Karnataka High Court
Smt Gowramma vs Erappa on 5 December, 2018
Author: K.N.Phaneendra
Bench: K.N. Phaneendra
1
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 5TH DAY OF DECEMBER, 2018
BEFORE
THE HON'BLE MR.JUSTICE K.N. PHANEENDRA
RFA NO.1330/2002 (DEC)
BETWEEN
1. SMT GOWRAMMA
W/O LATE SUBBANNA
2. SRI ANJANAPPA
S/O LATE SUBBANNA
3. SRI MUNE GOWDA
S/O LATE SUBBANNA
ALL ARE MAJOR AND
R/AT KURUBARAHALLI
DEVANAHALLI TALUK
BENGALURU DISTRICT ... APPELLANTS
(BY SRI. R. S. RAVI, ADV. FOR
SRI. B. ROOPESHA, ADV.)
AND
1. SUBBANNA R1 IS DELETED
V.O.D 9.07.2004
SINCE DEAD BY HIS L.Rs.
2. SRI ERAPPA
MAJOR, S/O MUNIYAPPA
SINCE DEAD BY HIS L.Rs.
2(a) DEVADAS
SINCE DEAD BY HIS L.Rs.
2(a)(i) PUTTAMMA
W/O LATE DEVDAS, ABOUT 45 YEARS
2
2(a)(ii) D. SHALINI
D/O LATE DEVDASS
AGED ABOUT 22 YEARS
2(a)(iii) SOWMYA
D/O LATE DEVADAS
AGED ABOUT 19 YEARS
2(b) KRISHNA
S/O LATE ERAPPA
AGED ABOUT 48 YEARS
2(c) SHANKARA
S/O LATE ERAPPA
AGED ABOUT 46 YEARS
ALL ARE R/AT NO.520
NAGAIHNPALYA VILLAGE
M.S. NAGARA POST
BIDARAHALLI HOBLI
BENGALURU EAST TALUK
BENGALURU - 560 033
3. NARASAPPA
MAJOR, S/O.MUNIYAPPA
SINCE DEAD BY HIS L.RS
3(a) RATHNAMMA
W/O LATE NARASAPPA
AGED ABOUT 65 YEARS
3(b) SRINIVAS
S/O LATE NARASAPPA
AGED ABOUT 40 YEARS
3(c) PUSHPAVATHI
D/O LATE NARASAPPA
AGED ABOUT 37 YEARS
R/AT HAGADURU VILLAGE
K.R.PURAM HOBLI
BENGALURU EAST TALUK
BENGALURU - 560 066
3
3(d) MANJUNATH
S/O LATE NARASAPPA
AGED ABOUT 35 YEARS
3(e) SOWBHAGYA
D/O LATE NARASAPPA
AGED ABOUT 30 YEARS
3(f) LAKSHMAMMA
D/O LATE NARASAPPA
AGED ABOUT 45 YEARS
3(g) MANJAMMA, D/O LATE NARASAPPA
AGED ABOUT 43 YEARS
RESPONDENT NOS.3(a)
3(b), 3(d), 3(e), 3(f), 3(g)
ALL ARE R/AT
LAGUMENAHALLI VILLAGE
BIDARAHALLI HOBLI
BENGALURU EAST TALUK
BENGALURU - 560 049
4. SMT. MUNIYAMMA
MAJOR, W/O NARAYANAPPA
SINCE DEAD BY L.RS
4(a).LOKESH, S/O NARAYANAYAPPA
AGED ABOUT 40 YEARS
4(b).NAGESH
S/O NARAYANAYAPPA
AGED ABOUT 30 YEARS
4(c).MANJUNATH
S/O NARAYANAYAPPA
AGED ABOUT 29 YEARS
ALL ARE R/AT
SONNAMARANAHALLI
DODDABALLAPURA TALUK
BENGALURU RURAL DISTRICT
4
5. SMT. VENKATAMMA
MAJOR, W/O THAMMANNA
R/AT THALUR VILLAGE
HOSKOTE TALUK
BENGALURU DISTRICT
6. SMT. AKKIYAMMA
MAJOR, W/O RAMANNA
SINCE DEAD BY LRs
6(a) LAKSHMANA
S/O LATE RAMANNA
AGED ABOUT 52 YEARS
R/AT SULBORE HOBLI
BELAPUR, DEVANAHALLI TALUK
BENGALURU RURAL DISTRICT
7. SMT. KEMPAMMA
MAJOR, W/O DODDARAMANNA
R/AT NAGAINAPALYA
BENGALURU SOUTH TALUK
8. SMT. LOKAMMA
MAJOR, W/O THIMMAIAH
R/AT GOVIPALYA, NO.1/1
10TH MAIN, 17TH CROSS
BENGALURU - 560 026 ... RESPONDENTS
(BY SRI. MOHAN KUMAR K.V., ADV. FOR
R2[a] [1 TO 3], R2[b], R2[c], R4[a TO c] & R6[a]
SRI. M. SHIVAPRAKASH, ADV. FOR R3[a TO g]
SRI. SRINIVAS N. ADV. BY AKL ASSOCIATES FOR R7
R1 DELETED V.O.D 09.07.2004
APPEAL AGAINST R5 IS DISMISSED V.O.D. 17.02.2005
R8 IS SERVED.)
THIS RFA IS FILED UNDER SECTION 96 OF CPC
AGAINST THE JUDGMENT AND DECREE DATED 20.9.2002
PASSED IN O.S.NO.173/91 ON THE FILE OF THE II ADDL.
CIVIL JUDGE (SR.DN), BANGALORE RURAL DISTRICT
BENGALURU, DISMISSING THE SUIT FOR DECLARATION,
PARTITION AND SEPERATE POSSESSION, PERMANENT
INJUNCTION.
5
THIS RFA HAVING BEEN HEARD AND RESERVED
FOR ORDERS ON 19.09.2018 COMING ON FOR
'PRONOUNCEMENT OF JUDGMENT', THIS DAY K.N.
PHANEENDRA, J. DELIVERED THE FOLLOWING:
JUDGMENT
This appeal is preferred by the aggrieved plaintiffs against the judgment and decree dated 20.9.2002 passed in OS No.173/1991 by the II Addl. Civil Judge (Sr. Dn.) Bangalore Rural District, Bengaluru, in dismissing their suit.
2. The plaintiffs suit is for the following reliefs:
a) Declaring that the Judgment and decree dated 19.9.1991 passed on the basis of the compromise dated 19.9.1991 filed by the parties in O.S.No.318/1987 on the file of the Prl.Civil Judge, Bangalore Rural District, Bangalore is null and void and not binding on the plaintiffs 1 to 3, by setting aside the same;
b) Conduct an enquiry with regard to the MESNE profits and award to the plaintiffs the MESNE profits.
c) To grant a permanent injunction restraining the defendants 1 to 7 and their 6 agents or persons claiming under them not to interfere and meddle with the schedule "B" properties allotted to the family of the First Defendant under the FDP No.8/87 dated 29.9.1987 and to prohibit the Second Defendant not to alienate or deal with the schedule properties either by creating any sale, lien, charge or mortgage etc. over and above the schedule properties allotted under the FDP No.8/87 in any manner whatsoever;
d) To grant such other reliefs as this Hon'ble Court may deems fit to grant in the circumstances of the case by awarding costs in the interest of justice and equity.
3. The brief factual matrix as per the pleadings of the parties are as follows:
3.1 It is the case of the plaintiffs that: - Plaintiff No.1 is the wife and plaintiff Nos.2 & 3 are the sons of the defendant No.1. Defendant Nos.2 & 3 are the brothers, defendant Nos.4 to 7 are the sisters of the defendant No.1.
All the above said members constituted a joint Hindu Undivided Family having the suit schedule properties described in the Schedule annexed to the plaint. 7 Defendant Nos.1 to 7 are the children of late Muniyappa and late Nanjamma. The said Muniyappa probably died in the year 1952 leaving behind the defendants as his legal representatives. Defendant Nos.1 to 3 are the co- parcenors of the family and defendant Nos.4 to 7 who are all married daughters of late Muniyappa. All the properties are being enjoyed jointly by all the members. 3.2 It is the further case of the plaintiff that, the defendant No.1 Subbnna has filed a suit in OS No.49/1973 as plaintiffs in the said case against his mother Nanjamma and his brothers Narasappa and Erappa. The said suit was contested by the defendants and the said suit was ultimately decreed on 30.05.1975 allotting share to the plaintiffs therein and thereby the plaintiffs in the said suit and defendant No.1 therein are entitled to the properties allotted to the defendant No.1. The said judgment was carried in Appeal before the District Judge, Bengaluru Rural District in RA No.29/1975. However, on 15.4.1980, a Memo was filed by the appellants along with an affidavit agreeing to the share allotted to the defendant No.1 Subbanna. After disposal of the said appeal, the said Nanjamma died and the defendant No.1 Subbanna has 8 instituted a final decree proceedings in FDP No.8/1987. Ultimately, the said FDP was ended in compromise as the parties have filed compromise petition under Order XXIII Rule 3 of CPC and they divided their properties by metes and bounds. By virtue of the said compromise, 2/7th share in all the movable and immovable properties, decreed in favour of the defendant No.1 Subbanna and in pursuance of the compromise petition in a final decree proceedings, B-Schedule properties as shown in the compromise petition was allotted to the said Subbanna and the possession of the said properties were delivered to the defendant No.1 Subbanna and he started enjoying the said properties in full satisfaction of the decree passed in OS No.49/1973 and also in FDP No.8/1987 dated 29.9.1987. 3.3 It is the further case of the plaintiffs that the mutations were also accepted in pursuance of the said decree in MR No.2/1987-88 in respect of the suit schedule properties in the name of the defendant No.1 Subbanna. The plaintiffs herein and the defendant No.1 have been in possession and enjoyment of the said B-Schedule properties allotted to the defendant No.1. 9
3.4 It is the further case of the plaintiffs that, the defendant No.1 being the kartha of the undivided family of the plaintiffs and the defendant No.1 had purchased the suit Schedule item No.9, out of the funds derived from the other ancestral and joint family properties mentioned in Schedule item Nos.1 to 3 of the suit. Hence, the plaintiffs submit that the said properties described in the Schedule item No.9 is also a joint family property in which the plaintiffs have got a definite share.
3.5 It is the further case of the plaintiffs that as the daughters of Muniyappa and Nanjamma were not parties to the said suit or final decree proceedings. Therefore, defendant No.7 herein, Smt. Kempamma has filed another suit in OS No.318/1987 seeking for declaration to set aside the judgment and decree passed in OS No.49/1973 and consequent compromise and drawing up of the final decree in FDP No.8/1987 dated 20.9.1987.
