Karnataka High Court
Basavanthappa S/O Bharamappa Jainar vs Basavanneppa S/O Basappa Mattimani on 19 April, 2017
Equivalent citations: AIR 2018 KARNATAKA 119, 2017 (4) AKR 643
:1:
R
IN THE HIGH COURT OF KARNATAKA
DHARWAD BENCH
DATED THIS THE 19TH DAY OF APRIL, 2017
BEFORE
THE HON'BLE MR.JUSTICE SREENIVAS HARISH KUMAR
R.F.A. No.1275/2005 (RES)
C/w
R.F.A.No.100106/2017
R.F.A. NO.1275/2005 :
BETWEEN:
1. BASAVANTHAPPA
S/O BHARAMAPPA JAINAR,
AGED ABOUT 60 YEARS,
R/O PURATKERI,
HIREKERUR, HAVERI
PIN : 581111
2. SUBHAS S/O BHARAMAPPA JAINAR,
AGED ABOUT 45 YEARS,
R/O PURATKERI,
HIREKERUR, HAVERI
PIN : 581111
3. PARVATAVVA
W/O BHARAMAPPA JAINAR,
AGED ABOUT 85 YEARS,
R/O PURATKERI,
HIREKERUR, HAVERI,
PIN : 581111.
... APPELLANTS
(BY SRI. AVINASH BANAKAR, ADVOCATE)
AND
1. BASAVANNEPPA
:2:
S/O BASAPPA MATTIMANI,
SINCE DECEASED BY LRS.
1(a) GANGAVVA
W/O BASAVANEPPA MATTIMANI,
AGED ABOUT:70 YEARS,
OCC: AGRICULTURE,
R/O. PURATKERI,
TQ: HIREKERUR, DIST: HAVERI.
1(b) VEERANAGOUDA
S/O BASAVANEPPA MATTIMANI,
AGED ABOUT:30 YEARS,
OCC: AGRICULTURE,
R/O. PURATKERI,
TQ:HIREKERUR, DIST: HAVERI.
1(c) SHIDDAMMA
W/O ODEGOUDA HUGGER,
AGED ABOUT:45 YEARS,
OCC: AGRICULTURE,
R/O. YARALLI, TQ: HONNALLI,
DIST: DAVANAGERE.
1(d) SAVITRAVVA
W/O KENCHIRAPPA MADAPUR,
AGED ABOUT:42 YEARS,
OCC: AGRICULTURE,
R/O. SOMANAMADAPUR,
TQ: HONNALLI, DIST: DAVANAGERE.
1(e) JAYAMMA W/O. ISHWARAPPA
HUCHANGAPPANAVAR,
AGED ABOUT:40 YEARS,
OCC: AGRICULTURE,
R/O. KUKANOOR, TQ: HARIHAR,
DIST: DAVANAGERE.
1(f) SAKAMMA W/O. MANJAPPA
DASAPPANAVAR,
AGED ABOUT:38 YEARS,
OCC: AGRICULTURE,
R/O. BALAMURI, TQ: HONNALLI,
:3:
DIST: DAVANAGERE.
1(g) MAMTA W/O ISHWAR JIGALER,
AGED ABOUT:28 YEARS,
OCC: AGRICULTURE,
R/O. HALLUR, TQ: HIREKERUR,
DIST: HAVERI.
2. CHANDRAMMA
W/O DHARANENDRAPPA JAINAR,
MAJOR, R/O PURATKERI,
NOW R/O KAPPADUR,
POST: NALLIBIDU, TALUK: SAGAR,
DIST: SHIMOGA, PIN - 577 401.
3. VEDAVATI
D/O DHARANENDRAPPA JAINAR,
AGED ABOUT 15 YEARS,
R/O KAPPADUR, POST: NALLIBIDU,
TALUK: SAGAR, DIST: SHIMOGA,
PIN - 577 401,
REPRESENTED BY MOTHER GUARDIAN
SMT. CHANDRAMMA, RESPONDENT NO.2.
... RESPONDENTS
(BY SRI M H PATIL, ADVOCATE FOR R1(A-D) (F&G); BY SRI.
B.S. HADIMANI, ADVOCATE FOR R-2; R-1(E) - NOTICE
SERVED; R-3 IS MINOR AND REPRESENTED BY R-2)
THIS RFA IS FILED U/S 96 CPC AGAINST THE
JUDGMENT AND DECREE DATED:23.7.2005 PASSED IN
O.S.NO.1/1995 ON THE FILE OF THE CIVIL JUDGE
(SR.DN.) & PRL. JMFC, RANEBENNUR, DISMISSING THE
SUIT FOR PARTITION, SEPERATE POSSESSION,
DECLARATION AND INJUNCTION.
