Karnataka High Court
M Honnappa vs Smt Dundamma on 22 March, 2013
1 RSA 765/10
IN THE HIGH COURT OF KARNATAKA AT BANGALORE
DATED THIS THE 22ND DAY OF MARCH, 2013
BEFORE:
THE HON'BLE MR. JUSTICE A.S.PACHHAPURE
REGULAR SECOND APPEAL No.765 OF 2010
BETWEEN:
1. M. Honnappa,
S/o. Madappa,
Aged 62 years,
2. Mahendrappa,
S/o. M. Honnappa,
Aged 42 years,
Both are r/at:
Gattavadipura,
Doddikavalande Hobli,
Nanjangud Taluk-571 238. ... APPELLANT/S
[By Sri. T.N. Raghupathy, Adv.]
AND:
Dundamma,
W/o. late Shivappa,
Aged 69 years,
R/at Gattavadipura Hobli,
Nanjangud Taluk,
Mysore District-571 238. ... RESPONDENT/S
[By Sri. Mahantesh S. Hosmath, Adv.]
* * *
2 RSA 765/10
This RSA is filed u/Section 100 of CPC,
against the Judgment and Decree dated 03.02.2010
passed in R.A. No.110/2007 on the file of I Addl.
District Judge, Mysore, allowing the appeal and
setting aside the Judgment and Decree dated
01.10.2007 in O.S. No.68/2003 on the file of Civil
Judge (Sr.Dn.), Nanjangud,
This RSA having been heard and reserved for
Judgment, this day the Court pronounced the
following:
JUDGMENT
The appellants have challenged the judgment and decree passed by the First Appellate Court decreeing the suit of the respondent declaring her to be the absolute owner and directing the appellants to hand over the possession of suit property, by setting aside the dismissal of her suit.
2. The facts relevant for the purpose of this appeal are as under:
The parties are referred as per their rank in the original proceedings for the sake of convenience.3 RSA 765/10
The appellants herein are defendants 1 and 2 whereas the respondent is the plaintiff. The suit property is an agricultural land bearing Sy.No.46/1 measuring 2 acres 9.5 guntas situated within the village limits of Haraganapura described in the schedule to the plaint. The suit property is ancestral property of the plaintiff's husband by name Shivappa. In a partition between himself and his brother Somappa, the suit property fell to the share of Shivappa. Except the plaintiff, there were no other legal representatives at the time when Shivappa died. After the death of the plaintiff, his wife was enjoying the suit land having continued in possession. Few days earlier to the institution of suit as the defendants obstructed the peaceful possession and enjoyment of the property, the plaintiff approached the revenue authorities and found the name of defendants in the record of rights and as the defendants had questioned the title of plaintiff over the suit property, she 4 RSA 765/10 instituted the suit for declaration that she is the absolute owner and for injunction restraining the defendants from causing obstruction to her peaceful possession and enjoyment of the suit property. The plaintiff sought an amendment to the plaint stating that she was not able to obtain a temporary injunction during the pendency of suit and the defendants forcibly dispossessed her. Therefore, she also claimed the relief of possession of suit property from the defendants.
The defendants filed the written statement denying the allegations made and they claimed that Puttathayamma was the second wife of Shivappa - the husband of plaintiff and a daughter by name Nagarathnamma was born to her. They also say that the said daughter was residing at Malayuru village. Hence, the defendants claim that the said Nagarathnamma and the second wife Puttathayamma are also the legal representatives of deceased Shivappa and they are necessary 5 RSA 765/10 parties. It is also contended that the plaintiff and her husband Shivappa brought up one Mr.Nataraju of Honnegondanahalli village and performed his marriage with Nagarathnamma and they were living with the plaintiff and her husband Shivappa. They were looking after the property of Shivappa during his life time and a Will was also executed by Shivappa bequeathing the suit property to Nataraju.
