Parameshwarappa S/O ... vs Kumari Nandini D/O ...
2022 Latest Caselaw 10001 Kant

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                                   RFA No. 100215 of 2015


     IN THE HIGH COURT OF KARNATAKA, DHARWAD BENCH

           DATED THIS THE 30TH DAY OF JUNE, 2022

                         PRESENT
          THE HON'BLE MRS JUSTICE K.S.MUDAGAL
                           AND
           THE HON'BLE MR JUSTICE M.G.S. KAMAL
 REGULAR FIRST APPEAL NO. 100215 OF 2015 (PAR/POS-)
BETWEEN:

1.    PARAMESHWARAPPA S/O BASAVANNEPPA
      DANAPPANAVAR,
      AGE:50 YEARS, OCC:AGRL
      R/O:PYATI ONI,
      NEAR BASAVANNA TEMPLE, MISHRIKOTI
      TQ:KALAGHATAGI,
      DIST:DHARWAD.

2.    SHIVANAND S/O BASAVANNEPPA DANAPANAVAR
      AGE:47 YEARS
      OCC:AGRICUTURE,
      R/O:PYATI ONI
      NEAR BASAVANNA TEMPLE, MISHRIKOTI
      TQ:KALAGHATAGI
      DIST:DHARWAD

3.    MAMATA W/O MANJUNATH VAHVAL
      AGE:33 YEARS
      OCC:HOUSEHOLD WORK
      R/O:PYATI ONI,
      NEAR BASAVANNA TEMPLE, MISHRIKOTI
      TQ:KALAGHATAGI,
      DIST:DHARWAD.



                                            ... APPELLANTS
(BY SRI. J.S. SHETTY, ADVOCATE)
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                                  RFA No. 100215 of 2015


AND:
1.   KUMARI NANDINI D/O PARAMESHWARAPPA
     DANAPPANAVAR
     AGE 21 YEARS, OCC STUDENT
     R/O MISHRIKOTI
     TQ KALAGAHATAGI
     DIST DHARWAD
     NOW R/O KONNUR,
     TQ NARAGUND
     DIST GADAG

2.   KUMARI ASHWINI D/O PARAMESHWARAPPA
     DANAPPANAVAR
     AGE:19 YEARS, OCC:STUDENT
     R/O:MISHRIKOTI
     TQ:KALAGAHATAGI
     DIST:DHARWAD
     NOW R/O:KONNUR,
     TQ:NARAGUND
     DIST:GADAG


3.   KUMARI TANUSHREEI D/O PARAMESHWARAPPA
     DANAPPANAVAR
     AGE:8 YEARS, OCC:NIL
     R/O:MISHRIKOTI
     TQ:KALAGAHATAGI
     DIST:DHARWAD
     NOW R/O:KONNUR,
     TQ:NARAGUND
     DIST:GADAG

4.   SHRI JAYASHREE NANDINI W/O BASAVANNEPPA
     DANAPPANAV
     AGE:41 YEARS
     OCC:HOUSEHOLD WORK
     R/O:MISHRIKOTI
     TQ:KALAGAHATAGI
     DIST:DHARWAD, NOW R/O:KONNUR,
     TQ:NARAGUND, DIST:GADAG


     SINCE THE APPELLANT NO.3 IS THE MINOR, REP BY
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                                 RFA No. 100215 of 2015


     HER NATURAL MOTHER, GUARDIAN THE
     RESPONDENT NO.4. THE RESPONDENT NO.1 AND 2
     ARE ATTAINED MAJORITY BEFORE THE TRIAL
     COURT, NECESSARY APPLICATION FILED BY THE
     RESPONDENTS BEFORE TRIAL COURT, IN
     DISCHARGING MINOR GUARDIANSHIP

5.   SMT.PADMAVATHI W/O BASAPPA GANIGER
     AGE:60 YEARS, OCC:HOUSEHOLD WORK
     R/O:SHIROL, TQ:KALAGHATAGI
     DIST:DHARWAD

6.   SMT.JAYAKKA W/O SIDDARAMAPPA KAMTAR
     AGE:57 YEARS, OCC:HOUSEHOLD WORK
     R/O:MISHRIKOTI, TQ:KALAGHATAGI
     DIST:DHARWAD

