Dyamavva W/O. Parappa Mayakar vs Shankaragouda Veeranagouda ...
2022 Latest Caselaw 325 Kant

               IN THE HIGH COURT OF KARNATAKA
                       DHARWAD BENCH

           DATED THIS THE 10TH DAY OF JANUARY 2022

                            BEFORE

      THE HON'BLE MR. JUSTICE SACHIN SHANKAR MAGADUM

                  RSA.NO.5923/2013 (DEC/INJ)
BETWEEN

1.   SMT.DYAMAVVA W/O. PARAPPA MAYAKAR
     AGE: MAJOR, OCC: HOUSEHOLD WORK
     R/AT: BHAIRIDEVARKOPPA, HUBLI

2.   SHIVANAND PARAPPA MAYAKAR
     AGE: 55 YEARS, OCC: SERVICE
     R/AT: BHAIRIDEVARKOPPA, HUBLI

3.   SMT.NINGAMMA W/O. BASAPPA KALYANI @ PUJAR
     AGE: 52 YEARS, OCC: HOUSEHOLD WORK
     R/AT: BHAIRIDEVARKOPPA, HUBLI

4.   SIDDAPPA PARAPPA MAYAKAR
     AGE: 51 YEARS, OCC: COOLIE
     R/AT: BHAIRIDEVARKOPPA, HUBLI

5.   HANUMANTAPPA PARAPPA MAYAKAR
     AGE: 45 YEARS, OCC: HOUSEHOLD WORK
     R/AT: BHAIRIDEVARKOPPA, HUBLI

6.   RAMAPPA PARAPPA MAYAKAR
     AGE: MAJOR, OCC: COOLIE
     R/AT: BHAIRIDEVARKOPPA, HUBLI

7.   YALLAPPA PARAPPA MAYAKAR
     AGE: 36 YEARS, OCC: COOLIE
     R/AT: BHAIRIDEVARKOPPA, HUBLI

                                                   ... APPELLANTS
(BY SRI.P.N.HATTI, SRI.S.B.PATIL & SMT.R.P.HATTI, ADVS.)
                            2




AND


1.    SHANKARAGOUDA VEERANAGOUDA TIRAKANGOUDAR
      @ PATIL
      AGE: MAJOR, OCC: AGRICULTURE
      R/AT: MANGALORE TQ: BADAMI,
      DIST: BAGALKOT

2.    YALLANAGOUDA VEERANAGOUDA TIRAKANGOUDAR
      @ PATIL
      AGE: MAJOR, OCC: AGRICULTURE
      R/AT: MANGALORE TQ: BADAMI,
      DIST: BAGALKOT

3.    RUDRAGOUDA VEERANAGOUDA TIRAKANGOUDAR
      @ PATIL
      AGE: MAJOR, OCC: AGRICULTURE
      R/AT: MANGALORE TQ: BADAMI,
      DIST: BAGALKOT

4.    VEERABHADRAGOUDA YALLANGOUDA TIRAKANGOUDA
      @ PATIL
      AGE: MAJOR, OCC: AGRICULTURE
      R/AT: MANGALORE TQ: BADAMI,
      DIST: BAGALKOT

4(a). MARCHANDAPPA VEERABHADRAPPA TIRAKANGOUDA
      @ PATIL
      AGE: MAJOR, OCC: AGRICULTURE
      R/AT: MANGALORE TQ: BADAMI,
      DIST: BAGALKOT

4(b). RENUKA D/O. VEERABHADRAPPA TIRAKANGOUDA
      @ PATIL
      AGE: MAJOR, OCC: AGRICULTURE
      R/AT: MANGALORE TQ: BADAMI,
      DIST: BAGALKOT
                                3




4(c). MAHADEVI VEERABHADRAPPA TIRAKANGOUDA
      @ PATIL
      AGE: MAJOR, OCC: AGRICULTURE
      R/AT: MANGALORE TQ: BADAMI, DIST: BAGALKOT

