Karnataka High Court

Hanumappa S/O Rayappa vs Yenkangouda S/O Shankargouda on 20 December, 2021

Bench: M.G.S.Kamal

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         IN THE HIGH COURT OF KARNATAKA
                 KALABURAGI BENCH
  DATED THIS THE 20TH DAY OF DECEMBER, 2021
                      BEFORE
        THE HON'BLE MR.JUSTICE M.G.S.KAMAL
       RSA No.7194/2010 (PART/POSS)
BETWEEN:
01.    HANUMAPPA S/O RAYAPPA
       AGE: 62 YEARS OCC: AGRICULTURE
02.    SMT. SHANTAMMA W/O HANUMAPPA
       AGE: 56 YEARS OCC: HOUSEWIFE
       BOTH R/O: GUNTGOL TQ: LINGASUGUR
       DIST: RAICHUR.               ... APPELLANTS

(BY SRI. MANVENDRA REDDY, ADVOCATE)
AND:
01.    YENKANGOUDA S/O SHANKARGOUDA
       AGE: 61 YEARS OCC: AGRICULTURE
       R/O: TIMMAPUR TQ: HUNGUD
       DIST: BAGALKOT
02.    SHANKARGOUDA S/O AMREGOUDA
       DECEASED BY HIS LRS
02A. SMT.   NINGAMMA W/O AMREGOUDA
     AGE:   69 YEARS OCC: HOUSEHOLD
02B. SMT.   SHOBHA W/O LATE SHANKAR
     AGE:   50 YEARS OCC: HOUSEHOLD
02C. SRI. MANJUNATH S/O LATE SHANKAR
     AGE: 30 YEARS OCC: AGRICULTURE
02D. KUM. RAJESHWARI D/O LATE SHANKAR
     AGE: 25 YEARS OCC: HOUSEHOLD
     ALL ARE R/O: TIMMAPUR VILLAGE
     TQ: HUNAGUNDA
     DIST: BAGALKOTE.
                          2




03.   BASALINGAMMA W/O SHANKRGOUDA
      AGE: 98 YEARS OCC: NIL
      R/O: RIMMAPUR TQ: HUNGUND
      DIST: BAGALKOT, SINCE DECEASED
      THROUGH HIS LEGAL HEIRS YENKANGOUDA
      AND SHANKARGOUDA
      RESPONDENTS NO.1 AND 2.


04.   SMT. BALAMMA W/OHANUMANTHA
      AGE: 57 YEARS OCC: AGRICULTURE
      R/O: PHULBHAVI TQ: LINGASUGUR
      DIST: RAICHUR.

                                  ... RESPONDENTS

(BY SRI. AMEET KUMAR DESHPANDE, SENIOR
COUNSEL FOR SRI. GANESH S. KALABURAGI,
ADVOCATE FOR R1
SRI. SHIVAKUMAR KALLOOR, ADVOCATE FOR R2(A)
TO R2(D)
R1 AND R2 ARE LRS OF DECEASED R3
R4 SERVED)


     THIS REGULAR SECOND APPEAL IS FILED UNDER
SECTION100 OF CODE OF CIVIL PROCEDURE PRAYING TO
CALL FOR RECORDS AND SET-ASIDE THE JUDGMENT AND
DECREE DATED 18.03.2005 PASSED IN R.A.NO.170/2004
BY THE ADDITIONAL DISTRICT JUDGE (FTC-III) RAICHUR
CONFIRMING THE JUDGMENT AND DECREE DATED
10.10.2002 PASSED IN O.S.NO.151/1992 BY THE
LEARNED CIVIL JUDGE (JR.DN) LINGASUGUR AND
DISMISS THE SUIT WITH COSTS.

     THIS APPEAL COMING ON FOR FINAL HEARING THIS
DAY, THE COURT DELIVERED THE FOLLOWING:-
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                        JUDGMENT

The present Regular Second Appeal is filed by the

appellants/defendant Nos. 3 and 4 aggrieved by the

judgment and decree dated 18.03.2005 passed in

R.A.No.170/2004 by the Additional District Judge (FTC-II)

Raichur (hereinafter referred as 'the First Appellate Court')

by which the first appellate court while decreeing the suit

of the plaintiff, set aside the judgment and decree dated

10.10.2002 passed by the Civil Judge (Junior Division),

Lingasugur in O.S.No.151/1992 (for short 'Trial Court'), so

far as it relates to Survey No.146 and further declared that

the sale deeds dated 21.03.1994 executed in favour of

appellants/defendants 3 and 5 in respect of the said land

as null and void and not binding on the plaintiff. Further,

the suit of the plaintiff was partly dismissed in respect of

land in Survey No.169 of Guntagol village and confirmed

the Judgment and Decree of the trial court to that extent.

