Smt Basamma vs Smt Kotrabasamma
2022 Latest Caselaw 349 Kant

                             1



 IN THE HIGH COURT OF KARNATAKA BENGALURU


       DATED THIS THE 10TH DAY OF JANUARY, 2022

                        BEFORE

         THE HON'BLE MR.JUSTICE M.G.S.KAMAL

              RSA No.176 OF 2009 (PAR)
BETWEEN:

SMT. BASAMMA
W/O BASAPPA
AGED ABOUT 42 YEARS
AGRICULTURIST
R/AT DOOR NO.1041
SBS NAGAR II STAGE
D BLOCK, DAVANAGERE
PIN CODE - 577 502.
                                         ... APPELLANT
(BY SRI. YOGESH FOR
    SRI. P.M. VIRUPAKSHAIAH, ADVOCATE)
AND:

1.     SMT. KOTRABASAMMA
       W/O VIRUPAKSHAPPA
       AGED ABOUT 57 YEARS

2.     SRI. KOTRESHAPPA
       S/O SIDDALINGAPPA
       AGED ABOUT 47 YEARS

       RESPONDENTS 1 AND 2 ARE
       R/AT KEREGUDIHALLI VILLAGE
       HARAPANAHALLI TALUK
       DAVANAGERE DISTRICT
       PIN CODE - 577 502.
                              2




3.    SRI. B. NAGARAJA SETTY
      S/O SOMAPPA SETTY
      AGED ABOUT 38 YEARS
      MERCHANT
      R/AT ARASIKERE VILLAGE
      HARAPANAHALLI TALUK
      DAVANAGERE DISTRICT
      PIN CODE - 577 502.
                                           ...RESPONDENTS
(R1 SERVED, R2 SERVED
 BY SRI. CHANDRAPPA T, ADVOCATE FOR R3 (NOC)ABSENT)

      THE REGULAR SECOND APPEAL IS        FILED UNDER
SECTION 100 OF CPC AGAINST THE JUDGEMENT AND DECREE
DATED 29.11.2008 PASSED IN R.A. NO. 55/2006 ON THE FILE
OF THE ADDITIONAL SESSIONS JUDGE, PRESIDING OFFICER,
FTC-II, DAVANGERE, ALLOWING THE APPEAL AND SETTING
ASIDE THE JUDGEMENT AND DECREE DATED:29.09.2006
PASSED IN OS.NO.24/2006 ON THE FILE OF THE CIVIL JUDGE
(SR.DN), HARIHAR.

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


                        JUDGMENT

Present appeal is filed by the appellant/plaintiff

aggrieved by the Judgment and Decree dated 29.11.2008

passed in R.A.No.55/2006 on the file of Addl. Sessions

Judge, Fast Track Court-II, Davanagere (hereafter

referred to as 'the First Appellate Court'), in and by

which, the First Appellate Court while allowing the appeal,

set aside the Judgment and Decree dated 29.09.2006

passed in O.S.No.24/2006 on the file of Civil Judge

(Sr.Dn.), Harihar (hereinafter referred to as 'Trial Court'),

which had decreed the suit of the plaintiff for partition.

2. Brief facts of the case of the plaintiff are that

one late Smt.Basamma, wife of Sri.Nanjundappa was the

owner of agricultural land bearing Survey No.205/A/1

measuring 6 acres 91 cents situated at Hosakote village.

She    had     four     daughters,    viz.,    Smt.Gangamma,

Smt.Mallamma,                  Smt.Deveeramma                  and

Smt.Kotrabasamma. That both the said Smt.Basamma

and her husband died about 40 years back. After demise

of Smt.Basamma and her husband, their four daughters

succeeded to the aforesaid land. That the second

daughter Smt.Mallamma and her husband died issueless.

The first daughter Smt.Gangamma married to one

Malleshappa. As she was well placed, she had

relinquished her share in the property in favour of the

third and fourth daughter, namely, Smt.Deveeramma and

Smt. Kotrabasamma. Accordingly, the mutation in

respect of the aforesaid property was effected in the

names of Smt.Deveeramma and Smt.Kotrabasamma with

the consent of said Smt.Gangamma. That the plaintiff

and Defendant Nos.1 and 2 are the children of

Smt.Deveeramma. Smt.Kotrabasamma had a daugher

by name Smt.Halamma. That there was a partition

between Smt.Deveeramma and Smt.Kotrabasamma

dividing the aforesaid property equally each being entitled

to 3 acres 45 cents. Thus, the aforesaid property being

the absolute property of Smt.Basamma was succeeded to

her by her daughters Smt. Deveeramma and

Smt.Kotrabasamma. That plaitniff and the defendants 1

and 2 being the heirs of Smt.Deveeramma are entitled for

1/3rd share each in the said property. That the plaintiff

had requested the Defendant No.2, her brother for

partition and separate possession of the suit schedule

property which was evaded on one pretext or the other.

