Bharmappa S/O Huchappa vs Guddappa S/O Siddappa ...
2022 Latest Caselaw 2048 Kant

              IN THE HIGH COURT OF KARNATAKA
                      DHARWAD BENCH

          DATED THIS THE 09TH DAY OF FEBRUARY 2022

                            BEFORE

      THE HON'BLE MR. JUSTICE SACHIN SHANKAR MAGADUM


        REGULAR SECOND APPEAL NO.1310 OF 2006 (PAR)

BETWEEN

BHARMAPPA S/O HUCHAPPA
SINCE DECEASED BY HIS LRS

1A.   NEELAVVA W/O. BASAVANTAPPA HADIMANI,
      AGED ABOUT 40 YEARS,

1B.   SIDDAPPA S/O. BASAVANTAPPA HADIMANI,
      AGED ABOUT 21 YEARS,

1C.   HUCHAPPA S/O. BASAVANTAPPA HADIMANI,
      AGED ABOUT: 17 YEARS,

1D.   NINGAPPA S/O. BARAMAPPA HADIMANI,
      SINCE DECEASED BY HIS LRS

1D(i) SMT. LAKSHMAVVA W/O. NINGAPPA HADIMANI,
      AGE: 46 YEARS, OCC: HOUSEWIFE,
      UPPANASI, TALUK HANAGAL,
      DISTRICT HAVERI.

1D(ii) MAHESH S/O. NINGAPPA HADIMANI,
       AGE: 26 YEARS, OCC: AGRICULTURE,
       UPPANASI, TALUK HANAGAL,
       DISTRICT HAVERI.


1D(iii) SMT. TIPPAVVA W/O GUDDAPPA GAJIGOUDRA
        AGE: 25 YEARS, OCC: AGRICULTURE,
        UPPANASI, TALUK HANAGAL,
                              2




      DISTRICT HAVERI.

1E.   SHIVAPPA S/O. BARAMAPPA HADIMANI,
      AGED ABOUT:38 YEARS,

1F.   GUDAPPA S/O. BARAMAPPA HADIMANI,
      AGED ABOUT: 34 YEARS,

1G.   TIPPANNA S/O. BARAMAPPA HADIMANI,
      AGED ABOUT: 28 YEARS,

1H.   MAILAREPPA S/O. BARAMAPPA HADIMANI,
      AGED ABOUT 26 YEARS,
      ALL ARE R/O. UPPANASI, TALUK:HANAGAL,
      DIST: HAVERI.

1I.   FAKIRAWWA CHAYANAGOUDA PATIL,
      AGED ABOUT 55 YEARS,
      R/O. CHIKHULYAL,
      TALUK: HANAGAL, DIST: HAVERI.

1J.   SIDDAWWA W/O. NAGAPPA DODDACHIKKANAVAR,
      AGED ABOUT: 47 YEARS,
      R/O. UPPANASHI,
      TALUK: HANAGAL.

1K.   LAKAWWA W/O. DURGAPPA MASUR,
      AGED ABOUT: 42 YEARS,
      R/O. KANAVISIDAGERI,
      TALUK: HIREKERUR,
      DIST: HAVERI.

1L.   MALLAWWA W/O. SHANKARAGOUDA PATIL,
      AGED ABOUT: 32 YEARS,
      R/O. TOTADYELLAPUR,
      TALUK: HAVERI,
      DIST: HAVERI.
                                               ... APPELLANTS

(BY SRI. MALLIKARJUNSWAMY B HIREMATH, ADV.,)
                                3




AND
GUDDAPPA S/O. SIDDAPPA DABBANNAVAR,
SINCE DECEASED BY LRS.

1A.     MARIYEWWA
        W/O. GUDDAPPA DABBANNAVAR,
        AGED ABOUT: 70 YEARS,
        OCC: NIL,
        R/O. HOSUR-NAJIKALAKNAPUR,
        TALUK AND DIST: HAVERI.

1B.     PUTTAVVA W/O. KANAPPA MASANKATTI,
        AGED ABOUT: 50 YEARS,
        OCC: NIL,
        R/O. HOSUR-NAJIKALAKNAPUR,
        TALUK AND DIST: HAVERI.

