Karnataka High Court
Basavantappa S/O.Ningappa Santi vs Siddappa S/O. Ramappa Santi on 21 March, 2017
Bench: Anand Byrareddy, K.Somashekar
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IN THE HIGH COURT OF KARNATAKA
DHARWAD BENCH
DATED THIS THE 21ST DAY OF MARCH, 2017
PRESENT
THE HONOURABLE MR.JUSTICE ANAND BYRAREDDY
AND
THE HONOURABLE MR.JUSTICE K.SOMASHEKAR
REGULAR FIRST APPEAL No.4131 of 2013
Between:
1. Basavantappa
son of Ningappa Santi,
Age: 58 Years,
Resident of Kiratageri,
Taluk: Gadag, District: Gadag 582101.
2. Smt. Kasturawwa
wife of Ramappa Gowari,
Age: 55 Years,
Resident of Kuradagi,
Taluk: Ron, District: Gadag 582101.
3. Ramappa son of Ningappa Santi,
Age: 53 Years,
Resident of Kiratageri,
Taluk and District: Gadag 582101.
4. Smt. Bharamawwa
wife of Dyamanna Sunkad,
Age: 50 Years,
Resident of Annigeri,
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Taluk: Navalgund,
District: Dharwad 580001.
... Appellants
(By Shri. J.S. Shetty, Advocate)
And:
1. Siddappa son of Ramappa Santi,
Age: 80 Years,
Resident of Huilgol,
Taluk: Gadag, District: Gadag 582101.
2. Laxmappa son of Siddappa Santi,
Age: 40 Years,
Resident of Huilgol,
Taluk: Gadag, District: Gadag 582101.
3. Kalmesh son of Siddappa Santi,
Age: 37 Years,
Resident of Huilgol,
Taluk: Gadag, District: Gadag 582101.
4. Yallappa A/F Kallappa Santi,
Age: 77 Years,
Resident of Kiratageri,
Taluk: Gadag, District: Gadag 582101.
5. Sugappa son of Yallappa Santi,
Age: 55 Years,
Resident of Kiratageri,
Taluk: Gadag, District: Gadag 582101.
6. Kallappa son of Yallappa Santi,
Age: 45 Years,
Resident of Kiratageri,
Taluk: Gadag, District: Gadag 582101.
... Respondents
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(By Shri. S.M. Kalwad, Advocate for respondent Nos.1 to 6)
This appeal is filed under Section 96 of Code of Civil
Procedure, against the judgment and decree dated 25.03.2013
passed in O.S.No.60 of 2006 on the file of the Additional Senior
Civil Judge, Gadag, dismissing the suit filed for declaration.
This appeal coming on for Hearing, this day,
ANAND BYRAREDDY J., delivered the following:
JUDGMENT
Heard the learned counsel for the appellants and the Counsel for the respondents.
2. The present appeal is by the plaintiffs. The suit was for declaration, possession and mesne profits.
3. The parties are referred to by their rank before the trial court for the sake of convenience.
4. It was the case of the plaintiffs that the suit properties were agricultural lands, which were more fully described in the schedule to the plaint and that the genealogy of the family of the appellants was as under:-
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Ramappa (died) Bharamappa Ningappa (Def-1) Yallavva (2nd wife) Neelamma (died) Basavantappa Kasturavva Ramappa Bharamavva (Plf-1) (Plf-2) (Plf-3) (Plf-4) Siddappa Yallappa Chulchavva (Def-2) Laxmappa Kalmesh Sugappa Kallappa (Def-3) (Def-4) (Def-6) (Def-7) It is claimed that the father of the plaintiffs one Ningappa was taken in adoption by Irawwa, wife of Ramappa Karatageri under a registered adoption deed dated 13.2.1939. The properties described in the schedule to the plaint and other properties were the properties of the adoptive father of defendant no.1, namely, the father of the plaintiffs. On such adoption, defendant no.1 had inherited those properties and he had married one Neelawwa in the year 1947 and the plaintiffs were the children born in such marriage. Defendant no.1 was said to be a drama artiste and he :5: was on tour most of the time enacting dramas. He was given to drinking and gambling. However, the mother of the plaintiffs objected to his activities and he was said to be assaulting her and ill-treating her. He was not in a position to mend his ways and the elders of the village had advised him to not to do so. He had thereafter chosen to drift away and he had left the village. It transpires that the plaintiffs were minors when their father deserted them and for about 50 years, the whereabouts of the father of the plaintiffs was not known.