R.F.A. NO.100106/2017 :
BETWEEN:
1. PARVATEVVA
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W/O BHARAMAPPA JAINER
AGE: MAJOR, OCC: AGRICULTURE,
R/O PURATKERI,
TQ: HIREKERUR, DIST: HAVERI
(D1 IN O.S.NO.31/1995)
2. BASAVANTAPPA BHARAMAPPA JAINER,
AGE: MAJOR, OCC: AGRICULTURE,
R/O PURATKERI,
TQ: HIREKERUR, DIST: HAVERI
(D4 IN O.S.NO.31/1995)
3. SUBHASHAPPA BHARAMAPPA JAINER,
AGE: MAJOR, OCC: AGRICULTURE,
R/O PURATKERI,
TQ: HIREKERUR, DIST: HAVERI
(D5 IN O.S.NO.31/1995)
... APPELLANTS
(BY SRI. AVINASH BANAKAR, ADVOCATE)
AND
1. CHANDRAMMA
W/O DHARANENDRAPPA JAINER,
AGE:MAJOR, OCC: HOUSEWORK,
R/O PURATKERI,
NOW R/O NALLIBIDU,
TALUK: SAGAR, DIST: SHIMOGA.
2. VEDAVATI D/O DHARANENDRAPPA JAINER,
AGED ABOUT 15 YEARS,
M/G. SMT. CHANDRAMMA,
R/O NALLIBIDU,
TALUK: SAGAR, DIST: SHIMOGA,
PIN - 577 401,
REPRESENTED BY MOTHER GUARDIAN
3. BASAVANNEPPA S/O BASAPPA MATTIMANI,
AGE: MAJOR, OCC: AGRICULTURE,
R/O. PURATKERI,
TQ: HIREKERUR, DIST: HAVERI.
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(PLAINTIFFS IN O.S. NO.31/95)
4. DEVENDRAPPA BHARAMAPPA JAINER,
AGE: MAJOR, OCC: AGRICULTURE,
R/O. PURATKERI,
TQ: HIREKERUR, DIST: HAVERI.
(D2 IN O.S.NO.31/95)
5. YASHAVANTHAPPA BHARAMAPPA JAINER,
AGE: MAJOR, OCC: AGRICULTURE,
R/O. PURATKERI,
TQ: HIREKERUR, DIST: HAVERI.
(D3 IN O.S.NO.31/95)
6. SHIVADEVAKKA
W/O TAVANAPPA BIDARAGERI,
AGE: MAJOR, OCC: AGRICULTURE,
R/O. PURATKERI,
TQ: HIREKERUR, DIST: HAVERI.
(D6 IN O.S.NO.31/95)
7. GIRIJAMMA
W/O SHANKARAPPA MAJIPATIL,
AGE: MAJOR, OCC: AGRICULTURE,
R/O. GONAGERI,
TQ:HONNALLI,
(D7 IN O.S.NO.31/95)
8. INDRAMMA
W/O NAGARAJ KORADIBANDI,
AGE: MAJOR, OCC: AGRICULTURE,
R/O. PURATKERI,
TQ: HIREKERUR, DIST: HAVERI.
... RESPONDENTS
(BY SRI. B. S. HADIMANI, ADVOCATE FOR R1;
R2 IS MINOR AND REPRESENTED BY R1)
THIS APPEAL IS FILED AGAINST THE JUDGMENT
DATED:23.07.2005, PASSED IN O.S.NO.31/95, BY THE
PRINCIPAL CIVIL JUDGE (SR.DN) RENEBENNUR,
DECREEING THE SUIT FOR PARTITION, SEPERATE
POSSESSION, DECLARATION AND INJUNCTION.
:6:
THESE APPEALS HAVING BEEN HEARD AND
RESERVED FOR JUDGMENT ON 06.03.2017, AND COMING
ON FOR PRONOUNCEMENT THIS DAY, THIS COURT
DELIVERED THE FOLLOWING : -
JUDGMENT
These two appeals have been filed challenging the common judgment and decree dated:23.07.2005 in O.S.No.1/1995 and 31/1995 on the file of Senior Civil Judge, Ranebennur. RA 118/2005 was filed in the court of District Judge, Haveri. By virtue of order passed by this Court in C.P.28/2006, RA 118/2005 was withdrawn from the Court of District Judge, Haveri for being decided along with RFA 1275/2005. RA No. 118/2005 has been re- numbered in this court as RFA No.100106/2017.
2. The appellants in RFA 1275/2005 are the plaintiffs in O.S. No.1/1995. The appellants in RFA No.100106/2017 are defendants No.1, 4 and 5 in O.S. No.31/1995. The case pleaded by the parties before the Trial Court has been summarized as below.
3. The subject matter of the suit O.S.No.1/1995 is 01.26 acres of land out of 4.37 acres in Re-survey No.47/2/A+B+C+D:1 of Puratkeri village, Hirekerur Taluk, :7: Haveri District (referred to as suit property). In O.S.No.31/1995, the properties involved are the said agricultural land and a house property described in schedule A and B of the plaint.
4. O.S. No.1/1995 was filed for the reliefs of declaration that sale deed executed in favour of 1st defendant by the 2nd defendant does not bind plaintiffs' interest in the suit property and that they can exercise right of pre-emption over the suit property and for permanent injunction to restrain the 1st defendant from interfering with their peaceful possession of the suit property.
5. The plaintiffs 1 and 2 of this suit and, one Dharanendrappa, the husband of 2nd defendant, are the sons of one Bharmappa Jainar and Parvatavva, the 3rd plaintiff. The 3rd defendant Vedavati is the daughter of 2nd defendant Chandramma. The 1st defendant Basavanneppa is a purchaser of the suit property.
