Karnataka High Court
Sri G. Nagaraju vs Mr. Ramesh on 26 May, 2023
Author: H.P. Sandesh
Bench: H.P. Sandesh
1
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 26TH DAY OF MAY, 2023
R
BEFORE
THE HON'BLE MR. JUSTICE H.P. SANDESH
R.S.A. NO.1837/2017 (PAR)
BETWEEN:
1. SRI G. NAGARAJU
S/O. GURAPPA REDDY
AGED ABOUT 60 YEARS
R/AT NERALURU VILLAGE
ATTIBELE HOBLI
ANEKAL TALUK. ... APPELLANT
(BY SRI VINOD PRASAD, ADVOCATE)
AND:
1. MR. RAMESH
S/O. LATE YELLAPPA
AGED ABOUT 40 YEARS
R/AT HELALIGE VILLAGE
ATTIBELE HOBLI,
ANEKAL TALUK
MUNIYELLAMMA
W/O. LATE YELLAPPA
(DIED ON 28.02.2015)
LEGAL HEIRS ON RECORD
2. RAMACHANDRA
S/O. LATE YELLAPPA
AGED ABOUT 52 YEARS
3. MUNIRAJU
S/O. LATE YELLAPPA
AGED ABOUT 50 YEARS
2
4. VENKATESH
S/O. LATE YELLAPPA
AGED ABOUT 57 YEARS
5. LALITHAMMA
D/O. LATE YELLAPPA
AGED ABOUT 45 YEARS
RESPONDENTS NO.2 TO 5 ARE
RESIDING AT HELALIGE VILLAGE
ATTIBELE HOBLI, ANEKAL TALUK.
6. SRI SRINIVAS MURTHY
S/O. LATE S. NARASIMHAIAH
AGED ABOUT 60 YEARS
R/AT NO.664, SRI SAIRAM NILAYA
3RD CROSS, TEACHERS COLONY
ANEKAL TALUK ROAD
ATTIBELE HOBLI
ANEKAL TALUK
BENGALURU-560 099 ... RESPONDENTS
(BY SRI M.J.ALVA, ADVOCATE FOR R1;
SRI V. ANAND, ADVOCATE FOR R6;
R2 TO R5 ARE SERVED)
THIS R.S.A. IS FILED UNDER SECTION 100 OF CPC
AGAINST THE JUDGEMENT AND DECREE DTD:09.06.2017
PASSED IN R.A.NO.5029/2015 ON THE FILE OF THE III
ADDITIONAL DISTRICT AND SESSIONS JUDGE, BENGALURU
RURAL DISTRICT, SIT AT ANEKAL, ALLOWING THE APPEAL AND
SETTING ASIDE THE JUDGEMENT AND DECREE DTD:14.01.2015
PASSED IN O.S.NO.88/2013 ON THE FILE OF THE SENIOR CIVIL
JUDGE AND JMFC, ANEKAL, BENGALURU RURAL DISTRICT.
THIS R.S.A. HAVING BEEN HEARD AND RESERVED FOR
JUDGMENT ON 20.04.2023 THIS DAY, THE COURT
PRONOUNCED THE FOLLOWING:
3
JUDGMENT
This second appeal is filed by the appellant-defendant No.6 praying this Court to set aside the judgment and decree dated 09.06.2017 passed by the Court of III Additional District and Sessions Judge, Bengaluru Rural District, sitting at Anekal in R.A.No.5029/2015 and set aside the judgment and decree dated 14.01.2015 passed by the Court of the Senior Civil Judge and JMFC at Anekal, Bengaluru Rural District in O.S.No.88/2013.
2. The parties are referred to as per their original rankings before the Trial Court as plaintiff and defendants for the sake of convenience and brevity.