It is their further contention that the said Nagarathanamma and Nataraju with the full knowledge of Shivappa and the plaintiff executed a registered mortgage deed in favour of the first defendant on 03.03.1989 for an amount of Rs.7,000-00. The possession was also handed over to defendant No.1 under the said mortgage. The defendants claim that since then, the suit property is in their possession. They further contend that on 10.09.1989, Shivappa and Nataraju borrowed a sum of Rs.14,000-00 from the first 6 RSA 765/10 defendant and executed an unregistered mortgage agreement and the possession of suit property was continued with the first defendant. It is also their contention that Nataraju was known to the public and also to all the persons concerned with the family of Shivappa dealing with all the affairs of family and even in the revenue records the name of Nataraju was entered vide MR No.54/91- 92 for the year 1992-93 onwards. This fact was within the knowledge of Shivappa and the plaintiff. Therefore, the defendants claim that Nataraju was an ostensible owner of the suit property and in that capacity sold the suit property to defendant No.1 on 13.03.1995 with the full knowledge of plaintiff and her husband Shivappa under a registered sale deed. Hence, it is their contention that they are the bonafide purchaser of suit property for a valuable consideration without notice of right of the plaintiff, if any, in the suit property. 7 RSA 765/10
So also, they claim that after the death of Shivappa in the year 1995, he had left some more properties in his name and the plaintiff got her name entered in the records of the said properties and left out the suit property. The plaintiff did not claim any right over the suit schedule property as she had the knowledge of said deed executed by Nataraju. Therefore, they contend that the sale deed executed by Nataraju as an ostensible owner is binding upon the plaintiff. The defendants also claim that the previous wife to whom Nagarathnamma was born is very much alive and she is a necessary party to the suit. On these grounds and disputing dispossession, the defendants sought for dismissal of the suit.
The plaintiff filed her rejoinder denying the contentions made by defendants in the written statement and also the allegation about the said Nataraju as an ostensible owner of suit property. 8 RSA 765/10
On the basis of these pleadings, the Trial Court framed the issues and the plaintiff was examined as PW1 and a witness as PW2 and in their evidence, documents Exs.P1 to P8 were marked. The first defendant was examined as DW1 and 8 witnesses as DWs2 to 9 and in their evidence, Exs.D1 to D27 were marked. The Trial Court heard the counsel for parties and on appreciation of the material placed on record, dismissed the suit. Aggrieved by the judgment and decree, the plaintiff approached the First Appellate Court in RA No.110/2007. Under the impugned judgment, the First Appellate Court allowed the appeal of plaintiff and granted a decree declaring the plaintiff as an absolute owner of the suit property and directed the defendants to hand over the possession to plaintiff. Aggrieved by the judgment and decree of the First Appellate Court, the defendants are in appeal.
9 RSA 765/10
3. This Court vide order dated 26.07.2010 has raised the following substantial questions of law for consideration:
1) Whether the lower Appellate Court was justified in reversing the judgment of the Trial Court and in the process did not take into account the provisions of Section 41 of the Transfer of Properties Act?
2) Whether the lower Appellate Court was in error in not dismissing the suit as having been barred by limitation?
This Court vide order dated 21.02.2013 has raised the following additional substantial question of law for consideration:
Whether in the suit filed for declaration, the ostensible owner i.e., Nataraju, who sold the suit property to defendant 10 RSA 765/10 No.1 is a necessary party to the suit?
