Karnataka High Court
Siddappa S/O Beerappa Jakkannanavar vs Shantavva D/O Yallappa Kurgund on 27 July, 2023
RFA. NO.100104/2018
1
IN THE HIGH COURT OF KARNATAKA, DHARWAD BENCH
DATED THIS THE 27TH DAY OF JULY, 2023
PRESENT
THE HON'BLE MR JUSTICE ASHOK S. KINAGI
AND
THE HON'BLE MR JUSTICE VENKATESH NAIK T.
REGULAR FIRST APPEAL NO. 100104 OF 2018
BETWEEN:
SIDDAPPA
S/O. BEERAPPA JAKKANNAVAR
AGE: 59 YEARS, OCC: AGRICULTURE,
R/O. KURUBARAMALLUR,
TQ AND DIST: HAVERI-581110.
...APPELLANT
(BY SRI.JAYASHANKAR S.PATIL, SENIOUR COUNSEL FOR
SRI.G.B.NAIK AND SMT.P.G.NAIK, ADVOCATES)
AND:
1. SMT. SHANTAWWA
D/O. YALLAPPA KURGUND,
AGE: 52 YEARS, OCC: HOUSEHOLD WORK,
R/O: DEVAGIRI-YALLAPUR, TQ & DIST: HAVERI
NOW R/AT MAKOPPA,
TQ: HANGAL, DIST: HAVERI-581110.
2. PUTTAVVA
D/O. YALLAPPA KURGUND,
AGE: 50 YEARS, OCC: HOUSEHOLD WORK,
R/O: DEVAGIRI-YALLAPUR, TQ & DIST: HAVERI
NOW R/AT: KABBUR,
TQ & DIST: HAVERI-581110.
RFA. NO.100104/2018
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3. SMT. LAXMAVVA
D/O. YALLAPPA KURGUND,
AGE: 48 YEARS, OCC: HOUSEHOLD WORK,
R/O: DEVAGIRI-YALLAPUR,
TQ & DIST: HAVERI-581110.
4. SUSHEELAVVA
D/O. YALLAPPA KURGUND,
AGE: 40 YEARS, OCC: HOUSEHOLD WORK,
R/O: DEVAGIRI-YALLAPUR,
TQ & DIST: HAVERI-581110.
5. YALLAPPA
S/O. MALLAPPA KURGUND,
AGE: 74 YEARS, OCC: AGRICULTURE,
R/O: DEVAGIRI-YALLAPUR,
TQ & DIST: HAVERI-581110.
6. SMT. UMALAVVA
W/O. YALLAPPA KURGUND,
AGE: 72 YEARS, OCC: AGRICULTURE,
R/O: DEVAGIRI-YALLAPUR,
TQ & DIST: HAVERI-581110.
7. GUDDAPPA
S/O. YALLAPPA KURGUND,
AGE: 42 YEARS, OCC: AGRICULTURE,
R/O: DEVAGIRI-YALLAPUR,
TQ & DIST: HAVERI-581110.
8. NAGAVVA
ALLEGED W/O. YALLAPPA KURGUND,
AGE: 65 YEARS, OCC: HOUSEHOLD WORK
R/O. C/O. 5TH DEFENDANT,
R/O. DEVAGIRI PLOT,
TQ & DIST: BELAGAVI-581110.
9. KANNAPPA
S/O. GUDDAPPA KARAVALI,
AGE: 50 YEARS, OCC: AGRICULTURE,
R/O: DEVAGIRI PLOT,
TQ & DIST: HAVERI-581110.
....RESPONDENTS
RFA. NO.100104/2018
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(BY SRI.AVINASH BANAKAR AND PRUTHVI K.S., ADV. FOR R1 TO R4;
SRI.HARSHAWARDHAN M.PATIL, ADV. FOR R5 TO R7;
SRI.RAVI S.BALIKAI, ADV. FOR R8 AND R9)
THIS RFA IS FILED UNDER SEC. 96 OF CPC., AGAINST THE
JUDGMENT AND DECREE DATED 08.12.2017 PASSED IN O.S. NO.
