Smt Sunandamma vs Sri M M Kumarswamy
2022 Latest Caselaw 4175 Kant

                             1


       IN THE HIGH COURT OF KARNATAKA AT BENGALURU

           DATED THIS THE 11TH DAY OF MARCH, 2022

                          BEFORE

    THE HON'BLE MR. JUSTICE SACHIN SHANKAR MAGADUM

                 R.F.A NO.7 OF 2006 (DEC)

BETWEEN:

SMT. SUNANDAMMA
AGED ABOUT 65 YEARS
W/O LATE SRINIVAS
R/AT CHANNEGOWDANA DODDI VILLAGE
KASABA HOBLI, MADDUR TALUK
MANDAYA DISTRICT - 571 401.
                                               ...APPELLANT

(BY SRI. K NARASIMHA MURTHY, ADVOCATE)

AND:

1. SRI .M M KUMARSWAMY
AGED ABOUT 70 YEARS

2. SRI. M. SWAMY
AGED ABOUT 67 YEARS

BOTH ARE S/O LATE MARIMATHU
R/AT CHANNEGOWDANA DODDI VILLAGE
KASABA HOBLI, MADDUR TALUK
MANDAYA DISTRICT - 571 401.
                                           ....RESPONDENTS
(BY SRI. H C SHIVARAMU, ADVOCATE FOR R1 & R2)

     THIS RFA IS FILED U/O 41 RULE 1 R/W SEC.96 OF CPC
AGAINST THE JUDGMENT AND DECREE DATED 21.10.05 PASSED IN
                                  2


O.S. NO.469/2000 ON THE FILE OF CIVIL JUDGE (SR.DN) MADDUR
DECREEING THE SUIT FOR DECLARATION AND INJUNCTION.

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

                           JUDGMENT

The captioned regular first appeal is filed by the

defendant questioning the judgment and decree dated

21.10.2005 passed by the learned Civil Judge(Sr.Dn.) at

Maddur in O.S.No.469/2000 declaring that the suit schedule

properties are the joint family ancestral properties and

consequently mandatory injunction is granted restraining the

present appellant-defendant from alienating or disposing of

the suit schedule properties or any portion thereof.

2. For the sake of convenience, the parties are

referred to as per their rank before the trial Court.

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

(a)The plaintiffs are brothers of appellant-defendant

herein. The plaintiffs specifically contended that suit schedule

properties are the joint family ancestral properties. It is their

specific case that their father along with his brothers namely

M.Muniswamy and M. Abraham effected partition in the family

under registered partition deed dated 26.5.1960 and

accordingly, suit schedule properties fell to the share of

plaintiffs and defendant's father i.e. Marimuttu. The grievance

of the plaintiffs is that their father Marimuttu was not the

absolute owner and that the defendant and their father

Marimuttu have created a false and fabricated document. The

alienation made by their father Matimuttu in favour of

defendant under registered sale deed dated 27.1.1984 is not

binding on their legitimate share and the said transaction is

made behind the back of the plaintiffs. There was no

partition in the family of the plaintiffs and therefore, the

plaintiffs contended that their father had no authority to deal

with the suit schedule properties. Therefore, the plaintiffs filed

a suit seeking the relief of declaration that suit schedule

properties are the joint family ancestral properties.

(b)On receipt of summons, the defendant tendered

appearance and contested the proceedings. The defendant

stoutly denied the entire averments made in the plaint. The

defendant specifically pleaded that the sale deed executed by

her father Marimuttu in favour of defendant is well within the

knowledge of the plaintiffs. Plaintiff No.2 infact has given

consent for effecting mutation thereby transferring the name

of defendant in respect of suit schedule item No.1 property

bearing Survey No.63/A. The defendant also set up a Will by

specifically contending that her father had bequeathed the suit

schedule properties in her favour as well as plaintiffs and

therefore, claimed absolute title over the suit schedule

property covered under the Will.

(c)The Trial Court based on the pleadings framed the

following issues:

"1.Whether the plaintiff proves that suit schedule properties are joint family properties themselves and defendants?

