Karnataka High Court
Sri V S Manjunatha vs Smt V N Manjula on 14 October, 2020
Author: Jyoti Mulimani
Bench: Jyoti Mulimani
1
R
IN THE HIGH COURT OF KARNATAKA BENGALURU
DATED THIS THE 14th DAY OF OCTOBER, 2020
BEFORE
THE HON'BLE MS. JUSTICE JYOTI MULIMANI
REGULAR SECOND APPEAL NO.2290 OF 2012 (PAR/RES)
BETWEEN:
SRI V.S.MANJUNATHA
S/O.SRIRAMEGOWDA
AGED ABOUT 38 YEARS
R/O.VELAGALABURRE VILLAGE
SUGUTUR HOBLI, KOLAR TALUK
KOLAR DISTRICT - 563 101.
...APPELLANT
(BY SRI R.BHADRINATH, ADVOCATE)
AND:
1. SMT.V.N.MANJULA
D/O A.NARAYANA GOWDA
W/O MUNINARAYANASWAMY
AGED ABOUT 30 YEARS
R/O VELAGALABURRE VILLAGE
SUGUTUR HOBLI, KOLAR TALUK
KOLAR DISTRICT - 563 101.
2. SRI.NARAYANAGOWDA
S/O.ANKATHATTI NARAYANAPPA
AGED ABOUT 74 YEARS
3. SRI.PRASAD
S/O.A.NARAYANAGOWDA
AGED ABOUT 22 YEARS
2
REPRESENTED BY HIS FATHER
RESPONDENTS NO.2 AND 3
ARE RESIDING AT VELAGALABURRE VILLAGE
SUGUTUR HOBLI, KOLAR TALUK
KOLAR DISTRICT - 563 101.
... RESPONDENTS
(BY SRI S.VISWESWARAIAH, ADVOCATE FOR R1;
R2 AND R3 ARE SERVED)
THIS REGULAR SECOND APPEAL IS FILED UNDER
SECTION 100 OF CPC, AGAINST THE JUDGMENT AND
DECREE DATED 25.09.2012 PASSED BY THE PRINCIPAL
SENIOR CIVIL JUDGE AND CJM, KOLAR IN
R.A.NO.29/2011, CONFIRMING THE JUDGMENT AND
DECREE DATED 14.12.2010 PASSED BY THE I
ADDITIONAL CIVIL JUDGE, KOLAR IN O.S.NO.18/2008.
THIS REGULAR SECOND APPEAL COMING ON FOR
ADMISSION THIS DAY, THE COURT DELIVERED THE
FOLLOWING:
JUDGMENT
Sri.R.Bhadrinath, learned counsel for appellant has appeared through video conferencing. Sri.Visweswaraiah, learned counsel for respondent No.1 has appeared in-person.
Appeal is posted for admission after service of notice to respondents.
3
Appeal is from the Court of Principal Senior Civil Judge and CJM at Kolar, confirming the judgment and decree of the I Additional Civil Judge at Kolar.
2. The events out of which the present dispute between plaintiff and defendants arose may be shortly stated. Plaintiff is the daughter of defendant No.1 through his first wife Smt.Bychamma. Defendant No.2 is the minor son of defendant No.1, through his second wife - Smt.Lakshmidevamma. He is under the care and custody of his father - defendant No.1 and is represented by his natural guardian father. Defendant No.3 is the purchaser of the suit schedule property.
It is stated that plaintiff resided with her husband at Yelagalaburre village and there was no cordial relationship between plaintiff and defendant Nos.1 and 2. Plaintiff's mother, Smt.Bychamma was the absolute owner in possession of the suit schedule property as it was her self-acquired property. Smt.Bychamma died intestate. 4 Plaintiff and defendant No.1 being her legal heirs have succeeded to the suit schedule property.
It is averred that defendant No.1 was not in cordial relationship with the plaintiff. Defendant No.1 without the knowledge of plaintiff got the Khatha of the suit schedule property changed to his name and sold the same in favour of defendant No.3 by executing a registered sale deed on 26.10.2007. Defendant No.2 the minor son though has no right, title or interest over the suit schedule property is also a party to the said sale deed. Contending that she has got half share in the suit schedule property, plaintiff brought action seeking partition and separate possession of the suit schedule property.
In response to the summons, defendants 1 and 2 remained absent and were placed ex parte. Defendant No.3 appeared through his counsel and filed written statement. He admitted that plaintiff is the daughter of defendant No.1 through his first wife Smt.Bychamma and defendant No.2 is the son of defendant No.1 through his 5 second wife Smt.Lakshidevamma. It has also been admitted that defendant No.2 is under the care and custody of his father defendant No.1. Defendant admitted that Smt.Bychamma was the absolute owner of the suit schedule property.
