Karnataka High Court
V Jayamma vs Dr Vaddapalli Sriram on 6 April, 2023
1
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 06TH DAY OF APRIL, 2023
BEFORE
THE HON'BLE MR. JUSTICE SACHIN SHANKAR MAGADUM
R.S.A NO.879 OF 2015
C/W
R.S.A NO.1294 OF 2022(PAR)
IN RSA NO.879/2015
BETWEEN:
1. V JAYAMMA
W/O LATE K N THIMMAIAH,
AGED ABOUT 86 YEARS
2. K.T.KRISHNAKANTH
S/O LATE K.N.THIMMAIAH,
AGED ABOUT 62 YEARS
3. K.T.RAM MOHAN
S/O LATE K.N.THIMMAIAH,
AGED ABOUT 58 YEARS
4. K.T.VENKATESH
S/O LATE K.N.THIMMAIAH,
AGED ABOUT 51 YEARS
ALL ARE R/AT NO.291, OLD POST OFFICE ROAD,
CHIKKABALLAPUR CITY.
...APPELLANTS
(BY SRI.M S VARADARAJAN, ADVOCATE)
2
AND:
1. DR VADDAPALLI SRIRAM
S/O VADDAPALLI VENKATRAYAPPA,
AGED ABOUT 84 YEARS,
R/AT NO.1050, YOUGHALL
DRIVE AT BATHURST,CANADA
PRESENTLY R/AT 4560, ST AUGELIQUE,
ST.LAZARE-J7 T2 N5,
QUBEC PROVINCE
CANADA.
2. K.T.VIJAYAKRISHNA KUMAR
S/O LATE K.N.THIMMAIAH,
AGED ABOUT 61 YEARS,
JOINT DIRECTOR,
DIRECTORATE OF TREASURIES,
VISHWESHWARIAH TOWERS,
PODIUM BLOCK,
AMBEDKAR VEEDHI,
BANGALORE-560 001
PRESENTLY R/AT NO.313, SAPTA SRINGHI,
5TH MAIN ROAD,
6TH CROSS, RHCS
SRIGANDHADA KAVALU,
BANGALORE-560 090.
...RESPONDENTS
(BY SRI. A.V. GANGADHARAPPA, ADVOCATE FOR SRI. M S
HARINATH, ADVOCATE FOR R-1
VIDE ORDER DATED 29.08.2017 NOTICE TO R-2 IS HELD
SUFICIENT)
THIS RSA IS FILED U/S. 100 OF CPC.,AGAINST THE
JUDGMENT AND DECREE DATED 27.01.2015 PASSED IN
RA NO. 27/2009 ON THE FILE OF THE PRL. DISTRICT
3
JUDGE, CHIKKABALLAPUR, DISMISSING THE APPEAL AND
MODIFYING THE JUDGMENT AND DECREE DATED
04.04.2009 PASSED IN OS NO. 110/1998 ON THE FILE OF
THE CIVIL JUDGE (SR.DN) CJM CHICKBALLAPUR.
IN RSA NO.1294/2022
BETWEEN:
1. V JAYAMMA
W/O LATE K N THIMMAIAH,
AGED ABOUT 93 YEARS
2. K.T.KRISHNAKANTH
S/O LATE K.N.THIMMAIAH,
AGED ABOUT 69 YEARS
3. K.T.RAM MOHAN
S/O LATE K.N.THIMMAIAH,
AGED ABOUT 65 YEARS
4. K.T.VENKATESH
S/O LATE K.N.THIMMAIAH,
AGED ABOUT 58 YEARS
ALL ARE R/AT NO.291, OLD POST OFFICE ROAD,
CHIKKABALLAPUR CITY.
...APPELLANTS
(BY SRI.M S VARADARAJAN, ADVOCATE)
AND:
1. DR VADDAPALLI SRIRAM
S/O VADDAPALLI VENKATRAYAPPA,
AGED ABOUT 91 YEARS,
R/AT NO.1050, YOUGHALL
DRIVE AT BATHURST,CANADA
4
PRESENTLY R/AT 4560, ST AUGELIQUE,
ST.LAZARE-J7 T2 N5,
QUBEC PROVINCE
CANADA.
2. K.T.VIJAYAKRISHNA KUMAR
S/O LATE K.N.THIMMAIAH,
AGED ABOUT 68 YEARS,
JOINT DIRECTOR,
DIRECTORATE OF TREASURIES,
VISHWESHWARIAH TOWERS,
PODIUM BLOCK,
AMBEDKAR VEEDHI,
BANGALORE-560 001
PRESENTLY R/AT NO.313, SAPTA SRINGHI,
5TH MAIN ROAD,
6TH CROSS, RHCS
SRIGANDHADA KAVALU,
BANGALORE-560 090.
...RESPONDENTS
(BY SRI. A.V. GANGADHARAPPA, ADVOCATE FOR SRI.M S
HARINATH, ADVOCATE FOR R-1
VIDE ORDER DATED 29.08.2017 NOTICE TO R-2 IS HELD
SUFFICIENT)
RSA FILED UNDER SECTION 100 OF CPC AGAINST
THE JUDGMENT AND DECREE DATED 27.01.2015 PASSED
IN RA.No.27/2009 ON THE FILE OF THE PRINCIPAL
DISTRICT JUDGE, CHIKKABALLAPUR, DISMISSING THE
APPEAL AND MODIFYING THE JUDGMENT AND DECREE
5
DATED 04.04.2009 PASSED IN OS No.110/1998 ON THE
FILE OF THE CIVIL JUDGE (SR.DN) AND CJM
CHIKKABALLAPUR.