198/2014 ON THE FILE OF THE PRINCIPAL SENIOR CIVIL JUDGE AND
CJM, HAVERI, DECREEING THE SUIT FILED FOR PARTITION AND
SEPARATE POSSESSION.
THIS RFA HAVING BEEN HEARD AND RESERVED FOR JUDGMENT
ON 24.07.2023, COMING ON FOR PRONOUNCEMENT OF JUDGMENT
THIS DAY, ASHOK S. KINAGI, J., DELIVERED THE FOLLOWING:
JUDGMENT
This appeal is filed by the appellant challenging the judgment and preliminary decree dated 08.12.2017 passed in O.S.No.198/2014 by the Principal Senior Civil Judge & CJM, Haveri.
2. For the sake of convenience, parties are referred to as per their ranking before the trial Court. Appellant is defendant No.6, respondents No.1 to 4 are the plaintiffs and respondents No.5 to 9 are the defendants No.1 to 5 before the trial Court.
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3. Brief facts leading rise to filing of this appeal are as under:
The plaintiffs filed a suit for partition and separate possession of 1/7th share each in the suit schedule properties. It is the case of the plaintiffs that schedule A properties are the agricultural lands and schedule B is the genealogy of plaintiffs and defendants No.1 to 3. The suit schedule properties are the ancestral undivided joint Hindu family properties of plaintiffs and defendants No.1 to 3.
Plaintiffs and defendants No.1 to 3 are in joint possession and enjoyment of the suit schedule properties as coparceners. The parties are Hindus and governed by Hindu Mitakshara School of Law. The defendants No.1 and 2 are father and mother of defendant No.3 and plaintiffs.
Defendant No.4 is the daughter of first defendant's sister, defendant No.5 is the brother of defendant No.4. Defendant No.5 illegally entered into the portion of suit schedule properties as a owner. As such, they are made as parties to the suit. It is contended that originally the suit schedule RFA. NO.100104/2018 5 properties belonged to the propositus by name Mallappa, S/o. Dyamanna Kurgund, along with the other properties and the family was possessing only R.S.No.11/1 measuring 10 acres 24 guntas. In the family partition, the entire suit schedule property to an extent of 5 acres 12 guntas fell to the share of Mallappa. The said land was renumbered as R.S.No.11/1A. Accordingly M.E.No.969 was duly certified on 06.03.1954. Thereafter defendant No.1 and his brothers and mother were partitioned in the family properties between them, wherein suit property fell to the share of defendant No.1. It is contended that mother of the plaintiffs belonged to Lambani community and father belongs to Kuruba community. Before the elders of both families, they were married as per the customs prevailing in Hindu Kuruba community. Out of the wedlock, defendant No.2 gave birth to the plaintiffs and defendant No.3. Defendant No.1 is a drunkard and addicted to bad habits like playing cards and having illicit relationship with defendant No.4. Defendant No.4 showing herself as the wife of defendant No.1, on the RFA. NO.100104/2018 6 basis of illegal mutation, alienated the said property in favour of defendant No.5 under registered gift deed and the same is illegal and not binding on the shares of the plaintiffs. It is contended that defendants No.1 and 3 colluding with each other, behind the back of the plaintiffs, got filed a false suit in O.S.No.132/1998 before the Civil Judge & JMFC, Haveri for grant of decree for partition and separate possession. They have not made the plaintiffs as parties to the said proceedings. The defendants No.1 and 3 only to defraud the legitimate shares of the plaintiffs, got disposed of the suit in terms of compromise. The judgment and decree passed in the suit is not binding on the legitimate shares of the plaintiffs. The plaintiffs approached defendants No.1 to 3 and requested them to make partition in the suit properties, but they flatly refused to make partition. Hence cause of action arose for the plaintiffs to file this suit.
4. Defendants No.1 to 3 appeared and filed written statement denying the averments made in the plaint and admitted that schedule A properties are the agricultural lands RFA. NO.100104/2018 7 and schedule B is the genealogy of plaintiffs and defendants No.1 to 3. It is admitted that the suit schedule properties are the ancestral undivided joint Hindu family properties of plaintiffs and defendants No.1 to 3 and they are in joint possession of the suit schedule properties as coparceners. There is no partition by metes and bounds. The plaintiffs by virtue of their marriage are residing in their husbands' house. It is denied that defendants No.1 and 3 colluding with each other, behind the back of the plaintiffs, got filed a false suit in O.S.No.132/1998 before the Civil Judge & JMFC, Haveri. Hence prayed to dismiss the suit.
