Sri C N Chandrashekar vs Smt Shivamma
2023 Latest Caselaw 6014 Kant

                                      R.F.A No. 1711/2011

                           1


       IN THE HIGH COURT OF KARNATAKA AT BENGALURU

         DATED THIS THE 29TH DAY OF AUGUST, 2023

                        PRESENT

        THE HON'BLE MR. JUSTICE P.S. DINESH KUMAR

                          AND

 THE HON'BLE MR. JUSTICE T.G. SHIVASHANKARE GOWDA

                 R.F.A NO. 1711 OF 2011

BETWEEN:

1.      SRI. C.N. CHANDRASHEKAR
        S/O LATE SRI. SUBBA RAO
        SINCE DEAD BY LRs.

1(A)    NAGAPRASAD. C
        S/O LATE C.S. CHANDRASHEKAR
        AGED ABOUT 48 YEARS
        DOOR NO. 143/1, 13TH CROSS
        10TH MAIN, SARASWATHIPURAM
        MYSORE-570 009.

1(B)    NAGARAJ. C
        S/O LATE C.S. CHANDRASHEKAR
        AGED ABOUT 44 YEARS
        DOOR NO. 143/1, 13TH CROSS
        10TH MAIN, SARASWATHIPURAM
        MYSORE-570 009.                      ...APPELLANTS

(BY SHRI. AJAY GOVINDARAJ, ADV.
[THROUGH VIDEO CONFERENCE]
CAUSE TITLE AMENDED VIDE COURT
ORDER DATED 04.02.2021)

AND:

1.      SMT. SHIVAMMA
        D/O LATE SRI. PUTTASWAMAIAH
        AGED ABOUT 63 YEARS
        R/AT DOOR NO. 184
        POURAKARMIKARA COLONY
                                   R.F.A No. 1711/2011

                          2


       JYOTHINAGAR

       GAYATHRIPURAM II STAGE
       MYSORE-570 019.

2.     SMT. GOWRAMMA
       W/O SRI CHIKKANNA
       AGED ABOUT 61 YEARS
       R/AT IMMAVU VILLAGE
       CHATHRA HOBLI
       NANJANGUD TALUK-571 302.

2(A)   CHIKKANNA
       S/O NOT KNOWN
       AGED ABOUT 75 YEARS
       R/AT IMMAVU VILLAGE
       CHATRA HOBLI
       NANJANGUD TALUK-571 302.

2(B)   MAHADEVAMMA
       D/O CHIKKANNA
       AGED ABOUT 44 YEARS
       R/AT IMMAVU VILLAGE
       CHATRA HOBLI
       NANJANGUD TALUK-571 302.

2(C)   CHELUVARAJU
       S/O CHIKKANNA
       AGED ABOUT 41 YEARS
       R/AT IMMAVU VILLAGE
       CHATRA HOBLI
       NANJANGUD TALUK-571 302.

2(D) SUSHEELA
     D/O CHIKKANNA
     AGED ABOUT 39 YEARS
     R/AT IMMAVU VILLAGE
     CHATRA HOBLI
     NANJANGUD TALUK-571 302.

2(E)   PARVATHI
       D/O CHIKKANNA
       AGED ABOUT 37 YEARS
       R/AT IMMAVU VILLAGE
       CHATRA HOBLI
       NANJANGUD TALUK-571 302.
                                   R.F.A No. 1711/2011

                            3


3.    SRI P. DODDAIAH
      S/O LATE PUTTASWAMAMAIH
      AGED ABOUT 67 YEARS

4.    SMT. BHAGYAMMA
      D/O P. DODDAIAH
      AGED ABOUT 42 YEARS

5.    SRI. D. NAGARJ
      S/O P. DODDAIAH
      AGED ABOUT 40 YEARS

6.    SRI. D. MANJUNATH
      S/O P. DODDAIAH
      AGED ABOUT 38 YEARS

7.    SRI. D. SHANKAR
      S/O P. DODDAIAH
      AGED ABOUT 36 YEARS

8.    SMT. PUTTAJAVARAMMA
      W/O LATE KEMPAIAH
      AGED ABOUT 52 YEARS

9.    SRI. K. SHIVALINGU
      S/O LATE KEMPAIAH
      AGED ABOUT 32 YEARS

10.   VIJAYALAKSHMI
      D/O LATE KEMPAIAH
      AGED ABOUT 32 YEARS

11.   INDIRAMMA
      D/O LATE KEMPAIAH
      AGED ABOUT 31 YEARS

      RESPONDENTS NO. 3 to 11
      ARE RESIDING AT NO. 24
      3RD CROSS, GAYATHRIPURAM
      FIRST STAGE, NAZARBAD
      MYSORE-570 010.                  ...RESPONDENTS

