Karnataka High Court
Smt Munithayamma vs Sri Byanna on 1 February, 2022
Author: N.S. Sanjay Gowda
Bench: N.S. Sanjay Gowda
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®
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 1ST DAY OF FEBRUARY, 2022
BEFORE
THE HON'BLE MR. JUSTICE N.S. SANJAY GOWDA
R.S.A. NO.1653 OF 2021(PAR)
BETWEEN:
1. SMT. MUNITHAYAMMA,
AGED ABOUT 62 YEARS,
W/O. DODDA BACHAPPA,
2. SMT. CHENNAMMA,
AGED ABOUT 50 YEARS,
W/O. MOTAPPA,
BOTH ARE RESIDING AT CHOWDAREDDY HALLI,
BASHETTIHALLI HOBLI,
SIDLAGHATTA TALUK,
CHIKKABALLAPURA DISTRICT - 562 105.
... APPELLANTS
(BY SRI. PUNDIKAI ISHWARA BHAT, ADV.)
AND:
1. SRI. BYANNA,
AGED ABOUT 67 YEARS,
S/O. BYRAPPA,
2. SRI. SATHISH,
AGED ABOUT 32 YEARS,
S/O. BYANNA,
3. SMT. NAVEEN,
AGED ABOUT 30 YEARS, D/O. BYANNA,
2
4. SRI. BACHAPPA,
AGED ABOUT 70 YEARS,
S/O. LATE BYRAPPA,
5. SMT. DYAVAMMA,
AGED ABOUT 44 YEARS,
D/O. BACHAPPA,
6. SRI. BYRAREDDY,
AGED ABOUT 42 YEARS,
S/O. BACHAPPA,
ALL ARE RESIDING AT CHOWDAREDDYHALLI VILLAGE,
BASHETTIHALLI HOBLI,
SIDLAGHATTA TALUK,
CHIKKABALLAPURA DISTRICT - 562 105.
... RESPONDENTS
THIS APPEAL IS FILED UNDER SECTION 100 CPC.,
AGAINST THE JUDGMENT AND DECREE DATED 09.12.2020
PASSED IN R.A.NO.04/2014 ON THE FILE OF THE SENIOR
CIVIL JUDGE AND JMFC., SIDLAGHATTA, DISMISSING THE
APPEAL AND CONFIRMING THE JUDGMENT AND DECREE
DATED 06.12.2013 PASSED IN OS NO.6/2006 ON THE FILE
OF THE ADDITIONAL CIVIL JUDGE AND JMFC.,
SIDLAGHATTA.
THIS APPEAL HAVING BEEN HEARD AND RESERVED
FOR JUDGMENT, COMING ON FOR PRONOUNCEMENT THIS
DAY, THE COURT PRONOUNCED THE FOLLOWING:
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JUDGMENT
1. Defendants 4 and 5, who are the purchasers have preferred this second appeal.
2. Respondents 1 to 3 herein (Byanna, Sathish and Naveen) filed the suit seeking for partition.
3. They stated that Byrappa, the propositus, had two sons namely Bachappa (defendant No.1) and Byanna (plaintiff No.1).
4. It was stated that Bachappa, the first son, had a daughter and a son namely Dyavamma (defendant No.2) and Byrareddy (defendant No.3).
5. It was stated that Byanna, the second son, had two children namely Satish (plaintiff No.2) and Naveen (plaintiff No.3).
6. It was their case that they constituted a Hindu undivided family and they had divided their ancestral and joint family properties equally through an unregistered Memorandum of Partition dated 26.11.1982. 4
7. It was stated that the suit property was also an ancestral and joint family property that had been acquired by Byrappa but the same had not been included in the partition and had continued to be joint. They stated that despite a demand for effecting partition, there was no positive response from the defendant.
8. They stated that they had learnt that the name of defendants 4 and 5 had been entered in the revenue records and they had learnt that they were the purchasers of the suit schedule property from defendants 1 and 3. They stated that the property had been sold without their consent and was not binding on them and they were constrained to file a suit.
9. The 1st defendant - Bachappa remained absent and was placed ex parte. His children, defendants 2 and 3 entered appearance and filed a written statement, through which they supported the assertions of the plaintiffs.
10. Purchasers - defendants 4 and 5 appeared and contested the suit. They admitted the relationship of the parties but denied the assertion that plaintiffs and defendants 1 to 3 constituted an undivided Hindu family. They also stated 5 that the husband of the 4th defendant had purchased the suit property from Byanna - plaintiff No.1 for a sale consideration of `2,000/- and they were put in possession. It was stated that the 4th defendant's husband - Dodda Bachappa and the 5th defendant's husband - Motappa had been in possession of the suit property.