6. All the plaintiffs and the 2nd defendant's husband, Dharanendrappa, were the members of Hindu Joint Family. Dharanendrappa died in the year 1990. After his death, :8: the 3rd plaintiff being the mother, the 2nd defendant being his wife, and 3rd defendant being the daughter of the deceased Dharanendrappa succeeded to his 1/4th share in the suit property as they were the nearest legal heirs. The suit property had not been partitioned. Each of the plaintiffs 1 to 3 has 1/4th share in the suit property. The 3rd plaintiff being mother, has 1/3rd share in 1/4th share of deceased Dharanendrappa and therefore, the total share that she gets is 4/12 i.e. 1/3rd.
7. After demise of Dharanendrappa, the 2nd and 3rd defendants were living in joint family for some time. Some time later, the 2nd defendant went to her maternal home at Kappaduru, Sagar Taluk, Shimoga District. Even though, the name of the 2nd defendant had been entered in the revenue records after the demise of Dharanendrappa, the right of the 3rd plaintiff and the 3rd defendant in the suit property had not been affected. In fact, the 1st plaintiff being the manager was managing the entire joint family affairs. Since 2nd defendant was an innocent woman, the 1st defendant was able to get executed a sale deed from her in respect of suit property. The sale deed thus obtained by the 1st defendant :9: from the 2nd defendant was illegal and a fraudulent transaction. There was no legal necessity for the 2nd defendant to sell the suit property. In fact, the 2nd defendant had no right to sell 01.26 acres of land. The 3rd defendant was a minor and therefore the 2nd defendant could not have sold the interest of the 3rd defendant without taking the permission of the Court. The actual market value at the time was Rs.60,000/- per acre but the land was sold for just Rs.75,000/-.
8. The purchaser i.e. the 1st defendant is not the member of the joint family. He is totally a stranger. Even if he had purchased, he has to file a suit for general partition and till then he cannot interfere with the plaintiff's possession of the suit property. But the 1st defendant, after purchasing the suit property, got the revenue records mutated to his name. The plaintiffs, after coming to know this, appealed to the Assistant Commissioner and it was still pending. The 1st defendant on the basis of revenue records being in his name, threatened the plaintiffs that he would take possession. Therefore for all these reasons the plaintiffs, in the first instance, brought a suit for declaration that the : 10 : sale deed did not bind their interest and that it was liable to be cancelled and for permanent injunction. During the pendency of the suit, the plaintiffs amended the plaint to state that the 2nd defendant had only 1/12th share i.e. equal to 16 guntas in the entire suit property. Since the suit property belongs to the joint family, the 2nd defendant could not have sold her share to anybody except the members of joint family. For this reason, they exercised right of pre-emption.
9. The 2nd defendant filed written statement admitting the relationship as stated in the plaint but denying all other plaint averments. She denied that her husband Dharanendrappa had only 1/4th share in the entire suit property and that partition had not taken place. She also denied that the plaintiffs had 1/4th share each in the suit property. Her specific plea is that, after the death of Bharmappa, the propositus, his children namely Basavantappa, Subhashappa, Dharanendrappa, Devendrappa, Yashwantappa, Shivadevakka, Girijamma and Indramma divided the entire joint family property. According to this oral partition, 2nd defendant's husband : 11 : Dharanendrappa and the plaintiffs 1 and 2 Basavantappa and Subhashappa respectively were together allotted some properties and Parvatavva, Devendrappa, Yashwantappa, Shivadevakka, Girijamma and Indramma took some other properties to their shares. In the year 1987, there took place another partition according to which, Basavantappa, Subhashappa and Dharanendrappa divided the property that was allotted to them in the 1st partition. Thus, in this partition, 1.26 acres of land was allotted to Dharanendrappa who got the revenue record transferred to his name on the basis of this partition. After death of Dharanendrappa, the 2nd defendant being his widow got her name entered in the revenue records. Thus the plaintiffs do not have any kind of right or interest in the suit property. Since she had absolute necessity for money, as she wanted to purchase another house, she sold away the suit property to the 1st defendant for valuable consideration. The 1st defendant is in possession of the suit property since the date of the purchase. For these reasons the plaintiffs cannot assert any kind of right.
10. After the plaintiffs amended the plaint, the defendants 2 and 3 filed additional written statement : 12 : denying the plaintiffs' right of pre-emption to purchase the suit property.
11. All the defendants in O.S. No.1/1995 instituted another suit O.S. No.31/1995 in respect of 1.26 acres of land in Survey No.47/2/A+B+C+D:1 and a house property situated at Puratkeri Village, Hirekerur Taluk. The reliefs that they sought were to declare that the 3rd plaintiff, Basavanneppa, was the owner of 1.26 acres of land being a purchaser from plaintiffs 1 and 2, for permanent injunction restraining defendants 1, 4 and 5 from interfering with possession of 3rd plaintiff and in alternative, for partition. The averments made in the plaint in this suit are same as the averments made in the written statement filed by them in O.S. 1/1995. Likewise, the contents of the written statement filed in this suit are replica of the plaint filed in O.S. No.1/1995. Therefore, there is no need to narrate pleadings of O.S. 31/1995.
