Karnataka High Court
Sri Venkatesh vs Smt Sannathayamma on 10 January, 2024
Author: M.G.S. Kamal
Bench: M.G.S. Kamal
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NC: 2024:KHC:1472
RSA No. 810 of 2022
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 10TH DAY OF JANUARY, 2024
BEFORE
THE HON'BLE MR JUSTICE M.G.S. KAMAL
REGULAR SECOND APPEAL NO. 810 OF 2022 (PAR)
BETWEEN:
1. SRI VENKATESH
S/O VISHNU REDDY
AGED ABOUT 54 YEARS
RESIDING AT NO.6
NISARGA DHAMA APARTMENT
CHAMARAJAPURA, MYSURU - 570 001.
2. M/S SKILL TECH ENGINEERS AND
CONTRACTORS PVT LTD
NO 218/K-30, NARAYANA SHASTRI
ROAD, MYSURU - 570 001.
PRESENTLY AT NO 2904
2ND FLOOR NEW KANTHARAJ
URS ROAD, SARASWATHIPURAM
MYSURU - 570 009
REPRESENTED BY ITS
MANAGING DIRECTOR
SRI K. SHIVASHANKAR.
Digitally
signed by 3. GOVERNMENT EMPLOYEES HOUSE
SUMA B N BUILDING CO-OPERATIVE SOCIETY LTD
Location: SOUHADARA SANKEERNA
High Court of CHAMARAJA DOUBLE ROAD
Karnataka
MYSURU - 570 004
REPRESENTED BY ITS SECRETARY.
...APPELLANTS
(BY SRI B.N. MAHESH CHANDRA, ADV.)
AND:
1. SMT. SANNATHAYAMMA
W/O SRI PUTTARAJEGOWDA
AGED ABOUT 52 YEARS.
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NC: 2024:KHC:1472
RSA No. 810 of 2022
2. SMT. SANNATHAYAMMA
W/O SRI RAMESH
AGED ABOUT 46 YEARS.
RESPONDENTS 1 AND 2 ARE
RESIDING AT HYPANAHALLI VILLAGE
K.R. PET TALUK, MANDYA DIST - 585 231.
3. SRI SIDDARAMEGOWDA
S/O LATE MARIGOWDA
AGED ABOUT 86 YEARS.
4. SRI MAHADEVA
S/O SRI SIDDARAMEGOWDA
AGED ABOUT 57 YEARS.
5. SRI SIDDEGOWDA
S/O SRI SIDDARAMEGOWDA
AGED ABOUT 50 YEARS.
RESPONDENTS 3 TO 5 ARE
RESIDING AT VAJAMANGALA
VILLAGE VARUNAHOBLI
MYSURU TALUK - 570 002.
...RESPONDENTS
(BY SRI B.S. NAGARAJ, ADV.)
THIS APPEAL IS FILED UNDER SECTION 100 OF CPC AGAINST
THE JUDGMENT AND DECREE DATED 17.12.2021 PASSED IN
RA.No.288/2019 ON THE FILE OF THE PRINCIPAL DISTRICT AND
SESSIONS JUDGE, MYSURU, ALLOWING THE APPEAL AND SETTING
ASIDE THE JUDGMENT AND DECREE DATED 19.06.2019 PASSED IN
OS No.913/2008 ON THE FILE OF THE III ADDITIONAL SENIOR CIVIL
JUDGE AND CJM, MYSURU.
THIS APPEAL, COMING ON FOR ADMISSION, THIS DAY, THE
COURT DELIVERED THE FOLLOWING:
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NC: 2024:KHC:1472
RSA No. 810 of 2022
JUDGMENT
1. This appeal is filed by defendant Nos.4, 5 and 6 aggrieved by the judgment and decree dated 17.12.2021 passed in R.A.No.288/2019 on the file of the Principal District and Sessions Judge, Mysuru (hereinafter referred to as 'the First Appellate Court' for short) by which while allowing the appeal filed by the plaintiffs, the First Appellate Court modified the judgment and decree dated 19.06.2019 passed in O.S.No.913/2008 on the file of the III Addl. Senior Civil Judge and CJM, Mysuru (hereinafter referred to as 'the Trial Court').
