Karnataka High Court
Mallikarjuna vs Gourabai on 21 August, 2023
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NC: 2023:KHC-K:6598
RSA No.200358 of 2017
C/W RSA No.200357 of 2017
IN THE HIGH COURT OF KARNATAKA
KALABURAGI BENCH
DATED THIS THE 21ST DAY OF AUGUST, 2023
BEFORE
THE HON'BLE MRS JUSTICE K S HEMALEKHA
REGULAR SECOND APPEAL NO.200358/2017 (DEC/INJ)
C/W
REGULAR SECOND APPEAL NO.200357/2017(DEC/INJ)
RSA NO.200358 OF 2017:
BETWEEN:
MALLIKARJUN
S/O SHANTAPPA SHIRASHYAD
AGED ABOUT 38 YEARS
OCC: AGRICULTURE
R/O SHIVAPUR K.D.
TALUK: INDI
DIST: VIJAYAPURA
...APPELLANT
(BY SRI ANANTH S. JAHAGIRDAR, ADVOCATE)
AND:
Digitally signed
by SHILPA R GOURABAI W/O BALAWANT HARIJAN
TENIHALLI AGED ABOUT 75 YEARS
Location: HIGH
COURT OF OCC:HOUSEHOLD WORK
KARNATAKA R/O SHIVAPUR K.D.
NOW RESIDING AT LALASANGI
TALUK: INDI
DIST: VIJAYAPURA - 586209
...RESPONDENT
(BY SRI SHIVAKUMAR KALLOOR, ADVOCATE)
THIS RSA IS FILED UNDER SECTION 100 OF CPC, PRAYING
TO ALLOW THIS APPEAL AND SET ASIDE THE JUDGMENT AND
DECREE DATED 10.08.2017 PASSED IN R.A.NO.45/2015 ON THE
FILE OF THE SENIOR CIVIL JUDGE AND JMFC AT INDI,
CONFIRMING THE JUDGMENT AND DECREE DATED 02.11.2015
PASSED IN O.S.NO.262/2008 ON THE FILE OF THE CIVIL JUDGE
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RSA No.200358 of 2017
C/W RSA No.200357 of 2017
AND JMFC AT INDI, AND TO PASS ANY OTHER APPROPRIATE
ORDERS, IN THE INTEREST OF JUSTICE.
RSA NO.200357 OF 2017:
BETWEEN:
MALLIKARJUN
S/O SHANTAPPA SHIRSHYAD
AGED ABOUT 38 YEARS
OCC: AGRICULTURE
R/O SHIVAPUR K.D.
TALUK :INDI
DIST: VIJAYAPURA - 586 209
...APPELLANT
(BY SRI ANANTH S. JAHAGIRADAR, ADVOCATE)
AND:
GOURABAI
W/O BALAWANT HARIJAN
AGED ABOUT 84 YEARS
OCC: HOUSEHOLD WORK
R/O SHIVAPUR K.D.
NOW RESIDING AT LALASANGI
TALUK:INDI
DIST: VIJAYAPURA
...RESPONDENT
(BY SRI AJAY KUMAR A. K., ADVOCATE)
THIS RSA IS FILED UNDER SECTION 100 OF CPC, PRAYING
TO ALLOW THIS APPEAL AND SET ASIDE THE JUDGMENT AND
DECREE DATED 10.08.2017 PASSED IN R.A.NO.46/2015 ON THE
FILE OF THE SENIOR CIVIL JUDGE AND JMFC AT INDI,
CONFIRMING THE JUDGMENT AND DECREE DATED 02.11.2015
PASSED IN O.S.NO.91/2009 ON THE FILE OF THE CIVIL JUDGE
AND JMFC AT INDI AND TO PASS ANY OTHER APPROPRIATE
ORDERS, IN THE INTEREST OF JUSTICE.