7.   SMT.MEENAKSHI W/O CHANNAPPA MUDENNUR
     AGE:53 YEARS, OCC:HOUSEHOLD WORK
     R/O:VIDYAGIRI, TQ:DHARWAD
     DIST:DHARWAD

8.   SMT.SAROJA W/O RAJU BIKKANNAVAR
     AGE:51 YEARS, OCC:HOUSEHOLD WORK
     R/O:KITTUR, TQ:RAMADURGA
     DIST:BELAGAVI

                                        ...RESPONDENTS
(BY SRI. S.B.DODDAGOUDRA ADV. FOR
SMT. SUMANGALA A.CHAKALABBI ADV. FOR R2 & R4,
R3 IS MINOR R/BY R4
SRI. NARAYAN V.YAJI, ADV. FOR R6 TO R8
R1 NOTICE SERVED, NOTICE TO R5 HELD SUFFICIENT V/O/D/
11.10.2019)

     RFA FILED UNDER ORDER 41 RULE 1 R/W SEC. 96 OF
CPC., AGAINST THE JUDGMENT AND DECREE DTD.03.07.2015
PASSED IN O.S.NO.85/2010 ON THE FILE OF THE III
ADDITIONAL SENIOR CIVIL JUDGE, HUBBALLI, (ITINARY
COURT AT KALGHATAGI), DECREEING THE SUIT FILED FOR
PARTITION AND SEPARATE POSSESSION.
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                                        RFA No. 100215 of 2015


      THIS APPEAL COMING ON FOR FURTHER HEARING AND
THE SAME HAVING BEEN HEARD AND RESERVED FOR
PRONOUNCEMENT OF JUDGMENT, THIS DAY, K.S.MUDAGAL
J., DELIVERED THE FOLLOWING.
                           JUDGMENT

Aggrieved by the judgment and decree passed against

them, defendant Nos.1 to 3 in OS No.85/2010 on the file of

Civil Judge (Senior Division) Kalghatagi, have preferred this

appeal.

2. Respondent Nos.1 to 4 were the plaintiffs.

Appellants were defendant Nos.1 to 3 and respondent Nos.5 to

7 were Defendant Nos.4 to 7 in the said suit. For the purpose

of convenience, the parties will be referred to henceforth

according to their ranks before the trial Court.

3. Plaintiff Nos.1 to 3 are the daughters and plaintiff

No.4 is the wife of defendant No.1. Defendant No.2 is the

younger brother and defendant Nos.4 to 7 are the sisters of

defendant No.1. Defendant No.3 is the purchaser of 3 acre 8

guntas out of suit schedule A(1) namely, land bearing Survey

No.38 of Kamadhenu village. Suit schedule 'A' properties were

land bearing Sy.No.38, 53/1A, 53/1B, 53/1C of Kamadhenu

RFA No. 100215 of 2015

village and Schedule B was house property bearing VPC

No.529/3 of Mishrikoti village.

4. Plaintiffs filed OS No.85/2010 initially against

Defendant Nos.1 to 3 seeking partition and separate possession

of their 1/4th share each in the suit schedule properties and for

declaration that the sale deed dated 07.04.2005 executed by

defendant No.1 in favour of defendant No.3 does not bind their

share etc. Later, defendant Nos.4 to 7, the sisters were

impleaded in the suit.

5. The case of the plaintiffs is as follows:-

Defendant Nos.1, 2 and one Ravindra are the sons of one

Basavanneppa and Mugadavva. Ravindra was given in

adoption and therefore, he was separated from the family.

The suit schedule properties were the ancestral properties of

defendant Nos.1 and 2 and the plaintiffs. On the death of

Basavanneppa and Mugadavva, the plaintiffs and defendant

Nos.1 and 2 have inherited the same and they are in joint

possession and enjoyment of the same. Due to some

differences between plaintiff No.4 and defendant No.1, he

deserted the plaintiffs. Therefore, they have taken shelter in

RFA No. 100215 of 2015

the parental house of plaintiff No.4 and pursuing the

proceedings under Section 125 Cr.P.C. To defeat the rights of

the plaintiffs, defendant Nos.1 and 2 have concocted a

documents of partition and are trying to alienate the suit

schedule properties. Defendant No.1 has already sold 3 acres 8

guntas in plaint Schedule A item No.1 property to defendant

No.3. The said sale does not bind the plaintiffs. Despite the

plaintiffs' demand defendant 1 and 2 are not effecting the

partition in the suit schedule properties and giving their shares

to the plaintiffs. Hence, the suit.

