Karnataka High Court
Lakshman vs B Lingesh on 5 January, 2022
Bench: Sachin Shankar Magadum
IN THE HIGH COURT OF KARNATAKA
DHARWAD BENCH
DATED THIS THE 5TH DAY OF JANUARY 2022
BEFORE
THE HON'BLE MR. JUSTICE SACHIN SHANKAR MAGADUM
RSA NO.5970/2013 (DEC)
BETWEEN
1 . LAKSHMANA S/O RAMAPPA,
AGE: 53 Y EARS,
OCC: AGRICULTURE,
R/O: MARUTLA,
TQ: SANDUR, DIST: BELLARY
2 . RAMAPPA
S/O SUBBAIAH,
AGE: 88 YEARS,
OCC: AGRIL,
R/O: MARUTLA,
TQL: SANDUR, DIST: BELLARY
3 . NAGAPPA
S/O RAMAPPA,
AGE: 56 YEARS,
OCC: AGRICULTURE,
R/O: MARUTLA,
TQL: SANDUR,
DIST: BELLARY
4 . SUBBAIAH
S/O RAMAPPA,
AGE: 38 YEARS,
OCC: AGRICULTURE,
R/O: MARUTLA,
TQL: SANDUR,
DIST: BELLARY
... APPELLANTS
(BY SRI.M.N.BIKKANNAVAR, ADV. FOR
SRI.ANAND R.KOLLI, ADV.)
2
AND
1 . B. LINGESH
S/O MAREPPA,
AGE: 38 YEARS,
OCC: AGRICULTURE,
R/O: MARTULA,
TQ: SANDUR, DIST: BELLARY.
2 . THIPPAIAH
S/O RAMANNA,
AGE: 36 YEARS,
OCC: AGRICULTURE,
R/O: MARUTLA,
TQ: SANDUR, DIST: BELLARY
3 . YANKAPPA
S/O NARASAPPA,
AGE: 38 YEARS,
OCC: AGRICULTURE,
R/O: MARUTLA,
TQ: SANDUR, DIST: BELLARY
... RESPONDENTS
(BY SRI.V.M.SHEELVANT, SRI.VINAY S.KOUGALAGI, ADVS. FOR R3,
R1 HELD SUFFICIENT; R2 SERVED & UNREPRESENTED)
THIS APPEAL IS FILED UNDER SECTION 100 OF CPC PRAYING
TO SET ASIDE THE JUDGMENT AND DECREE DATED 16.07.2012
PASSED IN R.A.NO.15/2011 PASSED BY THE PRESIDING OFFICER
FAST TRACK COURT-III, HOSPET AND THEREBY REVERSING THE
JUDGMENT AND DECREE PASSED BY THE CIVIL JUDGE (SR.DN.)
KUDLIGI IN O.S.NO.12/2005 DATED 01.01.2009.
THIS APPEAL COMING ON FOR ADMISSION THIS DAY, THE
COURT DELIVERED THE FOLLOWING:
3
JUDGMENT
The captioned second appeal is filed by the plaintiff
and defendant Nos.1 to 3 questioning the judgment and
decree passed by the first appellate court in
R.A.No.15/2011.
2. The appellant No.1/plaintiff has filed a suit for
partition and separate possession in O.S.No.12/2005. The
appellant's contention is that the suit schedule properties
are the joint family ancestral properties and there is no
partition in the family of the plaintiff and defendant Nos.1
to 3. The appellant/plaintiff has alleged that his father i.e.,
defendant No.1 is addicted to vices and taking undue
advantage of the said fact, defendant No.4-purchaser by
playing fraud and misrepresentation has secured a sale
deed. The appellant/plaintiff's contention is that he has
1/4th share in the suit schedule properties and therefore,
he has filed the present suit for partition and separate
possession.
3. On receipt of summons, defendant
No.4/purchaser tendered his appearance and filed written
statement. Defendant No.4 stoutly denied the entire
averments made in the plaint. At para 15(c), defendant
No.4 has taken a specific contention that the present suit is
filed in collusion with defendant Nos.1 to 3 only to deprive
the valuable rights that are accrued to him pursuant to the
registered sale deed dated 17.06.2004 for valuable
consideration of Rs.80,000/-. On these set of defence,
defendant No.4 sought for dismissal of the suit. The trial
court having assessed the oral and documentary evidence
has answered issued No.4 in the negative and proceeded to
decree the suit awarding 1/4th share to the
appellant/plaintiff.
