Karnataka High Court
Balasaheb Annasaheb Jasud vs Anirduha Vilas Kurbetti on 28 April, 2017
Equivalent citations: 2017 (3) AKR 329
:1:
IN THE HIGH COURT OF KARNATAKA
DHARWAD BENCH
DATED THIS THE 28TH DAY OF APRIL, 2017
BEFORE
THE HON'BLE MR.JUSTICE SREENIVAS HARISH KUMAR
R.S.A. NO. 764/2005 (DEC/INJ)
BETWEEN:
BALASAHEB ANNASAHEB JASUD,
AGED ABOUT: 43 YEARS,
R/O NIPANI, TALUKA: CHIKODI,
DISTRICT: BELGAUM, PIN : 590001
... APPELLANT
(BY SMT. HEMALEKHA K. S. FOR SRI. G BALAKRISHNA
SHASTRY, ADVOCATE FOR APPELLANT)
AND
1. ANIRUDHA VILAS KURBETTI
AGED ABOUT: 26 YEARS,
R/O NIPANI, TALUKA: CHIKODI,
DISTRICT: BELGAUM, PIN : 590001.
2. VISHNU TUKARAM JASUD,
SINCE DEAD BY LRS,
2(A) SMT. YASHODA W/O VISHNU JASUD,
AGE: 45 YEARS,
R/O NIPANI, TALUKA: CHIKODI,
DISTRICT: BELGAUM, PIN : 590001.
2(B) RAJU S/O VISHNU JASUD,
AGE: 25 YEARS,
R/O NIPANI, TALUKA: CHIKODI,
DISTRICT: BELGAUM, PIN : 590001.
:2:
3. KRISHNABAI W/O TUKARAM JASUD
SINCE DEAD, R-2(A) & R-2(B)
ARE TREATED AS LRS OF R-3
(AMENDED V.O. DATED:26.08.2005)
... RESPONDENTS
(BY SRI. SACHIN S MAGADUM, ADVOCATE FOR R1;
R2(A) & 2(B) ARE SERVED)
THIS APPEAL IS FILED U/S. 100 OF CPC AGAINST
THE JUDGEMENT & DECREE DATED:13.01.2005 PASSED
IN R.A.NO.77/1998, ON THE FILE OF THE CIVIL JUDGE
(SR.DN), CHIKODI, DISMISSING THE APPEAL AND
CONFIRMING THE JUDGEMENT AND DECREE DATED:
25.11.1998 PASSED IN OS NO.230/1994 ON THE FILE OF
THE CIVIL JUDGE (JR.DN), NIPANI.
THIS APPEAL HAVING BEEN HEARD AND RESERVED
FOR JUDGMENT ON 06.04.2017, AND COMING ON FOR
PRONOUNCEMENT THIS DAY, THIS COURT DELIVERED
THE FOLLOWING : -
JUDGMENT
In the second appeal by the plaintiff in O.S. No.230/1994 on the file of Civil Judge (Jr. Dn.), Nippani, the substantial questions of law raised at the time of admission are as follows:-
1. Whether the judgment passed in R.A.77/1998 after the death of the appellant therein and the absence of the application for bringing the LRs on record is sustainable in law?:3:
2. Whether the courts below were justified in coming to the conclusion that the appellant is not entitled to preemption right under section 22 of the Hindu Succession Act?
2. In the first substantial question of law, it appears that wrongly it is mentioned that appellant before the court below died. But the party who died was respondent No.3, Krishnabai and therefore, the said question needs to be suitably modified. Hence, the question is :-
"Whether the judgment passed in R.A.77/1998 after the death of 3rd respondent, Krishnabai, is sustainable in law when her legal representatives were not brought on record during the pendency of the appeal?"
3. Given a brief account of the pleadings, the plaintiff instituted the suit for the reliefs of declaration that he had got pre-emptory right to purchase the suit land to the extent of 1/3rd joint share of the defendants, for cancellation of the sale deed dated 17.10.1984 executed by defendants No.2 and 3 in favour of defendant No.1 and for permanent injunction to restrain the defendants from causing obstruction to his peaceful possession and his enjoyment of :4: the suit property. The propositus was one Vithal Jasud, who died after 1956. He had two sons and a daughter, namely, Thukaram, Annasaheb and Housabai. Plaintiff is the second son of Annasaheb. Defendant No.3, Krishnabai is the wife and defendant No.2, Vishnu is the son of Thukaram.