THESE APPEALS HAVING BEEN HEARD AND
RESERVED FOR JUDGMENT ON 28.09.2022, COMING ON
FOR PRONOUNCEMENT OF JUDGMENT THIS DAY, THE
COURT DELIVERED THE FOLLOWING:
JUDGMENT
The captioned second appeals are filed by defendants 1, 2, 4 and 5. RSA.879/2015 is filed feeling aggrieved by the concurrent findings of the Courts below insofar as item Nos.1 to 6 are concerned whereas RSA.No.1294/2022 is filed questioning the divergent finding of the Appellate Court insofar as item No.7 is concerned.
2. For the sake of convenience, the parties are referred to as per their rank before the trial Court. 6
3. The family tree is as under:
Voddapalli Venkatappa (died) (1940) | Voddappali Venkatarayappa (dead) (1962) | V.Laxmamma (Wife)(dead)(1985) |
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| | | V.Laxminarayanamma(dead)(1976) V.Jayamma Dr.Voddapalli Sreeram K.T.Ramaiah(husband)(dead)(1994) K.N.Thimmaiah (Pltf.) | (husband)(dead) | (1968)(Def No.1) | |
------------------------------------------- ------ | | | | | | | Venkat Bhagya K.R.Kantha Krishna Geetha | Ratnamma Laxmi Raju Murthy Laxmi | |
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| | | | | | |
KT.Krishnakanth Vijay Rama Vijaya Brinda Shoba Venkatesh
(Deft.2) Krishna Mohan Laxmi Krishnaveni (Deft.5)
Kumar (Def 4)
(Def 3)
4. The facts leading to the case are as under:
The plaintiff and first defendant are children of one Voddapalli Venkatrayappa and V. Laxmamma. The plaintiff instituted a suit for partition and separate possession by contending that the suit schedule properties are joint family ancestral properties of 7 plaintiff and first defendant and that there is no partition in the family of plaintiff and first defendant. The plaintiff also contended that he had a sister by name V. Lakshminarayanamma, who is no more. Plaintiff claimed that his sister executed a release deed during her life time by taking certain properties towards her legitimate share. Plaintiff also claimed that certain properties were gifted to her sister. Plaintiff has further contended that item No.7 originally belonged to the father of plaintiff and first defendant and that he had acquired the said property by utilizing the corpus of joint family properties. The father of plaintiff executed sale deed in favour of one Lakshmamma w/o.Venkatarayappa, Chikkaballapur, by way of security to the loan availed by him. Plaintiff claimed that as he was residing in Canada, item no.7 was re-conveyed in the name of first defendant on behalf of joint family consisting of Laxmamma- 8 mother of the plaintiff and first defendant under registered sale deed dated 20.12.1987. Plaintiff specifically pleaded that entire consideration while seeking recoveyance of item No.7 was paid by the plaintiff. Therefore, plaintiff contended that item No.7 is also joint family ancestral property and that he is entitled for legitimate share even in respect of item No.7.
5. First defendant, who is the sister of plaintiff, on receipt of summons tendered appearance and filed written statement. First defendant admitted the relationships as claimed in the plaint. The first defendant also admitted the release deed executed by her sister Lakshminarayanamma and the gift deed executed in favour of Lakshminarayanamma. First defendant however claimed that the gift deed was not at the instance of their mother Laxmamma as alleged by the plaintiff. On the contrary, first defendant 9 disputed the gift deed and contended that it is invalid in law as the property was jointly owned and possessed by all the co-owners and therefore, first defendant claimed that plaintiff had no right to convey properties by way of gift. First defendant further referring to various alienations made by plaintiff contended that plaintiff has sold his legitimate share and therefore, he cannot maintain the present suit.
On these set of defence, first defendant sought for dismissal of the suit.
6. First defendant also set up the plea of prior partition by contending that there was partition in the family in 1974 and therefore, sought for dismissal of the suit.
7. Plaintiff and defendants to substantiate their respective claim let in oral and documentary evidence. The trial Court referring to the oral and 10 documentary evidence on record answered issue No.1 in negative and issue No.2 in affirmative. While doing so, trial Court held that plaintiff has failed to prove that the suit schedule properties are joint family ancestral properties of plaintiff's father Venkatarayappa. Referring to the evidence on record, trial Court held that all the properties are in fact self acquired properties of plaintiff and first defendant's father. While answering issue No.3 in the affirmative, trial Court held that plaintiff has succeeded in proving that the alienation of the properties at Chickballapura and at Voddapalli were for legal necessity and for the benefit of the family. The theory of prior partition set up by first defendant was negatived by the trial Court while answering Issue No.4 by holding that defendant has failed to establish the alleged partition.
8. While dealing with issue No.5, trial Court referring to the rebuttal evidence on record held that 11 item No.7 is the exclusive property of first defendant. While answering Issue No.11 in the affirmative, trial Court held that the present suit filed by plaintiff, without including those properties which were subject matter of alienations, is very much maintainable. The trial Court while answering the said issue in the affirmative held that the properties which were sold by the plaintiff were admittedly for the benefit of the family and the said alienations were not meant to meet out any exigencies of the plaintiff but the said alienations were with the consent of mother of plaintiff and first defendant namely Laxmamma as well as the present first defendant and therefore, the alienations would bind the first defendant. The trial Court also recorded a categorical finding that the alienations made by plaintiff which were consented by first defendant as well as their mother Laxmamma was never challenged either by the mother of the plaintiff 12 or the first defendant and therefore, trial Court answering the said issue in the affirmative held that the present suit is only in respect of those properties which are retained by the plaintiff and first defendant and therefore, the suit is very much maintainable. It is in this background, the trial Court declined to non-suit the plaintiff on the ground that the suit for partition is not maintainable.
