Sri Chikka Anjinappa vs Anjinappa
2022 Latest Caselaw 5444 Kant

                           1



  IN THE HIGH COURT OF KARNATAKA AT BENGALURU

       DATED THIS THE 25TH DAY OF MARCH 2022

                       BEFORE

     THE HON'BLE MR.JUSTICE N.S.SANJAY GOWDA

            R.S.A.No.395 of 2015 [PAR]

BETWEEN:

1.   SRI CHIKKA ANJINAPPA
     SON OF LATE PILLAIAH,
     AGED ABOUT 55 YEARS,
     RESIDING AT KUDUVATHI VILLAGE,
     NANDI HOBLI - 562103
     CHIKKABALLAPUR TALUK AND DISTRICT
                                         ...APPELLANT
(By Sri D. P. MAHESH ADVOCATE)

AND:

1 . ANJINAPPA
    SON OF MUNISHAMAPPA,
    AGED ABOUT 59 YEARS,

2 . SMT. CHIKKA AKKAYYAMMA
    W/O LATE PILLAIAH,
    AGED ABOUT 79 YEARS,

3 . P. NARAYANA SWAMY
    S/O LATE PILLAIAH,
    AGED ABOUT 49 YEARS,

     R1 TO RE ARE RESIDING AT
     KUDUVATHI VILLAGE- 562103
     CHIKKABALLAPURA TALUK & DISTRICT
                             2



4 . V. SRINIVASA RAJU
    S/O OF VARADARAJU,
    AGED ABOUT 64 YEARS,
    R/AT NO.115/A, 9THMAIN ROAD,
    RAJAMAHAL VILAS EXTENSION,
    SADASHIVANAGARA,
    BANGALORE 560080
                                        ...RESPONDENTS
(By SRI.V.B.SHIVAKUMAR ADVOCATE FOR R4;
     NOTICE TO R1 TO R3 DISPENSED WITH)

     THIS APPEAL IS FILED UNDER SECTION 100 OF THE
CODE OF CIVIL PROCEDURE, 1908, AGAINST THE JUDGMENT
& DECREE DATED 02.08.2014 PASSED IN R.A. NO.80 OF
2009 ON THE FILE OF THE PRL. SENIOR CIVIL JUDGE & CJM,
CHIKKBALLAPUR, ALLOWING THE APPEAL AND SETTING
ASIDE THE JUDGMENT AND DECREE DTD 29.6.2009 PASSED
IN O.S. NO.476 OF 2006 ON THE FILE OF THE ADDL. CIVIL
JUDGE (JR.DN) & JMFC, CHIKKBALLAPUR.

THIS APPEAL HAVING BEEN HEARD AND RESERVED FOR
JUDGMENT    ON   11.03.2022, COMING   ON   FOR
PRONOUNCEMENTTHIS DAY, THE COURT DELIVERED THE
FOLLOWING:

                       JUDGMENT

1. This second appeal arises out of a suit for partition

which was instituted by the appellant in respect of an

agricultural land bearing Sy.No.141 measuring 3 acres 26

guntas.

2. The suit was decreed by the Trial Court and the

plaintiff was granted 1/6th share.The Appellate Court has,

however, reversed the decree and dismissed the suit.

3. The facts as ascertained by both the Courts and

which are not in serious dispute, are as follows:

a. The suit property belonged to one Smt. Thippe

Hanumakka @ Hanumakka, who was the

grandmother of the plaintiff and defendant Nos.1 to

3. Thippe Hanumakka had purchased the suit

property under a registered sale deed dated

21.12.1937 (Ex.D-2).

b. On 31.01.1961, her two sons Munishamappa (i.e.,

the father of defendant No.1) and Pillaiah (the

husband of defendant No. 2, the father of plaintiff

and defendant No. 3) sold the property to one

Kyathappa under Ex.P-7, a registered sale deed.

c. Thereafter, on 25.01.1973, Kyathappa sold the

property to the father of defendant No.1 vide

Ex.D-5.

d. Thereafter, defendant No.1 executed a sale deed on

26.09.1984 in favour of defendant No.4 (Ex D-6).

Thippe Hanumakka, had in the meantime, passed

away on 25.11.1980.

4. Thus, as per the facts as ascertained by the Courts

below, the suit property belonged to Thippe Hanumakka

and during her life-time, her sons sold the property to

Kyathappa and Kyathappa in turn re-conveyed the

property to the father of defendant No.1 and thereafter,

defendant No.1 sold the property in favour of defendant

No.4.

