Karnataka High Court
Smt Devamma vs Sri Revanappa on 4 January, 2023
Bench: N S Gowda
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RFA No. 2101 of 2006
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 4TH DAY OF JANUARY, 2023
BEFORE
THE HON'BLE MR JUSTICE N S SANJAY GOWDA
REGULAR FIRST APPEAL NO.2101 OF 2006 (DEC)
BETWEEN:
1. SMT DEVAMMA
W/O LATE SIDDALINGAPPA
AGED ABOUT 62 YEARS
RESIDING IN TENIGERE VILLAGE
CHANNAGIRI TQ, DAVANGERE DT-577001.
2. SMT SAROJAMMA
W/O LATE CHANNABASAPPA
AGED ABOUT 62 YEARS,
3. SRI MARULASIDDAPPA
AGED ABOUT 37 YEARS,
4. SRI MANJUNATHA
AGED ABOUT 35 YEARS
Digitally signed 5. SRI MAHARUDRAPPA
by BELUR
RANGADHAMA AGED ABOUT 31 YEARS,
NANDINI
Location: High
Court of 6. SRI AJJAIAH
Karnataka AGED ABOUT 29 YEARS
APPELLANTS NO.3 TO 6 ARE CHILDREN OF
LATE CHANNABASAPPA
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RFA No. 2101 of 2006
7. SRI SHIVANNA
S/O SANNADODDAPPA
AGED ABOUT 40 YEARS
AGRICULTURIST
APPELLANTS NO.2 TO 7 ARE RESIDING IN
BELALGERE VILLAGE
CHANANGIRI TQ, DAVANGERE DIST-577001.
...APPELLANTS
(BY SRI. P. R. MOHAN RAO - ADVOCATE FOR APPELLANTS
NO.1 TO 6;
SRI. N. R. NAIK - ADVOCATE FOR APPELLANT NO.7)
AND:
1. SRI REVANAPPA
S/O SIDDAPPA
AGED ABOUT 77 YEARS,
AGRICULTURIST
RESIDING IN BELALGERE VILLAGE
BASAVAPATNA HOBLI
CHANNAGIRI TQ,
DAVANGERE DT
SINCE DECEASED BY HIS LRS'
1(a) SMT. CHANDAMMA
W/O RAVANAPPA
AGED 53 YEARS
1(b) SRI. K. MAHESHA
S/O REVANAPPA
AGED 35 YEARS
1(c) SMT. JAYALAKSHMI
D/O REVANAPPA
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RFA No. 2101 of 2006
AGED 40 YEARS
1(d) SMT. DAKSHAYANAMMA
D/O REVANAPPA
AGED 28 YEARS
1(a) TO (d) ARE R/AT
C/O BENAKAPPA AVAKERE POST
BHADRAVATHI TALUK
SHIMOGA DISTRICT.
1(e) SMT. GANGAMMA
W/O BELALAGERE GANESHAPPA
AGE:35 YEARS
1(f) HALESH
S/O GANESHAPPA
MINOR
REPRESENTED BY GUARDIAN
RESPONDENT NO.1(e) GANGAMMA
RESPONDENTS 1(e) AND (f) ARE R/AT
KARAVA HONNALLI TALUK
DAVANGERE DISTRICT.
...RESPONDENTS
(BY SRI. M. R. HIREMATHAD - ADVOCATE FOR R-1(A TO F))
THIS RFA FILED U/S.96 OF CPC PRAYING THIS
HON'BLE COURT BE PLEASED THAT THE JUDGMENT AND
DECREE DT.20.7.2006 PASSED IN O.S.NO.13/2004 ON
THE FILE OF THE II-ADDL. CIVIL JUDGE (SR.DN),
DAVANAGERE, BE SET ASIDE, THE PLAINTIFF'S SUIT BE
DISMISSED AND THIS APPEAL BE ALLOWED WITH COSTS
THROUGHOUT.
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RFA No. 2101 of 2006
THIS RFA, COMING ON FOR HEARING, THIS DAY,
THE COURT DELIVERED THE FOLLOWING:
JUDGMENT
1. This appeal is by the defendants.
2. Revanappa, the plaintiff, instituted a suit-
O.S.No.13/2004 seeking for declaration that he was the
absolute owner in actual possession of Sy.No.166/1
measuirng 35 guntas situated in Bellalgere Village,
Channagiri Taluk, Davangere District. He also sought for
consequential injunction to restrain the defendants from
interfering with his possession. A declaration was also
sought that the sale deed dated 17.12.2002 executed by
defendants 1 to 6 in favour of defendant No.7 was void ab
initio and was not binding on him.
3. It was the case of Revanappa that his father Siddappa
had three sons viz Siddalingappa, Channabasappa and
Revanappa. Defendant No.1-Devamma was the wife of the
eldest son, Siddalingappa and defendant No.2 was the wife
RFA No. 2101 of 2006
of the second son-Channabasappa, while defendants 3 to 6
were the sons of Channabasappa.