9. The first defendant feeling aggrieved by the judgment and decree of the trial Court in granting share in item Nos.1 to 6 preferred an appeal in R.A.No.27/2009. Plaintiff preferred a cross-appeal feeling aggrieved by the dismissal of the suit insofar as item No.7 is concerned.
10. Before the appellate Court, the defendants came up with new additional defence. Before the appellate Court, the defendants claimed that the suit instituted by plaintiff was not at all maintainable for 13 non-production of power of attorney and therefore, the entire proceedings before the trial Court stood vitiated as the suit was instituted without due authorization. The defendants also contended that though plaintiff presented the plaint through GPA holder, documentary evidence was adduced by the original plaintiff himself. Plaintiff has led oral and documentary evidence without verifying the plaint contents and therefore, defendants claimed that the suit ought to have been dismissed on this count itself. The defendants also questioned the findings recorded by the trial Court on issue Nos.1 and 2 as well as findings recorded by the trial Court on issue Nos.3 and 4 and issue No.11. While plaintiff preferred a cross- appeal feeling aggrieved by the judgment and decree of the trial Court insofar as item No.7 is concerned, plaintiff claimed that the first defendant admittedly had no independent source of income while the 14 clinching evidence let in by the plaintiff vide Exs.P46 and 47 clearly establishes that plaintiff has placed sufficient material on record to indicate that he was sending money from Canada and therefore, item No.7 was admittedly purchased in the name of the first defendant and therefore, plaintiff is entitled for share even in respect of item No.7. The plaintiff also referred to several admissions elicited in the cross- examination of first defendant in regard to the financial status.
11. The appellate Court being a final fact finding authority has independently assessed the entire evidence on record. On independent appreciation of the evidence on record, the appellate Court has concurred with the findings of the trial Court insofar as item Nos. 1 to 6 is concerned. While re- assessing the evidence relating to item No.7, the appellate Court was not inclined to concur with the 15 findings of the trial Court. Appellate Court while reassessing the evidence on record insofar as item No.7 is concerned, was of the view that, the sale deed executed by plaintiff's father insofar as item No.7 is concerned way back in 1956 was a nominal sale deed. The appellate Court taking congnizance of the evidence let in by plaintiff found that in 1956, plaintiff and first defendant's father sold it for sale consideration of Rs.12,000/- while the same was repurchased under Ex.D12 for sale consideration of Rs.8,000/-. The appellate Court has also examined the claim of the first defendant that she has paid the entire sale consideration from her independent income. While assessing the rebuttal evidence, the appellate Court was of the view that the first defendant has failed to discharge her burden to demonstrate that item No.7 was is her self-acquired property. The appellate Court referring to evidence 16 let in by plaintiff found that first defendant-Jayamma was receiving money from plaintiff at an undisputed point of time. While constructing a residential house in item No.1, first defendant has received money from plaintiff. Appellate Court referring to the evidence on record found that Jayamma did not have any independent income and she had to maintain a large family. Referring to Ex.P46, the appellate Court found that plaintiff has sent $2,300 to the husband of first defendant namely Thimmaiah in 1965. Ex.P46 is the letter written by first defendant's husband namely K.N Thimmaiah. Therefore, referring to clinching evidence let in by plaintiff and in the absence of rebuttal evidence, the appellate Court took a contrary view and has come to the conclusion that item No.7 is not the exclusive property of first defendant and therefore, item No.7 is also available for partition and 17 plaintiff is entitled to seek his legitimate share even in respect of item No.7.
12. Insofar as the plea that plaintiff cannot maintain the present suit and the same is hit by Section 31 of Foreign Exchange Regulation Act (for short "FERA") was also dealt by the appellate Court. The appellate Court referring to the provisions of FERA was of the view that unless there is partition by metes and bounds and the joint family members' undivided interest culminates into an absolute and a definite share, there is no occasion for the plaintiff to submit a declaration before the RBI. The appellate Court was of the view that it is only after the shares are determined and the same is given effect to pursuant to conclusion of the final decree proceedings, the provisions of FERA would be applicable. The appellate Court also held that even otherwise any breach or violation of the provisions of the FERA would only 18 attract penal consequences enumerated under the FERA and therefore, the appellate Court was of the view that the claim of the defendants that plaintiff's suit is not maintainable is unsustainable.
13. Referring to all these oral and documentary evidence, the appellate Court while concurring with the findings and conclusions recorded by the trial Court insofar as item Nos.1 to 6 are concerned, proceeded to reverse the findings of the trial Court insofar as item No.7 is concerned. Consequently, the cross-appeal filed by the plaintiff is allowed and suit is decreed in entirety granting share to plaintiff in all the suit schedule properties and consequently, the appeal filed by the defendants in R.A.No.27/2009 is dismissed.
14. Feeling aggrieved by the concurrent findings of the Courts below insofar as item Nos.1 to 6 are concerned, captioned appeal in RSA.No.879/2015 19 is filed, while the connected appeal in RSA.No.1294/2022 is filed questioning the divergent finding of the appellate Court insofar as item No.7 is concerned.
