Karnataka High Court

Smt. K.C. Leelavathi vs Smt. Ramanjanamma on 8 August, 2023

Bench: K.Natarajan

                         1


IN THE HIGH COURT OF KARNATAKA AT BENGALURU

     DATED THIS THE 8TH DAY OF AUGUST, 2023

                      BEFORE

       THE HON'BLE MR. JUSTICE K. NATARAJAN

         REGULAR FIRST APPEAL NO.418 OF 2017

BETWEEN:

SMT. K.C. LEELAVATHI
D/O LATE K.M. CHIKKAMUNIHUCHAIAH
W/O SRI B.N. CHANDRAIAH
AGED ABOUT 58 YEARS
RESIDING AT NO. 42,
2ND CROSS, 2ND MAIN,
SANJEEVINI NAGARA,
MOODALAPALYA,
VIJAYANAGARA
BANGALORE - 560 072                     ... APPELLANT

(BY SRI VARADARAJAN M.S., ADVOCATE
 AND SRI SANTHOSH, ADVOCATE)

AND:

1.   SMT. RAMANJANAMMA
     W/O LATE K M CHIKKAMUNIHUCHAIAH,
     AGED ABOUT 74 YEARS

2.   SMT K C PREMA
     W/O SRI LATE PADMANABHAIAH,
     D/O LATE K M CHIKKAMUNIHUCHAIAH
     AGED ABOUT 53 YEARS
                            2


3.   SMT K C VIJAYA
     AGED ABOUT 49 YEARS
     W/O SRI RUDRAPPA
     D/O LATE SRI K M CHIKKAMUNIHUCHAIAH

4.   SMT LAKKAMMA
     W/O SRI KEMPAIAH
     AGED ABOUT 73 YEARS

     R1 TO R4 ARE R/AT KAKOLU VILLAGE
     KAKOLU POST
     HESARAGHATTA HOBLI,
     BANGALORE NORTH TALUK ,
     BANGALORE RURAL DISTRICT - 560 088

5.   SRI S H HANUMAIAH
     S/O LATE SRI HANUMANTHARAYAPPA
     SINCE DEAD BY LRS.

5A . SRI ASHWATHAMMA
     W/O. LATE HANUMAIAH
     AGED ABOUT 75 YEARS

5B. SRI MURTHY
    S/O. LATE HANUMAIAH
    AGED ABOUT 50 YEARS

5C. SRI BYREGOWDA
    S/O LATE HANUMAIAH
    AGED ABOUT 45 YEARS

5D. SRI RAMESHA
    S/O LATE HANUMAIAH
    AGED ABOUT 40 YEARS

5E. MS. SHOBHA
    D/O LATE HANUMAIAH
    AGED ABOUT 37 YEARS
                           3


5F. MS. VANAJAKSHI
    D/O LATE HANUMAIAH
    AGED ABOUT 32 YEARS

5G. MS. BHAGYAMMA
    D/O LATE HANUMAIAH
    AGED ABOUT 32 YEARS

    RESPONDENTS 5 (A-G) ARE
    R/AT SHANUBHOGANAHALLI
    HISARAGHATTA HOBLI
    BENGALURU NORTH TALUK
    BENGALURU URBAN DISTRICT - 560 089
                                  ... RESPONDENTS

(BY SRI HARISHA A.S., ADVOCATE FOR R1 TO R3,
 SRI H.J. ANANDA, ADVOCATE FOR R4 AND R5
 SRI K. VIJAYAKUMAR, ADVOCATE FOR R5 (A TO G))

     THIS REGULAR FIRST APPEAL IS FILED UNDER
SECTION 96 OF C.P.C., AGAINST THE ORDER DATED
20.10.2016 PASSED ON IA NO.IV AND PRELIMINARY
ISSUE NO.III IN OS NO.96/2013 ON THE FILE OF THE I
ADDITIONAL   SENIOR    CIVIL    JUDGE,   BANGALORE.,
ALLOWING THE IA NO.IV FILED UNDER ORDER 7 RULE
11(a) (b) (c) AND (d) READ WITH SECTION 151 OF CPC.,
FOR REJECTION OF THE PLAINT.,


     THIS REGULAR FIRST APPEAL HAVING BEEN HEARD

AND RESERVED FOR JUDGMENT ON 1.8.2023 THIS DAY,

THE COURT PRONOUNCED THE FOLLOWING:
                                4


                      JUDGMENT

This appeal is filed by the appellant-plaintiff under

Section 96 of Code of Civil Procedure for setting aside the

order dated 20.10.2016 passed on I.A. No.4 and

preliminary issue No.III in O.S. No.96/2013 pending on the

file of I Additional Senior Civil Judge, Bengaluru Rural

District, Bengaluru, for having rejected the plaint under

Order VII Rule 11 of Code of Civil Procedure (hereinafter

referred to as 'CPC').