2. Whether plaintiff proves that in a partition held on 26.05.1960 suit schedule properties have been fallen to the share of their father?

3. Whether defendant proves suit schedule property are self acquired property of their father?

4. Whether defendant proves that father executed a will in her favour and same is beyond legal suspicious circumstances in respect of suit properties?

5. Whether defendant prove that suit is barred by limitation?

6. Whether defendant prove that she has perceptual her title by way of adverse possession?

7. Whether defendant proves that some properties are self-acquired properties and some properties obtained under will?

8. Whether plaintiff is entitled for mandatory injuction as prayed?

9. Whether plaintiff is entitled for relief sought for?

10. What order or decree?"

(d)The plaintiffs in support of their contention examined

plaintiff No.2 as P.W.1 and examined two independent

witnesses and relied on documentary evidence vide Exs.P1 to

20. The defendant examined herself as D.W.1 and examined

two independent witnesses as D.Ws.2 and 3 and let in oral

evidence by producing Exs.D1 to 46.

(f)The Trial Court having examined the evidence on

record answered issue Nos.1 and 2 in the affirmative by

holding that the plaintiffs have succeeded in proving that the

suit schedule properties are the joint family ancestral

properties. The Trial Court also recorded a finding that

plaintiffs have succeeded in proving the partition effected

between their father and his brothers on 26.5.1960 and in the

said partition, the suit schedule properties were allotted to the

share of plaintiffs and defendant's father. While dealing with

Issue Nos.3 and 4, the Trial Court answered the same in the

negative by holding that defendant has failed to prove that the

suit schedule properties are the self acquired properties of her

father and also recorded a finding that the defendant has

failed to prove due execution of Will in her favour. While

answering Issue No.5, the Trial Court has answered the same

in negative declaring that the suit schedule properties are the

joint family ancestral properties. The plaintiffs and defendant

are the sharers and after the death of her father, defendant is

having share in the property in respect of her father's share

and therefore, adverse possession does not arise and

consequently granted mandatory injunction.

(g)It is against this judgment and decree, the defendant

is before this Court.

4. The learned counsel for the appellant-defendant

would vehemently argue and contend before this Court that

plaintiffs as well as defendant's father for legal necessity had

to sell suit item No.1 in favour of appellant-defendant herein

under registered sale deed dated 27.1.1984 for valuable

consideration of Rs.10,000/-. He would submit that the

recitals would clinch the issue. Placing reliance on the recitals

and taking this Court through the recitals, he would submit

that item No.1 was sold in favour of appellant for legal

necessity and the same was indicated in the sale deed as per

Ex.D2. Referring to the recitals, he would submit that their

father in unequivocal terms intended to sell the property to

meet the marriage expenses of plaintiff No.1 as well as to

discharge the debts. Therefore, the alienation by their father

who is the Kartha of the family which was for legal necessity

would even otherwise bind the plaintiffs who claimed to be the

co-parceners.

The next limb of argument canvassed by the learned

counsel for the defendant is that admittedly the sale deed is

dated 27.1.1984. The present suit is filed on 11.4.2000.

Taking this Court to the findings recorded by the Trial Court

on Issue No.5, he would submit that the Trial Court has not

applied its mind, no reasons are assigned while answering

issue No.5 in the negative. Re-iterating the grounds urged in

the appeal memo, the learned counsel in support of his

contention would place reliance on the decision of the Apex

Court rendered in the case of Executive Officer, Arulmigu

Chokkanantha Swamy Koil Trust, Virudhunagar .vs.

Chandran and others1 Placing reliance on Sections 34

and 35 and Paragraph 36 of the said judgment, he would

submit that the present suit is not at all maintainable. The

suit in the present form seeking only the relief of declaration

that the suit schedule properties are the joint family ancestral

properties is not at all maintainable. Merely seeking

declaration without seeking the relief of recovery of possession

is squarely hit by Section 34 of the Specific Relief Act.