3.6 In the said suit i.e., in OS No.318/1987, the defendant No.1 herein, was also made as a party and he was arrayed as defendant No.1. The said suit was filed totally against six defendants. Defendant No.1 has also 10 filed a written statement in the said suit and contested the suit on various grounds.
3.7 It is the further case of the plaintiffs that, during the pendency of the said suit, there arose differences between the plaintiff No.1 and defendant No.1 herein due to the illicit connection and development between defendant No.1 Subbanna and daughter of his sister Smt. Anjanamma. In view of the said illicit relationship, the defendant No.1 has started discarding the plaintiffs. In order to prevent the plaintiffs from getting anything in the suit schedule properties, the defendant No.1 started giving pin pricks to the plaintiffs in view of the said relationship between himself and his sister's daughter that gave up to various frequent quarrels between the plaintiffs and the defendant No.1. In this background, in order to defeat the rights of the plaintiffs over the suit schedule properties and in order to continue the relationship with the sister's daughter, the defendant No.1 joined hands with other defendants in the said suit. Having come to know about this, the plaintiffs have issued a legal notice on 29.08.1991 to the defendant No.1 and also to his Advocate Sri N.S. Srinivasan, who was appearing for the defendant No.1 in 11 OS No.318/1987 not to act on the instructions of the defendant No.1 in derogation to the rights of the plaintiffs and also further sought for maintenance of Rs.1,000/- Per month to the plaintiff No.1. Notice was received by the defendant No.1. However, the Advocate has not received the notice.
3.8 It is further alleged by plaintiffs that, when the facts stood thus, the defendant No.1 joining and colluding with plaintiff and other defendants in O.S.318/87, have hatched a plan and they joined hands together for the purpose of re-dividing the properties amongst themselves by filing a Compromise Petition dated 19.9.1991 in the said suit in OS No.318/1987 in which, all the valuable properties of the defendant No.1 which were allocated to him in FDP No.8/1987 particularly survey No.23/2 measuring 3 acres 6 guntas with several other properties by re-adjusting the allocation by themselves to suit their convenience by accommodating a share to the sisters of the defendant No.1 and another brother. The said Compromise Petition was in fact not brought to the notice of the Advocate for the defendant No.1 in the said suit and it is the defendant No.1 without the participation of his 12 Advocate has entered into such compromise which is clearly collusive and not binding on the plaintiffs.
3.9 It is contended by the plaintiffs that, the said compromise was entered into by playing fraud on the court (suppressing the fact of legal notice being served on the defendant No.1). Therefore, all the defendants acted clandestinely in order to abdicate the rights of the plaintiffs. The plaintiffs have further stated that nobody has challenged the final decree proceedings and the same has not been set aside by any court of law. Therefore, by means of compromise in OS No.318/1987, the properties which were allotted to the defendant No.1 in FDP No.8/1987 cannot be in any manner reversed.
3.10 The plaintiffs have also contended that the female members of the family are not entitled for any share in the suit schedule properties. By entering into the compromise on 19.9.1991, the family members were also allotted to a share for which they are not entitled to, according to Hindu Law. By virtue of the compromise, defendant No.1 has diminished the share allotted to him in FDP No.8/1987 and there is un-equal distribution of the 13 shares by virtue of the illegal compromise entered into between the parties in OS No.318/1987. Therefore, the said compromise decree is liable to be set aside.
3.11 It is also contended that, the plaintiffs and defendant No.1 are in possession and enjoyment of the properties allotted to the defendant No.1 in FDP No.8/1987. Some of the creditors of the defendant No.1 have forced defendant No.1 as well as the plaintiffs to discharge the loan borrowed by the defendant No.1 for funding the litigation since 1973. Hence, item No.6 of the suit schedule property was sold. Therefore, the same property is not available for partition.
3.12 The defendant No.1 died intestate subsequently on 11.2.2000 leaving behind the plaintiffs as his only legal heirs. Therefore, the plaintiffs are entitled to their legitimate share out of the suit 'B' Schedule properties allotted to their family under the decree proceedings in FDP No.8/1987.
3.13 The plaintiffs pleaded that, the cause of action arose when the decree was passed in OS No.318/1987 on 19.9.1991 and earlier on 29.8.1991 when legal notice was 14 issued which adversely affected the plaintiffs. Therefore, for the above said reasons, the plaintiffs prayed for decreeing of the suit.
3.14 The defendant No.1 during his life time has filed his written statement to the above said pleadings of the plaintiffs. The defendant No.1 has admitted the relationship. But, he denied that the plaintiffs and defendant No.1 and other defendants have constituted a joint family. The defendant No.1 has also admitted the previous suit OS No.49/1973 and FDP proceedings in FDP No.8/1987. However, it is stated that filing of the suit by Kempamma in OS No.318/1987 was ended in compromise and it is a valid decree passed in the said case on the basis of the compromise. It is also the case of the defendant No.1 that the theory of collusion with other defendants and in order to defeat the rights of the plaintiffs, are all baseless and invented for the purpose of laying a false case against the defendants. The allegations made against the defendant No.1 that he developed some intimacy with his sister's daughter and leading adulterous life and acting derogatory interest of the plaintiff etc., are all denied as false.
15
3.15 Apart from denying the pleadings of the plaintiffs with reference to the compromise in OS No.318/1987, the defendant No.1 has pleaded that, the defendant No.1 with full knowledge, consent has entered into a compromise in OS No.318/1987 and after receiving a substantial amount of Rs.1,40,000/- as consideration and he has actually handed over the said amount to the plaintiffs as the defendant No.3 has paid the amount to the hands of the plaintiff. It is also contended that, the plaintiffs out of this particular settlement consideration, purchased immovable agricultural properties at Kurubara Halli, Devanahalli Taluk in her own name. Therefore, the Compromise Petition arrived at between the parties in OS No.318/1987 was with mutual consent and knowledge of the parties with full and final settlement, but not in derogation to the rights of the plaintiff, in the manner alleged by the plaintiffs. The defendant No.1 also contended that, so far as the compromise in OS No.318/1987 is concerned, the defendant No.1's advocate for obvious reasons did not coordinate with the defendant No.1 for settlement. Therefore, he himself has entered into such compromise. The allegations made against him 16 are denied as false by the defendant No.1. The defendant No.1 has also stated that there was no collusion in entering into compromise in OS No.318/1987. In fact, in the said settlement also, the defendant No.1 was given up his share in the properties and equal adjustment of the properties have been made and also substantial consideration amount was paid for mutual exchange of the properties by virtue of the said compromise.
3.16 The defendant No.1 was not deprived of his legitimate share in the proceedings and as such, there is no illegality committed by any of the parties to the said suit and there is no evasion or defeating of any rights of the plaintiffs in this regard.
3.17 The defendant also submitted that his sister Smt. Kempamma, plaintiff in OS No.318/1987 has claimed share in the self acquired properties of her mother. Therefore, after contest, the said suit was compromised before the court. The plaintiffs were very well aware of the said proceedings, settlement and also consideration amount received by the defendant No.1 which was inturn handed over to the plaintiffs. Therefore, no rights of the 17 plaintiffs have been defeated and there was no cause of action for the suit. Hence, he pleaded for dismissal of the suit.
3.18 The defendant No.1 has also filed additional written statement re-iterating the same factual aspects as pleaded earlier.
3.19 Defendant No.3 actually who is the contesting respondent has filed a detailed written statement. Defendant Nos.4-7 have also filed their individual written statement. Defendant No.3 apart from denying the allegations made by the plaintiffs against defendant No.1 and others has taken up the contention that the suit is bad for non-joinder of necessary parties as defendant Nos.4 to 7 are neither necessary nor proper parties. The relationship between the parties are admitted. However, it is denied that the family of late Nanjamma constituted any joint family owning other properties. The proceedings in OS No.49/1973 as well as FDP No.8/1987 and in OS No.318/1987 have been categorically admitted by defendant No.3. He has also admitted that, he was also one of the signatory to the compromise entered into 18 between the parties in FDP No.8/1987. But it is specifically stated that the properties were not divided by metes and bounds as per the compromise decree in FDP No.8/1987 and that, possession of the properties were not delivered even after the settlement. It is contended that, when the matter stood at the stage of final decree proceedings and amicable settlement, the female members of the family have objected and obstructed for possession of the properties by metes and bounds. Therefore, the claim made by the plaintiffs that, the properties were allotted to the share of Subbanna and revenue entries were made up in his name and actual possession have been taken are all false and those are all got up documents in active connivance with the local revenue officials. 3.20 Defendant No.3 has specifically denied any collusion between defendant No.7 Kempamma and the defendant No.1 Subbanna that OS No.318/1987 was compromised. The allegation of fraud, collusion as stated by the plaintiffs are all false and no details of fraud has been specifically mentioned in the plaint averments. Therefore, the suit of the plaintiffs is devoid of proper pleadings.
19
3.21 It is also specifically denied and contended by the defendant No.3 that defendant No.1 has developed illicit intimacy with his sister's daughter and determined to ruin the entire family of the plaintiffs and also colluded with the other defendants particularly defendant No.6 had given up his share in favour of defendant No.3 without any consideration etc., They are all denied as false. Defendant No.6 also denied the bigamy alleged against defendant No.1 in order to defraud or defeat the rights of the plaintiffs. Apart from that, defendant No.3 has specifically contended that the compromise entered into between the parties in OS No.318/1987 on 19.9.1991 has been well within the full knowledge and notice of all the parties and therefore, the plaintiffs cannot claim any right, title or interest over any properties except the properties which were allotted to the defendant No.1 in the compromise entered into in OS No.318/1987. In fact, it is specifically contended that the defendant No.3 with actual understanding to meet the legal necessities of the defendant No.1 with great difficulty got exchanged an item of the property by paying valuable consideration of Rs.1,40,000/- in the open court in the presence of the 20 Presiding Officer. The factum of this aspect is depicted in the order sheet of OS No.318/1987. Therefore, defendant No.3 has become the absolute owner in possession and enjoyment of the exchanged properties.
3.22 The further allegations made by the plaintiffs that at the time of compromise, though the defendant No.1's advocate was very much present in the court but declined to affirm his signature on the Compromise Petition for the reasons best known to him. At this juncture, the court on the submissions made by the parties, voluntarily recorded the compromise. Therefore, the said compromise decree passed in OS No.318/1987 is proper and correct and binding on the defendant No.1 and all the persons claiming under defendant No.1.
3.23 It is further contended that the plaintiffs are not entitled for any share in any of the properties. Compromise entered into between the parties in OS No.318/1987 is fair and equitable and also not un-equal amongst the members of the family. The plaintiffs cannot attribute the allegation of collusion and the said allegations are only on the basis of imagination and not a fact to be 21 taken into consideration by the Court. The defendant No.3 specifically denied all the other averments except which are admitted in the written statement. It is further contended that, in pursuance of the compromise decree in OS No.318/1987, a final decree was drawn as per the settlement and defendant No.3 has paid land revenue etc., Therefore, for all the above said reasons, defendant No.3 has prayed for dismissal of the suit.