1C.     SIDDAWWA W/O. BASAPPA KAKAMBI,
        AGED ABOUT: 48 YEARS,
        OCC: NIL,
        R/O. HOSUR-NAJIKALAKNAPUR,
        TALUK AND DIST: HAVERI.

1D.     LALITAWWA W/O. BHARMAPPA KADAPANAVAR,
        SINCE DECEASED BY LRS.,

1D(i)    SRI. PUTTAPPA
        S/O. BHARMAPPA KADAPANAVAR,
        AGED ABOUT: 28 YEARS,
        OCC: AGRICULTURIST,
        R/O. KANAKPUR, TALUK: HAVERI.

1D(ii) SMT. NIRMALA W/O. SURESH BANASAL,
       AGED ABOUT 33 YEARS,
       OCC:HOUSEHOLD WORK,
       R/O. POST KONAKERI, KONAKERI, HAVERI.

1E.     BANEPPA S/O. GUDAPPA DABBANAVAR,
        SINCE DECEASED BY HIS LR'S

1F.     SUSHILAWWA W/O. SIDDAPPA PADGODI,
        AGED ABOUT: 38 YEARS,
                                  4




      OCC: NIL,
      R/O. HOSUR-NAJIKALAKNAPUR,
      TALUK AND DIST: HAVERI.

2.    SMT. BASAVVA W/O. BASAPPA BADDANAVAR,
      AGE: MAJOR, OCC: AGRICULTURE,
      RESIDING AT HOSUR TALUK,
      R/AT CHIKKAKONATHI,
      TALUK:HIREKERUR, DIST: HAVERI.

3.    MYLARAPPA S/O BASAPPA DABBANAVAR,
      AGE: MAJOR,
      R/AT CHIKKAKONATHI,
      TALUK:HIREKERUR, DIST: HAVERI.

4.    SMT. LALITAVVA W/O. NEELAPPA BENNUR,
      AGE: MAJOR, R/AT. MATTUR,
      TALUK: BYADAGI, DIST: HAVERI.

5.    SMT. DRAKSHYANAVVA
      D/O. BASAPPA DABBANAVAR
      AGE: MAJOR,
      R/AT. C/O. MAILARAPPA
      S/O. BASAPPA DABBANAVAR
      R/AT. CHIKKAKONATI,
      TALUK: HIREKERUR, DISTRICT: HAVERI.
                                                   ...RESPONDENTS

(BY SRI. SURESH N KINI, ADV., AND
SRI. N. S. KINI, ADV., FOR R1(A, C TO F), R1E(i & ii);
SRI. SUNIL S DESAI, ADV., FOR R1D(i & ii);
R1E(iii & iv) ARE MINORS AND R/BY R1E(i);
R1B - DECEASED;
R2 TO R5 - NOTICE SERVED)

      THIS RSA IS FILED U/S. 100 OF CPC PRAYING TO SET ASIDE
THE   JUDGEMENT     &   DECREE   DATED    07.02.2005     PASSED   IN
O.S.NO.56/2002 BY THE CIVIL JUDGE (SR.DN), AND JMFC, HANGAL
WHICH IS CONFIRMED AND MODIFIED IN R.A.NO.17/2005 BY THE
PRESIDING    OFFICER,    FAST    TRACK   COURT,    HAVERI    DATED
                                5




04.04.2006 IN RESPECT OF SUIT SCHEDULE 1(B) PROPERTY i.e.,
R.S.NO.35/1 TO THE EXTENT OF HALF SHARE WHICH IS ALLOTTED
IN FAVOUR OF PLAINTIFF.


     THIS RSA COMING ON FOR FINAL HEARING THIS DAY, THE
COURT DELIVERED THE FOLLOWING:


                          JUDGMENT

Captioned second appeal is filed by unsuccessful

defendant No.2, who is questioning concurrent judgment

and decree of the courts below wherein respondent No.1-

plaintiff is granted half share in item No.35/1 property.

