of Shivakumar, he neglected the family and he was addicted to Alcohol and was a womanizer. He did not take sufficient care of the plaintiffs. The circumstances were such that the 1st plaintiff was working as a coolie and was taking care of Shivakumar as well as other children. The suit property was mortgaged in favour of the defendant on 13.10.1983 pursuant to a registered deed for a sum of Rs.2,000/-. Subsequently, the suit property was sold in favour of the defendant pursuant to a registered sale deed dated 15.06.1984 for a sum of Rs.8,000/-. The -5- sale deed would recite that the mortgage amount of Rs.2,000/- shall be adjusted in the sale consideration of Rs.8,000/-. The plaintiffs would further aver that since the sale in favour of the defendant was not for legal necessity, the sale itself is void-ab-initio and they are entitled for a share in the suit schedule property. It is not in dispute that as on the date of the mortgage as well as the sale, plaintiff No.4 was not born, so also plaintiff No.3 though there is some slight dispute as to when the 3rd plaintiff was born. The relief sought for by the plaintiff are very clumsily worded, nevertheless, a judgment and decree is sought to set-aside the mortgage deed dated 13.10.1983 as well as the sale deed dated 15.06.1984.
5. The defendants entered appearance, filed written statement taking up a contention that the sale was for family necessity. It is also the contention of the defendants that notwithstanding the fact that the suit schedule property was allotted to the share of 1st plaintiff's husband Shivakumar in a family partition, -6- the other properties, which were allotted in the partition were also sold in favour of different purchasers were not included in the schedule. Hence, the suit itself is not maintainable. A perusal of the written statement discloses that it is the case of total denial including that Shivakumar was addicted to bad vices.
6. On the basis of these pleadings, the learned Trial Judge has framed the following issues:
1. Whether the plaintiffs prove that there was no legal necessity for Shivakumar, the husband of plaintiff No.1 and father of plaintiff No.2 to 4 to mortgage the suit property and to sell the same by deeds dated 13.10.1983 and 15.6.1984 respectively?
2. If so, whether the plaintiff's are entitled for recovery of possession of the suit properties from the hands of defendant No.1?
3. Whether the defendant proves that the suit property was sold for marriage expenses of Sumitra and to clear the earlier debts by Shivakumar?-7-
4. Whether the plaintiffs are entitled for maintenance as an alternative relief?
5. What decree or order?
7. During the course of trial, the plaintiff was examined as P.W.1 and two more witnesses as P.W.2 and P.W.3 and eight documents were marked. The defendant was examined as D.W.1 and three more witnesses were examined as D.W.2 to D.W.4 and eight documents were marked. The learned Trial Judge having regard to the pleadings as well as the evidence let-in was of the view that the plaintiffs have substantially proved that there was no legal necessity for Shivakumar i.e., husband of plaintiff No.1 and father of plaintiffs 2 to 4 to mortgage the suit property and to sell it. Hence, the plaintiffs are entitled for a share in the property. Indeed the learned Trial Judge has found that the defendants claim that the property was sold for the marriage expenses of plaintiff No.2 has been disbelieved moreso that there was no recital in the sale deed and there was no evidence to the effect. Aggrieved -8- by the same, the defendant was before the learned Appellate Judge. The learned Appellate Judge has confirmed the said judgment and decree. Hence, this second appeal.
8. Mr.A.V.Gangadharappa, learned counsel appearing for the defendant, in support of the substantial questions of law submits that even though a defence was not set-up regarding limitation, the suit per se is barred by statute inasmuch as the sale has taken place in the year 1984 and the suit is filed in the year 1997. He further submits that in the absence of any evidence to show that the sale was not for legal necessity, the judgment and decree are liable to be set-
aside.
9. The learned counsel appearing for the plaintiffs supports the judgments and decrees and submits that the sale was not for legal necessity. Hence, even though the plaintiffs 3 and 4 were not born as on the date of -9- execution of the document, they are entitled to question it as long as it was not for legal necessity.