2. Heard learned counsel for the appellant and

learned counsel for respondents.

3. The rank of the parties before the trial Court is

retained for the sake of convenience.

4. The case of the plaintiff is that she filed suit for

decree of partition and separate possession of her 1/4th

share in the suit schedule property and to declare the sale

deed dated 07.05.1990 executed in favour of defendant

No.4 by the father of the plaintiff and also the sale deed

dated 26.05.2003 executed by defendant No.4 in favour of

defendant No.5 as null and void and not binding on the

plaintiff in respect of the property bearing Sy.No.51/5,

New No.51/8 measuring 1 acre 4 guntas situated

Shanuboganahalli Village, Hesaraghatta Hobli, Bengaluru

North Taluk (hereinafter referred to as 'suit schedule

property').

5. After appearance of the defendants, written

statement was filed by defendant No.5. The defendant

No.5 also filed I.A. No.IV under Order VII Rule 11 of CPC

on the ground that the plaint does not disclose the cause

of action, the suit property was not properly valued, the

suit was barred by law and the plaintiff was not entitled for

any share in view of the amendment to Section 6 of Hindu

Succession Act as the sale deed was effected prior to

20.12.2004. The plaintiff filed the statement of objections

by denying the averments in the affidavit accompanying

the I.A. contending that she was the coparcener in respect

of ancestral property and there was no partition among the

family members and the father of the plaintiff was

misguided by defendant No.4, who committed fraud. In

fact, the suit schedule property had been mortgaged to

defendant No.4, but he played fraud and got executed the

sale deed. The execution of the sale deed came to the

knowledge of the plaintiff when she wanted to redeem the

mortgage after the death of her father. Therefore, it was

contended that the suit was within the limitation and not

barred by law. Hence, prayed for dismissing the

application.

6. After considering the arguments, the trial Court

allowed the application filed by defendant No.5 and

rejected the plaint by the impugned order, which is under

challenge.

7. Learned counsel for the appellant-plaintiff has

contended mainly on the ground that the cause of action is

the bundle of facts, which has to be proved by way of trial.

The suit is not barred by limitation in view of Section 17 of

Limitation Act. The averments made in the plaint clearly

reveal that the fraud has been committed by defendant

No.4 and hence, without conducting trial, the plaint cannot

be rejected and without considering the facts, the trial

Court has committed error in allowing the application. The

learned counsel has further contended that Article 109 of

the Limitation Act does not attract as the sale of the suit

schedule property was came to the knowledge of the

plaintiff after the death of her father, when she obtained

RTC and therefore, it is within 3 years from the date of

obtaining the RTC and therefore, Article 109 of Limitation

Act is not applicable. In support of his arguments, the

learned counsel for the appellant-plaintiff has relied upon

the judgment of this Court in the case of SHRI KHIRASA

AND OTHERS Vs. SMT. SHANTA ALIAS GEETA AND

OTHERS reported in ILR 2023 KAR 137.

8. Per contra, the learned Counsel for the

respondents has contended that the entire case of the

plaintiff is said to be based upon the fraud committed by

the 4th defendant, but absolutely, there is no mention in

the plaint about the fraud committed by the 4th defendant.

The impugned sale deed was executed on 07.05.1990 and

after 23 years, the suit came to be filed for declaring the

said sale deed as null and void. Even the plaintiff has not

stated the date of execution of sale deed by the father of

the plaintiff and in the year 1990, the date was mentioned

only in the prayer column. Therefore, the suit was

required to be filed within 12 years of the execution of the

sale deed by the plaintiff's father. Even the sale deed of

the 5th defendant is also pertaining to the year 2003. As

per Article 109 of Limitation Act, the suit would have to be

filed within 12 years, but the suit was filed beyond 23

years, thereby the suit is barred by limitation. Even on

perusal of the plaint averments, the plaintiff was not

arrested that the 4th defendant played fraud on her father,

but her father himself informed the family members that

he has mortgaged the property to the 4th defendant. He

further suppressed the fact of sale deed executed by him.