3.24 Defendant Nos.4 to 7 who are the sisters of defendant Nos.1 & 3 have also filed their common written statement. They have categorically admitted the relationship between the parties. They have denied that defendant Nos.1 to 3 are only co-parcenors of the family and that female members are not entitled for any share in the properties. It is specifically stated that not only the male co-parcenors who are entitled to share in the Schedule properties, but these defendants who are the legal heirs have succeeded to the estate of late Muniyappa and therefore, they are also entitled for a share in the suit schedule properties. The defendants were totally kept in dark when the suit proceedings in OS No.49/1973 were taken place though the defendant Nos.1 to 3 were having 22 knowledge about the right and share of the defendant Nos.4 to 7.
3.25 It is further submitted by the defendants that as the defendants are not parties to either OS No.49/1973 or FDP No.8/1987, the said decree is not binding upon them. The defendant Nos.2 & 3 more particularly defendant No.3 encouraged and assisted in challenging the said decree by filing a suit in OS No.318/1987 through Kempamma. It is also submitted that the defendants could not act on their own in conducting the suit in OS No.318/1987 as the 3rd defendant herein who was instrumental for filing of the said suit was looking after the proceedings of the same. The defendant No.1 Subbanna though seriously contested the said suit at the beginning, however the differences that arose between Subbanna and his wife, the first plaintiff herein he compromised with the other brothers and conceded for the decree in OS No.318/1987 filed by the 7th defendant - Kempamma. 3.26 It is further contended that the allegations made by the plaintiffs that the defendant No.1 started discarding his wife and children are all false and baseless and also 23 denied that the daughter of 5th defendant had illicit intimacy with the defendant No.1 which raised a situation of discarding the plaintiffs by the defendant No.1. They have not denied the other allegations made in the plaint with regard to the right of the plaintiffs over the suit schedule properties on the ground that these defendants have no intention at any time to deprive the legitimate share of the defendant No.1 and in turn the plaintiffs if any in the suit schedule properties. Further, these defendants have also denied that there was collusion with each other in OS No.318/1987 and the female members were also allotted a share for which they are not entitled to, according to Hindu Law and only male members are entitled to the claim. Those allegations are emphatically denied by these defendants.
3.27 Ultimately, defendant Nos.4 to 7 have submitted that, they have no objection either for modification of the decree or nullifying the decree passed in OS No.318/1987 by safeguarding their legitimate share and interest in the Schedule properties. These defendants have got specific and definite share and entitled for partition and separate possession of their legitimate share 24 in the Schedule properties. It is further submitted that if the court comes to the conclusion that the decree passed in OS No.318/1987, is a nullity these defendants may be permitted to participate by re-opening the final decree proceedings in FDP No.8/1987 by impleading themselves as proper and necessary parties to the said proceedings which has arisen out of this FDP proceedings as well as in OS No.49/1973.
3.28 On pleading the above said averments in the written statement, the defendant Nos.4 to 7 have requested the court to pass an appropriate order in accordance with law.
3.29 Defendant No.8 has also filed a written statement independently who is the purchaser of item No.6 of the suit schedule properties. It is contended by this defendant that the suit of the plaintiffs is not maintainable both on law and on facts in respect of item No.6 of the suit schedule properties. It is further contended that 2/7th share in the suit schedule properties in OS No.49/1973 was allotted to the defendant No.1. Subsequently, in FDP Proceedings i.e., in FDP No.8/1987, a 25 compromise was entered into and Schedule item No.6 bearing Survey No.56 measuring 1 acre 20 guntas was specifically allotted to the defendant No.1 and the same has been accepted by defendant Nos.2 & 3, the Tahsildar along with his mother. Item No.6 and other items have also given to the defendant No.1. The defendant Nos.4 to 6 have also executed and accepted the title of the first defendant in respect of item No.6 of the Schedule properties.
3.30 The defendant has further submitted that defendant No.1 and plaintiff Nos.1 to 3 have executed a registered sale deed dated 7.9.1998 in respect of item No.6 of the suit schedule properties in favour of the 8th defendant and put him in possession of the property. Therefore, the defendant No.1 who became the owner in view of the FDP No.8/1987 and his name has been mutated in the revenue records, they have sold the said property for a consideration of Rs.1,50,000/- by handing over possession of the same to this defendant. The plaintiffs and defendant No.1 have not disclosed the pendency of the suit in OS No.318/1987. Therefore, the transaction between this 8th defendant is a bonafide 26 purchaser for consideration. Therefore, the suit is liable to be dismissed so far as item No.6 of the suit schedule property is concerned.
3.31 In fact, the plaintiffs have also stated in the written statement in their plaint with regard to item No.6 of the suit schedule property, specifically stating that the same is not available for partition between the parties.
4. On the basis of the above said pleadings, the trial Court has framed the following issues:
1. Whether the plaintiffs prove that the suit schedule properties are joint family properties of plaintiffs and 1st defendant?
2. Whether the plaintiffs prove that the decree passed in O.S.No.318/87 on 19.9.1991 by the Prl.Civil Judge, Bengaluru Rural District is null and void and not binding on plaintiffs No.1 to 7?
3. Whether the plaintiffs prove that each one of them are entitled to 5/6th share in plaint "B" Schedule properties?
4. Whether the plaintiffs prove that they are entitled to permanent injunction 27 restraining the defendants 1 to 7 from interfering with the plaint "B" Schedule properties?
5. whether the plaintiffs prove that the defendant No.1 should be restrained from alienating the plaint "B" Schedule properties?
6. whether the 3rd defendant proves that the suit is bad for mis - joinder of defendants 4 to 7 as parties?
7. what order or decree? "
5. The plaintiffs have led the evidence, examined one Anjanappa as PW1, Sri K.V. Munegowda as PW-2 and got marked Exhibits P-1 to P-17. Defendant No.3 Narasappa examined himself as DW-1 and got marked Exhibits D1 to D-16. After analyzing oral and documentary evidence on record, the trial Court has answered issue Nos.1 to 5 in the Negative and issue No.6 as 'does not survive for consideration' and finally dismissed the suit of the plaintiffs. Against which judgment and decree, the present Appeal is preferred.
28
6. The plaintiffs have raised various grounds before this court in the Memorandum of Appeal.
The grounds taken up by the appellants are briefly stated as follows:
(1) The judgment and decree passed by the trial Court is illegal and incorrect and the same is opposed to facts, probabilities and circumstances of the case.
(2) The judgment and decree passed by the trial Court is erroneous and the court has committed serious error in dismissing the suit of the plaintiffs on the ground that no where they speak regarding entire suit schedule properties and the witness K.V. Munegowda examined on their behalf as PW-2 as maternal uncle of PWs.2 & 3. Therefore, he is an interested witness and spoken as per the case of the plaintiff and it cannot be relied upon.
(3) The trial Court has also committed error in dismissing the suit of the appellant on the 29 ground that the evidence of PW.1 is not supported with the documentary evidence as on the date of the suit, they have not shown that the suit schedule properties are joint family properties of the plaintiff and defendants. (4) The trial Court also committed serious error in not properly considering that the defendant No.1 who is the husband of plaintiff No.1 and father of plaintiffs 2 & 3 in OS No.318/1987 in respect of the joint family properties in which second and third plaintiffs have got equal share as that of the first defendant.
(5) The trial Court has not properly appreciated and considered the oral and documentary evidence and failed to held that the defendants 1 to 3 have colluded with each other in entering into compromise in OS No.318/1987 detrimental to the interest of the plaintiffs. (6) The trial Court has also not properly appreciated and committed error in holding that the first defendant by receiving Rs.1,40,000/- from the 30 3rd defendant could not have relinquished his right in the land bearing Survey No.23/2 in his favour detrimental to the right of the shares of the plaintiffs in the suit schedule property. (7) The trial Court also committed an error that the first defendant has received the consideration of Rs.1,40,000/- from the 3rd defendant and purchased some properties in the name of his wife which is not proper and correct. However, the first plaintiff has purchased the property with the financial assistance of her father. (8) Looking from any angle, the conclusion reached by the trial Court is erroneous and findings of the trial Court on the issues are not proper and correct. Therefore, the same are liable to be set aside.
7. I have heard the arguments of the learned counsel for the appellant and also the respondents and I have carefully perused the oral and documentary evidence on record. Considering the issues framed and findings given by the trial Court as well as the grounds urged 31 before this court, the points that would arise for the consideration of this court are:
(1) Whether the plaintiffs prove that the decree passed in OS No.318/1987 on 19.9.1991 by the Principal Civil Judge, Bengaluru Rural District is null and void and not binding on the plaintiff Nos.1 to 3 so far as it relates to the property bearing its Survey No.23/2 which is mentioned as suit item No.1 mentioned in the suit Schedule.
(2) Whether the plaintiffs prove that they are entitled for5/6th share in the said property?
(3) Whether the plaintiffs prove that they are entitled for permanent injunction restraining the defendant Nos.1 to 7 from interfering with the plaint B-Schedule properties?
(4) Whether the plaintiffs prove that defendant No.1 should be restrained from alienating the plaint B-Schedule property.
(5) What order?
8. The above said points have been formulated by this court as the learned counsel for the appellant 32 elaborating his arguments on the above said grounds of appeal has specifically submitted that they are confining the suit and as well as their appeal only in respect of property bearing Survey No.23/2 which is more fully described in the Schedule to the plaint as item No.1 in the Schedule measuring 3 acres 06 guntas bounded on East by bund, West by Bommannaiah's land, North by Tank bund and South by Bommanahalli.
9. The learned counsel for the appellant strenuously contended that this particular property said to have been exchanged between the first defendant and the third defendant and the same is not in accordance with law and the parties have entered into compromise with utter dis- regard to the earlier compromise entered in FDP No.8/1987. Therefore, to the extent of the said property only, the plaintiffs have been confined their suit as well as the appeal. Therefore, there is no need for this court to go in detail in respect of other properties concerned and the plaintiffs have also no objection so far as other properties are concerned as mentioned in the Memorandum of Appeal as well as while arguing the matter.
33
10. In view of the above said submissions, I will only confine myself to the pleadings of the parties and the evidence led only in respect of the above said property to find out whether the compromise entered into between the parties in OS No.318/1987 is bad in law and there was any exchange of property of the above said suit Schedule Survey number between defendant No.1 and defendant No.3 and whether it is in any manner detrimental to the interest of the plaintiffs.
