Karnataka High Court
Smt. Kamalamma W/O Basareddy And Anr vs Narayanrao S/O Kishanrao Tumkur & Ors on 12 February, 2014
Author: Mohan .M. Shantanagoudar
Bench: Mohan .M. Shantanagoudar
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IN THE HIGH COURT OF KARNATAKA
GULBARGA BENCH
TH
DATED THIS THE 12 DAY OF FEBRUARY, 2014
PRESENT
THE HON'BLE MR.JUSTICE MOHAN .M. SHANTANAGOUDAR
AND
THE HON'BLE MR.JUSTICE B.V.PINTO
R.F.A. NO.6052/2013
BETWEEN :
1. Smt.Kamalamma
W/o.Basareddy
Aged 69 years, Occ: Household
R/o.Krishna Nilaya, Chitrapur Road
Station Area, Yadgir, Gulbarga Dist.
2. Nagreddy
S/o.Basareddy
Aged 25 years
Occ: Agriculture
R/o.krishna Nilaya, Chitapur Road
Station Area, Yadgir
Gulbarga Dist. ..Appellants
(By Sri A.Vijay Kumar, Adv.,)
AND :
1. Narayanrao
S/o.Kishanrao Tumkur
Aged 10, Occ: Retd. Govt. Servant
R/o.Bangalore
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2. Santosh
S/o.Jairao Tumkur
Aged 52 years, Occ: Private Service
R/o.Bangalore
3. Satish
S/o.jairao Tumkur
Aged 49 years
Occ: Employee of Vijaya Bank
R/o.Hospet, Bellary Dist.
4. Smt.Padmavathi
W/o.Govindrao, major
Occ: Household
5. Anandrao
s/o.Govindrao, major
Occ: Agriculture
6. Ramadevi
W/o.anandrao Tumkur
Major, Occ: Household
R/o.Krishna Nilaya
Chitapur Road, Station Area
Yadgir, Gulbarga Dist.
7. The Manager
State Bank of India, Yadgiri Branch
Yadgiri
8. Vishalakshamma
W/o.Vishwanath Reddy
Ramappanor, aged 37 years
Occ: Agriculture
R/o.Village Tumkur
Yadgir Taluk & Dist.
9. Shivkumar
S/o.Kubendra Reddy Kodal
Aged 35 years, Occ: Agriculture
R/o.Village Tumkur
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Yadgir Taluk & Dist.
10.Baswaraj
s/o.Khanderaya Siddanour
aged 58 years, Occ: Agriculture
r/o.Village Tumkur
Yadgir Taluk & Dist. ..Respondents
(By Sri Veeresh B.patil, Adv., for R1 to R3
Sri Shivanand Patil, Adv., for R4-R6
Sri Ashok S.Kinagi, Adv., for R8
Sri S.B.Hangarki, Adv., for R10
R7 - served, R9 - held sufficient)
This Appeal is filed under Section 96 of CPC against
the judgment and order dated 3.8.2013 passed in
FDP.No.6/2009 on the file of the Senior Civil Judge at
Yadgiri, wherein, the petition filed under Section 54 of CPC
was allowed.
This Appeal coming on for orders this day, MOHAN
.M. SHANTANAGOUDAR, J., delivered the following:-
JUDGMENT
O.S.No.50/2004 is filed by respondents 1 to 3 Sri Narayanrao, W/o.Kishanrao Tumkur, Sri Santosh, W/o.Jairao Tumkur and Sri Satish, S/o.Jairao Tumkur for partition and separate possession of certain -4- properties. The appellants herein were the defendants 4 and respectively in the said suit. The suit came to be decreed on certain terms. The said decree was assailed before this Court in RFA.No.5001/2009 c/w.RFA.No.5018/2008. RFA.5001/2009 is filed Smt.Kamalamma, W/o.Basarweddy and Sri Nagreddy, S/o.Basareddy, who are stated to be the purchasers of certain of the suit properties. RFA.No.5018/2008 is filed by Smt.Padmavathibai, W/o.Govindrao, Sri Anand Rao, S/o.Govindrao and Smt.Ramadevi, W/o.Anandrao Tumkur, who are certain defendants in the original suit. Both the appeals were clubbed together and decided on 8.2.2010. The appeals came to be dismissed with certain observations, which read thus:-
"Point No.4:
26. The material on record discloses, defendants 4 and 5 have purchased item Nos.13 and 14 of the plaint schedule property under registered sale deed dated -5- 9th February 1995. On the date of purchase they were minors. The property is purchased for a valuable consideration.