That during the first week of February 2006, plaintiff

learnt that Defendant No.2 had sold the suit schedule

property to Defendant No.3 and that the said deed of sale

was not binding on them. Hence, sought for partition and

separate possession of her 1/3rd share in the suit

schedule property.

3. Upon service of summons, Defendants 1 and 2

appeared and filed written statement admitting the plaint

averments and paid Court Fee for their respective shares

in the property. Defendant No.3, the purchaser of the

property from Defendant No.2 filed written statement

denying the plaint averments and also contended that the

suit was barred by limitation. It was contended that the

Defendant No.2 was the absolute owner of the suit

schedule property to the extent of 3 acres 45 cents and in

exercise of his ownership, had sold the same for a

valuable sale consideration in favour of Defendant No.3

by executing a registered sale agreement. That since the

Defendant No.2 had failed to perform his part of the

contract, Defendant No.3 was constrained to file a suit in

O.S.No.510/2002 on the file of the Civil Judge (Sr.Dn.),

Harihar, seeking relief of specific performance. That after

the contest, the said suit came to be decreed on

06.10.2004. Aggrieved by the said Judgment and

Decree, the Defendant No.2 herein (who was the

defendant in the said suit) had preferred a regular appeal

in R.A.No.248/2004 before the District Judge,

Davanagere, which was allowed directing Defendant No.3

herein (who was plaintiff therein) to pay a sum of

Rs.5,000/- to Defendant No.2 herein and obtains deed of

sale in respect of the suit property. It is further

contended by the Defendant No.3 that the present suit

for partition has been filed by the plaintiff in collusion

with Defendant Nos.1 and 2. That he is the bonafide

purchaser of 3 acres 45 cents of land for valuable

consideration. Defendant No.2 had sold the suit schedule

property for discharge of his family debts. As such, the

sale was binding on the plaintiff and Defendant No.1.

Hence, sought for dismissal of the suit.

4. The Trial Court based on the pleadings, framed

following issues:

i) Whether the 3rd defendant proves that the suit property is absolute property of 2nd defendant and as such he was competent to sell it?

ii) Whether the 3rd defendant proves that he is a bonafide purchaser of the suit property for value?

iii) What is the effect of judgment & decree passed in O.S. No.510/02 on the file of this court

iv) Whether the judgment & decree passed in O.S No.510/02 bind the plaintiff and the 1st defendant?

v) What order or Decree?

5. The Trial Court recorded the evidence of the

plaintiff, examined herself as P.W.1 and exhibited six

documents at Ex.P1 to Ex.P6. Defendants 1 and 2

examined themselves as D.Ws.1 and 2, Defendant No.3

as D.W.3. On appreciation of evidence, the Trial Court

decreed the suit holding that the plaintiff is entitled for

1/3rd share in the suit property by metes and bounds.

Similarly, Defendant No.1 and Defendant No.2 are also

held to be entitled for 1/3rd share each and directed to

draw the preliminary decree thereof.

6. Aggrieved by the said Judgment and Decree

dated 29.09.2006, Defendant No.3 (purchaser of the

property from Defendant No.2) filed regular appeal in

R.A.No.55/2006. Considering the grounds urged by the

Defendant No.3 in the aforesaid Regular Appeal, the First

Appellate Court framed following points for its

consideration:

i) Whether the 3rd defendant is bonafide purchaser for valuable consideration of the suit schedule property under registered agreement of sale dated:23.11.1999 and that his interest is required to be protected?

ii) Whether the plaintiff had made out a case for partition and allotment of 1/3rd share in the suit schedule property as alleged in the plaint?

iii) Whether the judgment and decree dated:29.09.2006 granting the decree of partition in favour of the plaintiff is legally sustainable in law?

iv) Whether the appellant had made out a case for production of additional evidence U/o. 41 R.27 CPC as prayed in I.A.No.I?

v) What Order?

7. On re-appreciation of the material evidence, the

First Appellate Court allowed the appeal, setting aside the

Judgment and Decree dated 29.09.2006 passed by the

Trial Court in O.S.No.24/2006 and dismissed the suit.