11. On perusal of the pleadings of the parties, the plaintiffs themselves have admitted and which is also not disputed by the defendants that, the defendant No.1 Subbanna has filed a suit in OS No.49/1973 narrating that, the suit schedule properties are the ancestral and joint family properties of the plaintiffs and defendants therein in the said suit. Subsequently, the said suit was ended up in FDP No.8/1987 and in the proceedings, the suit schedule properties were partitioned as per the compromise decree, wherein the present suit schedule properties were fallen to the share of the first defendant herein i.e., the husband of the first plaintiff and father of plaintiffs 2 & 3. Subsequently alleging that the family members were not 34 made as parties to the suit, one Kempamma sister of the first defendant filed a suit in OS No.318/1987. In the said suit also, all the Schedule properties which were the subject matter of the suit in OS No.49/1973 were incorporated as the suit schedule properties in OS No.318/1987. During the course of evidence also, the parties have not disputed the above said proceedings. In OS No.318/1987 also, there was a compromise decree entered into between the parties and there also, they have categorically stated that all the properties are ancestral and joint family properties of plaintiffs and defendants therein. The plaintiffs have not stated anything in the documents produced marked at Exs.P1 to P17 with regard to the entire suit schedule properties, but they have only stated that the suit schedule properties are fallen to the share of the first defendant. The trial Court after considering all the documentary and oral evidence, has come to the conclusion that on the basis of the above said admission of the parties and particularly, the properties which were fallen to the share of the first defendant, which he acquired in FDP No.8/1987 arising out of a partition suit in OS No.49/1973. Those pleadings of the first defendant 35 cannot be denied by the plaintiffs herein because they claim their share in the suit schedule property entering into the shoes of the first defendant. Therefore, when the first defendant got the above said suit schedule properties to his share in FDP No.8/1987, it cannot lie in the mouth of the defendants that the suit schedule properties are not joint family properties of all the parties at all. Even as I have already narrated that, even in the previous proceedings in OS No.49/1973 and OS No.318/1987, the parties have construed all the properties in the Schedule there in the said suit as their joint family properties because of that reason, they have partitioned the said properties amongst themselves. Whether the said partition in FDP No.8/1987 or in OS No.318/1987 are proper and correct or whether the decree passed in OS No.318/1987 is bad in law and it is out of collusion between the defendants has to be considered by this court while answering the other issues. Therefore, there is no reason for this court to come to any conclusion otherwise than the opinion expressed by the trial Court holding that the suit schedule properties are the joint family properties of the parties to the proceedings. Thought the trial Court 36 has held that the suit schedule properties are the joint family properties of the plaintiff and defendant No.1, but it failed to hold that the decree passed in OS No.318/1987 is null and void. Though the trial Court has failed to hold that the plaintiffs have not proved that the suit schedule properties are the joint family properties of plaintiffs and defendant No.1 alone, but for the purpose of considering the other issues, the court has held that the suit schedule properties are the joint family properties of not only the plaintiff and first defendant, but also all the other parties to the proceedings. Otherwise, the court cannot decide the other issue whether the decree passed in OS No.318/1987 is valid or bad in law.
12. FIRST POINT FOR CONSIDERATION:
So far as the first point formulated by this court is concerned, it is the burden on the plaintiff to prove that the decree passed in OS NO.318/1987 dated 19.9.1991 is out of collusion and the same is null and void and not binding on plaintiff Nos.1 to 3 so far as it relates to the proceedings bearing Survey No. 23/2 which is mentioned as item No.1 in the suit schedule property. 37
13. The learned counsel for the respondents has categorically argued before the court that in order to prove collusion, fraud with reference to the decree validly passed by a competent court, in OS No.318/1987, there should be a pleading and proof to that effect. He submitted that there is no sufficient pleadings so far as this aspect is concerned. Therefore, without there being any pleadings, the plaintiffs cannot be allowed to prove the said fraud or collusion as pleaded in a bald manner in the plaint and any such evidence in this regard cannot be taken into consideration by the court.
14. In this context, learned counsel for the respondent No.3 has relied upon a decision of the Hon'ble Apex Court in Civil Appeal Nos.5798-5799/2008 between Bachhaj Nahar Vs. Nilima Mandal & Another, wherein the Hon'ble Apex Court has observed in the said appeal in the following manner:
(1) The object and purpose of pleadings and issues is to ensure that the litigants come to trial with all issues clearly defined and to prevent cases being expanded or grounds being shifted during trial. 38 (2) The object of issues is to identify from the pleadings, the questions or points required to be decided by the courts so as to enable the parties to lead evidence on the basis of their pleadings and the issues framed.
(3) It is well settled principle that without sufficient pleadings and issues thereon, evidence cannot be considered to make out a new case which is not pleaded.
15. To the similar effect, the Hon'ble Apex Court in Civil Appeal No.870/2011 between Kalyan Singh Chouhan and C.P. Joshi, has said that in the absence of pleadings, the evidence if any produced by the parties cannot be considered. It is equally settled that no parties should be permitted to travel beyond its pleadings and that all necessary material fact shall be pleaded by the parties in support of his case.
16. From the reading of the above said decision, it is clear that it is a fundamental basic principles in a civil suit that the parties have to sufficiently plead about their case and lead evidence in this regard. The courts decision cannot be based on any grounds outside the pleadings of 39 the parties and without pleadings, even if any evidence is led to that effect, the same cannot be taken into consideration by the courts.
17. The appellants counsel in this regard also argued before the court that the court has to look into the pleadings of both the parties as well as the issues framed by the court. The parties admittedly from moffusal area, the moffusal pleadings have to be liberally understood. On overall reading of the entire pleadings, the court has to understand what exactly, the case of the parties, when both the parties have given their pleadings and court has framed issues and parties have led evidence understanding what are their cases and how they have to prove their cases, in such an eventuality, mere not giving the meticulous details with regard to the collusion or fraud or binding nature of the decree should not in any manner oust the parties from the court from seeking their remedy if really they are entitled for such remedy before the court.
18. In the decision relied upon by the respondents cited supra Bachhaj Nahar's case, the Hon'ble Apex Court has also observed that the court has to consider the 40 question whether any relief can be granted when the defendant had no opportunity to show that the relief proposed by the court could not be granted. If the court considers and grants any relief which is outside the purview of the court, then only it will lead to miscarriage of justice. Therefore, looking to the above said proceedings, it is clear that if on overall reading of the entire pleadings and evidence of the parties, the court has to consider whether there is sufficient pleadings and evidence in order to prove the contention taken by the plaintiffs and the defendants. On overall meaningful and understanding of the pleadings as well as evidence of the parties, the court has to find out whether the parties have really understood their cases and put forth all their grievances before the court and also consequential issues are framed by the court. Further, if the court is of the opinion that the parties have understood their cases and brought all the evidence on record, in such an eventuality, the main object of the court has to find out whether the parties are entitled for any remedies before the court in order to avoid future litigation between the parties and complexities in the case etc., 41
19. It is quiet understandable and well re-cognized principle that moffusal pleadings have to be understood broadly considering the contentions of the parties meted out by them against each other. Too much importance and meticulous expectation of pleadings may cause injustice to either of the parties. Therefore, the court has to understand what is the case of the plaintiff and defendants on the broad understanding of the case between the parties, the court has to deal with the matter.
20. In this background, as I have observed that the plaintiffs have specifically taken up the contention in their plaint that, the first defendant in fact, when the case in OS No.318/1987 was pending, has developed some close intimacy with the daughter of one of his sister and he committed an act of bigamy and started neglecting the plaintiffs. In this connection, a notice was issued to the first defendant demanding an amount of Rs.1,000/- per month as maintenance. It is also urged in the plaint that in view of the above said development in the family, the defendant No.1 in order to defeat the rights of plaintiffs, colluding with other defendants in the said suit, (O.S.No.318/87) hatched out a plan indulging in dividing 42 the properties between themselves by filing a compromise petition and in fact, the first defendant parted with a valuable properties to the third defendant Narasappa and also readjusted the other properties given to him. In the earlier partition in FDP No.8/1987. It is also specifically pleaded that the said compromise was not actually accepted by the counsel for the first defendant, and he did not participate in the proceedings and he did sign the compromise petition. It is also contended that the first defendant and the third defendant have colluded with each other and in order to defraud the plaintiffs, one of the property bearing Survey No.23/2 measuring 3 acres 06 guntas was given to the third defendant in utter disregard to the earlier decree passed in FDP No.8/1987 in favour of the first defendant.
21. This particular aspect has been specifically denied by the other side Defendant Nos.1 and 3 by saying that, there was absolutely no collusion between the defendants in OS No.318/1987 no collusion between the defendants in OS No.318/1987 but the defendant No.1 has voluntarily given up his properties in favour of third defendant and as well as the disputed property i.e., Survey No. 23/2. The 43 said Land was given in exchange of consideration of Rs.1,40,000/- and the said amount was actually received from the third defendant by the plaintiff herself. The said transaction of payment of Rs.1,40,000/- and entering into the compromise has been accepted by the court in OS No.318/1987. The defendant No.1, in fact relinquished his share in the said property by receiving the said amount. Therefore, all the above said factual aspects have been taken place in accordance with law and as such, the said contention of the plaintiff cannot be countenanced. It is also contended that after taking money of Rs.1,40,000/- , the plaintiffs and the first defendant have purchased some more properties utilizing the said amount. Therefore, it is clear that the first defendant and plaintiffs have jointly accepted the receipt of the amount of Rs.1,40,000/-. Therefore, they cannot subsequently say that there was a collusion between the parties.
22. Therefore, the above said pleadings clearly discloses that though meticulously the fraud or collusion in what manner it has been taken place has not been pleaded. Nevertheless, the parties have understood the case against each other that the plaintiff has to establish 44 that there was collusion between the defendants 1 to 3 in OS No.318/1987 and that there was less property taken by defendant No.1 and there cannot be any exchange of any property for consideration and the plaintiffs have not purchased any property out of any amount particularly an amount of Rs.1,40,000/-, alleged to have been paid by the defendant No.3. On the other hand, the defendants have to establish before the court that during the pendency of the suit in OS No.318/1987 of the properties have been equally distributed depending upon the value of the properties as well as the defendant No.1 had in exchange of Rs.1,40,000/- given up is property rights or virtually relinquishing his right over Survey No. 23/2 i.e., suit item No.1. Further, the defendants also have to establish that, after obtaining the said amount, the plaintiff and defendant No.1 have utilized the said amount for the purpose of purchasing some of the properties. Therefore, the plaintiffs' suit cannot be thrown out because there was no detailed and meticulous pleadings. The pleadings pleaded by the plaintiff sufficiently understood by both the defendants 1 and 3 and both the parties have led evidence in this regard. Therefore, in my opinion, the plaintiffs' 45 pleadings are sufficient to proceed to decide the dispute really existed between the parties.