15. This Court vide order dated 14.01.2016 has admitted the appeal (appeals) to consider the following substantial questions of law:
"1. Whether the suit was maintainable in view of Section 31 of FERA Act?
2. Whether the suit was maintainable on account of non-production of General Power of Attorney at the time of filing of the suit and even thereafter during the pendency of the suit as well as appeal?
3. Was the suit maintainable for setting aside the compromise decree passed in the earlier suit and in view of having given consent for compromise decree by the plaintiff?
4. Whether the courts below were right in treating properties as ancestral properties and applying Section 6 of the Hindu Succession Act though the properties are self-acquired properties of the plaintiff and defendant No.1?"20
This Court vide order dated 05.04.2019 has formulated the following additional substantial questions of law:
"Under the facts and circumstances of the case. Whether the finding of the First Appellate Court that the registered sale deed Ex.P.38 dated 04.06.1956 was not an out right sale is perverse".
16. Learned counsel appearing for defendants reiterating the grounds urged in the appeal memo would vehemently argue and contend that non- production of power of attorney would vitiate the entire proceedings. He would point out that plaintiff signed and presented the alleged power of attorney holder namely K.N. Kantharaju and since the original GPA has not seen the light of the day, the plaint being defective could not have been entertained by the trial Court. He would further contend that defendants were not aware of non-filing of original GPA. Therefore, non-raising of any objections in this regard 21 would not rectify the defect that has crept in at the time of presenting the suit. He would vehemently argue and contend that it was the duty of the Court to verify, whether the plaint was in order. Reiterating the grounds on this issue, he would contend that after defendants learnt about non-production of original GPA, a specific ground is urged in R.A.No.27/2009 and appellate Court having formulated point in that regard erred in not properly examining the maintainability of the suit for non-production of GPA. Questioning the reasons assigned by the appellate Court in regard to non-production of GPA, he would point out that the appellate Court erred in not appreciating the law relating to defective plaint. He would vehemently argue and contend that non-production of GPA goes to the root of the matter as it has a direct bearing in regard to the controversy relating to maintainability of the suit. He would further point out that the appellate 22 Court erred in arriving at a conclusion that the evidence of plaintiff would ratify and the irregularity, if any, stood cured is an erroneous finding.
17. To buttress his arguments, he has placed reliance on the judgment rendered by the Kerala Court in the case of Iyakku Mathoo .vs. Julius Elias Metropolitan1. He has also placed reliance on the judgment rendered by the Apex in the case of Uday Shankar Triyar .vs. Ram Kalewar Prasad Singh and Another 2. Placing reliance on these two judgments, he would contend that when it is brought to the notice of the Court that plaint is defective, in such cases, the parties must be allowed to cure the irregularity within a reasonable time. Therefore, he would contend that once it was pointed out by defendants before the appellate Court, the appellate Court was duty bound to call upon the plaintiff to cure 1 AIR 1962 KERALA 19 2 (2006) 1 SCC 75 23 the defect by producing the original power of attorney. The said defect has remained uncured and therefore, appellate Court had no option than to non-suit the plaintiff by holding that suit is not maintainable.
18. The learned counsel for defendants would further vehemently argue and contend that non- compliance of Section 31 of FERA would disentitle the plaintiff from seeking remedy before the competent civil Court. Referring to the date of filing of the suit which is 12.11.1998, he would contend that FERA was in force and further, he would point out that there is no dispute on the relevant date when the plaint was presented, the plaintiff was not an Indian National and therefore, under Section 31 of FERA, plaintiff ought to have sought previous permission of the Reserve Bank of India. Referring to sub-section (4) of Section 31 of the Act, he would contend that the said provision is quite explicit and therefore, it mandates that any 24 foreign national holding an immovable property in India is bound to make a declaration before the RBI regarding such holding within 90 days from the commencement of the Act. He would further point out that the plaintiff's father died in the year 1962 and the succession admittedly opened in 1962. Therefore, he would contend that in 1975 when plaintiff acquired Canadian Citizenship and Nationality, as he was holding immovable property in India, he was required to submit necessary declaration as mandated under Section 31(4) of the Act. Therefore, he would contend that both the Courts grossly erred in not dismissing the suit. To buttress his arguments, he has placed reliance on the judgment rendered by the Apex Court in the case of Asha John Divianathan .vs. Vikram Malhotra and others3and the judgment rendered by the Bombay High Court in the case of Joaquim Mascarenhas Fiuza (supra). Referring to 3 AIR 2021 SC 2932 25 these judgments, he would contend that the Apex Court has clearly held that non-compliance of Section 31 of FERA render the gift deed null and void and no rights could be enforced based on the said gift deed. Therefore, placing reliance on the above two judgments, he would contend that even the present suit ought to have been decided with reference to Section 31 of FERA. Referring to the judgment rendered by the Bombay High Court, he would contend that though plaintiff would not lose his right under Section 31 of FERA Act, but his rights would get suspended or rather have to be kept under suspension until Section 31 is complied with. Reiterating the principles in the judgment cited supra, he would contend that the defence set up by defendants is well supported by the principles laid down by the Bombay High Court cited supra and also the judgment rendered by the Apex Court.
