Sri Basavaraj Shivalingappa ... vs M/S Shivalingappa D Shetter
2022 Latest Caselaw 1114 Kant

             IN THE HIGH COURT OF KARNATAKA
                     DHARWAD BENCH

         DATED THIS THE 25TH DAY OF JANUARY, 2022

                           BEFORE

     THE HON'BLE MR. JUSTICE SACHIN SHANKAR MAGADUM

               R.S.A.NO.2214 OF 2006(DEC)



BETWEEN:

1.    SRI BASAVARAJ SHIVALINGAPPA MUTTAGI
      (SINCE DECEASD BY HIS LRS)

1(A). SMT.PREMA W/O BASAVARAJ MUTTAGI
      AGE 55 YEARS, OCC: HOUSEHOLD,
      R/O BASAVESHWARANAGAR,
      HIREKERUR-581111, DIST: HAVERI

1(B). NAVEEN
      S/O BASAVARAJ MUTTAGI
      (DECEASED & A1(A), (C) & (D) ARE HIS LEGAL HEIRS)

1(C). VINAYKUMAR S/O BASAVARAJ MUTTAGI
      AGE 28 YEARS, OCC: MEDICAL PRACTIONER,
      R/O BASAVESHWARANAGAR,
      HIREKERUR-581111, DIST: HAVERI

1(D). VIDYA D/O BASAVARAJ MUTTAGI
      AGE 25 YEARS, OCC: SERVICE,
      R/O BASAVESHWARANAGAR,
      HIREKERUR-581111, DIST: HAVERI
                                               ...APPELLANTS
(BY SRI.DINESH M.KULKARNI, SRI.VENKATESH R.BHAGAT,
SRI.VINITH V.BHAGAT, ADVS.)
                               2




AND:

1.     M/S SHIVALINGAPPA D SHETTER
       SONS, PARTNERSHIP FIRM, HIREKERUR-581111

2.     SRI SHIVALINGAPPA DUNDEPPA SHETTER
       AGED 80 YEARS, OCC:BUSINESS
       R/O HIREKERUR-581111

3.     SRI KUMARSWAMY SHIVALINGAPPA SHETTER
       AGED 59 YEARS, OCC:BUSINESS
       R/O HIREKERUR-581111

4.     SRI SHADAKSHARAPPA
       S/O SHIVALINGAPPA SHETTER
       AGED 56 YEARS,OCC:BUSINESS
       R/O HIREKERUR-581111

5.     SRI MRUTYUNJAYAPPA
       SHIVALINGAPPA SHETTER
       AGED 49 YEARS, OCC:BUSINESS
       R/O HIREKERUR, TALUK HIREKERUR-581111

6.     SRI SHIVAYOGEPPA SAVALIGEPPA KUBUSAD,
       AGED 69 YEARS, OCC:AGRICULTURE
       R/O HIREKERUR, TALUK HIREKERUR-581111
                                          ...RESPONDENTS
(BY SRI.T.S.VENKATESH ADV. FOR R1 TO R5,
    SRI.MAHESH WODEYAR & SMT.ANURADHA DESHPANDE,
    ADV. FOR R3,
    SRI.SHARANA BASAVARAJ C. ADV. FOR R6)

      THIS APPEAL IS FILED UNDER SECTION 100 OF CPC PRAYING
TO SET ASIDE THE JUDGMENT AND DECREE DATED 22.07.2006 IN
R.A.NO.31/1992 PASSED BY THE LEARNED CIVIL JUDGE (SR.DN.)
AND PRINCIPAL JMFC, RANEBENNUR AND CONFIRM THE JUDGMENT
AND DECREE DATED 12.07.1991 IN O.S.NO.148/1989 PASSED BY
THE LEARNED CIVIL JUDGE (JR.DN.) HIREKERUR BY ALLOWING THIS
APPEAL.

     THIS APPEAL HAVING BEEN HEARD THE RESERVED FOR
JUDGMENT ON 04.01.2022 COMING ON FOR PRONOUNCEMENT OF
JUDGMENT THIS DAY, THE COURT DELIVERED THE FOLLOWING:
                                        3




                            JUDGMENT

The captioned second appeal is filed by the original

defendant No.1 questioning the divergent judgment and

decree of the Courts below.

