Karnataka High Court
M Anjanappa vs M Krishnappa on 25 June, 2019
Equivalent citations: AIRONLINE 2019 KAR 1868, 2019 (4) AKR 790 (2020) 1 ICC 730, (2020) 1 ICC 730, 2019 (4) AKR 790
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IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 25TH DAY OF JUNE, 2019
BEFORE
THE HON'BLE MR. JUSTICE N.K. SUDHINDRARAO
REGULAR SECOND APPEAL No. 2067/2007
C/W
REGULAR SECOND APPEAL No.1710/2007
In RSA No.2067/2007:
BETWEEN:
M. ANJANAPPA
S/O LATE MUTHAPPA
AGED ABOUT 50 YEARS
AGRICULTURIST,
R/AT GANGADHARAPURA
4TH WARD, DODDABALLAPUR TOWN
BENGALURU - 561 203.
... APPELLANT
(BY SRI. K. G. SADASHIVAIAH., ADV., )
AND:
1. M. KRISHNAPPA
S/O LATE MUTHAPPA
AGED 57 YEARS
AGRICULTURIST, NO 2405,
GANGADHARAPURA
4 WARD, DODDABALLAPUR TOWN
BENGALURU DISTRICT - 561 203.
2. M. NAGARAJAPPA
S/O LATE MUTHAPPA
AGED 47 YEARS
2
AGRICULTURIST,
NO 2405, GANGADHARAPPA
4TH WARD, DODDABALLAPUR TOWN
BENGALURU - 561 203.
3. R. CHANDRASHEKAR
S/O LINGAPPA @ RAJANNA
AGED 47 YEARS
NO 2399, GANGADHARAPURA
4TH WARD,DODABALLAPUR TOWN
BENGALURU - 561 203.
4. ASWATHNARAYANA GOWDA
S/O MUNISHAMAPPA GOWDA
MAJOR, SHANTHINAGAR
NEAR GANGA RICE MILL
DODDABALLAPUR TOWN
BENGALURU - 561 203 .
SINCE DEAD BY LRS
4a. SMT. PUTTAMMA
W/O LATE ASWATHNARAYANA GOWDA
AGED ABOUT 60 YEARS.
4b. SMT. MUNIGOWDA
S/O LATE ASWATHNARAYANA GOWDA
AGED ABOUT 45 YEARS
BOTH ARE RESIDING AT
4TH WARD, MUTTYALAMMA
TEMPLE ROAD, DODDABALLAPUR
TOWN, BENGALURU DISTRICT.
... RESPONDENTS
(R1-3 ARE SERVED, NOTICE TO R4(A) IS HELD SUFFICIENT
VIDE COURT ORDER DATED 15.06.2017, NOTICE TO R-4(B) IS
HELD SUFFICIENT VIDE COURT ORDER DATED 24.01.2013)
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THIS REGULAR SECOND APPEAL IS FILED UNDER
SECTION 100 OF CPC AGAINST THE JUDGMENT AND DECREE
DATED 30.03.2007 PASSED IN RA.NO.54 OF 2003 ON THE FILE
OF THE PRESIDING OFFICER, FAST TRACK COURT-III,
BENGALURU RURAL DISTRICT, BENGALURU, PARTLY
ALLOWING THE APPEAL FILED AGAINST THE JUDGMENT AND
DECREE DATED 07.10.2003 PASSED IN O.S.NO.31 OF 2002 ON
THE FILE OF THE CIVIL JUDGE (SR.DN.) DODDABALLAPURA.
In RSA No.1710/2007:
BETWEEN:
R. CHANDRASHEKAR
S/O LINGAPPA @ RAJANNA
AGED 47 YEARS
NO 2399, GANGADHARAPURA
4TH WARD, DODABALLAPUR TOWN
BENGALURU - 561 102
... APPELLANT
(BY SRI C.S.PRASANNA KUMAR, ADV.)
AND:
1. M. ANJANAPPA
S/O LATE MUTHAPPA
AGED ABOUT 50 YEARS
AGRICULTURIST,
R/AT GANGADHARAPURA
4TH WARD, DODDABALLAPUR TOWN
BENGALURU - 561 102.