6. Defendant No.1 filed his written statement and

defendant No.2 adopted the same. Their defence is as

follows:-

The allegation in the plaint, the description of the

properties and joint possession of the plaintiffs were denied.

The allegation that defendant No.1 has deserted the plaintiffs

was disputed. Till the filing of the suit, the plaintiffs were

residing with defendant No.1. After the death of

Basavanneppa, there was an oral partition between defendant

Nos.1 and 2. In that partition, in all the properties half share

RFA No. 100215 of 2015

was allotted to defendant Nos.1 and 2 each. Based on such

partition, the revenue entries to the properties were effected on

21.03.2005 under ME No.39/04-05. Defendant No.1 was

suffering from cancer. To meet his medical expenses and family

necessities, he sold 3 acres 8 guntas out of his share of 3 acres

16 guntas in Sy.No.38/2 to defendant No.3. Plaintiff No.4 is a

signatory to the said sale deed as a consenting party.

Therefore, the said sale binds the plaintiffs. The suit as framed

is not maintainable. Valuation of the suit and Court fee paid

are improper. Hence, the suit shall be dismissed.

7. Defendant No.3 filed her independent written

statement. In the said written statement she reiterated the

defence of defendant No.1. She further claimed that plaintiff

No.4 on behalf of plaintiff Nos.1 to 3 the minor children joined

in execution of the sale deed dated 07.04.2005 for

consideration of Rs.1,60,000/-. She contended that she is a

bonafide purchaser for valuable consideration and since the

date of purchase she is in exclusive possession of the property

purchased by her. She contended that if at all the Court finds

that the suit has to be decreed the property purchased by her

RFA No. 100215 of 2015

shall be allotted to the share of defendant No.1 and equitable

partition be effected.

8. Defendant Nos.4 to 7 were impleaded in the suit

on their application. They filed written statement with the

counter claim. Though they denied the claim of the plaintiffs,

they contended that there was no partition in the family. They

further contended that being the daughters of Basavanneppa

along with defendant Nos.1 and 2, they were entitled to equal

share in the properties. They claimed that defendant Nos.1

and 2 behind their back got the revenue entries effected to

project a partition. They further claim that defendant No.1 has

sold the properties to defendant No.3 for his medical expenses

for performing the marriage of plaintiff No.1 and education of

plaintiff Nos.2 and 3. They sought decree for partition and

separate possession of their 1/6th share each in the suit

schedule properties.

9. On the basis of such pleadings, the trial Court

framed the following issues and additional issues:-

RFA No. 100215 of 2015

ISSUES

1. Whether the genealogy described is fine and correct?

2. Whether the descriptions of the suit properties are fine and correct?

3. Whether the plaintiffs prove that the suit properties are in possession of plaintiffs and defendants No.1 and 2?

4. Whether the plaintiffs prove to be entitled for 1/4th share in the suit schedule properties?

5. Whether the sale deed dated 07.04.2002 is not binding on the share of plaintiffs?

6. Whether plaintiffs are entitled to the relief of declaration to that effect?

7. Whether defendant No.1 proves the partition as contended in W.S.?

8. Whether defendant No.3 proves to be bonafide purchaser?

9. Whether the valuation of the suit property for purpose of jurisdiction and Court fee is proper and correct?

10.What order or decree?

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RFA No. 100215 of 2015

Additional issues:

1. Whether defendant Nos.4 to 7 prove that property described in schedule 'A' and 'B' of the counter claim are also the joint family properties?