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

The respondent Nos.1 to 5/plaintiffs filed a suit for

declaration and for consequential relief of possession and

also claimed damages against the deceased

appellant/defendant No.1. The respondents/plaintiffs

claimed that they have purchased suit schedule 'A2'

property under registered sale deed dated 17.09.1986 from

defendant Nos.1 to 3 as per Ex.P-7. The

respondents/plaintiffs contended that suit schedule 'A2'

property is in fact sold by all the owners and therefore,

plaintiffs assert and claim that they have acquired valid

right and title over suit schedule 'A2' property and

therefore, have denied the title of the original

appellant/defendant No.1. The respondents/plaintiffs have

contended that defendant No.1 has purchased only from

defendant No.2 'ABCD' portion as annexed in the sketch

which is schedule 'A2' property under registered sale deed

dated 02.09.1985 as per Ex.D-1. The plaintiffs' contention

is since schedule 'A2' property is sold only by defendant

No.2 who is one of the co-owner of the suit schedule

property, defendant No.1 would not acquire any valid right

and title under sale deed dated 02.09.1985 which was

executed by defendant No.2 in favour of defendant No.1.

3. On receipt of summons, the original

appellant/defendant No.1 contested the proceedings and

has stoutly denied the entire averments made in the plaint.

The defendant No.1 specifically disputed the allegations

averred by the respondents/plaintiffs in the plaint that he

has tresspassed and that defendant No.2 has executed the

sale deed without paying valuable sale consideration and

that it is a concocted document. The defendant No.1

specifically contended that he has purchased scheduled 'A2'

property which is marked as 'ABCD' in the annexed sketch

under registered sale deed dated 02.09.1985 as per Ex.D-1

which is earlier in point of time and therefore, the question

of declaring the respondents/plaintiffs as absolute owner of

the suit schedule 'A2' property on the basis of subsequent

sale deed executed by his vendor/defendant No.2 and

defendant Nos.3 and 4 is not permissible under law and the

same is contrary to Sections 48 and 54 of Transfer of

Property Act and Sections 47 and 49 of Registration Act.

4. The parties to the suit have led in ocular

evidence and have also produced documentary evidence to

substantiate their respective claims. The Trial Court on

appreciation of ocular and documentary evidence answered

issue Nos.1 and 2 in negative and held that

respondents/plaintiffs have failed to prove that they are

owners of the suit schedule property and further held that

the respondents/plaintiffs are not entitled to recover

damages for a sum of Rs.6,000/-. While answering

additional issue No.1, the Trial Court answered the same in

the affirmative and held that defendant No.1 has proved

that defendant No.2 has alienated suit schedule 'A2'

property in his favour for legal necessity.

5. The respondents/plaintiffs being aggrieved by

the judgment and decree of the Trial Court preferred an

appeal before the First Appellate Court in R.A.No.31/1992.

The Appellate Court, on re-appreciation of oral and

documentary evidence, has reversed the findings of the

Trial Court by answering point Nos.1, 4 and 5 in the

affirmative. The Appellate Court, on re-appreciation of oral

and documentary evidence, has laid emphasis on the fact

that defendant No.2 has alienated suit schedule 'A2'

property under registered sale deed dated 02.09.1985

without the consent of other non-alienating family

members and therefore, has proceeded to hold that the

sale deed executed by defendant No.2 in favour of

deceased appellant/defendant No.1 as per Ex.D-1 is null

and void and therefore, the sale deed dated 02.09.1985 in

favor of deceased appellant/defendant No.1 would not

create any right and interest. The Appellate Court has also

held that defendant No.2 had no manner of right to

alienate the suit schedule 'A2' property and therefore, for

want of consent by alienating members, the Appellate

Court has proceeded to declare the sale deed in favour of

deceased appellant/defendant No.1 as null and void and

consequently declared the respondents/plaintiffs as

absolute owners. On these set of reasonings, the Appellate

Court has proceeded to allow the appeal and set aside the

judgment and decree of the Trial Court.

6. It is this judgment which is under challenge by

the original defendant No.1.