4. I have heard learned counsel for the appellants and learned counsel for the respondent.
5. Learned counsel for the appellants would contend that Nataraju, the vendor, who executed the Sale Deed-Ex.D1 was ostensible owner of the property bearing Sy. No.46/1 measuring 2 acres and 6 guntas and in that capacity, executed the Sale Deed in favour of the 1st defendant, who at the time of the sale transaction had taken a reasonable care to ascertain that Nataraju had the power to make the transfer and as he purchased the suit property in good faith and the real owner, had given an implied consent. He further submits that the transfer effected by Nataraju in favour of the 1st defendant is legal and valid and hence contends that the first Appellate Court committed an error in reversing the Judgment and Decree of the trial Court. It is also his submission that 11 RSA 765/10 the 1st defendant and Nataraju, the vendor executed the registered Mortgage Deed-Ex.D2, wherein his wife has also joined in the execution of the Mortgage Deed for consideration of Rs.7,000-00, he submits that it is an incident of implied consent of the real owner, who had the knowledge of this transfer and therefore, he would submit that Ex.D1 is a valid transfer binding upon the plaintiff as well. So also he contends that Shivappa, the husband of the plaintiff had the knowledge of the mortgage transaction entered into by Nataraju and his wife-Nagamma and even consented for the entry of name of Nataraju in the record of rights as the owner in possession of the Suit property and therefore, the counsel would contend that though Shivappa was the real owner, the incident aforesaid would indicate that there was either express or implied consent of the real owner and hence the Sale Deed-Ex.D1 is illegal and valid. He would further contend that the 1st defendant was in possession of the suit property since from the 12 RSA 765/10 date of Ex.D2 and continued in possession under the Sale Deed-Ex.D1 and as this fact was within the knowledge of the plaintiff, he submits that the suit instituted is barred by limitation and the first Appellate Court did not take cognizance of this fact. He also contended that Nataraju, the ostensible owner is a necessary parties to this suit. On these grounds, he submits to allow the appeal by setting aside the Judgment and Decree of the first appellate Court by restoring the Decree of the trial Court.
On the other hand, learned counsel for the respondent would contend that Shivappa i.e., the husband of the plaintiff was the absolute owner and on his death, suit property was inherited by the plaintiff i.e., his wife. He would further contend that Nataraju was never an ostensible owner of the property and Shivappa never consented either expressly or impliedly, the alleged transfer of the suit property either by the 13 RSA 765/10 mortgage transaction-Ex.D2 or the Sale Deed-Ex.D1 in favour of the 1st defendant. Further, he would contend that the Sale Deed-Ex.D1 is invalid and does not bind the interest of the plaintiff in the suit property. He would also contend that the 1st defendant did not take reasonable care to ascertain that Nataraju had any right to make the transfer and as the purchaser under Ex.D1, has not acted in good faith and submits that the first appellate Court has justified in granting the decree as prayed for by the respondent. He submits that the suit is well in time and Nataraju is not a necessary party to the suit.
6. From the facts in the pleadings and the evidence led, it has been proved that Nataraju, who executed the Sale Deed-Ex.D1 was residing with Shivappa i.e., the husband of the plaintiff along with his wife-Nagamma. Ex.D7 is the voters' list of Gattiwadipura village and it reveals the name of the plaintiff, the vendor-Nataraju and his 14 RSA 765/10 wife-Nagamma and they are residing in the house bearing No.100 of the said village. It is also proved that Shivappa, husband of the plaintiff was ailing for many years prior to his death and he died on 05.05.1995 and Ex.D16 is the death extract. The evidence also reveals that Shivappa had executed a Will bequeathing his property to Nataraju and later he had revoked the said Will. Nagamma, the wife of Nataraju is the daughter of the elder sister of the plaintiff. So, both Nataraju and his wife-Nagamma were looking after the plaintiff and her husband-Shivappa during his lifetime and later it appears that due to the financial problems, Nataraju executed the Mortgage Deed-Ex.D2 in favour of the 1st defendant mortgaging the suit property for a sum of Rs.7,000-00. This Deed came to be executed on 03.03.1989. The said Nataraju has executed the Sale Deed-Ex.D1 in favour of the 1st defendant on 13.03.1995 and since then the name of the 1st defendant appears in the owner's column as well as 15 RSA 765/10 the cultivator's column. It is also borne out from the records that after the mortgage transaction at Ex.D2, Nataraju got his name entered in the record of rights of the suit property and the name of the husband of the plaintiff was deleted. It is brought to the notice of this Court that on the death of the husband of the plaintiff, she gave a report to revenue authorities to enter her name in the record of rights. But, the report submitted does not recite the suit property and therefore, it is contended that Nataraju who was residing with Shivappa and the plaintiff, by executing the mortgage transaction with his wife in favour of the 1st defendant had exercised an authority as the owner of the property and as the name of Nataraju was entered in the record of rights by deleting the name of Shivappa i.e., the husband of the plaintiff with the knowledge of both the husband and wife. It is contended that there is an express or implied consent on the part of the real 16 RSA 765/10 owner and therefore, a submission is made to the Court that the sale transaction is legal and valid.
