Karnataka High Court

Dundapaa S/O Hanamant Teggi vs Hanamant S/O Dundappa Teggi on 8 December, 2023

Author: H.P.Sandesh

Bench: H.P.Sandesh

                                                     1             RFA No. 100311 OF 2017




                          IN THE HIGH COURT OF KARNATAKA, DHARWAD BENCH
                                DATED THIS THE 08TH DAY OF DECEMBER, 2023
                                                 PRESENT
                                  THE HON'BLE MR JUSTICE H.P.SANDESH
                                                    AND
                           THE HON'BLE MR JUSTICE RAMACHANDRA D. HUDDAR
                                 REGULAR FIRST APPEAL NO. 100311 OF 2017


                   BETWEEN:

                   1.   DUNDAPPA S/O. HANAMANT TEGGI,
                        AGE: 29 YEARS, OCC: AGRICULTURE,
                        R/O: HUNACHIKATTI -587402
                        TAL: JAMAKHANDI, DIST: BAGALKOT.

                   2.   RAVI S/O. HANAMANT TEGGI,
                        AGE: 27 YEARS, OCC: AGRICULTURE,
YASHAVANT               R/O: HUNACHIKATTI -587402
NARAYANKAR
                        TAL: JAMAKHANDI, DIST: BAGALKOT.

                   3.   SMT. RENUKA W/O. ANAND @ ANNAPPA MALALI,
Digitally signed
by YASHAVANT
                        AGE: 32 YEARS, OCC: HOUSEHOLD WORK,
NARAYANKAR              R/O: AMBALZARI-587032,
Date:
2023.12.11              TAL: MUDHOL, DIST: BAGALKOT.
11:41:04
+0530
                   4.   SMT. MAHADEVI W/O. HANAMANT TEGGI,
                        AGE: 58 YEARS, OCC: AGRICULTURE,
                        R/O: HUNACHIKATTI - 587402,
                        TAL: JAMKHANDI, DIST: BAGALKOT.
                                                                            ...APPELLANTS
                   (BY SRI. RAVI S. BALIKAI, ADVOCATE)

                   AND:
                   1.     HANAMANT S/O. DUNDAPPA TEGGI,
                          AGE: 68 YEARS, OCC; AGRICULTURE,
                          R/O: HUNACHIKATTI - 587402,
                          TAL: JAMKHANDI, DIST: BAGALKOT.
                   2.     SANKAPPA S/O. BALAPPA KUMBAR,
                          AGE: 73 YEARS, OCC: AGRICULTURE,
                          R/O: CHINAGUNDI-587302,
                          TAL: JAMAKHANDI, DIST: BAGALKOT.
                          SINCE DECEASED BY HIS LRS,
                                  2             RFA No. 100311 OF 2017




2.(A)   SMT. LAKKAWWA W/O. SANKAPPA KUMBAR,
        AGE: 66 YEARS, OCC: HOUSEHOLD WORK,
        R/O: CHINAGUNDI - 587301,
        TAL: JAMAKHANDI, DIST: BAGALKOT.

2.(B)   SMT. NIRMALA W/O. SOMANATH KUMBAR,
        AGE: 42 YEARS, OCC: HOUSEHOLD WORK,
        R/O: CHINAGUNDI - 587301,
        TAL: JAMAKHANDI, DIST: BAGALKOT.

2.(C)   MALAPPA S/O. SANKAPPA KUMBAR,
        AGE: 44 YEARS, OCC: HOUSEHOLD WORK,
        R/O: CHINAGUNDI - 587301,
        TAL: JAMAKHANDI, DIST: BAGALKOT.

2.(D) SMT. YAMANAWWA W/O. GIRIMALLAPPA KUMBAR,
      AGE: 39 YEARS, OCC: HOUSEHOLD WORK,
      R/O: MUNDANUR -587301,
      TAL: BILAGI, DIST: BAGALKOT.