The question is whether the said sale deed binds the plaintiffs who had an undivided interest in the property which they have purchased. The recital of the sale deed, the case set out by the defendants in the written statement clearly demonstrates, according to them, this property exclusively belong to the 2nd defendant and therefore, they contend as they are bona fide purchasers for valuable consideration they acquired absolute title to the said property. The finding recorded above clearly shows that defendant No.2 was not the absolute owner here mutation entries in the name of 2nd defendant would not confer exclusive title on the 2nd defendant, those properties belong to the joint family, in fact it is the ancestral property in which all the members of the joint family had any interest when there was no partition when the said alienation is not for the legal necessities of the family or for the benefit of the minors, the said -6- alienation would not bind other members of the family. At the most it can bind only that person who has executed the sale deed to the extent of his share and nothing beyond. In that view of the matter, it cannot be said that defendants 4 and 5 are not bona fide purchasers for valuable consideration, it is the bona fide purchase for valuable consideration, but the interest they have purchased under the sale deed is only the interest of the person who has executed the sale deed and other members of the joint family are in no way affected by the said alienation. In other words, plaintiffs' interest in that property is not effected. Therefore, defendants 4 and 5 have to workout their remedies in the final decree proceedings and any observation made by the trial Court in this regard would not come in the way of their enforcing their right under the sale deed as aforesaid.
27. For the aforesaid reasons, we do not find any error committed by the trial Court, in fact, the trial Court has carefully -7- considered both oral and documentary evidence meticulously looked into the same and by considered judgment has upheld the claim of the plaintiffs and the said findings are based on legal evidence. No reasons are made out for interfering with the well-considered order.
Accordingly, appeals are dismissed. At this stage, learned counsel Sri Veeresh B.Patil, appearing for plaintiffs on instructions, submits if in terms of this decree defendants were to handover 2/3 in the agricultural lands to the plaintiffs without forcing them to file final decree proceedings and then execution proceedings, they are ready and willing to give up their 2/3 share in the house properties so that, defendants 1 to 3 could continue to live in the house being exclusive owners. Otherwise, they would like to execute the decree. This concession made after the judgment is in the interest of the family. If defendants 1 to 3 want to avail this benefit/concession, that should be done within a period of -8- three months from today. It is open to the parties if they are to arrive at settlement in this appeal, file an application in the High Court and request for passing the final decree."
(emphasis supplied)
2. Thereafter the original plaintiffs, viz., Narayanrao, Santosh and Satish filed FDP No.6/2009 before the Senior Civil Court, Yadgir. The Senior Civil Judge while deciding final decree proceedings, has directed, all the properties should be divided in three strips and the joint family members (including vendors of original defendants 4 and 5) shall be allotted 1/3rd share each as per the directions made in final decree proceedings. However, the purchasers, i.e., original defendants 4 and (appellants herein) were not allotted any separate share in their vendors' strips by the Final Decree Court. Being aggrieved by the final decree, this appeal is filed.
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3. As already concluded by this Court in RFA.No.5001/2009 c/w.RFA.No.5018/2008, the interest of the appellants herein who have purchased the properties under the sale deeds shall be protected by allotting the sold properties to the share of the vendors of the appellants herein under equitable partition. Which means, the interest of the appellants which they have purchased under the sale deeds is only the interest of a person/persons who have executed the sale deed. Other members of the joint family are in no way affected by the said alienation. In this view of the matter, this Court in the aforementioned RFAs have directed the appellants (defendants 4 and 5) have to work out their remedies in Final Decree Proceedings.
4. It is by now well settled that the interest of the purchasers can be protected by allotting the purchased properties to the share of the person/persons who have executed the sale deeds. If
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the vendors of the appellants are allotted the properties which are sold under the sale deeds, the same would enure to the benefit of the appellants. In view of the same, the Court below while passing the Final Decree was not justified in making three strips in all the properties including the properties purchased by the appellants herein. The purchased properties could have been allotted to the person/persons who have sold the properties in favour of appellants.
In this view of the matter, the Court below while deciding FDP.No.6/2009 is not justified in dividing all the properties in three strips. The best course would have been to allot the properties purchased by the appellants herein in favour of Smt.Padmavathibai, Anandrao and Smt.Ramadevi (vendors of the properties) so as to enable the appellants to secure them in Final Decree under equitable partition.
In view of the same, the impugned judgment and decree passed in FDP.No.6/2009, dated 3.8.2013
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stands set aside. Matter is remitted to Senior Civil Court, Yadgir. Final Decree Proceedings in FDP.No.6/2009 shall revive for reconsideration and the same shall be decided keeping in mind the aforementioned observations.
Appeal is disposed of accordingly. I.A.No.2/13 is dismissed as the same does not survive for consideration.
Sd/-
JUDGE Sd/-
JUDGE *ck/-