2. The above suit in O.S.No.913/2008 was filed by the plaintiffs being daughters of defendant No.1 and sisters of defendant Nos.2 and 3 claiming partition and separate possession in respect of item Nos.1 and 2 of suit schedule properties. It was contended by plaintiffs that defendant No.1 is the son of one Marigowda and plaintiffs and defendant Nos.2 and 3 are daughters and sons of defendant No.1 and they constitute a Hindu Joint Family. That the properties described in the schedule to the plaint are ancestral joint family properties standing in the name of said Marigowda. That after his demise, defendant No.1 during 1991-1992 and defendant No.3 during the year 2001-2002 have managed to get the khata of item Nos.1 and 2 of the suit schedule properties changed to their names without consent of the plaintiffs. That defendant Nos.1 to 3 had -4- NC: 2024:KHC:1472 RSA No. 810 of 2022 denied the rights of the plaintiffs and in furtherance, they had negotiated and entered into a Development Agreement with defendant No.4 in respect of item Nos.1 and 2 of the suit schedule properties and had also executed General Power of Attorney in favour of defendant No.4 without making plaintiffs parties to the said documents. That the said documents namely, Joint Development Agreement and General Power of Attorney executed by defendant Nos.1 to 3 in favour of defendant No.4 were not binding on the plaintiffs as such, they sought for partition and separate possession of their 1/5th share in the suit schedule properties.
3. Though plaintiffs had originally filed the suit against defendant Nos.1 to 4 in respect of item Nos.1 and 2 of the suit schedule properties subsequently, defendant Nos.5 and 6 were impleaded and item Nos.3 to 6 of the suit schedule properties were included. The above suit was resisted by defendant Nos.1 and 3 by filing written statement denying the plaint averments and also made allegations that khata in respect of suit schedule properties were standing in their name and they had entered into Joint Development Agreement and executed General Power of Attorney in favour of defendant No.4 for the benefit of family, as such, the said documents were binding on the plaintiffs. It was further contended that there are no joint family properties available for partition. Hence, prayed for dismissal of the suit.
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4. Defendant No.4, who is appellant No.1 before this Court filed written statement contending that plaintiffs were married prior to 1994 as such, they are not entitled for any rights in the suit schedule properties. He also contended that in the Joint Development Agreement, a specific Clause had been incorporated whereby defendant Nos.1 and 3 had undertaken to resolve any dispute that may arise amongst the family members at their cost and responsibility. As such it was contended that the plaintiffs were not entitled for any share in item Nos.1 and 2 of the suit schedule properties. It was also contended that defendant No.4 was a bonafide purchaser for value by paying huge consideration amount of Rs.87,28,125/-. Out of the said sale consideration, defendant No.1 and other defendants had purchased item No.6 of the suit schedule properties, which was not included in the said suit. As such it was contended that the suit for partition was not maintainable. It was also contended that in view of defendant Nos.1 to 3 having conveyed item Nos.1 and 2 of suit schedule properties in favour of defendant No.4 for valuable consideration, the same was not available for partition.
5. Defendant Nos.5 and 6, who were impleaded subsequently contended that they are bonafide purchasers for value of the properties namely, item Nos.1 and 2 of the suit schedule properties -6- NC: 2024:KHC:1472 RSA No. 810 of 2022 in terms of Deed of Sale dated 26.02.2011 that was executed by defendant Nos.1 to 3 along with one Smt. Mahadevamma, Sri. Suresh and Smt. Rajamma represented by their General Power of Attorney Holder Sri. H. Venkatesh/defendant No.4. Hence, sought for dismissal of the suit.
6. The Trial Court based on the pleadings framed the following Issues and Additional Issues:-
"ISSUES
1) Whether the Plaintiffs prove that, schedule properties are joint family properties of them and defendants No.1 to 3?
2) Whether the plaintiffs prove that they are in joint possession and enjoyment of the schedule properties with defendants No.1 to 3?
3) Whether the 4th defendant proves that plaintiff No.1 & 2 are not the daughters of 1st defendant?
4) Whether the 4th defendant further proves that on 03.11.2006 he entered into registered development agreement with defendants No.1 to 3 in respect of schedule properties?
5) Whether the 4th defendant proves that suit is bad for non-joinder of necessary parties?
6) Whether the plaintiffs are entitled to plaint reliefs?-7-
NC: 2024:KHC:1472 RSA No. 810 of 2022
7) What order or decree?
ADDITIONAL ISSUES
1) Whether the 4th defendant proves that he is a bonafide purchaser of the Item Nos.1 and 2 of the suit schedule properties?
2) Whether the defendant No.4 proves that as per the clause 2 of the Development Agreement the plaintiffs are not entitled for any share in Item Nos.1 and 2 of the suit schedule properties?
3) Whether the defendant No.4 proves that the suit of the plaintiff for partial partition is not maintainable?
4) Whether the defendants No.5 and 6 proves that they are bonafide purchaser of the item No.1 & 2 of suit schedule properties by virtue of the registered sale deed dated 26.02.2011?"