2.(E)   ASHOK S/O. SANKAPPA KUMBAR,
        AGE: 36 YEARS, OCC: HOUSEHOLD WORK,
        R/O: CHINAGUNDI - 587301,
        TAL: JAMAKHANDI, DIST: BAGALKOT.
                                                     ...RESPONDENTS

(BY SMT. DEEPA P. DODATTI, ADVOCATE FOR SRI. M.T. BANGI FOR R2(C);
NOTICE SERVED TO R1, R2(A,B,D,E) ARE SERVED)

        THIS REGULAR FIRST APPEAL FILED UNDER SECTION 96 OF THE
CODE OF CIVIL PROCEDURE, 1908, PRAYING TO SET ASIDE THE JUDGMENT
AND DECREE DATED 28.06.2017, PASSED IN O.S. NO.85/2009, ON THE FILE
OF THE PRL. SENIOR CIVIL JUDGE, JAMKHANDI, IN SO FAR AS SUIT
SCHEDULE ITEM NO.1, I.E. SY.NO. 48/3 OF CHINAGUNDI VILLAGE, TAL:
JAMAKHANDI, DIST: BAGALKOT, AND DECREE THE SUIT OF THE PLAINTIFFS
IN RESPECT OF SY. NO. 48/3 ALSO AS PRAYED FOR AND ALLOW THIS
APPEAL WITH COSTS, IN THE INTEREST OF JUSTICE AND EQUITY.


        THIS REGULAR FIRST APPEAL BEING HEARD AND RESERVED ON
21.11.2023 COMING ON FOR PRONOUNCEMENT OF JUDGMENT, THIS DAY,
RAMACHANDRA D. HUDDAR, J., DELIVERED THE FOLLOWING:
                                     3              RFA No. 100311 OF 2017




                               JUDGMENT

The appellants being dissatisfied by the refusal of their claim for

partition in respect of R.S. No.48/3 measuring 6 acres 26 guntas by

the Principal Senior Civil Judge, Jamakhandi (for short "Trial Court") in

O.S.No.85/2009 vide judgment dated 28.06.2017, have preferred this

appeal.

2. For convenience, parties to this appeal are referred to as

per their ranks before the Trial Court.

3. The appellants are the plaintiffs and the respondents are

the defendants. Before the Trial Court, defendant No.1 was placed

exparte.

4. That the plaintiffs filed a suit against the defendants

seeking the relief of declaration to declare that, the alleged agreement

of sale executed in favour of defendant No.2 by defendant No.1 in

respect of R.S.No.48/3 (hereinafter mentioned as "suit item No.1

property") and the decree passed in OS No.146/1998 is not binding on

plaintiffs and also claimed consequential relief of partition and

separate possession of their 4/5th share in respect of suit lands by

metes and bounds.

5. Plaintiffs have described suit schedule properties in the

schedule "as agriculture land in R.S.No.48/3 measuring 06 acres 26

guntas of Chinagundi village, 19 guntas in R.S.No.50/3/1 out of totally

measuring 01 acre 38 guntas (suit item No.1 property), 2 acres 2

guntas in R.S.No.43 out of totally measuring 06 acres 14 guntas and

house property No.52/1C of Hunachikatti village."

6. It is specifically stated by the plaintiffs that plaintiffs 1 to 3

are the children of defendant No.1 and plaintiff No.4. The suit

properties are their ancestral joint family properties and no partition

has taken place in between plaintiffs and defendant No.1. It is alleged

that defendant No.1 is addicted to bad vices. Defendant No.2 filed a

suit against defendant No.1 in O.S.No.146/1998 for specific

performance of contract based upon agreement of sale alleged to have

been executed by defendant No.1 in his favour in respect of suit item

No.1 property and said suit was decreed. The said judgment and

decree was challenged before the Appellate Court in R.A.No.15/2008.

7. It is alleged by the plaintiffs that, there was no legal

necessity for defendant No.1 to execute the alleged agreement of sale.