7. The material on record reveals that defendant

No.1 who preferred second appeal before this Court died

during the pendency of the second appeal and his legal

representatives were brought on record.

8. This Court while admitting the appeal has

framed the following substantial questions of law:

"1. Whether the learned Appellate Judge was justified in reversing the Judgment and Decree of the Trial Court?

2. Whether the Judgment and Decree of the Lower Appellate Court is vitiated for not considering the evidence on record inasmuch as the claim of defendant No.1-appellant is he has purchased only an extent of 600 sq.ft and not the entire area?

3. Whether the Judgment and decree of the Lower Appellate Court is perverse inasmuch as it does not consider the oral and documentary evidence adduced by the parties?"

9. Learned counsel appearing for the appellants

lamenting the reasons and conclusions recorded by the

Appellate Court would contend before this Court that

deceased appellant/defendant No.1 has purchased suit

schedule 'A2' property for valuable consideration under

registered sale deed dated 02.09.1985 which is much prior

to the sale deed obtained by plaintiffs and therefore, he

would contend before this Court that defendant No.1

acquired valid right and title pursuant to alienation by

defendant No.2 which was in fact for legal necessity and

there is clinching evidence which is placed before the Court

which clearly proves that defendant No.2 for domestic

compulsion was compelled to sell a portion of the property

which is marked as 'ABCD' portion in the sketch and

therefore, he would contend before this Court that the

respondents/plaintiffs who are the subsequent purchasers

have no locus standi to seek relief of declaration and

possession based on a subsequent sale deed. He would

also lay emphasis on the fact that the non-alienating

members i.e., defendant Nos.2 and 3 have not at all

questioned the sale deed executed by the defendant No.2

in favor of deceased defendant No.1.

10. To buttress his arguments, he would take this

Court to the written statement filed by defendant

No.2/vendor. Placing reliance on the averments made in

the written statement of defendant No.2, he would submit

to this Court that defendant No.2 has not at all disputed

the due execution of registered sale deed in favour of

deceased defendant No.1 for valuable sale consideration.

He would also refer to the ocular evidence of DW.3 who is

none other than the son of defendant No.2. Now coming to

the dispute in regard to two conflicting sale deeds, he

would submit to this Court that defendant No.2 has only

sold a small portion of the property and the extent which is

sold under Ex.D-1 by defendant No.2 in favour of

defendant No.1 is well within the legitimate share of

defendant No.2 in the suit schedule properties. Therefore,

he would submit to this Court that the grievance which is

being agitated by the subsequent purchasers i.e.,

respondents/plaintiffs herein cannot be entertained as it is

only the co-owners who were not party to the sale deed

were aggrieved persons and therefore, the present suit for

declaration and consequential relief of possession by

subsequent purchasers is not at all maintainable.

11. Learned counsel would also take this Court to

paragraph 4 of the written statement and would contend

before this Court that defendant No.2 is a signatory to the

second sale deed executed by his brothers. However, he

has offered an explanation which finds place at paragraph

4 of the written statement wherein he has clearly stated

that inspite of sale by him in favour of defendant No.1, he

still had share in the suit schedule 'A2' property and his

brothers were pressurizing that unless he does not sign the

sale deed, he would not be entitled to the sale

consideration. It is in this background that defendant No.2

has even signed the sale deed in respect of suit schedule

'A2' property also. He would also submit to this Court that

the respondents/plaintiffs have in fact purchased larger

share under sale deed dated 17.09.1986. The

respondents/plaintiffs have purchased the entire extent

under two separate sale deeds on the same day. One sale

deed refers to schedule 'A1' property and the second sale

deed as per Ex.P-7 pertains to the present suit property

which is referred as 'ABCD' portion in the sketch annexed

to the plaint.