2. M. KRISHNAPPA
S/O LATE MUTHAPPA
AGED 57 YEARS
AGRICULTURIST, NO 2405,
GANGADHARAPURA
4TH WARD, DODDABALLAPUR TOWN
BENGALURU DISTRICT - 561102.
4
3. M. NAGARAJAPPA
S/O LATE MUTHAPPA
AGED 47 YEARS
AGRICULTURIST,
NO 2405, GANGADHARAPPA
4TH WARD, DODDABALLAPUR TOWN
BENGALURU - 561102.
4. ASWATHNARAYANA GOWDA
S/O MUNISHAMAPPA GOWDA
MAJOR, SHANTHINAGAR
NEAR GANGA RICE MILL
DODDABALLAPUR TOWN
BENGALURU - 561 203.
(DELETED VIDE COURT ORDER
DELETED 19.03.2012)
... RESPONDENTS
(BY SRI.K.G.SADASHIVAIAH, ADV., FOR C/R1, R2 AND R3
SERVED, VIDE COURT ORDER DATED 19.03.2012 R4 IS
DELETED)
THIS REGULAR SECOND APPEAL IS FILED UNDER
SECTION 100 OF CPC, AGAINST THE JUDGMENT AND DECREE
DATED 30.03.2007 PASSED IN RA.NO.54 OF 2003 ON THE FILE
OF THE PRESIDING OFFICER, FAST TRACK COURT-III,
BENGALURU RURAL DISTRICT, BENGALURU, PARTLY
ALLOWING THE APPEAL AND SETTING ASIDE THE JUDGMENT
AND DECREE DATED 07.10.2003 PASSED IN O.S.NO.31 OF 2002
(OLD.NO.790/1995) ON THE FILE OF THE CIVIL JUDGE (SR.DN.)
DODDABALLAPUR.
THESE APPEALS COMING ON FOR ORDERS THIS DAY THE
COURT DELIVERED THE FOLLOWING:
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JUDGMENT
These appeals are directed against the judgment and decree passed by the Fast Track Court-III, Bengaluru Rural District, Bengaluru in R.A.No.54/2003 on 30.03.2007, wherein the Appellate Judge has partly allowed the appeal by partly setting aside the decree passed by the learned Civil Judge (Sr.Dn.), Doddaballapur in O.S.No.31/2002 dated 07.10.2003. The Trial Judge in O.S.No.31/2002 decreed the suit against defendant Nos.3 and 4. The operative portion of the order reads as under:
"1. The suit of the plaintiff is partly decreed and the suit against the defendants 3 and 4 is hereby dismissed.
2. The plaintiff is entitled to 1/3rd share in item Nos.1 to 3, 6 and 7 of the suit schedule properties. He is also entitled to take his separate possession of his 1/3rd share out of item Nos.1 to 3, 6 and 7 of the suit schedule properties.6
3. The first defendant is hereby directed to effect partition and put the plaintiff in separate possession of his 1/3rd share out of item Nos.1 to 3, 6 and 7 of the properties.
4. There shall be an equity U/O. 20 Rule 12 of CPC to ascertain mesne profits from item Nos.1 to 3, 6 and 7 of the suit schedule properties.
5. Draw preliminary Decree accordingly.
6. Under the circumstances, there is no order as to costs."
2. In order to avoid confusion and overlapping, the parties are referred to in accordance with the status and rankings as held by them before the Trial Court.
3. Since both the appeals arise out of a common judgment, they are taken up together for common disposal. 7
4. RSA No.1710/2007 is filed by defendant No.3 - Sri.R.Chandrashekar against the order of the first appellate court. RSA No.2067/2007 is filed by the plaintiff - Sri M. Anjanappa against dismissal of the suit in respect of item No.4 of the suit schedule property.
5. The facts in substance are; the suit was filed by the plaintiff against defendants seeking partition of the suit schedule properties claiming 1/3rd share and separate possession and for mesne profits.
The plaintiff and defendant Nos.1 and 2 are siblings being the sons of late Muthappa. They constituted a Hindu co-parcenary Joint family and defendant No.1 being the eldest member is the kartha of the family. The suit schedule properties are their ancestral joint family properties. Thus, the khatha and records of the properties stood in the name of defendant No.1.