The plaintiffs 1 to 4 are coparceners of joint family properties and they

have got 1/5th share each in all the suit schedule properties. It is

contended that behind the back of plaintiffs, defendant No.1 entered

into an agreement of sale in respect of suit item No.1 property, which

is not binding on them. It is the plaintiffs, who are in joint possession

and enjoyment of the suit schedule properties. Even defendant No.2

filed Execution Petition No.220/2007 in respect of suit item No.1

property. As there was demand to effect partition in all the suit

schedule properties, defendant No.1 flatly denied. Therefore, the suit

was filed by the plaintiffs seeking the aforesaid reliefs before the Trial

Court.

8. As stated supra, it is defendant No.2, who contested the

suit. Defendant No.1 was exparte. Denying all the assertions made in

the plaint, defendants No.2 contends that to nullify the decree passed

in O.S.No.146/1998, this suit has been filed. The said suit in

O.S.No.146/1998 came to be decreed and even regular appeal also

came to be dismissed. This very fact is admitted by these plaintiffs. It

is contended that, the present suit is not maintainable. The suit of the

plaintiffs is bad for mis-joinder of reliefs and cause of action. It is

contended that, the boundaries of the suit schedule properties

mentioned in the plaint are wrong. It is contended that defendant No.1

being manager of the family agreed to sell suit item No.1 property to

defendant No.2 and accordingly, he purchased the same. He is a

bonafide purchaser. It is contended that, to repay the private loans

defendant No.1 entered into an agreement of sale dated 19.06.1997

with defendant No.2 and agreed to sell the suit item No.1 property for

Rs.2,72,650/- and he also executed a supplementary agreement of

sale dated 10.11.1997. It is defendant No.2, who is in possession of

suit item No.1 property. He had obtained a decree in O.S.No.146/1998

and got the sale deed executed in his favour through Court

Commissioner on 10.10.2009. Even he paid the balance consideration

of Rs.1,34,650/- on 17.09.2009 before the Court in EP No.220/2007

before getting the registered sale deed executed. Thus, the plaintiffs

cannot maintain the suit in respect of suit item No.1 property so

purchased by defendant No.2 and hence, it is prayed by defendant

No.2 to dismiss the suit.

9. Based upon the rival pleadings of both the parties, the

Trial Court framed in all four issues and one additional issue. They

read as under:

ISSUES

1. Whether plaintiffs prove that suit schedule properties are ancestral joint family properties of themselves and defendant No.1?

2. Whether defendant No.2 proves that he is a bonafide purchaser?

3. Whether plaintiffs are entitled for the relief as sought for?

4. What order or decree?

ADDITIONAL ISSUE

1. Whether the plaintiffs prove that the agreement of sale executed by the defendant No.1 in favour of defendant No.2 in respect of suit RS No.48/3 and decree passed in OS No.146/1998 is not binding on them as pleaded by plaintiffs?

10. To prove the case of the plaintiffs, plaintiff No.2 entered

the witness box as PW1 and got marked documents as per Ex.P1 to

Ex.P7 and also examined one witness as PW2 and closed their

evidence. Defendant No.2 was examined as DW1 and got marked

documents as per Ex.D1 to Ex.D15 and closed his evidence.

11. The Trial Court on hearing the arguments of both sides and

after perusal of records, answered issue No.1 and 2 in affirmative,

issue No.3 partly in affirmative, additional Issue No.1 in negative and

ultimately the Trial Court rejected the claim of the plaintiffs in respect

of suit item No.1 property, but has decreed the suit in respect of other

suit item No.2 to 4 properties by granting 4/5th share by metes and

bounds. This is how the plaintiffs are before this Court challenging the

dismissal of their suit in respect of suit item No.1 property bearing

R.S.No.48/3 measuring 6 acres 26 guntas.

12. During the pendency of this appeal, defendant No.2 died

and his legal representatives were brought on record by amending the

cause title of the appeal memo as per the order of this Court.