He stated that defendant No.1 sold the suit schedule property in his favour to discharge the debt incurred for the marriage of his daughter-plaintiff. It is also averred that defendant No.1 has sold the suit schedule property as the karta of the family for the benefit of the family. Therefore, he contended that plaintiff is bound by the sale deed. Accordingly, prayed for dismissal of the suit.
On the basis of the above pleadings, the trial Court has framed the following issues: -
"1. Whether the 1st defendant was not the absolute owner of the suit schedule property and so he could not executed the sale deed in favor of 3rd defendant?
2. Whether the 3rd defendant proves that the sale was made in his favour by the 1st defendant to meet the family 6 necessities and to discharge debt as stated in para 5 of the statement?
3. Whether the plaintiff is entitled for partition and separate possession of ½ share in the suit schedule property?
4. What order or decree?"
To substantiate the claim, plaintiff got examined herself as PW-1 and produced eight documents which were marked as Exs.P1 to P8. Defendant No.3 examined himself as DW-1 and two more witnesses were examined as DWs-2 and 3 and produced three documents which were marked as Exs. D1 to D3.
On the trial of the action, the suit came to be decreed holding that plaintiff is entitled for half share in the suit schedule property. Aggrieved by the said judgment and decree, defendant No.3 preferred regular appeal. On appeal, learned Judge confirmed the judgment and decree of the trial Court. Hence, this regular second appeal is filed under Section 100 of Code of Civil Procedure, 1908.
7
3. Sri.R.Bhadrinath, learned counsel for appellant submitted that the judgment and decree of both the Courts below are contrary to the law and evidence on record. He submitted that both the Courts below failed to consider that defendant No.3 is the purchaser of the suit schedule property under the registered sale deed dated 26.10.2007.
It has been contended that both the Courts below failed to consider that the sale was for the legal necessity and for the benefit of the family. Plaintiff being the daughter of defendant No.1 is bound by the sale deed as the sale consideration has been utilized for the benefit of the family. Counsel vehemently contended that both the Courts below have erred in not considering the said important factum of law and has erroneously proceeded to decree the suit.
Counsel submitted that the trial Court has relied upon the oral evidence of PW-1 and thereby, erroneously decreed the suit holding that plaintiff is entitled for half share in the suit schedule property.
8
He further submitted that First Appellate Court has committed an error that the evidence of PW-1 is corroborative and cogent with respect to the sale made in favor of defendant No.3 in respect of suit schedule property, which in fact is in consonance with the provisions of the Hindu Succession Act, 1956 (for short 'the Act').
Learned counsel submitted that the findings on the issues has to be preceded by reasons of both facts and law, on appreciation of relevant evidence produced by the respective parties to the suit.
Lastly, counsel contended that suit is not maintainable as defendant No.2 was a minor and no application was filed for the appointment of guardian. Therefore, he submitted that the second appeal involves substantial question of law. Accordingly, he submitted that the appeal may be admitted by framing substantial question of law.
4. Per contra, Sri.S.Visweswaraiah, learned counsel appearing for plaintiff submitted that both the 9 Courts below have considered the matter in the right perspective and there is no justification to interfere with the concurrent finding of fact. He submitted that both the Courts have justified in decreeing the suit.
A further submission was made that admittedly plaintiffs' mother, Smt.Bychamma was the original owner of the property. The suit schedule property was her self- acquired property. Smt.Bychamma died intestate. As per Section 15 of the Hindu Succession Act 1956, both plaintiff and defendant No.1 are equally entitled for share in the property. Taking note of the same, both the Courts below justified in holding that plaintiff is entitled for half share in the suit schedule property.
He submitted that defendant No.1 had no absolute right to sell the suit schedule property, in favor of defendant No.3, hence, the sale deed is not binding on plaintiff. Counsel therefore, contended that the trial Court is justified in holding that the suit schedule property was the self-acquired property of Smt.Bychamma and plaintiff 10 and defendant No.1 being her legal heirs are equally entitled for half share each in the suit schedule property. The First Appellate Court has re-appreciated the matter in right perspective.
Insofar as the contention with regard to application under Order 32 CPC is concerned, learned counsel submitted that the same is not applicable to the facts and circumstances of the present case. Accordingly, he submitted that the second appeal does not involve any substantial question of law. The same is liable to be dismissed at the stage of admission.
5. Heard the submissions and noted the contentions with care.
The facts have been sufficiently stated. As could be seen from the nature of lis between the parties, plaintiff filed simple suit for partition and separate possession contending that her mother - Smt.Bychamma was the absolute owner in possession of the suit schedule property, 11 she died intestate. Plaintiff being the daughter is entitled for half share in the suit schedule property. For the sake of convenience, the genealogical tree is shown as under.