2. The parties shall be referred to as per their

rankings before the Trial Court.

3. The brief facts of the case of the plaintiff are

that one Shankargouda had three sons namely

Yenkangouda (plaintiff herein), Amaregouda and

Vasanagouda. That the said Shankargouda passed away

about 30 years prior to filing of the suit leaving behind the

aforesaid three sons and his wife Smt. Basalingamma. Out

of said three sons, Vasanagouda died issueless. The said

Amaregouda passed away leaving behind his son

Shankaragouda-defendant No.1. The properties in

Sy.No.169 measuring 19 acres 39 guntas and property

bearing Sy.No.146 measuring 31 acres 28 guntas of

Guntagol village, Taluk: Lingasgur are the ancestral

properties of the plaintiff and defendants. That the plaintiff

and the defendant No.1 were residing jointly constituting a

Hindu joint family. That there was no partition of the suit

properties between plaintiff and defendant No.1 at any

point of time. That the suit properties were nominally

standing in the name of defendants. However, the

defendants with an intention to deprive the rights of the

plaintiff, were making hectic efforts to sell the suit

schedule properties, constraining the plaintiff to file a suit

for partition and separate possession. That during the

pendency of the suit, the defendant No.1 had executed

following three registered deeds of sale;

a) The sale deed dated 21.03.1994 executed by the

defendant No.1 in favour of the defendant No.3

conveying 26 acres out of 31 acres in land

Sy.No.146.

b) The sale deed dated 21.03.1994 conveying

remaining 05 acres in land Sy.No.146 in favour of

the defendant No.4.

c) The sale deed dated 21.03.1994 conveying 19

acres 39 guntas in land Sy.No.169 in favour of

the defendant No.5.

4. Thus, in view of the aforesaid deeds of sale

executed during the pendency of the suit, the plaintiff

impleaded the defendants No.3, 4 and 5 as parties to the

suit and sought for relief of declaration that the aforesaid

three deeds of sale dated 21.03.1994 executed by the

defendant No.1 in favour of the defendants No.3 to 5 to be

null and void, ineffective and not binding on the plaintiff.

5. The defendants filed the written statement

denying the plaint averments. It was specifically contended

that there was no joint family consisting of the plaintiff and

defendants. That there was already a partition in the year

1984 amongst plaintiff and defendants. In the said

partition the land bearing Sy.No.169 was allotted to the

share of Shankargouda - defendant No.1. The land in

Sy.No.146 was allotted to the share of defendant No.2 and

in land Sy.No.168 measuring 21 acres 21 guntas was

allotted to the share of plaintiff. Thus, Waradi was given to

Talathi of the village and was certified on 04.05.1984 in

M.E.No.54 and same was implemented by entering the

names of the plaintiff and defendants in the record of

rights as per partition entered into between the parties.

That the plaintiff was allotted land Sy.No.168 and as a

possessor and the owner of the same, the plaintiff had

transferred his share to one Amarappa and the said

Amarappa was in possession of the said property as owner

thereof. Hence, sought for dismissal of the suit.

6. Though the appellants herein, the purchasers

of the suit properties, are impleaded as defendants No.3

and 4, have remained absent and have not filed written

statement.

7. The Trial Court framed the following issues and

re-casted the subsequently as under:-

01. Does the plaintiff prove that he is entitled for half share in the suit land?

      01a. Does         the     plaintiff        prove    that    the
             registered sale        deed                    bearing
             No.1505/93-94,             1506/1993-94        and

1507/93-94 dated 21.05.1994, executed by the defendant No.1 are not binding on him as these are all executed inspite of injunction order?

02. Do the defendants No.1 and 2 prove that there is partition of suit properties between parties in the year 1984?

03. What order?

Additional Issue No.1:- Does the defendant prove that Court Fee paid is not sufficient? Additional Issue No.2:- Whether defendant prove that this Court has no pecuniary jurisdiction to adjudicate the matter as stated in para 8(a) of the amended W.S.?

8. The Trial Court recorded the evidence in which

the plaintiff examined himself as PW.1 and two witnesses

namely Thimmanagouda and Basappa examined

themselves as PW.2 and PW.3 and got exhibited five

documents marked as Ex.P.1 to Ex.P.5. The defendant

No.1 examined as DW.1 and got exhibited seven

documents as Ex.D.1 to Ex.D.7.

