Karnataka High Court
Kamalabai W/O Late Kashinath ... vs Bajarang S/O Late Kashinath ... on 5 July, 2023
Bench: N.S.Sanjay Gowdapresided Bynssgj
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RSA No. 200104 of 2014
IN THE HIGH COURT OF KARNATAKA,
KALABURAGI BENCH
DATED THIS THE 5TH DAY OF JULY, 2023
BEFORE
THE HON'BLE MR. JUSTICE N.S.SANJAY GOWDA
REGULAR SECOND APPEAL NO. 200104 OF 2014 (DEC/INJ)
BETWEEN:
KAMALABAI W/O LATE KASHINATH GOSWAI,
SINCE DECEASED BY HER LRS
1. SUKUMARBAI @ SHARDABAI
W/O NAGAYYA SWAMI,
AGE: 74 YEARS, OCC: HOUSEHOLD,
R/O. H.NO.1-3-34, INDRA NAGAR,
AFZALPUR, DIST: KALABURAGI.
2. JAMUNABAI W/O. RAJENDRA SHIRI,
AGE: 62 YEARS, OCC: HOUSEHOLD,
R/O. RAJIV GANDHI NAGAR,
AFZALPUR, DIST: KALABURAGI.
...APPELLANTS
Digitally signed by (BY SMT.NEEVA M CHIMKOD, ADVOCATE)
SACHIN
Location: HIGH
COURT OF
KARNATAKA AND:
1. BAJARANG
S/O LATE KASHINATH GOSWAI
AGE: 61 YEARS, OCC: NIL,
R/O: AFZALAPUR,
AT PRESENT RESIDNG AT
RANEGAON, TQ & DIST: OSAMANABAD,
(MAHARASHTRA STATE)-413306.
2. SRIMANTH S/O SHARNAPPA NAGUR,
AGE: 46 YEARS, OCC: AGRICULTURE,
R/O: DEVANGAON VILLAGE,
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RSA No. 200104 of 2014
TQ:SINDAGI, DIST:VIJAYAPURA-586101.
...RESPONDENTS
(BY SRI B V JALDE, ADVOCATE FOR R1,
SRI MANVENDRA REDDY AND
SRI NARENDRA M. REDDY, ADVOCATES FOR R2)
THIS RSA IS FILED UNDER SECTION 100 OF CIVIL CODE
PROCEDURE, PRAYING TO SET ASIDE THE JUDGEMENT AND
DECREE DATED 26.11.2013 PASSED IN R.A. NO. 60/2011 ON
THE FILE OF THE IV ADDL. DISTRICT JUDGE AT GULBARGA,
CONFIRMING THE JUDGEMENT AND DECREE DATED
22.02.2011 PASSED IN O.S. NO. 27/2008 ON THE FILE OF THE
II ADDL. CIVIL JUDGE (SR.DN.) AT GULBARGA.
THIS APPEAL, COMING ON FOR ADMISSION, THIS DAY,
THE COURT DELIVERED THE FOLLOWING:
JUDGMENT
1. Kamalabai instituted a suit against her son Bajarang
and one Srimanth, who had purchased 15 guntas of land
out of Sy.No.1 measuring 04 acres 25 guntas from her son
Bajarang.
2. It was her case that the said land bearing Sy.No.1
belonged to one Balgiri, who was her maternal uncle i.e.,
her mother's brother. She stated that Balgiri was a
'sanyasi' and in order to perform his religious duties, he
had established a Matt. She stated that in the year 1979,
Balgiri had sought for conferment of occupancy rights by
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filing Form No.1 and the Land Tribunal, Afzalpur had
conferred occupancy rights on him. She stated that Balgiri
died in the year 1982 and she was the only legal heir to
Balgiri and that her children had no right to deal with the
property, but yet they had got their name entered in the
revenue records and on the basis of these revenue
records, they were attempting to alienate the lands and
they had in fact alienated 15 guntas of land in favour of
Srimanth - the second defendant.