THESE APPEALS COMING ON FOR ADMISSION, THIS DAY,
THE COURT DELIVERED THE FOLLOWING:
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RSA No.200358 of 2017
C/W RSA No.200357 of 2017
JUDGMENT
Both the appeals are filed by the unsuccessful purchasers against the concurrent findings of the Courts below.
2. The brief facts of the case are that, two suits in O.S.Nos.91/2009 and 262/2008 are filed for declaration and permanent injunction.
3. O.S.No.91/2009 is filed by the purchaser one Mallikarjun seeking for declaration that he is the absolute owner in possession of the suit land bearing Sy.No.84/1 measuring 3-00 acres of Shivapur KD village.
4. O.S.No.262/2008 is filed by one Gourabai, wife of Balawant Harijan seeking for declaration and permanent injunction in respect of Sy.No.84 measuring 6 acres 22 guntas of Shivapur KD village, Taluka Indi.
5. The parties herein are referred to as purchaser
- Mallikarjun and Gourabai for the sake of convenience. -4-
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6. The purchaser-Mallikarjun filed O.S.No.91/2009 for declaration stating that he is the absolute owner in possession of the suit schedule property bearing Sy.No.84/1, measuring 3 acres out of Sy.No.84 which was originally measuring 6 acres 22 guntas owned by one Shivappa, the father of Gourabai - defendant and one Balawwa. On the death of Shivappa, his wife Channawwa became the absolute owner of the said property and on her death, the mutation entry was effected in the name of her two daughters namely, Gourabai - defendant and Balawwa. The said Balawwa died leaving behind her husband Siddappa. According to the purchaser - Mallikarjun, Siddappa had become the absolute owner of the property after the death of Balawwa and by way of a wardi for partition in Sy.No.84, 3 acres was allotted to Siddappa and remaining 3 acres 22 guntas was allotted to Gourabai - defendant. Accordingly, watani dairy No.23 was certified. It is stated that Siddappa sold his share to the extent of 3 acres to the purchaser - Mallikarjun due to his financial difficulties and the purchaser purchased the -5- NC: 2023:KHC-K:6598 RSA No.200358 of 2017 C/W RSA No.200357 of 2017 property through a registered sale deed 07.01.2008 for a valuable consideration of Rs.93,000/- and he is a bona fide purchaser.
7. The plaintiff in O.S.No.262/2008, Gourabai contended that she is the absolute owner of the suit schedule property as the suit schedule property is inherited from her father Shivappa and on his death, Channawwa-the mother of Gourabai and Balawwa became the absolute owner of the said property and she died leaving behind two daughters namely Gourabai - defendant and Balawwa as the owners of the property and the mutation entry came to be effected. Thereafter, Balawwa died issueless and the suit property was the Stridhana property, by way of succession to Balawwa and since Balawwa died issueless, after her death, the property reverts back to the parental descendants and the defendant - Gourabai has become the absolute owner of the suit schedule property and Siddappa has no right, title or interest over the suit schedule property, to create a sale -6- NC: 2023:KHC-K:6598 RSA No.200358 of 2017 C/W RSA No.200357 of 2017 deed in favour of said Mallikarjun and the said sale deed is without the knowledge of the said Gourabai and as such, the suit for declaration and permanent injunction against Siddappa and Mallikarjun.
8. The defendant- Gourabai in O.S.No.91/2009 and defendants - Siddappa and Malliarjun in O.S.No.262/2008 resisted the claims by filing written statement.
9. The trial Court on the basis of the pleadings, framed the following issues in both the suits:
"Issues framed in O.S.No.91/2009:
1. Whether the plaintiff proves that, he is the owner of suit property by virtue of the sale deed dated -1-2008?
2. Whether the plaintiff proves that, the defendant without any right or interest is trespassing into the suit land, trying to cut the valuable trees and bushes and thereby causing obstruction to the plaintiff's lawful possession of the suit land?-7-
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3. Whether the defendant proves that, she is the only sole owner to the suit land bearing Bl.No.84 measuring 6 acres 22 gunthas as it is Stridhan property of her mother?