9. The Trial Court on appreciation of the evidence

accepted the contention of the defendant No.1 that there

was an earlier partition, in terms of which the properties

were allotted and consequently held that the plaintiff was

not entitled for the decree of partition and eventually,

dismissed the suit by its judgment and decree dated

10.10.2002.

10. Aggrieved by the same, the plaintiff filed a

regular appeal before the Additional District Judge (FTC-

III) in R.A.No.170/2004.

11. The plaintiff before the first appellate court

admitted that the suit land Sy.No.146 measuring 31 acres

28 guntas had gone to the share of deceased

Smt.Basavalingamma-defendant No.2 and she died during

the pendency of the suit. That upon her demise, the

plaintiff being her son was the sole legal heir. Therefore,

he contended that the trial Court ought to have granted a

decree by allotting the suit land bearing Sy.No.146 to the

share of the plaintiff. That the Trial Court has not

appreciated the evidence and had arrived at a wrong

conclusion by dismissing the suit.

12. The First Appellate Court after considering the

grounds urged in the appeal memo, raised the following

points for consideration:-

1. Whether the plaintiff proves that there was no partition between him and his brothers in respect of the suit properties?

2. Whether the defendants no.1 and 2 prove that there was a partition of joint family properties in the year 1984?

3. Whether registered sale deed Nos.1505, 1506, 1507/93-94 dated 21.03.1994 executed by the first defendant are binding on the plaintiff?

4. Whether the plaintiff is entitled to the partition of suit properties. If so what is the share of plaintiff?

5. Whether the judgment and decree of the Trial Court calls for interference of this Court?

6. What Order?

13. The First Appellate Court on appreciation of the

entire evidence and pleadings of the parties and taking

note of the subsequent development held that upon the

demise of defendant No.2, the mother of plaintiff, the

plaintiff was entitled for half share in land Sy.No.146

measuring 31 acres 28 guntas. The First Appellate Court,

by its Judgment and Decree dated 18.03.2005, while

setting aside the judgment and decree dated 10.10.2002

passed in O.S.No.151/1992 on the file of Civil Judge

(Junior Division) Lingasugur, partly decreed the suit of the

plaintiff for his share in respect of the land Sy.No.146

measuring 31 acres 28 guntas of Guntagol village by

metes and bounds. The First Appellate Court further

declared that the sale deeds No.1505/1993-94 and

1507/1993-94 dated 21.03.1994 executed in favour of

defendants No.3 and 5 in respect of land Sy.No.146 of

Guntgol village, as null and void and not binding on the

plaintiff. The suit of the plaintiff dismissed in respect of

Sy.No.169 of Guntgol village confirming the judgment and

decree of the Trial Court to the said extent and directed to

draw preliminary decree accordingly. Aggrieved by the

said judgment and decree partly allowing the suit of the

plaintiff to the extent of land in Survey No.146 and to the

extent of sale deeds Nos.1505/93-94 and 1507/93-94 both

dated 21.03.1994 executed in favour of defendant Nos.3

and 5 in respect of Survey No.146 of Guntgol village, the

appellants/defendant Nos.3 and 4 are before this Court.

14. This Court by its order dated 21.06.2012, while

admitting the appeal had formulated the following

substantial questions of law:

1. Whether the first appellate Court is right in declaring the sale deeds Nos.1505/93- 94 and 1507/93-94 dated 21.03.1994 are null and void and not binding on the plaintiff?

2. Whether the appreciation of evidence by the first appellate Court is perverse?

15. The learned counsel for the

appellants/defendant Nos.3 and 4 reiterating the grounds

urged in the appeal memorandum submitted that the first

appellate Court erred in not taking into consideration the

partition that had taken place in the year 1994, in and by

which, the land in Survey No.146, which had been allotted

to the share of Basalingamma-defendant No.2 and that at

the instance of Basalingamma, the said property was

transferred in the name of defendant No.1 and name of

defendant No.1 had also been mutated in the revenue

records making him absolute owner of the said property.

He submitted that though at paragraph No.23 of the

impugned judgment, the first appellate Court taking into

consideration of the entries in the revenue records made

on 04.05.1994 and concluded that there was a partition

between the plaintiff and Defendant Nos.1 and 2 in the

year 1994 and further at paragraph No.24 of the impugned

judgment, had declined to accept the case of the plaintiff

that there was no partition, ought not to have moulded the

relief by giving share in the property in Survey No.146 of

Basalingamma.