Genealogical tree
Sri. A. Narayana Gowda
(Defendant No.1)
Smt. Bychamma Smt.Lakshmidevamma
(First wife) (Second wife)
Smt.Manjula Prasad (Minor son)
(Daughter) Defendant No.2
Plaintiff
Sri. V.S.Manjunatha
(Purchaser)
Defendant No.3
As far as relationship of the parties is concerned, there is no dispute. Plaintiff is the daughter of defendant No.1 through his first wife - Smt.Bychamma. Defendant No.2 is the minor son of defendant No.1 through his 12 second wife - Smt.Lakshmidevamma. He has been represented by his natural guardian father-defendant No.1. There is no controversy that the suit schedule property is the self-acquired property of Smt.Bychamma.
Plaintiff submitted that defendant Nos. 1 and 2 have sold the suit schedule property in favor of defendant No.3. She has further contended there was no necessity much less legal necessity to deal with the suit schedule property. Plaintiff specifically averred that defendant No.1 had no absolute right and defendant No.2 absolutely has no right, title and interest over the suit schedule property to alienate the property in favor of defendant No.3.
On the contrary, defendant No.3 contended that, defendant No.1 sold the property for legal necessity. In fact, it has been specifically urged that defendant No.1 had incurred expenses for the marriage of his daughter- plaintiff. To substantiate his contention, defendant No.3 produced Ex. P-3 the sale deed dated 26.10.2007. 13 The recital of the sale deed reads as under:
"PÀæªÀĪÉãÉAzÀgÉ: DzÁV EzÀgÀr µÉqÀÆå¯ï£À°è £ÀªÀÄÆzÀÄ ªÀiÁrgÀĪÀ ¸ÀévÀÄÛ £À£Àß ¸ÀéAvÀ ¸Áé¢Ã£Á£ÀĨsÀªÀPÉÌ M¼À¥ÀnÖgÀĪÀ µÉqÀÆå¯ï ¸ÀévÀÛ£ÀÄß F ¢£ÀzÀ £À£Àß UÀȺÀPÀÈvÀå C¤ªÁgÀå RZÀÄðUÁV dgÀÆgÀÄ ºÀt ¨ÉÃPÁVgÀĪÀÅzÀjAzÀ £À£Àß ¨Á§vÀÄÛ ¢¤ªÀÄUÉ F PɼÀUÉ µÉqÀÆå¯ï£À°è «ªÀj¹gÀĪÀ ¸ÀévÀÛ£ÀÄß FV£À ªÀiÁgÀÄPÀmÉÖ ¨É¯ÉUÉ C£ÀĸÁgÀªÁV UË£ÀðªÉÄAmï ZÀ¯ÁªÀuÉ gÀÆ 47,000-00 (£À®ªÀvÉÛüÀÄ ¸Á«gÀ) gÀÆ¥Á¬ÄUÀ½UÉ ±ÀÄzÀÞ PÀæAiÀÄPÉÌ PÉÆlÄÖ PÀæAiÀÄzÀ ªÉƧ®UÀÆ ¥ÀÆgÁ ºÀtªÀ£ÀÄß F ¢£À F PɼÀPÀAqÀ ¸ÁQëUÀ¼À ªÉÆPÀÛ £Á£ÀÄ ¤«ÄäAzÀ £ÀUÀzÁV ¥ÀqÉzÀÄPÉÆArgÀÄvÉÛãÉ."
As could be seen from the recitals, it is found that defendant No.1 has not sold the suit schedule property for the expenses incurred for the marriage of his daughter plaintiff.
In this Court, defendant No.3 adhered to the contention that his vendor sold the property for legal necessity to discharge the marriage expenses of his daughter and therefore, sought to urge that the sale deed is binding on plaintiff. I find myself unable to accept this contention. The question of legal necessity does not arise 14 in the present case as the property is the absolute property of plaintiffs' mother Smt.Bychamma. Therefore, it is hopeless to contend that the sale was for legal necessity.
There is no controversy that plaintiff's mother Smt. Bychamma was the absolute owner of the suit schedule property. Plaintiff being the daughter is entitled for half share in the property. Therefore, I would observe that defendant No.1 had no absolute right to alienate the suit schedule property. Hence, the alienation is not binding on plaintiff.
The next question to be determined is whether learned Judges justified in holding that plaintiff is entitled for half share in the suit schedule property.
To answer the same, it would be relevant to refer to Section 15 of The Hindu Succession Act, 1956. Section 15 of the Act reads as under.
15
"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, ―
(a) firstly, upon the sons and 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
(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 property inherited by a female Hindu from her husband or from her father-in-law 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 husband."
