Karnataka High Court
Ratna W/O Channabasappa Chatter vs Channabasappa S/O Sangappa ... on 21 July, 2023
Bench: M.G.Umaj
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RFA No. 100197 of 2014
IN THE HIGH COURT OF KARNATAKA, DHARWAD BENCH
DATED THIS THE 21ST DAY OF JULY, 2023
BEFORE
THE HON'BLE MRS. JUSTICE M.G.UMA
REGULAR FIRST APPEAL NO.100197/2014 (PAR/POS)
BETWEEN:
SMT. RATNA W/O. CHANNABASAPPA CHATTER,
AGE: 60 YEARS, OCC: HOUSEHOLD,
R/O: "GOLLALESHWAR NILAYA",
TELECOM HEAD OFFICE, HUNGUND-587118,
DIST: BAGALKOT.
...APPELLANT
(BY SRI ARUNACHAL P. HEGDE, ADVOCATE FOR
SRI VISHWANATH HEGDE, ADVOCATE)
AND:
1. CHANNABASAPPA S/O. SANGAPPA HONAWAD,
AGE: 56 YEARS, OCC: TEACHER,
R/O: HOUSE NO.325/1, PLOT NO.39, WARD NO.5,
NAVNAGAR, HUNGUND-587118,
DIST: BAGALKOT.
Digitally 2. VIJAYKUMAR S/O. SANGAPPA HONAWAD,
signed by
VINAYAKA AGE: 52 YEARS, OCC: SERVICE,
BV R/O: HOUSE NO.325/1, PLOT NO.39,
WARD NO.5, NAVNAGAR, HUNGUND-587118,
DIST: BAGALKOT.
3. VISHWANATH S/O. SANGAPPA HONAWAD,
AGE: 49 YEARS, OCC: SERVICE,
R/O: HOUSE NO.325/1, PLOT NO.39, WARD NO.5,
NAVNAGAR, HUNGUND-587118,
DIST: BAGALKOT.
4. UMESHCHANDRA S/O. SANGAPPA HONAWAD,
AGE: 47 YEARS, OCC: SERVICE,
R/O: HOUSE NO.325/1, PLOT NO.39,
WARD NO.5, NAVNAGAR, HUNGUND-587118,
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RFA No. 100197 of 2014
DIST: BAGALKOT.
5. LINGARAJ S/O. SANGAPPA HONAWAD,
AGE: 47 YEARS, OCC: SERVICE,
R/O: HOUSE NO.325/1, PLOT NO.39,
WARD NO.5, NAVNAGAR,
HUNGUND-587118,
DIST: BAGALKOT.
6. SANGANAGOUDA S/O. HANAMANTAGOUDA PATIL,
AGE: 67 YEARS, OCC: SERVICE,
R/O: DANNUR, TQ: HUNGUND AND NEAR HOUSE,
OF SRI M.S. HUDDAR, ADVOCATE,
BAGALKOT ROAD, HUNGUND-587118,
DIST: BAGALKOT.
7. SMT. BASAMMA S/O. SANGANAGOUDA PATIL,
AGE: 62 YEARS, OCC: SERVICE,
R/O: DANNUR, TQ: HUNGUND AND NEAR HOUSE,
OF SRI M.S. HUDDAR, ADVOCATE, BAGALKOT ROAD,
HUNGUND-587118, DIST: BAGALKOT.
...RESPONDENTS
(BY SRI MRUTYUNJAYA S. HALLIKAERI,
ADVOCATE FOR R1 TO R5;
SRI S.B. HEBBALLI, ADVOCATE FOR R7;
APPEAL AGAINST R6 IS ABATED)
THIS RFA IS FILED UNDER SECTION 96 R/W ORDER 41 RULE 1
OF CPC., AGAINST THE JUDGMENT AND DECREE DATED 14.08.2014,
PASSED IN O.S.NO.08/2012, ON THE FILE OF SENIOR CIVIL JUDGE
AND JMFC, HUNGUND, PARTLY DECREEING THE SUIT FILED FOR
DECLARATION, PARTITION AND POSSESSION & ETC.
THIS RFA HAVING BEEN HEARD AND RESERVED FOR
JUDGMENT ON 07.07.2023 COMING ON FOR PRONOUNCEMENT OF
JUDGMENT, THIS DAY, THE COURT DELIVERED THE FOLLOWING:
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JUDGMENT
Plaintiff in O.S. No. 8/2012 on the file of the learned
Senior Civil Judge & JMFC, Hunagund (hereinafter referred to
as the trial Court), is impugning the judgment and decree
dated 14.08.2014, decreeing the suit of the plaintiff in part and
holding that she is entitled for 1/36th share in the suit schedule
item No. A (1 to 3) and Item No. B(1) of 'B' schedule while
rejecting her claim for the relief of declaration and partition of
her share in item No. B(2) of 'B' schedule property.