(BY SHRI. A.R. MAHESH, ADV. FOR
    R1 & R2(A TO E)
    R3 TO R11 ARE SERVED)
                                            R.F.A No. 1711/2011

                                4


      THIS RFA IS FILED UNDER ORDER 41 RULES 1 AND 2
READ WITH SECTION 96 OF CPC., AGAINST THE JUDGMENT
AND    DECREE     DATED:    15.06.2011  PASSED    IN
O.S.No.409/2009 ON THE FILE OF THE IV ADDL. SENIOR
CIVIL JUDGE, MYSORE, DECREEING THE SUIT FOR
PARTITION AND SEPARATE POSSESSION.

     THIS RFA, HAVING BEEN HEARD AND RESERVED FOR
JUDGMENT    ON    08.06.2023   COMING    ON   FOR
PRONOUNCEMENT      OF    JUDGMENT,    THIS   DAY,
T.G.SHIVASHANKARE GOWDA J., PRONOUNCED THE
FOLLOWING:-

                         JUDGMENT

In this appeal, the 10th defendant has

challenged the judgment and decree dated

15.06.2011 passed in O.S.No.409/2009 on the file

of the IV Additional Senior Civil Judge, Mysore (for

brevity 'the Trial Court') in decreeing the suit of the

plaintiffs for partition granting 2/4th share in

Sy.No.91/2 of Gohalli village, Yelwala Hobli, Mysore

Taluk, measuring 3 acres 7 guntas (for short 'the

suit schedule property').

2. For the sake of convenience, parties shall

be referred as per their status before the Trial

Court.

R.F.A No. 1711/2011

3. Brief facts of plaintiffs' case are, one

Puttaswamaiah is the propositus. Plaintiffs,

defendant No.1 and husband of 6th defendant by

name Kempaiah and Ningamma are his children.

Defendants No.2 to 5 are the children of defendant

No.1. Defendant Nos.7, 8 and 9 are the children of

Kempaiah and defendant No.6. Ningamma died

issueless. The suit schedule property is the

ancestral joint family property of the plaintiffs and

defendants No.1 to 9. They are in joint possession

and enjoyment of the same and the children of

Puttaswamaiah are having equal share. After the

death of Puttaswamaiah, khatha has been changed

in the name of his wife Puttamma. Puttamma died

on 13.07.1993. After the death of Puttamma,

defendants No.1 to 9 are misusing the joint family

income. The plaintiffs have demanded partition of

their share, the defendants have postponed it and

ultimately in the third week of June 2009,

defendant Nos.1 to 9 colluding with each other sold R.F.A No. 1711/2011

the property in favour of third party. On obtaining

the copy of the sale deed on 04.07.2009, they

came to know that defendant Nos.1 and 6 after

changing the khatha in their name have sold the

property in favour of defendant No.10 behind the

back of the plaintiffs on 08.08.2005. Hence, the

plaintiffs have filed the instant suit for partition and

separate possession seeking their share.

4. The defendant No.1 has opposed the suit by

filing the written statement admitting interalia that

suit property in his ancestral joint family property,

change of khatha and alienation in favour of

defendant No.10 is within the knowledge of the

plaintiffs; there is no cause of action for the suit

and sought for dismissal of the suit. Defendant

Nos.2 to 9 by filing a memo have adopted the

written statement filed by the defendant No.1.

5. Defendant No.10 is the purchaser of the

property, who has filed his written statement R.F.A No. 1711/2011

contending interalia that defendant Nos.1 to 9 have

got other ancestral properties, if the plaintiffs have

to claim any share, they have to go against the said

properties. The plaintiffs are making claim under

Section 6A of the Hindu Succession Act. If they

have to exercise any right, it is only prior to

partition of the joint family properties. This

defendant is a bonafide purchaser of the property

and sale in his favour is binding on the plaintiffs.