7. Admittedly, the parties to the suit and the husband of the plaintiff i.e., Shivappa are residents of the small village-Gattiwadipura. Therefore, There cannot be any difficulty for the persons in the village to know as to who are the owners of the properties and if any transaction takes place in a village, news will spread in the village immediately and it would be known to all the villagers. In this context, if the evidence is looked into, D.W.1 i.e., the 1st defendant in his cross-examination admits that Shivappa and the plaintiff who he knew, have no children and he also admits that he had the knowledge that the suit property was exclusively owned by Shivappa. It is his evidence that Nataraju had got this property in his name by changing the khata and he did not know what was the nature of the 17 RSA 765/10 transaction between Shivappa and Nataraju. He also admits that as Nataraju was looking after all the transactions of the family from whom he got executed a Sale Deed in his favour.
8. Under the provisions of Section 41 of the Transfer of Property Act [hereinafter referred to as "the Act" for short], it is necessary for the 1st defendant or the defendants to establish;
i) That Nataraju was the ostensible owner of the suit property;
ii) He was the owner by express or implied consent, the real owner (Shivappa);
iii) That the 1st defendant himself purchased the suit property from Nataraju, the ostensible owner for consideration; and
iv) Before the Sale Deed-Ex.D1, he had taken reasonable care to ascertain that the transferor i.e., Nataraju, had the power to transfer, in other words he must act in good faith.
18 RSA 765/10On this aspect of the matter, learned counsel for the appellants has placed reliance on the decision of the High Court of Punjab and Haryana, reported in 2011(1) AIR Kar.R 284 [Smt. Niranjan Kaur & Ors. Vs. The Financial Commissioner, Revenue and Secretary to Government, Punjab & Ors.]; wherein it has been held;
"In order to succeed in a plea of bona fide purchaser, under S.41 of the Transfer of Property Act, it is to be proved that the transferor is ostensible owner. That he is so with the consent, express or implied, of the real owner. That the transfer is for consideration, and that the transferee has acted in good faith taking reasonable care to ascertain that the transferor had the power to transfer."
So, relying upon the principle laid-down in the decision referred to supra, a reference is made to Ex.D2-Mortgage transaction, wherein Nataraju and 19 RSA 765/10 his wife-Nagamma executed registered Mortgage Deed in favour of the 1st defendant on 03.03.1989. So also, a reference is made in the record of rights, wherein name of Nataraju, the transferor was in the owners column by deleting the name of Shivappa and on the basis of these documents, a claim is made that Nataraju was the ostensible owner of the property and in that capacity he executed the Sale Deed in favour of the 1st defendant. It is no- doubt true that Ex.D2 is executed by the transferor and that itself is not sufficient to infer that Shivappa, the real owner of the suit property had any knowledge of this mortgage transaction or knowledge of deletion of his name from the record of rights. There is no evidence in this regard. It is also true that the plaintiff after the death of her husband submitted a report to enter her name in the record or rights in respect of the suit property. But, she pleads ignorance of her knowledge that the suit property was left in the report submitted by her. Even 20 RSA 765/10 otherwise, so far as the report submitted by the plaintiff is concerned, it is only on the death of her husband and her knowledge is not sufficient to conclude that there was an express or implied consent on the part of real owner-Shivappa, and to treat Nataraju as ostensible owner of the property.