2. Whether defendant Nos.4 to 7 proves that they are having 1/6th share in 'A' and 'B' of counter claim properties?

3. Whether defendants No.4 to 7 are entitled for the reliefs claimed in the counter claim?

10. In support of the case of the plaintiffs, plaintiff

No.4 was examined as PW.1 and plaintiff No.2 was examined

as PW2 and Exs.P.1 to 11 were marked. Defendant No.7 was

examined as DW1, defendant No.1 was examined as DW2 and

defendant No.3 was examined as DW3. No documents were

marked on their behalf. The trial Court on hearing the parties

by the impugned judgment and decree, decreed the suit

granting 1/24th share to plaintiff Nos.1 to 3 each and allowed

the counter claim of defendant Nos.4 to 7 granting 1/6th share

to each of them on the following grounds:-

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RFA No. 100215 of 2015

i) The partition claimed by defendant Nos.1 and 2 was

not proved.

ii) By virtue of amendment to Section 6 of the Hindu

Succession Act, defendant Nos.4 to 7 were entitled to

equal share with the sons in the suit schedule

properties, therefore, the said partition does not bind

them.

iii) Defendant Nos.1 to 3 have not proved the family

necessity alleged by them.

iv) Defendant No.3 has failed to prove that before

purchasing the property she enquired with defendant

Nos.4 to 7. She has failed to prove that she is a

bonafide purchaser. Therefore, the sale does not bind

plaintiff Nos.1 to 3 and defendant Nos.4 to 7.

Submissions of Sri. J.S.Shetty, learned counsel for the

appellants

When the plaintiffs contended that the suit schedule

properties were the ancestral properties, the burden was on

them to prove the same. But they did not adduce any

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RFA No. 100215 of 2015

evidence to show that the said properties devolved on

Basavanneppa from his ancestors to assume the nature of

coparcenery property. Therefore, in the hands of defendant

Nos.1 and 2, the said properties become the self acquired

properties. In such event, having regard to Section 8 of the

Hindu Succession Act, the plaintiffs cannot maintain suit for

partition during the life time of defendant No.1. Even

assuming that they were the ancestral properties, defendant

No.1 as the manager of the family is entitled to alienate the

properties for the family necessities. Ex.P7 the sale deed

itself says that the sale was for family necessity and plaintiff

No.4 acknowledged the same being the signatory to the said

document. Therefore, the challenge to the sale in favour of

defendant No.3 was not maintainable. The suit was filed

after five years of the sale. Since the plaintiffs were also

parties to the sale deed, they should have filed suit seeking

declaration of nullity of the sale deed within three years from

the date of sale. Therefore, the suit was not maintainable

and barred by time. The trial Court failed to appreciate the

evidence and position of law in proper perceptive.

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RFA No. 100215 of 2015

11. In support of his submission, he relies on the

following judgments:-

         i)         Uttam Vs. Saubhag Sings and others1

         ii)        Sunil Kumar and Another vs. Ram Prakash and
                    Others2



Submission            of   Sri.   S.B.Doddagoudra          for    respondent

Nos.2 to 4, Sri Narayan V.Yaji for respondent Nos.6 to 8.

Defendant Nos.1 to 3, and 4 to 7 in their written

statements did not deny that the properties were the ancestral

properties. Therefore, the question of the plaintiffs producing

the documents to show that they were the ancestral properties

of defendant Nos.1 and 2 does not arise. The burden of

proving the legal necessities was on defendant Nos. 1 to 3, but,

they did not produce any document to show that defendant

No.1 was suffering from cancer. The signature of plaintiff No.4

in the sale deed Ex.P7 was taken by fraud. Since the minors

interest in the property was sold without the permission of the

Court the said sale was bad in law. The trial Court appreciating

(2016) 4 SCC 68

(1988) 2 SCC 77

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RFA No. 100215 of 2015

all such facts has rightly decreed the suit. Therefore, the same

does not call for any interference of the Court.

Analysis

12. In an appeal preferred under Order 41 Rule 1,

Order 41 Rule 31 requires First Appellate Court to reappreciate

the pleadings and evidence of parties formulate the points for

determination, analyse the evidence and applicable law and

decide whether the impugned judgment and decree is

sustainable.

13. Having regard to the rival submissions and the

material on record the points that arise for determination of

this Court are:

i) Whether the suit schedule properties were the

ancestral joint family properties of the plaintiffs and

defendant Nos.1 and 4 to 7?

ii) Whether Ex.P7 the sale deed dated 07.04.2005

executed by defendant No.1 in favour of defendant

No.3 bind the plaintiffs and defendant Nos.4 to 7?