The suit is filed by the plaintiffs in collusion with

defendant Nos.1 to 9 to cause hardship and loss to

this defendant. The suit is barred by time, there is

no cause of action and seeks for dismissal of the

suit.

6. On the basis of the above pleadings, the

Trial Court has framed the following issues:

1) Whether plaintiffs prove that suit schedule properties are ancestral and joint family properties?

2) Whether the plaintiffs prove that the sale deed dated 8.8.2005 executed by defendant No.1 to R.F.A No. 1711/2011

9 in favour of defendant No.10 is not binding upon them?

3) Whether the defendant No.10 prove that he is the bonafide purchaser of the suit schedule property?

4) Whether the defendant No.10 proves that this suit is barred by limitation?

5) Whether the plaintiffs are entitle for 2/4th share in the suit schedule property?

6) What order or decree?

7. Before the Trial Court, parties have led the

evidence. On behalf of the plaintiffs, first plaintiff

was examined as PW-1 and relied upon 11

documents as per Exs.P1 to P11. On behalf of the

defendants, defendant No.10 was examined as DW-

1 and 5 documents were marked as per Exs.D1 to

D5.

8. The Trial Court after considering the

pleadings, evidence and hearing the arguments of

both sides recorded finding on issue Nos.1, 2 and 5

in favour of the plaintiffs, issue Nos.3 and 4 against

defendant No.10 and decreed the suit granting 2/4th R.F.A No. 1711/2011

share in the suit schedule property in favour of the

plaintiffs. Aggrieved by the same, defendant No.10

has filed this appeal on various grounds.

9. We have heard the arguments of Sri.Ajay

Govindaraj, learned Counsel for the

appellant/defendant No.10 and Sri.A.R.Mahesh,

learned Counsel for respondent Nos.1 and

2/plaintiffs.

10. Following are the contentions raised by

the learned counsel for defendant No.10:

(i) The propositus Puttaswamaiah was also the

owner of house and other moveable and immovable

properties other than the properties sold in favour

of the defendant No.10;

(ii) Suit is one for partial partition and same is

not maintainable;

(iii) Alienation in favour of defendant No.10 by

defendant Nos.1 to 9 under Ex.D1 dated

08.08.2005 is known to plaintiffs.

R.F.A No. 1711/2011

(iv) Both the plaintiffs were married prior to

1994 and they are living with their respective

husband and children; they have no right to seek

partition.

(v) Father of the plaintiffs died in the year

1988 and mother died in the year 1993.

Succession opened for the plaintiffs in the year

1988 under Section 6 of the Hindu Succession Act.

(vi) The Trial Court has committed an error in

applying Section 6A of the Hindu Succession

(Amendment) Act, 2005 (39 of 2005) and

committed an error in awarding equal share to the

plaintiffs.

10.1. To buttress his arguments, learned

counsel has relied upon the judgment of this Court

in Sri Tukaram -vs- Sri Sambhaji and Others -

ILR 1998 KAR 681 and the judgment of the

Hon'ble Apex Court in B.R.Patil -vs- Tulsa R.F.A No. 1711/2011

Y.Sawkar and Others - 2022 SCC OnLine SC

240.

11. Per contra, learned counsel for the

plaintiffs contended that in the written statement,

defendant No.10 has not taken any contention that

the suit is barred for partial partition, such a ground

is raised first time in the appeal on the basis of

some admissions elicited in the witness box of the

plaintiffs that there is ancestral house property

available in the village. Unless there is pleading

and evidence to that effect, defendant No.10 cannot

be permitted to take such a plea for the first time in

the appeal. It is further contended that the suit

schedule property is the sole ancestral joint family

property; after the death of their father, mother

continued to be the head of the family and after her

death in the year 1993, defendant Nos.1 to 9 and

plaintiffs continued in the joint family and thereby

the plaintiffs are entitled to equal share in the suit R.F.A No. 1711/2011

schedule properties on par with the male members

of the family. The Trial Court has rightly

appreciated the pleadings, evidence and recorded

the finding that alienation in favour of defendant

No.10 is not for the joint family necessity nor the

interest of the plaintiffs with their consent and

therefore, alienation is not binding on them and the

Trial Court is right in decreeing the suit and he

supported the impugned judgment.

