Karnataka High Court
Sri M V Ganesha Prasad vs Sri M L Vasudeva Murthy on 6 January, 2014
Bench: K.L.Manjunath, Ravi Malimath
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IN THE HIGH COURT OF KARNATAKA AT BANGALORE
DATED THIS THE 6th DAY OF JANUARY 2014
PRESENT
THE HON'BLE MR. JUSTICE K.L.MANJUNATH
AND
THE HON'BLE MR. JUSTICE RAVI MALIMATH
R.F.A. NO.1842/2012
BETWEEN :
Sri.M.V.Ganesha Prasad,
Aged about 56 years,
S/o.Late M.L.Vasudevamurthy
Coffee Planter,
Behind "Lalitha Prasadam",
Hosamane Extension,
P.B. No.153,
Chikamagalore - 577 101. ...APPELLANT
(By Sri.M.V.Ganesh Prasad, [party-in-person])
AND :
Sri.M.L.Vasudeva Murthy,
Aged about 83 years,
S/o.Late Mysore Lachai Setty,
(since deceased) by L.Rs.
1. Smt.A.R.Kamala,
W/o.A.Ramashetty,
Aged about 73 years,
R/at No.425(428),
Srikamal, Near
Iyenger Mess,
Devamba Agrahara,
Mysore - 570 001.
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2. Smt.T.R.Sathyalakshmi,
W/o.T.R.Ramaprasad,
Aged about 59 years,
R/at No.115/1,
Sharada Prasad,
Bull Temple Road,
Nagaraja Layout,
Bangalore - 560 018.
3. Smt.A.P.Rukmini,
W/o.A.Paranjyothi,
Aged about 56 years,
R/at No.484, 1st floor,
Virupaksha Nilaya,
2nd Main Road,
4-T Block, Jayanagar,
Bangalore - 560 041.
4. Smt.B.M.Gayathri Nataraj,
Aged about 57 years,
W/o.B.M.Nataraj,
R/at No.1, Mahalakshmi
Nivas, Nazarbad Extension,
Mysore - 570 001.
5. Smt.V.Girija Srinivas,
Aged about 58 years,
W/o.V.Srinivasan,
R/at No.12,
Rajarajeshwari Krupa,
2nd Main, 4th Main Road,
Jayanagara,
Bangalore - 560 041.
6. Smt.M.V.Parvathavardhana,
W/o.Late M.L.Vasudeva Murthy,
Aged about 73 years,
Coffe Planter,
R/at Lalitha Prasadam,
Hosamane Extension,
Chikamagalore - 577 101.
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7. Sri.M.V.Chandrashekar,
S/o.Late M.L.Vasudeva Murthy,
Aged about 71 years,
R/at Siridam, 26/27,
3rd Cross, 7th Block West,
Jayanagar, Bangalore - 560 011.
8. Smt.M.V.Girija,
Aged about 58 years,
W/o.V.Srinivasan,
R/at No.12,
Rajarajeshwari Krupa,
11th Main, 33rd Cross,
4th `T' Block, Jayanagar,
Bangalore - 560 011.
9. Sri.D.Veerandra Heggade,
S/o.Ratnavarma Heggade,
Aged about 73 years,
Dharmadikari of
Sri.Manjunatha Temple,
Dharmasthala - 570 001
Dakshina Kannada District. ...RESPONDENTS
(By Sri.G.Krishna Murthy, Adv. for R9)
. . . .
This R.F.A. is filed under Section 96 read with
Order 41 Rule 1 of CPC against the Judgment and
decree dated 04.07.2012 passed in O.S.No.158/1998 on
the file of Additional Senior Civil Judge & JMFC,
Chikmagalore, dismissing the suit filed for declaration,
execution of sale deed and possession.
This R.F.A. coming on for orders, this day,
K.L.Manjunath J., delivered the following:
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JUDGMENT
The legality and correctness of the judgment and decree passed by the Additional Senior Civil judge dated 4th July, 2012 passed in O.S.No.158/1998 is called in question by the appellant, who was the plaintiff before the Trial Court.
2. Heard the learned counsel appearing for the parties.
3. For the sake of convenience, the parties would be referred to as per their status before the Trial Court.
4. The appellant-plaintiff filed a suit to declare that four gift deeds dated 23.01.1998 and 24.01.1998 executed by defendants 1 and 2 in favour of defendant No.5 are null and void and direct the defendants to convey the suit properties to the plaintiff as per the value shown in the gift deeds by putting him in possession of the property.