3. The factual matrix of the case of the plaintiff in O.S.No.88/2013 while seeking the relief of partition is that the suit property was the service inam land re-granted in favour of Thoti Chinnappa, S/o. Thoti Chikkelliga. The said Thoti Chinnappa being the owner in possession of the suit property, out of his love and affection towards Yellappa, S/o. Gabbaiah had gifted the suit property in favour of the said Yellappa through the gift deed dated 08.05.1972. Since the date of said 4 gift deed, he was in actual possession and enjoyment of the suit property. All the revenue documents have been transferred in the name of Yellappa. The said Yellappa died intestate leaving behind his wife Muniyellamma i.e., defendant No.1 and his children i.e., defendant Nos.2 to 5 and plaintiff. The plaintiff being the class-I legal heir and successor to the suit property, continued in joint possession of the suit property. After the death of Yellappa, the revenue records have been continued in the name of the defendant No.1 on behalf of all the joint family members. This being the facts, the plaintiff and defendant Nos.1 to 5 are in actual possession and enjoyment of the suit property. Recently, one Venkataswamy, S/o. Chinnappa attempted to interfere with the possession of the plaintiff over the suit property. At that time, they have filed the suit in O.S.No.473/1991 before the Munsiff and JMFC, Anekal. The said suit was decreed in favour of the plaintiff and his family members through the judgment and decree dated 21.04.1994. The said judgment and decree became final and conclusive, as there is no appeal against the said judgment and decree. Now, the defendant No.6, without having any manner of right, much 5 less possession over the suit property, tried to put up construction on 05.11.2012 in and over the suit property. At that time, the plaintiff with the help of villagers, stopped the illegal act of the defendant No.6. Thereafter, the plaintiff enquired and came to know that the defendant No.1 has purported to have registered the sale deed dated 03.08.1995 in favour of the defendant No.6. On the basis of the sale deed dated 03.08.1995, the defendant No.6 entered his name to the records of the suit property. The plaintiff, immediately conveyed the panchayath on 01.10.2013 and enquired about the alienation. The plaintiff and defendant Nos.1 to 5 being the joint family members, they are entitled to 1/6th share over the suit property. The defendant No.1 has no right to execute the sale deed in favour of the defendant No.6. The said document in favour of the defendant No.6 is a created document and the same does not confer any right, title in favour of the defendant No.6. Now, on the basis of the illegal documents, the defendant No.6 is trying to dispossess the plaintiff from the possession of the suit property. The plaintiff being the joint family member, he is entitled to 1/6th share over the suit property. But, the 6 defendants are not ready to effect the partition. Hence, the defendant No.6 has filed this suit.
4. In pursuance of the suit, notice was ordered to the defendants and the defendants, after service of notice, did not choose to appear before the Trial Court and they were placed exparte.
5. The plaintiff, in order to prove his case, examined himself as P.W.1 and got marked the documents as Exs.P1 to P10. The defendants have not chosen to examine any witness and did not mark any documents.
6. The Trial Court, after considering the pleadings and the material available on record, framed the points for consideration, whether the plaintiff proves that he is in joint possession of the suit property and the suit property is available for partition, whether the plaintiff is entitled for the relief as sought for and what order or decree.
7. The Trial Court, after considering both oral and documentary evidence placed on record, answered point Nos.1 7 and 2 as 'negative' and dismissed the suit, in coming to the conclusion that there was a sale in favour of defendant No.6 and the same was made on 05.08.1995 and thereafter, all the revenue records are standing in the name of the purchaser and the plaintiff has filed the suit, after lapse of more than 15 years and the defendant No.6 is in actual possession and enjoyment of the suit schedule property. Hence, the suit property is not available for partition in the family of the plaintiff.
