Nagaraj S/O Shekappa Giniwalad vs Sharadabi W/O Narayanagouda
2022 Latest Caselaw 2852 Kant

              IN THE HIGH COURT OF KARNATAKA
                      DHARWAD BENCH

          DATED THIS THE 21ST DAY OF FEBRUARY 2022

                           BEFORE

      THE HON'BLE MR. JUSTICE SACHIN SHANKAR MAGADUM

      REGULAR SECOND APPEAL NO.5676 OF 2012 (DEC & INJ)

BETWEEN

1.     NAGARAJ S/O SHEKAPPA GINIWALAD,
       AGE: 35 YEARS, OCC: PRI. SERVICE,
       R/O: HANAGAL,
       NOW RESIDINGAT DHARWAD.

2.     PRAMOD S/O SHEKAPPA GINIWALAD,
       AGE: 22 YEARS, OCC: STUDENT,
       R/O: HANAGAL,
       NOW RESIDING, AT DHARWAD.

3.     PRADEEP S/O SHEKAPPA GINIWALAD,
       AGE: 22 YEARS, OCC: STUDENT,
       R/O: HANAGAL,
       NOW RESIDING, AT DHARWAD.
                                               ...APPELLANTS

(BY SRI. C. S. SHETTAR, ADVOCATE)

AND
1.     SHARADABI W/O NARAYANAGOUDA,
       AGE: 52 YEARS, OCC: HOUSEWIFE,
       R/O: TQ: HANGAL, DIST: HAVERI.

2.     LAXMI W/O NARAYANAGOUDA,
       AGE: 42 YEARS, OCC: AGRICULTURE,
       R/O: HANGAL

3.     KAVERI D/O NARAYANAGOUDA
       AGE: 18 YEARS, OCC: STUDENT,
       R/O: HANGAL
                              2




4.   DIVYA D/O NARAYANAGOUDA
     AGE: 17 YEARS, OCC: STUDENT,
     R/O: HANGAL,

5.   KARTIKA S/O NARAYANAGOUDA
     AGE: 14 YEARS, OCC: STUDENT,
     R/O: HANGAL

6.   SHIVANI D/O NARAYANAGOUDA
     AGE: 12 YEARS, OCC: STUDENT,
     R/O: HANGAL

7.   BHAVANI D/O NARAYANAGOUDA
     AGE: MINOR, OCC: STUDENT,
     R/O: HANGAL,

     RESPONDENTS 4 TO 7 ARE MINOR AND ARE
     REPRESENTED BY THEIR NATURAL MOTHER
     LAXMI W/O NARAYANAGOUDA PATIL i. e.,
     RESPONDENT NO.2

8.   T. M. C., HANAGAL

9.   VINODA W/O SHEKAPPA GINIVALAD,
     AGE: 52 YEARS, OCC: SERVICE,
     R/O: HANGAL
                                            ...RESPONDENTS

(BY SRI. MADANMOHAN M KHANNUR, ADV., AND SRI. S. H.
DODDAMANI, ADV., FOR C/R1 AND C/R2;
SRI. M. M. KHANNUR, ADV., FOR R3;
R4 TO R7 - ARE MINORS AND R/BY R2
R8 & R9 - NOTICE SERVED)

      THIS RSA IS FILED U/S. 100 OF C.P.C., PRAYING TO SET
ASIDE THE JUDGEMENT & DECREE DATED 11.04.2012 PASSED IN
R.A.N0.23/2008 BY THE SENIOR CIVIL JUDGE, HANGAL IN
REVERSING THE JUDGMENT AND DECREE DATED 16.07.2008 AND
THE DECREE PASSED IN O.S. NO.108/1999 PASSED BY THE CIVIL
JUDGE (JR.DN.) & JMFC AT HANGAL, IN THE INTEREST OF JUSTICE
AND EQUITY.
                              3




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

                       JUDGMENT

The captioned regular second appeal is filed by the

unsuccessful plaintiffs, who are none other than the

husband and children of defendant No.3, questioning the

judgment and decree passed by the First Appellate Court

in R.A.No.23/2008.