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Defendant No.1 was addicted to vices and was acting detrimental to the interests of joint family and started exhausting the joint family properties without the consent of or rather much against the will of the plaintiff and defendant No.2. There was no legal necessity for defendant No.1 to meddle with and dispose of the properties of the joint family. However, defendant No.1 was bent upon in disposing of the joint family properties.
The plaintiff and defendant Nos.1 and 2 being the members of the joint family are in joint possession and enjoyment of the properties. The suit schedule properties consist of 7 items. Out of them, item No.5 is said to have been purchased by defendant No.3 under registered sale deed dated 01.08.1995 at Ex.D.16 and item No.4 said to have been purchased by defendant No.4 under the registered sale deed dated 11.1.1988 at Ex.D.1 from defendant No.1. Thus, defendant Nos.3 and 4 are seriously contesting parties. 9
6. The Trial Court on completion of the trial found the joint family properties existed in respect of item Nos.1, 2, 3, 6 and 7 of the plaint schedule properties and accordingly, decreed the suit in favour of the plaintiff and held plaintiff is entitled to 1/3rd share in respect of the same. However, insofar as item Nos.4 and 5 of the plaint schedule properties are concerned, it did not consider the two items of land as available for partition to hold that defendant No.1 sold the same in derogation of principles of Hindu law and detrimental to the interest of the joint family.
7. Being aggrieved by the same, the plaintiff preferred regular appeal in R.A.No.54/2003 before the Fast Track Court-III, Bengaluru Rural District, Bengaluru. The appeal was allowed in part. The finding of the Trial Court on reframed issue No.3(a) holding that alienation of item No.4 of the suit schedule properties in favour of defendant No.4 was held valid. However, sale of item No.5 of the suit schedule property in favour of defendant No.3 was not entertained and 10 accordingly, it was made available for partition. Thus, item No.5 was set up for partition among the members of the joint family.
8. It is against the said judgment and decree, two appeals came to be filed. One is preferred by defendant No.3- R.Chandrashekar in RSA No.1710/2007 challenging the decree in respect of item No.5 in Sy.No.25/1 measuring 1 acre 16 gutnas situated at Gangadharapura, Kasaba Hobli, Doddaballapura Taluk under the registered sale deed dated 01.08.1995 at Ex.D.16. Similarly, Sri M. Anjanappa preferred another appeal in RSA No.2067/2007 challenging the judgment and decree passed in respect of item No.4 of the suit schedule property in Sy.No.79/1 measuring 18 guntas situated at Gangadharapura, Kasaba Hobli, Doddaballapura under the registered sale deed dated 11.1.1988 at Ex.D.1, thereby holding that registered sale deed in favour of defendant No.4 as valid and binding on the plaintiff and the defendant Nos.1 and 2.
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9. Sri Prasanna Kumar, learned counsel for the appellant in RSA No.1710/2007 would submit that the Trial Court assigned sound reasons and discussed the evidence, assessed the documents in a proper perspective and rightly came to the conclusion to pass the judgment and decree excluding item No.5 of the suit schedule property. However, First Appellate Court erred in holding that item No.5 of the suit item, which was sold to defendant No.3 was available for partition.
10. Learned counsel would further submit that the First Appellate Court further erred in holding that sale of item No.5 of the suit schedule properties under the sale deed at Ex.D.16 in favour of defendant No.3 is bad in law and not for legal necessity.
11. Learned counsel further submits that both the sale deeds absolutely stood at par, but the learned Appellate Judge erred in treating the sale deed in favour of defendant No.3 on a different footing with sale deed in favour of defendant No.4.
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12. Learned counsel would further submit that there is no evidence which inspires confidence to negate the sale deed in favour of defendant No.3. Thereby, defendant No.3 has suffered inequality.
13. Learned counsel for appellant in RSA No.2067/2007 appearing for the appellant - plaintiff would submit that the trial Court erred completely in excluding item Nos.4 and 5 from the domain of partition of all seven items of properties, which are all joint family properties and there was no necessity for selling the same by defendant No.1 and that the sale is detrimental to the joint family and the same is liable to be set aside.