3. It is may be pertinent to state here that during the
pendency of this appeal, Kamalabai expired and an
application was filed by her two daughters to come on
record as her legal representatives. They have pressed
into service, a registered Will stated to have been
executed by Kamalabai in their favour. This Court allowed
the application and permitted the two daughters to come
on record, while also noticing that the first respondent
being the son would continue as the first respondent.
Thus, all the three legal heirs of Kamalabai are on record.
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4. Bajarang entered appearance and contested the suit
by denying all the averments. He, however, stated that it
appeared that Balgiri taking undue advantage of the
entries in his name had filed Form No.1 seeking for
conformant of occupancy rights and the Land Tribunal,
Afzlapur had also granted an occupancy rights. He
submitted that this conferment of occupancy rights on
Balgiri was illegal since he was not concerned with the suit
land.
5. He stated that Balgiri was residing with his mother
and he was looking after the affairs of the family. He also
stated that his mother had requested Balgiri to file Form
No.1 in her name and in the name of her children as they
were in actual possession and yet he had proceeded to
make an application his own name.
6. He contended that he was under the impression that
the land was granted in his name and when he came to
know about the order in favour of Balgiri and when he
raised the issue, he was informed that he had no sons and
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daughters and the land would either way be inherited by
him, since Balgiri was a 'sanyasi' and accordingly, he did
not make any protest.
7. He did not deny the assertion of his mother that
Balgiri was her maternal uncle and simply stated in his
written statement that the maternal uncle was in no way
concerned with the suit property.
8. The second defendant i.e., the purchaser reiterated
the same averments as Bajarang.
9. The Trial Court after considering the evidence
adduced before it, proceeded to come to the conclusion
that Kamalabai had established that she was the owner, in
possession of the suit land and she was in possession of
Sy.No.1 measuring 04 acres 25 guntas, except the
possession of 15 guntas claimed by the second defendant.
The Trial court also declared that the sale-deed executed
by her son in favour of second defendant was not binding
on her and restrained both the son and the purchaser from
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interfering with her possession, except in respect of 15
guntas of land.
10. Bajarang, the son of Kamalabai, and the purchaser,
Srimanth both preferred the appeals.
11. The Appellate Court on re-appreciation of the
evidence came to the conclusion that there was no
material produced before the Court to show that the suit
schedule property was the exclusive property of Kamalabai
and the suit had been filed by colluding with each other.
The Appellate Court accordingly allowed the appeal of the
purchaser - Srimath and dismissed the suit.
12. The Appellate Court also proceeded to dismiss the
appeal of Bajarang.
13. Being aggrieved, this second appeal has been
preferred.
14. The substantial question of law that arises for
consideration in this appeal is as to -
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"Whether the Appellate Court was justified
in dismissing the suit filed by Kamalabai when
Bajarang (defendant No.1) admitted that Balgiri
was the maternal uncle of his mother, Kamalabai
and he had been conferred with the occupancy
rights and on death of the said Balgiri, who had
no issues, Kamalabai had succeeded to the
property of Balgiri, by virtue of being the only
class-II heir ?"
15. As narrated above, the case of Kamalabai was that
the suit property belonged to her maternal uncle Balgiri
and he had been conferred with the occupancy rights by
the Land Tribunal and on his death, in the year 1982, she
had succeeded to the suit schedule property since Balgiri
died issueless and she was the only Class-II heir to
succeed to the property.
16. Bajarang, her son i.e., the first defendant admitted
the fact that the suit property was the subject matter of a
proceeding before the Land Tribunal and Balgiri had been
conferred with the occupancy rights. He also admitted that
Balgiri had died in the year 1982. He also did not deny the
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specific assertion that Balgiri was the maternal uncle of his
mother.
17. It may also be pertinent to state here that the
purchaser, in his written statement, also admitted this fact
and also went on to state that after the death of Balgiri,
Kashinath, the husband of the Kamalabai and his children
had moved the authorities for granting mutation of land
bearing Sy.No.1 i.e., suit property in their joint names as
Class-II heirs.