11. They also stated that due to misunderstanding between the family of the plaintiffs and defendants 1 to 3, a registered Sale Deed was not executed in favour of Dodda Bachappa and the fact that the property was sold was evidenced by the non- inclusion of the suit property in the Memorandum of Partition dated 26.11.1982. They further stated that at the intervention of the elders of the village, in the year 1994, the 1st plaintiff - Byanna and the 1st defendant - Bachappa had executed two registered Sale Deeds dated 04.07.1994 in respect of 1 acre 3 guntas each and had also put them into possession of the property and from that day onwards, they were in lawful occupation. They also raised a plea that they had perfected the title by way of adverse possession. 6
12. The Trial Court, on consideration of the evidence, both oral and documentary, concluded that the plaintiffs had proved that the suit property was their ancestral property. The Trial Court held that defendants 4 and 5 had not proved that they were the absolute owners of the suit property by virtue of the Sale Deeds dated 04.07.1994. The Trial Court also held that defendants 4 and 5 had failed to prove that they had perfected their title by way of adverse possession. Accordingly, the Trial Court decreed the suit of the plaintiffs and granted them half a share in the suit property.
13. Defendants 4 and 5, being aggrieved, preferred an appeal.
14. The Appellate Court, on re-appreciation of evidence, concluded that defendants 4 and 5 had failed to prove that the suit property was not the ancestral and joint family property of the plaintiffs and defendants 1 to 3. The Appellate Court also concluded that defendants 4 and 5 had not established that they were the absolute owners of the suit property by virtue of the Sale Deeds dated 04.07.1994. The Appellate Court also negatived the plea of defendants 4 and 5 7 that they had perfected their title by way of adverse possession. Accordingly, the Appellate Court confirmed the decree of the Trial Court and dismissed the appeal.
15. It is against this concurrent finding, the present second appeal has been preferred.
16. As stated above, defendants 4 and 5 put forth the plea that they had purchased the suit property under two registered Sale Deeds dated 04.07.1994 i.e., Exs.D1 and D2. The Trial Court, on consideration of Exs.D1 and D2, has recorded a finding that none of the plaintiffs were parties to the Sale Deeds. The Trial Court has also recorded a finding that the assertion that the 1st plaintiff had affixed his thumb impression on Ex.D1 (2nd witness) could not be accepted since the alleged left thumb impression found on Ex.D1 had been referred to the Forensic Expert and he had given an opinion that the left thumb impression marked as 'A' was unfit (overlapped) for comparison as it did not disclose sufficient ridge characteristics. The Trial Court also recorded a finding that the Sub-Registrar, who had been examined as D.W.5, had deposed that the witnesses to the documents had 8 not signed in his presence and thus, the execution of the Sale Deed by the 1st plaintiff was not proved and therefore, the plaintiffs would not be bound by the same.
17. The Appellate Court, on re-appreciation of evidence, has affirmed the findings of the Trial Court. The Appellate Court found that the evidence of D.W.3 who had stated that he had witnessed the affixture of left thumb impression of the 1st plaintiff could not be relied upon since his evidence was contrary to the examination-in-chief and would, therefore, be insufficient to arrive at a conclusion that the 1st plaintiff had affixed his left thumb impression as a consenting witness.
18. The Appellate Court also noticed that the Sub-Registrar had also stated that none of the witnesses had put their signatures in his presence and therefore, there was no oral evidence to establish that the 1st plaintiff had affixed his left thumb impression to the Sale Deeds dated 04.07.1994. The Appellate Court also took notice of the report of the Forensic Expert who had stated that the disputed left thumb impression was unfit for comparison and held that the Trial Court was justified in recording a finding that the conveyance 9 of the suit property by the 1st plaintiff had not been proved. The Appellate Court accordingly confirmed the decree and dismissed the appeal.
19. It is also to be stated here that both the Courts have recorded a finding that defendants 4 and 5 (appellants herein) had failed to prove that they had perfected their title by adverse possession. It is to be stated here that since defendants 4 and 5 claimed to have purchased the suit property from the plaintiffs, setting up a plea of adverse possession against their own vendors would not arise at all.
20. Learned counsel for the appellants/defendants 4 and 5 contended that the suit for partition by the plaintiffs could not be maintained without there being a prayer for a declaration that the plaintiffs were not bound by the Sale Deeds. Learned counsel also submitted that the plaintiffs were required to impugn the same and only then, they could seek for partition. He relied upon the following judgments to support this contention:
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i) GANAPATI SANTARAM BHOSALE Vs.