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RFA No. 100215 of 2015

iii) Whether the impugned judgment and decree is

sustainable in law?

Reg: Point No.1

14. In para 4 of the plaint, the plaintiffs contended

that the suit schedule properties are the ancestral properties

and plaintiffs and defendant Nos.1 and 2 inherited the same

through their ancestors. As per Order VIII Rule 3 of CPC, it

shall not be sufficient for the defendant in his written statement

to deny generally the grounds alleged by the plaintiff, but he

must deal specifically with each allegation of fact which he does

not admit the truth.

15. In the written statement of defendant Nos.1 to 3

except the general denial of the contents of para 3 of the

plaint, there was no specific denial nor there was an assertion

that the said properties were the absolute properties of

Basavanneppa and therefore, in the hands of defendant Nos.1

and 2 they become their self acquired properties. There was no

foundation in the pleading that the plaintiffs cannot seek

partition during the life time of defendant No.1 or the suit was

hit by Section 8 of the Hindu Succession Act.

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RFA No. 100215 of 2015

16. Even defendant Nos.4 to 7 in their written

statement did not specifically controvert the statement that the

suit schedule properties were the ancestral properties. As

against that in para 2 of their counter claim, they contend that

the properties were the ancestral properties of Basavanneppa.

Both the parties claimed that Ravindra another son of

Basavanneppa was given in adoption to one Chennappa,

therefore, he was not entitled to inherit the properties.

17. In the evidence of PWs.1 and 2 there was no

suggestion that the suit schedule properties were the absolute

properties of Basavanneppa despite they claiming that they

were the ancestral properties. DW1/defendant No.7 in her

chief examination claimed that the suit schedule properties

were the ancestral properties. The same was not controverted

by defendant Nos.1 to 3. As against that, in the cross

examination, defendants suggested to her that the extent of

ancestral lands was 18 acres and they were the fertile lands

yielding good income.

18. Further the very contention of defendant Nos.1

to 3 that as a manager of the family defendant No.1 was

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RFA No. 100215 of 2015

entitled to alienate the properties itself indicates that he

admitted the nature of the properties. The other contention

was that after the death of Basavanneppa, there was an oral

partition between defendant Nos.1 and 2. Therefore, neither

there is joint family nor the joint family properties.

19. They claimed that in the said oral partition,

defendant Nos.1 and 2 got equal half share in the suit schedule

properties and the said partition was evidenced by MR

No.39/2004-05 dated 21.03.2005, whereas the plaintiffs and

defendant Nos.4 to 7 claim that such mutation entries were

concocted behind their back to defeat their share in the

properties.

20. Except the bare statement of defendant Nos.1 to

3, there was no proof of partition of the year 2005. Even

otherwise, it is not the case of defendant Nos.1 to 3 that

Basavanneppa died before 1956. Therefore, by virtue of

amendment to Section 6 of the Hindu Succession Act, the

daughters also become coparceners and along with the sons

they are entitled to equal share in the said properties.

Therefore, there could not have been any partition in the suit

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RFA No. 100215 of 2015

schedule properties excluding the sisters and the alleged

partition set up by defendant Nos.1 to 3 is invalid in the eyes of

law.

21. In the light of the aforesaid facts and

circumstances it can be concluded that the suit schedule

properties were the ancestral joint family properties.

Therefore, the judgment in Uttam's case referred to supra is

not applicable.

Reg: Point No.2

22. Admittedly, under Ex.P7 defendant No.1 sold 3

acres 8 guntas out of 6 acres 32 guntas in plaint schedule 'A'

item No.1 property. The plaintiffs claimed that the said sale

does not bind them. Defendant Nos.1 to 3 claim that the said

sale was effected to meet the medical expenses of defendant

No.1 namely for treatment of his cancer ailment and for other

family necessities. That the trial Court rejected that contention

on the ground that defendant Nos.1 to 3 did not adduce any

evidence to prove the ailment of defendant No.1 or the family

necessities.

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RFA No. 100215 of 2015

23. Admittedly, plaintiff No.4 who has filed the suit

as a guardian of plaintiff Nos.1 to 3 the minors, is a signatory

to sale deed Ex.P7. Ex.P7 contains a recital that the property is

being sold for the family necessities and to repay the loans.