26
19. While addressing his arguments on the findings recorded by the trial Court on issue Nos.6 and 7 and points 3 and 4 formulated by the appellate Court, he would vehemently argue and contend that the written statement filed in O.S.No.251/1989, which is marked as Ex.D32 would bind the plaintiff. Therefore, referring to OS.No.251/1989, the learned counsel for the defendant would contend that plaintiff has clearly admitted that first defendant and her children have become absolute owners of the property and that they are in possession of the same and therefore, he would contend that the plaintiff is estopped from asserting right and the compromise recorded in the said suit would operate as res judicata and therefore, he would contend that the present suit for partition is not at all maintainable. Referring to Ex.D34 which is a compromise petition filed in O.S.No.251/1989, he would point out that the fact 27 that plaintiff is represented by first defendant indicates that plaintiff has clearly accepted and acknowledged that the suit schedule properties are the properties of defendants. Therefore, he would contend that both the Courts erred in not properly appreciating the terms of compromise petition and therefore, he would contend that there is total misreading of Ex.D34. He would further point out that item No.7 was never the subject matter of O.S.No.251/1989 and therefore, he would contend that, that in itself gives an indication that since item No.7 was self acquired property of first defendant, the parties consciously did not include item No.7 in O.S.No.251/1989. Therefore, he would contend that the finding recorded by the appellate Court in reversing the reasons and conclusions recorded by the Court of first instance insofar as item No.7 is concerned suffers from serious perversity. He would 28 vehemently argue and contend that the appellate Court has not properly appreciated the evidence on record insofar as item No.7 is concerned and therefore, the reversal of decree by the appellate Court in granting share to plaintiff even in respect of item No.7 suffers from serious perversity. He would contend that if plaintiff has not disputed the compromise recorded in O.S.No.251/1989 and if plaintiff has accepted the compromise petition tendered in O.S.No.251/1989 which has culminated in a decree thereby declaring the first defendant and her children as absolute owners of items 1 to 6, the present suit is barred both by principles of estoppel and resjudicata. To buttress his arguments, he has placed reliance on the judgment rendered by the Apex Court in Shankar Sitaram Sontakke and another .vs. Balakrishna Sitaram Sontakke and others 4. 4 AIR 1954 SC 352 29
20. While dealing with alienations made by plaintiff he would contend that the evidence on record would clearly indicate that the properties alienated by the plaintiff must be deemed to have been allotted to his share and therefore, he would contend that even on this count the suit is liable to be dismissed. Referring to alienations made by plaintiff vide Exs.D13 and 14, which are gift deeds dated 16.7.1968 in favour of his sister Lakshminarayanamma and gift made in favour of a temple on 10.6.1974 and sale deed executed vide Ex.D15 in favour of one Govindappa and further the sale deed dated 10.6.1974 vide Ex.D16 and sale deed dated 9.6.1974 vide Ex.D17,if summed up, the extent would work out to 8 acres 38 guntas, while the total extent held by the family at the time of plaintiff and first defendant's father death was around 19 acres 20 guntas. Therefore, referring to this rebuttal evidence, he 30 would point out that plaintiff has in fact alienated more extent than what he was actually entitled to. Referring to these alienations he would contend that even on this count, the suit filed by the plaintiff is liable to be dismissed. Therefore, he would conclude his arguments by contending that the properties alienated by plaintiff have to be adjusted or must be deemed to have been allotted to his share and therefore, the suit filed by the plaintiff is liable to be dismissed.
21. The learned counsel for plaintiff repelling the arguments and propositions advanced by learned counsel appearing for defendants would however contend that the clinching and cogent evidence let in plaintiff clearly establishes the fact that three items held by the family were sold in order to pay Rs.14,925/- to one of the sister Lakshminarayanamma in lieu of release deed executed by her under Ex.D18. 31 Learned counsel for plaintiff would refer to Exs.D15, 16, and 17 which are three sale deeds executed by plaintiff in the month of June 1974 wherein three items were sold for sale consideration of Rs.1,000/- under Ex.D15, Rs.3,000/- under Ex.D16 and Rs.10,000/- under Ex.D17. Referring to the timing of the alienations made by plaintiff and the release deed executed by one of the sister which is also in the month of June 1974, he would contend that the clinching evidence would probabalize the plaintiff's case that these alienations were made only to mobilize funds to pay Rs.14,925/- to other sister Lakshminarayanamma who had agreed to execute a release deed in favour of the family. Therefore, he would contend that defendants are estopped from contending that the alienations made by plaintiff have to be adjusted towards his legitimate share and therefore, he would contend that the contention of the 32 defendants that the present suit filed by the plaintiff is not maintainable as he has sold his legitimate share cannot be acceded.
22. Now coming to the provisions of Foreign Exchange Regulation Act, 1973, he would contend that the Act was enacted to consolidate and amend the law relating to certain payments, dealings in foreign exchange and securities. Referring to the statement of objections and reasons, he would contend that there is no provision under the Act which will have the effect of confiscating the immovable property of a citizen. He would further point out that the Act also does not debar and prohibit holding of ancestral properties by birth acquired by reason of succession. He would vehemently argue and contend that Section 31 of the Act cannot be read dehors the objection and reasons of enactment. Supporting the reasons and observations rendered by both the 33 Courts, more particularly, the appellate Court he would contend that this aspect is rightly dealt by both the Courts. Therefore, the contention of the defendant that plaintiff has to be non-suited on the ground that there is no compliance of Section 31 of the FERA is not tenable. Countering the propositions cited by learned counsel appearing for the defendants he would contend that the judgment rendered by the Bombay High Court in the case of Joaquim Mascarenhas Fiuza .vs. Smt. Jaime Rebello and another 5does not lay correct law and therefore, he would contend that the dictum laid down by the Bombay High Court in the judgment referred to supra is of no assistance to the defendants.