Therefore, he would submit that the Trial Court ought to have

dismissed the suit as not maintainable.

Insofar as limitation is concerned, he has placed reliance

on the judgment of the Apex Court rendered in the case of

Sunder Das and others .vs. Gajananrao and others2 and

would submit that father sold item No.1 on 27.1.1984 and

delivered possession also and therefore, in terms of Article

109 of the Limitation Act, since the suit is filed beyond 12

years the same is barred by limitation.

AIR 2017 SC 1034

AIR 1997 SC 1686

Insofar as legal necessity is concerned, learned counsel

has placed reliance on the judgment rendered by the Apex

Court in the case of Beereddy Dasarathrami Reddy .vs. V.

Manjunath and another and would submit that the Apex

Court at paragraph 7, has referred to the another judgment in

Kehar Singh(d) through Legal Representatives and

others .vs. Nachittar Kaur and others4 wherein at

Paragraph 21 the Apex Court has covered instances in the

family which would squarely fall within the definition of legal

necessity referring to definition of legal necessity by Mulla in

Article 241. Therefore, he would submit that marriage of a

male co-parceners and daughters squarely fall within the

definition of legal necessity. Placing reliance on these

judgments, he would submit that father was compelled to sell

item No.1 which was for legal necessity and therefore, would

bind the plaintiffs. On these set of grounds, he would submit

that the judgment and decree of the Trial Court suffers from

Civil Appeal No.7037/2021

(2018)14 SCC 445

serious infirmities and therefore, warrants interference at the

hands of this Court.

5. Per contra, the learned counsel for the plaintiffs

repelling the arguments advanced by the learned counsel for

the defendant would submit that the findings recorded by the

Trial Court on issue Nos.1 and 2 is in accordance with law and

therefore, would not warrant interference at the hands of this

Court. He would submit that the clinching evidence on record

would clearly indicate that the suit schedule properties are the

joint family ancestral properties. Therefore, alienation made

by their father in favour of appellant-defendant, who is the

sister of plaintiffs herein would not bind them and the same

was without securing consent from the other male co-

parceners. He would further submit that the learned trial

Judge has rightly appreciated the evidence on record and has

arrived at a conclusion that the suit schedule properties are

the joint family ancestral properties and there was no division

in the family and the father of plaintiffs had no absolute right

and therefore, he could not have alienated the suit schedule

properties. He would also lay emphasis on the fact that if

defendant has acquired right and title pursuant to the

registered sale deed executed by their father, then there was

no need for defendant to set up the plea of adverse

possession. Having set up the plea of adverse possession and

having failed to prove the same, the defendant cannot assert

right and title based on the sale deed dated 27.1.1984.

6. Heard the learned counsel for the defendant and

the learned counsel for the plaintiffs. Perused the judgment

under challenge. I have also given my anxious consideration

to the judgment cited by the learned counsel for the

defendant.

7. The following points would arise for consideration:

(1)Whether the trial Court was justified in granting the relief of declaration thereby declaring that the suit schedule properties are

the joint family ancestral properties and that the suit in the present form is maintainable?

(2)Whether the trial Court was justified in holding that the suit is not barred by limitation?

(3)Whether the Trial Court was justified in holding that the defendant has failed to prove due execution of Will in her favour?

8. Regarding Point No.1:

(a)Plaintiffs and defendant are the sons and daughters of

Marimuttu. Therefore, defendant and plaintiffs are siblings.

The evidence on record clearly indicates that the suit schedule

properties are the joint family ancestral properties. The

present suit is filed seeking the relief of declaration to declare

that the suit schedule properties more particularly Item No.1

is the joint family ancestral property. The question that would

arise in the present facts and circumstances of the case is as

to whether the said relief could have been sought by the

plaintiffs. It is more than trite that in a partition suit, the

competent Civil Court while determining the rights of the

members of the joint family merely declares the rights of the

family members in the form of a preliminary decree, the same

cannot be misconstrued as creation of right pursuant to the

decree passed by the civil Court. When a competent civil

Court in a partition suit merely declares a pre-existing right,

the Court has to examine as to whether the relief of

declaration could have been sought and whether the same is

permissible under Section 34 of the Specific Relief Act. This

Court also has to examine as to whether the plaintiffs could

have sought the relief of declaration without seeking the

consequential relief of possession.