5.   HANAMANGOUDA YALLANGOUDA TIRAKANAGOUDAR
     @ PATIL
     AGE: MAJOR, OCC: AGRICULTURE
     R/AT: MANGALORE TQ: BADAMI, DIST: BAGALKOT

6.   RAMANGOUDA RUDRAGOUDA TIRAKANGOUDAR
     @ PATIL
     AGE: MAJOR, OCC: AGRICULTURE
     R/AT: MANGALORE TQ: BADAMI, DIST: BAGALKOT

7.   JILANIKAHAN MODINKHAN CHINIWALAR
     AGE: MAJOR, OCC: NOT KNOWN,
     R/AT: ADAVISOMAPUR ROAD
     JANATA COLONY, GADAG

8.   SHAKATHAN MODINKHAN CHINIWALAR
     AGE: MAJOR, OCC: COOK
     R/AT: MRBCCIB RON DIST: GADAG

9.   YAKUBKHAN MODINKHAN CHINIWALAR
     AGE: MAJOR, OCC: NOT KNOWN,
     R/AT: HUDCO COLONY, MUNDARGI.

                                               ... RESPONDENTS
(BY SRI.SADASHIV S.PATIL, ADV. FOR C/R1-R3, R(A-C), R5 & R6,
    R7 & R9 NOTICE DISPENSED WITH,
    R8 SERVED AND UNREPRESENTED)

      THIS APPEAL IS FILED UNDER SECTION 100 OF CPC PRAYING
TO SET ASIDE THE JUDGMENT AND DECREE IN THE COURT OF THE I
ADDL. DISTRICT AND SESSIONS JUGE, DHARWAD SITTING AT HUBLI
IN R.A.NO.218/2010 DATD 12.04.2013 THEREBY CONFIRM THE
JUDGMENT AND DECREE PASSED BY THE COURT OF THE II ADDL.
SENIOR CIVIL JUDGE, HUBLI IN O.S.NO.236/2002 DATED
23.02.2010.

     THIS APPEAL COMING ON FOR ADMISSION THIS DAY, THE
COURT DELIVERED THE FOLLOWING:
                                   4




                            JUDGMENT

The captioned Regular Second Appeal is filed by the

unsuccessful plaintiffs questioning the judgment and

decree of the courts below wherein the suit filed by the

appellants/plaintiffs seeking relief of declaration and

injunction is dismissed.

2. Brief facts leading to the case are that,

appellants/plaintiffs claim to be the legal heirs of one

Parappa Mayakar. The appellants/plaintiffs are questioning

the sale deed dated 19.01.1989 executed by husband of

appellant No.1 namely, Parappa and father of appellant

Nos.2 to 7/plaintiff Nos.2 to 7 in favour of defendant Nos.1

to 6. Appellants claim that suit bearing Block No.310 which

was totally measuring 12 acres 21 guntas was originally

owned by Yallappa Mayakar i.e., grand father of appellant

Nos.2 to 7 herein. It is further contended that there was

family partition in respect of the joint family properties

between father of appellant Nos.2 to 7 and his 5 brothers.

In the said family partition, it is contended that the present

suit property was allotted to the share of father of

appellant Nos.2 to 7, which was 1/6th share in the

properties. On these set of pleadings, the appellants claim

that the suit schedule properties are the joint family

ancestral properties.

3. The appellants/plaintiffs contended that

propositus Parappa has sold the suit schedule property in

favour of respondent Nos.1 to 6 under registered sale deed

dated 19.01.1989 without there being any legal necessity.

It is specifically averred by the appellants that there was

absolutely no legal necessity to sell the suit schedule

property. Therefore, the sale deed dated 19.01.1989

executed by husband of appellant No.1 in favour of

defendant Nos.1 to 6 is not binding on the share of the

plaintiffs. On these set of pleadings, the appellants sought

for the relief of declaration and consequential relief of

injunction.

