Karnataka High Court
Vidhaybharan S/O Rachayya Chikmath vs Shivasharnappa S/O Sabanna And Ors on 11 June, 2024
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NC: 2024:KHC-K:3792
RSA No. 200156 of 2014
IN THE HIGH COURT OF KARNATAKA
KALABURAGI BENCH
DATED THIS THE 11TH DAY OF JUNE, 2024
BEFORE
THE HON'BLE Mrs JUSTICE K S HEMALEKHA
REGULAR SECOND APPEAL NO. 200156 OF 2014
(PAR/SEP.POSS/DEC/INJ)
BETWEEN:
VIDHAYBHARANA S/O RACHAYYA CHIKMATH
AGED ABOUT 48 YEARS,
OCC : AGRICULTURE
R/O : YERGOLE
TQ & DIST : YADGIRI-585201.
...APPELLANT
(BY SRI SHIVAKUMAR KALLOOR, ADVOCATE)
AND:
1. SHIVASHARNAPPA S/O SABANNA
AGE: 27 YEARS, OCC : AGRICULTURE
Digitally signed
by SWETA
KULKARNI 2. SABANNA S/O HONAPPA
Location: HIGH
COURT OF AGED: 55 YEARS, OCC : AGRICULTURE
KARNATAKA
3. BASAVARAJ S/O HONAPPA
AGED: 30 YEARS, OCC : AGRICULTURE
4. HONAPPA S/O SABANNA
AGED: 27 YEARS, OCC : AGRICULTURE
5. YENKAPPA S/O SABANNA
AGED: 21 YEARS, OCC : AGRICULTURE
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NC: 2024:KHC-K:3792
RSA No. 200156 of 2014
6. NAGAMMA D/O SABANNA
AGED: 20 YEARS, OCC : AGRICULTURE
7. MALLAMMA D/O SABANNA
AGED: 16 YEARS, MINOR U/G OF
RESPONDENT NO.2
8. BHAGAPPA S/O SABANNA
AGED: 11 YEARS, MINOR U/G OF
RESPONDENT NO.2
9. NINGAMMA W/O HONAPPA
AGED: 41 YEARS, OCC: HOUSEHOLD
ALL ARE RESIDENT OF MALKAPPANALLI VILLAGE,
TQ & DIST : YADGIRI-585201.
...RESPONDENTS
(BY SRI VIKRAM VIJAYKUMAR, ADV. FOR R1, R3 TO R6 & R9;
R2-SERVED; R7 AND R8 ARE MINORS R/P BY R2;
SRI VEERSHETTY KONDAMPALLI, ADV. FOR R4)
THIS RSA IS FILED U/S 100 OF CPC, PRAYING TO ALLOW
THIS APPEAL AND SET ASIDE THE JUDGMENT AND DECREE
DATED 03.04.2014 PASSED IN R.A. NO.29/2013 ON THE FILE
OF THE SENIOR CIVIL JUDGE AT YADGIRI, PARTLY SETTING
ASIDE THE JUDGMENT AND DECREE DATED 01.02.2013
PASSED IN O.S.NO.197/2009 ON THE FILE OF THE CIVIL
JUDGE AT YADGIRI AND TO PASS ANY APPROPRIATE ORDERS.
THIS APPEAL COMING ON FOR FINAL HEARING, THIS
DAY, THE COURT DELIVERED THE FOLLOWING:
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NC: 2024:KHC-K:3792
RSA No. 200156 of 2014
JUDGMENT
Defendant No.9 - purchaser of item No.2 of suit schedule properties i.e., land bearing Sy.No.431/Aa-1 measuring 3 acres 22 guntas of Yergole village, taluk Yadagiri is before this Court in the Regular Second Appeal against the judgment and decree dated 03.04.2014 in R.A.No.29/2013 on the file of the Senior Civil Judge at Yadagiri [for short, 'the First Appellate Court'], reversing the judgment and decree dated 01.02.2013 in O.S.No.197/2009 on the file of the Civil Judge, Yadagiri [for short, 'the Trial Court'], whereby, the First Appellate Court held that the plaintiff is entitled for 1/9th share in all the suit schedule properties and the sale deed executed by defendant No.1 in favour of defendant No.9 does not bind the right of the plaintiff.