(b) The clinching rebuttal evidence on record as per

Ex.D2 clearly indicates that father of plaintiffs and defendant

sold item No.1 in favour of defendant under registered sale

deed dated 27.1.1984 and pursuant to the same parted with

possession. If possession was delivered in 1984, the question

that needs to be examined by this Court is: "Whether the suit

in the present form was maintainable?". My answer to this is

"No".

(c)It is a trite law that a co-parcener can sell his

undivided share in the suit schedule property. It is also a trite

law that Kartha of the family can sell the suit schedule

properties for legal necessity and the same would bind other

co-parceners in the family. The fact that the sale deed is of

the year 1984 and plaintiffs who are his children have

comfortably kept quite for 16 years cannot give an indication

that alienation by their father is an implied consent of his sons

also. This Court also has to examine the surrounding

circumstances under which the father was compelled to sell

the suit schedule property. In the registered sale deed there

is a clear reference that he was compelled to sell item No.1 to

perform the marriage of plaintiff No.1 and there is no serious

contest in this regard and the recitals clearly indicate that it

was for legal necessity. Therefore, I am of the view that the

present suit which is filed questioning the alienation by

indirectly seeking the relief of declaration that the suit

schedule properties are joint family ancestral properties is

quite deceptive and as such the said relief cannot be granted.

(d) It is a trite that in case of alienation of a co-

parcenary property, it is sufficient for a non-alienating co-

parcener to file a mere suit for partition and separate

possession without questioning the alienation. If the father has

alienated the suit schedule property and possession was

delivered in 1984 and when they were all residing together,

nothing prevented the plaintiffs from filing the suit for

partition. This principle is enunciated by this Court in the

judgment rendered in the case of Nagarathnamma .vs.

Rangegowda and others 5. Therefore, I am of the view that

if the property was already alienated in 1984, the finding of

the trial Court on Issue No.1 in answering the same in

affirmative holding that it is the joint family ancestral property

is perverse, palpably erroneous and contrary to the clinching

ILR 1985(1) KAR 1115 HEAD NOTE (B)

rebuttal evidence on record vide Ex.D2. If item No.1 was

dealt by the Kartha and if it was alienated way back in the

year 1984, then this Court is of the view that the property is

not available for partition. The family lost possession in the

year 1984. The words "to set aside" occur also in the first

column of Article 59. It is clear from the context that there the

words would not cover a person who was not a party to the

instrument. Under Article 109, however there seems to be no

such restriction and a person who was not party to the

transaction would also be within its scope. Even in Article 109,

suit referred to in first column is to "set aside" the alienation.

It is obvious that this article does not contemplate a suit

merely for a declaratory relief, but a non-alienating coparcener

has to seek relief of partition on the ground that there is

alienation without his consent. Therefore, the relief sought in

the present form was not at all maintainable. It is in this

background, this Court is of the view that the finding recorded

by the trial Court on Issue No.1 suffers from serious

perversity.

9. Regarding Point No.2

(a)The present suit is filed by plaintiffs seeking the relief

of declaration to declare that the suit schedule properties are

the joint family ancestral properties. But the sale made by

the father in favour of defendant is dated 27.1.1984. The

present suit is filed on 11.4.2000. The cause of action shown

at para 8 of the plaint is as follows:

"8) The plaintiff submits that, the defendant NO: 1 & 4 have formed residential sites in Item No:4 of the suit schedule property and sold portion of Item No:04 to defendant No: 6 to 27. The defendant No: 28 to 30 are subsequent purchasers from defendant No: 1 & 4. The said sites having been sold with out knowledge and consent of this plaintiff therefore the said sales are not binding upon the plaintiff. The plaintiff is entitled for 1/3rd share in the said properties as well. The 1st defendant sold portion of Item No:4 of the suit schedule properties to Defendant No:

6 to 9. The copies of registered sale deed are produced as DOCUMENT NO:09 series. The 4th defendant sold portion of Item No:4 of the suit schedule properties to C. Madaiah, Defendant No:10 to 19 & 27. The wife and children are made as parties to the suit as Defendant NO:20 to 23. The copies of registered sale deed are produced as DOCUMENT NO:10 series. The 4th defendant and his father M.Marimuthu Jointly sold portion of the schedule

Item No:4 property to defendant No:24, Ningamma, defendant No:25 Puttaswamy and Defendant NO:26 Sundamma. The said Defendant No:26 sold one portion to Defendant No:28 Siddaraju, another portion transferred in the name of Lakshmamma. Defendant No:30. The defendant No:17 M. Bhujangaiah sold site he has purchased to Defendant NO:29, Ramanna under registered sale deed Dt:18-5-1995 The copies of two registered sale deed is produced as DOCUMENT NO:11 series. The said alienation is not binding upon the plaintiff. The plaintiff is not party to the said alienation. The plaintiff seeks for partition in the said properties alienated by defendant NO: 1 & 4 in favour of defendant No: 6 to 30. The plaintiff is not party to said alienation therefore she would not necessary to seek for cancellation or not binding upon her. There was no antecedent debt to discharge or no legal necessity or to the benefit of Hindu Undivided Family to alienate above said properties. The plaintiff is entitling for share in the said properties also. The defendant No:6 to 30 who are purchasers are made parties to seek for possession of the said properties to the extent of her share in those properties. The defendant No:6 to 30 are claiming title under Defendant NO: 1 & 4 coparceners possession of the said family members and defendant No: 6 to 30 possession would be the possession of the plaintiff also. Till the partition is effected by metes and bounds, no body can claim exclusive title to any portion of the property. Therefore, as the property is not divided by metes and bounds, they cannot claim exclusive title to the schedule property, which is to be in their possession. Therefore the plaintiff is deemed to be in possession in law of the suit schedule property. Hence limitation a suit against the defendant NO: 6 to 30 do not run against the defendant No: 6 to 30. The present suit filed against the coparceners of the Hindu Undivided Family making the purchaser as party to the above suit is not barred by limitation, as the suit for general partition against the coparceners of Joint Hindu Family. The plaintiff is in joint possession of schedule properties sold in favour of the defendant No: 6

to 30. The defendant No: 6 to 30 have no right to claim exclusive possession of the property they have purchased from defendant No: 1 & 4 and their father M. Marimuthu. The plaintiff is entitled for joint possession of the suit schedule property along with the defendants."

(b)On perusal of para 8 of the plaint, this Court would

find that the cause of action referred to in para 8 of the plaint

is illusory and imaginary. The family lost possession way back

in the year 1984. Therefore, the principles laid down by the

Apex Court in the judgment cited by the learned counsel for

the defendant is squarely applicable to the present case on

hand. If the family of plaintiff lost possession of the suit

schedule property in 1984, then it was incumbent on the part

of the plaintiff to bring the suit within 12 years as required

under Article 109 of the Limitation Act and the proper course

for the plaintiff was to file the suit for partition and not to seek

the relief of declaration, which is sought in the form of present

suit. The learned trial Judge has not at all applied his mind

and no reasons are forthcoming while answering Issue No.5.