4. The respondents/defendants contested the

proceedings and filed written statement. The

respondents/defendants stoutly denied the entire

averments made in the plaint and set up a counter claim

contending that respondent Nos.1 to 6 have purchased

Block No.310/4 measuring 2 acre 4 guntas under

registered sale deed dated 19.01.1989 for a sale

consideration of Rs.60,000/-. Pursuant to sale, respondent

Nos.1 to 6 claim that they were put in possession of the

suit schedule property and since 1989 they are in exclusive

possession of the suit schedule property. It was also

contended that, out of 2 acres 4 guntas, they have sold 1

acre 2 guntas in favour of defendant Nos.7 to 9. The

respondents/defendants have also contended that the suit

property was subject matter of acquisition and the entire

extent was acquired by Hubballi-Dharwad Urban

Development Authority (HDUDA) way back in 2000.

Respondent Nos.1 to 6 questioned the acquisition and

succeeded in getting the de-noticed 1 acre 2 guntas. Out of

total extent of 2 acres 4 guntas, remaining 1 acre 2

guntas, which was sold to respondent Nos.7 to 9 was

acquired and possession was taken way back in 2002 itself.

On these set of reasoning, the respondents sought for

dismissal of the suit.

5. The appellants/plaintiffs to substantiate their

claim let in ocular evidence by examining plaintiff No.5 as

P.W.1 and relied on documentary evidence vide Exs.P1 to

P4. The respondents examined defendant No.1 as D.W.1

and relied on documentary evidence vide Exs.D1 to D37.

The trial court having assessed oral and documentary

evidence, held that husband of appellant No.1 namely,

Parappa has sold the suit schedule property in favour of

respondent Nos.1 to 6 for legal necessity and the same can

be gathered from the recitals averred in the sale deed

dated 19.01.1989. The plea of the appellants that they

have perfected their title by way of adverse possession

over the suit property was also negatived. The trial court

having referred the recitals in the sale deed has come to

the conclusion that the sale was in fact for legal necessity

and therefore, the same would bind the minor children of

Parappa also. Therefore, the present suit filed seeking

declaration and injunction is not at all maintainable. The

trial court having rejected the claim of the

appellants/plaintiffs, however, proceeded to allow the

counter claim set up by respondents/defendants and

decreed the counter claim restraining the appellants from

interfering with the peaceful possession and enjoyment of

respondent Nos.1 to 6 over the property bearing Block

No.310/4/1 measuring 1 acre 2 guntas.

6. Feeling aggrieved, the appellants/plaintiffs

preferred an appeal before the first appellate court. The

first appellate court on re-appreciation of the oral and

documentary evidence has concurred with the finding

recorded by the trial court. Apart from reasons assigned by

the trial court in regard to legal necessity, the first

appellate court has independently assessed the oral and

documentary evidence and has also taken note of

subsequent events that have occurred pursuant to

execution of sale deed. The first appellate court has

referred to the acquisition by HDUDA in the year 2000 and

consequent de-notification to an extent of 1 acre 2 guntas.

The first appellate court has also taken note of the

alienation of 1 acre 2 guntas by respondent Nos.1 to 6 in

favour of respondent Nos.7 to 9. On re-appreciation, the

first appellate court has concurred with the findings

recorded by the trial court in regard to legal necessity. The

first appellate court was also of the view that, except the

self-sworn testimony of P.W.1, the appellants/plaintiffs

have not placed any independent evidence to disbelieve the

recitals in the sale deed, which indicates that sale by

Parappa was for legal necessity.

7. The first appellate court on re-appreciation has

also disbelieved the contents of Ex.P3. The first appellate

court was of the view that Ex.P3 has come into existence

after 1½ months from the date of registration of the sale

deed. Therefore, the first appellate court has discarded

Ex.P3 by recording a finding that the same would not

negate the defence set up by respondent Nos.1 to

6/defendant Nos.1 to 6.

8. Being aggrieved by the concurrent finding of

both the courts below, the appellants/plaintiffs are before

this court.

9. Learned counsel for the appellants/plaintiffs re-

iterating the grounds urged in the appeal memo would

vehemently argue and contend before this court that,

admittedly, Parappa has sold the minors share and

therefore, the sale deed executed by Parappa was not for

the benefit of the family and in the absence of clinching

rebuttal evidence adduced by the purchasers in regard to

legal necessity, both the courts have concurrently erred in

dismissing the suit and therefore, would give rise to the

substantial question of law. As such, the judgment and

decree of the courts below warrant interference at the hand

of this court.