8. Being aggrieved by the judgment and decree of dismissal of the suit by the Trial Court, an appeal is filed before the First Appellate Court in R.A.No.5029/2015. The First Appellate Court, having considered the grounds urged in the appeal and also there was delay in filing the appeal, formulated the points, whether there is a sufficient cause to condone the delay in preferring this appeal and whether the impugned judgment and decree calls for interference. The First Appellate Court, having re-appreciated both oral and documentary evidence placed on record, answered all the points as 'affirmative' and reversed the judgment of the Trial Court and 8 decreed the suit of the plaintiff declaring that the plaintiff is entitled for 1/5th share over the suit property. Being aggrieved by the divergent findings of the Trial Court and the First Appellate Court, the present second appeal is filed before this Court.
9. The main contention of the learned counsel appearing for the appellant-defendant No.6 in this appeal is that, when the Kartha of the family, for the benefit of the family and for lawful needs of the family had sold the property, the plaintiff, who is the son of late Yellappa and Muniyellamma, could not have filed the suit, as the same is binding upon him. It is also contended that the First Appellate Court, could not have set aside the order of the Trial Court which has rightly rejected the suit. It is further contended that the plaintiff had not taken any steps for cancellation of entries in the name of the appellant and further, he has not taken any action for cancellation of the sale deed. It is also contended that, though he is aware of the transaction and the sale of the property by and between defendant No.1, he could not have filed the suit and the suit is 9 filed beyond the period of limitation and when the suit is filed for the relief of partition and they were not in possession, the reasoning given by the First Appellate Court is not correct. Hence, it is contended that the property is alienated by the mother, who is the Kartha of the family for the benefit of the family and for the legal necessity and when the plaintiff was a minor, the same is also binding on him. It is also contended that, when the plaintiff is not in possession of the suit schedule property, the First Appellate Court ought not to have granted the decree when the suit is filed after nearly 19 years which is also barred by limitation and the same has remained. Hence, the question of seeking the relief of partition does not arise, when the property has already been sold.
10. This Court, having considered the grounds urged in the second appeal, framed the following substantial questions of law for consideration:
1. Whether the order of Lower Appellate Court in reversing the finding and order of the Trial Court is justifiable?10
2. Whether the finding of the Lower Appellate Court that the plaintiff, as class-I legal heir of his deceased father, has succeeded, under Section 8 of Hindu Succession Act and for that reason, the mother alone cannot sell the suit schedule property is correct?
3. Whether the finding of the Lower Appellate Court that the suit is not barred by limitation, is correct?
11. Learned counsel appearing for the appellant- defendant No.6 in this appeal would vehemently contend that the First Appellate Court committed an error in granting the relief of partition, when already there was a sale in favour of the appellant-defendant No.6. The counsel would vehemently contend that the very finding given by the First Appellate Court is erroneous and Section 8 of the Hindu Succession Act will not attract and the Trial Court has given the reasoning that the suit is filed after lapse of 19 years and the same has not been taken note of by the First Appellate Court and the finding given is erroneous. The counsel would vehemently contend that the plaintiff while filing the suit, has not sought for any relief in 11 respect of the sale deed which was executed by the mother and has only sought for the relief of partition. The counsel also would vehemently contend that, if the sale is not binding upon the plaintiff, the plaintiff ought to have filed the suit within a period of three years of attaining majority and not filed the same. The counsel would further contend that the First Appellate Court not discussed in length with regard to the limitation and committed an error in coming to the conclusion that the suit is not barred by limitation. The counsel also would vehemently contend that even though the judgment of the Trial Court is exparte, the Trial Court has given the reasoning while dismissing the suit and also comes to the conclusion that property is sold for legal necessity in terms of Ex.P8. The counsel also would vehemently contend that, out of 1 acre, 13 guntas, the defendant No.6 has sold 7 guntas of land in favour of defendant No.7 and the same is also not disclosed in the suit. The counsel would vehemently contend that the property is purchased for the valuable sale consideration and the same is also paid and the First Appellate Court ought not to have decreed the suit, when 12 the mother had sold the property for the legal necessity and the suit is hopelessly barred by limitation.