12. We have given our anxious consideration

to the arguments addressed on behalf of both

parties and perused the records.

13. In the light of the rival contentions urged

on both parties, the points that arise for our

consideration are:

(i) Whether the plaintiffs are entitled to share in the suit schedule property?

R.F.A No. 1711/2011

(ii) Whether the suit is bad for partial partition?

(iii) Whether the impugned judgment calls for our interference?

Reg. Point No.1:

14. The suit schedule property being an

agricultural land is the ancestral property of

Puttaswamaiah, the father of plaintiffs. After his

death, the property vested in the joint family.

Defendants No.1 to 9 have not denied this aspect in

their written statement, so also, the defendant

No.10. The defendants have not raised any plea

that after the death of Puttaswamaiah, there was a

partition in the joint family. No doubt, the plaintiffs

are the married sisters of defendant No.1 and

Kempaiah. The suit schedule properties continued

to be the joint family properties till its alienation,

hence, the plaintiffs are having right in the said

properties. The first contention of the learned R.F.A No. 1711/2011

counsel for defendant No.10 that Section 6A of the

Hindu Succession Act is not applicable as the

succession opened in the year 1988 soon after the

death of Puttaswamaiah, holds no water as even

after the death of Puttaswamaiah, his wife

Puttamma continued in the joint family as head of

the family and there was no partition in the family

at all. If that is so, by virtue of amendment to the

Hindu Succession Act, the female members became

the co-parceners in a joint family properties.

15. In Vineeta Sharma -vs- Rakesh

Sharma and others1 those alienations are saved if

there is prior registered partition or oral partition

which has been acted upon between the members

of the joint family. In this case, there is no such

pleading or evidence. In view of the same, we do

not find any force in the said argument. The

plaintiffs being co-parceners are entitled to equal

AIR 2020 SC 3717 R.F.A No. 1711/2011

share on par with the male members. Hence, we

answer point No.1 in favour of the plaintiffs.

Reg. Point No.2:

16. As regards the contention of partial

partition in Tukaram's case (supra), this Court at

para-19 has held as follows:

"19. It has been contended by the learned Counsel for the appellants that the finding of the I Appellate Court to the effect that the suit by one of the coparceners for partition with respect to one of the items of the Joint Hindu Family property is maintainable in the special circumstances is not proper. During the course of the order, the I Appellate Court has observed that Section 261 of Mulla's Hindu Law, 15th Edn., at pages 351 and 352 makes it clear that non-alienating coparceners are entitled in Bombay, Madras and Allahabad to sue the purchaser for partition of the alienated property without bringing a suit for a general partition. In the present case on hand all the non- alienating coparceners have not filed the suit. The mere fact that the other non-alienating coparceners viz, defendants 7 to 9 did not join the plaintiff in filing the suit is not material. The right of non- alienating coparcener in Bombay area does not depend upon the whims and fancies of remaining non-alienating coparceners who for reasons best known to them, may not join the plaintiff in filing suit. Patna and Andhra Pradesh High Courts held that one of the several non-alienating coparceners cannot sue the purchaser for his own share of the alienated property. It has been observed by the I Appellate Court the law applicable in Bombay area does not prohibit the suit by one of the several non-

alienating coparceners. The I Appellate Court considered the ruling in Khemchand Shankar Choud-hary and Another v Vishnu Hari Patil and R.F.A No. 1711/2011