5. Defendant No.5 filed a written statement contending that the suit filed by the plaintiffs is not maintainable. It is denied that the suit schedule properties are the ancestral joint family properties of plaintiffs and defendants No.1 to 3 and also genealogy annexed to the plaint. It is contended that the suit schedule properties belong to defendants No.1 to 3 only. Plaintiffs have no right over the same. It is denied that the suit schedule properties are not partitioned RFA. NO.100104/2018 8 so far and there is no such joint and constructive possession of the plaintiffs with defendants No.1 to 3 with respect to the suit schedule properties. There is no cause of action for filing the suit. It is contended that the defendant No.4 is the wife of defendant No.1 and defendant No.1 transferred the said land bearing Sy.No.11/2A measuring 2 acres 8 guntas in favour of defendant No.4 and defendant No.4 became the absolute owner of land bearing Sy.No.11/2A measuring 2 acres 8 guntas. After the acquisition of aforesaid land, she executed a gift deed in favour of defendant No.5 and delivered the possession of the said property to defendant No.5 and revenue records have been changed in the name of defendant No.5. Further it is contended that there is no relationship between the plaintiffs and defendants No.4 and
5. Compromise decree was passed in O.S.No.132/1998 and as per the said compromise decree, partition was effected between defendants No.1 and 3. Since suit schedule properties are already partitioned, the question of RFA. NO.100104/2018 9 partitioning the same does not arise. Hence prayed to dismiss the suit.
6. Defendant No.6 filed written statement denying the averments made in the plaint and contended that defendant No.6 has purchased the land bearing Sy.No.11/2A measuring 2 acres 8 guntas situated at Devagiri Yallapur Village under registered sale deed dated 09.10.2015. Before purchasing the said land, defendant No.6 verified all the necessary and relevant documents and purchased the same under registered sale deed and he became the absolute owner of Sy.No.11/2A and he is the bona fide purchaser of the said land. Hence prayed to dismiss the suit.
7. On the basis of pleadings of parties, the trial Court framed the following issues and additional issues:
ISSUES
1. Whether the plaintiffs prove that they are legitimate children of defendant No.1 and 2?
2. Whether the plaintiffs prove that they and defendants No.1 to 3 are members constitute a Hindu Joint Family and suit A schedule properties are ancestral and join family properties?RFA. NO.100104/2018 10
3. Whether the plaintiffs prove that they are entitled for partition and separate possession of 1/7th share each by metes and bounds in suit A schedule properties?
4. Whether the defendants No.4 and 5 prove that the defendant No.1 was absolute owner of property baring RS No.11/2A, measuring 2 acres 8 guntas who relinquished his rights in favour of defendant No.4 and thereby conveyed perfect title to her and defendant No.4 later gifted it in favour of defendant No.5?
5. What Order or Decree?
ADDITIONAL ISSUE
1. Whether the defendants No.6 proves that he is the bona fide purchaser of suit item No.1 of A schedule for valuable consideration without notice?
8. In order to prove the case of the plaintiffs, plaintiff No.1 was examined as PW-1 and examined one witness as PW-2 and got marked 10 documents as Ex.P1 to Ex.P10. In support of the case of defendants, defendant No.5 was examined as DW-1, defendant No.6 was examined as DW-2, defendant No.2 was examined as DW-3 and got marked 8 documents as Ex.D1 to Ex.D8.
RFA. NO.100104/201811
9. The trial Court after considering the oral and documentary evidence, answered issue No.1 to 3 in the affirmative; issue No.4, additional issue No.1 in the negative and consequently decreed the suit of the plaintiffs with cost. It is ordered and decreed that the plaintiffs are entitled for 1/7th share each in the suit schedule properties. Defendant No.6 aggrieved by the judgment and decree passed by the trial Court in respect of Sy.No.11/2A, has filed the present appeal.