4. He contended that there was a registered partition
entered into by the family members on 26/6/1967 and in
the said partition, Sy.No.166/1 was allotted to
Channabasappa for the purposes of maintaining the wife of
Siddalingappa i.e. Devamma, defendant No.1. It was his
case that the recital in the partition deed was that on the
death of Devamma, that property would stand allotted to
him.
5. He contended that his elder brother, Channabasappa
refused to provide maintenance to Devamma as per the
terms of the partition deed and a panchayath was held, in
which it was decided that the plaintiff would provide
maintenance by taking over possession of the suit property
and ever since, he had been in possession of the property
and was maintaining Devamma.
RFA No. 2101 of 2006
6. He also contended that his elder brother
Channabasappa had instituted a suit for injunction in
O.S.No.291/91 against him contending that he was in
possession and this suit was dismissed on 29.6.1996. He
stated that notwithstanding the filing of the said suit, his
elder brother, Channabasappa, had also instituted
O.S.No.139/1993 against him and also against Devamma
and in the said suit, he had sought for declaration that he
was the owner of the suit property. He stated that during
the pendency of the suit, Channabasappa died and his legal
representatives came on record but ultimately the suit was
dismissed for non-prosecution on 29.1.2001.
7. It was contended that Channabasappa was only
entitled to utilise the land to maintain Devamma and
therefore, could not claim ownership. However, the children
of Channabasappa had managed to get the revenue entries
in their favour, as against which Devamma and himself had
challenged the said change of entries and in the revenue
proceedings, the Deputy Commissioner had ultimately
RFA No. 2101 of 2006
directed the name of Devamma to be entered subject to the
outcome of the miscellaneous petition that had been filed by
the wife and children of Channabasappa in Civil
Miscellaneous No.1/2001 for setting aside the order of the
Court passed in O.S.No.139/93.
8. The plaintiff contended that notwithstanding the fact
that the suit for declaration had been dismissed, Devamma
and the wife and children of Channabasappa had colluded
together and had executed a sale deed dated 17.12.2002 in
favour of the defendant No.7 and this was done by taking
advantage of the old age of defendant No.1-Devamma. He
contended that since in the partition deed of the year 1967,
this property was allotted to him, neither Devamma nor
Channabasappa or his wife and children were entitled to sell
the property and he was therefore, entitled for declaration.
9. The suit was contested by all the defendants including
the purchaser by filing a joint written statement. In this
written statement, the defendants contended that the suit
property was in possession of Channabasappa and after his
RFA No. 2101 of 2006
death, possession was taken over by his wife and children
i.e. defendants 2 to 6. It was contended that
Channabasappa during his life time and thereafter,
defendants 2 to 6, were regularly paying taxes and were also
maintaining Devamma as per the terms of the partition. It
was specifically denied that a panchayath had taken place in
which possession of the suit property had been handed over
to the plaintiff. It was stated that on 17.12.2002, Devamma
had decided to sell the property to defendant No.7 for her
maintenance and to this sale deed, defendants 2 to 6 were
signatories and the sale deed executed was genuine and was
for a valid consideration. It was contended that the claim of
the plaintiff over the suit property was unsustainable and a
false suit had been instituted.
10. The Trial Court framed five issues. After analysing the
evidence, the Trial Court recorded a finding that the suit
property was indeed kept for maintaining Devamma under
the registered partition deed dated 26.6.1967. The Trial
Court recorded a finding that the plaintiff had not become
RFA No. 2101 of 2006
absolute owner of the suit property since Devamma was still
alive. The Trial Court also recorded a finding that the sale
deed executed in favour of defendant No.7 on 17.12.2002
was illegal and void ab initio and defendant No.7 had also
failed to prove that he was a bona fide purchaser of the suit
property. The Trial Court accordingly decreed the suit in
part.
11. Since the Trial Court had recorded a finding that the
plaintiff was in possession, a decree of injunction was
granted in favour of the plaintiff and it was also declared
that the sale deed executed in favour of defendant No.7 was
not binding on the plaintiff.
12. Sri N R Naik, learned counsel for the appellant,
strenuously contended that the property was lawfully sold in
favour of defendant No.7, since Devamma, who had been
granted a life interest, had by virtue of Section 14 of the
Hindu Succession Act, 1956 entitled to be considered as the
absolute owner and as a consequence, the sale deed could
not be impugned. He also submitted that in the suit filed by
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RFA No. 2101 of 2006
Channabasappa against Revanappa i.e. the plaintiff and
Devamma, Revanappa never took up the contention that the
suit property was his property and therefore, he would not
be entitled to seek for declaration in the instant suit.