Respondent No.1-plaintiff filed a suit for partition and

separate possession in O.S.No.56/2002. The relevant

genealogy of the family is as under:

Shiddappa (Dead)

Yallavva Basappa Guddappa (Deft.No.1) (Plaintiff)

2. The respondent No.1-plaintiff specifically

contended that schedule 1(A) properties, which is

agricultural lands bearing survey No.57/3 measuring 1

acre 23 guntas and survey no.56/1 measuring 3 acre 20

guntas are joint family ancestral properties. After the

death of plaintiff's father Shiddappa, defendant No.1 i.e.

vendor of appellant/defendant No.2, was managing the

family affairs as a Karta. It was further contended that

suit lands at schedule 1(A) were jointly cultivated by

plaintiff and defendant No.1. It was specifically contended

that out of the income derived from the ancestral

properties and also out of joint earnings, suit schedule

1(B) property bearing Survey no.35/1 was purchased in

the name of defendant No.1. The respondent-plaintiff has

specifically pleaded in the plaint that the registered sale

deed executed by defendant No.1 in favour of present

appellant-defendant No.2 is a nominal sale deed and

same would not give any right and title either to

defendant No.1 or in favour of defendant No.2. On these

set of pleadings, respondent No.1-plaintiff filed a suit for

partition and separate possession.

3. On receipt of summons, the present appellant,

who was arrayed as defendant No.2, contested the

proceedings. The present appellant has stoutly denied the

entire averments made in the plaint. The allegation that

the sale deed in the name of defendant No.1, in the

capacity of manager, was seriously disputed by the

present appellant herein. The present appellant, who is

purchaser has specifically contended that defendant No.1

has purchased item No.1(B) property out of his

independent earnings for valuable sale consideration and

therefore, it is self acquired property of defendant No.1.

In the event, if Court comes to a conclusion that plaintiff

is entitled for share in suit item No.1(B) property, the

appellant is entitled for equitable portion of allotment of

suit item No.1(B) land. The Trial Court, having assessed

the oral and documentary evidence, answered issue No.1

and 2 in affirmative and recorded a categorical finding

that respondent No.1-plaintiff has succeeded in

establishing that the suit schedule properties are joint

family ancestral properties comprising plaintiff and

defendant No.1 and further held that the sale deed

executed in favour of appellant-defendant No.2 by

deceased defendant No.1 in respect of agricultural land

bearing Survey No.35/1 is not binding on plaintiff's half

share in the suit schedule property.

4. Feeling aggrieved by the judgment and decree

of the Trial Court, the present appellant preferred an

appeal before the First Appellate Court. The First

Appellate Court having independently assessed the ocular

and documentary evidence has referred to the recitals in

Ex.D6 and Ex.D7, which are two sale deeds executed by

deceased defendant No.1 in favour of appellant-

defendant No.2, wherein defendant No.1 has sold half

share on 26.04.1985 as per Ex.D6 and remaining half

portion was also sold by him in favour of defendant No.2

on 19.11.1985 as per Ex.D7. The First Appellate Court

having meticulously examined Ex.D6 found that

defendant No.1 while alienating half portion in Survey

No.35/1 has admitted in an unequivocal terms that he is

selling his half share in the suit schedule property.

Therefore, by placing reliance on Ex.D6, the First

Appellate Court has also concurred with the findings of

the Trial Court that the land bearing Survey No.35/1 was

purchased in the name of defendant No.1, who was

acting as a manager of the family and was looking after

the family affairs. The First Appellate Court has also dealt

with the ocular evidence let in by both the parties. The

First Appellate Court on reassessing the entire evidence

on record has also negatived the contention of the

appellant herein that survey No.35/1 was purchased by

deceased defendant No.1 only after partition between

both the brothers. This contention was also negatived and

thereby the First Appellate Court also concurred with the

findings recorded by the Trial Court. Both the Courts have

concurrently held that item No.1(B) property bearing

Survey No.35/1 is also joint family ancestral property and

the said property was purchased in the name of

defendant No.1 by investing joint family corps and

therefore, both the Courts have concurrently held that

item No.1(B) property bearing Survey No.35/1 is joint

family ancestral property. It is against this concurrent

judgment of the courts below the present appeal came to

be filed and the same was admitted by this Court on

02.06.2010 by formulating following substantial questions

of law:

1. Whether the Court below is justified in decreeing the half share in respect of schedule 1(B) property i.e. Survey No.35/1 which is purchased by the appellant in the year 1985?

2. Whether the Court below is justified in decreeing the suit and declaring that he respondents are entitled for the share in

property bearing Survey No.35/1 without there being deceleration that sale deed is null and void?