12. The Trial Court raised the following issues in both the suits.
: 13 :ISSUES IN O.S. NO.1/1995
1) Whether plaintiffs prove, defendant No.1 by misrepresentation and without paying any consideration amount got a pokal sale deed from defendant No.2 dated:15.06.1994 and as such, same is not binding on them as contended in para 3 of the plaint?
2) Do they further prove, the plaintiffs have preferential right (right of pre-emption) to purchase the land from defendant No.2 as contended in para 6 (a) of the plaint?
3) Whether plaintiffs are entitled for injunction as prayed?
4) Whether defendants prove, the claim of plaintiff's preemptive right to purchase the land is barred by law of limitation?
5) Whether plaintiffs are entitled for declaration?
6) What decree or order?
ISSUES IN O.S. NO.31/1995
1) Whether the plaintiffs prove that the partition effected in 1985 deceased Dharanendrappa, defendant No.4 and 5 were given one share and other defendants were given one share as contended in para 7 of the plaint?: 14 :
2) Whether the plaintiffs further prove, when deceased Dharanendrappa, defendant No.4 and 5 got divided their share in 1987, suit schedule A(2) land and schedule B(2) house were allotted to deceased Dharanendrappa as contended in para 8 of the plaint?
3) Whether the plaintiffs prove that after death of Dharanendrappa plaintiff no. 1 and 2 have become owners of the property, allotted to Dharanendrappa by inheritance?
4) Whether the plaintiff no.3 has become absolute owner of the suit schedule A(2) land by virtue of sale deed dated:15.06.1996 as contended in para 9 of the plaint?
5) Whether plaintiff no.3 is entitled for declaration as prayed?
6) Whether the plaintiff no.3 is entitled for injunction as sought?
7) In the alternative whether plaintiffs are entitled for partition and separate possession as prayed?
8) What order or decree?
13. Common evidence was recorded in both the suits. The 1st plaintiff in O.S.No.31/1995 adduced evidence as PW-1 and she further got examined four more witnesses : 15 : PW-2 to PW-5. Totally 29 documents as per Ex.P-1 to P-29 were marked in 'P' Series. The 5th defendant in O.S. No. 31/1995 adduced evidence as DW-1 and then he got examined another witness, DW-2. Totally 10 documents as per Ex.D-1 to D-10 were marked in 'D' series.
14. The learned Trial Judge, after appreciating the oral and documentary evidence, came to the conclusion that the 3rd plaintiff in O.S. 31/1995 became the absolute owner of the suit property. His possession over suit property was upheld and the defendants in the said suit were restrained from interfering with peaceful possession and enjoyment of the suit property by the 3rd plaintiff. The Trial Court denied relief of partition as claimed by the plaintiffs alternatively and then dismissed the suit O.S. 1/1995.
15. a) Assailing the judgment and decree of the Trial Court in these two suits, the learned counsel for the appellants argued that in the year 1995 there was a partition in the joint family and according to this partition, the husband of Chandramma i.e. 1st plaintiff in O.S. 31/1995 and his two brothers namely, Basavantappa and Subhashappa were allotted 4.36 acres of land in Survey No. : 16 : 47 of Puratkeri village. On 30.03.1992, Dharanendrappa died. There was no partition among Basavantappa, Subhashappa and Dharanendrappa. Therefore, Chandramma could not have sold the suit property to the 3rd plaintiff in O.S. 31/1995, Basavanneppa. Even if she had sold, this sale did not bind the interest of other two brothers Basavantappa and Subhashappa.
b) Secondly, he argued that after the death of Dharanendrappa, not only his wife and daughter succeeded to his property, but the mother, Parvatevva, the 1st defendant in O.S. 31/1995 also succeeded to the property of her son, being Class-I heir. Therefore, in these circumstances, the wife could not have sold more than the share that she would get. So for this reason also, the sale deed to the extent of more than her share did not bind the interest of the mother of Dharanendrappa.
c) Thirdly, he argued that the 2nd plaintiff in O.S. 31/1995, Vedavati was a minor when 1st plaintiff, Chandramma, executed sale deed in favour of 3rd plaintiff, Basavanneppa. Therefore, the sale made by Chandramma in : 17 : respect of minor's share without taking permission of the Court was bad.
d) Fourthly, the Trial Court has committed an error in coming to the conclusion that the defendants cannot claim preferential right according to section 22 of the Hindu Succession Act and that the relief with regard to exercising this right is time barred. The Trial Court ought to have held that the amendment brought to the plaint in O.S. No.1/1995 would relate back to the date of suit and therefore, this relief was not time barred.
16. The learned counsel for the respondents/ plaintiffs argued that the judgment of the Trial Court cannot be interfered with. The learned Trial Judge has rightly appreciated the evidence both oral and documentary. It is a well-reasoned judgment.
17. In view of the above arguments, the following points can be formulated for discussion.
i) Is the finding of the Trial Court that there was a partition in the year 1987 amongst Dhranendrappa and the defendants 2 and 3 namely Basantappa : 18 : and Subhashappa in O.S. No.31/1995 and therefore Chandramma had absolute right to execute sale deed in respect of 1.26 acres of land to 3rd plaintiff, Basavanneppa correct?
ii) Does the sale deed, Ex.P-14, bind the interest of Parvatavva, the mother of Dharanendrappa?
iii) Is the sale deed dated:15.06.1994 as per Ex.P-14 executed by Chandramma in favour of Basavanneppa bad to the extent of the share of her minor daughter, because of the reason that Chandramma had not obtained the permission of the Court?
iv) Whether the Trial Court is justified in coming to the conclusion that the plaintiffs in O.S. No. 1/1995 cannot claim the preferential right as per Section 22 of Hindu Succession Act, as on the day the plaint was amended, the said relief was time barred?
v) Whether the judgment of the Trial Court needs to be interfered with? If so, what order?