23. While countering the claim of defendants insofar as item No.7 is concerned, learned counsel appearing for the plaintiff would vehemently argue 5 1986(3) BOM.CR 236 34 and contend that item No.7 was sold by plaintiff and first defendant's father Vadapalli Venkatarayappa under registered sale deed dated 4.6.1956 for a sale consideration of Rs.12,000/- and same was repurchased in 1967 for a sale consideration of Rs.8,000/- in the name of the first defendant. Ex.P46, which is a letter written by the husband of first defendant would clearly depict that the property was reconveyed by utilizing the funds from the joint family properties. If the husband of the first defendant intended to repurchase from their independent earning, her husband had no occasion to communicate the letter in regard to repurchase of item No.7. He would also bring to the notice of this Court that if item No.7 was sold for Rs.12,000/- in 1956 then the same could not have been repurchased for sale consideration of Rs.8,000/-. Therefore, he would contend that the evidence on record clearly 35 indicates that property was sold under nominal sale deed offering it as security for the loan raised by his father. Therefore, the sale at first instance by father vide Ex.D38 was not an out and out sale deed but it was offered as a security for repayment of loan. Therefore, he would contend that since plaintiff was residing abroad and first defendant along with her husband was managing the affairs of the family, item No.7 was purchased in the name of the first defendant and therefore, merely because it was purchased in her name she cannot assert absolute right over the said property. Therefore, he would contend that defendants had infact accepted the verdict of the appellate Court insofar as item No.7 is concerned and they did not challenge the decree until the matter was listed for final hearing before this Court. He has also raised serious objections in regard to the maintainability of the connected appeal in 36 RSA.No.1294/2022. He would contend that there is inordinate delay of 7 years 7 months 23 days in preferring the appeal and no sufficient cause is shown for condoning such an inordinate delay. Therefore, he would contend that the connected appeal in RSA.No.1294/22 is not maintainable. On these set of grounds, he would contend that the conclusions recorded by both the Courts insofar as maintainability of partition suit in context of Section 31 of FERA is based on legal evidence and therefore, he would contend that the findings of the Courts below in holding that plaintiff is entitled for a legitimate share in the properties dehors the provisions of Section 31 of the FERA would not warrant any interference at the hands of this Court. He would also contend that plea of prior partition as alleged by defendants is not substantiated. The appellate Court on independent assessment of the evidence on record has rightly 37 come to the conclusion that item No.7 is also ancestral property and as such it is available for partition is also in accordance with law and would not warrant any interference. He would conclude his arguments by contending that the substantial questions of law framed by this Court have to be answered against the defendants and both the appeals are liable to be dismissed. On these set of grounds, he would request this Court to dismiss both the appeals.
24. Heard the learned counsel for the plaintiff and the learned counsel for the defendants.
25. Regarding the maintainability of suit in view of Section 31 of FERA:
The counsel appearing for defendants has vehemently argued and contended that the present suit is not maintainable on account of non-compliance of Section 31 of FERA. In the present case on hand, plaintiff admittedly is an Indian Citizen who later went 38 to Canada and settled there. Section 31(4) of FERA mandates that any foreigner holding an immovable property in India is bound to make a declaration before RBI regarding such holding within 90 days from the commencement of the Act or within such further time as extended by the Reserve Bank of India.
Admittedly, in the present case on hand, the properties were self acquired properties of plaintiff and first defendant's father. Therefore, the rights of plaintiff are governed by the law of inheritance as per Hindu Law. Even construing Section 31 of FERA prohibits acquiring or holding immovable property, even then this Court is of the view that the rights of plaintiff in the properties left behind by his father will not come within the purview of FERA. What plaintiff is claiming is his right through inheritance which cannot be curtailed or forbidden by Section 31 of FERA prohibiting to hold property. Section 31 of FERA 39 cannot be stretched to an extent so as to include prohibition to right of inheritance.
26. The object of Section 31 as held by the Apex Court in the case of Asha John Divyanatha .vs. Vikram Malhotra in Civil Appeal No.9546/20106 is that the intent of Legislature while introducing the Bill was that as a matter of general policy, the legislature felt that it should not allow foreign investment in land and property/buildings constructed by foreigners and foreign control companies as such investments offer scope for considerable amount of capital liability by way of capital repatriation. Apex Court while examining the object of Section 31 further held that Section 31 of 1973 Act was intended to minimize the trading of foreign exchange by way of repatriation of income from immovable properties and sale proceeds by a 6 AIR 2021 SC 2932 40 person who is not a citizen of India. Therefore, Section 31 was intended to impose restriction on acquisition, holding and disposal of immovable properties in India by foreigners/non-citizens.