4. Whether the defendant proves that, the suit of the plaintiff is not maintainable as there are already O.S.No.12/08 and O.S.No.262/08 are pending?
5. Whether the defendant proves that, suit of the plaintiff is bad for non-joinder of necessary parties?
6. Whether the plaintiff is entitled for the relief of declaration and injunction as prayed for? Issues framed in O.S.No.262/2008:
1. Whether the plaintiff proves that, she is the absolute owner of the suit property?
2. Whether the plaintiff further proves that, suit property is the Stridhan property of her mother Channawwa?
3. Whether the plaintiff proves that, she is in lawful possession and enjoyment of the suit property?
4. Whether the defendant No.2 proves that, he is the bonafide purchaser of suit property to the extent of 3 acre of northern portion? -8-
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5. Whether the plaintiff is entitled for the relief of declaration and injunction as prayed for?
10. In order to substantiate their case, plaintiff in O.S.No.91/2009 the purchaser - Mallikarjun examined himself as P.W.1 and got marked documents at Exs.P-1 to P-6. Defendant in O.S.No.91/2009 (plaintiff in O.S. No.262/2008) examined herself as D.W.1 and produced documents at Exs.D-1 to D-19.
11. The trial Court, on the basis of the pleadings, oral and documentary evidence by the common judgment and decree held that the plaintiff in O.S.No.91/2009 Mallikarjun has failed to prove that he is the absolute owner of the suit schedule property by way of registered sale deed and held that the plaintiff Gourabai in O.S.No.262/2008 is the absolute owner of the suit schedule property, having fallen to her share as the suit schedule property is the Stridhana property and the plaintiff in O.S.No.91/2009 has failed to prove that he is a bona fide purchaser for a valuable consideration to the -9- NC: 2023:KHC-K:6598 RSA No.200358 of 2017 C/W RSA No.200357 of 2017 extent of 3 acres of land and dismissed the suit filed by the purchaser in O.S.No.91/2009 and decreed O.S.No.262/2008. Aggrieved by the judgment and decree of the Trial Court in both the suits, Mallikarjun-plaintiff in O.S.No.91/2009 preferred regular appeals before the first Appellate Court.
12. The first appellate Court on re-appreciation of the entire material on record, concurred with the findings of the Trial Court. Aggrieved by the concurrent findings of the Courts below, the present second appeals by the purchaser.
13. Heard Sri Ananth S. Jagirdar, learned counsel for the appellant in both the appeals, Sri Shivakumar Kalloor, learned counsel for the respondent in RSA No.200358/2017 and Sri Ajay Kumar A.K., learned counsel appearing for the respondent in RSA No.200357/2017.
14. Learned counsel for the appellant - purchaser would contend that:
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NC: 2023:KHC-K:6598 RSA No.200358 of 2017 C/W RSA No.200357 of 2017 i. The appellant is the bona fide purchaser for a valuable consideration having purchased the property from Siddappa. It is stated that on the death of Balawwa on 10.08.2004, the name of her husband Siddappa was mutated and on the basis of the partition between Gourabai and Siddappa and that the appellant being a bona fide purchaser, could only enquire based on the long standing revenue records and possession. ii. The trial Court and the first appellate Court have not taken into consideration the contention of the appellant that he is the bona fide purchaser and seeks for protection under Section 41 of the Transfer of Property Act, 1882.
iii. In the aforesaid facts and circumstances of the case, the learned counsel would contend that there arises substantial questions of law for consideration in these appeals.
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15. Per contra, learned counsel appearing on behalf of Gourabai - plaintiff in O.S.No.262/2008 would justify the judgment and decree of the Courts below and would contend that the trial Court and the first appellate Court have rightly held that the Gourabai would succeed to the suit schedule property in light of Section 15(2)(a) of the Hindu Succession Act, 1956. Learned counsel would further contend that the contention raised by the appellant that the protection needs to be accorded under Section 41 of the Transfer of Property Act, 1882 would not be sustainable, having not raised the said ground in the written statement or in the plaint, and the appellant cannot raise the said contention for the first time in the second appeal. On these grounds, the learned counsel for the respondent sought to dismiss the appeals filed by the appellants and would contend that there arises no substantial question of law to be dealt with, under Section 100 CPC in these appeals.