2. Parties herein are referred to as per the ranking before the Trial Court for the sake of convenience. -4-
NC: 2024:KHC-K:3792 RSA No. 200156 of 2014
3. Suit for partition, separate possession and for declaration that the sale deed dated 10.06.2004 executed by defendant No.1 in favour of defendant No.9 is null and void, not binding on the plaintiff and for consequential relief of permanent injunction against defendant No.9. On notice, defendant Nos.1 to 8 consented for the decree of the suit, defendant No.9 the purchaser of item No.2 of the suit schedule property contested the suit. The Trial Court, based on the pleadings, framed necessary issues.
1. "Whether the plaintiff proves that, he is the member of Un-divided Hindu Joint family and the suit properties are ancestral and joint family properties of them?
2. Whether the plaintiff proves defendant No.1 sold the suit land in favour of defendant No.9 without any family and legal necessity?
3. Whether the plaintiff further proves that the sale deed bearing No.792/2004-05, dated 10.06.2024 executed by defendant No.1 in favour of defendant No.9 is null and void and not binding upon him?
4. Whether the plaintiff is in lawful possession of the suit property as on the date of suit?
5. Whether the defendant No.1 to 8 proves that defendant No.9 by playing fraud on defendant No.1 -5- NC: 2024:KHC-K:3792 RSA No. 200156 of 2014 got executed the sale deed by mis-representing the facts without paying consideration?
6. Whether the defendants No.9 proves that defendant No.1 sold portion of suit land to him for family and legal necessity and he is the banafide purchaser?
7. Whether the plaintiff is entitle for the relief as sought ?
8. What order or decree?"
4. The Trial Court, on basis of the pleadings oral and documentary evidence, arrived at a conclusion that:
i. The plaintiff has proved that he is the member of the Hindu Undivided Family, suit properties are the ancestral joint family properties of the plaintiff and defendant Nos.1 to 8. ii. The plaintiff failed to prove that defendant No.1 sold the land in favour of defendant No.9 without any family legal necessity. iii. The plaintiff failed to prove that the sale deed executed by defendant No.1 in favour of defendant No.9 is null and void and not binding upon him.-6-
NC: 2024:KHC-K:3792 RSA No. 200156 of 2014 iv. Defendant Nos.1 to 8 failed to prove that defendant No.9, by playing fraud on defendant No.1, got executed the sale deed by misrepresenting the facts without paying consideration.
v. Defendant No.9 proved that defendant No.1 has sold portion of the suit item No.2 for family and legal necessity and he is a bona fide purchaser. and by the judgment and decree, the Trial Court decreed the suit of the plaintiff in part, holding that the plaintiff is entitled for partition and separate possession of 1/8th equal share in suit item Nos.1 and 3 and the suit against defendant No.9 was dismissed.
5. Aggrieved, the plaintiff preferred appeal before the First Appellate Court. The First Appellate Court partly allowed the appeal and modified the judgment and decree of the Trial Court, holding that the plaintiff is entitled for share in item No.2 of the suit schedule properties and dismissal of the suit against defendant No.9 by the Trial -7- NC: 2024:KHC-K:3792 RSA No. 200156 of 2014 Court was set aside and held that the plaintiff is entitled for 1/8th share in all the suit schedule properties.
6. Aggrieved of granting of share in item No.2 of the suit schedule property, defendant No.9, the purchaser is before the Court.
7. This Court, while admitting the appeal on 26.06.2014, has framed the following substantial question of law:
"The question whether the presumption arising from the recital in the sale deed regarding the sale being made for a family necessity would be ignored, in the absence of any rebuttal evidence by the lower appellate Court?"
8. Sri Shiv Kumar Kalloor, learned counsel for the appellant, Sri Vikram Vijay Kumar, learned counsel for respondent Nos.1, 3 to 6 and 9 have been heard on the substantial question of law framed by this Court and the judgment and decree of the Courts below including the original records have been perused.