27. In the light of the objects and the principles laid down by the Apex Court in the judgment cited supra, now let me examine the right of the plaintiff in the suit schedule properties. Both the Courts have concurrently held that the suit schedule properties were self acquired properties of plaintiff and first defendant's father. Therefore, plaintiff and first defendant have succeeded to the properties left behind by their father as tenants in common, but, however, merely because succession opened on account of death of plaintiff and first defendant's father, that in itself will not constitute a separation in interest and right unless there is actual division of the suit schedule properties. Even mere filing of partition 41 suit though may amount to severance of joint status forthwith, but, unless the same is followed by an actual division of subject-matter which arises for consideration only after preliminary decree is drawn and equities of all the family members are effectively determined in the final decree proceedings and thereafter exclusive possession is allotted in terms of the decree drawn in FDP, plaintiff had no occasion to submit a declaration in terms of Section 31 of FERA, 1973. Therefore, the contention of defendants that plaintiff immediately after commencement of FERA was required to submit a declaration is found to be totally misconceived. The right of a joint family member gets ascertained only on partition. Therefore, even if plaintiff and first defendant were holding the properties as tenants in common, their interest was yet to be ascertained and unless there is a demarcation and allotment of definite properties in 42 final decree proceedings, the provisions of FERA 1973 would not come into play insofar as the properties held by joint family members either as co-parceners or as tenants in common. Both the Courts have dealt with this issue and have rightly negatived the defence set up by defendants. The findings of the Courts below that the suit is maintainable and the prohibition contained in Section 31 of FERA Act is not applicable does not suffer from any infirmities and therefore, would not warrant any interference at the hands of this Court. Therefore, substantial question of law at sl. No.1 is answered in affirmative and against the defendants.
28. The second substantial question of law in regard to maintainability of suit on account of non- production of GPA at the time of filing of suit is concerned, it is quite interesting to note that defendants have not objected at the earliest point of 43 time. Admittedly, plaint was presented through GPA holder as plaintiff was residing at Canada. However, during the pendency of the suit, plaintiff decided to prosecute the suit and has stepped into the witness box and has let in oral and documentary evidence. What can be gathered from the material on record is that the defendants never objected that plaintiff has not verified the pleadings. The fact that plaintiff proceeded with the suit and has let in evidence and the documents were marked through plaintiff who is examined as P.W.1 impliedly infers that pleadings were ratified by the plaintiff. This Court is also unable to understand as to how the defendants have locus to question the authorization by plaintiff in favour of P.W.2 who has presented the suit as a GPA holder. It is the plaintiff who can question that there is no authorization in favour of P.W.1, equally P.W.2 may also deny the authorization but for defendants to 44 contend that there is no valid authorization cannot be accepted. In the present case on hand, there is proper ratification at the hands of plaintiff. The defendants have not even made an attempt to cross-examine in regard to the verification of pleadings during trial. Therefore, on account of ratification by plaintiff, the said defence cannot be looked into at a belated stage. The said ground was urged before the appellate Court for the first time in absence of pleadings in the written statement. The contention of the defendants that they were not aware that the plaint was not accompanied along with a copy of the GPA cannot be acceded to.
29. The want of verification even otherwise does not have the effect of making the plaint void. A plaint cannot be rejected if it suffers from curable defect or irregularity. Such a defence does not hit at the fount of the plaint. If plaint is properly signed or 45 verified and is presented to the Court through proper authorization, the defendants have no locus to contend that there is violation of procedural rule and therefore, the same has led to defects which would result in non-suiting the plaintiff. The Apex Court in the case of Jai Jai Ram Manohar Lal Vs. National Building Material Supply, Gurgaon 7, while dealing with an identical issue was of the view that rules or procedure are intended to be hand made to the administration of justice. A party cannot be refused just relief merely because of some mistake, negligence, inadvertence or even infraction of rule or procedure.
30. Be that as it may, the evidence on record clearly indicates that the plaint was presented through a duly authorized agent, subsequently plaintiff himself has stepped into the witness box and has let in 7 AIR 1969 SC 1267 46 evidence admitting that he had authorized P.W.2 to present the plaint. The GPA is also examined as P.W.2. Nothing worth is elicited during the cross- examination of plaintiff or his agent who is examined as P.W.2. Appellate Court has dealt with all these significant details and was not inclined to entertain the objections raised by the defendants for the first time in an appeal. Therefore, the substantial question of law at Sl.No.2 in regard to maintainability of suit on account of non-production of GPA is answered in the affirmative and against the defendants. Since plaintiff himself has stepped into the witness box and prosecuted the suit, the non-production of GPA would lose its relevancy and same does not survive for consideration to ascertain as to whether the plaint was found to be defective on account of non-furnishing of GPA copy.
47
31. The third substantial question of law in regard to maintainability of suit without challenging the compromise decree passed in earlier suits is concerned, the earlier suits were contested or filed by first defendant on behalf of plaintiff also. First defendant was either defending the suits or had initiated proceedings before the Civil Court and she was all along representing on behalf of first plaintiff who was authorized under a GPA. Defendants have made an attempt in denying plaintiff's right in the properties by placing reliance on the compromise recorded in O.S.251/1989. On perusal of compromise decree vide Ex.D35, it is clearly evident that the branch of Lakshminarayanamma, who was the plaintiff in O.S.No.251/1989 have acknowledged that first defendant is the owner of the suit schedule properties. Plaintiff was represented by first defendant in the said suit as a GPA holder. Now, if the branch of 48 Lakshminarayanamma walked out of the family by accepting few properties by executing a release deed and if her legal heirs were to admit the title of first defendant by way of a compromise, this Court is unable to understand as to how the said admission in a compromise petition would take away the plaintiff's independent right in terms of Section 8 of Hindu Succession Act. In the said decree, the plaintiff has never made a statement admitting exclusive right of first defendant. Therefore, the defendants' claim that the decree passed in O.S.No.251/1989 and other suits would take away the rights of plaintiff and therefore, is estopped from asserting right in the property is found to be totally misconceived. In all the suits, the first defendant was also protecting the interest of plaintiff based on a GPA. Therefore, the admission of title by plaintiffs in O.S.No.251/1989 was also on behalf of plaintiff herein who was residing in Canada 49 and was being represented by first defendant. Therefore, the compromise recorded in O.S.No.251/1989 and other suits would have no bearing on the present suit which is one for partition and separate possession and the compromise decree and the statement made by the defendants therein will not take away the plaintiff's right of inheritance in the properties left behind by his father. Accordingly, the substantial question of law in regard to maintainability of suit without questioning the compromise decree is answered in affirmative. This Court is of the view that the suit for partition without questioning the compromise decree was very much maintainable as it did not directly affect the rights of plaintiff under the compromise decree.