5. The Trial Court on consideration of the evidence

took the view that the sale deed dated 31.01.1961,

whereby the two sons of Thippe Hanumakka sold the

property to Kyathappa, was a void document inasmuch

as they themselves did not possess any title in order to

convey title to Kyathappa. The Trial Court noticed that as

on 31.01.1961, Thippe Hanumakka was very much alive

and therefore, the sale deed executed by her sons in

respect of the property owned by their mother who was

very much alive, was invalid and could not convey title to

Kyathappa.

6. The Trial Court thereafter came to the conclusion

that since the initial conveyance by the father of

defendant No.1 and Pillaiah, (the husband of defendant

No. 2, the father of plaintiff and defendant No. 3) was

itself void, all subsequent transactions including the re-

conveyance to the father of defendant No.1 was of no

consequence.

7. The Trial Court has also taken note of the fact that

the general power of attorney holder of defendant No.4,

who was examined as DW-1, clearly admitted that the

possession was not delivered to defendant No.4 and

defendant No.4 had not cultivated the property at all. It

also noticed that he had given a categorical admission

that the plaintiff continued to be in possession of the

property.

8. It has also recorded a finding that, right from 1965

to 1972, the name of Thippe Hanumakkahad been

entered in the revenue records and this indicated that

the alienation was not to the notice of Thippe

Hanumakka. The Trial Court accordingly concluded that

the suit property, on the death of Thippe Hanumakkain

1980,devolved on to both her sons and thereafter, after

their death, it had devolved on to the plaintiff and

defendant Nos.1 to 3.

9. The plaintiff, being the son of Thippe Hanumakka's

second son, Pillaiah, and one of this three legal heirs,

defendant No 2 and 3 being the other two legal heirs,

was thus entitled to 1/6th share in the suit property. The

Trial Court further held that defendant No.4 was entitled

to succeed to the entire half shareof defendant No.1 by

virtue of the sale deed 26.09.1984 executed by him in

his favour. It also held that the sale deed dated

26.09.1984 executed in favour of defendant No.4 did not

bind the plaintiff.

10. Defendant No.4, being aggrieved, preferred an

appeal. The Appellate Court, on re-appreciation of the

evidence,concluded that Thippe Hanumakka during her

lifetime and right till her death in the year 1980, had not

chosen to challenge the sale deed executed by her sons

and since, she had slept over her rights, she had lost title

over the suit property.

11. The Appellate Court heldthat thereafter defendant

No.1 had purchased the suit property for a valuable

consideration and had became its absolute owner. It also

held that the sale made by defendant No.1 in favour of

defendant No.4 was therefore valid.

12. The Appellate Court stated that the suit property

was the Sthridhana property of Thippe Hanumakka, but

however, her sons had without any right, title or interest

in the same, had sold it to Kyathappa. It took the view

that since the sale deed executed by her sons in favour

of Kyathappa was not challenged by Thippe Hanumakka,

she had lost her title in the year 1961 itself and

therefore, the subsequent sale deeds in favour of

defendant No.1 and defendant No.4 were valid and

defendant No.4 had acquired valid title over the suit

property. The Appellate Court accordingly allowed the

appeal and dismissed the suit.

13. This second appeal was admitted to consider the

following substantial questions of law:

"(i) When it was the admitted case of all the

parties that the suit property belonged to

Smt.Thippe Hanumakka (grandmother of

the plaintiffs and defendant No.2)

(wrongly typed as defendant No 3 in the

order sheet) who had purchased the

property under a registered sale deed

dated 21.12.1937, whether the sons

Sri.Anjinappa and Sri.Pillaiah could have

alienated the property on 31.01.1961?

(ii) Whether defendant No.1 on re-purchasing

the property on 25.01.1973 could have

acquired any title to the suit property?

(iii) Whether the alienations made by the sons

of Smt.Thippe Hanumakka had any

consequence on the divesting of title of

Smt.ThippeHanumakka who was alive

when the property was alienated on

31.01.1961 and was re-purchased by

defendant No.1 on 25.01.1973?"

14. As noticed above, it is not in dispute that Thippe

Hanumakka purchased the suit property under a

registered sale deed dated 21.12.1937 and it was thus

her absolute property. It is not in dispute that on

31.01.1961, her sons Munishamappa--the father of

defendant No.1 and Pillaiah (the husband of defendant

No. 2, the father of plaintiff and defendant No. 3), sold

the property in favour of one Kyathappa.