10. Insofar as the first substantial question of law is concerned, undoubtedly, the defendant has not taken up a contention that a suit is barred by statute. But however, that by itself will not take away the powers of the Court to examine whether the suit itself is barred by time. Sub-Section (1) of Section 3 of the Limitation Act would speak that the suits instituted, the appeals preferred and the application made after the prescribing period shall be dismissed even though limitation has not been set up as a defence. In the case on hand, it is to be noticed that the sale has taken place in the year 1984. The suit is filed on 11.07.1996. Apparently, under Articles 109 and 110 of the Limitation Act, the suit is required to be filed within a period of 12 years from the date of alienation.
11. Indeed Article 109 of the Act is referable to the suit to be instituted by a Hindu governed by Mitakshara
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law and to set-aside his father's alienation of ancestral property is 12 years and the period would commence when the alienee takes possession of the property and even under Article 110 of the Act, a person excluded from the Joint Family Property to enforce a right to share, the suit is to be instituted within 12 years when the exclusion comes to be known to the plaintiff.
12. In the case on hand, the plaintiffs were made aware that such a sale has taken place in the year 1984 itself. It is also to be noticed that Shivakumar was alive for a period of 12 years and he died in the year 1995 and it is only thereafter, the present suit is instituted on 11.07.1996. Indeed if the date of mortgage is taken into account i.e., 13.10.1983 coupled with the sale deed dated 15.06.1984 the suit ought to have been filed on or before 12.10.1995 or atleast before 14.06.1996. The suit is filed after one month and obviously the suit is barred by time. It is no doubt true that in normal course, this Court would certainly have remitted the matter to the learned Trial Judge for adjudication of the
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matter in question but however, having regard to the admitted facts, the question of remitting the matter to the learned Trial Judge does not arise. The suit would be barred by Article 109 of the Limitation Act insofar as the plaintiff No.1 is concerned.
13. This takes us to the second substantial question of law. Insofar as the second question of law is concerned, apparently, the plaintiffs are trying to avoid the sale deed on the ground that the sale was not for legal necessity inasmuch as the 1st plaintiff's husband Shivakumar was a womanizer and drunkard and was addicted to all bad vices. Except for such an assertion, no other evidence is forthcoming to show that indeed he was addicted to alchohol or whether he was a womanizer. It is trite that the plaintiff would keep quiet for a period of 12 years before the present suit is instituted for partition and separate possession in respect of their share. Indeed if the suit were to be filed at the earliest point of time i.e., immediately after the sale has taken place in the year 1984 and during the
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lifetime of Shivakumar, may be he would have taken up a contention either denying the averments or admitting the plaint averments. I am of the view that due to paucity of evidence in support of such contention, it cannot be held that the sale was not for legal necessity. A copy of the sale deed, which is produced at Ex.D2 which corresponds with Ex.P2 clearly discloses that the property was mortgaged for a sum of Rs.2,000/- on 13.10.1983 for family necessity and it was sold on 15.06.1984 for a sale consideration of Rs.8,000/- adjusting the mortgage amount. A perusal of Ex.P6 corresponds to Ex.D2 does not disclose that it was not for family necessity. Once it is held that it is for family necessity, the question of the plaintiffs questioning the said sale does not arise. It is no doubt true a contention was raised before me that the plaintiffs 3 and 4 cannot question the sale on the ground that they were not even born as on that date. Indeed the alienations by a sole surviving member of a coparcenory are of course valid for the joint family property is at his
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absolute disposal as there is no one who has a joint interest with him in it either by joint acquisition or by birth. Therefore, a son or the other coparcenor cannot object to alienations validly made by his father or other managing member before he was born or begotten, because he could only by birth obtain an interest in the property, which had not validly passed out of the family before he comes into legal existence. If at the time of the alienation there was no one in existence who assent was necessary, or if those who were then in existence consented a coparcenor not in existence, at that date cannot object on the ground that there was no necessity for the transaction.
14. In the case on hand, so far as plaintiffs 2 and 3 are concerned, I am of the view that they cannot even remotely question the sale in favour of the defendant inasmuch as they could not have had any right because, they were not even born when the documents were executed. Having said so, I am of the view that
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the judgments and decrees passed by the Courts below warrants interference.
15. Hence, the following order:
(a) Appeal stands allowed.
(b) The judgments and decrees passed by the Courts below are set-aside.
(c) The suit of the plaintiffs stands dismissed.
(d) Cost made easy.
SD/-
JUDGE SPS