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NC: 2024:KHC-K:3792 RSA No. 200156 of 2014
9. The controversy in this appeal does not touch upon the other issues, that is, item Nos.1 and 2 of the suit schedule properties, as the present appeal is confined to item No.2, alienation made by defendant No.1 in favour of defendant No.9 as per Ex.P.4 dated 10.06.2004. Averments in the plaint is as stated below:
i. Defendant No.1, without there being any legal necessity, has alienated the suit land item No.2 in favour of defendant No.9.
ii. The sale deed in favour of defendant No.9 is on account of fraud and misrepresentation played on defendant No.1.
iii. That defendant No.1 had obtained hand loan of Rs.48,000/- from defendant No.9 and the deed executed in favour of defendant No.9 was only towards a security deed and not as a sale deed.
10. Defendant No.1 vendor of the suit item No.2 in favour of defendant No.9 pleaded that: -9-
NC: 2024:KHC-K:3792 RSA No. 200156 of 2014 a. For the family and legal necessity, in fact, defendant No.1 has not executed a registered sale deed but in fact, had obtained a hand loan of Rs.48,000/- from defendant No.9 and executed the document for security of the said hand loan amount.
b. Defendant No.9 got executed sale deed by misrepresenting the facts and playing fraud on defendant No.1 and the execution of the document-Ex.P4 is a result of misrepresentation, fraud and cheating.
11. Defendant No.9-purchaser of suit item No.2 categorically stated that defendant No.1, for his family and legal necessity, had offered to sell the suit item No.2 to defendant No.2 and executed the registered sale deed on 10.06.2004 and he is a bonafide purchaser for valuable consideration.
12. The Trial Court framed issue Nos.2, 5 and 6 as under:
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NC: 2024:KHC-K:3792 RSA No. 200156 of 2014 "2. Whether the plaintiff proves defendant No.1 sold the suit land in favour of defendant No.9 without any family and legal necessity?
5. Whether the defendant No.1 to 8 proves that defendant No.9 by playing fraud on defendant No.1 got executed the sale deed by mis-representing the facts without paying consideration?
6. Whether the defendants No.9 proves that defendant No.1 sold portion of suit land to him for family and legal necessity and he is the banafide purchaser?"
13. The Trial Court took issue Nos.1 to 7 together and held that the plaintiff has failed to establish that defendant No.1 sold the suit land in favour of defendant No.9 without any family and legal necessity. Ex.P.4 dated 10.06.2004 is not in dispute, what is disputed by the plaintiff and defendant No.1 is that the execution of the deed is on account of fraud and misrepresentation and the alienation in favour of defendant No.1 is illegal and invalid and not binding on them and further alleged that the sale deed was not for legal necessity. The fact that the defendant No.1 was in need of necessity of Rs.48,000/- is
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NC: 2024:KHC-K:3792 RSA No. 200156 of 2014 not in dispute as could be seen from the plaint averments and the pleadings of defendant Nos.1 to 8. The Karta of a joint Hindu family may sell or mortgage the joint family property to discharge a debt contracted by him for his own personal benefit and such alienation binds the sons provided (a) The debt was antecedent to the alienation,
(b) It was not incurred for any immoral purpose.