: 19 :Point No.(i):-
18. For the sake of convenience, the parties will be referred to with respect to the ranking of the parties in O.S. No.31/1995, as this was the case in which evidence was recorded.
19. The entire case of the plaintiffs rests on the premise that in the year 1985, there took place a partition of the ancestral joint family properties. After the death of the propositus namely Bharamappa, in the said partition, defendants 1 to 3 and 6 to 8, being in one branch, took some items of the joint family property and the 1st plaintiff's husband, Dharanendrappa, and his brothers, defendants 4 and 5, being in another branch, took some items of the property. It is not stated in the plaint as to what was the extent of land allotted to each branch in Survey No.47/2/A+B+C+D:1 described in schedule "A" of the plaint.
But it has come in evidence that the 1st branch took 4.36 acres and the 2nd branch took 4.37 acres. The plaintiffs further state that in the year 1987, there took place a partition again among the members of the 2nd branch, and according to this partition, Dharanendrappa was allotted : 20 : 1.26 acres of land as also two rooms on the western side of a house property described in schedule "B" of the plaint.
20. The findings of the Trial Court are that the partitions of the year 1985 and 1987 are proved. The learned Trial Judge has observed that there are no grounds to disbelieve the oral testimony of PW-1 to 5. Ex.P-1 to P-10 disclose that firstly there took place a partition between them and the mutation of schedule A(2) and B(2) properties was accepted in the name of Dharanendrappa. Challenging the order of this mutation, the defendants 1, 4 and 5 preferred an appeal to the Assistant Commissioner, Haveri in RTC.AP.No.74/94, but this appeal was dismsised. If Dharanendrappa had obtained mutation by giving false report, nothing prevented defendants 1, 4 and 5 from preferring an appeal to the Deputy Commissioner, Dharwad. Further it is held by the learned Trial Judge that these entries, according to section 133 of the Land Revenue Act, have presumptive value. Moreover, the evidence of PW-1 and 3 clearly establishes the oral partition that took place in the year 1987. Therefore, if the mutation was accepted in the : 21 : name of the 1st plaintiff after the death of her husband, it was only on the basis of the oral partition of the year 1987.
21. Now to examine whether these findings are correct or not, it is necessary to refer to the oral evidence of the witnesses and some of the documents produced by them.
22. The 1st plaintiff, Chandramma has adduced evidence as P.W. 1. She speaks about the oral partition that took place in the year 1985 and then in the year 1987. According to her, after the partition in the year 1987, 1.26 acres of land i.e. schedule A(2) property and two rooms as described in schedule B(2) property were allotted to her husband. Her husband was in possession till he was alive and after his death, she and her daughter succeeded to these properties. In the cross examination, an attempt is made to demonstrate that no partition took palce in the year 1987 but she has denied this suggestion. Suggestion is also given that Parvatavva i.e. the mother of Dharanendrappa was not given any share when the partition took place in the year 1985. But PW-1 has denied this suggestion. So, her evidence to the extent of family partition discloses that according to her there were two partitions and that her : 22 : mother-in-law, Parvatavva was also given a share. Thus, she asserts that 1.26 acres of land that was allotted to her husband was succeeded by her and her daughter.
23. PW-2, Basavanneppa i.e. Plaintiff No.3 only speaks about his purchasing the property on 15.06.1994 as per Ex.P-14. In the cross examination it has been suggested that even after partition, the plaintiffs 1 and 2 and the defendants were in joint possession of the suit properties. Of course PW-2 has denied this suggestion.
24. PW-3, Shivappa @ Shivanagouda is examined mainly to establish the oral partition that was said to have taken place in the year 1987. He has stated in the examination in chief that according to the partition that took place in the year 1987, 1.26 acres of land and two rooms in the Western portion of the house were allotted to Dharanendrappa. He says that he was present at the time when oral partition took place. In the cross examination, it was suggested to him that no division took place and that Dharanendrappa died while being a member of a joint family, and these suggestions have been denied by him. He has further answered in the cross examination that when : 23 : the division took place in the year 1987, the Eastern portion of the land was allotted to the 4th defendant, another piece of land fell to the share of 5th defendant and the middle portion was allotted to Dharanendrappa.
25. PW-4, Parameshwaragouda, has deposed in the examination in chief that the 3rd plaintiff, Basavanneppa, has been in possession of 1.26 acres of land after he purchased the same from the 1st plaintiff. PW-5, Shivappa Basappa Kallajjanavar, is the scribe of Ex.P-14 and his evidence is to the effect that the 1st plaintiff told him that she was in possession as owner of 1.26 acres of land and that she wanted to sell the land to 3rd plaintiff for consideration of Rs.25,000/-. She requested him to prepare the sale deed and accordingly he prepared it.