12. Per contra, learned counsel appearing for the respondents-defendant Nos.1 and 6 would submit that, all the defendants are placed exparte. Admittedly, the father got the property by way of gift and the sale is made by the mother and the children are not parties to the said sale deed and the father had died intestate. The counsel would contend that the mother was not having any exclusive right to execute the sale deed in favour of the appellant and the plaintiff was not minor at the time of executing the sale and he was major and his date of birth is 21.07.1977 and sale was made on 05.08.1995 and he had already attained the age of 18 years. During the pendency of the suit, the appellant had also sold the portion of the property and has not made out any grounds to set aside the judgment and decree of the First Appellate Court. It is further contended that the First Appellate Court has not committed any error and passed the judgment in coming to the conclusion that the plaintiff is the class-I legal heir of his deceased father and he 13 has succeeded to the property of his father under Section 8 of the Hindu Succession Act and the mother cannot sell the suit schedule property and the First Appellate Court has given the finding considering the question of law. Hence, it does not require any interference.
13. Having heard the respective counsel and also considering the pleadings and both oral and documentary evidence placed on record, this Court has to consider the substantial questions of law framed by this Court. The second substantial question of law framed by this Court is whether the finding of the Lower Appellate Court that the plaintiff, as class-I legal heir of his deceased father has succeeded, under Section 8 of Hindu Succession Act and for that reason, the mother alone cannot sell the suit schedule property is correct.
14. Having considered the material on record, it is not in dispute that the suit schedule property was gifted in favour of the father of the plaintiff and to that effect, Ex.P5-gift deed is also produced before the Court. Having considered the recital of Ex.P5-gift deed, it is clear that the property was gifted in favour 14 of the father of the plaintiff, but while selling the property in favour of the appellant, the mother has stated that gift was made in her favour and not in favour of her husband. Admittedly, the husband passed away without executing any testamentary document. Hence, it is clear that, when the property belongs to a male person of the family, Section 8 of the Hindu Succession Act attracts and as a class-I legal heir, the plaintiff also succeeds to the suit schedule property along with the mother and other brothers. The First Appellate Court has not committed any error in coming to the conclusion that Section 8 of Hindu Succession Act applies. The material on record discloses that, when the suit was filed, suit summons was issued and the defendants have not appeared and contested the matter. But, it is important to note that sale was made by the mother, excluding other children i.e., defendant Nos.1 to 5 and plaintiff and sale deed was executed in the year 1995 itself in terms of Ex.P8.
15. It is also an undisputed fact that the defendant Nos.1 to 5 are also major and both the Courts have observed that the 15 plaintiff was minor at the time of executing the sale deed and the same is not correct and Ex.P2-SSLC marks card of the plaintiff discloses his date of birth as 21.07.1977 and the sale deed was executed on 05.08.1995 and he had already attained the age of 18 years and he was not a minor. No doubt, the suit was filed in O.S.No.473/1991 by the mother when there was an interference, the judgment and decree was passed in the said suit restraining the defendants not to interfere with the peaceful possession and enjoyment of the suit schedule property. It is also important to note that the said judgment and decree was passed on 21.04.1994 and within a span of 1 year, 4 months, sale deed was executed by mother.
16. On perusal of the document at Ex.P8-sale deed, no doubt, in the sale deed, it is mentioned that sale is made for the legal necessity and before selling the property also, they have obtained permission from the Assistant Commissioner in H.O.A. No.89/94-95 dated 19.05.1995 and sale consideration was Rs.2,00,000/-. It is important to note that, in the said sale deed, recital is made that, her father had purchased the property 16 and he had gifted the property in her favour and thereafter, the revenue records are standing in her name and the said recital is not correct and gift deed was made in favour of her husband and not in her favour and the recital is against the material on record, particularly the document at Ex.P8-sale deed. In terms of Ex.P5, gift deed was executed in favour of her husband and not in her favour but, she has executed the sale deed stating that she is the absolute owner of the property and she has derived the same by way of gift from her father.