15. In the light of the admitted fact that the suit

property was purchased by Thippe Hanumakka in 1937

and the further admitted fact that she was very much

alive in 1961, it is inconceivable that the sons of Thippe

Hanumakka could have alienated the property in favour

of Kyathappa. Admittedly, their mother possessed title

over the property and she was very much alive and it is

thus as clear as day that they did not possess any

title/transferable interest in the suit property in favour of

Kyathappa. As rightly held by the Trial Court, this sale

deed was non estand did not convey any title at all in

favour of Kyathappa. As a further consequence, it is also

clear that the title had always remained with Thippe

Hanumakka.

16. Defendant No.1 claimed to have re-purchased the

property on 25.01.1973 from Kyathappa. If Kyathappa--

the purchaser had acquired no title in the suit property

by virtue of the sale in his favour, the question of

Kyathappa conveying the title to defendant No.1 under

this sale deed dated 25.01.1973 would not at all arise.

Consequently, since defendant No.1 had no title to the

suit property, the question of him conveying the title of

the suit property to defendant No.4 would also not arise.

17. Section 7 of the Transfer of Property Act,

1882categorically states that every person competent to

contract and entitled to transferable property, or

authorised to dispose of transferable property not his

own, is competent to transfer the property either in

whole or in part. Thus, to have the competence to

transfer, the transferor is required to be not only

competent to contract, but more importantly he should

be entitled to a transferable interest in the property.

________________

7. Persons competent to transfer.- Every person competent to contract and entitled to transferable property, or authorized to dispose of transferable property not his own, is competent to transfer such property either wholly or in part, and either absolutely or conditionally, in the circumstances, to the extent and in the manner, allowed and prescribed by any law for the time being in force.

18. Admittedly, since Thippe Hanumakka had

purchased the property under a registered sale deed

dated 21.12.1937 and had not transferred her interest in

favour of her sons nor had she authorised them to

dispose off the property, it is clear that the conveyance

of the suit property by the sons of Thippe Hanumakkain

favour of Kyathappa would have absolutely no

consequence. Consequently, the re-purchase by

defendant No 1 and the subsequent sale in favour of

defendant No.4 would also be non est.

19. The Trial Court has noticed that there was a clear

admission on the part of defendant No.4 that the plaintiff

continued to be in possession of the suit property and the

possession was never delivered to defendant No.4. It

also noticed that defendant No.4 had admitted that

Thippe Hanumakka was very much alive when the first

sale deed of the year 1961 was executed and also when

the property was said to have been re-purchased by

defendant No.1 in the year 1973. Having regard to

theseclear findings that Thippe Hanumakka's property

was sought to be dealt with by her sons during her life-

time, which were of no consequence at all, the Trial

Court was absolutely justified in coming to the conclusion

that the sale deed relied upon by defendant No.4 would

also be of no consequence and that the said sale deed

did not bind the plaintiff in any manner.

20. The Trial Court has held that the sale in favour of

defendant No.4 insofar as it related to the share of

defendant No.1 was concerned, was valid. The Trial Court

was, therefore, justified in granting the plaintiff only 1/6th

share.

21. As a result, the questions of law framed in this

appeal would have to be answered in favour of the

appellant/plaintiff and it will have to be held that the

sons of Thippe Hanumakka could not have alienated the

property on 31.01.1961 and consequently, the alleged

re-purchase by defendant No.1 on 25.01.1973 which was

of no consequence,did not vest any title in favour of

defendant No.1. As a further consequence, the

subsequent alienation made by defendant No. 1 in favour

of defendant No.4 would also be of no consequence in so

far as the plaintiff is concerned.

22. The learned counsel for the purchaser

Sri.V.B.Shivakumar, however, sought to contend that

there was no plea regarding the alienation made in the

plaint and no issue had been framed regarding the

alienation and the suit could not therefore be maintained.

He also contended that there was no issue framed

regarding the limitation despite a specific plea being

raised by defendant No.4. He submitted thatthe pleaof

the plaintiff was that the suit property was a joint family

property and in the light of the fact that the property was

acquired by Thippe Hanumakka, the entire plea by the

plaintiff was misconceived and the suit could not

therefore have been decreed.