26. DW-1 is the 1st defendant and he has deposed that there did not take place any partition at all. His brother, Dharanendrappa, died on 30.03.1990 while he was a member of joint family. After his death, his mother, Parvatevva and the plaintiffs 1 and 2 succeeded to 1/4th share of Dharanendrappa in the entire joint family property. : 24 : In the cross examination, he denies the suggestions that in the year 1985, there did not take place any partition and that mutation as per entry No.821 was effected only on the basis of this partition. However he admits that he did not challenge the mutation so effected. He also denies the partition of the year 1987. But he has admitted that he preferred an appeal before the Assistant Commissioner when the 3rd plaintiff got the mutation to his name on the basis of sale deed.
27. So from the oral evidence of these witnesses what can be deduced is that while the plaintiff's witnesses assert that firstly there took place a partition in the year 1985 and then again in the year 1987, the defendants' witnesses deny the same. In fact, there is inconsistency in the evidence of DW-1 in that when he admits about partition having taken place in the year 1985, in the cross examination he denies the same. But the documents produced by the plaintiffs and the defendants give a picture that in the year 1985 there took place oral partition.
28. Exhibit P-15 is the certified copy of the application given to the village accountant of Puratkeri : 25 : village by Basavantappa, Subhashappa, Dharanendrappa and others. On perusing this application it can be seen that the two branches of the family of Bharamappa divided the agricultural land, the 1st branch taking 4.36 acres, and the 2nd branch, 4.37 acres. It is based on this application, that the mutation was accepted as evidenced by Exhibits P-6 to 8 and 10. Therefore, there is documentary proof for the oral partition that took place in the year 1985.
29. But as regards the partition of the year 1987, though PW-1 and 3 speak about it, there is no documentary proof. The learned Trial Judge has held that Ex.P-9 and the order of the Assistant Commissioner as per Ex.P-24 provide proof for the partition of the year 1987. But this finding cannot be accepted because all that can be made out from Ex .P-9 is 1st plaintiff, Chandramma's having 1/3rd share in total extent of 4.37 acres of land. Probably after the death of her husband, she made an application to enter her name in the mutation register and therefore it is mentioned so in Ex.P-9. This Ex.P-9 only indicates her 1/3rd undivided share and nothing more. Even if the order of the Assistant Commissioner as per Ex.P-24 is perused, it can be : 26 : made out that the appeal came to be dismissed by the Assistant Commissioner for the reason that by that time O.S. No.31/1995 had been instituted and therefore the Assistant Commissioner declined to cancel the mutation accepted in the name of purchaser i.e. the 3rd plaintiff, Basavannappa. The Assistant Commissioner has clearly observed that the parties should abide by the judgment of the Civil Court. So these documents depicting this picture, the oral testimony of PW-1 and PW-3 with regard to the oral partition of the year 1987, cannot be accepted. Therefore, it has to be stated further that the 1st plaintiff, Chandramma, did not have absolute right to execute the sale deed in respect of 1.26 acres of land in favour of 3rd plaintiff. Hence, this point is to be answered in negative.
Point No.(ii):-
30. Ex.P-14 is the sale deed executed by 1st plaintiff in favour of 3rd plaintiff. After the death of Dharanendrappa, not only the plaintiffs 1 and 2 but his mother, Parvatavva also would succeed to his undivided interest in the properties that was allotted to his share in the oral partition of the year 1985. All these persons are Class-I heirs. The : 27 : learned Trial Judge has held that only the plaintiffs 1 and 2 would succeed to the property of Dharanendrappa. Ex.P-14 was executed only by the 1st plaintiff. The 1st defendant, Parvatavva was not a party to the sale deed and for this reason, the said sale deed does not bind her interest in the property conveyed to 3rd plaintiff, Basavanneppa.
Point No.(iii):-
31. The 2nd plaintiff, Vedavati, was a minor when sale deed as per Ex.P-14 was executed. The vehement argument of the counsel for the appellants was that the 1st plaintiff could not have executed the sale deed in respect of minor's property without taking the permission of the Court. But this argument cannot be accepted.