17. It is also important to note that, in terms of Ex.P8- sale deed, all the revenue records are standing in the name of the appellant from 1995 onwards till the filing of the suit. It is contended in the plaint that, in the year 2012, an interference was made by the defendant No.6, when he made an attempt to construct the building. Having perused the material on record, no doubt, defendant No.2 has not contested the matter and he was placed exparte, but the fact is that the father of the plaintiff had derived the title in respect of the suit schedule property by way of gift and he died intestate leaving behind his wife, plaintiff 17 and defendant Nos.1 to 5 as his legal heirs. Hence, the First Appellate Court has not committed any error in coming to such a conclusion and the mother cannot sell the suit schedule property as the absolute owner but, the fact is that the sale was not questioned, inspite of having right to question the same.
18. The first and third substantial questions of law framed by this Court are whether the order of Lower Appellate Court in reversing the finding and order of the Trial Court is justifiable and whether the finding of the Lower Appellate Court that the suit is not barred by limitation is correct respectively. These two substantial questions of law are interconnected to each other and hence, they are taken up together for consideration.
19. Having considered the material on record, this Court has to analyze whether the First Appellate Court has committed an error in appreciating the material on record as well as not considered the substantial questions of law which are also mixed with both question of fact and question of law as to whether the suit is barred by limitation.
18
20. Having perused both oral and documentary evidence available on record particularly, document - Ex.P8, the first defendant, who is the mother of the plaintiff and defendant Nos.2 to 5 have executed the Sale Deed on 05.08.1995. Subsequent to the Sale Deed in terms of Ex.P9-MR copy, the property was mutated in favour of the appellant herein and in terms of Ex.P10-RTC, all the revenue documents are standing in the name of the appellant herein. The Trial Court while considering the relief as sought in the plaint came to the conclusion that on perusal of the recitals of the Sale Deed dated 05.08.1995, defendant No.1 had alienated the suit property in favour of defendant No.6 for her family and legal necessity. After the death of Yellappa, defendant No.1 used to manage the property with great difficulty. Defendant No.1 alienated the suit property in favour of defendant No.6 for the welfare of the plaintiff and defendant Nos.1 to 5 and also taken note of the revenue records are mutated in favour of the appellant herein vide MR No.4/94-95 and in all the revenue records, the suit property vest with the appellant herein. But it is the contention of the plaintiff in the suit that he himself and his family members 19 are in joint possession of the property; the same is against the material on record. If they are really in possession of the suit schedule property they would have challenge the entries made in the revenue records in the name of defendant No.6 before the competent authority, the same was not challenged and only contended that defendant No.6 has created the documents by colluding with defendant No.1. If really defendant No.6 has created the sale deed, the plaintiff has to take necessary action before the competent forum. The plaintiff and defendant Nos.2 to 5 have not challenged the sale deed. When the sale was made by the mother in the year 1995 itself, they kept quite till filing of the suit and all the revenue records are standing in the name of the appellant for more than 19 years.
21. I have already pointed out that in terms of Ex.P2- SSLC marks card, he was a major at the time of selling the property and even other defendant Nos.2 to 5, are also majors and they have not challenged the sale deed and ought to have filed the suit within three years, the same is not done. Hence, the Trial Court came to the conclusion that the suit is barred by 20 Law of Limitation and the records reveals that defendant No.6 is in actual possession and enjoyment of the suit schedule property from the date of purchase.