12. Questioning the reasons recorded by the

Appellate Court, he would submit to this Court that the

finding of the Appellate Court that a co-parcener cannot

sell his undivided interest without consent of other co-

parceners is perverse and contrary to the principles laid

down under Mitakshara Law. He would submit to this

Court that it is trite law that a co-parcener has every right

to sell his undivided share or a specific property forming

part of a joint family property. On these set of grounds, he

would submit to this Court that the entire basis on which

the Appellate Court has reversed the well considered

judgment and decree of the Trial Court is that the

alienation by defendant No.2 in respect of suit schedule

'A2' property is without the consent of defendant Nos.3 and

4. He would further conclude his arguments by contending

that the finding of the Appellate Court in declaring the sale

deed dated 02.09.1985 executed by the defendant No.2 in

favour of defendant No.1 as null and void is perverse,

palpably erroneous and in absence of any prayer to that

effect.

13. Per contra, learned counsel appearing for the

respondents/plaintiffs refuting the contentions canvassed

by the learned counsel for the appellants would submit to

this Court that there is no need to seek cancellation of sale

deed in favour of defendant No.1 executed by defendant

No.2 as per Ex.D-1. He would submit to this Court that

since the plaintiffs were in possession of the entire extent,

sale deed in favour of defendant No.1 executed by

defendant No.2 does not create any right and title as the

lease was in subsistence. He would submit to this Court

that the respondents/plaintiffs were in possession of the

entire extent from the date of lease i.e., 25.01.1977 till the

date of execution of sale deed in their favour. He would

further submit to this Court that since all the owners have

come forward and executed sale deed in favour of the

respondents/plaintiffs as per Ex.P-7 and same is supported

by the ocular evidence of PWs.2 to 5, the judgment and

decree of the Appellate Court in declaring the

respondents/plaintiffs as absolute owners is in accordance

with law and does not suffer from any perversity and

therefore, may not warrant any interference at the hands

of this Court.

14. In support of his contention, learned counsel for

the respondents/plaintiffs has placed reliance on a

judgment rendered by the Hon'ble Apex Court in the case

of Faqirchand vs. Sardarni Harnamkaur1. Placing

reliance on this judgment, he would submit to this Court

that defendant No.2 had no authority to alienate the suit

1967 (1) SCR 68

schedule property except for legal necessity or for payment

of an antecedent debt.

15. Heard learned counsel for the appellants and

learned counsel for the respondents. I have bestowed my

anxious consideration to the reasons assigned by the Trial

Court as well as Appellate Court and have gone through

the judgment rendered by both the Courts below and have

also examined the ocular and documentary evidence led in

by both the parties in support of their case.

16. This Court while admitting the appeal has, in all,

formulated three substantial questions of law. The second

substantial question of law would have a direct bearing on

the lis between the parties. Admittedly, the suit schedule

property is a co-parcenery property. The material on

record clearly indicates that the family owned large extent

of lands i.e., 40 acres of land apart from the present suit

schedule property. The Appellate Court has observed in its

judgment that the defendant No.2 has sold 20 guntas of

land in favour of defendant No.1 under registered sale

deed dated 02.09.1985 vide Ex.D-1. This finding is

factually incorrect and is contrary to the extent shown in

the registered sale deed executed by the defendant No.2 in

favour of defendant No.1 as per Ex.D-1. On perusal of

Ex.D-1, this Court would find that what is sold by the

defendant No.2 in favour of deceased defendant No.1 is

only an extent of 600 sq.ft. while the entire extent

measures 20 1/2 guntas and the same is shown in two parts

as schedule 'A1' and schedule 'A2'. Schedule 'A1' property

is a larger extent and what is sold under Ex.D-1 is a small

portion which is referred as 'ABCD' portion as shown in the

sketch annexed to the plaint. Therefore, the findings of the

Appellate Court that defendant No.2 has sold 20 1/2 guntas

is perverse and contrary to the clinching evidence on

record. Therefore, the substantial question of law

formulated at Sl.No.2 would be relevant and this Court has

to examine the right of a co-parcener in selling his

undivided interest.

17. This Court has to also bear in mind that the

parties are admittedly governed by Bombay School of Law.