14. Learned counsel would further submit that the sale deed effected in favour of defendant No.3 under Ex.D.16 was held to be belonging to joint family and that other coparceners are not bound by the sale in favour of defendant No.3 as it was declared as joint family property available for 13 partition. Further, the learned counsel would submit that the First Appellate Court erred seriously in respect of sale deed that was effected in favour of defendant No.4 and has held it for a legal necessity and in the interest of joint family. Thus, the learned counsel for the appellant in RSA No.2067/2007 insists that item No.4 also should have been included for enabling partition with all seven items of properties.
15. In RSA No.1710/2007, though respondent Nos.2 and 3 are served, they did not contest the matter. However, defendant No.4 - Ashwathanarayana Gowda was reported to be dead and he was deleted in the said appeal by order dated 19.3.2012. In RSA No.2067/2007, respondent Nos.1 to 3 are served but unrepresented. Service of notice issued to the legal representatives of respondent No.4 - Ashwathanarayana Gowda was held sufficient and they are not contesting either of the appeals.
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16. Substantial question of law framed by this Court on 26.2.2018 is as under:
"Whether the Appellate Court was justified in dismissing the appellant's appeal in so far as it relates to item No.4, holding that the sale in favour of defendant No.3 was not in the interest of family necessities?"
Additional substantial question of law framed by this Court on 21.6.2019 is as under:
"Whether the appellate Court has treated the sale deed in favour of defendant No.3-
R.Chandrashekar and defendant No.4 -
Aswathanarayana Gowda at par in law?"
17. Before dwelling upon the other aspects, it is necessary to place admitted facts:
The relationship between the plaintiff and defendant Nos.1 and 2 is not in dispute. They are siblings. The sale of item No.4 of the suit schedule property in favour of defendant 15 No.4 is not disputed. However, competence of the seller to sell the same is questioned by the plaintiff. Similarly, sale deed in favour of defendant No.3 in respect of item No.5 of the suit schedule property and execution of the sale deed is not in dispute. The plaintiff's claim that defendant No.1 had no right to sell either item No.4 or item No.5. Both the sale deeds were effected by defendant No.1 who is admittedly elder member of the family (elder brother). The claim of defendant No.3 is in respect of item No.5 having purchased under the registered sale deed Ex.D.16 and defendant No.4 in respect of item No.4 under the registered sale deed at Ex.D.1. The other five items of suit schedule properties are not in dispute between the plaintiff and defendants.
18. The Trial Court framed the issues on the relevant aspects required for partition and came to the conclusion that in respect of sale deed of item No.5 effected in favour of defendant No.3 at Ex.D.16 and sale deed of item No.4 effected in favour of defendant No.4 at Ex.D.1 were not detrimental to 16 the interest of the joint family. Thus, clarified item Nos.4 and 5 are undisturbed in favour of defendant Nos.3 and 4 respectively.
19. The First Appellate Court concluded that the judgment and decree of the Trial Court in respect of item No.4 of the suit schedule property as valid and proper, but in respect of item No.5 of the suit schedule property it did not accept the evidence, whereby in its finding restored item No.5 of the suit schedule property to the joint family properties.
20. In this connection, the learned counsel for the appellant in RSA No.2067/2007 seriously disputed the concept of legal necessity in selling both the properties. Insofar as the plaintiff is concerned, the First Appellate Court rightly rejected the contention of defendant No.3 and there was no legal necessity to sell the said item of the property. However, insofar as sale deed in respect of item No.4 of the suit schedule property in favour of defendant No.4 is concerned, it has held that the 17 same was absolutely for legal necessity and for the benefit of the joint family.
21. In this connection, learned counsel - Sri Prasanna Kumar would submit that it could be seen that two sale deeds were meted out different treatments, regard being had to the fact that they were stationed on a common platform, literally there was no difference. Defendant No.1 who is vendor under both the sale deeds has conveyed the right, title and interest over the suit schedule properties and the sale deed in favour of defendant No.3 was for legal necessity. Learned counsel further submit that the approach of the First Appellate Court is totally unbalancing the principle of joint family and established right and duties of the head of the family and the fact relating to powers of kartha to sell the joint family properties.