23. Before adverting to the above said two aspects, as per the pleadings of the parties, it is just and necessary to extract as to what are all the properties that were fallen to the first defendant and the third defendant and another brother of the first defendant in FDP No.8/1987 and how the said properties were re-adjusted in the subsequent compromise entered in OS No.318/1987. Therefore, it is just and necessary to extract the Schedule attached to the above said Compromise Petition in the above said two cases.
"THE COMPROMISE ENTERED INTO BETWEEN PLAINTIFF SUBBANNA AND HIS MOTHER NANJAMMA AND OTHERS IN FDP No.8/87 ARISING OUT OF OS.NO.49/1973 IS EXTRACTED BELOW:
FIRST SON ERAPPA'S SHARE (1) Survey No.53 measuring 3 acres 5 guntas (2) Survey No.54 measuring 3 acres 35 guntas.
SECOND SON SUBBANNA'S SHARE (1) Survey No.23/2 measuring 3 acres 6 guntas situated at Lagumenahalli.
(2) Survey No.23/1 measuring 28 guntas (3) Survey No.21/1 measuring 1 acre (Tobacco) (4) Survey No.11/2 measuring) 11 guntas (Gadde) 46 (5) Survey No.22 measuring 1 acre 22 guntas (Hola) (6) Survey No.56 measuring 1 acres 26 guntas (7) 418/404 - 418 and (8) 421 - 418 - 48 feet -
Three ankana Mangaluru tiled house along with 10
- 12 coconut trees. He has also agreed to leave 18 feet passage in site No.78 (Kaneshmari) for the use of Narasappa.
****** THIRD SON SUBBANNA'S SHARE (1) Survey No.67 measuring 2 Acres 16 guntas (2) Survey No.25/1 measuring 1 Acre (3) Survey No.25/2 measuring 32 guntas (4) Survey No.8 measuring 1 Acre 20 guntas (5) Survey No.9/2 measuring 6 guntas - also includes a well and current machines plus the pump house.
******* COMPROMISE ENTERED INTO BETWEEN THE PLAINTIFF KEMPAMMA AND DEFENDANTS SUBBANNA AND OTHERS IN OS NO.318/1987 BY WITHDRAWING ALL THE ALLEGATIONS MADE IN THE PLAINT AGAINST EACH OTHER AND CONSENTED TO SET ASIDE THE JUDGMENT AND DECREE PASSED IN OS NO.49/1973 AND FDP NO.8/1987 DT.
29.9.1987.
SCHEDULE-A (Given to the share of plaintiff Kempamma) (1) Agricultural land bearing Survey No. 54 out of the total extent of 3 acres 35 guntas on the eastern side an extent of 0.30 guntas is given to 47 the share of Kempamma. The remaining land is retained by the 3rd defendant, situated at Lagumenahalli village bounded on:
East by - Land of Narayanappa West by - Yeerappa's land in the same Survey No. North by - Muniswamappa land South by -Pillaiah's land (2) Properties given to the share of defendant Nos.4, 5 and 6 agricultural land bearing Survey No.23/1 measuring 0.28 guntas situated at Lagumenahalli village bounded:
East by - Family property West by - Bommenahalli limits North by - Private land South by - Family land.
(3) Dry land bearing Survey No.67/2 out of the total extent a portion measuring 0.20 guntas on the western side, bounded on:
East by - Family property West by - Kempamma's land North by - Iyanna's land South by - Munihanumaiah's land Item Nos.2 & 3 are jointly enjoy and possess by the defendants 3, 4, 5 and 6.
SCHEDULE-B Properties given to the share of Subbanna the first defendant:
(1) Agricultural land bearing Survey No. 21/1, measuring extent of 1 acre bounded on:48
East by - Tank Bund West by - Own land North by - Tank Bund South by - Bandiganahalli limits (2) Land bearing Survey No. 11/2 extent of 0.11 guntas situated at Lagumenahalli bounded on:
East by - Land of Savitramma West by - Logumenahalli border North by - Savitramma's land South by - Patel Chikkanna's land (3) Land bearing Survey No. 56, measuring 1 acre 22 guntas situated at Bommanahalli village bounded on East by - Ammani Tank Bund West by - Poojari Manjappa's Land North by - Ammani Doddakere South by - Munihanumappa's land (4) Kaneshumari No.418, 421 measuring East to West - 36 feet North to South - 6 feet With tiled roof house and coconut plants.
In the said land high of way measuring 12 feet is reserved for Narasappa.
SCHEDULE-C Properties given to the share of Erappa:
(1) Agricultural land bearing Survey No. 53
situated at Bandiganahalli village measuring 3 acres 5 guntas bounded on:
East by - Narayanappa's land West by - Swamivallin's land North by - Channel 49 South by - Dodda Munihanumaiah's land.
(2) Land bearing Survey No. 54 in the total extent of 3 acres 35 guntas, 0.28 on the eastern portion is given to the share of plaintiff and other female heirs (3.05) situated at Bandiganahalli village bounded on:
East by - property given to the share of Plaintiff and other female members West by - own land North by - Channel South by - Huskur Muniswamappa's land SCHEDULE-D Property given to the share of Narasappa: (1) Agricultural land bearing Survey No. 67
measuring 1 acre 25 guntas situated at Lagumenahalli village bounded on the 0.28 guntas is given to the share of the plaintiff:
East by - Own land West by - Papaiah's land North by - Venkatappa's land South by - Own land (2) Agricultural land bearing Survey No. 25/1 situated at Lagumenahalli village measuring extent of 1 acre bounded on:
East by - Own land West by - Venkatappa's land North by - Gramatana land South by - Tank bund.
(3) Agricultural land bearing Survey No. 25/2 situated at Lagumenahalli village measuring 0.32 guntas bounded on:50
East by - Own land West by - Own land North by - Gramathana land South by - Tank bund (4) Agricultural land bearing Survey No. 8 situated at Lagumenahalli village, measuring extent of 1 acre 20 guntas bounded on:
East by - Tank bund West by - Sanna Muniyappa's land North by - Dodda Munihanumaiah's land and chikkanna's land South by - Ramakrishna's land (5) Agricultural land Sy.No.23/2, situated at Lagumenahalli village, measuring extent 3.06 guntas, bounded on:
East by - Subbanna's land West by - Bommenahalli limits North by - K.C.Sitharamaiah's land South by - Subbanna's land (6) Agricultural land Sy.No.9/2, situated at Lagumenahalli village, measuring extent 0.06 guntas, bounded on:
East by - panchayathi road West by - Own land North by - Tank and Chikkanna's land South by - Tank Bund"
24. On careful perusal of the above said two decrees, it is clear that in FDP No.8/1987, the first defendant has got as many as six properties totally measuring 8 acres 13 guntas and also two sites bearing No.418/404 and 421. On the other hand, the third defendant Narasappa has got 51 five properties to him totally measuring 5 acres 34 guntas. On the other hand, in OS No.318/1987, the first defendant has got only three landed properties totally measuring 2 acres 11 guntas and two sites 418, 404 and 421 and the third defendant has got six properties totally measuring 8 acres 9 guntas including Survey No. 23/2 measuring 3 acres 6 guntas. Therefore, apparently, on looking into the above said re-adjustment of the above said properties, the first defendant has got very less properties and third defendant got more extent than the defendant No.3 in this regard, apart from the other properties allocated in favour of the plaintiff and defendants 4 to 7 in OS No.318/1987.
25. Be that as it may, I am not concerned with the re-adjustment with all the properties because the plaintiffs have also not so serious about the said aspect, but they have only concentrating on Survey No. 23/2 measuring 3 acres 6 guntas alleging that the said property could not have been exchanged as no amount of Rs.1,40,000/- has not proved to be paid. Therefore, the said property could not have been allocated to defendant No.3 Narasappa. 52
It is worth to mention here that the defendants 4 to 7 in this case, have absolutely no objections for re- adjustment of the properties or even for partition.
26. Now, coming to the above said property whether it could have been exchanged for a consideration. The specific defence taken by the third defendant in his written statement, as noted above, it is clear that at paragraph 6 of the written statement it is pleaded that, the defendant No.3 with mutual understanding to meet the legal necessities of first defendant with great difficulty got exchanged an item of the property by spending valuable consideration of Rs.1,40,000/- in the open court in the presence of the Presiding Officer. Therefore, it is the specific defence taken that the property i.e., property No.23/2 measuring 3 acres 6 guntas was got in exchange for Rs.1,40,000/- and the same was paid in the presence of the Presiding Officer of the court, whether this pleading has been proved by the defendant which virtually benefits the plaintiff. The plaintiffs need not give any negative proof that the amount has not been paid though they have taken that contention in the evidence. On the other hand, the person who positively taken the defence has to 53 prove that, he has paid an amount of Rs.1,40,000/- in exchange of the said property.
27. The Transfer of Property Act, 1882 recognises exchanges. Exchange is also a type of transfer of the property. The word "Exchanage" as defined u/s.118 of the Transfer of Property Act, 1882, reads thus:
"118. "Exchange" defined - When two persons mutually transfer the ownership of one thing for the ownership of another, neither thing or both things being money only, the transaction is called an "Exchange".
A transfer of property in completion of an exchange can be made only in manner provided for the transfer of such property by sale."
When two persons mutually transfer the ownership of one thing for the ownership of another, neither thing or both things being money only, the transaction is called exchange. The Transfer of Property in completion of an exchange can be made only in the manner provided for the transfer of such property by sale.
54
28. Therefore, any exchange of properties as such if at all to be taken that should be done as if it is a sale, which has not been done so far as this case is concerned. Even otherwise, the said transaction cannot be called as an exchange because of the simple reason that the things which are sought to be exchanged between the parties, neither thing, or both the things should be money, otherwise, it only amounts to exchange of one thing to the money or exchange of money with each other i.e., not recognized u/s.118 of the Transfer of Property Act,1882. Therefore, it cannot be an exchange of the property between the parties.
29. Whether it amounts to relinquishment of his right by the defendant No.1 over the said property by receiving an amount of Rs.1,40,000/-. Of course, there need not be any registered document when, the parties adjust the properties themselves in a partition suit by taking money giving up the rights over their properties. Therefore, it goes without saying that if a person wants to relinquish his right or share over the property, first he should have right over that property and then he can relinquish his right. That relinquishment also shall be proved to the satisfaction 55 of the court in order to draw an inference that the first defendant after receiving an amount of Rs.1,40,000/- relinquished his right over Survey No. 23/2 in favour of third defendant. Therefore, in this background, the court has to see on the basis of the above said pleadings, whether the plaintiffs have shown that the said amount has not been paid to the first defendant or whether the defendant No.3 has proved that the first defendant has relinquished his right, title, interest over Survey No. 23/2 in favour of the third defendant, by taking consideration of Rs.1,40,000/-.