16. He further submits that the first appellate Court

had erred in not taking into consideration that the mother

of the plaintiff had transferred her property to defendant

No.1 during her lifetime and therefore, defendant No.1 had

every right to sell the property. That though there were

necessary revenue entries effected, changing the Katha in

the name of defendant No.1 during the pendency of the

suit, the first appellate Court erred in not taking the same

into consideration. He therefore submits that non-

appreciation of evidence regarding subsequent events,

which have taken place during the pendency of the suit

has caused miscarriage of justice to the appellants. He

further submits that since the land in Survey No.146,

which was originally allotted to the share of Basalingamma

had been transferred in the name of defendant No.1, there

was no need or necessity for the first appellate Court to

have held that the said sale deeds were illegal and not

binding on the plaintiff as defendant No.1 was competent

to convey the said property in favour of the

appellants/defendant Nos.3 and 4. Hence, he sought for

allowing the appeal by answering the substantial questions

of law in favour of the appellants.

17. On the other hand, learned counsel for

respondent No.1/plaintiff justifying the impugned

judgment and order passed by the first appellate Court to

the extent of land in Survey No.146 measuring 31 acres 28

guntas, submits that though the first appellate Court had

found and accepted the reasoning of the Trial Court with

regard to there being a partition having taken place

between the plaintiff and defendant Nos.1 and 2, the

factum of transfer of share of Basalingamma in respect of

Survey No.146 measuring 31 acres 28 guntas in favour of

defendant No.1 has not been established in the manner

known to law. He submits that admittedly such transfer

has taken place during the pendency of the suit and it was

all the more necessary for the defendants to have

furnished the acceptable material evidence with regard to

the transfer of property by Basalingamma-defendant No.2

in favour of defendant No.1. Therefore, he submits that

there is no illegality or perversity in the judgment passed

by the first appellate Court.

18. The learned counsel for respondent

No.2/defendant No.1 (who is also stated to have passed

away during the pendency of this appeal and his legal

representatives were brought on record) submits that

there is no dispute with regard to execution of deeds of

sale dated 21.03.1994 by defendant No.1 in favour of

defendant Nos.3, 4 and 5 conveying land in Survey No.146

measuring 31 acres 28 guntas and land in Survey No.169

measuring 19 acres 39 guntas as stated

above. He also submits that the sale was made in exercise

of the rights, which were proved and vested with the

defendant No.1.

19. In the light of the aforesaid submissions, the

substantial questions of law framed by this Court needs to

be determined.

20. The undisputed facts are that there was a

partition of the family properties effected during the year

1994, in and by which, the land in Survey No.146

measuring 31 acres 28 guntas was allotted to the share of

Basalingamma-Defendant No.2. The land in Survey

No.169 measuring 19 acres 39 guntas was allotted to the

share of defendant No.1 and land in Survey No.168 was

allotted to the share of the plaintiff. The sale of the land in

Survey No.169 measuring 19 acres 39 guntas by

defendant No.1 in favour of defendant No.3 has been

confirmed. Though the plaintiff has challenged the said

sale transaction, in view of dismissal of the suit and in

view of subsequent modification of the decree by the first

appellate Court, only to the extent of land in Survey

No.146 and the plaintiff not having challenged the same,

the said decree merges with the decree in the first

appellate Court. So therefore, the sale in respect of land

in Survey No.169 measuring 19 acres 39 guntas by

defendant no.1 in favour of defendant No.3 need not be

gone into.

21. As regards the validity of deeds of sale bearing

Nos.1505/93-94 and 1507/93-94 dated 21.03.1994, in and

by which, 26 acres of land was conveyed by defendant

No.1 in favour of defendant No.3 and remaining 5 acres of

land was conveyed by defendant No.1 in favour of

defendant No.5 are concerned, the first appellate Court

has held that the same is not binding on the plaintiff to the

extent of his share in Survey No.146. As regards the sale

deeds with respect to the land belonging to the share of

defendant No.1, the same would remain intact. It is

necessary to note at this juncture that though defendant

No.1 had set up a plea that defendant No.2 had

transferred the property in Survey No.146 during the

pendency of the suit, which has been rightly dealt with by

the first appellate Court declining to accept the same for

want of cogent material evidence, cannot be found fault

with. It is to be noted that the very suit is filed by the

plaintiff claiming share in the suit land in Survey Nos.146

and 169 on the premise that there was no partition.