4. Suit property is 1/3rd joint share of defendants No.2 and 3 in agricultural land bearing Sy. No.72A/1D measuring 6 acres situate at Nippani, Chikkodi taluk, Belagavi district. The plaintiffs' father Annasaheb was the Manager of the joint family and died on 24.02.1986. He had 2/3rd share in the entire land in Sy. No.72A/1D. After father's demise, plaintiffs succeeded to this 2/3rd share. The plaintiffs' family and the defendants No.2 and 3 were in joint enjoyment of the entire land. On 17.10.1984, the defendants No.2 and 3 sold their 1/3rd interest in the said land for a consideration of Rs.15,000/- to defendant No.1 without the knowledge and consent of the plaintiff and his other family members. This sale was in contravention of the provisions of the Karnataka Prevention of Fragmentation and Consolidation of Holdings Act, 1966. The plaintiff had preferential right to purchase 1/3rd share of the defendants :5: according to Section 22 of the Hindu Succession Act. The plaintiff pleaded that the defendant No.1 was a stranger to the family and since entire land was under the occupation of the plaintiff and his family members, if defendant No.1 would take possession of 1/3rd share sold to him, he would be put to great hardship.
5. Defendant No.1, in his written statement, admitted to have purchased 1/3rd share of the defendants No.2 and 3, but denied the pre-emptive right of the plaintiff. He contended that the plaintiff, his brothers and mother were aware of the sale deed executed in his favour by defendants No.2 and 3 on 17.10.1984. None of them raised objection at the time of sale. He asserted that he took over possession of the land purchased by him. The plaintiff and the defendants had been divided, and therefore, they were not the co-owners of the land. The reliefs that the plaintiff claim were mis- conceived and that the suit was also barred by time.
6. The trial Court dismissed the suit by its judgment dated 25.11.1998. The plaintiff preferred an appeal, R. A. No.77/1998 in the Court of Senior Civil Judge, Chikkodi. :6: This appeal was dismissed by judgment and decree dated 13.01.2005. Hence, this second appeal by the plaintiff.
7. The counsel for the appellant/ plaintiff argued that while there was no dispute with regard to the fact that the plaintiff's father Annasaheb had 2/3rd interest in the entire land and that his brother Thukaram's interest was only 1/3rd, both the Courts below should have recognised the plaintiff's right to purchase 1/3rd interest of the defendants No.2 and 3, who were the son and wife of Thukaram respectively. In para 4 of the written statement, it is clearly mentioned that defendants No.2 and 3 sold their undivided share. The property had not been divided. The purchaser i.e., defendant No.1 filed suit for partition and it is still pending in the Court of Civil Judge, Nippani. The plaintiff is none other than the son of Thukaram's brother Annasaheb, and therefore, Section 22 of the Hindu Succession Act comes into play entitling the plaintiff to exercise preferential right. The First Appellate Court has committed an error by holding that there was a partition in the joint family, which was not the finding given by the trial Court. Even there was no waradi given to the Revenue Authorities reporting division. :7: When the factual aspects are so, the plaintiff can definitely be called class-I heir to exercise the right under Section 22 of the Hindu Succession Act.
8. The learned counsel further argued that defendant No.2, Smt. Krishnabai, who was respondent No.3 in the first appeal died during its pendency. Since her son i.e., defendant No.2 was already on record, the appeal did not abate as the estate was substantially represented.
9. On the question of limitation, she argued that defendants No.2 and 3 executed the sale deed in favour of defendant No.1 on 17.10.1984. The defendant No.1 applied for mutation as per Ex.P-2 on 30.11.1986, which was the date when the plaintiff came to know about the sale transaction. So within a year from the date of knowledge, suit was filed. Hence, suit is within time. The courts below have wrongly held that this suit is time barred.
10. The learned counsel for the respondent - defendant No.1 argued that the plaintiff could not be called class-I heir. One Vithal Jasud was the propositus. His two sons, Thukaram and Annasaheb can only be class-I heirs. :8: The plaintiff may be Class-I heir of his father; but for purpose of S.22, he cannot be considered as Class - I heir. Even after his father's death, that right is not available to him. He further argued that plaintiff's father was very much alive when defendants No.2 and 3 executed sale deed in favour of defendant No.1. When the father did not question the validity of the sale deed, his son cannot seek for cancellation of the sale deed and exercise preferential right under Section 22 of the Hindu Succession Act.
11. As regards limitation, his argument was that whenever a right of preemption or preferential right has to be exercised, it must be within a year from the date of registration of sale deed. Date of knowledge cannot be considered at all.
12. With regard to the effect of death of defendant No.2 during the pendency of first appeal, he argued that when her other legal representatives were not brought on record, the appeal abated against her and consequently it had an adverse effect on the entire appeal. He argued that the dismissal of the appeal was to the benefit of the defendants. The position would have been different had the :9: appeal been allowed, in that the defendants would have preferred a second appeal questioning the effect of not making the other legal representatives of the deceased as parties in the appeal.