7. After recording the evidence, the Trial Court answered Issue Nos.1, 2, 6 and Additional Issue Nos.1, 2 and 4 partly in the affirmative, Issue No.4 in the affirmative, Issue Nos.3 and 5 in the negative and consequently, partly decreed the suit allotting 2/5th share in favour of the plaintiffs in respect of items Nos.3 to 6 of the suit schedule properties and declined to grant relief in respect of items Nos.1 and 2 of the suit schedule properties vide its judgment and decree dated 19.06.2019 passed in O.S.No.913/2008. -8-
NC: 2024:KHC:1472 RSA No. 810 of 2022
8. Being aggrieved by the said judgment and decree, plaintiffs preferred Regular Appeal in R.A.No.288/2019 before the First Appellate Court. Considering the grounds urged therein, the First Appellate Court framed the following points for its consideration:-
"1. Whether the appellants prove that, the Trial Court erred in partly decreeing the suit by rejecting the claim of the appellants for partition in respect of item No.1 and 2 of the suit schedule properties ?
2. Whether any interference is necessary into the judgment and decree passed by the Trial Court ?
3. What order or decree ?"
9. On re-appreciation of the pleadings and evidence, the First Appellate Court answered both the points in the affirmative. Consequently, decreed the suit in its entirety and allotted 2/5th share in favour of plaintiffs in respect of all items of suit schedule properties by the impugned judgment and decree dated 17.12.2021 passed in R.A.No.288/2019. Being aggrieved by the same, defendant Nos.4, 5 and 6 are before this Court.
10. Learned counsel for the appellants reiterating the grounds urged in the memorandum of appeal submitted that defendant No.4 had entered into a Joint Development Agreement as early as on 03.11.2006 in respect of item Nos.1 and 2 of the suit schedule -9- NC: 2024:KHC:1472 RSA No. 810 of 2022 properties with defendant Nos.1 to 3. He submits that in furtherance to the said Joint Development Agreement, a General Power of Attorney was also executed by defendant Nos.1 to 3 in favour of defendant No.4. He submits that one of the Clauses in Joint Development Agreement obligated defendant Nos.1 to 3 to resolve any dispute that may arise amongst the family members. Referring to the said Clause, it is his contention that since plaintiffs claiming to be daughters of defendant No.1 have filed the suit, defendant Nos.1 to 3 are required to resolve the same at their cost, risk and responsibility without making defendant No.4 responsible to answer their claim. Thus, he submits that the First Appellate Court has erred in not appreciating this aspect of the matter. He submits that though the document is described as Joint Development Agreement, the same is conveyance as defendant No.4 had made substantial payment of sale consideration to defendant Nos.1 to 3. It is also his contention that as on the date of the filing of the suit, the item Nos.1 and 2 of suit schedule properties were not available for partition as the same having been conveyed in terms of the Joint Development Agreement in favor of defendant No.4. It is also his contention that plaintiffs were married prior to 1994, therefore, they are not entitled for any share in the properties. Hence, he submits that substantial questions of law would arise for consideration.
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NC: 2024:KHC:1472 RSA No. 810 of 2022
11. In response, learned counsel for the caveator/respondent Nos.1 and 2 - plaintiffs submitted that the appellant/defendant No.4 was completely aware of the existing right of plaintiffs even when he entered into the Joint Development Agreement and has shown no regards to ensure that rights of the plaintiffs were taken care of in the matter. He also brings to the notice of the Court that a Sale Deed that has been executed by defendant No.4 acting as the Power of Attorney of defendant Nos.1 to 3 on 26.02.2011 conveying the properties in favour of defendant Nos.5 and 6 i.e., during the pendency of the suit. Thus, he submits all the contentions/grounds being urged by the appellants are contrary to the facts and law applicable to the case. He submits that no substantial question of law would arise for consideration, more particularly, in view of the law laid down by the Hon'ble Apex Court in the case of Vineeta Sharma vs. Rakesh Sharma and Others reported in (2020) 9 SCC 1 and hence, seeks dismissal of the appeal.
12. Heard the learned counsel for the appellants and the learned counsel for caveator/respondent Nos.1 and 2. Perused the records.
13. The Trial Court while addressing the issue No.1 regarding schedule properties being joint family properties has held that the item Nos.1 and 2 of the suit schedule properties were not available for partition inasmuch as defendant Nos.1 to 3 had entered into a
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NC: 2024:KHC:1472 RSA No. 810 of 2022 joint development agreement in respect of the said properties with defendant No.4 even before filing of the suit. In that from and out of the amount paid by the defendant No.4 in terms of the joint development agreement item Nos.3 to 6 of the suit schedule properties were purchased and as such plaintiffs are entitled for share only in item Nos.3 to 6 of the suit schedule properties. The First Appellate Court taking into consideration of the fact that the item Nos. 1 and 2 of the suit schedule properties were inherited by Marigowda, the father of defendant No.1 which was subsequently mutated in the name of defendant No.1 and also taking into consideration of the fact that in the written statement of defendant Nos.1 and 2 there is no pleading to the effect of their being any prior partition or the pleading with regard to alienation of the property prior to commencement of Section 6 of the Hindu Succession Act, 2005 and also taking into consideration of the plea of the plaintiff of they being members of the joint family which was not specifically denied by the defendants, came to the conclusion that the items No.1 to 6 are the joint family properties. The First Appellate Court, further on analyzing the terms of Joint Development Agreement wherein the subject properties have been referred to as ancestral property belonging to Hindu Undivided Family and the same were merely given for development to be made by defendant No.4, came to the conclusion that the said transaction was not a sale.