According to Mitakshara Law as administered in Bombay

School, a co-parcener may sell, mortgage, or otherwise

alienate for value his undivided interest in the co-parcenery

property without the consent of other co-parceners. Where

the sale is for consideration, there could be no bar against

the joint owner against selling his undivided share and

therefore, the question of setting at naught the sale would

not arise at all. It is also trite law that under Mitakshara

Law, as applied in Bombay School of Law, a co-parcener

may alienate his undivided interest in the entire joint

family property or his undivided interest in a specific

property forming part of joint family properties. If these

principles are taken into consideration, then I am of the

view that the finding of the Appellate Court in virtually

declaring the sale deed executed by defendant No.2 in

favour of defendant No.1 as null and void only on the

premise that defendant No.2 being a co-parcener has

alienated undivided share without the consent of other co-

parceners is perverse, palpably erroneous and contrary to

settled proposition of law.

18. Even if the vendor of defendant No.1 i.e.,

defendant No.2 has joined his brothers and has

subsequently executed the sale deed in respect of the

entire extent, that in itself would not nullify a registered

document which is executed by a member of a co-

parcenery family who has admittedly undivided interest.

The defendant No.2 who is the transferor in no way can

prejudice the right of defendant No.1. The Appellate Court

has virtually lost sight of the fact of alienation done by the

defendant No.2 in favour of defendant No.1 under

registered document for a valuable sale consideration.

Even if there is a subsequent transfer of the very same

property, the latter transfer is subject to the prior transfer.

Therefore, this Court is of the view that the findings arrived

at by the Appellate Court in not only declaring the

respondents/plaintiffs as absolute owners of suit schedule

'A2' property but consequently declaring the sale deed

dated 02.09.1985 executed by the defendant No.2 in

favour of defendant No.1 as null and void is one without

jurisdiction and in absence of prayer to that effect. This

Court has to also bear in mind that non-alienating co-

parceners have not questioned the sale deed executed by

the defendant No.2 in favour of defendant No.1.

19. The clinching evidence on record would also

indicate that the defendant Nos.3 and 4 were in fact

Government employees and that they were serving at

different places while the defendant No.2 is an agriculturist

and was managing the entire family affairs. It has come in

evidence that on account of draught, the defendant No.2

had no resources to support his family and therefore, he

was compelled to sell the suit land to meet out the family

needs as well as the education expenses of his two sons.

DW.3 has stated in unequivocal terms in his ocular

evidence that his father was compelled to sell the land as

they were studying at Dharwad. Therefore, the clinching

ocular evidence on record led in by defendant Nos.1 and 2

would clearly demonstrate that in fact defendant No.2 was

compelled to sell suit schedule 'A2' property for valuable

consideration and the same was for legal necessity.

20. Be that as it may, the defendant No.2 has not

alienated the entire extent. What is sold is only portion of

the property in Sy.No.234/A2/3/1, totally measuring 201/2

guntas. Therefore, the question of legal necessity would

also lose its vigor and would be of no consequence in the

light of the discussion made in the preceding paragraph,

wherein I have referred to the principles under Mitakshara

Law which permits a co-parcener to sell his undivided

interest in a co-parcenery property. Therefore, in this

background, I am of the view that the Appellate Court has

erred in setting at naught the sale deed executed by the

defendant No.2 in favour of defendant No.1 as per Ex.D-1

which is impermissible under law. Since the sale deed in

favour of defendant No.1 was earlier in point of time, that

was best cause of action that had accrued to defendant

Nos.3 and 4 to seek appropriate remedy before a

competent civil Court by filing a partition suit.

21. It is trite law that a non-alienating co-parcener

need not challenge the sale deed and it would be sufficient

if they file a suit for partition and separate possession on

the ground that undivided interest is being alienated by a

member of the co-parcenery family. This exercise was not

done by the defendant Nos.3 and 4. On the contrary, the

defendant Nos.3 and 4 pressurized the defendant No.2 and

they executed one more sale deed in respect of the entire

extent in favour of the respondents/plaintiffs by registered

sale deed dated 17.09.1986 as per Ex.P-7. It is this act of

defendant Nos.3 and 4 which has in fact lead to future

complications and the parties are virtually driven to

litigation and both the parties are litigating since 1989.

