Hanamant S/O Yallappa Chimmalagi ... vs Indrabai W/O Sangappa Chimmalagi ...
2021 Latest Caselaw 6927 Kant

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          IN THE HIGH COURT OF KARNATAKA
                 KALABURAGI BENCH

     DATED THIS THE 21ST DAY OF DECEMBER, 2021

                        BEFORE

        THE HON'BLE MR.JUSTICE M.G.S.KAMAL

                  RSA No.7096/2012

BETWEEN

1.     HANAMANT S/O YALLAPPA CHIMMALAGI
       AGE: 20 YEARS, OCC: EDUCATION

2.     RENUKA D/O YALLAPPA CHIMMALAGI
       AGE: 14 YEARS, OCC: STUDENT

3.     GEETA D/O YALLAPPA CHIMMALAGI
       AGE: 12 YEARS, OCC STUDENT
       APPELLANTS NO.2 AND 3 BEING MINORS
       REPRESENTED BY MINOR GUARDIAN/
       NATURAL MOTHER APPELLANT NO.4

4.     SHANTAWWA W/O YALLAPPA CHIMMALAGI
       AGE: 52 YEARS, OCC: H H WORK

       ALL RESIDENT OF YALLAMMAN BUDIHAL
       TQ. MUDDEBIHAL, DIST. BIJAPUR
                                            ...APPELLANTS

(BY SRI D. P. AMBEKAR, ADVOCATE)

AND

1.     INDRABAI W/O SANGAPPA CHIMMALAGI
       AGE: 44 YEARS, OCC: H H WORKS

2.     YALAGURDAPPA S/O SANGAPPA CHIMMALAGI
       AGE: 26 YEARS, OCC: EDUCATION
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3.     BASAPPA S/O SANGAPPA CHIMMALAGI
       AGE: 20 YEARS, OCC: EDUCATION

       ALL ARE RESIDENT OF YALLAMANA BUDIHAL
       TQ. MUDDEBIHAL, DIST. BIJAPUR
                                         ...RESPONDENTS

(BY SRI VEERSHETTY B. K., ADVOCATE)


      THIS RSA IS FILED UNDER SECTION 100 OF CPC
PRAYING TO SET ASIDE THE IMPUGNED PORTION OF THE
JUDGMENT AND DECREE DATED 29.11.2011 PASSED BY THE
CIVIL JUDGE, SR. DIVN. MUDDEBIHAL IN R.A.NO.3/2010 IN SO
FAR AS THE SAID APPEAL HAS BEEN PARTLY ALLOWED AND
MODIFYING THE JUDGMENT AND DECREE DATED 26.11.2009
PASSED BY CIVIL JUDGE, JR. DIVN. MUDDEBIHAL, IN
O.S.NO.213/2007 AND CONFIRM THE JUDGMENT AND DECREE
PASSED BY THE TRIAL COURT.

      THIS APPEAL BEING HEARD AND RESERVED FOR
JUDGMENT, COMING ON FOR PRONOUNCEMENT OF JUDGMENT,
THIS DAY, THE COURT DELIVERED THE FOLLOWING:-

                             JUDGMENT

This regular second appeal is filed by the

appellants/defendants aggrieved by the judgment and

decree dated 29.11.2011 passed in R.A.No.3/2010 on the

file of Senior Civil Judge and JMFC, Muddebihal

(hereinafter referred to as 'first appellate Court') partly

allowing the appeal thereby modifying the judgment and

decree dated 26.11.2009 passed in O.S.No.213/2007 on

the file of Civil Judge Junior Division, Muddebihal

(hereinafter referred to as 'Trial Court').

2. The parties shall be referred to as per their

ranking before the Trial Court.

3. Brief facts leading up to filing of the present

appeal are that the respondents/plaintiffs filed a suit in

O.S.No.213/2007 against the appellants/defendants for

the relief of declaration that the sale deed dated

31.10.1995 executed by Sangappa Chimalagi, the

deceased husband and father of the respondents/plaintiffs

respectively in favour of Yellappa Chimalagi, the deceased

husband and father of the appellants/defendants

respectively. By the said deed of sale, aforesaid Sangappa

Chimalagi had conveyed 4 acres 35 guntas of land in

Survey No.32/1A situated at Budhihal village for a sale

consideration of Rs.18,500/-.

