Karnataka High Court
Sri Sathya Narayana Rao vs R Vittal Rao on 27 August, 2014
Bench: K.L.Manjunath, A.V.Chandrashekara
1 RFA NO.2008/2012
IN THE HIGH COURT OF KARNATAKA AT BANGALORE
DATED THIS THE 27TH DAY OF AUGUST 2014
PRESENT
THE HON'BLE MR. JUSTICE K.L.MANJUNATH
AND
THE HON'BLE MR. JUSTICE A.V.CHANDRASHEKARA
R.F.A. NO.2008/2012
BETWEEN:
1. SRI SATHYA NARAYANA RAO
AGED ABOUT 58 YEARS
2.SRI K RAMACHANDRA RAO
AGED ABOUT 53 YEARS
3.SRI K MUKTHA BAI
AGED ABOUT 50 YEARS
4.SRI K NAGABHUSHAN RAO
AGED ABOUT 48 YEARS
5.SMT K NIRMALA
AGED ABOUT 46 YEARS
D/O LATE R KRISHNOJI RAO
RESIDENTS OF NO.A/4,
MAISTRY VENKATAPPA STREET
J C NAGAR, BANGALORE-560006
...APPELLANTS
(BY SRI V C GOWRISHANKAR AND SRI V.ANAND, ADVS.)
2 RFA NO.2008/2012
AND
1.R VITTAL RAO
S/O LATE RUKKMOJI RAO
AGED ABOUT 72 YEARS
RESIDENTS OF NO.A/4A
MAISTRY VENKATASWAMAPPA STREET
J C NAGAR
BANGALORE-560 006
2.V UMESH RAO
AGED ABOUT 51 YEARS
S/O G VISHWANATH RAO
3.SMT BHARATHI BAI
AGED ABOUT 45 YEARS
W/O V UMESH RAO
4.SRI PRAMOD
AGED ABOUT 25 YEARS
S/O V UMESH RAO
5.KUM PAVITHRA BAI
AGED ABOUT 32 YEARS
D/O V UMESH RAO
REP BY HER GPA HOLDER AND
FATHER V UMESH RAO
6.KUM PALLAVI
AGED ABOUT 20 YEARS
D/O V UMESH RAO
THE DEFENDANTS NO.2 TO 6
RESIDING AT CHURCH
STREET, NEAR GOVT. COLLEGE
J C EXTENSION
KANAKAPURA TOWN
RAMANAGARAM DISTRICT
3 RFA NO.2008/2012
7.SMT GOWRAMMA
AGED ABOUT 54 YEARS
W/O CHIKKANNA NAIK
R/AT ANAJAVADIDODDI
SEGEKOTE VILLAGE
SHIVANAHALLI POST
KASABA HOBLI, KANAKAPURA TALUK
RAMANAGARA DISTRICT
REP BY HER HUSBAND AND
GPA HOLDER
SRI CHIKKANNA NAIK
8.SRI VIJAY KUMAR
AGED MAJOR
S/O G VISHWANATH RAO
9.SRI SATISH RAO
AGED MAJOR
S/O G VISHWANATH RAO
10.SMT VIMALA RAO
AGED MAJOR
D/O G VISHWANATH RAO
DEFENDANTS NO.8 TO 10
ARE RESIDENTS OF AT CHURCH
STREET, NEAR GOVT. COLLEGE
J C EXTENSION
KANAKAPURA TOWN
RAMANAGARAM DISTRICT
... RESPONDENTS
(BY SRI M PRABHAKAR, ADV. FOR R1
SRI N.SUBBA SHASTRY FOR R2-R9)
THIS RFA IS FILED UNDER SEC.96 OF CPC.,
AGAINST THE JUDGMENT AND DECREE DATED 14.8.2012
PASSED IN O.S.NO.157/2009 ON THE FILE OF THE PRL.
SENIOR CIVIL JUDGE & C.J.M, RAMANAGARA,
DISMISSING THE SUIT FOR PARTITION AND SEPARATE
POSSESSION.
4 RFA NO.2008/2012
THIS APPEAL HAVING BEEN HEARD AND RESERVED
FOR ORDERS ON 21.08.2014 COMING ON FOR
PRONOUNCEMENT OF ORDERS THIS DAY,
A.V.CHANDRASHEKARA, J., DELIVERED THE FOLLOWING:
JUDGMENT
This is an appeal filed by the plaintiffs of an original suit bearing O.S.No.157/2009 which was pending on the file of the Court of Principal Senior Civil Judge & CJM, Ramanagaram. Suit filed for the relief of partition and separate possession of 1/5th share each out of the half share of late Krishnoji Rao has been dismissed after contest. Hence, the present appeal is filed under Section 96 of CPC challenging the same on various grounds.
