Karnataka High Court
Smt Sunandamma vs Sri M M Kumarswamy on 11 March, 2022
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IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 11TH DAY OF MARCH, 2022
BEFORE
THE HON'BLE MR. JUSTICE SACHIN SHANKAR MAGADUM
R.F.A NO.7 OF 2006 (DEC)
BETWEEN:
SMT. SUNANDAMMA
AGED ABOUT 65 YEARS
W/O LATE SRINIVAS
R/AT CHANNEGOWDANA DODDI VILLAGE
KASABA HOBLI, MADDUR TALUK
MANDAYA DISTRICT - 571 401.
...APPELLANT
(BY SRI. K NARASIMHA MURTHY, ADVOCATE)
AND:
1. SRI .M M KUMARSWAMY
AGED ABOUT 70 YEARS
2. SRI. M. SWAMY
AGED ABOUT 67 YEARS
BOTH ARE S/O LATE MARIMATHU
R/AT CHANNEGOWDANA DODDI VILLAGE
KASABA HOBLI, MADDUR TALUK
MANDAYA DISTRICT - 571 401.
....RESPONDENTS
(BY SRI. H C SHIVARAMU, ADVOCATE FOR R1 & R2)
THIS RFA IS FILED U/O 41 RULE 1 R/W SEC.96 OF CPC
AGAINST THE JUDGMENT AND DECREE DATED 21.10.05 PASSED IN
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O.S. NO.469/2000 ON THE FILE OF CIVIL JUDGE (SR.DN) MADDUR
DECREEING THE SUIT FOR DECLARATION AND INJUNCTION.
THIS APPEAL COMING ON FOR HEARING THIS DAY, THE
COURT DELIVERED THE FOLLOWING:
JUDGMENT
The captioned regular first appeal is filed by the defendant questioning the judgment and decree dated 21.10.2005 passed by the learned Civil Judge(Sr.Dn.) at Maddur in O.S.No.469/2000 declaring that the suit schedule properties are the joint family ancestral properties and consequently mandatory injunction is granted restraining the present appellant-defendant from alienating or disposing of the suit schedule properties or any portion thereof.
2. For the sake of convenience, the parties are referred to as per their rank before the trial Court.
3. The facts leading to the case are as under:
(a)The plaintiffs are brothers of appellant-defendant herein. The plaintiffs specifically contended that suit schedule 3 properties are the joint family ancestral properties. It is their specific case that their father along with his brothers namely M.Muniswamy and M. Abraham effected partition in the family under registered partition deed dated 26.5.1960 and accordingly, suit schedule properties fell to the share of plaintiffs and defendant's father i.e. Marimuttu. The grievance of the plaintiffs is that their father Marimuttu was not the absolute owner and that the defendant and their father Marimuttu have created a false and fabricated document. The alienation made by their father Matimuttu in favour of defendant under registered sale deed dated 27.1.1984 is not binding on their legitimate share and the said transaction is made behind the back of the plaintiffs. There was no partition in the family of the plaintiffs and therefore, the plaintiffs contended that their father had no authority to deal with the suit schedule properties. Therefore, the plaintiffs filed a suit seeking the relief of declaration that suit schedule properties are the joint family ancestral properties. 4
(b)On receipt of summons, the defendant tendered appearance and contested the proceedings. The defendant stoutly denied the entire averments made in the plaint. The defendant specifically pleaded that the sale deed executed by her father Marimuttu in favour of defendant is well within the knowledge of the plaintiffs. Plaintiff No.2 infact has given consent for effecting mutation thereby transferring the name of defendant in respect of suit schedule item No.1 property bearing Survey No.63/A. The defendant also set up a Will by specifically contending that her father had bequeathed the suit schedule properties in her favour as well as plaintiffs and therefore, claimed absolute title over the suit schedule property covered under the Will.