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16. Having heard the learned counsel for the parties, this Court has carefully considered the rival contentions urged by the learned counsel for the parties and perused the entire material on record.
17. The undisputed facts are that:
i. Sy.No.84/1measuring 6 acres 22 guntas was originally owned by Shivappa Basappa Harijan father of Gourabai and Balawwa. Shivappa expired on 17.03.1952 leaving behind his wife Channawwa who became the absolute owner of the said property and her name was entered in the revenue records as per ME No.255.
ii. Channawwa died on 5.2.1965 leaving behind her two daughters namely, Gourabai and Balawwa. Accordingly, the names of daughters were mutated as per MR.No.755.
iii. The said Balawwa died issueless leaving behind her husband Siddappa.
iv. Subsequently, Siddappa appears to have sold the property to the appellant Mallikarjun by way of
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NC: 2023:KHC-K:6598 RSA No.200358 of 2017 C/W RSA No.200357 of 2017 registered sale deed to the extent of 3 acres of land and there were revenue proceedings initiated.
v. Mallikarjun purchased the suit property under registered sale deed dated 07.01.2008 for a sale consideration of Rs.93,000/- and contended that he is a bona fide purchaser.
vi. Suit property was the Stridhana property of Balawwa having succeeded by way of succession and since she died issueless, after her death, property reverts back to the parental descendants as per Section 15(2)(a) of the Hindu Succession Act.
18. In light of the said facts, the proposition of law needs to be considered. Section 15 of the Hindu Succession Act reads as under:
"S.15. General rules of succession in the case of female Hindus.--(1) The property of a female Hindu dying intestate shall devolve according to the rules set out in section 16,-
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(a) firstly, upon the sons and the daughters (including the children of any pre-deceased son or daughter) and the husband;
(b) secondly, upon the heirs of the husband; (c) thirdly, upon the mother and father;
(d) fourthly, upon the heirs of the father; and date in
(e) lastly, upon the heirs of the mother. (2) Notwithstanding anything contained in sub-
section (1),-
(a) any property inherited by a female Hindu from her father or mother shall devolve, in the absence of any son or daughter of the deceased (including the children of any pre-
deceased son or daughter) not upon the other heirs referred to in sub-section (1) in the order specified therein, but upon the heirs of the father, and
(b) any son or (b) any property inherited by a female Hindu from her husband or from her father-in-law shall devolve, in the absence of a daughter of the deceased (including the children of any pre- deceased son or daughter) not upon the other heirs referred to in sub-
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NC: 2023:KHC-K:6598 RSA No.200358 of 2017 C/W RSA No.200357 of 2017 section (1) in the order specified therein, but upon the heirs of the husband."
19. The section groups the heirs of a female intestate into five categories as Entries (a) to (e) as specified in sub-section (1). Sub-section (1), however, is not a complete statement of the law. Two exceptions both of the same nature are engrafted by sub-section (2) on the otherwise uniform order of succession prescribed by sub-section (1). Broadly stated, the two exceptions are that if the female dies without leaving any issue, then:
(1) in respect of property inherited by her from her father or mother, that property will devolve not according to the order laid down in the five Entries, but upon the heirs of the father; and (2) in respect of property inherited by her from her husband or father- in-law, it will devolve not according to the order laid down in the five Entries but upon the heirs of the husband.
Where, therefore, a Hindu female dies leaving behind property inherited from her parents, and she has children
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NC: 2023:KHC-K:6598 RSA No.200358 of 2017 C/W RSA No.200357 of 2017 and her husband is also alive, such property will devolve upon the children and the husband.