Substantial question of law No.1:
13. In the instant case the 3rd respondent Krishnabai actually died during the pendency of the appeal before the First Appellate court. Her legal representatives were not brought on record, even it appears that the death was not reported to the Court also. The learned counsel for the appellant, in support of her argument that the death of Krishnabai did not result in abatement of the appeal as her substantial interest had been represented by her son Vishnu Tukaram Jadhav, the respondent No.2, relied upon judgment of this Court in the case of Special Land Acquisition V/s. Sanjeevappa and others. (1979) 2 Kar. L.J. 376. This authority is not applicable to the facts of the case because in the said case, an application for bringing legal representatives on record was filed in the High Court although death of respondent-claimant had taken place before pronouncement of the judgment by the District Judge. : 10 : Therefore, this Court held that the application should be made before the court where the case was pending at the time of death. It was further observed that proper procedure would be to remand the matter to the District Court to enable the party to apply for substitution of legal representatives. This is not the position here. The 2nd respondent was already on record and therefore, the question is whether he represented substantial estate of the deceased and for this reason, if other legal representatives were not brought on record, it did not result in abatement of the whole appeal. In a situation like this, the Hon'ble Supreme Court, in the case of Mahabir Prasad V/s. Jage Ram and others, [1971 (1) SCC 265], referring to Order 41 Rule 4 and Order 22 Rule 3 CPC, held as below:-
"6. In a later judgment of this Court in Ratan Lal Shah v. Firm Lalmandas Chhadammalal and Another,2 the plaintiffs obtained a joint decree against two persons- Ratan Lal and Mohan Singh. Against the decree Ratan Lal alone appealed to the High Court of Allahabad. Mohan Singh was impleaded as a party-respondent to the appeal. Notice of appeal sent to Mohan Singh was returned unserved, and no steps were taken to serve him with notice of the appeal. The High Court dismissed the appeal holding that there was a joint decree against Ratan Lal and Mohan Singh in a suit founded on a joint cause of action and the decree against Mohan Singh had : 11 : become final. The appellant could not, on that account claim to be heard in his appeal; if he was heard and his claim was upheld. The High Court observed that there would be two conflicting decisions between the same parties and in the same suit based on the same cause of action. This Court set aside the judgment of the High Court observing that even though Mohan Singh was not served with notice of appeal, the appeal filed by Ratan Lal was maintainable, in view of the provisions of 0rder XLI, Rule 4, Code of Civil Procedure. In Ratan Lal Shah's case this Court allowed the appeal to be prosecuted, even though one of the joint decree-holders impleaded as a party- respondent had not been served with the notice of appeal. In the present case one of the respondents had died and his heirs have not been brought on the record. No distinction in principle may be made between Ratan Lal Shah's case and the present case. Competence of the Appellate Court to pass a decree appropriate to the nature of the dispute in an appeal filed by one of several persons against whom a decree is made on a ground which is common to him and others is not lost merely because of the persons who was jointly interested in the claim has been made a party-respondent and on his death his heirs have not been brought on the record. Power of the Appellate Court under Order XLI, Rule 4, to vary or modify the decree of a Subordinate Court arises when one of the persons out of many against whom a decree or an order had been made on a ground which was common to him and others has appealed. That power may be exercised when other persons who were parties to the proceeding before the Subordinate Court and against whom a decree proceeded on a ground which was common to the appellant and to those other persons are either not impleaded as parties to the appeal or are impleaded as : 12 : respondents. The view taken by the High Court cannot therefore be sustained.
7. Even on the alternative ground that Mahabir Prasad being one of the heirs of Saroj Devi there can be no abatement merely because no formal application for showing Mahabir Prasad as an heir and legal representative of Saroj Devi was made. Where in a proceeding a party dies and one of the legal representatives is already on the record in another capacity, it is only necessary that he should be described by an appropriate application made in that behalf that he 'is also on the record, as an heir and legal representative. Even if there are other heirs and legal representatives and no application for impleading them is made within the period of limitation prescribed by the Limitation Act, the proceeding will not abate. On that ground also the order passed by the High Court cannot be, sustained."
14. Here in this case, suit was filed against all the three defendants-respondents questioning the sale deed dated:17.10.1984, executed by respondents 2 and 3 in favour of respondent No.1; the appellant pleaded that he could exercise preferential right under Section 22 of Hindu Succession Act. When the sale deed was executed jointly by respondents 2 and 3, the suit against them was based on a cause of action available jointly against them. Because of death of Krishabai, respondent No.3, the appeal would have abated definitely if respondent No.2 was not there on record. : 13 : This respondent No.2 is none other than the son of Krishnabai and he was already on record in the capacity of respondent No.2. It is also not the case of the respondents that Krishnabai died leaving behind not only respondent No.2, but also some others. Respondent No.2, for this reason represented substantial interest of respondent No.3.