14. The plaintiff as well as the defendant does not dispute that there was a hand loan taken by defendant No.1 for Rs.48,000/- and the deed Ex.P.4 is not a sale deed but, towards a security. The averments in the sale deed-Ex.P.4 indicate that the family had legal necessity for defendant No.1 to execute the sale deed. The relevant portion of the averments in the sale deed reads as under:
"§gÉzÀÄPÉÆqÀĪÀ «PÀæAiÀÄ ¥ÀvÀæªÉãÉAzÀgÉ, £À£Àß CªÀ¸ÀgÀ ªÀÄvÀÄÛ PÀÄlÄA§ CqÀZÀuÉ ¤«ÄvÀå £À£Àß ¸ÀéAvÀ ªÀiÁ°Ì, PÀ¨ÁÓ, ¥ÀmÁÖ, ªÀ ¸Áé¢üãÁ£ÀĨsÀªÀzÀ°ègÀĪÀ ¨sÀÆ«ÄAiÀÄ£ÀÄß EAzÀÄ ¤£ÀUÉ gÀÆ¥Á¬Ä 48,000-00(£À®ªÀvÉÛAlÄ ¸Á«gÀ gÀÆ¥Á¬ÄUÀ¼ÀÄ ªÀiÁvÀæ) PÉÌ «PÀæ¬Ä¹, ¸ÀzÀj gÀÆ¥Á¬ÄUÀ¼À ªÉÆ«eÁzÀ°è AiÀÄgÀUÉÆüÀ UÁæªÀÄzÀ°ègÀĪÀ £À£Àß RÄ¶Ì ¨sÀÆ«ÄAiÀÄ ¸ÀªÉð £ÀA§gÀ 431:C:1, ¥ÉÊQ ¥À²ÑªÀÄ ¨sÁUÀzÀ (03) JPÀgÉ (00) UÀÄAmÉ ªÀiÁvÀæ."
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NC: 2024:KHC-K:3792 RSA No. 200156 of 2014
15. The law is settled that the burden is on the purchaser to prove that there was a legal necessity for execution of the sale deed, the fact remains that the plaintiff and defendant No.1 have not disputed about the hand loan being taken from defendant No.9 as is evident from the averments in the plaint as well as in the written statement of defendant Nos.1 to 8 and the evidence of defendant No.1. This being so, the burden which was cast upon the vendor has been discharged and the presumption arising from the recital in the sale deed regarding the sale being made for family necessity could not be ignored, in the absence of any rebuttal evidence by the plaintiff and defendant Nos.1 to 8.
16. The adverse inference to be drawn against defendant No.9 for not entering the witness box would not be fatal to the case of defendant No.9, in light of the categorical pleading and admission of the plaintiff and defendant No.1, that at the time of sale of item No.2 in favour of defendant No.9, there was a legal necessity. The
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NC: 2024:KHC-K:3792 RSA No. 200156 of 2014 recital about legal necessity in sale deed has an evidentiary value, recitals in a deed of legal necessity do not however by themselves prove legal necessity. Section 90 of the Evidence Act presumes the recitals in the sale deed with regard to the existence of legal necessity.
17. Recitals are however admissible in evidence to corroborate other evidence of legal necessity. The plaintiff and defendant Nos.1 to 8 having categorically stated about the hand loan of Rs.48,000/-, would indicate that there was a legal necessity for the family to alienate suit item No.2 in favour of defendant No.9.
18. The reliance placed upon the decision by the learned counsel in the case of Vidhyadhar vs. Manikrao and Another1 and the decision of this Court in the case of Ningegowda and others Vs. K. B. Doddegowda and others2, this Court has absolutely no quarrel about the proposition of law laid down in the said decisions that, the 1 AIR 1999 SC 1441 2 AIR 1986 KAR 90
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NC: 2024:KHC-K:3792 RSA No. 200156 of 2014 burden is on the alienee to discharge the onus that he had made reasonable and bonafide enquiry as to the existence of the necessity for alienation and where the party to the suit does not enter into the witness box, a presumption would arise that the case set up by him is not correct. The said decisions placed reliance is distinguishable and not applicable to the present facts, as defendant No.9 on whom the burden was to prove that the family property was sold for legal necessity has been discharged since the plaintiff and defendant No.1 neither disputed in the plaint or the written statement about the necessity of amount of Rs.48,000/-. What was disputed by the plaintiff and defendant No.1 is that the deed executed was not a sale deed but was towards a security of Rs.48,000/- and the deed executed was on account of fraud and misrepresentation.
19. Every pleading shall contain a statement in a concise form of the material facts on which the party pleading relies for his claim or defence. Now coming to the
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NC: 2024:KHC-K:3792 RSA No. 200156 of 2014 pleadings of fraud and misrepresentation as stated by the plaintiff and defendant No.1, one aspect needs to be stated here is that, on whom the fraud and misrepresentation is stated to have been committed by defendant No.9 is defendant No.1, defendant No.1 has not approached the Court seeking to set aside the sale deed on the ground of fraud or misrepresentation. Plaintiff, the son of defendant No.1 takes a plea of misrepresentation and fraud.