4. Defendant No.4 being aggrieved by the
judgment and decree of the trial court preferred an appeal
before the first appellate court in R.A.No.15/2011. The first
appellant court on appreciation of oral and documentary
evidence has taken judicial note of the registered gift deed
executed by defendant No.1 in favour of wife of the plaintiff
and has come to conclusion that the suit is filed with an
oblique motive in collusion with defendant No.1. The first
appellate court has recorded a finding that plaintiff has not
filed the present suit by contending that he belongs to a
Hindu undivided family and defendant No.1 has sold the
suit schedule properties without their consent. The suit is
filed alleging that defendant No.4 has secured the sale
deed by exercising undue influence and by
misrepresentation. The first appellate Court has proceeded
to hold that defendant No.4 is not a bona fide purchaser for
valuable consideration and since the suit is a collusive suit,
the first appellate court was of the view that the plaintiff is
not entitled for any share in the property which is alienated
and alienation done by his father i.e., defendant No.1
would bind the plaintiff also. On these set of reasoning, the
first appellate court has reversed the finding recorded by
the trial court and proceeded to allow the appeal and
consequently, dismissed the suit. It is this judgment which
is called in question by the plaintiff and defendant Nos.1 to
3 in this second appeal.
5. Heard the learned counsel for the appellants and
learned counsel for the respondent No.3/defendant No.4.
6. On perusal of the judgment rendered by the trial
court as well as the first appellate court, what can be
gathered and inferred is that the suit is filed with mala-fide
intention. Though the counsel appearing for respondent
No.3/defendant No.4 contends that present suit is filed
only in respect of alienated properties, however, on perusal
of the records, it is found that no details are furnished by
respondent No.3/defendant No.4. Be that as it may, what
emerges from the records is that, this suit is filed at the
instigation of defendant No.1 who has sold this property to
respondent No.3/defendant No.4 for valuable sale
consideration. The subsequent events would have bearing
on the stand and allegations made by the plaintiff in the
present case on hand. The plaintiff having succeeded
before the trial court has virtually colluded with defendant
No.1 and has managed to transfer the suit schedule
property in favour of plaintiff's wife. Defendant No.1 has
executed a registered gift deed in favour of plaintiff's wife
and thereby gifted the suit schedule property after passing
of the decree by the trial court. If the recitals in the
registered sale deed dated 17.06.2004 vide Ex.P3 and the
recitals in the gift deed which is also part of the record are
meticulously examined, what clearly emerges is that the
property in question is a self-acquired property of
defendant No.1. If the suit schedule property is a self-
acquired property of defendant No.1 and it is already
parted by selling the same in favour of respondent
No.3/defendant No.4 under registered sale deed dated
17.06.2004 for valuable sale consideration of Rs.80,000/-,
defendant No.1 had no subsisting right to execute gift deed
in favour of his wife's name. All these significant details
only lead to a conclusion that it is defendant No.1 who
after having sold the suit schedule property in favour of
defendant No.4 has set up his son to file the present suit.
Though the first appellate court has not elaborately
discussed and has not examined these documents
meticulously, but has rightly come to the conclusion that
the present suit is a collusive suit and the plaintiff having
failed to establish that undue influence was exercised on
defendant No.1 has rightly reversed the finding of the trial
court and allowed the appeal and consequently, dismissed
the suit.
7. If the recitals in the sale deed coupled with the
gift deed are examined meticulously, it can be presumed
that the suit schedule property is a self-acquired property
of defendant No.1. The averment made in the pleadings
that suit schedule property is joint family ancestral
property is not supported by clinching evidence. Though
there is presumption in regard to jointness of a family, the
same cannot be extended in regard to the property. Even
otherwise, the pleadings that the suit schedule properties
are joint family ancestral properties stands falsified not
only from the recitals in the sale deed as per Ex.P3, but
also from the recitals in the gift deed wherein the plaintiff
is an indirect beneficiary on the basis of a registered gift
deed.
8. The next question needs to be examined is, if
defendant No.1 has already sold the suit schedule property
for valuable sale consideration under the registered sale
deed, the registered gift deed in favour of plaintiff's wife
would be of no consequence. On the contrary, it has come
to the aid of defendant No.4 to draw an inference that the
suit schedule property was self-acquired property of
defendant No.1. Therefore, the partition suit itself was not
maintainable. In that view of the matter, I do not find any
illegality or infirmity in the judgment and decree of the first
appellate court. The appeal is devoid of any merits is
accordingly dismissed.
9. In view of dismissal of the appeal,
I.A.No.2/2014 filed for stay does not survive for
consideration and the same is dismissed.
Sd/-
JUDGE
MBS/-