20. The effect of the rules laid down in the section is that the property of a female intestate will devolve as summarized in the following propositions:
(i) The general order of succession laid down in entries (a) to (e) in sub-section (1) applies to all properties of a female intestate, however, acquired except in the case inherited by her from her father, mother, husband or father-in-law.
(ii) In case of a female intestate leaving a son or a daughter, or a child of a pre-deceased son or of a pre-
deceased daughter, that is leaving any issue, all her properties, however, acquired devolves on such issue regardless of the source of acquisition of the property and such issue takes the property simultaneously, and if the husband of the intestate is alive, they take simultaneously with him in accordance with Entry (a). In such a case, sub-section (2) does not at all come into operation.
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(iii) If in case of a female intestate dying without issue, but leaving her husband, the husband will take her property, except property inherited by her from her father or mother which will revert to the heirs of the father in existence at the time of her death.
(iv) In case of a female intestate dying without issue, property inherited by her from her husband or father-in-law, the husband being dead will go to the heirs of the husband and not in accordance with the general order or succession laid down in sub-section(1)
(v) In case of a female intestate dying without issue, property inherited by her from her father or mother will revert to the heirs of the father in existence at the time of her death and not in accordance with the general order of succession laid down in sub-section(1).
21. The clear reading of the said section enumerates that Gourabai being the sole legal heir of her father on death of Balawwa, would be entitled for the property left behind by Balawwa and accordingly, Goura
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NC: 2023:KHC-K:6598 RSA No.200358 of 2017 C/W RSA No.200357 of 2017 Bai would become absolute owner of the suit schedule property, since Balawwa acquired the property from her father being her Stridhana property and she died issueless. The Apex Court in the case of V.Dandapani Chettiar vs. Balasubramanian Chettiar (Dead) By L.Rs. and Ors.1 at para Nos.9, 10 11 and 17 has held as under:
"9. The above section propounds a definite and uniform scheme of succession to the property of a female Hindu who dies intestate after the commencement of the Act. This section groups the heirs of a female intestate into five categories described as Entries (a) to (e) and specified in sub- section (1). Two exceptions both of the same nature are engrafted by sub-section(2) on the otherwise uniform order of succession prescribed by sub- section (1). The two exceptions are that if the female dies without leaving any issue, then (1) in respect of property inherited by her from her father or mother, that property will devolve not according to the order laid down in the five Entries (a) to (e), but upon the heirs of the father; and (2) in respect of property inherited by her from her husband or 1 (2003)6 SCC 633
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NC: 2023:KHC-K:6598 RSA No.200358 of 2017 C/W RSA No.200357 of 2017 father-in-law it will devolve not according to the order laid down in the five Entries (a) to (e) of sub- section (1) but upon the heirs of the husband. The two exceptions mentioned above are confined to property 'inherited' from the father, mother, husband and father-in-law of the female Hindu and do not affect property acquired by her by gift or by device under a Will of any of them. The present Section 15 has to be read in conjunction with Section 16 which evolves a new and uniform order of succession to her property and regulates the manner of its distribution. In other words, the order of succession in case of property inherited by her from her father or mother, its operation is confined to the case of dying without leaving a son, a daughter or a children of any pre-deceased son or daughter.
10. Sub-section (2) of Section 15 carves out an exception in case of a female dying intestate without leaving son, daughter or children of a pre- deceased son or daughter. In such a case, the rule prescribed is to find out the source from which she has inherited the property. If it is inherited from her father or mother, it would devolve as prescribed under Section 15(2) (a). If it is inherited by her from her husband or father-in-law, it would devolve upon the heirs of her husband under Section 15(2)(b). The clause enacts that in a case where the property is
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NC: 2023:KHC-K:6598 RSA No.200358 of 2017 C/W RSA No.200357 of 2017 inherited by a female from her father or mother, it would devolve not upon the other heirs, but upon the heirs of her father. This would mean that if there is no son 01 daughter including the children of any pre- deceased son or daughter, then the property would devolve upon the heirs of her father. Result would be
- if property is inherited by a female from her father or her mother, neither her husband or his heirs would get such property, but it would revert back to the heirs of her father.