10. Heard the learned counsel for defendant No.6, plaintiffs and defendants No.4 and 5.
11. Learned counsel for the defendant No.6 submits that defendants No.1 and 3 filed a suit in O.S.No.132/1998 for partition and separate possession. In the said suit, the parties to the said suit filed a compromise petition and by virtue of compromise decree, the suit schedule properties fell to the share of defendant No.1. Defendant No.4 is the wife of defendant No.1. He has transferred the said land in RFA. NO.100104/2018 12 favour of defendant No.4 by way of family settlement and accordingly, on the basis of family settlement, the name of defendant No.4 came to be entered by virtue of mutation as per Ex.P5. By virtue of Ex.P5, the name of defendant No.4 was entered in the Record of Rights. He submits that defendant No.4 executed registered gift deed in favour of defendant No.5 dated 21.03.2013, as per Ex.D3. On the strength of the registered gift deed, name of defendant No.5 was entered in the revenue records. The defendant No.5 sold the said land in favour of defendant No.6. The defendant No.6 is the bona fide purchaser. He submits that the defendants No.1 and 2 got filed the present suit through the plaintiffs in order to harass the defendant No.6. Hence he submits that the trial Court without considering that there was a partition between defendants No.1 and 3, committed an error in entertaining the suit filed by the plaintiffs. Hence on these grounds he prays to allow the appeal. RFA. NO.100104/2018 13
12. Per contra, learned counsel for the plaintiffs supports the impugned judgment and decree passed by the trial Court and prays to dismiss the appeal.
13. Learned counsel for defendants No.4 and 5 submits that as per the proviso to Section 6 of the Hindu Succession (Amendment) Act, 2005, the property transferred in the name of defendant No.4 by virtue of family settlement, is saved. He further submits that the suit filed by the plaintiffs is not maintainable. Hence prayed to dismiss the appeal.
14. Perused the records and considered the submissions made by the learned counsel for the parties.
15. The points that would arise for our consideration are:
1. Whether the plaintiffs prove that defendant No.2 is the legally wedded wife of defendant No.1 and plaintiffs are born out of their wedlock?
2. Whether the plaintiffs prove that defendants No.1 and 3 colluding with each other, filed a suit in O.S.No.132/1998 on the file of Civil Judge & JMFC, Haveri and got compromised the matter?RFA. NO.100104/2018 14
3. Whether defendant No.6 proves that he is a bona fide purchaser of suit item No.1 of A schedule for valuable consideration without notice?
4. Whether defendants No.4 and 5 prove that defendant No.1 was the absolute owner of land bearing Sy.No.11/2A measuring 2 acres 8 guntas who relinquished his right in favour of defendant No.4?
5. Whether defendant No.6 proves that the judgment and decree passed by the trial Court in respect of item No.1 of 'A' schedule property is perverse and arbitrary and calls for interference?
6. What order or decree?
16. Point No.1 & 2: Since these points are interlinked, they are taken together for common discussion in order to avoid repetition of facts. It is the case of the plaintiffs that defendant No.2 is the legally wedded wife of defendant No.1 and out of their wedlock, plaintiffs and defendant No.3 were born. Further, the suit schedule properties are the ancestral joint family properties of plaintiffs and defendants No.1 to 3 and they are in joint possession and enjoyment of the same and originally the suit schedule properties belonged to the propositus by name Mallappa with other properties and in the partition, the entire RFA. NO.100104/2018 15 suit schedule properties to an extent of 5 acres 12 guntas fell to the share of the original propositus namely Mallappa and the said land was re-numbered as Sy.No.11/1A and on the basis of partition, mutation was effected in the name of Mallappa vide M.E.No.969. Partition was effected between defendant No.1, his brothers and mother. In the said partition, the suit property was fallen to the share of defendant No.1 and accordingly, mutation was effected vide M.E.No.1425 dated 24.04.1961. The mother of the plaintiffs (defendant No.2) belongs to Lambani community and father (defendant No.1) belongs to Kuruba community and their marriage was performed as per the rights and customs prevailing in Hindu Kuruba community before the elders of both the families. Hence the plaintiffs and defendant No.3 being the children of defendant No.1 and 2 are coparceners and entitled for share in the suit schedule properties.