(c)The Trial Court based on the pleadings framed the following issues:
"1.Whether the plaintiff proves that suit schedule properties are joint family properties themselves and defendants?5
2. Whether plaintiff proves that in a partition held on 26.05.1960 suit schedule properties have been fallen to the share of their father?
3. Whether defendant proves suit schedule property are self acquired property of their father?
4. Whether defendant proves that father executed a will in her favour and same is beyond legal suspicious circumstances in respect of suit properties?
5. Whether defendant prove that suit is barred by limitation?
6. Whether defendant prove that she has perceptual her title by way of adverse possession?
7. Whether defendant proves that some properties are self-acquired properties and some properties obtained under will?
8. Whether plaintiff is entitled for mandatory injuction as prayed?
9. Whether plaintiff is entitled for relief sought for?
10. What order or decree?"
(d)The plaintiffs in support of their contention examined plaintiff No.2 as P.W.1 and examined two independent witnesses and relied on documentary evidence vide Exs.P1 to
20. The defendant examined herself as D.W.1 and examined 6 two independent witnesses as D.Ws.2 and 3 and let in oral evidence by producing Exs.D1 to 46.
(f)The Trial Court having examined the evidence on record answered issue Nos.1 and 2 in the affirmative by holding that the plaintiffs have succeeded in proving that the suit schedule properties are the joint family ancestral properties. The Trial Court also recorded a finding that plaintiffs have succeeded in proving the partition effected between their father and his brothers on 26.5.1960 and in the said partition, the suit schedule properties were allotted to the share of plaintiffs and defendant's father. While dealing with Issue Nos.3 and 4, the Trial Court answered the same in the negative by holding that defendant has failed to prove that the suit schedule properties are the self acquired properties of her father and also recorded a finding that the defendant has failed to prove due execution of Will in her favour. While answering Issue No.5, the Trial Court has answered the same in negative declaring that the suit schedule properties are the 7 joint family ancestral properties. The plaintiffs and defendant are the sharers and after the death of her father, defendant is having share in the property in respect of her father's share and therefore, adverse possession does not arise and consequently granted mandatory injunction.
(g)It is against this judgment and decree, the defendant is before this Court.
4. The learned counsel for the appellant-defendant would vehemently argue and contend before this Court that plaintiffs as well as defendant's father for legal necessity had to sell suit item No.1 in favour of appellant-defendant herein under registered sale deed dated 27.1.1984 for valuable consideration of Rs.10,000/-. He would submit that the recitals would clinch the issue. Placing reliance on the recitals and taking this Court through the recitals, he would submit that item No.1 was sold in favour of appellant for legal necessity and the same was indicated in the sale deed as per Ex.D2. Referring to the recitals, he would submit that their 8 father in unequivocal terms intended to sell the property to meet the marriage expenses of plaintiff No.1 as well as to discharge the debts. Therefore, the alienation by their father who is the Kartha of the family which was for legal necessity would even otherwise bind the plaintiffs who claimed to be the co-parceners.
The next limb of argument canvassed by the learned counsel for the defendant is that admittedly the sale deed is dated 27.1.1984. The present suit is filed on 11.4.2000. Taking this Court to the findings recorded by the Trial Court on Issue No.5, he would submit that the Trial Court has not applied its mind, no reasons are assigned while answering issue No.5 in the negative. Re-iterating the grounds urged in the appeal memo, the learned counsel in support of his contention would place reliance on the decision of the Apex Court rendered in the case of Executive Officer, Arulmigu Chokkanantha Swamy Koil Trust, Virudhunagar .vs. 9 Chandran and others1 Placing reliance on Sections 34 and 35 and Paragraph 36 of the said judgment, he would submit that the present suit is not at all maintainable. The suit in the present form seeking only the relief of declaration that the suit schedule properties are the joint family ancestral properties is not at all maintainable. Merely seeking declaration without seeking the relief of recovery of possession is squarely hit by Section 34 of the Specific Relief Act. Therefore, he would submit that the Trial Court ought to have dismissed the suit as not maintainable.