13. It is argued by the counsel for the appellants that, so far

as suit schedule properties are concerned, they are the joint family

properties of plaintiffs and defendant No.1. The plaintiffs are legitimate

share holders of suit schedule properties to the extent of 1/5th share

each, but the conclusion arrived at by the Trial Court is based on

surmises and presumptions rather than appreciation of material

evidence placed on record by the parties. It is submitted that, the

burden of proof with regard to sale of suit item No.1 property bearing

R.S.No.48/3 by defendant No.1 for legal necessity rests upon

defendant No.2-purchaser. But defendant No.2 has not led any

evidence to that effect. However, the Trial Court believed the evidence

of defendant No.2 and rejected the claim of the plaintiffs in respect of

suit item No.1 property. The Court could have framed an issue with

regard to legal necessity. Defendant No.2 without any enquiry has

entered into an agreement of sale with defendant No.1. The plaintiffs

are the share holders in suit item No.1 property. The agreement of

sale, Ex.P1, produced would not show any legal necessity for

defendant No.1. As per the provisions of Hindu Law, the definition

"legal necessity" has not been complied with by the defendants.

Defendant No.1 has placed exparte. It is further contended that there

is an admission by DW1 with regard to claim of the plaintiffs that,

there was no legal necessity at all. Defendant No.2 cannot be termed

as a bonafide purchaser. He submits that, behind the back of the

plaintiffs, suit was filed by defendant No.2 and it got decreed. The

plaintiffs have got legitimate share in the suit item No.1 property.

Therefore, it is prayed to allow the appeal and set aside the impugned

judgment.

14. As against this submission, the learned counsel,

Smt.Deepa P Doddatti, appearing for the legal representatives of

deceased defendant No.2-respondent No.2 submits that, during the

lifetime of defendant No.2, since defendant No.1 in order to meet his

private loans, entered into an agreement of sale with defendant No.2

for valuable consideration as per the prevailing market value.

Therefore, defendant No.2 agreed to purchase the landed property and

entered into an agreement of sale with defendant No.1. Though there

was an agreement of sale executed by defendant No.1 in favour of

defendant No.2, defendant No.1 committed default in executing the

sale deed. Therefore, defendant No.2 filed a suit for specific

performance before the Civil Court and got decree against defendant

No.1. Now already sale deed has also been executed in favour of

defendant No.2 through process of the Court. To nullify the said decree

in respect of suit item No.1 property, the plaintiffs filed this suit in the

year 2009. It is contended that the plaintiffs cannot maintain the

present suit and the Trial Court has rightly rejected the claim of the

plaintiffs in respect of suit item No.1 property.

15. In view of rival contentions between both the sides, the

only legal issue which arise for consideration in the present appeal is

as under:

"Whether the finding of the Trial Court in refusing the claim of the plaintiffs to grant partition in respect of suit item No.1 of the schedule property is incorrect and illegal and hence require interference by this Court?"

16. So far as status of the suit schedule properties is

concerned, the suit schedule properties are the family properties of

plaintiffs and defendant No.1 is not in dispute. PW1, being plaintiff

No.2 has reiterated the plaint averments in his evidence on oath. In

support of his evidence, he relied upon Ex.P1 to Ex.P7. These

documents produced by the plaintiffs are nothing but the proceedings

before the Executing Court. Ex.P1 is the certified copy of the Execution

Petition filed by defendant No.2 in E.P.No.220/2007 based upon a

decree passed against defendant No.1. It was defendant No.2 filed the

said execution petition to get the sale deed executed through process

of the Court. Ex.P2 is certified copy of the memo filed before the

Principal Senior Civil Judge, Jamakhandi by the then decree holder

stating that in view of execution of the sale deed through Court

Commissioner on 10.10.2009, it was prayed to close the said

execution petition. Ex.P3 is the notice issued in the Execution Petition.

Ex.P4 is the certified copy of the order sheet maintained in

E.P.No.220/2007 wherein through process of Court, sale deed was

executed and based upon the memo, said execution petition was

closed. Ex.P6 is the RTC extract of suit item No.1 property. Except

these documents, plaintiffs have not produced any documents in

support of their claim in respect of suit item No.1 property.