17. In support of plaintiffs' case, plaintiff No.1 was examined as PW-1. She has reiterated the plaint averments in the examination-in-chief and produced documents Ex.P1, RFA. NO.100104/2018 16 RTC extract in respect of Sy.No.11/1A measuring 2 acres 8 guntas which stands in the name of defendant No.5 for the year 2014-15; Ex.P2 is the RTC extract in respect of land bearing Sy.No.11/2B/1 which stands in the name of defendant No.3; Ex.P3 is the RTC extract of land bearing Sy.No.11/2B/2 for the year 2014-15 which stands in the name of Lambani Umalavva i.e., defendant No.2; Ex.P4 is the mutation extract in respect of land bearing Sy.No.11/1; Ex.P5 is the mutation extract in respect of land bearing Sy.No.11/2 dated 27.07.1998, which indicates that 2 acres 8 guntas was transferred in the name of defendant No.4 by defendant No.1; Ex.P6 is the mutation extract which discloses that the property was mutated in the name of defendant No.1 in respect of land bearing Sy.No.11/1B measuring 5 acres 12 guntas. The defendant No.1 got the said land in the partition effected between him, his brothers and mother. Ex.P7 is the caste certificate of plaintiff No.1 which discloses that her father's name is Yallappa Kurgund and she was born on 01.06.1969 and her caste is shown as RFA. NO.100104/2018 17 Hindu Kuruba and the said caste certificate was issued on 09.09.2014. Ex.P8 is the caste certificate issued by the Principal of Government School pertaining to defendant No.3, father's name is shown as Yallappa Kurgund and he was born on 12.04.1980 and caste is shown as Hindu Kuruba and it was issued on 09.09.2014. Ex.P9 is the caste certificate of plaintiff No.2, father's name is shown as Yallappa Kurgund and she was born on 01.06.1972 and caste is shown as Hindu Kuruba and it was issued on 09.09.2014. Ex.P10 is the identity card issued by the Election Commission of India of defendant No.3, father's name is shown as Yallappa.
18. In the course of cross-examination of PW-1, it is denied that defendant No.2 never married defendant No.1 as per the customs prevailing in Hindu Kuruba community and it is denied that defendant No.4 is the legally wedded wife of defendant No.1 and it is denied that in the family settlement, item No.1 of suit schedule property was allotted to the share of defendant No.4 and it is also denied that on the basis of family settlement, the name of defendant No.4 was entered RFA. NO.100104/2018 18 in the revenue records. It is further denied that defendant No.4 gifted the suit land in favour of defendant No.5. She has deposed that she do not know that defendant No.4 executed registered gift deed in favour of defendant No.5 and by virtue of registered gift deed, mutation was effected in the name of defendant No.5. It is denied that since from beginning she was aware about the facts of the case. It is further denied that defendants No.1 and 3 have compromised in O.S.No.132/1998 and it is denied that the plaintiffs have no share in the suit schedule properties.
19. PW-2 is the relative of defendant No.1 who has deposed that the marriage of defendant No.1 was performed with defendant No.2 and out of their wedlock, plaintiffs and defendant No.3 were born and further deposed that defendant No.1 never married defendant No.4. He has deposed that defendant No.1 is his uncle. He has further deposed that the suit schedule properties are the ancestral properties of plaintiffs and defendants No1 to 3. Nothing has been elicited from the mouth of this witness. When PW-2 RFA. NO.100104/2018 19 being the close relative of defendant No.1, his evidence is relevant as per Section 50 of the Indian Evidence Act, that any opinion expressed as to the existence of relationship of any person, who, as a member of family or otherwise, has a special means of knowledge on the subject, is relevant. In the instant case, PW-2 being the close relative of defendant No.1, has a special means of knowledge of the family of defendant No.1. Considering the evidence of PW-2, plaintiffs have proved that the defendant No.1 married defendant No.2 as per the customs prevailing in Hindu Kuruba community.