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5. According to the plaintiff, defendants 1 to 4 were members of the Joint Family. There was a partial partition under registered partition deed dated 28.03.1975. According to him Clause 18 of the partition provides a right of preemption. He further contends that as per the preemption clause, if anyone of the parties to the partition deed intends to sell the properties, they had to offer the property to purchase to the remaining coparcenors at the first instance and if such coparcenors are not willing to exercise the preemption clause, then only property can be alienated to any person of their choice. Defendants 1 and 2 who are not in good terms with him, in order to knock of the valuable rights given to him under the partition, they made an endeavour to execute the gift deed in favour of the 5th defendant. The 5th defendant being the Dharmadhikari of the Manjunatheswara Temple, Dharmastala, who can influence the devotees and defendants 1 and 2 being the devotees, made them to transfer the properties by way of gift or otherwise in order to overcome the preemption clause. Therefore, the -6- suit is filed by him for a declaration that he is entitled to get the sale deed registered in his name for the price stipulated under the document, for the purpose of stamp duty.
6. The 5th defendant contested the case. According to him, he has no concern to the plaintiff or the defendants 1 and 2. Defendants 1 and 2 being philanthropists, since they are devotees of Lord Manjunatheshwara of Dharmastala, the 5th defendant gifted the suit properties for construction of an Ayurvedic Clinic for the benefit of general public. Accordingly they executed a gift deed in favour of the 5th defendant and that he has not made any influence to get the properties as he is in no way concerned with the suit properties. According to him clause 18 is not properly understood by the plaintiff.
7. During the pendency of the suit, the 1st defendant died. His other legal representatives were brought on record in addition to the plaintiff and -7- defendants 3 to 4 were carried on record. Based on the above pleadings, following issues were framed:
1. Whether the plaintiff proves that suit property was H.U.F. property which was allotted to defendant No.2 in partition on 28.03.1975?
2. Whether the plaintiff proves that defendant No.1 continued as Manager of family even after partition?
3. Whether the plaintiff proves that defendant No.1 ousted him from partnership firm and wrongly enjoying the income of plaintiff?
4. Whether plaintiff proves that defendant No.1 has sold property in violation of clauses of partitions deed?
5. Whether gift deed executed by defendant No.1 in favour of defendant No.5 are in violation of clause (18) of partition deed?
6. Whether the plaintiff proves that the gift done by defendant No.1 are malafide with intention to defeat his interest and they are nominal and not acted upon?
7. Whether the plaintiff proves that the alienation done by defendant No.1 are null and void?-8-
8. Whether the plaintiff is entitled for possession of suit properties?
9. What decree or order?
Additional Issue:
"Whether defendant No.5 proves that the plaintiff, by his declaration dated 11-06- 1986, has renounced and give up his right to enforce the right of preemption?"
8. To prove their respective contentions, on behalf of the plaintiffs, three witnesses were examined. Amongst them, P.W.1 is the plaintiff. He relied upon Ex.P1 to Ex.P160. On behalf of the defendants two witnesses were examined as D.W.1 and D.W.2. A declaration dated 11.06.1986 was marked as Ex.D1. The Trial Court after appreciating the entire evidence held issues 1 and 2 in the affirmative. Issue No.3 was deleted and issues 4 to 8 were held in the negative. Ultimately, suit came to be dismissed. Challenging the correctness and legality of the judgment and decree of the Trial Court, the said appeal is filed.
9. The appellant representing himself as a party- in-person contends during the course of his arguments -9- that the Trial Court did not consider Clause 18 of the Partition deed properly. According to him, on perusal of Clause 18, except for partition among the coparcenors and their wife and children, family properties cannot be alienated in any manner known to law. According to him, gift also amounts to alienation. Clause 18 of the partition deed is wrongly interpreted by the learned Judge. Therefore, he requests this Court to reconsider Clause 18 of the partition deed and to allow the appeal.