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14. It is not in dispute that item Nos.1 and 2 of the suit schedule properties were the ancestral joint family properties inherited by Marigowda, who is the father of defendant No.1 and grand father of plaintiffs and defendant Nos.2 and 3. It necessary to note that admittedly, there was Joint Development Agreement between defendant Nos.1 to 3 on one part and defendant No.4 on the other part. It appears that in the Joint Development Agreement, a specific Clause was incorporated and in terms of which, defendant Nos.1 to 3 had apparently undertaken to resolve the dispute, if any, that may arise in future amongst the family members. The said Clause reads as under:-
"The Hindu Undivided Family is known as Sri Siddaramegowda son of Late Marigowda. Hindu Undivided Family and hereinafter for the sake of convenience referred to as the 'said HUF'. We declared that Smt. Puttathayamma aged about 42 years and Smt. Sannathayamma aged about 32 years daughters of Sri Siddaramegowda, are married before 1994 and any disputes arise the HUF members have taken the responsibility, liability and resolved."
15. Referring to the aforesaid Clause, it is submitted by learned counsel for the appellants, that it was defendant Nos.1 to 3 who had to resolve the said issue protecting the interest of defendant No.4. He further contended that Joint Development Agreement is in fact a sale
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NC: 2024:KHC:1472 RSA No. 810 of 2022 transaction though termed as Joint Development Agreement and the same has to be treated as sale.
16. The aforesaid contention of the appellants cannot be countenanced for more than one reasons. Firstly, from the very contents of the aforesaid clause, it is clear that defendant No.4 was completely aware of the fact that subject properties were ancestral properties and there was no division of the same and that plaintiffs indeed had their share right and interest over the said properties and there appears to be no steps taken by defendant No.4 either to seek conveyance from the plaintiffs as to protect their share in the properties. Secondly, as rightly taken note of by the First Appellate Court, a Joint Development Agreement cannot be termed as sale transaction. Therefore, the contention that the said properties in item Nos.1 and 2 of the suit schedule properties being the subject matter of the Joint Development Agreement were not available for partition cannot be countenanced. Thirdly, Deed of Sale dated 26.02.2011 has been executed by none other than defendant No.4 acting under the purported powers allegedly granted under the General Power of Attorney conveying item Nos.1 and 2 of the suit schedule properties in favour of defendant Nos.5 and 6 during the pendency of the suit. Needless to state that such a transaction is hit by doctrine of lis pendens in view of Section 52 of the Transfer of Property Act, 1882.
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17. On any of the aforesaid counts, the appellants cannot claim to be purchasers much less a bonafide purchaser of the suit properties. Appellants being a Real Estate Developers had taken risk of entering into a transaction knowing fully well that plaintiffs had share, right and interest in the suit schedule properties. It is this wanton litigation at the instance of the appellants that has resulted in plaintiffs not being able to realize and enjoy their share of the properties as the matter has been entangled in the litigation and prolonged since 2006 from the date of entering into Joint Development Agreement and from the date of filing of the suit. Plaintiffs have been denied their share at the first instance merely because Joint Development Agreement was entered into, and thereafter by further conveying the properties even during the pendency of the suit.
18. The First Appellant Court has analyzed the effect of the Joint Development Agreement in detail at paragraph No.22, 28 to 32 of its judgment and has come to a just and reasonable conclusion. In view of the aforesaid and legal aspects of the matter, no substantial question of law would arise as already noted above. Accordingly appeal is dismissed.
19. The appellants having prolonged and protracted the matter all these years knowing fully well about the vested rights of the plaintiffs cannot be allowed to have the luxury of the litigation without putting
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NC: 2024:KHC:1472 RSA No. 810 of 2022 them on terms. As such the appellants shall deposit a sum of Rs.2 lakhs as costs for delaying and denying the rights of the plaintiffs before the Final Decree Proceedings Court within a period of 8 weeks from the date of receipt of certified copy of this judgment, payable to plaintiffs.
20. It is made clear that defendant Nos.5 and 6 being the transferees in the case would be entitled to seek equity in terms of Section 44 of the Transfer of Property Act, 1882, from and out of the share that would be allotted to defendant Nos.1 to 3.
21. FDP Court shall conclude the proceedings as expeditiously as possible, within an outer limit of one year from the date of receipt of a copy of this judgment.
22. Parties shall co-operate for the expeditious disposal of Final Decree Proceedings without unnecessarily prolonging the matter.
Sd/-
JUDGE DN