30. The first defendant in his pleadings particularly in the written statement at paragraph 6, has categorically stated about the settlement arrived in OS No.318/1987 arrived at between the parties with the full knowledge and consent, and defendant No.1 received the substantial consideration of Rs.1,40,000/-.
31. It is the specific case of the defendant No.1 that the said amount was given to the hands of the plaintiff by defendant No.3 directly and the plaintiff, and out of the settlement consideration, purchased immovable 56 agricultural properties at Kurubarahalli, in Devanahalli taluk in her name. Therefore, it is clear that the defendant No.1 has not actually received any amount of Rs.1,40,000/-, but it is the case that defendant No.3 that he has given the said amount to the hands of the plaintiff. But plaintiff has denied the said allegation. So far as this aspect is concerned, defendant No.3 in his written statement at paragraph 6 has stated that - "In fact and truth this defendant (defendant No.3) with mutual understanding to meet the legal necessities of first defendant, with great difficulty got exchanged an items of the property by spending valuable consideration of Rs.1,40,000/- in the open court in the presence of the Presiding Officer. Therefore, it is the specific case of defendant No.3 that he has paid the amount to defendant No.1 in the open court in the presence of the Presiding Officer. Therefore, it is not the case of defendant No.3 in his pleadings that he has paid any amount to the plaintiff No.1 as contended by defendant No.1."
32. Now, let me see what is the oral evidence so far as this aspect is concerned:
57
PW-1 Anjanappa i.e., plaintiff No.2 examined before the court. He has stated so far as this aspect is concerned at paragraph 12 in the course of cross examination. When it is suggested that in OS No.318/1987, the defendant No.3 has paid an amount of Rs.1,40,000/- in the open court, but he denied the same. Therefore, it is consistent in the evidence of PW-1 with reference to the pleadings of the parties that it is a clear cut case of defendant No.3 that the said amount was paid in the open court. It is also suggested that after taking that money of Rs.1,40,000/-, the plaintiffs have purchased some properties but the said aspect is also been denied. To PW-2 also, at paragraph 5 of his cross examination, similar suggestion has been made that defendant No.1 has received an amount of Rs.1,40,000/- to give up his right over Survey No.23/2 and out of the said money, the plaintiffs have purchased some other properties. The said suggestion again has been denied.
33. Defendant No.3 Narasappa is examined as DW-1. In his evidence, at paragraph 5 of his examination in chief, he has totally given a go-bye to his pleadings and he has stated that at the time of compromise in OS No.318/1987, 58 the defendant No.1 told that he want to sell the property bearing Survey No. 23/2 for the purpose of giving amount to the plaintiffs. Therefore, he requested defendant No.3 to purchase the said property as such, in the compromise, defendant No.3 (DW-1) has paid an amount of Rs.1,40,000/- to defendant No.1. It is specifically stated that the said amount of Rs.1,40,000/- was paid in the court itself and thereafter only after receiving the money, the defendant No.1 has signed the compromise petition and as well as the order sheet. It is also stated that after receiving the said amount of Rs.1,40,000/-, the plaintiffs and defendant No.1 have purchased different properties which I will discuss little later.
34. Though it is stated consistently that the amount was paid in the court. Now, let me see what exactly in the cross examination, this witness says. In the course of cross examination at paragraph 15 that, an amount of Rs.1,40,000/- was given in a lumpsum before the court by this witness to defendant No.1. But he has not taken any receipt for having paid the said amount. At that time, the plaintiff Kempamma in the said case and other sisters were also present. He also admits that the same has been re- 59 iterated in the Compromise Petition also. He also further deposed when the Judge has asked defendant No.1, whether he has received the amount, he accepted the same. He denied the suggestion in the course of cross examination that DW-1 has got written in the Compromise Petition that the said amount of Rs.1,40,000/- was given before the panchayathdars in respect of 3 acres 6 guntas of the said Survey number. He has also denied the said suggestion that he also stated that when he paid the amount of Rs.1,40,000/- to the defendant No.1, the panchayathdars by names Pramod and Narayanappa were also present, but they have not signed any papers, but they have seen the payment of Rs.1,40,000/- made to the first defendant.
35. In this background, the Compromise Petition in OS No.318/1987 play a dominant role which is marked at Ex.D1. The Compromise Petition filed under Order 23 Rule 3 of CPC at paragraph 6 of the Compromise Petition it is recorded that "The first defendant has mutually agreed to relinquish the right, title and interest in respect of a item of land bearing Survey No.23/2 in 60 favour of the third defendant. The said relinquishment is in exchange of due consideration of Rs.1,40,000/- from third defendant in the presence of panchayathdars. The first defendant to meet his financial need and to meet the legal necessities in the family has consented for this mutual arrangement, in presence of panchayathdars. The third defendant is put in possession of the said property bearing Survey No. 23/2 measuring extent of 3 acres 6 guntas as detailed in the Schedule."
Therefore, in the said Compromise Petition, there is no mention that defendant No.3 has paid the said amount before the court in the presence of the Presiding Officer. In this background, the order sheet in OS No.318/1987 has to be seen. The above said compromise was entered on 19.9.1991 before the Principal Civil Judge, Bengaluru Rural District. The entire records in OS No.318/1987 is also available before this court. The order sheet dated 19.9.1991 discloses that IA was filed under Order 23 Rule 3 of CPC and the same was allowed and the suit of the plaintiff was decreed in terms of the Compromise Petition. It appears, all the parties including the first defendant has signed this order sheet. But no where it is mentioned in 61 the order sheet that any amount of Rs.1,40,000/- was paid on that particular day by defendant No.3 in favour of defendant No.1 and the defendant No.1 has accepted and admitted the same before the court. Though the LTM of Subbanna is available in the order sheet, but no endorsement is made to that effect with regard to payment or receipt of the said amount. Therefore, the said contention of the defendant No.3 that he has paid the amount of Rs.1,40,000/- before the court in the presence of the witnesses is not supported by any materials. On the other hand, as I have already narrated, that in the course of cross examination, he has stated that the said amount was paid in the presence of the panchayathdars and panchayathdars were present by names Pramad and Narayanappa, but none of them have been examined before the court. Even in the Compromise Petition, it is admitted that the said amount was paid in the presence of panchayathdars and no where it is stated that the said amount is paid before the court. Therefore, a doubt arises whether any amount has been paid to defendant No.1 by defendant No.3 in this regard or as pleaded by the plaintiffs, because of the collusion, defendant No.1 has 62 falsely admitted the receipt of Rs.1,40,000/- from defendant No.3. Even the pleading of Defendant No.1 clearly discloses that he has not actually received the money to defendant No.3 directly paid the money to plaintiff No.1 it is not the case of defendant No.3. Therefore, the above said facts and circumstances of the case creates a serious doubt with regard to passing of any consideration and relinquishment of any property in respect of Survey No.23/2 in favour of defendant No.3.
36. Another ground taken up by defendant No.3 in his written statement that after receipt of a sum of Rs.1,40,000/-, deceased defendant No.1 and plaintiffs have purchased various properties in their names. Defendant No.3 has in fact specifically pleaded in his written statement at paragraph 6 that -
"... ... after receiving the substantial consideration of Rs.1,40,000/-, the same was given to the hands of the plaintiff by defendant No.3. The plaintiff out of the said settlement consideration amount, purchased immovable agricultural properties at Kurubarahalli, Devanahalli Taluk in her own name." 63
37. Therefore, defendant No.3 so far as this aspect is concerned has not stated anything in his written statement, but he has in fact led evidence. The trial Court while considering this aspect, in issue Nos.1 & 3 has observed that the said aspect has been admitted by PW-1 in his evidence and in the cross examination he has stated that his mother's father has purchased the said land in the name of his mother and father. But the court held that to prove the said aspect, neither the grand father nor the grand-mother has been examined in order to produce any document. Therefore, the court held that in the absence of any material, defence of defendant No.1 has to be accepted and the same is supported with the admission of PW-1 in his cross examination.
38. Perhaps the above said aspects made the plaintiffs before this court as appellants to file an application under Order 41 Rule 27 of CPC seeking production of certain documents before the court and also to lead further evidence. After hearing the appeal on merits, this court earlier vide its Order dated 17.4.2013 allowed IA No.1/2012 and remitted the matter to the trial Court in order to enable the plaintiffs to produce the 64 originals of the document said to be tendered as evidence and to lead such evidence as may be relevant to explain the documents and the circumstances attended thereto. The court also directed the witness or witnesses for the plaintiffs, so examined shall be subjected to cross examination if the otherwise so desires and the trial Court shall thereafter transmit the entire record to this court for fresh hearing.
39. In pursuance of the above said order of this court, the further evidence of the plaintiff has been recorded by the trial Court, who was further examined as PW-1 and produced the documents Exhibits P-18 to P-22. These are all the documents produced by the plaintiff and circumstantial evidence has been adduced to show that the allegations made by defendant No.1 that plaintiff No.1 after receipt of Rs.1,40,000/- has purchased some properties in her name. Therefore, the said amount has been beneficially utilized by them. In this background, the court has to see whether these documents establish that an amount of Rs.1,40,000/- alleged to have been given to plaintiff No.1 has been utilized for the said purpose or not. 65
40. In the further evidence of PW-1, after the application under order 41 rule 27 was allowed, the plaintiff has produced the above said documents to establish that all the transactions have been taken place much prior to the decree passed in OS No.318/1987. Therefore, it is contended that the purchase of the properties by the father of plaintiff No.1 (defendant No.1) is nowhere connected with any amount alleged to have been paid by defendant No.3. It is worth to note here, that the plaintiffs never admitted that either the defendant No.1 has received any amount of Rs.1,40,000/- or plaintiff No.1 has received such amount in this regard. DW-1 in his evidence at paragraph 6 has stated that after receiving of an amount of Rs.1,40,000/-, the plaintiff No.1 has purchased 2 acre 28 guntas in her name and in the name of her children situated at Doddakurubara Halli Village and also that the first defendant has agreed to purchase the same land from Rangamma out of the said amount. It is also alleged that out of the said amount, apart from purchasing the land from Rangamma, the first defendant has also purchased a house at Nagaiahnapalya and also he executed a Will in favour of one Anjanamma and 66 Anjanamma has been taking rents from the said house. This particular aspect has been denied by the other side i.e., plaintiffs in the course of cross examination. In support of the same, to establish that the said property as alleged by defendant No.3 was purchased by the father of the first plaintiff No.1 much earlier to the present suit proceedings in OS No.318/1987.
Now, let me examine the said document and additional evidence produced by the plaintiff.