2. The property in respect of which suit had been filed for the reliefs of partition and separate possession measures about 2 acres of land in new Sy.No.105 carved out of old Sy.No.29/6 of Devarakagalahalli, Harohalli Hobli, Kanakapura Taluk. Respondents 1 to 10 herein were the defendants in the said suit. Parties 5 RFA NO.2008/2012 will be referred to as Plaintiffs 1 to 5 and defendants 1 to 10 as per their ranking given in the Trial Court.
3. The facts leading to the filing of the suit in O.S.No.157/2009 are as follows:
Two acres of land in Sy.No.29/6 of Devarakagalahalli, Harohalli Hobli, Kanakapura Taluk, was granted in favour of one person by name T.Rukkmoji Rao, vide grant bearing No.D100/56-57 dated 28.03.1957. Pursuant to the said order of grant, a saguvali chit was issued in favour of the grantee in the month of May 1957. The said Rukkmoji Rao was in possession of the suit schedule property till he died. The said Rukkmoji Rao had three sons and one of his sons died unmarried. Krishnoji Rao, father of the plaintiffs and the first defendant are his two sons. Since R.Krishnoji Rao was the eldest male member, he became the khatedar of the schedule property after the death of his father and was managing the schedule 6 RFA NO.2008/2012 property as the kharta of the family consisting of himself, his children and the first defendant. According to the plaintiffs, their father Krishnoji Rao, without their knowledge and consent, sold the entire suit schedule property in favour of one lady by name Smt.Saraswathi Bai, by executing a registered sale deed and later on, after the death of Saraswathi Bai, defendants 2 to 7 who are her children have delivered the property in favour of the seventh defendant. It is averred that the alienation so made by Krishnoji Rao will not bind the share of the plaintiffs. When the plaintiffs approached the first defendant to effect a partition in respect of the schedule property, he did not react in any manner and therefore, they were forced to file a suit for partition and separate possession.
4. First defendant who is the paternal uncle of the plaintiffs has filed written statement virtually sailing with the plaintiffs requesting the Court to grant half 7 RFA NO.2008/2012 share in respect of the suit schedule property in his favour and has averred that he would be ready and willing to pay the requisite Court fee pertaining to his share.
5. Defendants 2 to 7 have filed common written statement admitting the grant made in favour of Rukkmoji Rao on 28.03.1957 and Rukkmoji Rao being in possession till his death and later on Krishnoji Rao enjoying the property. They have specifically denied the averment made in the plaint to the effect that Krishnoji Rao had no title to alienate the property in favour of Saraswathi Bai.
6. It is specifically averred that Krishnoji Rao being the eldest son of Rukkmoji Rao-the grantee and being the manager of the family sold the schedule property for family necessity in favour of Sarswathi Bai, through a registered sale deed dated 10.04.1992 for 8 RFA NO.2008/2012 valid consideration and she was put in possession of the same.
7. It is averred that defendants 2 to 6 have divided the schedule property on 29.06.2006 through a registered partition deed and the entire property was allotted to the second defendant and that after hissa survey new Sy.No.105 has been assigned to the schedule property and the second defendant has sold the same in favour of the seventh defendant Gowramma on 31.03.2008. The seventh defendant Smt.Gowramma is stated to be in lawful possession of the schedule property. It is further averred that Gowramma has spent a lot of money to improve the schedule property by erecting fence all round the land and by constructing a residential farm house. It is further averred that the schedule property was not the ancestral property of the plaintiffs and therefore they are not entitled for any 9 RFA NO.2008/2012 share. Suit is stated to be to be specifically barred by time. According to them other children of Saraswathi Bai viz., Umesh Rao, V.Vijaya Kumar, V.Sathish Rao and Vimala Bai, are necessary parties and hence, the suit is not maintainable without bringing them on record.
8. Subsequently, Vijay Kumar, Satish Rao and Vimala Bai, were added as defendants 8 to 10 and they are respondents 8 to 10 herein. With these pleadings they had requested the Court to dismiss the suit. On the basis of the above pleadings, following issues came to be framed:
1. Whether the plaintiffs prove the Sale Deeds standing in the name of Saraswathi Bai and defendant No.7 are null and void and not binding on them?10 RFA NO.2008/2012
2. Whether the defendants No.2 to 7 prove defendant No.7 is the bonafide purchaser of the suit schedule property?
3. Whether the plaintiffs are entitled for the relief sought?
4. What order or decree?
9. Plaintiff No.2 is examined as PW1. 39 exhibits have been got marked on behalf of the plaintiffs. Second defendant is examined as DW1, husband of seventh defendant Chikkanna Naik, is examined as DW2 and Vittal Rao is examined as DW3. In all 20 exhibits have been got marked on behalf of defendants. Ultimately, issues 1 to 3 have been answered in the negative and consequently, suit has been dismissed on 14.08.2012 after contest. It is this judgment which is called in question on various grounds as set out in the appeal memo.