Though the learned trial Judge observed that plaintiffs have

not immediately challenged the sale deed has very casually

accepted the reasons narrated at Para 8 without examining

the rebuttal evidence let in by the defendant and without

taking note of the registered sale deed executed by the

plaintiffs' father has answered issue No.5 in the negative

holding that the defendant has failed to establish that the suit

is barred by limitation. The title documents in favour of

defendant as per Ex.D2 is part of the record. Therefore, it was

incumbent on the part of the Trial Court to examine the

alienation. What is to be noted in the present case is that the

alienation is within the family by the father to perform the

marriage of his son i.e. in favour of his daughter under a

registered sale deed. Therefore, it has to be presumed that

the alienation was well within the knowledge of the plaintiffs

who were none other than the brothers of the defendant. If it

was well within the knowledge of plaintiffs and if the family

had lost possession in 1984, then the present suit which was

filed on 11.4.2000 is barred by limitation as per Article 109 of

the Limitation Act. Under Mitakshara Law, father has right to

alienate ancestral properties, including the rights of the son,

for legal necessity or for the benefit of the estate or for

discharging antecedent debt. Since possession was delivered

in 1984, it amounted to invasion of rights of son (plaintiff) in

the family property. It is only when possession is taken by

alliance, cause of action accrues to the son under Article 109.

In the present case, sale deed is dated 27.1.1984 and suit is

filed on 11.4.2000. After expiry of 12 years, son's right to

dispute the alienation is barred and therefore the suit property

ceases to be joint family property. These significant details are

not dealt by the Trial Court. The finding recorded on issue

No.5 is contrary to the evidence on record. Therefore, the

conclusions arrived at by the trial Court on Issue No.5 are not

at all sustainable and accordingly, point No.2 is answered in

the negative.

10. Regarding Point No.3:

Though the defendant has claimed right and title on the

basis of the Will vide Ex.D1 this Court is not inclined to

examine the material on record as the defendant being the

propounder of the Will has not examined one attesting witness

as per the mandatory requirement contemplated under

Section 68 of the Indian Evidence Act. Therefore, the finding

recorded by the Trial Court on Issue No.4 does not warrant

any interference.

11. For the reasons stated supra, this Court has arrived

at the following conclusions:

(a)The finding of the Trial Court that the suit schedule

properties are the joint family ancestral properties and there is

no division and therefore, alienation by the father of plaintiffs

and defendant in favour of defendant is one without authority

is perverse and contrary to the settled position of law that

Kartha for legal necessity can sell joint family ancestral

properties and therefore, the finding recorded by the Trial

Court while dealing with Issues 1 and 2 is palpably erroneous

and the same is not at all sustainable. The trial Court has

totally misread the evidence on record and also has not

understood the actual lis between the parties. The Trial Court

has unnecessarily gone into the nature of the suit schedule

properties and authority of the father in alienating a suit

schedule property. The Trial Court has unnecessarily gone

into the capacity of father and his income while examining the

nature of the suit schedule property. Even if the suit schedule

properties are joint family ancestral properties, the Kartha or

co-parcener can deal with the property, more particularly, the

kartha for legal necessity can sell the joint family ancestral

properties and in the light of the principles laid down by the

Apex Court in the case of Beereddy Dasarathrami Reddy,

the sale of joint family ancestral properties to perform the

marriage of a male co-parcener would clearly fall within the

definition of legal necessity. These significant details are

neither referred nor discussed nor dealt by the Trial Court

while dealing with Issue Nos.1 and 2. Therefore, the finding

recorded on Issue Nos.1 and 2 are not sustainable.

(b)The finding recorded on Issue No.5 relating to

limitation is also palpably erroneous and contrary to Article

109 of the Limitation Act. The clinching evidence on record

would clearly demonstrate that the sale deed is of the year

1984 and the present suit is filed in 2000. If plaintiffs family

has lost possession in 1984, the present suit filed in 2000 is

not maintainable and the same is barred by limitation under

Section 109 of Limitation Act. These significant details are not

at all taken into consideration and therefore, the finding on

Issue No.5 is palpably erroneous and the same is not at all

sustainable.

12. In view of my findings recorded on Points 1 to 3

and the conclusions arrived at, the findings of the Trial Court

are perverse and palpably erroneous and liable to be reversed.

Accordingly, the same stands reversed.

13. In the result, the regular first appeal is allowed.

14. All pending interlocutory applications, if any, do not

survive for consideration and accordingly, stand disposed of.

Sd/-

JUDGE

*alb/-