20. In rebuttal, defendant No.5 got examined himself as DW-1 and filed his examination-in-chief and reiterated the averments made in the written statement deposing that defendant No.4 is his sister and plaintiff filed a false suit claiming partition against this defendant and relationship of plaintiffs with defendants No.1 to 3 is denied. It is further deposed by DW-1 that out of total extent of 5 acres 21 guntas in land bearing Sy.No.11/2A, 2 acres 8 guntas was allotted to the share of defendant No.4 and on the basis of RFA. NO.100104/2018 20 family settlement, the name of defendant No.4 was entered in the revenue records by virtue of mutation as per Ex.P5. Thereafter defendants No.1 and 3 filed a suit for partition and separate possession in O.S.No.132/1998 excluding an area of 2 acres 8 guntas which was allotted to the share of defendant No.4 in the family settlement. In the said suit, the defendants filed a compromise petition and compromise decree was drawn. None of the parties produced the copy of the compromise decree passed in O.S.No.132/1998. The plaintiff in the said suit has not arrayed the present plaintiffs as parties on the ground that the plaintiffs being daughters, were not entitled for any share in the suit schedule properties during the lifetime of their father. The said compromise decree was passed prior to 20.12.2004.
21. In order to consider the case in hand, it is necessary to extract Section 6 of the Hindu Succession (Amendment) Act, 2005 (hereinafter referred as 'the Act of 2005', for short), which reads as under:
RFA. NO.100104/201821
"6. Devolution of interest in coparcenary property.
-- (1) On and from the commencement of the Hindu Succession (Amendment) Act, 2005*, in a Joint Hindu family governed by the Mitakshara law, the daughter of a coparcener shall,--
(a) by birth become a coparcener in her own right in the same manner as the son;
(b) have the same rights in the coparcenary property as she would have had if she had been a son;
(c) be subject to the same liabilities in respect of the said coparcenary property as that of a son, and any reference to a Hindu Mitakshara coparcener shall be deemed to include a reference to a daughter of a coparcener: Provided that nothing contained in this sub-section shall affect or invalidate any disposition or alienation including any partition or testamentary disposition of property which had taken place before the 20th day of December, 2004.
(2) Any property to which a female Hindu becomes entitled by virtue of sub-section (1) shall be held by her with the incidents of coparcenary ownership and shall be regarded, notwithstanding anything contained in this Act or any other law for the time being in force in, as property capable of being disposed of by her by testamentary disposition.
(3) Where a Hindu dies after the commencement of the Hindu Succession (Amendment) Act, 2005*, his interest in the property of a Joint Hindu family governed by the Mitakshara law, shall devolve by testamentary or intestate succession, as the case may be, under this Act and not by survivorship, and the coparcenary property shall be deemed to have been divided as if a partition had taken place and,--RFA. NO.100104/2018 22
(a) the daughter is allotted the same share as is allotted to a son;
(b) the share of the pre-deceased son or a pre-
deceased daughter, as they would have got had they been alive at the time of partition, shall be allotted to the surviving child of such pre-deceased son or of such pre-deceased daughter; and
(c) the share of the pre-deceased child of a pre-deceased son or of a pre-deceased daughter, as such child would have got had he or she been alive at the time of the partition, shall be allotted to the child of such pre-
deceased child of the pre-deceased son or a pre-deceased daughter, as the case may be.
Explanation. --For the purposes of this sub-section, the interest of a Hindu Mitakshara coparcener shall be deemed to be the share in the property that would have been allotted to him if a partition of the property had taken place immediately before his death, irrespective of whether he was entitled to claim partition or not. (4) After the commencement of the Hindu Succession (Amendment) Act, 2005, no court shall recognise any right to proceed against a son, grandson or great- grandson for the recovery of any debt due from his father, grandfather or great-grandfather solely on the ground of the pious obligation under the Hindu law, of such son, grandson or great-grandson to discharge any such debt: Provided that in the case of any debt contracted before the commencement of the Hindu Succession (Amendment) Act, 2005*, nothing contained in this sub-section shall affect--
(a) the right of any creditor to proceed against the son, grandson or great-grandson, as the case may be; or RFA. NO.100104/2018 23
(b) any alienation made in respect of or in satisfaction of, any such debt, and any such right or alienation shall be enforceable under the rule of pious obligation in the same manner and to the same extent as it would have been enforceable as if the Hindu Succession (Amendment) Act, 2005 had not been enacted. Explanation.--For the purposes of clause (a), the expression "son", "grandson" or "great-grandson" shall be deemed to refer to the son, grandson or great- grandson, as the case may be, who was born or adopted prior to the commencement of the Hindu Succession (Amendment) Act, 2005.