RAMACHANDRA SUBBARAO KULKARNI - ILR 1985
KAR 1115;
ii) NAGARATHNAMMA Vs. RANGEGOWDA &
OTHERS - 2014(5) KCCR 906;
iii) DHURANDHAR PRASAD SINGH Vs. JAI
PRAKASH UNIVERSITY & OTHERS - AIR 2001 SC
2552.
21. In this case, the fact that the 1st plaintiff and the 1st defendant were coparceners is undisputed, since the appellants contended that they had acquired title by virtue of a conveyance executed by them. It is also not in dispute that the suit property had devolved on the 1st plaintiff and the 1st defendant from their father and it was thus a coparcenary property.
22. The legal position that in a coparcenary property, all the coparceners have a right by birth, cannot be in doubt at all.
23. A Three Judge Bench of the Apex Court in the case of STATE BANK OF INDIA Vs. GHAMANDI RAM (DEAD) THROUGH GURBAX RAI - (1969) 2 SCC 33 stated as follows: 11
"The incidents of co-parcenership under the Mitakshara law are: first, the lineal male descendants of a person up to the third generation, acquire on birth ownership in the ancestral properties of such person; secondly, that such descendants can at any time work out their rights by asking for partition; thirdly, that till partition each member has got ownership extending over the entire property, conjointly with the rest; fourthly, that as a result of such co-ownership the possession and enjoyment of the properties is common; fifthly, that no alienation of the property is possible unless it be for necessity, without the concurrence of the coparceners, and sixthly, that the interest of a deceased member lapses on his death to the survivors."
24. This passage has been approved and reiterated by another Three Judge Bench of the Apex Court in the case CONTROLLER OF ESTATE DUTY, MADRAS VS ALLADI KUPPUSWAMY - (1977) 3 SCC 385 wherein it has once again stated as follows:
"Thus analysing the ratio of the aforesaid case regarding the incidents of a Hindu coparcenary it would appear that a Hindu coparcenary has six essential characteristics, namely, (1) that the lineal 12 male descendants up to the third generation acquire an independent right of ownership by birth and not as representing their ancestors; (2) that the members of the coparcenary have the right to work out their rights by demanding partition; (3) that until partition, each member has got ownership extending over the entire property conjointly with the rest and so long as no partition takes place, it is difficult for any coparcener to predicate the share which he might receive; (4) that as a result of such co-ownership the possession and enjoyment of the property is common; (5) that there can be no alienation of the property without the concurrence of the other coparceners unless it be for legal necessity; and (6) that the interest of a deceased member lapses on his death and merges in the coparcenary property."
25. This position of law is reaffirmed by the Three Judge Bench even in VINEETA SHARMA Vs. RAKESH SHARMA & OTHERS - (2020) 9 SCC 1.
26. A coparcener is thus a person who has acquired a right by birth in the coparcenary property and until a partition, each member has ownership over the entire property conjointly with the other coparceners and a coparcener is 13 entitled to demand a partition. Further, and more importantly, there can be no alienation of the property without the concurrence of the other coparceners.
27. In Vineeta Sharma's case, the Apex Court has affirmed the decision of another Three Judge Bench rendered in Bhagwant P.Sulakhe Vs. Digambar Gopal Sulakhe - (1986) 1 SCC 366 in the following manner:
"14. ... The character of any joint family property does not change with the severance of the status of the joint family and a joint family property continues to retain its joint family character so long as the joint family property is in existence and is not partitioned amongst the co-sharers. By a unilateral act it is not open to any member of the joint family to convert any joint family property into his personal property."
28. In view of the above, it is established law that a coparcener in a coparcenary property has no specific ownership over any specific property or over a portion of any property. A coparcener can only possess what has been termed as "an undivided coparcenary interest" and only on a partition, a coparcener becomes entitled to a definite share. 14
29. The consequence of this is that a coparcener cannot convey a particular property of the coparcenary property on the assumption that the property that he is conveying was his definite or demarcated share. The only exception to this would be when the property is conveyed with the consent of all the coparceners or the alienation is by the Karta for a legal necessity.
30. Section 7 of the Transfer of Property Act (for short, hereinafter referred to as "TP Act"), clearly states that every person competent to contract and entitled to transfer is competent to transfer such property. Section 8 of the TP Act states that a transfer of property passes forthwith to the transferee all the interest which the transferor is then capable of passing in the property including the legal incidents thereof.