Therefore, the question of taking contention that the

property was mortgaged and fraud committed by the 4th

defendant, does not arise. The learned counsel for the

respondents further contended that the suit schedule

property was derived by the plaintiff's father long back, by

way of partition and prior to the commencement of the

Hindu Succession Act, both the sale deeds were executed.

The suit schedule property belongs to the plaintiff's father

and the plaintiff is not entitled for any share as per Section

6 of the Hindu Succession Act. Hence, prayed for

dismissing the appeal.

9. Having heard the arguments of learned counsel

for the parties, perused the records.

10. Admittedly, the trial Court passed the order

under Order VII Rule 11 of CPC by formulating the

following points for consideration :

(i) Whether the defendant No.5 proves that the plaint does not disclose the cause of action ?

(ii) Whether the defendant No.5 further proves that the suit of the plaintiff is not properly valued ?

(iii) Whether the defendant No.5 further proves that the suit was barred by law.

11. However, as per the application filed by the 5th

defendant, he has categorically taken the contention that

the father of the plaintiff executed the sale deed in favour

of the 4th defendant in the year 1990 and there was no

fraud played on the plaintiff's father and also that, as per

the Hindu Succession Act, the plaintiff was not entitled for

any share. Even otherwise, the Hindu Succession Act

came into force in the year 2004 and there is a cut-off

date given by the legislature that, if any alienation is

effected prior to 20.12.2004, it is not open for challenge by

the daughters seeking any share in the property.

12. Having heard the arguments of learned counsel

for the parties, the points that arise for consideration of

this Court are as follows:

(1) Whether the suit is barred by law as per Article 109 of Limitation Act ?

(2) Whether the cause of action arose for filing the suit ?

(3) Whether the plaintiff is having right for partition in the suit schedule property as claimed in the plaint in view of Section 6 of Hindu Succession Act?

(4) Whether the judgment of the trial Court calls for interference by this Court?

13. As regards to point No.1 framed by this Court,

on perusal of the plaint averments, it is well settled by the

Hon'ble Supreme Court in catena of decisions that, for the

purpose of rejecting the plaint, the Court is required to

verify the averments made in the plaint and not the

averments made in the written statement filed by the

defendants. It is also well settled that the cause of action

for filing the suit on the ground of partition and also on the

point of limitation, is a mixed question of law and facts.

The Hon'ble Supreme Court in a recent judgment in the

case of SHAKTI BHOG FOOD INDUSTRIES LIMITED

Vs. THE CENTRAL BANK OF INDIA AND OTHERS

reported in AIR 2020 SC 2721 has held that the cause of

action for filing the suit would consist the bundle of facts

and the factum of the suit being barred by the limitation

would be mixed question of facts and law and accordingly,

has held that the rejection of plaint is improper. By

keeping the principles laid down by the Hon'ble Supreme

Court and the judgment of the Division Bench of this

Court in RFA No.536/2013 dated 31.05.2021 in respect of

Section 6 of the Hindu Succession Amendment Act, 2005,

whether the plaintiff entitled for any share as a

coparcener.

14. On this background, now coming to the plaint

averments of the plaintiff, admittedly, the plaintiff has

stated in the plaint that suit schedule property was fallen

to the share of her father by way of unregistered partition

deed dated 07.09.1968 and she claims that she is having

1/4th share in the suit schedule property. It is further

admitted by the plaintiff that her father executed sale deed

in favour of the 4th defendant on 07.05.1990. It is further

contended that "her father informed that the property has

been mortgaged with 4th defendant. At para 9 of the

plaint, it is contended that her father pretended that he

mortgaged the property but he has executed the sale deed

in favour of the 4th defendant, but contended that without

the plaintiff's knowledge and the consent, the sale deed

took place." It is also an admitted fact that the plaintiff

also stated that the suit schedule property has been sold

by the 4th defendant to the 5th defendant on 26.05.2003.

15. Admittedly, the suit was filed in the year 2013.

As per Article 109 of Limitation Act, a suit is required to be

filed within 12 years from the date of the execution of sale

deed by the father of the plaintiff which was executed in

the year 1990. The plaintiff has contended that fraud has

been averred in the plaint and therefore, Section 17 of the

Limitation Act attracts but not Article 109 of the Limitation

Act. For convenience, Article 109 and Section 17 of the

Limitation Act, are referred as under:

Article 109 of the Limitation Act

109. By a Hindu Twelve years When the governed by alienee takes Mitakshara law to possession of set aside his father's the property.

       alienation             of
       ancestral property.