It then transpires that the natural brothers of their father, namely, Siddappa , defendant no.2 and Yallappa, defendant no.5, taking advantage of the absence of the father of the plaintiffs, had created a bogus sale deed pertaining to the suit properties and it was even registered as on 20.5.1957, by the active collusion of the then Sub-registrar and others. The agricultural land bearing RS No.229 of Huilgol village as also the house properties were the only properties belonging to the adoptive father.
It is claimed by the plaintiffs that they were unaware of the other properties now described in the suit schedule :6: and were always in the belief that the defendants were the legitimately holding properties, which belonged to them and it is stated that just prior to the filing of the suit, defendant no.2 was by chance found in the local bus stand and he was in a destitute state. He was however recognised by the villagers and it is thereafter the plaintiffs had brought him home and that he was infirm and unwell. It is thereafter that they had elicited information from their father that there were several properties now held by the defendants, which actually belonged to them and it is in retrospect that the plaintiffs have traced the records pertaining to the properties and it is their case that they were never sold and the sale deed set up by the defendants was a bogus one and it is in that background that they have claimed that even if the sale deed is sought to be set up against them, as they were minors at the time of sale, and they had undivided interest in the suit properties, the same was liable to be set aside, as even the sale deed had come to their attention only :7: just prior to the suit and could not be held to be barred by limitation.
It is in the above background, that the plaint was filed while furnishing other details as regards the manner in which the property has been alienated and the revenue entries have been effected in favour of the defendants.
The defendants entered appearance and contested the suit denying the plaint averments and highlighting the fact that it was barred by limitation.
On the above pleadings, the court below had framed the following issues:-
"1. Whether the plaintiffs prove that the sale deed dated 20.5.1957 in respect of suit properties is bogus, created, illegal and is not binding upon them?
2. Whether the plaintiffs prove that the defendants No.2 to 7 have no right, title interest over the suit properties?
3. Whether the plaintiffs prove that the defendant No.1 was taken in adoption by Smt.Irawwa under registered Adoption Deed dated 13.2.1939?:8:
4. Whether the defendant No.2 proves that the suit filed by the plaintiffs is barred by law of limitation?
5. Whether the defendant No.2 proves that the plaintiffs have no cause of action to file the suit?
6. Whether the defendants are entitled for compensatory costs of Rs.5,000/-?
7. Whether the plaintiffs are entitled for the reliefs sought for?"
The Court below has held issues nos.1 , 2 and 7 in the negative and other issues in the affirmative and accordingly dismissed the suit.
It is that which is under challenge in the present appeal.
5. The learned Counsel for the appellant would vehemently contend that the court below has erroneously dismissed the suit on the ground that it is barred by limitation, as the question of limitation has been addressed with reference to an Article in the schedule which has no application. It is sought to be pointed out that the court below has pointed out that Article 58 would be attracted in the face of Articles 109 and 110 of the Schedule to the Limitation Act, 1963, which are directly in respect of a cause of :9: action as set up by the present plaintiffs. And when the period of limitation prescribed is considerably different and the time from which the period of limitation begins to run is also varied, the court below having applied Article 58 leads to a miscarriage of justice and on that ground alone, the judgment of the court below ought to be set aside and the relief claimed by the appellants ought to be conferred on them, as there is no dispute about the relationship and the fact that the sale deed under which the defendants are claiming the property was certainly effected during the minority of the plaintiffs. The period of limitation sought to be pleaded could only apply from the date of knowledge of the plaintiffs as to the plaintiffs being deprived of their property namely, the undivided share in the joint family property, which their father is said to have been alienated, otherwise than for a legal necessity. If the defence of the defendants was to the effect that it was indeed alienated under a valid sale deed and that the sale deed was executed for a legal necessity, the burden of proof is always on the purchasers and it could not be negated on the ground that it was barred by limitation and that the challenge was : 10 : barred by limitation. The court below has therefore not addressed the facts and circumstances in the true perspective and consequently the judgment suffers from an erroneous approach on the basis of which, the court below has dismissed the suit.