Others AIR 1983 SC 124, wherein it has been held that a purchaser can be impleaded even when decree for partition of agricultural lands is pending before the Collector for effecting partition. But it is not the case in the present suit. In Janardhan Jog v Srikrishna and Others ILR 1989 KAR 1895, it is held that a partition suit should comprise of all the available properties, as far as possible. That decision has been distinguished by the I Appellate Court as that was not a case of non-alienating coparcener filing a suit for partition of alienated property. The view that has been taken by the I Appellate Court cannot be stated to be a correct one in the circumstances of the case. It is to be seen that the plaintiff, defendant 1 and defendants 7 to 15 are the members of Joint Hindu Family. There is no partition by metes and bounds of the family properties. The present suit is filed in respect of the suit land only. There are other lands in other villages and also other house properties which have not been included in the suit which are admittedly the joint family properties. It has been observed in Mulla's Hindu Law, 13th Edn. regarding the rights of purchaser of coparcener's interest. It has been stated that the non-alienating coparceners are entitled in Bombay, Madras and Allahabad to sue the purchaser for partition of the alienated property without bringing a suit for general partition. It is to be noted that in Vemavarapadur's case AIR 1984 AP 84, it has been held that normally a suit instituted for partition should be one for partition of the entire joint family properties and all the interested co-sharers should be impleaded. The suit for partition of specified items can only be an exception. In the present case on hand, the 1st defendant has alienated the suit land in favour of defendants 2 to 6. The 1st defendant is the member of the Joint Hindu Family, As already stated that the family has got other several lands and house properties which are the joint family properties. It has been contended by the learned Counsel for the alienees while allotting the share to defendant 1 in the family properties equitable rights of purchasers on partition has to be considered and those rights can be considered only when all the joint family properties are included in the suit for partition.

R.F.A No. 1711/2011

Otherwise, it would be difficult to apply principles of equitable partition. The inclusion of all the joint family properties in the instant suit for partition was necessary and without bringing all the joint family properties into the hotchpot, the suit for partition of the shares of the members of the joint family in one property which amounts to partial partition is not maintainable. This contention in the circumstances of the case, has force and the same has to be upheld. The reason being, the present suit has been filed by one of the non-alienating coparceners of the joint family property. The suit has been filed by the non-alienating coparcener with respect to the only property which has been alienated. This is not a suit for general partition. The contention of the alienees is to the effect that if the share of the plaintiff to be worked out if all the joint family properties had been included in the schedule then, at a partition, the share of the 1st defendant would have been worked out in order to give equitable relief to the alienees also as they have purchased the property by the 1st defendant. In that view of the matter, the present suit filed by the plaintiff without including all the joint family properties and which prejudices the rights of the alienees who have also been impleaded as parties to the suit, in the circumstances of the case, has to be held that the suit filed by the plaintiff for partial partition without including all the joint family properties is bad in law. The finding given by the Trial Court with respect to the sixth issue has to be maintained and the finding given by the I Appellate Court that the suit is maintainable without including all the joint family properties cannot be held to be proper in the circumstances of the case. Hence, the finding of the I Appellate Court holding that the suit of the plaintiff for partial partition is maintainable should be set aside and the finding of the Trial Court with respect to the sixth issue that the suit is bad for non-joinder of necessary properties to be included in the suit has to be upheld."

R.F.A No. 1711/2011

17. In B.R.Patil's case (supra), the Hon'ble

Apex Court at para-33 of the judgment held as

follows:

"33. The next question which is raised relates to the non-inclusion of the properties standing in the name of second defendant that is item Nos.2 and 3 in the schedule to the written statement of the appellant. As far as this contention is concerned, again we do not think that there is merit in the case of the appellant. Admittedly, the second defendant was educated and became an Engineer. He was employed. What really has weighed with the Trial Court is the fact that in view of departure from his obligations under a bond, a suit was filed and decreed against the second defendant who discharged his liability under D-75 dated 17.08.1982 in a sum of Rs.11,330/-. We must notice that item No.2 scheduled in the written statement was purchased in the year 1976. The property consists of a plot and it was allotted to the second defendant for a total sum of Rs.9,800/- in the year 1976. D-75 is in the year 1982. Defendant No.2 has given evidence about the fact that the amounts have been paid by him from his own resources by virtue of his employment in India. It is not as if amount was paid in lumpsum. As regards item No.3 in the written statement, it is a flat purchased in the year 1998. This is much after D-75 which is dated 17.08.1982. The 2nd defendant has deposed of working abroad. The 2nd defendant has spoken about item No.3 being purchased for a sum of Rs.16 lakhs. Having regard to his qualifications, we do not think that the appellant can fault the reversal of the finding though it may be true that the High Court has not dealt with it in a more elaborate manner. In this regard, we may notice that the Trial Court has proceeded on the basis that since Shri. R.M. Patil was earning as a successful lawyer and he became a successful Politician as well, the second defendant being a coparcener, item 2 and 3 should also be included.