Insofar as limitation is concerned, he has placed reliance on the judgment of the Apex Court rendered in the case of Sunder Das and others .vs. Gajananrao and others2 and would submit that father sold item No.1 on 27.1.1984 and delivered possession also and therefore, in terms of Article 109 of the Limitation Act, since the suit is filed beyond 12 years the same is barred by limitation.
1 AIR 2017 SC 1034 2 AIR 1997 SC 1686 10 Insofar as legal necessity is concerned, learned counsel has placed reliance on the judgment rendered by the Apex Court in the case of Beereddy Dasarathrami Reddy .vs. V. 3 Manjunath and another and would submit that the Apex Court at paragraph 7, has referred to the another judgment in Kehar Singh(d) through Legal Representatives and others .vs. Nachittar Kaur and others4 wherein at Paragraph 21 the Apex Court has covered instances in the family which would squarely fall within the definition of legal necessity referring to definition of legal necessity by Mulla in Article 241. Therefore, he would submit that marriage of a male co-parceners and daughters squarely fall within the definition of legal necessity. Placing reliance on these judgments, he would submit that father was compelled to sell item No.1 which was for legal necessity and therefore, would bind the plaintiffs. On these set of grounds, he would submit that the judgment and decree of the Trial Court suffers from 3 Civil Appeal No.7037/2021 4 (2018)14 SCC 445 11 serious infirmities and therefore, warrants interference at the hands of this Court.
5. Per contra, the learned counsel for the plaintiffs repelling the arguments advanced by the learned counsel for the defendant would submit that the findings recorded by the Trial Court on issue Nos.1 and 2 is in accordance with law and therefore, would not warrant interference at the hands of this Court. He would submit that the clinching evidence on record would clearly indicate that the suit schedule properties are the joint family ancestral properties. Therefore, alienation made by their father in favour of appellant-defendant, who is the sister of plaintiffs herein would not bind them and the same was without securing consent from the other male co- parceners. He would further submit that the learned trial Judge has rightly appreciated the evidence on record and has arrived at a conclusion that the suit schedule properties are the joint family ancestral properties and there was no division in the family and the father of plaintiffs had no absolute right 12 and therefore, he could not have alienated the suit schedule properties. He would also lay emphasis on the fact that if defendant has acquired right and title pursuant to the registered sale deed executed by their father, then there was no need for defendant to set up the plea of adverse possession. Having set up the plea of adverse possession and having failed to prove the same, the defendant cannot assert right and title based on the sale deed dated 27.1.1984.
6. Heard the learned counsel for the defendant and the learned counsel for the plaintiffs. Perused the judgment under challenge. I have also given my anxious consideration to the judgment cited by the learned counsel for the defendant.
7. The following points would arise for consideration:
(1)Whether the trial Court was justified in granting the relief of declaration thereby declaring that the suit schedule properties are 13 the joint family ancestral properties and that the suit in the present form is maintainable? (2)Whether the trial Court was justified in holding that the suit is not barred by limitation?
(3)Whether the Trial Court was justified in holding that the defendant has failed to prove due execution of Will in her favour?
8. Regarding Point No.1:
(a)Plaintiffs and defendant are the sons and daughters of Marimuttu. Therefore, defendant and plaintiffs are siblings.
The evidence on record clearly indicates that the suit schedule properties are the joint family ancestral properties. The present suit is filed seeking the relief of declaration to declare that the suit schedule properties more particularly Item No.1 is the joint family ancestral property. The question that would arise in the present facts and circumstances of the case is as to whether the said relief could have been sought by the 14 plaintiffs. It is more than trite that in a partition suit, the competent Civil Court while determining the rights of the members of the joint family merely declares the rights of the family members in the form of a preliminary decree, the same cannot be misconstrued as creation of right pursuant to the decree passed by the civil Court. When a competent civil Court in a partition suit merely declares a pre-existing right, the Court has to examine as to whether the relief of declaration could have been sought and whether the same is permissible under Section 34 of the Specific Relief Act. This Court also has to examine as to whether the plaintiffs could have sought the relief of declaration without seeking the consequential relief of possession.