22. It is also important to note that the sale deed is a registered document. Unless the contrary is proved, there is a presumption and the registered document itself is a notice when the document was registered and the plaintiff has not produced any material before the Court that they were in joint possession of the suit schedule property as on the date of filing of the suit for the relief of partition. It is also important to note that in the plaint itself it is stated that after verification they came to know that there was a sale deed executed by the mother in favour of defendant No.6, but no relief is sought for cancellation of sale deed and also not contended that the said sale deed is not binding on the plaintiff as well as defendant Nos.2 to 5 and directly filed the suit for the relief of partition even though the plaintiff is not in possession of the suit schedule property and all the revenue documents are standing in the name of the appellant by virtue of the sale deed executed in the year 1995 21 itself. Hence, the First Appellate Court has committed an error in reversing the finding of the Trial Court and came to the conclusion that the plaintiff is claiming his share as Class-I legal heir of his father Yellappa under Section 8 of the Hindu Succession Act. No doubt, this Court also comes to the conclusion that the plaintiff has succeeded to the property under Section 8 of the Hindu Succession Act.
23. In the case on hand, the mother had sold the property in the year 1995 itself and not challenged the same for a period of 18 years. No doubt, the plaintiff is not a party to the said sale deed and even if he is not a party to the sale deed when the mother had executed a sale deed in favour of defendant No.6, the very approach of the First Appellate Court that the suit of the plaintiff is not at all barred by limitation, is erroneous. The First Appellate Court failed to take note of the fact that the plaintiff was not in possession of the property though he contend that he was in joint possession of the suit schedule property. When he was not in possession of the property, the very contention that he recently came to know 22 about the sale deed cannot be accepted and the finding given by the First Appellate Court in paragraph No.30 that the Trial Court came to a conclusion that the suit is barred by time in view of the change of revenue entries and belated challenge of Ex.P8/Sale Deed. The said reasoning is erroneous. No doubt in the plaint, it is pleaded that he came to know about the sale deed recently, just prior to filing of the said suit. Though the said contention and the evidence is not challenged as reasoned by the First Appellate Court, it is very clear that he was not in possession of the property as on the date of filing of the suit and all the revenue entries clearly disclose that immediately after sale of the property in the year 1994-1995 itself mutated in favour of the purchaser i.e., the appellant herein and the mother had executed the sale deed way back in the year 1995 itself. No doubt, the concept of the legal necessity etc., are not applicable to the present Sale Transaction as reasoned by the First Appellate Court. But the fact is that the property was sold by the mother in the year 1995 itself and both the plaintiff as well as defendant Nos.2 to 5 kept quiet for a period of 18 years and the same was not challenged immediately and all of them are 23 majors. When they kept quiet they acquiesced their right and the same is barred by limitation. Hence, the suit is barred by limitation.
24. The very reasoning of the First Appellate Court is that the Trial Court has passed the impugned judgment in a casual manner without appreciating the contentions and the evidence of the plaintiff in proper manner, is erroneous. No doubt, the First Appellate Court having the power to re- appreciate both oral and documentary evidence available on record on facts as well as the question of law and failed to consider both the question of law and question of fact i.e., the suit is barred by limitation and the same is mixed question of fact and question of law. The very revenue documents produced by the plaintiff viz., Ex.P9-MR copy as well as Ex.P10-RTC, clearly discloses that the revenue entries are made in the year 1995 itself and nothing is discussed by the First Appellate Court with regard to the documents - Exs.P9 and P10, even though the defendants have not contested the matter and failed to consider the very suit is barred by limitation. It has to be noted that the 24 mother had executed the sale deed for consideration and the recitals are very clear that the said sale is for the benefit of her family when the sale consideration is accepted by the mother and the major sons are aware of the same i.e., selling of the property and parting with the possession of the property in favour of defendant No.6 in the year 1995 itself, kept quiet for a period of 18 years, the suit was filed in the year 2013, the pleading also very clear that in the year 2012 November itself, the defendant i.e., appellant herein is interfered with the possession of the plaintiff and he has stated that the Panchayath was arranged in the month of October 2013 even after having the knowledge according to the plaintiff kept quiet for a period of one year even for arranging the Panchayath.