41. It is also worth to note here that the defendants have not produced any documents to establish the same with regard to the alleged purchase of the properties after the receipt of Rs.1,40,000/-, as alleged in the written statement. However, they only rely upon the evidence adduced by the plaintiff PW-1 in the cross examination.
42. The documents produced before the court i.e., Ex.P-19 which is the sale deed dated 24.1.1990 shows that, this document was executed by C. Rangamma W/o. late Subba Rao and others in favour of PW-1 Anjanappa who was minor at that time represented by his guardian defendant No.1 Subbanna in respect of land bearing 67 Survey No.32 totally measuring 14 acres 6 guntas; out of that 2 acres 28 guntas was sold in favour of PW-1 as a minor.
43. As I have already referred to the evidence of DW- 1 at paragraph 6 of his cross examination that the plaintiffs have purchased 2 acres 28 guntas of land situated at Doddakurubara Halli village from Rangamma. This particular document clearly discloses that at any stretch of imagination, it can be said that the said amount of Rs.1,40,000/- was utilized for the purpose of purchasing this document because even according to the compromise in OS No.318/1987, the said compromise was entered into between the parties on 19.9.1991, but this property was purchased in the year 1990 itself. Therefore, it cannot in any manner correlate the said allegations made by the plaintiff.
44. Ex.P-20 is another document dated 24.1.1990. This document also shows that plaintiff No.1 Gowramma in respect of the property situated at Doddakurubarahalli village to the extent of 2 acres 28 guntas. Therefore, this document also clearly discloses that this document came 68 into existence much prior to the alleged compromise entered into between the parties in OS No.318/1987 dated 19.9.1991. So far as the other properties are concerned i.e., house property alleged to have been purchased by defendant No.1, there is some admission on the part of PW-1 in this regard, but they denied that the said property was purchased out of any amount received by defendant No.1 in OS No.318/1987. So far as this aspect is concerned, no document has been produced before the court to show that when actually the said house was purchased by defendant No.1 in this regard. In the course of evidence of DW-1 at paragraph 7 it is specifically stated that out of the amount given by defendant No.3, the defendant No.1 has purchased a house situated at Sevanagar at Nagaiahna playa and there are three houses in the said building and the same was given to one Anjanamma as the said defendant No.1 has married Anjanamma and he executed a Will in respect of the said property in favour of the said lady. That also clearly goes to show that in this regard, no documents have been produced by defendants to show that when actually this house was purchased, whether it was out of any amount of 69 Rs.1,40,000/- alleged to have been given by defendant No.3 in favour of defendant No.1. Though this particular aspect is admitted by PW-1 in the course of cross examination, but it does not prove before the court that the said property was purchased only out of money received by defendant Nos.1 & 3 in this regard. Defendant No.3 has paid an amount of Rs.1,40,000/- to defendant No.1 and out of that amount, defendant No.1 has purchased some properties in the name of his minor sons and his wife and also in his name are all falls to the ground and there is no supporting material available in the evidence of DW-1. On the other hand, the supporting material produced by the plaintiffs shows that the two properties noted above were purchased much earlier to the alleged compromise in OS No.318/1987. Therefore, this also creates a serious doubt as to whether any amount has been actually paid by defendant No.3 in favour of defendant No.1 under the above said compromise, this has not been clarified by the defendants.
45. Last, but not least, the conduct of defendant No.1 before the court also throw some light as to there was some collusion between defendant No.3 and defendant 70 No.1 in entering into such terms in respect of the above said property which is actually disputed by the plaintiffs.
46. So far as the above said aspect is concerned, the plaintiffs have specifically pleaded in their written statement that in order to defraud the rights of the plaintiffs, the first defendant and third defendant colluded together and in connivance, under a guise to accommodate share to the sisters and also given up the property which has already given to the first defendant in the compromise decree passed in FDP No.8/1987. It is specifically pleaded that the plaintiffs have brought to the notice of the illegality, connivance and collusion of the first defendant and other defendants, and issued a notice to Sri N.S. Srinivasan, Advocate who was appearing for the first defendant in O.S.No. 318/87 this regard. Sofar as this aspect is concerned, there is no much denial with regard to the fact that the said Advocate for defendant No.1 in OS No.318/1987 retired from the case before the Compromise Petition was being presented before the court. The said document i.e., Memo is also available in the records in OS No.318/1987 filed on 19.9.1991, which is extracted hereunder:
71
"MEMO The undersigned submit that, he received a notice dated 29.8.91 from Smt.Gowramma, (2) Anjanappa, and (3) Munegowda, wife and minor sons of Sri. Subbanna, the 1st defendant in the above suit. The undersigned is appearing for the 1st defendant in the above said case who contested the above suit seriously. In view of the above said notice the 1st defendant was informed to get back all papers pertaining to the above suit with no objection and to settle the professional fee which is due to the undersigned. The 1st defendant instead of collecting the papers and no objection he himself has entered into compromise in the above suit. Under these circumstances the under signed be relieved by permitting him to retire from the case."
47. Therefore, the above said memo clearly discloses that the Advocate was not interested to go on with the matter, perhaps the minors interest was involved in the said case. After filing of this memo on 19.9.1991 on the same day, the compromise was entered into between the parties, the order sheet dated 19.9.1991 clearly discloses the case was posted for further evidence and on that 72 particular date, the petition under Order 23 Rule 3 of CPC was filed. The court has passed the order simply stating that the same was allowed and the suit was decreed in terms of the Compromise Petition. But here, the court has not specifically recorded its satisfaction with regard to the genuinity of the compromise entered into between the parties and also not examined whether the compromise between defendant No.1 and 3 particularly in respect of Survey No.23/2, is proper and can be safely acted upon by the court. Order XXIII Rule 3 of CPC reads thus:
"ORDER 23 WITHDRAWAL AND ADJUSTMENT OF SUITES Rule 1-XXX Rule 2-XXX Rule 3- Compromise of Suit-
Where it is proved to the satisfaction of the Court that a suit has been adjusted wholly or in part by any lawful agreement or compromise 1[in writing and signed by the parties], or where the defendant satisfies the plaintiff in respect of the whole or any part of the subject-matter of the suit, the Court shall order such agreement, compromise or satisfaction to be recorded, and shall pass a decree is accordance 73 therewith 2[so far as it relates to the parties to the suit, whether or not the subject- matter of the agreement, compromise or satisfaction is the same as the subject- matter of the suit:] 3[Provided that where it is alleged by one party and denied by the other that an adjustment or satisfaction has been arrived at, the Court shall decide the question; but not adjournment shall be granted for the purpose of deciding the question, unless the Court, for reasons to be recorded, thinks fit to grant such adjournment.] 4[Explanation-An agreement or compromise which is void or voidable under the Indian Contract Act, 1872 (9 of 1872), shall not be deemed to be lawful within the meaning of this rule.]"
48. Whether it is proved to the satisfaction of the court that a suit has been adjusted wholly or in part by any lawful agreement or compromise in writing and signed by the parties or whether the defendant satisfies the plaintiff in respect of the whole or any part of the subject matter of the suit, the court shall order such agreement, compromise or satisfaction to be recorded and shall pass a 74 decree, so far as it relates to the parties to the suit whether or not, the subject matter of the agreement, compromise or satisfaction and the same is the subject matter of the suit. Rest of the provision is not necessary. Therefore, it pre-supposes that the compromise and the terms of the agreement and compromise should be proved to the satisfaction of the court that the suit has been adjusted by means of a lawful agreement or compromise. Therefore, satisfaction of the court that the parties have admitted the execution of the document and the contents of the document and the said agreement is lawful between the parties, is a legal requirement.
49. It is worth to note here, when the defendant was allotted with as many as 08 acres and odd guntas and two house site properties in FDP No.8/1987, when he contested the suit in OS No.318/1987, at the initial stages, suddenly, after issuance of notice by the plaintiffs, as per Ex.P-11, to the first defendant, a copy to the learned counsel appearing for the first defendant vide notice dated 29.8.1991 much prior to the compromise, what was the hurry for the first defendant to enter into such compromise that too to take very less share in the properties and also 75 particularly, relinquishing his right, title, interest over the property, specifically claimed in the suit by the plaintiffs i.e., Survey No. 23/2 i.e., item No.1 of the suit schedule property. There is absolutely no explanation by the first defendant or the third defendant so far as this aspect is concerned. The court also recorded the compromise in the absence of the first defendant's counsel as he retired from the case. He has brought to the notice of the court in the memo filed by him for retirement which is marked at Ex.P- 15 that the minors interest is involved in the particular case and therefore, a notice has been issued by the wife and children of the first defendant. Therefore, he has asked the defendant No.1 to take back the file. Therefore, when it was brought to the notice of the court before recording such compromise, the court should have taken utmost care when minor's interest is questioned before the court whether they have got any right or not irrespective of that, the court has to examine, whether the compromise between the parties in lieu of the said notice Ex.P-11 and the intention of the learned counsel for the first defendant to retire from the case which really casted cloud on the terms entered into between the parties whether such cloud 76 or doubt is removed to the satisfaction of the court or not, the trial Court ought to have examined this particular aspect which has not been done.
50. Though there is no hard and fast rule to lay down as to how the compromise has to be recorded, but the court has to satisfy itself the compromise is not tainted with any collusion or tainted with any fraud, coercion or undue influence and after recording the voluntaryness of the parties in entering into such compromise, the court after satisfying about the legal and factual aspects, has to record the compromise. Though the court need not in detail write a judgment with regard to its satisfaction, but atleast on overall looking into the entire transaction before the court and the order sheet of the trial Court, it should record its satisfaction to show that the Court has applied its mind to the compromise and also the execution of the same by the parties and ascertainment of voluntariness by the court and satisfaction of the court with regard to the genuineness of the terms entered into between the parties and thereafter only, it should have recorded the compromise. All these material things are conspicuously absent in this particular case as it is seen that defendant 77 No.1 was not even represented by his counsel nor he engaged any other counsel, but he only put his signature to the compromise. The learned counsel for defendant Nos.2, 3, 4, 5 and 6 have only put their signature in the order sheet and as well as to the Compromise Petition.
51. Apart from the above, immediately after passing of the decree, the advocate for defendant No.1 filed an application on 25.9.1990 u/s.151 of CPC along with affidavit, which are marked at Exhibits P-15 and P-16. In this application, the learned counsel for the defendant No.1 has sought for recalling of the compromise decree, the recording of the compromise and the order passed therein dated 19.9.1991 in the affidavit the learned counsel who was appearing for defendant No.1 has expressed in so many words that there were differences in the family of defendant No.1 and also the notice being issued by plaintiffs dated 28.8.1991 and also explaining minors interest are involved, therefore, on various grounds, he sought for recalling the order permitting the parties to compromise the matter. The said application was dismissed by the court as the court has become functus officio. Though the said application was dismissed, the 78 fact remains that all was not well between the defendant Nos.1 to 3 and the plaintiffs and inturn, there were differences between defendant No.1 and the plaintiffs.