17. PW1 has undergone cross-examination by the counsel for

defendant No.2, wherein it is elicited that, amongst the brothers of

defendant No.1, there was a partition. He admits about allotment of

house property in the name of his mother, so also he deposed

ignorance with regard to the tenanted property. According to him, the

property being allotted to their shares, belong to their grandfather. He

has deposed ignorance before the Trial Court stating that he does not

know that one Govindappa, his uncle, has sold the property to

Basayya Mathapathi and Basayya Mathapati has also sold the property

to Kareppa Gadad etc., Thimmanna has sold his property to Yankappa

Venkanna Nagarale. So, about the sale transactions entered into by his

uncles are not known to this PW1. It is denied that at the instance of

his father, he has filed the present suit. To show that his father was

addicted to bad vices and there was no legal necessity for defendant

No.1 to alienate suit item No.1 property, except self-serving say in the

examination-in-chief, nothing is stated by this PW1. Evidently, when

the suit was filed before the Trial Court, these plaintiffs 1 to 3 were

aged, 21, 19, 24 years, respectively, and their mother was aged 50

years. Suit was filed in the year 2009. The alleged agreement of sale

as per the evidence of DW1 has taken place on 19.06.1997. That

means, in the year 1997, plaintiffs 1 to 3 were minors. During their

minority, defendant No.1, who is their father and husband of plaintiff

No.4, has entered into agreement of sale with defendant No.1 to sell

the suit item No.1 property. It is recited in the agreement of sale that

for the purpose of family necessity, he entered into agreement of sale

of suit item No.1 property for Rs.2,72,650/- and on the date of the

agreement itself, defendant No.1 received Rs.1,38,000/-. So, this itself

goes to establish that defendant No.1 must be having certain legal

necessities to alienate the property in question and therefore, as per

the submission of defendant No.2, he thought of selling suit item No.1

property. In the absence of any acceptable evidence from the

plaintiffs' side, the contents of this Ex.D1 produced by the defendant

No.2 establishes that defendant No.1 had some legal necessity to

enter into an agreement to sell the suit item No.1 property. These

contents of Ex.D1 are corroborated by the evidence of DW1. That

means, DW1 before the Trial Court has deposed that for family

necessity, defendant No.1 entered into an agreement of sale in respect

of suit item No.1 property and at the instance of defendant No.1, this

suit is filed. But defendant No.2 has already obtained a decree in

O.S.No.146/1998 dated 01.10.2007. Even he filed execution petition

and got the sale deed executed in his favour through process of court.

Though this DW1 has been cross-examined but nothing worth is

elicited from the mouth of this witness. Except denial, nothing is

elicited. When suggestions are denied, they have no evidentiary value.

It is suggested that all the documents so produced by the defendant

No.2 are concocted etc., but the said suggestions are denied.

18. Ex.D1, as stated supra, is a copy of the agreement of sale.

Ex.D2 is the order passed in E.P.No.220/2007, which is on par with the

documents produced by the plaintiffs and likewise, the interim

applications are also marked in this case along with objections so filed

in the said execution petition from Ex.D3 to Ex.D15. These documents

do establish that, even defendant No.1 contested the said execution

petition and his claim was negatived by the Executing Court. Thus,

from the documentary evidence produced by defendant No.2, do

establish that there was a decree being obtained by him in

O.S.No.146/1998 dated 01.10.2007 and the decree holder was put in

possession through process of court and got the sale deed executed.

Therefore, now it cannot be said that there was no legal necessity for

defendant No.1 to execute the agreement of sale etc.,

19. The learned counsel for the plaintiffs in support of his

submission relied upon the judgment of the Hon'ble Supreme Court in

the case of Smt.Rani and others v. Santa Bala Debnath and

others1. It is a judgment in respect of Dayabhaga School of Hindu

Law. There, the legal necessity has been defined. With regard to the

ratio laid down in the said judgment, there is no dispute as such. But

the legal necessity as envisaged under the provisions of Hindu Law has

got a wider meaning. So far as legal necessity is concerned, the

ownership in order to be complete needs alienation of the property as

a right. That means alienation hence is one of the basic incidents of

(1970) 3 SCC 722

ownership. The coparcenary is a subset of joint family, and hence, all

the coparceners have an equal right over the property among them.