       Section 17 of the Limitation Act:

(1) Where, in the case of any suit or application for which a period of limitation is prescribed by this Act,--

(a) the suit or application is based upon the fraud of the defendant or respondent or his agent; or

(b) the knowledge of the right or title on which a suit or application is founded is concealed by the fraud of any such person as aforesaid; or

(d) where any document necessary to establish the right of the plaintiff or applicant has been fraudulently concealed from him, the period of limitation shall not begin to run until the plaintiff or applicant has discovered the fraud or the mistake or could, with reasonable diligence, have discovered it; or in the case of a concealed document, until the plaintiff or the applicant first had the means of producing the concealed document or compelling its production:

Provided that nothing in this section shall enable any suit to be instituted or application to be made to recover or enforce any charge against, or set aside any transaction affecting, any property which--

(i) in the case of fraud, has been purchased for valuable consideration by a person who was not a party to the fraud and did not at the time of the purchase

know, or have reason to believe, that any fraud had been committed, or

(ii) in the case of mistake, has been purchased for valuable consideration subsequently to the transaction in which the mistake was made, by a person who did not know, or have reason to believe, that the mistake had been made, or

(iii) in the case of a concealed document, has been purchased for valuable consideration by a person who was not a party to the concealment and, did not at the time of purchase know, or have reason to believe, that the document had been concealed.

(2) Where a judgment-debtor has, by fraud or force, prevented the execution of a decree or order within the period of limitation, the court may, on the application of the judgment-creditor made after the expiry of the said period extend the period for execution of the decree or order:

Provided that such application is made within one year from the date of the discovery of the fraud or the cessation of force, as the case may be."

16. On perusal of Section 17 of the Limitation Act,

when a fraud has been averred in the plaint and from the

date of knowledge of fraud that was committed, the suit

can be filed. However, as per Rule 109 of the Limitation

Act, the suit is required to be filed within 12 years from the

date the plaintiffs' father executed the sale deed in favour

of the 4th defendant. Admittedly, the plaint averments do

not reveal any fraud played by the 4th defendant on her

father and on the other hand, at para 9 of the plaint, the

plaintiff has stated that "her father Chikkamunihuchchaiah

had misrepresented the fact though he alienated the suit

schedule property in favour of the 4th defendant, he

pretended that he mortgaged the property", which clearly

reveals that there is no fraud alleged to be played by the

4th defendant and on the other hand, it may be fraud

played by plaintiff's father by selling the property and he

has intimated that he has only mortgaged the property.

Therefore, absolutely, the suit is barred by limitation which

falls under Article 109 of the Limitation Act as the suit is

barred by limitation, as per Order VII Rule 11(d) of CPC.

17. Another contention taken by the defendants is

that the suit schedule property was the self-acquired

property of the father of the plaintiff and the sale was

effected prior to 20.12.2004 and therefore, it is not open

for the plaintiff to seek any partition in the share. In

support of his contention, the learned counsel for

respondents-defendants has relied upon the judgment of

the Division Bench of this Court in R.F.A. No.536/2013

(partition) dated 31.05.2021, wherein at paragraph 10 of

the judgment, the division bench has held as under:

10. In the backdrop of aforesaid well settled legal principles, we may advert to the facts of the case on hand. As per averments made in the plaint itself, the land in question was the ancestral property of Javeregowda and the same has devolved on defendants 1 to 3 by successorship. The aforesaid property has been sold by a registered sale deed dated

08.07.1996 by defendants 1 to 3 to defendant No.4 for a consideration of Rs.2,75,000/-. The copy of the sale deed has been enclosed along with the plaint which is evident from the record. It is pertinent to note that Supreme Court in VINEETA SHARMA supra has held that the rights can be claimed by the daughters born earlier with effect from 09.09.2005 as provided in Section 6(1) of the Hindu Succession Act as to the disposition, alienation, partition or testamentary disposition which has taken place before 20.12.2004. In the instant case, the alienation has taken place on 08.07.1996 and the claim of daughters of defendants 1 to 3 viz., plaintiffs 1 to 7, 10 and 11 / appellants 1 to 7, 10 and 11 is barred by proviso to Section 6(1) of the Hindu Succession Act as amended by Hindu Succession (Amendment) Act No.39 of 2005 with effect from 09.09.2005. Thus claim of aforesaid plaintiffs is barred by law. It is pertinent to note that plaintiffs 8 and 9 / appellants 8 and 9 were minors on the date of execution of the sale deed and on attaining majority they have not filed the suit within a period of three years.