32. Section 8 of the Hindu Minority and Guardianship Act, 1956 needs to be referred to. Sub-section 2 states that the natural guardian shall not without previous permission of the court, sell, gift or exchange or create any kind of encumbrance. Even Section 29 of of Guardian and Wards Act puts an embargo on transferring the minor's interest. Therefore, permission of the Court is necessary even when a natural guardian wants to sell the immovable : 28 : property of the minor. But the property here means the definite property of the minor. It does not include indefinite fluctuating interest of the minor in the joint family. In this case, the 2nd plaintiff, like the 1st plaintiff has undivided interest to the extent of 1/3. Her interest is not definite. Therefore, if the 1st plaintiff sold away her share as well as her daughter's share, it cannot be said to be illegal and opposed to section 8 of Hindu Minority and Guardians Act and Section 29 of Guardian and Wards Act. In this regard it may be useful to refer to a decision of the Supreme Court in the case of Sri Narayan Bal and others v/s. Sridhar Sutar and others (1996) 8 SCC 54. It is held as below:-
"5. With regard to the undivided interest of the Hindu minor in joint family property, the provisions afore- culled are beads of the same string and need be viewed in a single glimpse, simultaneously in conjunction with each other. Each provision, and in particular Section 8, cannot be viewed in isolation. If read together the intent of the legislature in this beneficial legislation becomes manifest. Ordinarily the law does not envisage a natural guardian of the undivided interest of a Hindu minor in joint family property. The natural guardian of the property of a Hindu minor, other than the undivided interest in joint family property, is alone contemplated under Section 8, whereunder his powers and duties are defined. Section 12 carves out an exception to the rule that : 29 : should there be no adult member of the joint family in management of the joint family property, in which the minor has an undivided interest, a guardian may be appointed; but ordinarily no guardian shall be appointed for such undivided interest of the minor. The adult member of the family in the management of the Joint Hindu Family property may be a male or a female, not necessarily the Karta. The power of the High Court otherwise to appoint a guardian, in situations justifying, has been preserved. This is the legislative scheme on the subject. Under Section 8 a natural guardian of the property of the Hindu minor, before he disposes of any immovable property of the minor, must seek permission of the court. But since there need be no natural guardian for the minor's undivided interest in the joint family property, as provided under sections 6 to 12 of the Act, the previous permission of the Court under Section 8 for disposing of the undivided interest of the minor in the joint family property is not required." (underlined by me).
33. Added to above, 1st plaintiff has clearly stated while giving evidence the reason for executing the sale deed. Her husband fell ill and was hospitalized at Shimoga. She incurred expenditure for his treatment. In the plaint she has stated that after her husband's death, she found it very difficult to lead the life. She had to repay the loan and that she also wanted to purchase another property. Even the fact that Dharanendrappa fell ill and died on account of this is not disputed by the defendants. The 2nd plaintiff was still a : 30 : minor and it was the responsibility of the 1st plaintiff to bring her up. For these reasons, if the 1st plaintiff decided to sell the property, it was for her immediate and legal necessity. Hence the sale made by the 1st plaintiff to the extent of her share and her daughter's share cannot be assailed by the defendants.
Point no.(iv):-
34. O.S. No.1/1995 was instituted on 06.01.1995 for the reliefs of declaration and injunction. The plaint was amended on 04.12.2001 to plead with respect to right of pre-emption and seek an additional relief that a necessary direction be given to the defendants of the said suit (referred to as plaintiff herein) to sell the property to them. The Trial Court has held that since the plaint was amended on 04.12.2001, the plaintiffs in said suit were not entitled to exercise preferential right to purchase suit schedule A(2) property. Though the Trial Court has not observed, with regard to limitation period, but it can be gathered that probably the Trial Court came to this conclusion because on the day application for amendment was filed, the prayer with : 31 : respect to exercising pre-emptory or preferential right was time barred.
35. The learned counsel for the appellant argued two points, the first being that section 22 of Hindu Succession Act provides for exercising preferential right and since Dharanendrappa is the brother of Basavantappa and Subhashappa, and a son of Parvatavva, these persons could exercise that right. Second point is that any amendment brought to plaint goes back to the date of suit. Therefore, in this case though amendment was effected on 04.12.2001, this amendment should be construed as effective from the date of suit i.e. 06.01.1995. The date of sale deed is 15.06.1994. Therefore, the additional relief that the plaintiff in O.S. No.1/1995 sought was not time barred.
36. The above argument of the learned counsel cannot be accepted. Basavantappa, Subhashappa and Dharanendrappa being sons of Bharamappa are Class-I heirs. The property devolved on them. There is no dispute with regard to this aspect and they could have certainly exercised right available to them under section 22 of Hindu Succession Act, when suit was filed in the year 1995. But : 32 : according to Article 97 of Limitation Act, the limitation period is one year from the date of purchaser taking physical possession of the property sold or from the date of registration of the sale deed if the subject matter of the sale does not admit of physical possession. Therefore from the date of sale deed i.e.15.06.1994, within one year, they could have exercised right of pre-emption. When they filed the suit on 06.01.1995, this right was very much available to them and they did not seek this relief. So by the time they made an application seeking amendment of the plaint, this relief was time barred. While opposing this application, the learned counsel appearing for the defendant in the suit appears to have argued taking the ground that time barred relief can not be permitted by way of amendment. In fact, in the order passed by learned Trial Judge on the amendment application, it has been clearly observed that issue about limitation could be raised after amendment of the plaint. So this observation of the Trial Court makes it clear that the amendment thus effected to the plaint in the year 2001 did not take it back to the date of suit. The principle is that all amendments relate back to the date of suit unless it is specified in the order that amendment comes into effect from : 33 : the date of application. But the observation made by the Trial Court makes it very clear that the learned Trial Judge did not mean that the amendment related back to the date of the suit. This reservation qualifies the day from which the amendment came into effect. In this context it may be useful to place reliance on judgment of the Supreme Court in the case of Ashutosh Chaturvedi V/s Pranov Devi and others (AIR 2008 SC 2171).
"8. A right claiming preference over a property in terms of a statute ordinarily is a weak right.
Limitation Act 1963, by Article 97, provides for one year's limitation for claiming such a right. The suit was filed in the year 1990. The sale deeds, during the pendency of the suit, were executed on 8.6.1990 and 18.6.1990. The application for amendment was filed 13 years after the filing of the suit. A suit claiming preferential right was required to be filed ordinarily within the prescribed period of limitation. (underlined by me).