(b) The clinching rebuttal evidence on record as per Ex.D2 clearly indicates that father of plaintiffs and defendant sold item No.1 in favour of defendant under registered sale deed dated 27.1.1984 and pursuant to the same parted with possession. If possession was delivered in 1984, the question 15 that needs to be examined by this Court is: "Whether the suit in the present form was maintainable?". My answer to this is "No".
(c)It is a trite law that a co-parcener can sell his undivided share in the suit schedule property. It is also a trite law that Kartha of the family can sell the suit schedule properties for legal necessity and the same would bind other co-parceners in the family. The fact that the sale deed is of the year 1984 and plaintiffs who are his children have comfortably kept quite for 16 years cannot give an indication that alienation by their father is an implied consent of his sons also. This Court also has to examine the surrounding circumstances under which the father was compelled to sell the suit schedule property. In the registered sale deed there is a clear reference that he was compelled to sell item No.1 to perform the marriage of plaintiff No.1 and there is no serious contest in this regard and the recitals clearly indicate that it was for legal necessity. Therefore, I am of the view that the 16 present suit which is filed questioning the alienation by indirectly seeking the relief of declaration that the suit schedule properties are joint family ancestral properties is quite deceptive and as such the said relief cannot be granted.
(d) It is a trite that in case of alienation of a co- parcenary property, it is sufficient for a non-alienating co- parcener to file a mere suit for partition and separate possession without questioning the alienation. If the father has alienated the suit schedule property and possession was delivered in 1984 and when they were all residing together, nothing prevented the plaintiffs from filing the suit for partition. This principle is enunciated by this Court in the judgment rendered in the case of Nagarathnamma .vs. Rangegowda and others 5. Therefore, I am of the view that if the property was already alienated in 1984, the finding of the trial Court on Issue No.1 in answering the same in affirmative holding that it is the joint family ancestral property is perverse, palpably erroneous and contrary to the clinching 5 ILR 1985(1) KAR 1115 HEAD NOTE (B) 17 rebuttal evidence on record vide Ex.D2. If item No.1 was dealt by the Kartha and if it was alienated way back in the year 1984, then this Court is of the view that the property is not available for partition. The family lost possession in the year 1984. The words "to set aside" occur also in the first column of Article 59. It is clear from the context that there the words would not cover a person who was not a party to the instrument. Under Article 109, however there seems to be no such restriction and a person who was not party to the transaction would also be within its scope. Even in Article 109, suit referred to in first column is to "set aside" the alienation. It is obvious that this article does not contemplate a suit merely for a declaratory relief, but a non-alienating coparcener has to seek relief of partition on the ground that there is alienation without his consent. Therefore, the relief sought in the present form was not at all maintainable. It is in this background, this Court is of the view that the finding recorded 18 by the trial Court on Issue No.1 suffers from serious perversity.