5. Learned counsel appearing for appellant

reiterating the grounds urged in the appeal and by way of

answer to the substantial questions framed by this Court

has vehemently argued and contended that the

appellant-defendant No.2 has succeeded in eliciting in

cross-examination of plaintiff that the vendor i.e.

defendant No.1 had independent earning. Relying on this

part of cross-examination, he would vehemently argue

and contend before this Court that substantial question of

law framed at serial No.1 needs to be answered in

negative by holding that the plaintiff is not entitled for

half share in Survey No.35/1.

6. To buttress his arguments, he would place

reliance on the judgment rendered by the Privy Council in

the case of Ramcoomar Koondoo and another v. John

and Maria McQueen1 and the subsequent judgment in

the case of Mohammad Khan v. Mohammad Ibrahim

and another2. By placing reliance on the said judgment

rendered by the Privy Council, he would contend that

appellant-defendant No.2 had made all possible enquiries

and having assured himself that the suit schedule

property is absolute property of defendant No.1 has

proceeded to purchase survey No.35/1 under two

separate sale deeds. Therefore, he would submit to this

Court that Section 41 of the Transfer of Property Act

would come to the aid of the appellant-defendant No.2

and therefore, he would request this Court to answer

substantial question of law framed at serial No.1 in the

negative and dismiss the suit filed by respondent-plaintiff

insofar as item No.1(B) bearing survey No.35/1 is

concerned.

Bengal Law Reports Vol.XI, Page 46

ILR (1904) 26 All 490

7. Per contra, learned counsel appearing for

respondent-plaintiff reiterating the arguments canvassed

by the counsel appearing for appellant would

straightaway take this Court to the recitals in Ex.D6. By

placing reliance on Ex.D6, he would bring to the notice of

this Court that defendant No.1 at an undisputed point of

time admitted unequivocally that he is selling half portion

in survey No.35/1. Therefore, if deceased defendant No.1

is bound by recitals in the sale deed, then the appellant,

who is a transferee is also bound by the recitals. He

further contended that any contra statements and

evidence, which is contrary to recitals in the sale deed

stands excluded and same is not at all admissible. He

would then take this Court to paragraph 7 of the cross-

examination of PW1. By placing reliance on paragraph 7

of the cross-examination of PW1, he would make an

attempt to demonstrate before this Court that appellant-

defendant No.2 has virtually admitted the nature of

property by making suggestions which can be gathered

from paragraph 7 of the cross-examination. On these set

of defence, he would submit to this Court that the

substantial questions of law framed by this Court needs

to be answered in affirmative.

8. Heard the learned counsel for the appellant

and the learned counsel appearing for respondent.

Perused the judgment passed by the Courts below and I

have also bestowed my anxious consideration to the

records of the courts below.

9. The present case revolves within a narrow

compass. Admittedly, the suit schedule property at item

No.1(A) is ancestral property. There is no serious dispute

that after the death of Shiddappa, his eldest son namely

Basappa, who is vendor of appellant herein was acting as

a manager of the family. This fact is not at all in dispute.

If these significant details are taken into consideration,

then this Court has to examine as to whether the

purchase made by defendant No.1 in respect of item

No.1(B) is concerned, is his self acquired property or it is

an ancestral property. It is a trite law that where a Karta

of the family purchases a property, the initial burden is

always on the Karta to prove that he had independent

earnings and the acquisition is not through the yield of

joint family corpus. But the recital in the sale deed as per

Ex.D6 in favour of appellant by defendant No.1 would

virtually clinch the issue. In the sale deed dated

26.04.1985 as per Ex.D6, defendant No.1 has admitted in

unequivocal terms that he is selling half joint portion in

the suit schedule property. This statement made by

deceased defendant No.1 at an undisputed point of time

would clinch the issue and therefore, neither defendant

No.1 could have retracted from this statement nor the

present appellant, who is claiming under defendant No.1

could have retracted from the said statement. Any contra

evidence, pleadings contrary to recitals in Ex.D6 stand

excluded in terms of section 90 and 91 of the Evidence

Act and same is inadmissible in evidence and therefore,

these significant details are taken into consideration by

both the Courts below. Even otherwise, there are several

suggestions made by appellant-defendant No.2 while

cross-examining plaintiff and same is forthcoming from

paragraph 7.