18. Admittedly, in this case, the plaintiff was major

and married person, when father of the plaintiff executed

the sale deed in the year 1990, the suit came to be filed in

the year 2013 after lapse of 23 years. In view of the

amendment to the Section 6 of Hindu Succession Act,

which came into effect from 09.09.2005 and cut off date to

prescribed that, if the alienation or partition or

testamentary dispossession, which has taken place before

20.12.2004, the daughters are not entitled for claiming

any share in the property of her father. Therefore, on this

ground, the cause of action does not arise for filing the suit

and demanding any partition in the suit schedule property,

which was alienated 23 years back from the date of filing

the suit and also the plaintiff cannot seek any partition in

the suit schedule property. The Hon'ble Supreme Court, in

a judgment in the case of UTTAM VS. SAUBHAG SINGH

AND OTHERS, delivered in [Criminal Appeal

No.2630/2016 arising out of SLP (Civil) No.6036/2014], at

paragraphs 20 and 21, has held as under:

"20. Some other judgments were cited before us for the proposition that joint family property continues as such even with a sole surviving coparcener, and if a son is born to such coparcener thereafter, the joint family property continues as such, there being no hiatus merely by virtue of the fact there is a sole surviving coparcener. Dharma Shamrao Agalawe v. Pandurang Miragu Agalawe, (1988) 2 SCC 126 , Sheela Devi v. Lal Chand [Sheela Devi v. Lal Chand, (2006) 8 SCC 581] and Rohit Chauhan v. Surinder Singh (2013) 9 SCC 419 were cited for this purpose. None of these judgments would take the appellant any further in view of the fact that in none of them is there any consideration of the effect of Sections 4, 8 and 19 of the Hindu Succession Act. The law, therefore, insofar as it applies to joint family property governed by the Mitakshara School, prior to the amendment of 2005, could therefore be summarised as follows:

(i) When a male Hindu dies after the commencement of the Hindu Succession Act, 1956, having at the time of his death an interest in Mitakshara coparcenary property, his interest in the property will devolve by survivorship upon the surviving members of the coparcenary (vide Section 6).

(ii) To proposition (i), an exception is contained in Section 30 Explanation of the Act, making it clear that notwithstanding anything contained in the Act, the interest of a male Hindu in Mitakshara coparcenary property is property that can be disposed of by him by will or other testamentary disposition.

(iii) A second exception engrafted on proposition (i) is contained in the proviso to Section 6, which states that if such a male Hindu had died leaving behind a female relative specified in Class I of the Schedule or a male relative specified in that class who claims through such female relative surviving him, then the interest of the deceased in the coparcenary property would devolve by testamentary or intestate succession, and not by survivorship.

(iv) In order to determine the share of the Hindu male coparcener who is governed by Section 6 proviso, a partition is effected by operation of law immediately before his death. In this partition, all the coparceners and the male Hindu's widow get a share in the joint family property.

(v) On the application of Section 8 of the Act, either by reason of the death of a male Hindu leaving self-acquired property or by the application of Section 6 proviso, such property would devolve only by intestacy and not survivorship.

(vi) On a conjoint reading of Sections 4, 8 and 19 of the Act, after joint family property has been distributed in accordance with Section 8 on principles of intestacy, the joint family property ceases to be joint family property in the hands of the various persons who have succeeded to it as they hold the property as tenants-in-common and not as joint tenants.

21. Applying the law to the facts of this case, it is clear that on the death of Jagannath Singh in 1973, the joint family property which was ancestral property in the hands of Jagannath Singh and the other coparceners, devolved by succession under Section 8 of the Act. This being the case, the ancestral property ceased to be joint family property on the date of death of Jagannath Singh, and the other coparceners and his widow held the property as tenants-in- common and not as joint tenants. This being the case, on the date of the birth of the appellant in 1977 the said ancestral property, not being joint family property, the suit for partition of such property would

not be maintainable. The appeal is consequently dismissed with no order as to costs."

19. In view of the judgment of the Hon'ble

Supreme Court and that the father of the plaintiff has

already sold the property during his life time, prior to the

commencement of Section 6 of Hindu Succession Act, the

plaintiff cannot claim any share in the suit schedule

property and thereby, no cause of action arose for filing

the suit.

20. As regards to point No.2 formulated by the trial

Court, the valuation has been made by the plaintiff for the

purpose of court fee and the court fee paid by the plaintiff

is sufficient as the suit was valued under Section 35(2) of