11. In the present case, it is not disputed that Rajathiammal died intestate without leaving any son or daughter or children of pre-deceased son or daughter. Hence, the property would devolve on the heirs of her father. It is contended that she got the property because of the compromise decree and, therefore, the property is not inherited by her from her father or mother. This submission, in our view, is without any substance. She was daughter of Sivabagyammal and, therefore, she was entitled to inherit the property of her maternal grandmother as her mother had expired. As some dispute was raised by the other heirs, a suit was filed. In that suit, rights of Rajathiammal were recognized and compromise decree was passed in her favour. Result is - she got the property as daughter of her mother. That means, she got the property not from her husband or father-in-law, but from her mother side.
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NC: 2023:KHC-K:6598 RSA No.200358 of 2017 C/W RSA No.200357 of 2017 In that state of affairs, the heirs of her father, that is, heirs of S.V. Venugopala Chettiar would be entitled to inherit her property in view of Section 15(2)(a) of the Act.
xxxx
17. It will be seen from the facts of the present case that Rajathiammal had inherited the property from her mother, the section applicable will be Section 15(2) of the Act, according to which the properties will go to the heirs of her father and, therefore, the plaintiff/appellant and defendants 2- 9/respondents 2-9 who are the sons and daughters of Rajathiammal's father, Venugopal Chettiar, through his third wife Nagalakshmi would be entitled to the suit properties. Therefore, the case put forward by the first defendant and other contesting defendants that Rajathiammal inherited the properties not from her mother but also from her grand-mother and great grand-mother, and, therefore, Section 15(1) of the Act would only apply cannot at all be countenanced."
22. The latest judgment of the Apex Court in the case of Arunachala Gounder (Dead) By Legal
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NC: 2023:KHC-K:6598 RSA No.200358 of 2017 C/W RSA No.200357 of 2017 Representatives vs. Ponnusamy & Ors.2 at para Nos.75, 76 and 77 has held as under:
"75. The scheme of sub-Section (1) of Section 15 goes to show that property of Hindu females dying intestate is to devolve on her own heirs, the list whereof is enumerated in Clauses (a) to (e) of Section 15 (1). Sub- Section (2) of Section 15 carves out exceptions only with regard to property acquired through inheritance and further, the exception is confined to the property inherited by a Hindu female either from her father or mother, or from her husband, or from her father-in-law. The exceptions carved out by sub-Section (2) shall operate only in the event of the Hindu female dies without leaving any direct heirs, i.e., her son or daughter or children of the pre-deceased son or daughter.
76. Thus, if a female Hindu dies intestate without leaving any issue, then the property inherited by her from her father or mother would go to the heirs of her father whereas the property inherited from her husband or father-in-law would go to the heirs of the husband. In case, a female Hindu dies leaving behind her husband or any issue, then Section 15(1)(a) comes into operation and the properties left behind including the properties which 2 (2012)11 SCC 520
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NC: 2023:KHC-K:6598 RSA No.200358 of 2017 C/W RSA No.200357 of 2017 she inherited from her parents would devolve simultaneously upon her husband and her issues as provided in Section 15(1)(a) of the Act.
77. The basic aim of the legislature in enacting Section 15(2) is to ensure that inherited property of a female Hindu dying issueless and intestate, goes back to the source."
23. The Apex Court has clearly laid down the basic aim of the legislature in enacting Section 15(2) of the Act, held is to ensure that the inherited property of a female Hindu dying issueless and intestate goes back to the source and thus, this Court has no other view than the view taken by the Courts below that the plaintiff in O.S.No.262/2009 namely Goura Bai would become the absolute owner of the suit schedule property.