15. The definition of legal representative according to Section 2(11) of CPC is as follows:-
S. 2(11) "legal representative" means a person who in law represents the estate of a deceased person, and includes any person who inrtermeddles with the estate of the deceased and where a party sues or is sued in a representative character the person on whom the estate devolves on the death of the party so suing or sued;
16. Therefore, when a person who in law represents the estate for deceased person, becomes legal representative, defendant No.1 comes into picture because he is the purchaser of the property from defendants No.2 and 3. When he is already on record, non-impleading of the other legal representatives of deceased Krishnabai matters least. In fact this is the view expressed by the Hon'ble Supreme Court in the case of K.Niana Mohamed (Dead) through LRs V/s. : 14 : A.M. Vasudevan Chettiar (Dead) through LRs and others (2010) 7 SCC 603.
17. Therefore, as argued rightly by the counsel for the plaintiff-appellant, the appeal before the Court below did not abate in entirety and the judgment passed in the First Appeal is sustainable.
Substantial question of law No.2:
18. Question is whether the plaintiff can exercise preferential right under Section 22 of Hindu Succession Act. The pedigree shows that plaintiff is the son of one Annasaheb, who is the brother of Tukaram. If Section 22 (1) of Hindu Succession Act is read, it becomes very clear that for a person to claim preferential right, the interest in any immovable property of an intestate should devolve on two or more heirs specified in Class - I of the schedule and anyone of such heirs should propose to transfer his or her interest in the property. Even this preferential right can be claimed after the transfer of the property subject to limitation. In this case, the Class I heirs of the propositus Vittal Jasud are Tukaram, Annasaheb and Housabai. The wife and son of Tukaram sold away their undivided share to defendant No.1 by executing sale deed on 17.10.1984. On that date, the : 15 : plaintiff's fatehr Annasaheb was very much alive. He did not question the sale. Supposing that Tukaram had sold away the property, Annasaheb being Class-I heir, could have questioned it. Here, neither the plaintiff nor the defendants 2 and 3 do come within the purview of Class-I heirs of Vittal Jasud. Even if plaintiff succeeds to the property of his father by intestate succession, he gets no right under Section 22 of the Hindu Succession Act; he doesn't step into the shoes of his father to call himself as Class-I heir. In a situation like this, it is useful to place reliance upon the judgment of this Court in the case of Ganeshappa (deceased by LRs) V/s. Krishnamma and others (AIR 2005 KAR 160). In this decision it is held as below:-
"4. The provision of the Section declare that when the interest in the immovable property devolved by intestate succession upon two or more heirs specified in Class I of the schedule then it is between the Class I heirs inter se they have right of pre-emption. In the present case, the succession for the first time opened after the death of propositus Venkataramanappa. His sons as Class-I heirs succeeded to the property. The first defendant did not succeed to the property as Class-I heir of Venkataramanappa along with the plaintiff and his brothers. The first defendant succeeded to the property only after the death of her husband, who is the brother of the plaintiff. The plaintiff could have invoked right of pre-emption, if Chinnappa his brother had sold the : 16 : property. But in the instant case, it is the widow of Chinnappa, who inheriting the property after the death of her husband sells the property. Therefore, in between the plaintiff and first defendant the question of right of pre-emption would not arise and provisions of Section 22 of the Hindu Succession Act do not apply. In that view, the claim of right of pre-emption is untenable. The finding of the Trial Court is sound and proper. Accordingly, the appeal dismissed.
19. Therefore, the plaintiff gets no right to claim preferential right under Section 22. In the light of this position of law, the findings of the both courts below on this issue need to be sustained.
20. Even on the point of limitation, suit was dismissed and the First Appellate Court upheld the said finding. To bring a suit of this nature, limitation period is one year as per Article 97 of the Limitation Act. The period starts running from the day when the purchaser takes physical possession of the whole or part of the property under the sale impeached or the date of registration of the sale deed if subject matter of sale does not admit of physical possession. Here the sale deed is dated: 17.10.1984. The suit was filed on 27.07.1987. Date of knowledge of execution of : 17 : sale deed cannot be considered at all. So both the Courts below are justified in dismissing the suit as time barred.
21. From the above discussion on substantial question of law No.2 and the limitation, this second appeal deserves dismissal and ordered accordingly. No costs.
Sd/-
JUDGE hnm/yan