9. Regarding Point No.2
(a)The present suit is filed by plaintiffs seeking the relief of declaration to declare that the suit schedule properties are the joint family ancestral properties. But the sale made by the father in favour of defendant is dated 27.1.1984. The present suit is filed on 11.4.2000. The cause of action shown at para 8 of the plaint is as follows:
"8) The plaintiff submits that, the defendant NO: 1 & 4 have formed residential sites in Item No:4 of the suit schedule property and sold portion of Item No:04 to defendant No: 6 to 27. The defendant No: 28 to 30 are subsequent purchasers from defendant No: 1 & 4. The said sites having been sold with out knowledge and consent of this plaintiff therefore the said sales are not binding upon the plaintiff. The plaintiff is entitled for 1/3rd share in the said properties as well. The 1st defendant sold portion of Item No:4 of the suit schedule properties to Defendant No:
6 to 9. The copies of registered sale deed are produced as DOCUMENT NO:09 series. The 4th defendant sold portion of Item No:4 of the suit schedule properties to C. Madaiah, Defendant No:10 to 19 & 27. The wife and children are made as parties to the suit as Defendant NO:20 to 23. The copies of registered sale deed are produced as DOCUMENT NO:10 series. The 4th defendant and his father M.Marimuthu Jointly sold portion of the schedule 19 Item No:4 property to defendant No:24, Ningamma, defendant No:25 Puttaswamy and Defendant NO:26 Sundamma. The said Defendant No:26 sold one portion to Defendant No:28 Siddaraju, another portion transferred in the name of Lakshmamma. Defendant No:30. The defendant No:17 M. Bhujangaiah sold site he has purchased to Defendant NO:29, Ramanna under registered sale deed Dt:18-5-1995 The copies of two registered sale deed is produced as DOCUMENT NO:11 series. The said alienation is not binding upon the plaintiff. The plaintiff is not party to the said alienation. The plaintiff seeks for partition in the said properties alienated by defendant NO: 1 & 4 in favour of defendant No: 6 to 30. The plaintiff is not party to said alienation therefore she would not necessary to seek for cancellation or not binding upon her.
There was no antecedent debt to discharge or no legal necessity or to the benefit of Hindu Undivided Family to alienate above said properties. The plaintiff is entitling for share in the said properties also. The defendant No:6 to 30 who are purchasers are made parties to seek for possession of the said properties to the extent of her share in those properties. The defendant No:6 to 30 are claiming title under Defendant NO: 1 & 4 coparceners possession of the said family members and defendant No: 6 to 30 possession would be the possession of the plaintiff also. Till the partition is effected by metes and bounds, no body can claim exclusive title to any portion of the property. Therefore, as the property is not divided by metes and bounds, they cannot claim exclusive title to the schedule property, which is to be in their possession. Therefore the plaintiff is deemed to be in possession in law of the suit schedule property. Hence limitation a suit against the defendant NO: 6 to 30 do not run against the defendant No: 6 to 30. The present suit filed against the coparceners of the Hindu Undivided Family making the purchaser as party to the above suit is not barred by limitation, as the suit for general partition against the coparceners of Joint Hindu Family. The plaintiff is in joint possession of schedule properties sold in favour of the defendant No: 6 20 to 30. The defendant No: 6 to 30 have no right to claim exclusive possession of the property they have purchased from defendant No: 1 & 4 and their father M. Marimuthu. The plaintiff is entitled for joint possession of the suit schedule property along with the defendants."