Though the said plea of the plaintiff has not been

accepted, it was all the more important and necessary for

defendant No.1 to have established by leading cogent

evidence that the share, which was allotted to

Basalingamma-defendant No.2 in the partition of the year

1994 had been effectively transferred in his name. This is

in view of the fact that defendant Nos.3, 4 and 5 have

admittedly purchased this property during the pendency of

the suit. Though defendant No.1 had set up a plea of

transfer of property by Basalingamma in his name during

the pendency of the suit, no material evidence in this

regard has been adduced. In the absence of production of

acceptable material evidence, no fault can be found with

the reasoning given by the first appellate Court at

paragraph No.33 of the impugned judgment. Inasmuch

as, the first appellate Court has clarified that modification

of decree granting the relief to the plaintiff is only to the

extent of land in Survey No.146, which was allotted to the

share of Basalingamma and who had passed away during

pendency of the suit, instead of driving the parties to

further litigation, the first appellate Court found it

appropriate to decree the suit by moulding the relief only

to the extent of share of the plaintiff in the said property in

Survey No.146 appears to be just and proper.

22. In view of the first appellate court having

moulded the relief and modified the decree allotting the

share of the plaintiff in land in Survey No.146, which had

been conveyed by Defendant No.1 in favour of

appellants/defendants 3 and 4 herein, it is relevant at this

juncture to refer to the provisions of Section 44 of Transfer

of Property Act, which is extracted hereinunder:

"44. Transfer by one co-owner.- Where one of to or more co-owners of immovable property legally competent in that behalf transfers his share of such property or any interest therein, the transferee acquires as to such share or interest, and so far as is necessary to give, effect to the transfer, the transferor's right to joint possession or other common or part enjoyment of the property, and to enforce a partition of the same, but subject to the conditions and liabilities affecting at the date of the transfer, the share or interest so transferred.

Where the transferee of a share of dwelling-house belonging to an undivided family is not a member of the family, nothing in this section shall be deemed to entitle him to joint possession or other common or part enjoyment of the house".

23. Further the Apex court in its judgment

rendered in MES Manikayala Rao (supra) at para-18 has

held as under:

"18. Before dealing with the question as to which Article of the Limitation Act applies to the present case it is necessary to examine the legal position of persons like Sivayya who purchase shares of some of the coparceners of the Hindu Joint Family. It is well settled that the purchaser does not acquire any interest in the property sold and he cannot claim to be put in possession of any definite piece of family property. The purchaser acquires only an equity to stand in the alienor's shoes and work out his rights by means of a partition. The equity depends upon the alienation

being one for value and not upon any contractual nexus. The purchaser does not become a tenant in common with the other members of the joint family. He is not entitled to joint possession with them. The alienee's suit for partition must be one for partition of the entire property and not for the partition of any specific item of, or interest in, the family property. Such a suit, however, will not be technically on a par with a suit for partition filed by a coparcener. Such a suit would not have the necessary effect of breaking up the joint ownership of the members of the family in the remaining property nor the corporate character of the family.

24. The apex court in the case of Thomson Press

India Ltd. (supra), at para-24 has held as under:

"24. It is well settled that the doctrine of lis pendens is a doctrine based on the ground that it is necessary for the administration of justice that the decision of a court in a suit should be binding not only on the litigating parties but on those who derive title penente lite. The provision of this Section does not indeed annul the conveyance or the transfer otherwise, but to render it subsequent to the rights of the parties to a litigation......"

25. In view of the aforesaid provisions of law and the

settled legal principles, the right, title and interest of

defendant Nos.3 and 5, who purchased the land in Survey

No.146 under the two deeds of sale would be valid,

effective and binding to the extent of the share which was

allotted to defendant No.1.

26. The learned counsel for the respondent No.1/

plaintiff as well as learned counsel for the respondent

Nos.2(a) to (d) fairly submit that they have no objection

with regard to confirming the rights of defendant Nos.3

and 5 to the extent of the share allotted to defendant No.1

in Survey No.146.

27. Needless to mention that the property in Survey

No.169 measuring 19 acres 39 guntas belonging to

defendant No.1 not being affected in any manner

whatsoever, the deeds of sale in respect thereof are valid

and subsisting. Defendant Nos.3 and 5 may have to work

out their remedy for equitable division of land in Survey

No.146 to the extent of the share of the defendant No.1,

which has been allotted in terms of the impugned

judgment and decree in a separate proceedings in

accordance with law.

28. With the above observations, the above

substantial questions of law formulated by this Court is

answered accordingly and following:

ORDER

a) The appeal filed by the appellants/ defendant

Nos.3 and 4 is allowed in part.

b) The deeds of sale bearing Nos.1505/93-94 and

1507/93-94 dated 21.03.1994 are held valid

and effective to the extent of the share of

defendant No.1 in land bearing Survey No.146

and defendant Nos.3 and 5 would be entitled

to seek such equitable relief as they are

entitled to in accordance with law.