10. To buttress his arguments, learned counsel

appearing for the appellants/plaintiffs placed reliance on

the judgment of Co-ordinate Bench of this court in the case

of Shivarudraiah vs K.N.Maruti Prakash and Others1.

Placing reliance on this judgment, he would submit to this

court that recitals in the sale deed referring to existence of

legal necessity would not suffice and would not discharge

burden which is cast on the purchasers. He would submit

to this court that burden of establishing that there was

legal necessity always rests on the transferee. In the

present case on hand, except relying on the recitals of the

sale deed, respondent Nos.1 to 6 purchasers have not led

in any independent evidence and these relevant aspects

are not dealt by the courts below. On these set of grounds,

he would submit to this court that appeal would give rise to

1996 SCC OnLine KAR 392

substantial question of law pertaining to discharge of

burden in regard to legal necessity by respondent Nos.1 to

6. Therefore, he prays for admitting the present appeal.

11. Heard the learned counsel for the appellants and

perused the judgment rendered by the courts below. I

have bestowed my anxious consideration to the reasons

assigned by the courts below. The husband of appellant

No.1 sold the suit schedule property in favour of

respondent Nos.1 to 6 under registered sale deed dated

19.01.1989 for sale consideration of Rs.60,000/-. In the

pleadings, the appellants claim that this property was

allotted in a family partition between the father of appellant

Nos.2 to 7 and his 5 brothers. On perusal of the pleadings,

at para 3 of the plaint, this court would find that the

appellants have made an attempt to contend that the suit

schedule properties are joint family ancestral properties.

However, there is no specific narration as to how his father

succeeded to the suit schedule properties. Mere pleading

that suit schedule properties are joint family ancestral

properties would not suffice. There is presumption in

regard to jointness of Hindu undivided family, but such a

presumption cannot be extended to a property. The

appellants/plaintiffs were required to plead more

specifically indicating that suit schedule properties are co-

parcenary properties and that their father succeeded in

family partition, not in his individual capacity but on behalf

of the family. This would necessarily implies that

appellants/plaintiffs were required to further plead that

these properties were held by the grand father of appellant

Nos.2 to 7 as joint family ancestral properties. This court

would find that there is lot of vagueness in the pleadings.

12. The next question that needs to be examined by

this court is, whether the minor's share in the joint family

ancestral properties can be regarded as a minor's property.

The answer would be no. There is small distinction between

minor's share in a co-parcenery property and minor's

property. A minor's share in the joint family ancestral

property cannot be regarded as a minor's property.

Therefore, the question of seeking permission from the

court to deal with the minor's share may not arise.

13. The recitals in the registered sale deed relied on

by respondent Nos.1 to 6 clearly indicate that Parappa was

compelled to sell this land way back in 1989 for legal

necessity. Both the courts below have culled-out the

relevant portion of the sale deed which clearly indicates

that Parappa had to sell the suit schedule property for legal

necessity. It is a trite law that burden is always on the

transferee to establish and prove that alienation was for

legal necessity. But if the alienation is challenged after 10-

* 13 years 6 months 17 days 11 years, it cannot be possible for the transferee to gather * 13 years 6 months 17 days.

evidence after lapse of 10-11 years. This view is taken by

this court would found support from the very judgment

cited by the learned counsel for the appellants. The Co-

ordinate Bench of this court has placed reliance on the

* Corrected vide court order dated 24.02.2022 Sd/-

(SSMJ)

judgment of the Hon'ble Apex Court in the case of Rani

Vs. Santa Bala Debnath2 It would be useful for this court

to cull-out the observations made by the Hon'ble Apex

Court at para 8, which reads as under:

"Legal necessity does not mean actual compulsion; it means pressure upon the estate which in law may be regarded as serious and sufficient. The onus of proving legal necessity may be discharged by the alienee by proof of actual necessity or by proof that he made proper and bona fide enquiries about the existence of the necessity and that he did all that was reasonable to satisfy himself as to the existence of the necessity. Recitals in a deed of legal necessity do not by themselves prove legal necessity. The recitals are, however, admissible in evidence, their value varying according to the circumstances in which the transaction was entered into. The recitals may be used to corroborate other evidence of the existence of legal necessity. The weight to be attached to the recitals varies according to the circumstances. Where the evidence which could be brought before the Court and is within the special knowledge of the person who

(1970) 3 SCC 722

seeks to set aside the sale is withheld, such evidence being normally not available to the alienee, the recitals go to his aid with greater force and the Court may be justified in appropriate cases in raising an interference against the party seeking to set aside the sale on the ground of absence of legal necessity wholly or partially, when he withholds evidence in his possession".

14. On reading of the above said observation made

by the Hon'ble Apex Court, the contention of the counsel

for the appellants/plaintiffs that recitals in the sale deed in

regard to legal necessity do not by themselves prove that

legal necessity cannot be acceded to. In the very

judgment, the Hon'ble Apex Court was of the view that the

recital in the sale deed in regard to legal necessity are

admissible. The question of legal necessity and its degree

of proof has to be independently assessed having regard to

the facts and circumstances of the case. In the present

case, plaintiff Nos.2 and 4 though not executants and

signatories to the sale deed, even they have joined with

other non-alienation members who were minors and have

* Deleted vide court order dated 24.02.2022 Sd/-

(SSMJ)

filed the present suit. This is a feeble attempt made by the

appellants/plaintiffs to re-claim the property which was in

fact sold by their father for valuable sale consideration.

This court has also taken judicial note of the fact that

subsequent developments that have occurred. It has come

on record that suit property was the subject matter of an

acquisition at the hands of HDUDA. The land was in fact

acquired in the year 2000. It has also come on record that

defendant Nos.1 to 6 have dealt with the property having

acquired valid right and title and they have subsequently

sold 1 acre 2 guntas in favour of respondent Nos.7 to 9. If

these relevant facts are taken into consideration, then this

court is of the view that the property has changed hands

and rights have stood crystallized. The Hon'ble Apex Court

in the case of Chhedi Lal Yadav and Others vs Hari

Kishore Yadav (dead) Through Legal Representatives

and Others3 has held that, if the parties relying on a

public document, further enter into a transaction and the

(2018) 12 SCC 527

properties changed hands, and if rights stood crystallized,

the parties cannot be permitted to question the

transactions at a later stage. Therefore, in the present case

on hand, respondent No.1 to 6 have not only acquired valid

right and title way back in 1989, the said property was the

subject matter of an acquisition proceedings and portion of

the land was also acquired. However, the said acquisition

proceedings were not challenged by the

appellants/plaintiffs.

15. One more relevant fact which has lost sight by

both the courts below is that, present suit is one for

declaration and consequential relief of injunction. Both the

courts below have concurrently held that

respondents/defendants are in lawful possession pursuant

to execution of registered sale deed. Therefore, the courts

below were also required to examine as to how the present

suit is maintainable without seeking the relief of

possession. The first appellate court has also not examined

one more relevant fact in regard to maintainability of the

regular appeal.

16. On perusal of the appeal memo, this court

would find that, only one appeal is filed questioning the

judgment and decree of the courts below. The trial court

allowed the counter claim and has granted injunction

restraining the appellants/plaintiffs from interfering with

the suit property. Therefore, the decree for permanent

injunction restraining the appellants/plaintiffs by way of

counter claim is not questioned. If the decree passed in the

counter claim is not challenged, this court is of the view

that, even otherwise the suit for declaration and

consequential relief of injunction filed by the

appellants/plaintiffs is also not maintainable. Both the

courts below have held that sale made by Parappa in

favour of defendant Nos.1 to 6 was for legal necessity.

There is concurrent finding by the courts below on legal

necessity. Therefore, I do not find any illegality or

perversity in the judgments under challenge.

        17.   The   appeal   is    devoid   of   any   merits   is

accordingly, dismissed.



                                              Sd/-
                                             JUDGE
MBS/-