On a bare perusal of the Section, it is clear that the property of a female Hindu dying intestate shall devolve firstly, upon sons, daughters and the husband. 16
In the present case, plaintiff's mother - Smt. Bychamma died intestate leaving behind plaintiff and defendant No.1 as her legal heirs. It is not in dispute that Smt.Bychamma was the absolute owner of the suit schedule property. Therefore, the property of Smt.Bychamma shall devolve upon plaintiff and defendant No.1 equally.
Plaintiff being the daughter of Smt.Bychamma is entitled for half share in the suit schedule property. Hence, the trial Court decreed the suit holding that the plaintiff is entitled for the half share in the suit schedule property. On appeal, the First Appellate Court has confirmed the judgment and decree. Therefore, I find at appropriate to confirm the judgment and decree of the Courts below.
In this Court, Sri.Bhadrinath, counsel appearing on behalf of defendant No.3, on reference to the various provisions of Order 32 of the Code of Civil Procedure, 1908, advanced an argument that the suit is not 17 maintainable. Learned counsel, in particular, referred to the provisions contained in Rule 3 of Order 32 of CPC. He submitted that Rule 3 (3) lays down that where the defendant is a minor, the Court, on being satisfied of the fact of his minority, shall appoint a proper person to be guardian for the suit for such minor. Learned counsel, urged that the trial Court failed to appoint a proper person to be the guardian of the minor - defendant No.2 for the suit.
I have considered the contention urged on behalf of defendant No.3 with care. It is true that where the defendant is a minor, the Court on being satisfied of the fact of his minority shall appoint a proper person to be guardian for the suit for the minor.
There is no controversy that Rule 3 provides for the mandatory requirement on the part of a Court to make preliminary inquiry and ascertain thereby, the question whether the defendant is a minor or a person of unsound 18 mind, or one suffering from mental infirmity rendering him incapable of protecting his rights.
The Court plays the role of locus parentis to citizens who suffer from infirmity, mental or otherwise. It is the duty of the Judge himself to decide who is the proper person to be appointed as guardian ad litem.
If these provisions /principles are applicable in this case, a similar result, no doubt, would follow, but the question is: Are they applicable? With all respect to learned counsel, my view is that, on the facts, they plainly are not. To make good that conclusion, I will turn to the facts of the case.
The suit was principally brought against father - defendant No.1. Defendant No.2 was impleaded in the suit by abundant caution since, he was a party to the sale deed. In the plaint, however, which was admitted by the Court, the father of the minor was described as his guardian. After issue of suit summons, defendants 1 and 2 have remained absent and were placed ex parte. 19
There is no controversy that Smt.Bychamma was absolute owner of the suit schedule property. She died intestate and, on her death, plaintiff and defendant No.1 being her legal heirs are entitled for half share in the suit schedule property. I have already expressed my view that Defendant No.2 is the minor son of defendant No.1, through his second wife - Smt.Lakshmidevamma has no right, title and interest in the suit schedule property.
Bearing that in mind, let me see whether any prejudiced has been caused to the minor? In the present case, there is nothing in the proceedings of the suit to suggest that the interests of the minor is prejudiced. I can say only this much that no prejudice has resulted / caused to defendant No.2, since has no right, title or interest in the property of Smt.Bychamma, the mother of plaintiff. I am unable to think that the case could be brought under the provisions of Order 32 Rule 3 of Civil Procedure Code, 1908. I do not think that it would serve any useful purpose.
20
It is to be observed that counsel for defendant No.3 (purchaser) has raised the question of ground of minority for the first time in second appeal. Defendant No.3 has not raised this question in the Courts below. I do not see really any answer to the point of ground of minority which is raised on behalf of purchaser for the first time in this court. I propose to say that the ground of minority is taken as an afterthought to resist final decree proceedings. I do not think that the law is in doubt. I can only say this much that defendant No.3 is not permitted to raise this question for the first time in this Court. It is an unfortunate result from the purchaser's point of view , and it is undoubtedly hard that this case should fail on this ground.
I find it necessary only to say this much that I am not prepared to differ from the view taken by the trial Court and by the First Appellate Court as to the question of fact. I regret the conclusion, but it seems to me inevitable. I agree therefore, with the judgment of learned Judges. 21
It is perhaps well to observe here that after 1976 amendment, the scope of Section 100 of CPC has been drastically curtailed and narrowed down. The High Court would have jurisdiction of interfering under Section 100 of CPC, only in a case where substantial question of law is involved and those questions have been clearly formulated in the Memorandum of appeal. But, the present second appeal does not involve any substantial questions of law.
6. In the result, I find no merit in this appeal and accordingly it is dismissed at the stage of admission.
Sd/-
JUDGE VM/VMB