R.F.A No. 1711/2011

Even proceeding on the basis that there was a joint family consisting of Shri. R. M. Patil and his sons, it is not the law that a co-owner cannot acquire his own independent or separate properties. In such circumstances, we find there is no merit in this argument as well."

18. In order to adopt these principles, the

basic foundation that is required is the pleadings.

The defendant Nos.1 to 9 did not raise any issue

regarding partial partition nor the alienation was for

legal necessity. In the written statement, defendant

No.10 has not explained what are all the other

properties those are available to the joint family,

except stating that the alienation is binding on the

plaintiffs and it is for the joint family necessity. We

have carefully perused the evidence let in on behalf

of the defendants and also evidence of the plaintiff

No.1. The cross-examination of PW-1 does not

point out anything to suggest that the plaintiffs

were parties to the alienation in favour of defendant

No.10 nor the legal necessity, if any, is explained.

R.F.A No. 1711/2011

Hence, we are not persuaded to accept the

contention of the defendant in this regard.

19. In the course of cross-examination of PW-

1, it is elicited that there is a house property

available in the village belonging to the father of

plaintiffs. The details of the house property is not

made known nor defendant No.10 made any

application to include the said property. Mere

reliance on the statement of the first plaintiff in the

witness box does not establish that substantial

property has been left out intentionally.

19.1. In his cross-examination, defendant

No.10 makes a clear statement that he is not aware

of the fact that house property situated at Gohalli

village is either ancestral or self-acquired property

of defendant No.1. He also admits this house might

have acquired by defendant No.1 later. The details

of the said house property is not available before

the Court. Unless defendant No.10 is able to R.F.A No. 1711/2011

explain as to what is that property in the village,

such contention holds no water. Though plaintiff

No.1 has admitted in the cross-examination that in

house property belonging to her father existed at

Gohalli, she has not sought for any share. She has

given a specific reason that since the said property

is situated in the village, it has no value. She is not

aware whether it belonged to her grand father or

her father, though she resided in that house during

her childhood. This makes it very clear that the

ownership of the house property is not clear and

that it had no value being in village and for this

reason, she has not sought for partition in it. The

settled principles referred to supra is applicable to

those case where there are other family properties,

which are not included in the suit. In this case, the

identity and ownership of the so-called house

property is neither known to the plaintiff nor to

defendant No.10. Therefore, the said principles are

not helpful to the defendant No.10 to substantiate R.F.A No. 1711/2011

that suit is bad for non-joinder of other family

properties.

20. Learned counsel for the defendant No.10

brought to our notice that during the pendency of

the suit, on 29.04.2015, the plaintiff No.1 has

executed a release deed in favour of defendant

No.10 and copy of the same is made available

before this court. Thus, he gets right over the 1st

plaintiff's share. The only issue remains is in

respect of 2nd plaintiff. As observed above, the suit

is not one for partial partition. Hence, we answer

this point in favour of the plaintiffs.

Reg. Point No.3:

21. We have carefully perused the impugned

judgment. The Trial Court has considered the

pleading of both parties, so also the supporting

evidence. On the date of alienation in the year

2005, there was no division of the property either

registered or oral being acted upon. Plaintiffs are R.F.A No. 1711/2011

not parties to the sale in favour of defendant No.10.

The evidence does not explain the legal necessity

for defendant Nos.1 to 9 for such alienation.

Defendant No.10 is unable to explain the manner in

which the alienation in his favour is binding on the

plaintiffs. The Trial Court has rightly recorded that

there is no other family property available to hold

that the suit is bad for non-joinder of other

properties and has rightly decreed the suit applying

Section 6 of the Hindu Succession Act, granting

equal share in favour of plaintiffs along with their

two brothers. Hence, we do not find any error in

the finding recorded by the Trial Court, which calls

for interference by this Court. Accordingly, point

No.3 is answered.

22. In the light of above discussion while

answering point Nos.1 to 3, we are of the

considered opinion that the appeal is devoid of

merits and in the result, the following:

R.F.A No. 1711/2011

ORDER

i) The appeal is dismissed.

ii) The impugned judgment is confirmed.

Parties to bear their own cost.

Sd/-

JUDGE

Sd/-

JUDGE

KNM CT:HS