52. Looking to the above said facts and circumstances, summarizing the instances the FDP No.8/1987 discloses that large number of properties were allotted to first defendant and similarly large number of properties were allotted to the third defendant. But in the subsequent compromise in OS No.318/1987, large number of properties allotted to defendant No.3, but very less portion has been allotted to defendant No.1. No proof that the property item No.1 bearing Survey No.23/2 has given in exchange by petitioner No.1 in favour of defendant No.3 to defendant No.1 in consideration of the relinquishment of his right over item No.1. In the Compromise Petition, there is no satisfaction has been recorded by the trial Court allowing the parties to compromise the suit in OS No.318/1987. The conduct of defendant No.1 with his Advocate and Advocate filing a memo of retirement and subsequently filed an application for recalling of the compromise decree. All these factual aspects clearly discloses that there was some collusion entered into 79 between Nos.1 & 3 for the purpose of knocking away the share in item No.1 of the suit schedule property to the plaintiffs.
53. Though there is no specific pleading with regard to some of the above said aspects but the parties have understood their cases and led evidence and on the basis of the entire analysis of the documentary and oral evidence on record, if the court is of the opinion that there is sufficient materials available to hold that there was collusion and such collusion is played between defendant Nos.1 and 3 for the purpose of defeating the rights of the plaintiffs. Then, in such an eventuality, the court can definitely mould the relief.
54. In this context, it is worth to refer a decision of the Hon'ble Apex Court reported in AIR 1979 SC 1436 between Smt. Sukhrani (dead) by LRs. & others, and Hari Shanker and others, wherein the Hon'ble Apex Court at Head Note (B) has held thus:
"(B) Hindu Law - Joint family -
Partition - Right of erstwhile minor
coparcenor to reopen partition on ground of unequality - Even though there was no 80 fraud, misrepresentation or undue influence, a partition can be re-opened at the instance of a minor coparcener, despite the fact that his branch was represented by his father at the partition, if the partition was unfair or prejudicial to the interest of the minor."
55. In another ruling reported in AIR 1976 SC 1 between Ratnam Chettiar & others and S.M. Kuppuswami Chettiar and Others wherein the Hon'ble Apex Court has observed that under what circumstances, the partition taken up by the parties can be re-opened. At paragraph 19, the Hon'ble Apex Court has observed thus -
"19. Thus on a consideration of the authorities discussed above and the law on the subject, the following proposition emerge:
(1) A partition effected between the members of the Hindu Undivided Family by their own volition and with their consent cannot be reopened, unless it is shown that the same is obtained by fraud, coercion, misrepresentation or undue influence. In such a case the court should require a strict proof of facts because an act inter vivos cannot be lightly set aside.81
(2) When the partition is effected between the members of the Hindu Undivided Family which consists of minor coparceners it is binding on the minors also if it is done in good faith and in bona fide manner keeping into account the interests of the minors.
(3) Where, however, a partition effected between the members of the Hindu Undivided Family which consists of minors is proved to be unjust and unfair and is detrimental to the interests of the minors the partition can certainly be reopened whatever the length of time when the partition took place. In such a case it is the duty of the Court to protect and safeguard the interests of the minors and the onus of proof that the partition was just and fair is on the party supporting the partition.
(4) Where there is a partition of immovable and movable properties but the two transactions are distinct and separable or have taken place at different times, if it is found that only one of these transactions is unjust and unfair it is open to the court to maintain the transaction which is just and fair and to reopen the partition that is unjust and unfair.82
The facts of the present case. In our opinion, fall squarely within propositions Nos. (3) and (4) indicated above"
56. Therefore, the partition effected by the members of the HUF which consists of a minor is proved to be unjust and unfair and it is detrimental to the interest of the minor, the partition can certainly be re-opened whatever the length of time when the partition took place. In such a case, it is the duty of the court to protect and safeguard the interest of the minor.
57. In view of the above said decision, it is the responsibility on the part of defendants in this case to show to the court that the said partition was fair and just. Further, as I have observed, that there is a disparity between the properties allocated to the defendant No.1 in earlier compromise decree in FDP No.8/1987 and the properties allotted to defendant No.1 in the Compromise Petition in OS No.318/1987. Further added to that, there is no semblance of material to prove that the property i.e., item No.1 was actually relinquished by defendant No.1 for consideration. If the consideration is not proved automatically, such alleged relinquishment was also 83 vitiates. Therefore, I answer the above said point formulated by me in the 'Affirmative'.
58. As I have already narrated, that, the plaintiffs have only concentrated with reference to the property bearing item No.1 i.e., Survey No.23/2, I do not want to disturb the decree passed in OS No.318/1987 so far as the other properties are concerned. It is only the plaintiffs have made out a ground for the relief so far as this particular property is concerned. The learned counsel for the appellant also conceded and submitted during the course of argument that they are very particular about item No.1 as the same has been without any consideration alleged to have been relinquished by defendant No.1 in favour of defendant No.3. Therefore, I am of the opinion that the plaintiffs are entitled for their legitimate share in the said suit schedule property item No.1 of the properties. Hence, to that extent, the suit of the plaintiffs ought to had been decreed by the trial Court.
59. Now, the question arises, what exactly the share that the plaintiffs are entitled to any item No.1 of the suit schedule property i.e., Survey No.23/2.
84
60. In view of the above said facts and circumstances of the case, I am of the opinion that the decree passed in OS No.318/1987 dated 19.9.1991, though cannot be declared as null and void, but it can be safely said that the same is not binding on the plaintiff Nos.1 to 3 so far as it relates to property bearing its Survey No.23/2 which is mentioned as suit item No.1 as such, I answer Point No.1 partly in the 'Affirmative'.
Having answered the above said aspect, now the court has to see whether the plaintiffs are entitled to 5/6th share in the above said suit schedule property.
61. In this context, the learned counsel for respondents contended that there is no prayer in the plaint for partition and separate possession of this particular property. Therefore, the court cannot grant any relief in favour of the plaintiff who has not sought for such relief in the plaint. Of course, he has relied upon a decision in Civil Appeal No.5798-5799/2018 by the Hon'ble Apex Court, he drawn my attention to the said decision, wherein the Hon'ble Apex Court has observed that:
85
"It is fundamental that in a civil suit relief to be granted can be only with reference to the prayers made in the pleadings that apart in Civil suit grant of relief is circumscribed by various factors like court fee, limitation, parties to the suit as also the grounds barring relief like resjudicata, estoppel, acquiescence, non-joinder of causes of action or parties etc., which require pleading and proof. Therefore, it would be hazardous to hold that in a civil suit whatever be the relief i.e., prayed, the court can on examination grant any relief as it thinks fit."
62. Even on reading the above said ruling, it is in fact a well recognized principle of law that it all depends upon the facts and circumstances of each case, the court has to ascertain whether the relief can be moulded. When the court after considering the entire case of the plaintiff and defendants, if the prayer has already there in the body of the plaint, but actually, the same has not been incorporated in the prayer column, such remedy also can be granted in order to avoid future litigation between the parties. Further, added to that, when the relief otherwise prayed on the date of commencement of the suit and if that becomes inappropriate in view of the changed 86 circumstance, then also the courts may mould the relief in accordance with the changed circumstance to curb the further litigation or to do complete justice. It is also a sound principle that if on the basis of the findings given by the court on the issues framed by it if the court is of the opinion that the relief which is sought to be moulded is inbuilt in the issues framed and as well the pleadings of the parties and the parties after understanding the same led the evidence, in such an eventuality also, the court can mould the relief so as to scuttle down the further litigation between the parties. Therefore, bearing in mind the above said legal principle, as I have in detail dealt with the pleadings of the parties and the evidence led, the whole gamut of the case right from the first suit filed by the parties and upto the present suit they are fighting with reference to the distribution of the properties in the joint family amongst the joint family members. The consequence of setting aside the partition decree whether on the basis of a compromise decree or on the basis of a considered judgment and decree, by holding that the said decree is not binding on any of the parties to the decree. The consequences of the same leads to chaos if the court 87 does not grant the remedy arising out of the nullifying the effect of the previous decree. Therefore, in this background, I am of the opinion the relief though not sought in the prayer column of the plaint, but the consequence of nullifying a portion of the decree in O.S.No.318/87 leads to granting of some relief in favour of the plaintiffs. Therefore, the plaintiffs are entitled for their legitimate share in the suit schedule property. Accordingly, the relief can be moulded.
63. Now, what share the plaintiffs are entitled to is to be taken note of by the court. There is no proof before the court that the said properties are the self acquired properties of late Muniyappa. It is an admitted fact that all the properties are joint family properties and ancestral properties. As there was no complete valid partition at all earlier by virtue of the decree in OS No.318/1987, the parties have amicably taken their shares by dividing their properties as noted in the early part of this judgment. Therefore, it goes to show that the plaintiff Smt. Kempamma and defendants 1 to 6 are entitled for their legitimate share i.e., 1/7th share in the suit schedule properties. Therefore, plaintiffs are not entitled to 5/6th 88 share as claimed by them. As there is no material to show that actually when the said Muniyappa died and whether the female are entitled for a share in the ancestral and joint family property, therefore, in the absence of such elucidation of facts, I am of the opinion that the plaintiffs have made out a case for grant of 1/7th share in the suit item No.1 of the suit schedule property. As I have already noted, there is no need for this court to disturb the other portion of the decree passed by the trial Court.
64. So far as point No.3 is concerned, no injunction as such can be granted against a co-sharer, because this court has said that the plaintiffs are entitled for their share in the suit item No.1, the same has to be carved out in the final decree proceedings and there after only the plaintiff has to identify his share and take possession of the same and thereafter he can seek for injunction. Hence, the said prayer cannot be granted by this court. Hence, I answer Point No.3 in the 'Negative' and consequently, I proceed to pass the following:
89
ORDER The appeal is partly allowed. The judgment and decree passed in OS No.173/1991 is hereby set aside so far as the suit item No.1 is concerned. The judgment and decree passed in OS No.318/1987 is also hereby declared as not binding on the plaintiffs' share so far as the suit item No.1 in this case i.e., Survey No.23/2 of Lagumenahalli village and consequently, it is declared that the plaintiffs are entitled for their 1/7th share in suit item No.1 of the suit schedule property by metes and bounds. There shall be separate enquiry with regard to mesne profits.
Accordingly, office is hereby directed to draw a preliminary decree. The trial Court is hereby directed to substitute the decree of this court by drawing a preliminary decree in accordance with law. 90
In view of the relationship between the parties and peculiarity of this case, the parties are directed to bear their own costs.
Sd/-
JUDGE PL*