2. The facts leading to the case are as under:

The present plaintiffs filed a suit for declaration and

injunction claiming that they are absolute owners of the

suit property. The appellants-plaintiffs contended that

they constitute a Hindu joint family and they are co-

parceners and the suit property is joint Hindu family

property. The appellants-plaintiffs claim that they are the

owners of ancestral properties as well as house property

situated in Hirekumsi village. The appellants-plaintiffs

claim that appellant No.1 is the manager of the Hindu

joint family and out of the income derived from ancestral

properties as well as other properties, appellant No.1 has

purchased the suit property in the name of his wife, who

is defendant No.3 in the present suit. Appellants-plaintiffs

claim that defendant No.3 with an intention to set up a

home industry with the aid of schemes by the State

Government, availed loan from Khadi Gramodyog

Mandali, Bengaluru. The appellants also claimed that

defendant No.3 has mortgaged the suit property on

17.04.1997. The appellants-plaintiffs further claimed that

since defendant No.3 was in need of money to run home

industry, she availed a hand-loan of Rs.50,000/- from

defendant No.1 and therefore, the appellants-plaintiffs

claim that defendant No.3 has executed an agreement to

sale as a security to the loan amount. The case of the

appellants-plaintiffs is that appellant No.1 informed

defendant No.3 to go to the office of the Sub-registrar

Hanagal and sign a document and therefore, they claim

that the alleged document is a nominal document, which

was executed towards security of loan. The case of the

appellants-plaintiffs is that it was only when they received

a notice from defendant No.2, they came to know that

defendant No.1 has obtained a sale deed deceitfully and

therefore, claimed that the transaction is illegal and

therefore claim that they were compelled to file a suit

seeking relief of declaration and consequential relief of

injunction.

3. After receipt of summons, respondent No.1-

defendant No.1 appeared and contested the proceedings

by filing written statement. He has stoutly denied the

entire averments made in the plaint. Respondent No.1-

defendant No.1 has asserted absolute right and title over

the suit property by claiming that he has purchased the

suit property for valuable sale consideration of

Rs.65,000/- and pleaded that defendant No.3 has

executed a registered sale deed in his favour on

09.02.1999. Defendant No.1 also claimed that after due

enquiry and verifying the records, he has purchased the

property from defendant No.3 and claimed that it is self-

acquired property of defendant No.3 and the present suit

is not at all maintainable.

4. The Trial Court having assessed the oral and

documentary evidence has come to the conclusion that

defendant No.1 has failed to prove that the suit property

is self-acquired property of defendant No.3. The Trial

Court was of the view that defendant No.1 has not

adduced any documentary evidence to prove that suit

property is self-acquired property of defendant No.3. On

these set of reasons, the Trial Court has come to the

conclusion that there is absolutely no evidence to indicate

that the suit property is self-acquired property of

defendant No.3. It has held that the suit schedule

property is joint family property of appellants and

defendant No.3. While dealing with issue No.2, the Trial

Court has come to the conclusion that defendant No.1 is

not at all in possession and it is the appellants-plaintiffs

who are in possession of the suit property and

accordingly, issue No.2 was answered in favour of the

appellants-plaintiffs by holding that they are in lawful

possession of the suit property. On these set of reasons,

the Trial Court has proceeded to decree the suit and

declare that the sale deed dated 09.02.1999 executed by

defendant No.3 in favour of defendant No.1 is not binding

on appellants' share and consequential relief of perpetual

injunction was granted restraining defendant No.1 from

interfering with appellants'-plaintiffs' peaceful possession

and enjoyment of the suit property.

5. The First appellate Court by independently

assessing the oral and documentary evidence on record

has come to the conclusion that the Trial Court while

examining the nature of suit property has wrongly casted

burden on respondent No.1-defendant No.1. The First

Appellate Court on meticulously examining the pleadings

in the plaint, has observed that though appellant No.1

has claimed that he has purchased the property in the

name of his wife i.e. defendant No.3, however there are

no pleadings to indicate that appellant No.1 has

purchased the suit property for the benefit of his wife and

therefore it is ancestral property. The First Appellate

Court was of the view that there are absolutely no

pleadings and no evidence is let in that regard. Placing

reliance on the judgment of this Court, the Appellate

Court has come to the conclusion that the onus of proving

transaction as benami is on plaintiff No.1, who claimed

that the property was purchased out of his fund. The

Appellate Court was of the view that plaintiff No.1 has not

produced any cogent evidence to indicate that sale

consideration was paid by him while purchasing the

property in the name of his wife i.e., defendant No.3. The

Appellate Court has also taken judicial note of the fact

that the wife of appellant No.1 i.e., defendant No.3, in

whose name the suit property was exclusively standing,

has not contested the proceedings and was placed

exparte. The First Appellate Court was of the view that

defendant No.3 ought to have contested the proceedings.