Aggrieved by the same, the appellant/plaintiff is before

this Court by way of this regular second appeal. This

Court, while admitting the above appeal, by order dated

05.03.2010, had framed the following substantial

question of law:

"Whether re-appreciation of evidence by the Appellate Court is perverse which resulted in miscarriage of justice?"

8. Learned counsel for the appellant reiterating the

grounds urged in the memorandum of appeal submitted

that the suit schedule property is the absolute property of

Smt.Basamma who had left behind four daughters, of

which, one daughter Smt.Mallamma passed away

issueless, eldest daughter being Smt.Gangamma had

relinquished her share in the said property in favour of

Smt.Deveeramma and Smt.Kotrabasamma.

Smt.Deeveramma and Smt.Kotrabasamma being

daughters of Smt.Basamma and Sri.Nanjundappa, were

entitled to the extent of 3 acres 45 cents each. That

upon the demise of Smt.Deeveramma, Plaintiffs-

Defendants 1 and 2 being her only legal heirs became

entitled for 1/3rd share each in the suit schedule

property. Thus, he submits suit schedule property being

streedhana, plaintiff and defendants 1 and 2 are entitled

for 1/3rd equal share therein which fact has not been

taken into consideration by the First Appellate Court. He

submits that the finding given by the First Appellate

Court that the plaintiff and Defendant No.1 by staying

away separately after their marriage had abandoned their

share, and therefore, are not entitled to maintain the suit

is unjustifiable and illegal. He submits that the further

reasoning given by the First Appellate Court that the

Defendant No.3 is a bonafide purchaser of the property is

against the facts and circumstances of the case as the

First Appellate Court has not adverted to cardinal

principal of law with regard to the streedhana inherited

by the plaintiff and Defendants 1 and 2, which is a

statutory right, and the Defendant no.2 by means of an

illegal conveyance, cannot deprive the plaintiff of her

share in the suit schedule property. He submits that the

Trial Court had appreciated the factual and legal aspects

of the matter, thus the Judgment and Order passed by

the First Appellate Court cannot be sustained and the

question of law framed by this Court needs to be

answered in favour of the appellant/plaintiff

consequently, allowing the appeal.

9. This matter was posted on 07.01.2022, on which

date, this Court heard the counsel for the

appellant/plaintiff. As the counsel for the respondent was

absent, in the interest of justice to provide an

opportunity, the matter was again listed today, i.e., on

10.01.2022. Even today, learned counsel for the

respondent has remained absent. Learned counsel for

the appellant addressed further arguments. Heard the

counsel for the appellant/plaintiff.

10. The fact that suit schedule property being the

absolute property of Smt.Basamma and Ex.P5, the

mutation entry reflecting the name of original owner

Smt.Basamma has not been disputed. As contended by

the Defendants 1 and 2 in their written statement, suit

schedule property originally belonged to Smt.Basamma.

Smt.Basamma passed away leaving behind four

daughters. First daughter, viz.., Smt.Gangamma had

relinquished her share in favour of third and fourth

daughter of Smt.Basamma, viz., Smt.Deveeramma and

Smt.Kotrabasamma. Second daughter Smt.Mallamma

died issueless. This aspect of the matter has remained

unchallenged making it clear that the schedule property

was the property belonging to Smt.Basamma and

succeeded by Smt.Deeveramma and Smt.Kotrabasamma

in equal proportion. As rightly concluded by the Trial

Court, upon the demise of Smt.Deveeramma, the plaintiff

and defendants being her legal heirs are entitled for

1/3rd share each in the schedule property. Therefore,

whether the Defendant No.2-Sri.Kotreshappa being son

of Smt.Deveeramma, could have conveyed entire

property in favour of Defendant No.3 is a question which

had to be answered taking into consideration the legal

position of the entitlement of the parties. It is necessary

to note at this juncture that the Defendant No.3 who is

the purchaser of the property alone has contested the

suit. It is his case that the schedule property is the

absolute property of the Defendant No.2 and Defendant

No.2 in rightful exercise of his ownership had entered

into an agreement of sale and since he refused to

perform his part of the contract, Defendant No.3 was

constrained to file suit in O.S.No.510/2002 which was

decreed directing the Defendant No.2 to execute the sale

deed and which decree was confirmed in

R.A.No.248/2004 filed by Defendant No.2. Based on

these three incidents, he submits that he is a bonafide

purchaser and the sale deed is binding on the plaintiff

and Defendant No.1 as well.

11. When the property admittedly is streedhana in

which plaintiffs/defendants 1 and 2 being legal heirs of

Smt.Deveeramma, had their specific undivided 1/3rd

share each therein, the defendant No.2 alone could not

have alienated the entire property in favour of Defendant

No.3. The sale could only be valid to the extent of share

of the Defendant No.2.