31. Thus, to transfer property, the transferor should be entitled to transfer the property and he would only be transferring all the interests that he possesses in the property.
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32. As stated above, a coparcener's share in the coparcenary property is neither demarcated, nor defined until a partition is effected. A lone coparcener cannot, therefore, obviously transfer the entire coparcenary property by himself.
33. This position becomes explicit on a reading of Section 44 of the TP Act, which states that when one or more co- owners of an immovable property, legally competent in that behalf transfers his share of such property, the transferee would acquire only such interest or share of the transferor and to give effect to the transfer, the transferee would be entitled to the transferor's right to joint possession or common or part enjoyment of the property and also enforce a partition, subject, however, to the conditions and liabilities affecting the share or interest on the date of the transfer.
34. As discussed above, one of the entitlements of a coparcener is, a right to demand a partition of coparcenary property. As to what is a partition has been stated in a recent judgment of a Three Judge Bench of the Apex Court in the case of VENIGALLA KOTESWARAMMA Vs. MALAMPATI SURYAMBA AND OTHERS - (2021) 4 SCC 246 as follows: 16
"38. It remains trite that partition is really a process in and by which, a joint enjoyment is transformed into an enjoyment in severalty. A partition of property can be only among those having a share or interest in it. A person who does not have a share in such property cannot obviously be a party to partition. In a suit for partition, the court is concerned with three main issues:
(i) whether the person seeking division has a share or interest in the suit property/properties;
(ii) whether he is entitled to the relief
of division and separate possession; and
(iii) how and in what manner, the
property/properties should be divided by metes and bounds?"
35. Thus, in a suit for partition, normally, the Court is required to determine only whether the person seeking for partition has a share or interest in the properties and whether he is entitled to the relief of partition and separate possession.
36. Obviously, in such a suit, all other co-
owners/coparceners are required to be arrayed as defendants 17 and the plaintiff is only required to prove that he has a share or interest in the property along with the other co-owners.
37. In such a suit for partition, where the plaintiff is entitled to seek for a partition of his share, it would necessarily follow that he would not be concerned with the omissions or commissions of the other co-owners in respect of their respective shares or interest. A suit for partition presupposes the existence of a joint title of the plaintiff with the other coparceners and it would not be necessary for the plaintiff to seek for declaration of his title.
38. In a suit for partition, the plaintiff not only pre- supposes that he has title, but also concedes title in favour of other coparceners and in such a suit, a coparcener would only seek for partition of the coparcenary property and allotment of his share and putting him in separate possession. Thus, a coparcener, in a suit for partition, would only be interested in securing separate possession of his share and he would not be concerned with how the other coparceners have dealt with their share.
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39. If one of the other coparceners has sold his share, the plaintiff would have to include him and the purchaser in the suit for partition, since a purchaser of an undivided interest in a coparcenary property would have acquired a share in the coparcenary property and in order to enforce his sale, he would also be entitled to seek for partition.
40. It is to be stated here that the plaintiff in a suit for partition amongst coparceners may not have any grievance against the sale of a share by the other coparcener since that sale does not in any way affect his share in the property.
41. It may also be pertinent to state here that a coparcener may not be aware of the intent of another coparcener or coparceners in selling his or their share and he may not, therefore, be able to prevent the other coparceners from selling their share.
42. In case a coparcener sells property in excess of his share, obviously, he would be conveying property which he did not own at all and the rigor of Sections 7 and 8 of the TP Act would come into play. If a person transfers property in respect of which he has no title, obviously, the conveyance is 19 void and such a conveyance would neither bind the owner of the said property, nor invest title in the purchaser.
43. Thus, the conveyance by a coparcener of the entire coparcenary property without the consent of the other coparceners would be void in so far as it relates to the shares of other coparceners who had not joined in the conveyance. If the conveyance in respect of the share of other coparceners is void, then obviously, the other coparceners would also not be required to seek for a declaration that the sale by the other coparcener was void or was not binding upon them.
44. It is also relevant to state here that an alienation made by a person would only bind him and not a person who is not a party to the conveyance. If a person who is not a party to the conveyance is required to seek for a declaration that he is not bound by the conveyance made by another or that the instrument is required to be cancelled, it would virtually amount to an admission by him that he was bound by the sale unless he challenges it.
45. It is to be stated here that only if a person is a party to the conveyance, he would have to challenge the same by 20 seeking for a declaration or its cancellation. A person who is not a party to the conveyance is not required to seek for cancellation of that instrument or for a declaration that he is not bound by the instrument, fundamentally because that conveyance is only by that person who had executed the document. A transfer of property under a document cannot traverse beyond the executant and the beneficiary of the transfer.