10. On perusal of the same, what would emerge is

that the possession of plaintiff over southern portion in

survey No.35/1 was virtually admitted by appellant-

defendant No.2. If the recitals in Ex.D6 are taken into

consideration, the admission which is secured by

appellant-defendant No.2 in regard to the fact that

defendant No.1 had independent earning is of no

consequence. Said admission does not go to the root of

the case and it would not dislodge the plaintiff's case in

the present case on hand. In that view of the matter, the

substantial question of law framed at serial No.1 has to

be answered in affirmative.

11. The second substantial question of law framed

by this Court is squarely covered in the light of the

dictum laid down by the co-ordinate bench in the case of

Ganapati Santaram Bhosale v. Ramachandra

Subbarao Kulkarni3 (Head Note B). If there is alienation

of joint family property, non-alienating members of the

family need not question the sale deed. It would be

sufficient if a suit for partition and separate possession is

filed. In that view of the matter, the substantial question

of law framed at Sl.No.2 is also answered in affirmative.

Before I part with the reasons in the present case on

hand, some few subsequent developments which took

place have to be taken into consideration and same

warrants interference at the hands of this Court.

Respondent No.1-plaintiff having filed a suit for partition

ILR 1985 page 1115

and separate possession and having sought indulgence of

this Court to effect partition by metes and bounds by

quantifying the share of defendant No.1 has ventured in

selling suit item No.1(B) properties in favour of third

parties. Therefore, section 52 of the Transfer of Property

Act would come into play and therefore, I am of the view

that though this Court is not inclined to interfere with the

judgment and decree passed by the Courts below,

however on account of alienation by respondent No.1-

plaintiff and the legal representatives of deceased

defendant No.1 pending suit has virtually effected the

equitable rights of appellant herein, who could have

worked out remedy in final decree proceedings. Had

plaintiff and legal representatives of deceased defendant

No.1 not ventured into selling item No.1 properties, the

present appellant could have made out a case before final

decree court and to allot entire extent to the share of

appellant by way of equity. It is also relevant to note that

what is sold by defendant No.1 in favour of present

appellant-defendant No.2 is well within his legitimate

share in the suit schedule properties. Therefore,

alienation made by respondent No.1-plaintiff and legal

representatives of defendant No.1 will not affect the

equitable rights of appellant herein. Appellant/defendant

No.2 is entitled to workout his equities by way of priority.

In that view of the matter, the question as to whether

entire extent can be allotted to appellant-defendant No.2

has to be examined by the FDP Court and the equities are

to be worked out in final decree proceedings by keeping

in mind that respondent No.1 and legal representatives of

defendant No.1 have sold entire extent of item No.1(B)

properties.

12. Both the Courts below have held that item

No.1B is also ancestral property. It was purchased with

the yield of joint family funds. In co-parcenary property,

it is a trite law that the co-parcener can sell his undivided

share but in the event in a given set of facts, if co-

parcener ventures into selling entire extent or sells a

property in excess of his share, then the alienation made

by one of the co-parceners would not bind the other non-

alienating members in excess of legitimate share of the

co-parcener, who alienates co-parcenary property. This

principal is based on settled principles of Hindu Law that

every co-parcener has an independent right by birth. It is

a pre-existing right in the property. Therefore, any

unilateral alienation would not take away the rights of

non-alienating co-parcener. Therefore, in co-parcenery

properties, the principles enumerated under Section 41 of

the Transfer of Property Act have no application. The fact

that a non-alienating member can only maintain a suit for

partition and separate possession in the event there is

alienation by other members in itself would indicate that

there is no need to challenge the sale deed. In fact, it is a

best cause of action for non-alienating co-parcener to

simply file a suit for partition and separate possession.

Therefore, the principles laid down by the Privy Council in

the judgment cited supra, have no application in the

present case on hand.

13. With this observation, the second appeal

stands dismissed and this appeal would not come in the

way of appellant-defendant No.2 in working out his

equitable rights in FDP Court.

14. In view of disposal of the appeal, pending

interlocutory applications, if any, do not survive for

consideration and are dismissed accordingly.

SD/-

JUDGE YAN