(5) Nothing contained in this section shall apply to a partition, which has been effected before the 20th day of December, 2004.
Explanation.--For the purposes of this section "partition" means any partition made by execution of a deed of partition duly registered under the Registration Act, 1908 (16 of 1908) or partition effected by a decree of a court."
22. Admittedly in the instant case, prior to the amendment, there was a partition between defendants No.1 and 3 by way of compromise decree passed in O.S.No.132/1998. The said partition is saved by explanation to Sub-section (5) of Section 6 of the Act of 2005. RFA. NO.100104/2018 24
23. The defendant No.4 gifted the said land to defendant No.5 under registered gift deed dated 21.03.2013, as per Ex.D3. On the strength of the said registered gift deed, the name of defendant No.5 was entered in the revenue records.
24. On perusal of the records, it discloses that the defendant No.1 allotted portion of suit land measuring 2 acres 8 guntas to defendant No.4 in the family settlement. The plaintiffs produced Ex.P5, the mutation extract dated 27.07.1998, which discloses that Sy.No.11/2 to an extent of 2 acres 8 guntas towards northern side was allotted to the share of defendant No.4 in the family settlement. Family arrangements are governed by principles which are not applicable to the dealings between strangers. While dealing the rights of parties under family arrangements or claims to upset such arrangements, considers what in the broadest view of the matter is most for the interest of families and has regard to considerations which in dealing with transactions between persons not members of the same family, would not RFA. NO.100104/2018 25 be taken into account. Matters which would be fatal to the validity of similar transaction between the strangers are not objections to the binding effect of family arrangements. In other words, to put the binding effect and the essentials of a family settlement in a concretized form, the matter may be reduced into the form of following propositions:
(1) The family settlement must be a bona fide one so as to resolve family disputes and rival claims by a fair and equitable division or allotment of properties between the various members of the family;
(2) The said settlement must be voluntary and should not be induced by fraud, coercion or undue influence;
(3) The family arrangements may be even viral in which case no registration is necessary;
(4) It is well settled that registration could be necessary only if terms of family arrangement are reduced into writing. Here also, a distinction should be made between a document containing the terms and recitals of a family arrangement made under the document and mere memorandum prepared after family arrangement had already been made either for the purpose of the record or for information of the court for making necessary mutation. In such a case, the memorandum itself does not create or extinguish any rights in immovable properties and therefore does not fall within the mischief of Section 17(1)(b) of the Registration Act and is, therefore not compulsorily registrable;RFA. NO.100104/2018 26
(5) The members who may be parties to the family arrangement must have some antecedent title, claim or interest. Even a possible claim in the property which is acknowledged by the parties to the settlement. Even if one of the parties to the settlement has no title, but under arrangement of the other party relinquishes all its claims or titles in favor of such a person and acknowledges him to be the sole owner, then the antecedent title must be assumed and family arrangement will be upheld and the court will find no difficulty in giving assent to the same;
(6) Even if bona fide disputes, present or possible which may not involve legal claims are settled by bona fide family arrangement which is fair and equitable, the family arrangement is final and binding on the parties to the settlement.