9. It is well-established principle of law that mere an entry of the name in the record of rights is not sufficient to confer any title on the person whose name is entered. On this aspect of the matter, learned counsel for the respondent has placed reliance on the decision of the Apex Court reported in ILR 1998 Kar. 707 [Balwant Singh and anr. Vs. Daulat Sing (Dead) by Lrs. and Others]; wherein the Apex Court held that a mutation gift does not confer any title on the donee. In ILR 1998 Kar. 1 [State of Himachal Pradesh Vs. Keshav Ram and Others]; wherein the Apex Court referring to the provisions of Section 21 RSA 765/10 114 of the Evidence Act, in relation to the entry in the Revenue Record or papers held that by no stretch of imagination it can form basis for declaration of title. So, the grounds put-forth by the appellants that Nataraju become ostensible owner of the suit property merely because his name was entered in the record of rights cannot be accepted. Furthermore, there is nothing in the evidence of the witnesses to indicate that Shivappa had the knowledge of deletion of his name from the record of rights.
10. To further prove that Nataraju was the ostensible owner, a reference is made to Ex.D2- Mortgage Deed. It is no-doubt true that the Mortgage Transaction has been proved because Ex.D2 is a registered document, but it cannot be inferred that there was any express or implied consent on the part of the real owner i.e., Shivappa at the time of execution of this Mortgage Deed in favour of the 1st defendant. The fact that 22 RSA 765/10 Nataraju executed a Gift Deed with his wife in favour of the 1st defendant or even looking to the contents of Ex.D2, there is nothing to hold that there was any express or implied consent of the real owner, Shivappa.
11. Learned counsel for the respondent has placed reliance on the decision of this Court reported in ILR 2003 Kar. 1774 [Mallappa Adiveppa Hadapad Vs. Smt. Rudrawwa and Others]; wherein the revenue records stood in the name of the transferor at the time when the transferee purchased the property and this Court held that unless the transferee establishes that he had taken reasonable care to ascertain the right or title of the transferor and the transferee had acted in good faith, though the Sale Deeds are for valid consideration is itself held to be not sufficient to validate such transaction under Section 41 of the Act.
23 RSA 765/10
12. It is necessary for the appellants to establish the requirements, enumerated in the decision referred to by learned counsel for the appellant and as could be seen from the said decision though it was essential for the appellants to establish that Nataraju was the ostensible owner of the suit property, the mortgage transaction and the entry of the Nataraju in the record of rights cannot be held sufficient to prove that he was the ostensible owner. These documents produced by the appellants are also insufficient to hold that there was any express or implied consent of the real owner for transfer of this property to the 1st defendant. But, anyhow, the transaction that has been entered into between Nataraju and the 1st defendant is for a valuable consideration. Thirdly, it was necessary for the 1st defendant to take reasonable care to ascertain as to whether Nataraju had a power to make the transfer and when admittedly he knew that Shivappa, the husband of the plaintiff was the 24 RSA 765/10 absolute owner of the property. The 1st defendant could have verified the nature of entries and basis for entering the name of Nataraju in the records. If he had made this inquiry, he would have known that it is a hallow entry and that he no authority to execute a mortgage transaction. It could be inferred that no reasonable care was taken by the 1st defendant. So, it cannot be said that the 1st defendant acted in good faith while purchasing the suit property from Nataraju. Therefore, the requirements enumerated above to validate the transfer, under Ex.D1, have not been fulfilled by the defendants. Though learned counsel for the respondent has relied upon the decision reported in AIR 2004 Supreme Court 2438 [Kashmir Singh and others Vs. Panchayat Samiti, Ferozpur and others] and AIR 2007 Supreme Court 1058 [Hardev Singh Vs. Gurmail Singh (D) by L.Rs.], the same principle in relation to a valid transfer under Section 41 have been enumerated. 25 RSA 765/10
13. When the 1st defendant and the real owner were of the same village, there may not be any difficulty to know any transaction between the parties. When the 1st defendant admits in the evidence that Shivappa was the real owner of the property, there was no difficulty for him to get a transfer effected through him. Merely because that Nataraju and Nagamma were residing with Shivappa is itself insufficient to draw an inference that they were the ostensible owners and had express or implied consent of the real owner to transfer the property.