4. It is the case of the respondents/plaintiffs that

the said property is an ancestral property of the plaintiffs

and the defendants. That deceased Sangappa Chimalagi

and deceased Yellappa Chimalagi were living together as a

joint family members, cultivating their shares of land,

which were allotted in terms of the partition entered into in

the family. That since deceased Sangappa Chimalagi and

the respondents/plaintiffs used to go to Maharashtra for

the purpose of making out their livelihood, they had asked

deceased Yellappa Chimalagi to cultivate their share of

property in lieu of specified quantity of Jowar and Wheat to

be given to the respondents/plaintiffs every year. That

deceased Sangappa Chimalagi, the husband and father of

the plaintiffs was addicted to alcohol and that taking

advantage of this, the deceased Yellappa Chimalagi had

obtained a deed of sale dated 31.10.1995 in respect of the

suit property for a meager sum of Rs.18,500/-. That

Sangappa Chimalagi passed away on 20.01.1998 and

Yellappa Chimalagi passed away on 14.01.2006. That till

the death of Yellappa Chimalagi, respondents/plaintiffs

were receiving their share of grains every year, but, on

and after the demise of Yellappa Chimalagi,

appellants/defendants refused to part with the food grains

of the share of the respondents/plaintiffs. That the

respondents/plaintiffs after the death of Sangappa

Chimalagi, had made an application before the Tahasildar

informing inheritance. However, the defendants had

managed to suppress the said application with the help of

their brother, who was working in the Revenue

Department. Finding no other option, the

respondents/plaintiffs were constrained to file the present

suit.

5. Upon service of summons, defendant No.1

entered appearance on her behalf and on behalf of

defendant Nos.2 to 4 and filed written statement denying

the plaint averments and also contending that one

Yelaguradappa, the original propositus had four sons

including the aforesaid Sangappa Chimalagi and Yellapppa

Chimalagi. That there was a partition affected in terms of

Vatni dated 08.09.1987 vide MR No.1302, in terms of

which, all the four sons were put in separate possession

and enjoyment of their respective shares in the suit

properties. That upon the partition, Sangappa Chimalagi

having become absolute owner to the extent of 1/4 th share

in the suit properties, sold the same in favour of Yellappa

Chimalagi. As such, plaintiffs being wife and children of

Sangappa Chimalagi have no share, right or interest over

the suit properties. Hence, sought for dismissal of the

suit.

6. Based on the pleadings, the trial Court framed

the following issues:

1. Whether the plaintiffs proved that the registered sale deed dated 31.10.1995 executed in favour of the husband of defendant is not binding on them?

2. Whether plaintiffs prove that M.E.No.30/06-07 is illegal?

3. Whether plaintiffs are entitled for the relief claimed?

4. What order or decree?

7. Plaintiff No.1 examined herself as PW.1 and

two witnesses have been examined as PWs.2 and 3 and

got exhibited 4 documents, marked as Ex.P1 to P4.

Defendant No.1 examined herself as DW.1 and another

witness as DW.2 and exhibited 6 documents, marked as

Exs.D1 to D6.

8. The trial Court answered issue Nos.1 to 3 in

the negative and consequently dismissed the suit by its

judgment and decree dated 26.11.2009. Being aggrieved

by the same, plaintiffs filed an appeal under Section 96 of

CPC in R.A.No.3/2010 on the file of the First appellate

Court. The first appellate Court framed following points for

consideration:

1. Does the appellant proves that sale deed executed on 31.10.1995 is bogus, fabricated, fraudulent and concocted as contended?

2. Does the appellant establishes the sale deed executed on 31.10.1995 is not binding on the share of the appellant?

3. Does the appellant is entitled for relief of injunction?

4. Does the appellant has made out ground to interfere with the judgment of the lower Court?

5. What order?

9. The first appellate Court by its judgment and

decree dated 29.11.2011 answered point Nos.1, 2 and 4 in

the affirmative and point No.3 in the negative and

consequently allowed the appeal in part and set aside the

judgment and decree of the trial Court and further

declared that the sale deed executed in respect of land in

bearing Survey No.32/1A of Yallamman Budhihal village by

first plaintiff's husband Sangappa in favour of first

defendant's husband Yellappa is not binding on the

plaintiffs' share and further declared that the diary

No.3/06-07 is null and void and rejected the relief in

respect of injunction against the respondents/defendants.