18. Thus, the fact that the land belonged to Balgiri and
that he was conferred with the occupancy rights and that
he had died issueless, was the admitted case of Kamalabai
and her children.
19. It is to be stated that on the death of Balgiri, her
maternal uncle i.e., her mother's brother, Kamalabai
would be the only the Class-II heir to succeed to the
property and her children would not succeed to the
property till Kamalabai was alive. However, though
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Kamalabai had exclusively succeeded to the suit schedule
property, as the Class-II heir of Balgiri, her son, during
her life time, had chosen to execute a sale-deed in favour
of Srimanth.
20. Srimanth contended that his vendor Bajarang was
also a Class-II heir. However, it cannot be in dispute that
Kamalabai's son cannot be the Class-II heir of Balgiri and
the only Class-II heir of Balgiri was Kamalabai his sister's
daugther. The mere fact that the entries were mutated in
the name of his father and his siblings and himself would
not confer title on Bajrang. Having regard to the fact that
he admitted that Balgiri had obtained occupancy rights,
albeit illegally, the title of Balgiri was never in dispute.
Bajarang did not also challenge the order passed in favour
of Balgiri and he only asserted in the written statement
that Land Tribunal committed an illegality in conferring
occupancy rights in favour of Balgiri.
21. Since, undisputedly the occupancy rights were
conferred in favour of Balgiri, his title could not be
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questioned and on his intestate death in the year 1982.
Consequently, his only Class-II heir i.e., Kamalabi, the
mother of Bajarang succeeded to the property exclusively.
In that view of the matter, the sale-deed executed by
Bajrang in favour of Srimanth would be illegal inasmuch as
he did not possess title to convey the same to Srimanth,
the second defendant.
22. However, the Appellate Court without noticing these
admitted facts, has gone on to record a finding that there
was no evidence to come to the conclusion that
Kamalabai had succeeded to the property exclusively. As
stated above, it was the admitted case of all the parties
that the property belonged to Balgiri, who had no issues
and Kamalabai being the only Class-II heir, she had
succeeded the property exclusively. The order of the
Appellate Court cannot therefore be sustained.
23. However, the matter would not end there. Since
Kamalabai died during the pendency of this appeal and her
daughters are contending that she had executed a
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registered Will in their favour their right would have to be
adjudicated since Bajarang, her son and the purchaser do
not admit this Will.
24. In fact, the purchaser contends that Kamalabai died
intestate and on her death, her son Bajarang had also
inherited the property along with his sisters and as a
consequence, the defective title in the sale-deed executed
by the Bajarang stood cured.
25. It is contended that since Bajarang had sold the
property, assuming he was the ostensible owner, he
acquired title on the death of Kamalabai, to the extent of
1/3rd of the property and this the acquisition of title would
enure to the benefit of Srimanth and he would have
thereby acquired valid title and any defect in it would
stand cured.
26. This issue which has arisen by virtue of death of
Kamalabai cannot be agitated or determined in this second
appeal. In these proceedings, the right of Kamalabai alone
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would have to be decided and as already held above, it is
clear that Kamalabai had succeeded to the property
exclusively.
27. However, as there is dispute regarding the
succession of Kamalabai's property amongst three
children, it would be necessary for the children of
Kamalabi to approach the appropriate civil Court to
establish their respective title over the property of
Kamalabai.
28. It would also to be open for the purchaser - Srimanth
i.e., second defendant of 15 guntas of the suit proerpty,
from Bajarang to also approach the Civil court and contend
that the sale-deed in his favour had become valid by virtue
of the succession in favour of Bajarang.
29. Liberty is accordingly reserved to all the parties to
approach the Civil court for establishing their rights over
the property on the death of Kamalabai.
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30. The substantial question of law, however, is
answered in favour of Kamalabai. This second appeal is
accordingly allowed and it is held that Kamalabai was the
owner of the suit property and the sale deed executed by
her son (defendant No.1) in favour of Srimanth -defendant
No.2 would not bind her subject to the above.
31. Pending application, if any, shall stand disposed of.
Sd/-
JUDGE
SN