23. He also submitted that Thippe Hanumakka had lost

possession and title, and after her death, there were no

inheritance proceedings initiated by her legal

representatives and since at no pint of time there was

challenge made to the sale deed executed in favour of

Kyathappa, either by Thippe Hanumakka or the plaintiff,

the Appellate Court was justified in dismissing the suit.

24. The plaintiff in his plaint clearly stated that the suit

property belonged to his grandmother--

ThippeHanumakkaandon her death her two sons--

Munishamappaand Pillaiah had succeeded to the suit

property and on their death, the plaintiff and defendant

Nos.1 to 3 had succeeded to the suit property as the

legal heirs. This plea by itself establishes that the

plaintiff was essentially laying a claim over the suit

property on the basis that,the property was that of his

grand-mother and his father had inherited a share, and

on the death of his father, he had inherited his father's

share. In my view, this plea is more than adequate in a

suit for partition.

25. As far as the argument that there was no issue

regarding the limitation, it has to be stated here that the

plaintiff pleaded that he was in joint possession.

Defendant No.4 categorically stated as follows in his

deposition:

"...zÁªÁ ¸ÀévÀÛ£ÀÄß Rjâ¸ÀĪÁUÀ ºÀ£ÀĪÀÄPÀÌ EªÀgÀÄ §zÀÄQzÀÝgÄÀ . ºÀ£ÀĪÀÄPÀÌ EªÀgÀÄ fêÀAvÀªÁVgÀĪÀÅzÀÄ UÉÆwÛzÀÄÝ, CªÀjUÉ ¸ÉÃjzÀ zÁªÁ ¸ÀévÀÛ£ÀÄß 1£Éà ¥ÀæwªÁ¢ PÀqɬÄAzÀ Rjâ¹gÀÄvÉÛÃ£É CAzÀgÉ ¸Àj. ºÀ£ÀĪÀÄPÀÌ EªÀgÀÄ zÁªÁ ¸ÀéwÛ£À ¸Áé¢üãÀªÀ£ÀÄß ©lÄÖ PÉÆqÀ°®è CAzÀgÉ ¸Àj. £ÁªÀÅ zÁªÁ ¸ÀévÀÛ£ÀÄß Rjâ¹zÁUÀ ºÀ£ÀĪÀÄPÀÌ EªÀgÉà zÁªÁ ¸ÀéwÛ£À ¸Áé¢üãÀzÀ°èzÀÝgÀÄ CAzÀgÉ ¸Àj. ..."

26. In the light of this clear admission by DW-1 that

possession was not delivered to defendant No.4 and even

when hehad purchased the property,the fact that Thippe

Hanumakkawas in possession would by itself prove that

the plaintiff was in possession of the suit property and

therefore, the question of the suit being barred by

limitation would never arise.

27. The learned counsel also sought to contend that it

was necessary for Thippe Hanumakka to have challenged

the sale deed executed in favour of Kyathappa, since it

was by way of a registered document. He submitted that

a registered instrument, even if it is executed by a

person who does not possess title, would have to be

impugned before the Court and only then could the effect

of the sale deed be nullified.

28. It has to be stated here that the requirement of

seeking for cancellation of an instrument or for a

declaration that the sale deed would not be binding on a

person would arise only if that person is a party to the

document. If a person is not a party to the document,

the question of him seeking for a declaration that a

document executed by a third party does not bind him

would not arise at all.

29. The facts of the present case clearly goes to show

that despite the so-called sale deed in favour of

Kyathappa, the revenue entries for the years 1965 to

1972 continued in the name of Thippe Hanumakka. This

also proves that Thippe Hanumakka would have no

knowledge about the sale deed and even if she did have

any knowledge, it was not necessary, in law, for her to

seek for a declaration that the sale deed was not binding

on her.

30. It is a settled position of law that a person who

does not possess a title cannot convey title to another

person and such an act would be a nullity in law. An act

which is a nullity in law, can be ignored by the Courts

and is not required to be challenged in a Court of law.

The argument of the learned counsel in this regard is

hence without any merit and is accordingly rejected.

31. In view of the discussion made above, the

questions of law have to held in favour of the

appellant/plaintiff and consequently this second appeal

deserves to be allowed and it is accordingly allowed.

The judgment and decree passed by the Appellate

Court is set aside and the judgment and decree passed

by the Trial Court shall stand restored.

Sd/-

JUDGE

RK CT:SN