12. It is relevant at this juncture to refer to the

provisions of Section 44 of Transfer of Property Act,

which is extracted hereinunder:

"44. Transfer by one co-owner.- Where one of two or more co-owners of immovable property legally competent in that behalf transfers his share of such property or any interest therein, the transferee acquires as to such share or interest, and so far as is necessary to give, effect to the transfer, the transferor's right to joint possession or other common or part enjoyment of the property, and to enforce a partition of the same, but subject to the conditions and liabilities affecting at the date of the transfer, the share or interest so transferred.

Where the transferee of a share of dwelling-house belonging to an undivided family is not a member of the family, nothing in this section shall be deemed to entitle him to joint possession or other common or part enjoyment of the house".

13. Further the Apex court in its judgment rendered

in M.V.S Manikayala Rao vs. M. Narasimhaswami

and others reported in AIR 1966 SC 470 at para-18

has held as under:

"18. Before dealing with the question as to which Article of the Limitation Act applies to the present case it is necessary to examine the legal position of persons like Sivayya who purchase shares of some of the coparceners of the Hindu Joint Family. It is well settled that the purchaser does not acquire any interest in the property sold and he cannot claim to be put in possession of any definite piece of family property. The purchaser acquires only an equity to stand in the alienor's shoes and work out his rights by means of a partition. The equity depends upon the alienation being one for value and not upon any contractual nexus. The purchaser does not become a tenant in common with the other members of the joint family. He is not entitled to joint possession with them. The alienee's suit for partition must be one for partition of the entire property and not for the partition of any specific item of, or interest in, the family property. Such a suit, however, will not be

technically on a par with a suit for partition filed by a coparcener. Such a suit would not have the necessary effect of breaking up the joint ownership of the members of the family in the remaining property nor the corporate character of the family.

14. Thus, in terms of the aforesaid provision of law

and Judgment referred to above, when it is established

that the plaintiffs/Defendants 1 and 2 are the co-owners

of the property, Defendant No.2 could not have alienated

the entire property without plaintiff and the Defendant

No.1 being parties to the same the Defendant No.3 ought

to have ascertained the right of the Defendant No.2 to

convey the entire property. As rightly observed by the

trial court, there seems to be no material evidence placed

on record by the Defendant No.3 with regard to he

having exercised due care in ascertaining the title of

Defendant No.2 before buying the property. This being

the factual aspect of the mater, Defendant No.3 cannot

claim to be a bonafide purchaser of the property.

15. Though the Defendant No.3 filed a suit in

O.S.No.10/2002 for specific performance which was

decreed and later on confirmed in R.A.No.242/2004,

same cannot be held to be binding on plaintiff and

Defendant No.1 who are not parties to the said suit.

16. As noted above, in terms of Section 44 of the

Transfer of Property Act, all that the Defendant No.3 is

entitled to in the property is to the extent of the share of

the Defendant No.2. Sale deed therefore, cannot be held

to be binding on plaintiff and the Defendant No.1. Thus,

Defendant No.3 has to work out his remedy in a separate

proceedings, particularly in view of the determination of

share made by the trial court to the extent of 1/3rd to

the plaintiff, 1/3rd to the Defendant No.1 and 1/3rd to

the Defendant No.2.

17. In view of the aforesaid analysis, the factual

and the legal position, the substantial question of law is

answered in favour of the appellant holding that the

re-appreciation of the evidence by the First Appellate

Court is perverse resulting in miscarriage of justice.

18. As noted above, the determination of shares by

the trial court holding plaintiff, Defendant No.1 and

Defendant No.2 being entitled for 1/3rd share in the

property is sustained. The agreement of sale dated

23.11.1999 executed by the Defendant No.2 and

Defendant No.3 and the decree of specific performance

passed in O.S.No.10/2002 and confirmed in

R.A.No.242/2004, would be binding only to the extent of

the share of the Defendant No.2 and the same shall not

be binding on the plaintiff and the Defendant No.2.

19. With the above observation, following:

ORDER

i) Appeal filed by the appellant/plaintiff is

allowed;

ii) Judgment and Order dated

29.11.2008 passed in R.A.No.55/2006 on the

file of Addl. Sessions Judge, Fast Track Court-

II, Davanagere, is set aside.

iii) Judgment and Decree dated

29.09.2006 passed in O.S.No.24/2006 on the

file of Civil Judge (Sr.Dn.) at Harihara is

confirmed.

In the circumstances, no order as to costs.

Sd/-

JUDGE

bnv*