13. Learned counsel for the respondent No.1 (a to f), on
the other hand, supported the decree and contended that
admittedly, even according to the terms of the partition
deed, Channabasappa was allotted the property on the
condition that he maintained Devamma and this by itself
therefore, proved that Devamma was never been in
possession of the property as a limited owner. It was
submitted that since Channabasappa, who was also
obligated to maintain Devamma, had filed a suit for
declaration that he was the owner and had failed, it was
obvious that he had no right over the property also. It was
contended that since no life interest in the property was
created in favour of Devamma, the question of applying
Section 14 of the aforesaid Act would not arise.
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RFA No. 2101 of 2006
14. It was lastly submitted that since under the partition
of the year 1967, the suit property was ultimately allotted to
the plaintiff and this allotment would be effective from the
date of death of Devamma, the plaintiff had become the
owner on the death of Devamma.
15. From the arguments advanced, the principal question
that is to be decided in this appeal would be, 'whether
Devamma, along with the wife and children of
Channabasappa, could have sold Sy.No.166/1 in favour of
defendant No.7?
16. The fact that there was a partition between the family
members on 26.6.1967 is not in dispute. In the partition as
regards the suit property, the following recital is found :
" ¸ÀªÉð £ÀA§gï 166 £Éà ¥ÉÊQ 1 £Éà ¨sÁUÀzÀ w JPÀgÉ E Áè UÀÄAmÉ 35 UÀÄAmÉ DPÁgÀ
gÀÆ 5-00 ªÀżÀî d«ÄãÀÄ £ÀªÀÄä aPÀ̪ÀÄä zÉêÀªÀÄä£À ªÀÄgÀt ¥ÀAiÀiÁðAvÀgÀ ZÀ£Àߧ¸À¥Àà
C£ÀĨsÀ«¹PÉÆArzÀÄÝ DPÉUÉ fêÀ£ÁA±À PÉÆqÀÄvÁÛ §gÀ¨ÉÃPÀÄ. DPÉ ªÀÄgÀuÁ£ÀAvÀgÀ ¸ÀzÀj
d«ÄãÀÄ 1£Éà gÉêÀtÚ¤UÉ ¸ÉÃgÀvÀPÀÌzÁÝVgÀÄvÀÛzÉAzÀÆ £ÁªÀÅUÀ¼ÀÄ M¦àPÉÆAqÀ «¨sÁUÀ ¥Àv"Àæ
As could be seen from the said recital, the suit property
was allotted to Channabasappa with a condition that he
should maintain Devamma till her life time and thereafter,
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RFA No. 2101 of 2006
the property would stand allotted to Revanappa, the
plaintiff. Since Devamma was never put in possession of the
property as a limited owner, the question of applying Section
14 of the Act and enlarging her limited right into an absolute
right would not arise. Under Section 14 of the Act, only if a
female is possessed of the property as a limited owner, that
limited ownership would stand enlarged into an absolute
ownership.
17. In the instant case, the suit property was allotted to
Channabasappa and he was only entitled to utilise the
property for providing maintenance to Devamma. It cannot,
therefore, be stated that any limited ownership over the suit
property had been conferred in favour of Devamma and
consequently, the question of Devamma having any right
over this property so as to enable her to sell the property to
defendant No.7 would not arise.
18. As far as the right of Channabasappa to sell the
property is concerned, it is to be noticed here that
admittedly, Channabasappa had instituted a suit to declare
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RFA No. 2101 of 2006
that he was the owner of the suit property in O.S.No.139/93
and in the suit, he had arrayed Devamma and the plaintiff
as defendants. Admittedly, the suit ended in dismissal and
this therefore, established that Channabasappa also had no
title to the property. If neither Devamma nor
Channabasappa possessed title over the suit property, it is
obvious that the sale deed executed by them or his legal
heirs in favour of defendant No.7 would be of no
consequence.
19. It is also not in dispute that after the death of
Devamma, the suit property would stand allotted to the
plaintiff as per the terms of the partition deed. It is also not
in dispute that during the pendency of this suit, Devamma
passed away and as a consequence, the property stood
allotted to the plaintiff.
20. The Trial Court has also noticed that there was clear
evidence to indicate that the plaintiff was in possession and
that was evidenced by the possession mahazar prepared in
which the possession of the plaintiff was recorded. The Trial
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RFA No. 2101 of 2006
Court has thus correctly recorded a finding that the plaintiff
was in possession.
21. It may also be pertinent to state here that
Channabasappa had admittedly filed a suit for injunction in
O.S.No.291/91 against the plaintiff and the same was
dismissed on 29.6.1996, after contest. It is therefore, clear
that Channabasappa was not in possession of the suit land.
As a consequence the decree of injunction granted in favour
of the plaintiff cannot be found fault with. The trial Court
was right in coming to the conclusion that the sale deed
dated 17.12.2002 executed in favour of defendant No.7 was
void ab initio since the vendors i.e., defendants 1 to 6 did not
possess title so as to convey title to defendant No.7 and the
appeal is therefore, dismissed.
Sd/-
JUDGE
RS