10. Per contra, Sri.G.Krishnamurthy, learned counsel appearing for respondent No.9 submits on perusal of clause 18, that if clause 18 is properly interpreted, there is no prohibition in gifting the property. Accordingly, preemption clause is given to the plaintiff or other members of the family, only if the property is sold for a consideration in favour of any other party. According to him defendants 1 and 2, who are the parents of the plaintiff-appellant being devotees of the Manjunatheswara Temple, have gifted the property for a charitable purpose in order to establish an Ayurvedic clinic for the benefit of the general public
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and such gift cannot be considered as alienation. According to him Clause 18 of the partition deed is wrongly interpreted by the plaintiff. Therefore, he requests the Court to dismiss the appeal.
11. Having heard the learned counsel appearing for the parties, what is submitted before this Court is only in regard to the interpretation of Clause 18 and no other ground is raised by the appellant or respondents. In order to appreciate the contentions, what is required to be considered in this appeal is:
Whether gifting the property by the defendants 1 and 2 in favour of the 5th defendant is contrary to clause 18 of the partition deed?
12. Since there is no factual dispute in regard to the rights of the parties and as the appellant is only requesting this Court to consider Clause 18 of the partition deed, it would be appropriate for us to cull out clause 18 of the partition deed which reads as under:
"(18) If any of the parties to this deed wants to sell or transfer except by way of partition,
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the properties allotted to his of her share (except the 5th party to whom only cash is allowtted(sic.)), then, the parties so alienating the properties shall give to the non-alienating parties the 1st option of purchasing or in any other manner acquiring the properties. The party alienating his or her share shall send a notice by Registered post to the other parties giving two month's time to exercise their right of pre-emption, and if the other parties agree to purchase the properties, the same shall be sold or transferred at the then fair market value, to be mutually agreed to between the parties and if they do not agree to the value then the same be referred to the(sic.) setteled(sic.) by arbitration. If the non- alienating parties do not exercise their option within two months from the service of notice on them, then the non-alienating parties will forfeit their claim to the right or pre-emption mentioned above".
13. On perusal of Clause 18 of the partition deed, it is clear to us that, if any of the parties to the deed intends to sell or transfer except by way of partition, the properties allotted to his or her share, the parties so alienating the property shall give to the non-alienating
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parties the first option of purchasing or in any other manner acquiring the properties by sending a notice by registered post to other parties giving two months time to exercise their option failing which, he is at liberty to sell or transfer at the then fair market value to the third person i.e., if option is not exercised, it is open for the parties to sell the property to the person of his choice. Though the word `partition' is mentioned, the clear intention of the parties is to see that, if any one of the parties to the properties intends to sell the properties to a third party, then only option shall be given to the remaining members of the family. It can be further interpreted that for any reason, the parties or any one of the parties is interested to alienate the properties for consideration, then only, the preemption right shall be given to the other party.
14. In the present case defendants 1 and 2, who are the parents of the plaintiff have not sold the property to any third party for any consideration. They have also not alienated their share for any consideration. But what has been executed by them in
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favour of the 5th defendant is, a gift deed for charitable purpose and it has also come in the evidence that pursuant to the gift deed, the 5th defendant has already established a Public Charitable Ayurvedic Clinic, which is beneficial to the general public of Chickmagalur. When the plaintiff's parents have gifted the property for a Public Charitable purpose, it would not attract Clause 18 of the partition deed because the defendants 1 and 2 have not sold the property or alienated the property for any consideration to the 5th defendant. Therefore, we are of the view that the Trial Court is justified in holding that Clause 18 of the partition deed has not given any right to the plaintiff to challenge the gift deeds, executed not for any consideration. Considering the relationship between the defendants 1 and 2 and the 5th defendant, at no stretch of imagination, it can be said that the 5th defendant has pressurized defendants 1 and 2 to gift the property to him. The 5th defendant is not benefited out of such gift deed as he has to set up a Charitable Ayurvedic Clinic for the benefit of the general public on the plaint schedule property by investing the money of
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the Dharmastala Manjunatheswara Trust. Therefore, the contention of the plaintiff that the 5th defendant being Dharmadikari of Dharmastala Manjunatheswara Temple has influenced defendants 1 and 2 to gift the property in his favour cannot be accepted. Accordingly, we answer the point formulated by us against the appellant. We do not see any merit in this appeal. Accordingly, appeal is dismissed.
Parties to bear their own cost.
Sd/-
JUDGE Sd/-
JUDGE SPS