22. The Appellate Court by declaring the sale deed

in favour of defendant No.1 as null and void has virtually

taken away the right and title which stood transferred in

favour of defendant No.1. Pursuant to registered sale deed

under Ex.D-1, there was valid transfer of right and title to

an extent of 600 guntas and the same cannot be taken

away, more particularly when defendant No.2 has admitted

that he has alienated suit schedule 'A2' property for

valuable consideration for the benefit of the family. The

defendant No.1 cannot be left remedyless. If defendant

No.1 has purchased an undivided interest, he has every

right to seek and retain the property which was alienated.

However, his right to seek any specific portion of a co-

parcenery property is not permissible as against non-

alienating co-parceners. But if the litigation is between the

purchasers, then he has got every right to retain the

property which was the subject matter of alienation under

registered sale deed. All these significant details are not at

all examined by the Appellate Court.

23. As discussed above, law permits a co-parcener

to sell his undivided share. Law permits a stranger to

purchase the undivided share from a co-parcener.

Admittedly, in the present case on hand, defendant Nos.3

and 4 who were not signatories to Ex.D-1 ought to have

filed a partition suit on account of alienation by defendant

No.2 in favour of defendant No.1. On the contrary, what

emerges from the records is that there is a partition

subsequent to sale deed executed by defendant No.2 in

favour of defendant No.1 in respect of remaining 40 acres.

Had defendant Nos.3 and 4 filed a suit for partition and

separate possession, the defendant No.1 had every right to

seek equities and work out his rights in a final decree

proceedings. On the contrary, the defendant Nos.3 and 4

have executed one more sale deed and defendant No.2 has

joined his brothers and the entire extent is sold. Merely

because all the co-parceners have agreed to sell the entire

extent in favour of respondents/plaintiffs, that would in no

way nullify the valuable right and title that was passed on

in favour of defendant No.1 under registered sale deed

which was earlier in point of time. Therefore, under

Section 8 of Transfer of Property Act, the sale deed

executed by defendant No.2 in respect of Schedule 'A2'

property which is referred as 'ABCD' portion under

registered sale deed dated 02.09.1985 as per Ex.D1 would

create right and title in favour of defendant No.1 forthwith.

There would be transfer of property forthwith in favour of

defendant No.1 and transfer would be of all the interest

which the transferor was then capable of passing in the

property and in the legal incidents thereof. Under Section

48 of T.P.Act, neither defendant No.2 nor the plaintiffs

vendor can prejudice the rights of defendant No.1. In the

present case there are successive transfer of same

property and therefore, the latter transfer which is in

favour of the plaintiffs by defendant No.2 and also by

vendor of plaintiffs would be subject to the earlier

registered sale deed dated 02.09.1985 executed by

defendant No.2 in favour of defendant No.1. There are

registered sale deeds in respect of same property. Priority

of rights created by transferor under Section 48 of the

T.P.Act would clearly establish right and title of defendant

No.1. The right and title which is passed on pursuant to

registered sale deed cannot be nullified, more particularly

at the instance of subsequent purchasers.

24. In view of the findings arrived at the preceding

paragraphs, I am of the view that the substantial questions

of law formulated by this Court have to be answered in the

affirmative. The Appellate Court erred in reversing the

judgment and decree of the Trial Court which does not

suffer from any perversity and the reasons and conclusions

arrived at by the Trial Court is based on evidence on

record. The judgment and decree of the Appellate Court in

declaring the sale deed in favour of the defendant No.1 as

null and void is perverse, palpably erroneous and contrary

to Sections 8 and 48 of T.P.Act and the same stands

vitiated as the same is contrary to clinching evidence on

record. In that view of the matter, I am of the view that

the substantial questions of law formulated by this Court

are liable to be answered in the affirmative. Accordingly,

the same are answered in the affirmative and the judgment

and decree of the Appellate Court, for the reasons stated

supra, is liable to be set aside.

25. Hence, I pass the following:

ORDER

The appeal is allowed. The judgment and decree of

the Appellate Court passed in R.A.No.31/1992 by the Civil

Judge (Sr.Dn.) at Principal JMFC, Ranebennur is set aside.

Consequently, the judgment and decree of the Trial Court

passed in O.S.No.148/1989 by the Civil Judge (Jr.Dn.),

Hirekerur is confirmed.

Sd/-

JUDGE CA