9. Contention of Mr. Pandey that two deeds of sale were executed in violation of the order of injunction and in that view of the matter, the deeds of sale must be held to be invalid in law, in our opinion, cannot be a ground for allowing the amendment of the plaint. If the deeds of sale are held to be bad in law, that would not mean that by reason thereof, the co-sharer of the plaintiff would propose to execute a sale deed giving a cause of action for : 34 : filing a fresh suit. Plaintiff was required to exercise his right under Section 22 of the Hindu Succession Act within the period prescribed therefor. The said deeds of sale either would be declared valid or invalid. In either way, the appellant cannot take any benefit of the provisions of Section 22 of the Hindu Succession Act."
Therefore, it is held that the plaintiffs in O.S. No.1/1995 cannot claim preferential or pre-emptory right.
Point No.(v):-
37. From the discussions on point (i) to (iv) it transpires that Parvatevva, the 1st defendant in O.S. No.31/1995 being the mother of Dharanendrappa has 1/3rd interest in schedule A(2) property. Dharanendrappa's interest in schedule A(2) property is 1.26 acres and therefore his mother's interest is to the extent of 22 guntas. To this extent, the sale deed executed by the 1st plaintiff, Chandramma in favour of 3rd plaintiff, Basavanneppa does not bind Parvatevva's interest. The sale deed is valid to the extent of remaining 44 guntas of land in schedule A(2) property. Therefore, the judgment and decree in O.S.No.1/1995 is to be set aside by partly allowing RFA No.1275/2005.: 35 :
38. Since, the sale deed dated:15.06.1994 is valid to the extent of the share of plaintiffs 1 and 2, the 3rd plaintiff Basavanneppa becomes absolute owner of only 44 guntas of land in schedule A(2) property. The land that he has purchased is the undivided interest of plaintiffs 1 and 2.
Unless the entire land is partitioned, he cannot claim possession of this 44 guntas of land. In O.S. No.31/1995 the plaintiffs have sought the relief of partition alternatively. It is not as though the alternative relief cannot be considered along with main relief. According to Order VII Rule 7 CPC, the reliefs can be moulded by the court by not driving the parties to another round of litigation. Therefore, the relief of partition can also be granted.
39. Schedule "B" property consists of a house and vacant land contiguous to it. This was not the subject matter of partition of the year 1985 and also the sale deed dated:15.06.1994. Therefore, this schedule "B" property is to be partitioned. The 1st defendant, Parvatevva, in O.S. No.31/1995 is the widow of Bharamappa Jainar and mother of defendants No.2 to 8. According to the Hindu law applicable to this region, a mother is also entitled to a share : 36 : equal to that of son in the co-parcenary property. In the commentary on Hindu Law by Mulla (21st Edition, 2010) at para 315, it is found as below :
"315. Widow-mother. --- (1) A mother cannot compel a partition so long as the sons remain united. However, if a partition takes place between the sons, she is entitled [except in southern india (Madras state)] to a share equal to that of a son in the coparcenary property. She is also entitled to a similar share on a partition between the sons and the purchaser of the interest of one or more of them."
40. The Hon'ble Supreme Court in the case of Gurupad Khandappa Magdum v. Hirabai Khandappa Magdum and others [AIR 1978 Supreme Court 1239] has observed as below :
"9. Xxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxx Though the plaintiff, not being a coparcener, was not entitled to demand partition yet, if a partition were to take place between her husband and his two sons, she would be entitled to receive a share equal to that of a son. (see Mulla's Hindu Law, Fourteenth Edition, page 403, para
315). In a partition between Khandappa and his two sons, there would be four sharers in the coparcenary property, the fourth being Khandappa's wife, the plaintiff.
Khandappa would have therefore got a 1/4th share in the coparcenary property on the hypothesis of a partition between himself and his sons."
: 37 :
41. Therefore, applying the above principles to this case, a share has to be allotted to the first defendant Parvatevva also. Total number of shares to be carved out in Schedule "B" property, therefore, is '7' including that of deceased Bharmappa. Therefore, the plaintiffs No.1 and 2, together get 10/63 (1/7 + 1/63), applying the doctrine of notional partition. Therefore, the following :
ORDER
1) RFA No.1275/2005 is partly allowed.
2) The judgment and decree of the Trial Court in O.S.No.1/1995 is set aside.
3) It is declared that the sale deed dated:15.06.1994 does not bind 1/3rd interest of the 1st defendant namely Parvatevva.
4) RFA 100106/2017 is also partly allowed.
5) The judgment and decree in O.S. No.31/1995 is modified.
6) It is declared that the 3rd plaintiff in the suit, Basavanneppa has got interest to the extent of 44 guntas of land in schedule A(2) property and that he is entitled to a decree of partition to this extent.: 38 :
7) It is further declared that the plaintiffs 1 and 2 in O.S. No.31/1995 have 10/63 share in schedule "B" property and they are entitled to partition to this extent.
8) In respect of reliefs granted at Sl. No.6 and 7, preliminary decree shall be drawn.
9) There is no order as to costs in the
circumstances of the case.
Sd/-
JUDGE
yan