22. It was also the contention of the learned counsel for the appellant - Sri Prasanna Kumar that two brothers namely, plaintiff and defendant No.2 have subscribed their signatures 18 as witnesses for both the sale deeds and it was within their knowledge that the sale deeds were effected by defendant No.1 in favour of defendant Nos.3 and 4. They are not consenting witnesses. But the term "attested" is defined under Section 2(3) of the Transfer of Property Act, 1882 as under:
"Attested", in relation to an instrument, means and shall be deemed always to have meant attested by two or more witnesses each of whom has seen the executant sign or affix his mark to the instrument, or has seen some other person sign the instrument in the presence and by the direction of the executant, or has received from the executant a personal acknowledgement of his signature or mark, or of the signature of such other person, and each of whom has signed the instrument in the presence of the executant; but it shall not be necessary that more than one of such witnesses shall have been present at the same time, and no particular form of attestation shall be necessary.19
The "attestor" is the one who has seen the executant (defendant No.1), sign or affix his mark to the instrument, or has received acknowledgment from executant regarding execution of the document.
23. Thus, the attestor may not be the person to be considered as a party to the deed. The noticeable factor is that they are in the know of execution of the sale deed. However, it is the case of the plaintiff that he has not signed the sale deeds, whether in favour of defendant No.3 or defendant No.4 as attestor.
24. It is necessary to place on record that the plaintiff and defendant Nos.1 and 2 stand at par regarding relationship. All of them are the sons of Muthappa. Further, defendant No.2 has not questioned or denied his signatures on the sale deeds, which are dated 01.08.1995 in favour of defendant No.3 and dated 11.01.1988 in favour of defendant No.4. The suit is filed in the year 1995.20
25. Thus the version of the parties insofar as knowledge of the sale deed is concerned, the materials would conclude that the plaintiff and defendant Nos.1 and 2 had knowledge of the sale deeds at Exs.D.1 and D.16 in favour of defendant Nos.4 and 3 respectively and thus the knowledge is sensible and one of the crucial fact of the case is that it is surprising that they had latest knowledge on 01.08.1995 and the suit is filed in the year 1995. Thus, the moot question is whether sale deed at Ex.D.16 in favour of defendant No.3 or sale deed at Ex.D.1 in favour of defendant No.4 was hit by absence of legal necessity. The legal necessity both precedes and succeeds in meeting the requirements of the joint family with honest intention. The concept of legal necessity is purely a question of fact, wherein the joint family property particularly manager (kartha) insofar as he looks after the property, family and protects the interest of the properties and welfare of the members therein. There is no doubt that the powers of the head of the joint family earlier were bestowed respect in the institution of joint Hindu Family to maintain balance. The 21 manager (elder member) is to take conscionable decision. Further question is whether sale deeds in favour of defendant Nos.3 and 4 though stood at par, were treated differently.
26. The circumstances that fall under legal necessity are various in number may be religious, essential, economical and compelling wherein kartha is concerned, he need not wait for the consent of other members for selling the joint family properties provided his acts are conscionable.
27. In this connection, it is also brought to the notice of this Court that the marriage of a female member of the joint Hindu family was celebrated according to plaintiff, it is in the year 1982 and according to defendant No.2, it is in the year 1988. However, admitted fact is marriage was performed. Further the legal necessity is not a concept that should be established in a suit for partition or to be satisfied through audited balance sheet or statement of income and expenditures.22
28. On the other hand, what is required is the legal necessity for executing sale deed of joint family properties and should not be affected by immorality or discrimination so that common entire joint family properties shall not be drained out through selfish acts of one member or group of members. Thus, mere mentioning or otherwise of the term 'legal necessity' cannot cause the difference. It all depends on consciousness and honesty. Mere flowery words or terms cannot parachute the legal necessity which did not exist. What is appealable is the averment and the sequences of acts and events that inspires confidence to conclude the presence of legal necessity.
29. Mentioning of the term legal necessity or pleading towards legal necessity could only be a corroborative factor for legal necessity. In this case, there are allegations of bad habits, vices against defendant No.1. But the question is that if such averment is taken whether has it been established to the satisfaction of the court and inspires confidence. 23 However, there is no synchronization between pleadings and evidence regarding the allegation of vices against defendant No.1. It is necessary that pleaded facts are to be evidenced in proper direction.