(b)On perusal of para 8 of the plaint, this Court would find that the cause of action referred to in para 8 of the plaint is illusory and imaginary. The family lost possession way back in the year 1984. Therefore, the principles laid down by the Apex Court in the judgment cited by the learned counsel for the defendant is squarely applicable to the present case on hand. If the family of plaintiff lost possession of the suit schedule property in 1984, then it was incumbent on the part of the plaintiff to bring the suit within 12 years as required under Article 109 of the Limitation Act and the proper course for the plaintiff was to file the suit for partition and not to seek the relief of declaration, which is sought in the form of present suit. The learned trial Judge has not at all applied his mind and no reasons are forthcoming while answering Issue No.5. Though the learned trial Judge observed that plaintiffs have 21 not immediately challenged the sale deed has very casually accepted the reasons narrated at Para 8 without examining the rebuttal evidence let in by the defendant and without taking note of the registered sale deed executed by the plaintiffs' father has answered issue No.5 in the negative holding that the defendant has failed to establish that the suit is barred by limitation. The title documents in favour of defendant as per Ex.D2 is part of the record. Therefore, it was incumbent on the part of the Trial Court to examine the alienation. What is to be noted in the present case is that the alienation is within the family by the father to perform the marriage of his son i.e. in favour of his daughter under a registered sale deed. Therefore, it has to be presumed that the alienation was well within the knowledge of the plaintiffs who were none other than the brothers of the defendant. If it was well within the knowledge of plaintiffs and if the family had lost possession in 1984, then the present suit which was filed on 11.4.2000 is barred by limitation as per Article 109 of 22 the Limitation Act. Under Mitakshara Law, father has right to alienate ancestral properties, including the rights of the son, for legal necessity or for the benefit of the estate or for discharging antecedent debt. Since possession was delivered in 1984, it amounted to invasion of rights of son (plaintiff) in the family property. It is only when possession is taken by alliance, cause of action accrues to the son under Article 109. In the present case, sale deed is dated 27.1.1984 and suit is filed on 11.4.2000. After expiry of 12 years, son's right to dispute the alienation is barred and therefore the suit property ceases to be joint family property. These significant details are not dealt by the Trial Court. The finding recorded on issue No.5 is contrary to the evidence on record. Therefore, the conclusions arrived at by the trial Court on Issue No.5 are not at all sustainable and accordingly, point No.2 is answered in the negative.
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10. Regarding Point No.3:
Though the defendant has claimed right and title on the basis of the Will vide Ex.D1 this Court is not inclined to examine the material on record as the defendant being the propounder of the Will has not examined one attesting witness as per the mandatory requirement contemplated under Section 68 of the Indian Evidence Act. Therefore, the finding recorded by the Trial Court on Issue No.4 does not warrant any interference.
11. For the reasons stated supra, this Court has arrived at the following conclusions:
(a)The finding of the Trial Court that the suit schedule properties are the joint family ancestral properties and there is no division and therefore, alienation by the father of plaintiffs and defendant in favour of defendant is one without authority is perverse and contrary to the settled position of law that Kartha for legal necessity can sell joint family ancestral properties and therefore, the finding recorded by the Trial 24 Court while dealing with Issues 1 and 2 is palpably erroneous and the same is not at all sustainable. The trial Court has totally misread the evidence on record and also has not understood the actual lis between the parties. The Trial Court has unnecessarily gone into the nature of the suit schedule properties and authority of the father in alienating a suit schedule property. The Trial Court has unnecessarily gone into the capacity of father and his income while examining the nature of the suit schedule property. Even if the suit schedule properties are joint family ancestral properties, the Kartha or co-parcener can deal with the property, more particularly, the kartha for legal necessity can sell the joint family ancestral properties and in the light of the principles laid down by the Apex Court in the case of Beereddy Dasarathrami Reddy, the sale of joint family ancestral properties to perform the marriage of a male co-parcener would clearly fall within the definition of legal necessity. These significant details are neither referred nor discussed nor dealt by the Trial Court 25 while dealing with Issue Nos.1 and 2. Therefore, the finding recorded on Issue Nos.1 and 2 are not sustainable.
(b)The finding recorded on Issue No.5 relating to limitation is also palpably erroneous and contrary to Article 109 of the Limitation Act. The clinching evidence on record would clearly demonstrate that the sale deed is of the year 1984 and the present suit is filed in 2000. If plaintiffs family has lost possession in 1984, the present suit filed in 2000 is not maintainable and the same is barred by limitation under Section 109 of Limitation Act. These significant details are not at all taken into consideration and therefore, the finding on Issue No.5 is palpably erroneous and the same is not at all sustainable.
12. In view of my findings recorded on Points 1 to 3 and the conclusions arrived at, the findings of the Trial Court are perverse and palpably erroneous and liable to be reversed. Accordingly, the same stands reversed.
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13. In the result, the regular first appeal is allowed.
14. All pending interlocutory applications, if any, do not survive for consideration and accordingly, stand disposed of.
Sd/-
JUDGE *alb/-