For the first time in the evidence, an attempt was made to

claim that her signature was taken on the said document

fraudulently. PW1 in her cross examination dated 16.01.2015

says that she came to know about the fraud in the year 2010

and then she filed the suit. But in the plaint there is no whisper

about any fraud. Order VI Rule 4 mandates that in all cases

where a party relies on any misrepresentation, fraud, undue

influence or breach of trust to plead the particulars of the

same. In the case on hand, let alone the particulars of the

fraud, misrepresentation, undue influence or breach of trust,

there was no such allegation at all with regard to the execution

of Ex.P7. Therefore, such contention of the plaintiffs with

regard to the execution and contents of Ex.P7 deserves no

merit.

24. Further, defendant Nos.4 to 7 in para 6 of their

counter claim specifically pleaded that defendant No.1 sold the

property under Ex.P7 for his medical expenses and the

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RFA No. 100215 of 2015

expenses of marriage of plaintiff No.1 and education of plaintiff

Nos.2 and 3. Such admission in the pleading enure to the

benefit of defendant Nos.1 to 3. Having regard to such

admissions of defendant Nos.4 to 7 in the pleading and plaintiff

No.4 joining in execution of Ex.P7 as a consenting party, the

statement in the said document that the sale was effected for

family necessity has to be accepted.

25. The Hon'ble Supreme Court in the judgment

Sunil Kumar's case referred to supra has held that in a joint

Hindu mitakshara family, the father by reason of his paternal

relationship and his position as a head of the family and

manager is entitled to alienate the joint family property for

family necessity and meeting the antecedent debts so as to

bind the interest of both adult and minor coparceners.

Admittedly, defendant No.1 was the senior male member of the

family and by the year 2005, the daughters of Basavanneppa

were all married and living in their matrimonial families. The

plaintiffs' own document Exs.P1 to P4 the record of rights show

that defendant Nos.1 and 2 had borrowed loan from the banks

creating charge over the lands shown therein. Therefore, it

becomes clear that the sale was for family necessity and to

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RFA No. 100215 of 2015

discharge the debts as stated in Ex.P7. Therefore, that binds

the plaintiffs and defendant Nos.4 to 7.

REG: Point No.3

26. The trial Court decreed the suit for partition in all

the properties with the observation that defendant No.3 can

ask to adjust the share of defendant No.1 in other properties.

That means she has to seek for equitable partition. In view of

the fact that the sale of 3 acres 8 guntas in plaint schedule 'A'

item No.1 property was for family necessity, the trial Court was

not justified in granting such relief.

27. So far as the other properties in view of Section

6 of the Hindu Succession Act, defendant Nos.4 to 7 were

entitled to equal share along with the sons, defendant Nos.1

and 2. The plaintiffs were entitled to a share only in the share

of defendant No.1. Therefore, defendant Nos.1, 2 and 4 to 7

are entitled to 1/6th share each. Out of the share of defendant

No.1 plaintiff Nos.1 to 3 get equal share with him which comes

to 1/24th share each. Therefore following:

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RFA No. 100215 of 2015

ORDER

The appeal is partly allowed. The impugned judgment

and decree is modified as follows:-

The suit of the plaintiffs and counter claim of defendant

Nos.4 to 7 are partly decreed.

The prayer of the plaintiffs for declaration that the sale

deed 07.04.2005 between defendant Nos.1 and 3 does not bind

their share and the prayer of the defendant Nos.4 to 7 in the

counter claim to allot 1/6th share in the property sold under the

sale deed dated 07.04.2005 are hereby dismissed.

The suit of plaintiff Nos.1 to 3 is decreed awarding 1/24th

share each in the plaint schedule 'A' and 'B' properties except

the property sold to defendant No.3 under the sale deed dated

07.04.2005.

The counter claim of defendant Nos.4 to 7 is decreed

awarding 1/6th share each in plaint schedule 'A' and 'B'

properties except the property sold to defendant No.3 under

the sale deed dated 07.04.2005.

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RFA No. 100215 of 2015

Having regard to relationship between the parties, no

order as to costs.

Draw preliminary decree accordingly.

Sd/-

JUDGE

Sd/-

JUDGE

VMB