24. The other contention of the purchaser is that he has to be protected under Section 41 of the Transfer of Property Act, 1882. Meaning of an ostensible owner according to the transfer of property Act, 1882 is, when a person acts on the express or implied consent of a person who is interested in the immovable property, the person
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NC: 2023:KHC-K:6598 RSA No.200358 of 2017 C/W RSA No.200357 of 2017 who acts on such consent is an ostensible owner of the property. For example, "A" wants a property in India, he authorizes "B" to perform all rights of ownership relating to the property and leaves for U.K. "B" will be an ostensible owner of such property and all the acts done by him will be considered as the acts of "A".
25. To use Section 41 of the TP Act, one must need the following specific pre-requisites.
(i) Fundamental criteria is that the individual transferring the property must be an ostensible owner.
(ii) The actual onus consent, which might be implied or expressed is necessary.
(iii) In exchange for the property, the ostensible owner must be compensated.
(iv) Transferee must use reasonable caution over the transferor's power over the property and whether transferee acted with bona fide intention.
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(v) It is relevant to note that the ostensible owner is not a real owner. The real owner's consent is essential for ostensible ownership.
26. Reverting to the facts of this case, the appellant is the purchaser from the husband of the deceased - Balawwa, cannot be held to be ostensible owner since the consent of the real owner in the present case is lacking. As Balawwa the wife of the said Siddappa was not alive nor the Gourabai consented whether implied or express which is an essential criteria to invoke Section 41. To invoke section 41 of the TP Act, one has to show that he took reasonable protection to protect his interest and he has to specifically plead that the transferor was an ostensible owner of the property. On terms of Section 41 of the TP Act not only ostensible owner should be such with consent express or implied of the real owner, but the transfer by the ostensible owner should also be with the consent of
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NC: 2023:KHC-K:6598 RSA No.200358 of 2017 C/W RSA No.200357 of 2017 the real owner as held in the case of Hardev Singh vs. Gurumail Singh(Dead)3.
27. It may be noted that though the purchaser pleaded before this Court that he is a bona fide purchaser for a value and the protection needs to be accorded under Section 41 of TP Act, he has not pleaded that he believed Siddappa as the absolute owner or the title owner on the suit land on account of the fact that his name appears in the revenue records on the death of Balawwa by way of wardi, which was contested by Goura Bai, in other words, no way purchaser pleaded that he took Siddappa as an ostensible owner of the suit land to invoke Section 41 of the TP Act and a new case cannot be made out by the purchaser as he has not taken such a contention in his pleadings. The purchaser has not specifically pleaded that Siddappa was an ostensible owner and in the absence of such contention, the plea of ostensible owner, the applicability of protection available under Section 41 of 3 (2007)2 SCC 404
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NC: 2023:KHC-K:6598 RSA No.200358 of 2017 C/W RSA No.200357 of 2017 the TP Act is not available to the purchasers. Moreover, the mutation entry in the name of Siddappa is not evidenced by a registered document and thus the purchaser on basis of mutation entry cannot contend that requisite enquiry was made prior to purchase, to hold him as a bona fide purchaser.
28. For the foregoing reasons, this Court is not convinced with the arguments addressed by the appellant. The trial Court and the first appellate Court have considerably with the proposition of law have rightly held that Goura Bai is the absolute owner of the suit schedule property and the purchaser - Mallikarjun is not a bona fide purchaser for a valuable consideration. The manner in which the Courts below have considered the entire evidence and the proposition of law this Court is of the considered view that there cannot be another view that can be expressed by this Court and no substantial question of law arises for consideration in the present
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NC: 2023:KHC-K:6598 RSA No.200358 of 2017 C/W RSA No.200357 of 2017 appeal to be dealt with under Section 100 CPC and accordingly, this Court pass the following:
ORDER
(i) The regular second appeals are hereby dismissed.
(ii) The judgment and decrees of the Courts below stand confirmed.
(iii) No order as to costs.
I.A.No.1/2019 for stay pending in connected appeal does not survive for consideration. Accordingly, the same stands disposed of.
Sd/-
JUDGE RSP/BL CT: NS List No.: 1 Sl No.: 60