25. This Court would like to refer the judgment of the Apex Court in B.L. SREEDHAR AND OTHERS VS. K.M. MUNIREDDY (DEAD) AND OTHERS reported in (2003) 2 SCC 355, wherein the Apex Court, while discussing with regard to law of acquiescence in Para No.22, extracted Para No.40 of illustrious book Estoppels and the Substantive Law 25 under the title "Conduct of indifference or Acquiescence and held that, it is settled law that an estoppel may arise as against persons who have not willfully made any misrepresentation, and whose conduct is free from fraud or negligence, but as against whom inferences may reasonably have been drawn upon which others may have been inducted to act. The doctrine of acquiescence may be stated thus, 'if a person having a right, and seeing another person about to commit, or in the course of committing, an act infringing upon that right, stands by in such a manner as really to induce the person committing the act, and who might otherwise have abstained from it, to believe that he assents to it being committed, he cannot afterwards be heard to complain of the act. This is the proper sense of the term acquiescence, 'and in that sense may be defined as acquiescence, under such circumstances as that assent may be reasonably inferred from it, and is no more than an instance of the law of estoppel by words or conduct. Acquiescence is not a question of fact but of legal inference from facts found. The common case of acquiescence is where a man, who has a charge or incumbrance upon certain property, stands by and allows 26 another to advance money on it or to expend money upon it. Equity considers it to be the duty of such a person to be active and to state his adverse title, and that it would be dishonest in him to remain willfully passive in order to profit by the mistake which he might have prevented. It is also observed that, in such cases, the conduct must be such that assent may reasonably be inferred from it. The doctrine of acquiescence has, however, been stated to be founded upon conduct with a knowledge of legal rights, and as stated in some cases appears to imply the existence of fraud on the part of the person whose conduct raises an estoppel.
26. This Court also would like to rely upon the judgment of the Apex Court in PRABHAKAR VS. JOINT DIRECTOR, SERICULTURE DEPARTMENT AND ANOTHER reported in (2015) 15 SCC 1, wherein the Apex Court in Para No.38 observed with regard to doctrine of acquiescence and held that, it is now a well-recognised principle of jurisprudence that a right not exercised for a long time is non-existent. Even when there is no limitation period prescribed by any statute relating to 27 certain proceedings, in such cases, Courts have coined the doctrine of laches and delay as well as doctrine of acquiescence and non-suited the litigants who approached the Court belatedly without any justifiable explanation for bringing the action after unreasonable delay. Doctrine of laches is in fact an application of maxim of equity "delay defeats equities".
27. This Court also would like to rely upon the judgment of this Court in H.M. RUDRARADHYA VS. UMA & OTHERS reported in ILR 2014 KAR 1293, wherein this Court, considering the material on record with regard to application of Article 60 of Limitation Act, 1963 held that, when there is a transfer of minor's interest by the natural guardian and suit is filed for setting aside the sale from the date of minor attaining the age of majority, the transfer of minor's property by a natural guardian in contravention of Clauses (2) and (3) of Section 8 of the Act of 1956 is a voidable transaction and suit to set-aside the sale and for possession has to be within 3 years under Article 60 of the Limitation Act and further held that, suit for a declaration that the sale deed is not binding on her interest in 28 the suit property and this relief is similar to setting aside the sale, which is contemplated under Article 60 of the Limitation Act and in the absence of the said relief, the suit itself cannot be maintained. This Court has also taken note of Article 60 of the Limitation Act, wherein three years time is stipulated to challenge the sale made by the natural guardian transferring the minor interest. In Para No.13 of the judgment, the Court has taken note of the sale of the suit property in favour of the first defendant and suit was not filed within three years and hence, comes to the conclusion that suit was barred by law of limitation and also observed that, when the sale transaction is voidable transaction, it is for the plaintiff, to sue for possession of the property and it is incumbent upon him to pray for such a relief.