25. The principles indicated above, clearly establishes that the true character of transaction appears to us have been a settlement between defendant No.1 and defendant No.4 by virtue of family settlement and defendant No.1 relinquished all his claim in respect of item No.1 of the suit schedule property recognizing the right of defendant No.4. By virtue of Ex.P5, the defendant No.4 became the absolute owner of item No.1 of the suit schedule property by virtue of family settlement and as per Section 14(1) of the Hindu Succession Act, which reads as under:
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''14. Property of a female Hindu to be her absolute property. - (1) Any property possessed by a female Hindu, whether acquired before or after the commencement of this Act, shall be held by her as full owner thereof and not as a limited owner. Explanation.--In this sub-section, "property" includes both movable and immovable property acquired by a female Hindu by inheritance or devise, or at a partition, or in lieu of maintenance or arrears of maintenance, or by gift from any person, whether a relative or not, before, at or after her marriage, or by her own skill or exertion, or by purchase or by prescription, or in any other manner whatsoever, and also any such property held by her as stridhana immediately before the commencement of this Act.''
26. Section 14(1) of the Act of 2005 contemplates a female Hindu who in the absence of this provision would have been limited owner of the property will now become full owner of the same by virtue of this section. From the perusal of Ex.P5, the said property was allotted to the share of defendant No.4 and she became the absolute owner as per Section 14(1) of the Act of 2005.
27. The plaintiffs have not challenged Ex.P5. On the basis of Ex.P5, the name of defendant No.4 was entered in the revenue records. Further, defendant No.5 being the brother of defendant No.4, defendant No.4 out of love and RFA. NO.100104/2018 28 affection executed registered gift deed in favour of defendant No.5. On the strength of registered gift deed, the name of defendant No.5 was entered in the revenue records. Defendant No.6 on the basis of Ex.P5 and registered gift deed executed by defendant No.4 in favour of defendant No.5, purchased the land item No.1 of schedule property for a valid consideration, during the pendency of the suit. The plaintiffs have failed to prove that the plaintiffs and defendants No.1 to 3 are the members of Hindu undivided family and further the suit schedule properties are the ancestral properties of plaintiffs and defendants No.1 to 3. In view of above discussion, we answer point No.1 in the affirmative and point No.2 in the negative.
28. Points No.3 & 4: Since these points are interlinked, they are taken together for common discussion in order to avoid repetition of facts. Defendant No.6 was examined as DW-1. He has deposed that he is a bona fide purchaser in respect of land bearing Sy.No.11/2A measuring 2 acres 8 guntas. He has deposed that before purchasing RFA. NO.100104/2018 29 the said property, he verified the documents and after satisfying that defendant No.5 was the absolute owner of land bearing Sy.No.11/2A, had purchased the said property. We have already recorded a finding that defendant No.4 became the absolute owner by virtue of family settlement that took place between defendant No.1 and defendant No.4, and on the basis of family settlement, name of defendant No.4 was mutated in the revenue records as per Ex.P5 and defendant No.4 gifted the said land in favour of defendant No.5 who is her brother under registered gift deed dated 21.03.2013 as per Ex.D3. On the basis of the registered gift deed, the name of defendant No.5 was entered in the revenue records. The defendant No.6 after going through the records, purchased the said property during the pendency of the suit. It is not the case of the plaintiffs that the defendant No.6 was aware about the pendency of the suit and inspite of having the knowledge about the pendency of the suit, purchased the suit land. Hence, we hold that defendant No.6 is the bona fide purchaser for value without RFA. NO.100104/2018 30 notice of pendency of the suit. In view of the above discussion, we answer points No.3 and 4 in the affirmative.
29. Point No.5: The trial Court has not properly appreciated the material on record and has committed an error in decreeing the suit in respect of item No.1 of the suit schedule properties. Hence, the judgment and decree passed by the trial Court in respect of item No.1 of the suit schedule properties is arbitrary and erroneous and same is liable to be set aside. In view of above discussion, we answer point No.5 partly in affirmative.
30. Point No.6: In view of answering points No.1 to 5, we proceed to pass the following:
ORDER The appeal filed by defendant No.6 is allowed in part.
The judgment and decree dated 08.12.2017, passed in O.S.No.198/2014 by the Principal Senior Civil Judge & CJM, Haveri, is set aside in respect of item No.1 of the suit schedule 'A' properties and RFA. NO.100104/2018 31 consequently, suit of the plaintiffs in respect of item No.1 of the suit schedule 'A' properties is dismissed. Rest of the judgment and decree passed by the trial Court is maintained.
No order as to the cost.
Sd/-
Judge Sd/-
Judge RD ct:vh