30. In the facts and circumstances of the case, there is no clinching evidence to establish that legal necessity was absent and the sale deeds were detrimental to joint family. It is necessary to state that certain acts, character and conduct of a person more specifically kartha (manager) like instances of vices, immorality, addicted to bad habits which affects health of the member and welfare of the family and atrocious behavior on junior member in the matter of money of the family, they all come under the acts which are detrimental to the joint family.
31. Insofar as the legal necessity is concerned, it is enabling factor for sale and vices and bad nature of kartha are vitiating factors. The acts of members detrimental to the joint family 24 and other members are identified with reference to specific circumstances which caused loss. It cannot be forgotten for a while that there are seven items of suit schedule properties. It is the allegation against defendant No.1 that he has exhausted the properties. The sale deeds are in respect of two items of properties.
32. The bottom line is the specific instances of causing monetary loss and prejudice to the joint family are the required material factors to be considered but such instances are not established in the present case. Further the existence of the joint family, performance of marriage of the female member, maintenance of family, in the circumstances of the case reflect legal necessity more particularly as discussed above.
33. The Apex Court in Smt.Rani and Another vs. Smt. Santa Bala Debnath and Others reported in AIR 1971 SC 1028 has held that the legal necessity is a corroborative 25 factor and when the circumstances of legal necessity are mentioned, mentioning of term legal necessity would complete its purpose. At the same time, actual proof of legal necessity cannot be expected with computer precision. It cannot be concluded to be absent because of not mentioning. There is vast difference between being mentioned and not being mentioned.
34. As observed above, the conduct of the purchaser and that of the seller (kartha of the joint family) is whether properties are disposed of for throw away price without looking into interest of the joint family or its member by saying that the man is very liberal in using money of others.
35. The responsibility of purchaser to prove the existence of legal necessity does not demand that he should follow the proceeds and get confirmation whether they are applied for debts or just for purposes of the joint family. A purchaser believes the representation of the senior member of joint 26 family who sold the property and believe them to be true when he is satisfied that would complete the process of transaction. The duty of a seller to enquire to the most whether the property is being sold by a person who is the senior member or Kartha of the joint family and whether he is exercising due care and diligence in disposing of the property to the paramount benefit of the joint family. At the end of the day, it is the art of the scribe that presents the content in a flowery language. Thus it will be a conscionable and judicious decision.
36. In the whole set of circumstances, I find that the concept of legal necessity as a compelling factor was present and sale deeds were effected to counter the legal necessities, benefits of the joint family and no attributions or vices or bad habits are proved against defendant No.1. The plaintiff and defendant No.2 had the knowledge of the sale deeds on the day sale deeds were effected in favour of the purchasers who brought that after enquiry and for consideration whether it is 27 third or the fourth defendant. The Trial Court was right in accepting both the sale deeds Ex.D-1 and D-16. However, First Appellate Court erred in not accepting the sale deed in favour of third defendant Ex.D-16. Judgment passed by the First Appellate Court is seriously erroneous and it is liable to be set aside. Substantial question of law is answered accordingly.
37. Insofar as appeal by the plaintiff is concerned in R.S.A.No.2067/2007, there are seven items of suit schedule properties. Out of them, item No.4 said to have been sold to fourth defendant and item No.5 said to have been sold in favour of third defendant. Thus, remaining items of schedule properties are not in dispute between the parties. Thus, appellants do not have grouse insofar as other properties are concerned. Insofar as items 4 and 5 are concerned, it is adjudicated under this appeal. Hence, the following: 28
ORDER
1. R.S.A.No.2067/2007 is dismissed.
2. R.S.A.No.1710/2007 is allowed. Judgment and decree dated: 30.03.2007 passed in R.A.No.54/2003 on the file of the Presiding Officer, Fast Track Court-III, Bengaluru Rural District, Bengaluru is set aside. Judgment and decree dated 07.10.2003 passed in O.S.No.31/2002 by the Civil Judge (Sr.Dn), Doddaballapur is affirmed.
In the result, no order as to costs.
Sd/-
JUDGE SA/SBN