28. Having considered the principles laid down in the judgments referred (supra) i.e., principles of doctrine of acquiescence and law of limitation, the plaintiff has not taken any steps for challenging the sale made by the mother. I have already pointed out that, sale was made in the year 1995 itself and even the plaintiff had also attained the age of majority as on 29 the date of the sale and other defendants, who are the children have also kept quiet and they have not challenged the very sale made by the mother.
29. It is also important to note that, I have already pointed out that, in the sale deed itself, it is mentioned that sale is made for the benefit of the family and the revenue documents which are produced by the plaintiff himself in terms of Ex.P9- M.R. Copy as well as Ex.P10-RTC clearly discloses that, all the revenue entries are changed in favour of the appellant-purchaser and the plaintiff and the defendants have kept quiet for a period of 18 years. It is also made clear that possession was also delivered in favour of the appellant when the sale was made in the year 1995 itself. When the possession has parted with the subsequent purchaser, the suit is filed in the year 2013 and revenue entries are also not challenged and parting with the possession is also not challenged and not sought for any relief of possession and in an ingenious method, a suit is filed only claiming the share in the suit schedule property without seeking the relief of setting aside the sale made by the mother. No 30 doubt, the First Appellate Court, having considered the rights of the respective parties, comes to the conclusion that Section 8 of the Hindu Succession Act applies and they are entitled for the relief, but the fact is that, the First Appellate Court failed to take note of the fact that there is an inordinate delay in filing the suit and when the right is not exercised for a long time, the very right is non-existent as observed by the Apex Court in PRABHAKAR's case reported in (2015) 15 SCC 1.
30. It is relevant to note that, in the case on hand also, doctrine of acquiescence is applicable and the major sons have not challenged the sale made by the mother and kept quiet for a period of 18 years and when the doctrine of acquiescence is applicable and the litigants have approached the Court belatedly without any justifiable explanation for bringing the action after unreasonable delay, the very right of the litigants gets defeated and the right of the plaintiff as well as the other major sons, who have been arrayed as defendants in the case on hand and no explanation is offered by the plaintiff. The other major sons have also not challenged the very sale made by the mother and have 31 not sought for the relief of declaration in respect of the sale already made by the mother but, only claimed the share in the suit and they ought to have challenged the sale deed and sought for the relief of declaration and no such relief is sought.
31. It is important to note that the First Appellate Court also failed to take note of law of limitation, since the suit is filed after 18 years of the sale made by the mother. When the suit is barred by limitation, the same ought to have been considered by the First Appellate Court and the First Appellate Court failed to take note of the same and committed an error in reversing the findings of the Trial Court and the Trial Court has given the reason with regard to limitation as well as with regard to not challenging the sale within the stipulated time, though not referred the doctrine of acquiescence.
32. The First Appellate Court failed to take note of the fact that the sale deed was registered and the very registration itself is notice to the public and the plaintiff and other defendants i.e., major sons were living together and had the 32 knowledge of sale and hence, now the plaintiff cannot contend that he came to know the same only on intervention. Apart from that, the plaintiff and defendant Nos.2 to 5, who have also succeeded to the estate of the property left by the father kept quiet for a period of 18 years and filed the suit after 18 years through another brother, who is younger to all of them and that too, seeking the relief of only partition, even though they were having the knowledge of sale transaction made by the mother in favour of the appellant and parted with the possession of the property and cannot claim that not having the knowledge, when the purchaser is in possession and invested money for the improvement and the revenue records are also changed to his name. These are the aspects which have not been considered by the First Appellate Court. Hence, I am of the opinion that the First Appellate Court has committed an error in reversing the finding of the Trial Court and I answer the first and the third substantial questions of law as 'affirmative'.
33. In view of the observations made above, I pass the following:
33
ORDER
(i) The appeal is allowed.
(ii) The impugned judgment and decree dated
09.06.2017 passed in R.A.No.5029/2015, is
hereby set aside. Consequently, the judgment
and decree dated 14.01.2015 passed in
O.S.No.88/2013 is restored.
Sd/-
JUDGE
ST/cp*