If the evidence of the appellants-plaintiffs is examined, it

indicates that defendant No.3 has studied up to SSLC and

was running home industry on her own and therefore, the

foundation laid in the plaint that defendant No.3 is a

rustic villager and did not acquire worldly knowledge was

not acceded to by the First Appellate. The First Appellate

Court recorded a categorical finding that the suit property

is self-acquired property of defendant No.3 and has

proceeded to allow the appeal and consequently

dismissed the suit filed by the present appellants-

plaintiffs. It is against this divergent finding, the

appellants-plaintiffs are before this Court.

6. Heard the learned counsel for the appellants

and also the learned counsel appearing for respondents.

Perused the judgment under challenge.

7. The material on record reveals that defendant

No.3 has purchased the suit property and she in turn sold

it to defendant No.1 under a registered sale deed dated

09.02.1999. The appellants-plaintiffs in the pleadings as

well as during the trial have admitted that defendant

No.3 was in need of money. They have also admitted that

she went to the Sub-registrar office to sign a document.

However, their claim is that defendant No.3 went to the

office of Sub-registrar, Hanagal to execute an agreement

to sale by way of security to the loan transaction. This

relevant factor clearly indicates that the appellants-

plaintiffs were well aware of the transaction between

defendant No.3 and defendant No.1. The contention of

the appellants that appellant No.1 had purchased the suit

property in the name of defendant No.3 and since it was

not for the benefit of his wife i.e. defendant No.3, the

said property is joint family property, is not at all

supported by cogent and clinching evidence. The bare

allegations and averments made in the plaint are not

corroborated and substantiated by producing clinching

evidence. If the property is purchased in the name of

Hindu female, there shall be a presumption that it is a

self-acquired property unless contrary is proved by the

party asserting that it was purchased in the name of

Hindu joint family and it was for the plaintiffs to prove

that said transaction was on behalf of family. The burden

is also on the party to ascertain that though property is

purchased in the name of Hindu female, the said property

is a joint family ancestral property. These significant

details are neither pleaded in the plaint nor have the

appellants succeeded in producing clinching evidence to

substantiate their claim. The findings recorded by the

Trial Court that since defendant No.1 has failed to prove

that it is self-acquired property of defendant No.3 it is to

be presumed as joint family ancestral property, is

palpably erroneous and contrary to the settled principles

of law. Under section 3(2) of Benami Transaction

(Prohibition) Act, 1988, any property purchased in the

name of wife or unmarried daughter unless contrary is

proved is presumed that property is purchased for the

benefit of wife or unmarried daughter. This presumption

is not rebutted by appellant/plaintiff No.1. The Appellate

Court has rightly interfered with the findings recorded by

the Trial Court and the said finding is based on

examination of evidence on record.

8. On examination of reasons assigned by the

Trial Court it is found that the Trial Court has casted

burden on respondent No.1-defendant No.1. The initial

onus was always on the plaintiffs to prove that the suit

property is a joint family property and it was nominally

purchased in the name of defendant No.3. The finding

recorded by the Trial court is contrary to the recitals, and

the material on record would indicate that the present

suit filed by the appellants-plaintiffs is collusive suit. This

fact can be gathered from the conduct of defendant No.3,

who has not chosen to contest the proceedings. The First

Appellate Court has dealt with all these significant details

and has rightly come to the conclusion that the sale deed

dated 09.02.1999 executed by defendant No.3 in favour

of defendant No.1 would bind the appellants-plaintiffs, as

they did not have any independent right in the suit

property. No substantial question of law is involved in the

present appeal. The appeal being devoid of merits is

hereby dismissed.

9. In view of disposal of the appeal, pending

interlocutory applications, if any, do not survive for

consideration and are disposed of accordingly.

Sd/-

JUDGE YAN