So, no single coparcener can acquire the power to alienate the whole

joint family unless and until the co-owners authorize him to do so. But

in this case, the position of defendant No.1 as a Karta of the family in

a joint family is different from other members of the family. As per the

evidence spoken to by PW1, already there was partition amongst the

brothers of defendant No.1. He was allotted the suit schedule

properties of his share and he was entrusted with the management of

his own family. This does not mean that, defendant No.1 had no right

to sell the properties to meet the necessities of the family. With regard

to alienation aspect, it is true that if all the members consent to sell

the property, then such a transfer would absolutely be valid and

binding on all the members. But in this case, not only defendant No.1

but the agreement of sale do establish that his brothers Thimmappa

and Govindappa have joined in executing the agreement of sale and

have put their signatures on Ex.D1-agreement of sale. This agreement

of sale has been put in execution by filing a suit by defendant No.2.

The suit was decreed. Already the court has decreed the suit and

defendant No.2 got executed the sale deed in his favour through

process of the Court. So to nullify the said decree, the plaintiffs cannot

maintain this suit. Therefore, as observed by the Trial Court, there was

legal necessity for defendant No.1 to execute the sale deed. Where

there is alienation by a father, under the provisions of Hindu Law,

Article 254 of Mulla's Hindu Law, a Hindu father, as such, has special

powers of alienating copracenary property, which no other coparcener

has. So, in exercise of these powers under Article 254 of Mulla's Hindu

Law, he may:

i) make a gift of ancestral movable property to the extent mentioned in Article 223, and even of ancestral immovable property to the extent mentioned in Article 224.

ii) sell or mortgage ancestral property, whether movable or immovable, including the interest of his sons, grandsons and great grandsons therein, for the payment of his own debt, provided the debt was an antecedent debt, and was not incurred for immoral or illegal purposes (Art.294).

20. In this case, except bald pleadings that defendant No.1

was addicted to bad vices, there is no pleading, there is no evidence

and there is no proof. So, what is legal necessity simply said by Mulla

under Article 241, reads as under:

"241. What is legal necessity. --The following have been held to be family necessities within the meaning of Article 240:

(a) payment of government revenue and of debts which are payable out of the family property;

(b) maintenance of coparceners and of the members of their families;

(c) marriage expenses of male coparceners, and of the daughters of coparceners;

(d) performance of the necessary funeral or family ceremonies;

(e) costs of necessary litigation in recovering or preserving the estate;

(f) costs of defending the head of the joint family, or any other member against a serious criminal charge;

(g) payment of debts incurred for family business or other necessary purpose. In the case of a manager other than a father, it is not enough to show merely that the debt is a pre-

existing debt. (Article 244).

The above are not the only indices for concluding as to whether the alienation was indeed for legal necessity, nor can the enumeration of criterion for establishing legal necessity be copious or even predictable. It must therefore depend on the facts of each case. When, therefore, property is sold in order to fulfil tax obligations incurred by a family business, such alienation can be classified as constituting legal necessity."

See Hindu Law by Mulla "22nd Edition"

21. It is recited in the agreement of sale Ex.D1 that, for family

necessity, he wants to execute an agreement of sale. So, once the

factum of existence of legal necessity is proved by defendant No.2,

then in our view, no coparcener (son or daughter) have a right to

challenge the sale made by the Karta of their family. The plaintiffs 1 to

3 being children and plaintiff No.4 being wife of defendant No.1, they

being coparceners along with defendant No.1, have no right to

challenge the sale in the light of the findings on legal necessity being

recorded against defendant No.1. When already a competent civil

Court has granted a decree for specific performance in favour of

defendant No.2 that cannot be nullified by granting a decree to the