32. Insofar as the last substantial question of law in regard to the finding of the Courts below as to the nature of the properties is concerned, this Court is 50 of the view that the substantial question of law No.4 would not survive for consideration as the trial Court has answered Issue No.1 in the negative and issue No.2 in the affirmative. While answering Issue No.2 in the affirmative, the trial Court held that the suit schedule properties are not joint family ancestral properties but they are the self acquired properties of father of plaintiff and first defendant. Therefore, substantial question of law No.4 does not survive for consideration.
33. The additional substantial question of law deals with the finding of the appellate Court in regard to item No.7. First defendant claims that item No.7 is her self acquired property. Trial Court accepted the defence set up by first defendant and the suit was dismissed insofar as item No.7 is concerned while the appellate Court on re-appreciation of the evidence on record has come to the conclusion that Item No.7 51 which was originally purchased by father of plaintiff and first defendant was sold by their father under nominal sale deed as he was in need of money. On examination of material on record, this Court would find that item No.7 was sold by father of plaintiff and first defendant under registered sale deed dated 4.6.1956 vide Ex.P38 for sale consideration of Rs.12,000/-. This property was again reconveyed in the name of the first defendant in 1967 for a sale consideration of Rs.8,000/-. On examination of the material on record, this Court would find that plaintiff's father sold for sale consideration of Rs.12,000/- in 1956. If it was purchased for sale consideration of Rs.12,000/- in 1956, the fact that first defendant purchased for Rs.8,000/- in 1967 vide Ex.P39 probabalizes the case of the plaintiff. The only inference that can be drawn is that since plaintiff was residing in Canada and first defendant was managing 52 all the suit schedule properties, the property was purchased in the name of first defendant. The evidence on record clearly demonstrates that first defendant was not financially sound and she was consistently availing financial assistance from her brother i.e. plaintiff. The letter dated 22.11.1967 vide Ex.P46 clinches the entire controversy between the parties. In the said letter, she speaks about arranging funds to get item No.7 reconveyed in a week or little later. She also expresses that she is short of money to raise crops in the lands. The other material on record indicates that first defendant's husband has received money from plaintiff. There is material indicating that he received $2300 from plaintiff. Further, it is not in dispute that since plaintiff was residing in Canada, it is the first defendant and mother Laxmamma who were handling all income. It has also come on record that first 53 defendant had to maintain a large family and had no independent source of income. Therefore, her claim that item No.7 is her self acquired property is not supported by any documents. Therefore, appellate Court on re-appreciation of the entire material on record was justified in holding that item No.7 though reconveyed in the name of the first defendant, it was on behalf of the family and not in her individual capacity. In that view of the matter, the additional substantial question of law deserves to be answered in the negative and against the defendants. The registered sale deed dated Ex.P38 dated 4.6.1956 was a nominal sale deed and the same was reconveyed in the name of the first defendant as plaintiff was residing in Canada. Therefore, plaintiff is entitled for share even in item No.7. The findings and conclusions recorded by the appellate Court insofar as item No.7 is concerned is in accordance with law. Therefore, this 54 Court is not inclined to interfere with the judgment and decree rendered by the appellate Court in R.A.No.27/2009.
34. If all the significant details as stated supra are meticulously examined, this Court is of the view that the Appellate Court being a final fact finding authority has independently assessed the entire evidence on record. Ex.D18 is the registered release deed executed by Lakshminarayanamma, who is the sister of plaintiff and first defendant. While executing the release deed the above said sister has received a sum of Rs.14,095/-. This registered release deed vide Ex.D18 is dated 12.6.1974. Plaintiff has sold three items of ancestral properties under Ex.D15 to 17. Under Ex.D15 survey No.17/25 measuring 20 guntas is sold for sale consideration of Rs.1,000/- on 10.6.1974. Under Ex.D16, Survey No.57/4, 57/5 and 57/6 totally measuring 1 acre 39 guntas is sold for 55 Rs.3,000/- on 10.6.1974. Under Ex.D17, plaintiff has sold a shop on 9.6.1974 for a sale consideration of Rs.10,000/-. These alienations are in proximity and before Lakshminarayanamma executed the registered release deed. Therefore, plaintiff has mobilized funds of Rs.14,000/- which is paid to Lakshminarayanamma under Ex.D18. Therefore, the contention of first defendant that plaintiff has sold his half share in the property and therefore, the present partition suit is not maintainable cannot be acceded to and the Appellate Court has rightly dealt with the said controversy.
35. The connected second appeal in RSA.No.1294/2022 is filed questioning the decree of the appellate Court while allowing the cross-appeal and granting share even in respect of item No.7. In the light of the observations and findings recorded by this Court while answering additional substantial 56 question of law, this Court is of the view that the captioned second appeal does not involve any substantial question of law. In view of my conclusion recorded on additional substantial question of law, the second appeal filed in RSA.1294/2022 is also liable to be dismissed.
36. In the result, both the appeals are dismissed.
Sd/-
JUDGE *alb/-