Aggrieved by the said judgment and decree of the first

appellate Court, the appellants/defendants are before this

Court in this appeal.

10. This Court by its order dated 17.06.2013 had

formulated the following substantial questions of law:

"Whether in the facts and circumstances and evidence both oral and documentary, the appellate Court was justified in recording a finding that the suit schedule immovable property was joint family property and in the absence of family necessity the sale deed executed by Sampangi Chimalagi was not binding on the plaintiffs?"

11. Heard the learned counsel for the

appellants/defendants and the respondents/plaintiffs.

12. The learned counsel for the

appellants/defendants reiterating the grounds urged in the

appeal memorandum submitted:

a. That the first appellate Court without adverting

to the issue whether the suit property was

joint family ancestral property or the self

acquired property of Sangappa, erroneously

presumed and concluded that the suit property

to be the ancestral property.

b. That the first appellate Court has referred to

the recital in the deed of sale and has wrongly

interpreted the contents of the same and

thereby committed error in concluding that the

property was in joint possession of the

plaintiffs' husband and the defendants'

husband.

c. That the first appellate Court was not justified

in entering adjudication with regard to legal

necessity or otherwise warranting sale of the

suit property by husband of the fist plaintiff in

favour of the husband of fist defendant.

d. That the judgment and decree of the first

appellate Court is contrary to the law laid down

by the Apex Court in the case of Makhan

Singh (D) by LRs. vs. Kulwant Singh (AIR

2007 SC 1808). Hence, seeks for allowing of

the appeal.

13. On the other hand, learned counsel for the

respondents/plaintiffs justifying the judgment and decree

passed by the first appellate Court submitted:

a. That the suit property was joint family

ancestral property and that the same is

evident from the recitals of the deed of sale

dated 31.10.1995.

b. That the sale of suit property by the husband

of the first plaintiff in favour of the husband of

second plaintiff for a meager sum of

Rs.18,500/- was a sham document

fraudulently obtained by the husband of first

defendant taking advantage of the bad vices of

the husband of the first plaintiff, who was

addicted to alcohol.

c. That there was no legal necessity warranting

sale of the suit property, as such the same is

not binding on the plaintiffs/respondents.

d. Relying upon the judgment of the Apex Court

in the case of Arshnoor Singh vs. Harpal

Kaur and others (AIR 2019 SC 3098),

learned counsel submitted that it is settled law

that power of a Kartha to sell coparcenary

property is subject to certain restrictions that

the sale should be for a legal necessity or for

the benefit of the estate. The onus for

establishing existence of legal necessity is on

the alinee.

e. That there is no substantial question of law

arises in the matter requiring interference with

the order of the first appellate Court. Hence,

seeks for dismissal of the appeal.

14. The respondents/Plaintiffs have based their

case on the premise that the suit property being the joint

family ancestral property, sale of the same without legal

necessity by deceased Sangappa Chimalagi, their husband

and father respectively in favour of deceased Yellappa

Chimalagi, the husband and father of the

appellants/defendants respectively is not binding on them

to the extent of their 1/4th share therein.

15. The Apex Court in the case of Makhan Singh

(Supra) at paragraph No.8 has held as under:

"8. The query was answered in paragraph 18 in the following terms :

"The legal principle, therefore, is that there is no presumption of a property being joint family property only on account of existence of a joint Hindu family. The one who asserts has to prove that the property is a joint family property. If, however, the person so asserting proves that there was nucleus with which the joint family property could be acquired, there would be presumption of the

property being joint and the onus would shift on the person who claims it to be self-acquired property to prove that he purchased the property with his own funds and not out of joint family nucleus that was available."

16. Thus, in the light of the above legal principles,

it is for the respondents/plaintiffs to prove that the suit

property is the joint family ancestral property. There is no

dispute that the suit property originally belonged to one

Sri Yelaguradappa, who passed away leaving behind his

four sons including Sangappa Chimalagi and Yellappa

Chimalagi to succeed their respective shares. There is no

material averments or evidence produced by the

respondents/plaintiffs to establish that the suit schedule

property was joint family ancestral property. The

respondents/plaintiffs ought to have produced required

material facts of the suit property consisting joint family

ancestral property. In the absence of the same, it has to

be presumed that the suit property was the absolute

property of said Yelaguradappa and upon his demise, his

four sons being Class-I heirs have inherited 1/4th share

therein in terms of Section 8 of Hindu Succession Act,

1956. Thereupon, the said four sons have become the

absolute owners of their share of the property being

entitled to deal with the same with their absolute

discretion. Unless and until the respondents/plaintiffs

plead, prove and establish contrary to the above to the

affect that the property was inherited by Yelaguradappa

through his grandfather with cogent material evidence,

their claim that the suit property being joint family

ancestral property cannot be countenanced. The Trial

Court has rightly appreciated this legal and factual

requirement of the matter, which the first appellate Court

has last sight of.