14. Though it is contended that the plaintiff has colluded with Nataraju and that she is residing with his wife and children, some of the documents like the invitation for the marriage of Usha i.e., the daughter of Nagaraju reveals that the plaintiff is said to have performed the marriage, but the evidence reveals that Nataraju, the alleged ostensible owner has left the village 26 RSA 765/10 and he is not residing with the plaintiff. Hence, the mere fact that wife of Nataraju and his daughter are residing with the plaintiff is not a ground to prove the collusion. Even otherwise, the alleged collusion itself is not a ground to validate the transfer when the said Nataraju was the ostensible owner and when the defendants did not take any reasonable care to ascertain that Nataraju had a power to made transfer and that they did not act in a good faith.
So, in the absence of any material on record to prove the consent of the real owner and the 1st defendant had taken reasonable care to ascertain that Nataraju had any power to transfer and never acted in good faith, the Sale Deed executed under Ex.D1 cannot be validated by applying the provisions of Section 41 of the Act.
15. The suit was instituted for the relief of declaration and possession. The plaintiff alleges that 15 days prior to institution of the 27 RSA 765/10 suit, there was a challenge to her title and when she came to know that her name was not found in the record of rights, she instituted a suit for the relief of declaration and injunction. As she was dispossessed, after institution of the suit she sought for an amendment and claimed the relief of possession under Article 58 of the Limitation Act, 1963. To obtain any other declaration, the limitation is 3 years from the date when the right to sue was accrued. Therefore, the relief of declaration is well within the time from the date when a right is accrued to her to institute the suit for declaration. So far as possession is concerned, even as for the time being that the 1st defendant came into possession of the property on the basis of the Sale Deed-Ex.D1 dated 13.03.1995, the limitation for a suit for the relief of possession is 12 years and the suit instituted is well within the time.
28 RSA 765/10
16. On the question as to whether Nataraju is a necessary party to the suit or not, learned counsel for the appellants has placed reliance on the decision of the Apex Court reported in AIR 2008 Supreme Court 2033 [Anathula Sudhakar Vs. P.Buchi Reddy (Dead) by L.Rs. & Ors.]. The perusal of the decision referred supra by the learned counsel would reveal that it pertains to a suit for specific performance of the contract and the question of law that arose was for consideration under Section 100 C.P.C. in the second appeal before the High Court. It has no application to the facts on hand. But, while referring to the decision, the learned counsel contended that this Court under Section 100 CPC can consider the question regarding an ostensible owner being a necessary party to the suit and he submits that the suit in the absence of Nataraju i.e., the alleged ostensible owner is not maintainable in law.
29 RSA 765/10
17. As referred to supra, the requirements or the essential conditions to validate a transfer under Section 41 of the T.P. Act, it is for the 1st defendant to establish that Nataraju was the ostensible owner, he must be the owner with a consent impress or implied with a real owner that the purchase of the property is for valuable consideration and that the purchaser took reasonable care to ascertain that Nataraju had the power to make the transfer, to mean he must act in a good faith. These all requirements of Section 41 of the T.P. Act will have to be proved by the person, who purchased the property from the transferor, who is said to be the ostensible owner. The law does not impose any liability on the ostensible owner to prove before the Court of law to validate the transfer effected by him. So, when the burden of proof is on the 1st defendant to establish that the transfer as valid, the absence of Nataraju as a party in the suit will have no consequence, he is neither a necessary nor a 30 RSA 765/10 proper party. In case if the 1st defendant failed to establish any one of the requirement of Section 41 of the T.P. Act, the transfer is void and the plaintiff is at liberty to seek declaration and possession, even in the absence of the transferor, as a party to the suit.
In the result, I answer substantial question of law No.1 in affirmative, substantial question of law No.2 and additional substantial question of law in negative and proceed to pass the following:
ORDER The appeal is dismissed. No costs.
Sd/-
JUDGE.
Ksm*