20. Order VI Rule 4 of CPC indicates as under:
"4. Particulars to be given where necessary.- In all cases in which the party pleading relies on any misrepresentation, fraud, breach of trust, wilful default, or undue influence, and in all other cases in which particulars may be necessary beyond such as are exemplified in the forms aforesaid, particulars (with dates and items if necessary) shall be stated in the pleading."
21. Pleadings have to be in accordance with Order VI Rule 4 CPC. A careful perusal of the plaint averments is not in consonance with the Order VI Rule 4 mere stating of
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NC: 2024:KHC-K:3792 RSA No. 200156 of 2014 fraud and misrepresentation are not sufficient to hold a document illegal or void.
22. The settled proposition of law in this regard is that, a person who alleges, must necessarily prove it, in the absence of any cogent evidence to prove the plea of fraud, what was left was only the pleadings which are not sufficient to prove the allegation of fraud or misrepresentation.
23. The non-challenge by defendant No.1 would clearly indicate that defendant does not dispute the basic fact of transaction that having taken place between defendant No.1 and defendant No.9. Section 17 of the Indian Contract Act, 1872 ('the Act' for short) defines 'fraud'. 'Fraud' means dishonestly making a false (untrue or misleading) representation to gain or to cause loss. According to Section 17, fraud is when one party convinces another party to agree on the following points:
i. Pretending that a false fact is true.
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NC: 2024:KHC-K:3792 RSA No. 200156 of 2014 ii. Actively hiding information even though you are fully aware of it.
iii. Making a promise without any intention of performing it.
iv. Engaging in any other similar activity with the purpose of defrauding.
v. Any such act or omission that the law declares to be fraudulent.
24. Section 17(2) talks about active concealment. What is the fraud committed by defendant No.9 while executing the sale deed is not coming in the plaint or even in the written statement of defendant No.1.
25. Section 18 of the Act defines 'misrepresentation' as neglecting to disclose a material fact without other party's knowledge or making an innocently a false statement. The pleadings are totally silent as to the misrepresentation on part of defendant No.9. The factum of existence of legal necessity and the pleadings of fraud and misrepresentation has been failed to be proved by the plaintiff.
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NC: 2024:KHC-K:3792 RSA No. 200156 of 2014
26. The First Appellate Court fell in error in not considering defendant No.9 to be the bonafide purchaser of the suit property. The First Appellate Court, being the last fact-finding Court while re-appreciating the entire oral and documentary evidence, fell in error in not considering the pleadings of the plaintiff and defendant No.1 to the existence of legal necessity for sale of item No.2 in favour of defendant No.1 is clearly evidenced from Ex.P.4-the sale deed corroborated with the pleadings of the plaintiff and the written statement of defendant Nos.1 to 8. Once the factum of existence of legal necessity stood proved in view of no challenge of the sale made by defendant No.1 on the ground of fraud and misrepresentation played upon him while the deed Ex.P.4 was executed.
27. The sale deed being executed for legal necessity and the plaintiff has failed to prove that there was any fraud, misrepresentation. The substantial question of law framed by this Court is answered in favour of the appellant- defendant No.9 holding that in the
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NC: 2024:KHC-K:3792 RSA No. 200156 of 2014 instant case, the sale deed recitals have evidentiary value and is admissible in evidence in corroboration with the pleadings of plaintiff, written statement of defendants Nos.1 to 8 that, as on the date of the sale deed, the family had legal necessity for execution of Ex.P.4. The judgment of the First Appellate Court warrants interference by this Court and accordingly, this court pass the following:
ORDER I. The Regular Second Appeal is allowed.
II. The judgment and decree passed by the First Appellate Court is set aside and the judgment and decree passed by the Trial Court stands confirmed.
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JUDGE SWK,AT List No.: 1 Sl No.: 48 CT: VD