17. The fist appellate Court appears to have

proceeded on the premise that the suit property is a joint

family ancestral property. The first appellant Court, in the

process has referred to a recital mentioned in the sale

deed dated 31.10.1995 at Ex.P2, wherein, it is mentioned

in Kannada as under:

À è £À£ÀßzÀÄ 1/4th »¸Áì ºÁUÀÄ ¤ªÀÄäzÀÄ

/2 »¸Áì

ºÁUÀÄ £À£Àß vÀªÀÄä£ÁzÀ ¸ÉÆêÀÄ¥Áà FvÀ£ÀÄ 1/4th »¸Áì »ÃUÉ ¸Àzj À d«ÄãÀÄ J®ègÀÄ ¸ÁªÀÄÄ»PÀ ªÀiÁ°Ì ºÀ¨ÁÓª» À ªÁn£À°ègÀÄvÉÛªÉ ¸Àzj À

d«Ää£À°è EgÀvÀPÌÀ 1/4th ¸ÁªÀÄÄ»PÀ »¸Éì ªÀiÁgÁlPÉÌ ºÀZ® ÀÑ Ä ¤ÃªÀÅ

AiÉÆÃUÀå QªÀÄäwUÉ ¨ÉÃrzÀÄÝ"

That 1/4th share of Sangappa Chimalagi, 1/2nd share

of Sangappa Chimalagi and 1/4th share of their another

brother Somappa Chimalagi is in their joint ownership and

possession. This recital in the sale deed has been read

and treated by the first appellate Court to the effect that

though the shares were determined but they were in joint

possession of the plaintiffs' husband and the defendants'

husband. On the above premise, the first appellate Court

has concluded that the suit property being joint family

property still in joint possession, cannot be considered to

be the separate and absolute property of Sangappa

Chimalagi. The fist appellate Court has however not taken

into consideration of the fact that the suit property was

absolutely belonging to their father Yelaguradappa and

there is no material evidence of the same having been

inherited by said Yelaguradappa. Even if the suit property

was in joint possession of sons of Yelguradappa, they

would not become joint family ancestral property of the

plaintiff Nos.2 and 3 to claim any share, right and title

therein during the lifetime of their father Sangappa

Chimalagi. The first appellate Court has not considered

this aspect of the matter and has thereby arrived at

erroneous conclusion.

18. When it has not been established that the suit

property is the joint family ancestral property, the question

of determination as to the sale by Sangappa Chimalagi was

for family necessity or not and casting the burden on the

appellants/defendants to prove if the sale was for family

necessity would not arise. In the aforesaid facts and

circumstances, the conclusion arrived at by the first

appellate Court to the effect that when it is not specifically

proved about the Sangappa Chimalagi acquiring the

property as his separate property, the question of

execution of sale deed without the consent of the plaintiffs

would not arise as plaintiffs are also having right in the suit

property and that the plaintiff Nos.3 and 4 being minors,

their share have to be protected is misconceived and

misplaced.

19. For the aforesaid discussion and analysis, the

judgment and order passed by the first appellate Court

recording the finding that suit schedule immovable

property was joint family property and in the absence of

family necessity, the sale deed executed by Sampangi

Chimalagi was not binding on the plaintiffs is not

sustainable and substantial question of law formulated is

answered accordingly. In the result, following:

ORDER

I. The appeal in RSA No.7096/2012 is allowed.

II. The judgment and order dated 29.11.2011

passed in R.A.No.3/2010 on the file of Senior

Civil Judge and JMFC at Muddebihal is set

aside.

III. The judgment and decree dated 26.11.2009

passed in O.S.No.213/2007 on the file of Civil

Judge Junior Division, Muddebihal is confirmed.

Sd/-

JUDGE Srt