The exception taken by the court as to the father of the plaintiffs not having entered appearance or having filed his written statement, though he was arraigned as one of the defendants and since he was alive as on the date of filing of the suit and he had died only during the pendency of the suit, his significant absence would give rise to a presumption of a collusive suit having been filed as an after thought and being speculative in nature is an unfair conclusion of the trial court. It is contended that as already stated, the father of the plaintiffs had returned home after several decades and was found to be old and infirm and was incapable of physical movement and was bed-ridden. Therefore, his non- participation in the suit cannot lead to an adverse inference being drawn against the plaintiffs and it was wholly unfair. It is further contended that the bar of limitation sought to be alleged against the plaintiffs was also on the footing that the alienation by the : 11 : father of the minors was voidable and therefore the period of limitation would run from the ate of the minors attaining majority to have the alienation set aside as being voidable, is also an erroneous presumption as Section 6 of the Hindu Minority and Guardianship Act, 1956 (Hereinafter referred to as the 'HMG Act', for brevity) specifically excludes the minors undivided interest in Hindu joint family properties as if capable of holding under guardianship by the natural guardian and therefore the bar is against a natural guardian alienating the minors property and not in respect of a Hindu joint family. Therefore, the provisions of the HMG Act are not attracted in the present case on hand. It is the customary Hindu law which would apply and therefore Article 109 is a further indication that under the Mitakshara Law, the father's alienation of the minors interest can be challenged within 12 years from the date of the alienee being put in possession. In the present case on hand, since the plaintiffs became aware of the alienation only on their father's return immediately prior to the suit, it cannot be said that the time to file a suit commenced from the date of the alienee being put in possession of the suit : 12 : properties. It is also pointed out that the purchasers under the sale deed were the natural brothers of the plaintiffs' father and there was no inkling as to the property being the exclusive property of the father of the plaintiffs and the plaintiffs were mislead into thinking that it was indeed the legitimate property of the defendants and therefore the period of limitation did not begin to run against the plaintiffs, in the absence of their knowledge that the alienation by the father, as sought to be claimed by the respondents, was bogus and even if accepted as being a genuine one, was a nullity, as it was in derogation of their undivided rights and therefore the suit ought to have been entertained and reliefs granted as prayed for.
6. While the learned Counsel for the respondents would seek to justify the judgment of the court below.
7. In the light of the rival contentions, at the outset, it is to be seen that the plaintiffs are aged between 58 and 50 and plaintiff no.2 and plaintiff no.4 are the married sisters of plaintiff no.1 an 3 and the entire basis of the suit and the cause of action as claimed by the plaintiffs is sought to be placed immediately prior to the : 13 : filing of the suit only on the ground that it is on their father's return after he had disappeared 50 years ago, that they have suddenly learnt about the alienation of their undivided right in certain properties which are described in the suit schedule. This aspect of the matter could not afford a right to the plaintiffs to file a suit in derogation of the law of limitation. Even though the trial court has applied Article 58 of the Schedule to the Limitation Act, 1963, it is a general provision providing for a suit for declaration. Even if the benefit of Article 109 or Article 110, as sought to be claimed by the plaintiffs is to be applied, the suit would still be barred by limitation. The specious plea that the plaintiffs were unaware of the alienation and that it is only immediately prior to the suit that they have learnt about it and therefore the limitation is saved is a contention that cannot be accepted. The law prescribes as to when the period of limitation commences and that cannot be varied merely on the ground that the plaintiffs remained unaware of the wrong committed insofar as their undivided right is concerned. In the opinion of this court, it is Article 109 of the Schedule to the Limitation Act, which would apply in the present : 14 : circumstances and the period of limitation would begin to run from the time when the alienee is put in possession of the land. Admittedly, under the sale deed of the year 1957, the alienees have been put in possession and they have been in continuous possession since then. The plaintiffs are also silent as to whether their mother was unaware of the properties that may have been alienated or over which the defendants allegedly had laid an illegal claim. Therefore, it is not convincing that the plaintiffs were totally unaware of the illegal designs of the defendants. In any event, the registered sale deed being characterised as a bogus deed and having been executed with the active connivance of the then Sub-registrar is a wild allegation and the burden of proof of any such fraud was entirely on the plaintiffs which they have hardly discharged. Therefore, the sale transaction could not have been wished away. In any event, the suit is barred by limitation. Notwithstanding the incorrect provision, which the trial court had applied, it is a question of law. In our opinion, even if it is a suit covered under Article 109 of the Schedule to the Limitation Act, 1963, the suit was hopelessly barred by time.
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Consequently, we do not find any merit in this appeal and the same is dismissed.
Sd/-
JUDGE Sd/-
JUDGE nv