46. It must also be borne in mind that a purchaser of a coparcenary property is basically claiming title through all the coparceners and the denial of title of one or more coparceners by him would be a self-defeating exercise. Since a purchaser from one coparcener is not denying the title of the other coparceners, the need of the other coparceners, who are not parties to the transfer, to claim a declaratory decree under Section 34 of the Specific Relief Act on the premise that their title is being denied would also not be applicable.
47. If the argument that every coparcener is required to challenge the conveyance of another coparcener is accepted, 21 it would tantamount to stating that the coparcener who had not sold his share is also a party to the sale made by the other coparcener, which would be irrational. The argument of the learned counsel for the appellants is, therefore, unacceptable.
48. Reliance placed by the learned counsel for the appellants on the judgment in Ganapati Santaram Bhosale's case cited supra would be of no avail. In the said case, the Division Bench has clearly stated that a Hindu coparcener doesn't need to seek for setting the sale and it would be sufficient if he merely asks for his share and be put in possession of that share and for a declaration that he is not bound by any alienation. The Division Bench has not examined whether it is imperative or mandatory for a coparcener to seek for a declaration that he is not bound by any alienations or interest that has been created in the properties. The Division Bench has not laid down the law that a declaration is required to be mandatorily sought for regarding alienation or interest created in the properties. Since the Division Bench has clearly stated that it was not necessary for a Hindu coparcener to seek for setting aside the 22 sale, it would naturally follow that it would not be mandatory for a declaration to be sought that the sale was not binding on him.
49. As stated above, a Hindu coparcener has a right created in the property by birth and this right created by birth cannot be extinguished by the act of another coparcener and it would, therefore, be unnecessary to challenge the alienation by any other coparcener. All that a coparcener is interested in when he seeks for a partition is for the coparcenary property to be divided and his share to be separately handed over to him. The only aim of a coparcener, in a suit for partition, would be to secure a partition of the coparcenary property and to be put in separate possession of his share in the coparcenary property.
50. The reliance placed by the learned counsel for the appellants on the judgment of a Co-ordinate Bench in Nagarathnamma's case cited supra is also of no avail. Even in that judgment, this Court, after considering the Division Bench ruling cited above and the decision of the Apex Court in the case of State of Maharashtra Vs. Pravin 23 Jethalal - AIR 2000 SC 1099 has clearly stated that it was not necessary for a Hindu coparcener to seek for setting aside the alienation. The learned Single Judge has clearly stated that a suit for partition could be maintained by a Hindu coparcener seeking division of properties for assignment and allotting the legitimate share and in the course of it, he could seek for setting aside the alienation. Therefore, the option of seeking for setting aside the sale rests with the plaintiff and it is not mandatory for the plaintiff to seek for setting aside the sale.
51. The reliance placed by the learned counsel for the appellants on the decision of the Apex Court in Dhurandhar Prasad Singh's case cited supra in which the expressions 'void' and 'voidable' have been considered, cannot also enure to the benefit of the appellants. In the said decision, it has been stated that void acts are those which are wholly without jurisdiction and for void acts, no declaration was necessary, since the law does not take any notice of them and it can be disregarded.
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52. As stated above, the alienation by a coparcener in excess of his undivided coparcenary interest i.e., his share would be void in so far as the shares of the other coparceners are concerned basically because a coparcener has no right to sell the entire coparcenary property and at best, he can only convey his undivided coparcenary interest in the coparcenary property. Thus, if the sale by a coparcener is in excess of his share, the same would be void in so far as the other coparceners are concerned and there would be no need to seek for any declaration in respect of such a void act.
53. In fact, in Venigalla Koteswaramma's case cited supra, the Apex Court while dealing with a similar contention regarding a suit for partition was not maintainable without seeking for a declaration that the Agreement of Sale (in that case) was void, has stated that the Agreement of Sale did not invest with a vendee, a right that the plaintiff could not maintain her claim for partition. The same analogy would also be applicable in this case. The alienation claimed by the defendants 4 and 5 in their favour did not, in any way, vest a right in them which had the effect of disentitling the plaintiffs from claiming for a partition.
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54. I am, therefore, of the view that there is absolutely no substance in the arguments advanced by the learned counsel for the appellants.
There being no substantial question of law arising for consideration in this second appeal, the same is accordingly dismissed.
Sd/-
JUDGE PKS