10. We have heard the learned counsel appearing for the parties.
11 RFA NO.2008/2012
11. After going through the records and hearing the arguments following points arise for our consideration:
1. Whether the Trial Court is justified in holding that the suit schedule property is not the ancestral property of the plaintiffs and that the sale deed executed by Krishnoji Rao in favour of Saraswathi Bai in the year 1992 binds the plaintiffs as well as the first defendant?
2. Whether the suit of the plaintiffs is barred by time?
3. Whether any interference is called for and if so, to what extent?
Re. Point No.1:
12. The fact that 2 acres of land in Sy.No.29/6 of Devarakagalahalli, Harohalli Hobli, Kanakapura Taluk, was granted by the Government of Karnataka on 28.03.1957 in favour of Rukkmoji Rao is not in dispute. Consequent upon the said grant, he was put into 12 RFA NO.2008/2012 possession of the schedule property by issuing a saguvali chit in form No.1. Of course, the said document is not got marked as it is a xerox copy of the same. The fact that Rukkmoji Rao had become the khatedar cum owner of the schedule property, pursuant to grant is not in dispute, since the name of the grantee finds a place in Column No.9 of RTCs marked as Exs.P2 to P12. He was in possession of the property till his death and later on, his eldest son Krishnoji Rao inherited the property along with his brother R.Vittal Rao, the first defendant. He was looking after the schedule property as the manager of the joint family consisting of himself, his children and the first defendant. Later on, he chose to sell the suit schedule property on 10.04.1992 in favour of Saraswathi Bai, the mother of defendants 2 to 7 through a registered sale deed for valid consideration and the said deed is marked as Ex.P30. There is a specific reference in Ex.P30 that 13 RFA NO.2008/2012 the property in question was the absolute property of his father Rukkmoji Rao and after his death, he had become the khatedar. There is also a reference in the said sale deed marked as Ex.P30 that the land was being sold in order to pay off the hand loans raised by him and also to put up a residential house and the schedule property was sold for a sum of Rs.50,000/-.
13. After the death of Rukkmoji Rao intestate, both Krishnoji Rao, father of the plaintiffs and first defendant had succeeded to the estate equally. If the plaintiffs were to claim the property in question as their ancestral property, it should have come to them atleast from three generations. The property that was succeeded by Krishnoji Rao and Vittal Rao cannot be considered as the ancestral property of the plaintiffs and the succession to the estate of Rukkmoji Rao, by Krishnoji 14 RFA NO.2008/2012 Rao and Vittal Rao will have to be considered as one under Section 8 of Hindu Succession Act.
14. In a decision reported in AIR 1986 SC 1753 in the case of Commissioner of Wealth-tax, Kanpur Vs. Chander Sen, the Hon'ble Apex Court has explained the ambit of Section 8 of Hindu Succession Act. It is held that Hindu Succession Act lays down the general rules of succession in the case of males. The first rule is that the property of a male Hindu dying intestate shall devolve according to the provisions of Chapter II and Class I of Schedule provides that if there is a male heir of Class I then upon the heirs mentioned in Class I of the schedule.
15. Therefore, the succession to the schedule property by Krishnoji Rao and the first defendant from their father who was the absolute owner of the schedule property was virtually their self-acquisition. Sections 8 and Section 4 of Hindu Succession Act, have been dealt 15 RFA NO.2008/2012 at length in order to explain the position of a Hindu dying intestate and the rule of succession. Therefore after the death of Rukkmoji Rao, plaintiffs would not be Class I heirs. Hence the plaintiffs have no locus standi to file a suit for partition and separate possession at all.
16. Even if it is considered that Krishnoji Rao had no absolute right to alienate the property in the light of his brother Vittal Rao also succeeding to the estate along with him, we have to see as to whether Krishnoji Rao was competent to alienate the property for family necessities as Manager of the joint family consisting of himself and his brother. Both Krishnoji Rao and Vittal Rao will have to be considered as co-owners of the property and not as the co-parceners, since the property in question was not their ancestral property.
17. What is the right of an adult co-parcener if a joint family property is alienated by the Manager has been dealt at length by this Court in a decision reported in 16 RFA NO.2008/2012 the case of Muniyappa Vs. Ramaiah, reported in AIR 1996 KAR 321. What is reiterated in the said decision, relying upon various decisions of the Hon'ble Apex Court, that a Manager is entitled to alienate joint family property for family necessity and that right of other co- parceners is to file a suit for partition and recover possession of their share since the sale would only be voidable. It is further reiterated that alienee can continue in possession until it is properly avoided.
18. Paragraph-12 of the said decision is relevant and the same is reproduced below:
"12. The manager of a Joint Hindu Family is entitled to alienate the joint Family property for joint family necessity or for the benefit of the estate, in certain circumstances. Whether the manager is the father or not, will not make any difference. If such an alienation is made by the manager of the Joint Hindu Family of joint family property, the sale would bind not only his share in the property but the share of the other 17 RFA NO.2008/2012 coparceners as well. No doubt, the other coparceners may be entitled to file a suit for partition and recover their share if the alienation was not for family necessity or for the benefit of the estate. The burden in such cases will also lie on the alienee to prove family necessity or the benefit to the estate to uphold the alienation by the manager. But that right of a coparcener does not affect competency of the manager to alienate the joint family property. When once such alienation is made, the alienee is entitled to be in possession of the property and right of any other coparcener is to sue for partition and recover possession of his share in the joint family properties. The sale being only voidable unless it is avoided by an action, the alienee is entitled to continue in possession. The position may be different if one coparcener alienates his share alone, but once the alienation is made by the manager of the property, it will be effective until it is properly avoided by the non-alienating coparcener by filing a suit for partition."18 RFA NO.2008/2012
19. During the lifetime of the grantee Rukkmoji Rao himself, new survey number had been assigned to the granted land and the new survey number is 105. This is evident from Ex.P33 the tippani extract. Ex.P34 is the extract of akarbund which depicts that the total extent of the land after pukka phodi done by the survey authorities was 1 acre 37 guntas inclusive of 3 guntas of karab land.
20. The best person who could have attacked the alienation was the first defendant and he did not choose to raise his little finger. His brother Krishnoji Rao died on 22.06.1996 and possession had been handed over by his brother to the purchaser Smt.Saraswathi Bai, in the year 1992 itself and she had become the khatedar of the suit schedule property. After the death of Saraswathi Bai, her children divided the schedule property and this land was allotted to the second defendant. He has 19 RFA NO.2008/2012 exercised his right of ownership on the basis of the partition deed marked as Ex.P35 dated 29.06.2006. On the basis of Ex.P35 second defendant along with his wife and children chose to sell the suit schedule property in favour of seventh defendant Gowramma and this is evident from Ex.P31, the copy of the sale deed. Having not challenged the alienation made by his father, the first defendant cannot turn round and say by filing a written statement that he has half share in the schedule property and that he is entitled for half share.
21. The evidence of PW1 Ramachandra Rao discloses that the sale consideration obtained by Krishnoji Rao was utilized towards the family necessity and to construct a residential house. He has admitted in his evidence that his father was looking after the affairs of the joint family as the Manager and his father spent Rs.50,000/- to Rs.60,000/- for his marriage which was solemnized in the year 1992. He has deposed that his 20 RFA NO.2008/2012 father had sufficient money at his command and he did not utilize any money received by him as consideration by selling the schedule property but no evidence is placed on record to this effect. He has feigned ignorance about the suggestion put to him that the sale consideration was utilized by his father to put up a residential house. These important admissions culled out from the mouth of PW1 have been referred to in the judgment.
22. Hence, the Trial Court is justified in holding that the suit schedule property is not the ancestral property of the plaintiffs and that the sale deed executed by Krishnoji Rao in favour of Saraswathi Bai in the year 1992 binds the plaintiffs as well as the first defendant. Accordingly, point No.1 is answered in the affirmative. Re. Point No.2
23. Defendants 2 to 7 have specifically taken a stand in the written statement that the suit is 21 RFA NO.2008/2012 hopelessly barred by time. Admittedly, no issue is framed to that effect. Aspect of limitation is a mixed question of law and facts. Undisputed facts of the present case are that the alienation was made by Krishnoji Rao in the year 1992 and that the suit was filed in the year 2009 i.e., almost 17 years after the alienation. Neither the plaintiffs nor the first defendant have questioned the said alienation within 12 years from the date of alienation. It has been clearly held that the said alienation so made by Krishnoji Rao was for and on behalf of the joint family and therefore, it binds not only the plaintiffs. But even in the absence of a specific issue regarding limitation, the parties have consciously adduced evidence in this regard and therefore, no prejudice would be caused to the plaintiffs. In the light of undisputed fact of alienation of the land in question being challenged by the plaintiffs as well as the first defendant almost 17 years after the alienation, 22 RFA NO.2008/2012 the suit so filed by the plaintiffs is specifically barred by time. Hence, point No.2 is answered in the affirmative.
24. In view of the affirmative finding on points 1 and 2, no interference is called for by this Court and the appeal is liable to be dismissed by upholding the judgment of the Trial Court.
ORDER Appeal is dismissed by upholding the judgment of the Trial Court. Taking into consideration the facts and circumstances of the case, there is no order as to costs.
Sd/-
JUDGE Sd/-
JUDGE JT/-