Parties shall be referred to as per their ranks before the
trial Court.
2. Brief facts of the case are that the plaintiff filed the suit
O.S. No. 8/2012 before the trial Court against defendant nos.1
to 7 seeking declaration that the sale deed dated 03.12.1994
executed by defendant nos.1 to 5 in favour of defendant no. 7
in respect of CTS No. 2880, fully described in schedule 'B' is not
binding on her 1/6th share and also for partition and separate
possession of her share in all the suit schedule properties.
It is contended that defendant nos.1 to 5 have illegally
alienated the property bearing CTS No. 2880 measuring
12346.40 sq.mts. situated at Hunagund town in favour of
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defendant no. 7 under the registered sale deed dated
03.12.1994 and the same is not binding on her. It is
contended that plaintiff and defendant nos.1 to 5 constitute a
joint family and late Sangappa Honavad is the propositor.
Therefore after the death of the propositor Sangappa and his
wife Gangamma, their children, i.e., plaintiff and defendant
nos.1 to 5 acquired equal right over the property.
It is stated that during the lifetime of the propositor
Sangappa, he converted R.S. No. 464/3 measuring 3.02 acres
into non agricultural purpose and got the order dated
15.12.1966 from the office of the Assistant Commissioner,
Bagalkot. In the said land, layout was formed which consist of
18 sites. During the lifetime of Sangappa he sold site no. 1 in
favour of Mahantappa Shivabasappa Huddar, under the sale
deed dated 10.08.1970. The remaining 17 sites were inherited
by the plaintiff and defendant nos.1 to 5 as the legal
representatives of their father and mother, i.e., Sangappa and
Gangamma.
It is also contended that defendant No.1 being the eldest
member in the family was managing the affairs of it.
Defendant nos.2 to 5 were residing at different places on their
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avocation. But, however defendant nos.1 to 5 illegally sold
item no. B(2) of 'B' schedule. The plaintiff is not a party to the
same and therefore the same is not binding on her share. The
plaintiff came to know about the said sale very recently and
therefore sought for partition and separate possession of her
1/6th share in all the properties.
'B' schedule appended to the plaint describes items A (1
to 3) bearing R.S. No. 129/1 measuring 15.06 acres, R.S. No.
129/2A measuring 7 acres, and R.S. No. 129/2B measuring
7.27 acres situated at Timmapur village, Hunagund Taluk. The
schedule describes item no. B(1 and 2) as site nos. 39 and 40
in property no. 325/1, CTS No. 2880, property no. 2396
measuring 12346.40 sq.mtrs. in Hunagund Pattan Panchayat.
The plaintiff filed the memo stating that property A (1 to
3) and B(1) in 'B' schedule are the ancestral coparcenary
properties of plaintiff and defendant nos.1 to 5 and therefore
the plaintiff is entitled for 1/36th share as per Section 6 of the
Hindu Succession Act and item no. B(2) in schedule 'B' is the
separate properties of her father and therefore she is entitled
for 1/6th share u/s 8 of the Hindu Succession Act.
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3. Defendant nos.2 to 5 have filed their written statement
denying the contentions taken by the plaintiff. It is admitted
that plaintiff and defendant nos.1 to 5 are the members of the
Hindu undivided family and description of the property in
schedule 'B' is also admitted. Contention of the plaintiff that
propositor Sangappa was cultivating the lands and he left
behind his wife Gangamma and children, i.e., plaintiff and
defendant nos.1 to 5 is admitted. It is admitted that
Gangamma also died during 2000. It is also admitted that
Sangappa during his lifetime converted 3.2 acres of land in Sy.
No. 464/3 of Hunagund into non agricultural one and formed as
many as 18 sites. Virtually the defendants have admitted
contentions of the plaintiff and further stated that even though
they have executed the sale deed dated 03.12.1994 in favour
of defendant no. 7, the same was not entitled to be acted upon.
The sale deed was executed as security for the loan obtained.
Defendants contended that the plaintiff got married by
spending huge amount. She was given gold and silver articles.
She was also given valuable gifts which was more than her
share in the schedule property. Therefore, it is contended that
she is not entitled for any share in the schedule property.
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4. Defendant No. 7 filed the written statement denying the
contentions taken by the plaintiff. It is denied that the sale
deed dated 03.12.1994 executed by defendant nos.1 to 5 in
respect of CTS No. 2880 of Hunagund town is not binding on
her. It is denied that plaintiff and defendant nos.1 to 5 were
members of the Hindu Undivided Family, however, it is
admitted that they are the children of late Sangappa. It is also
admitted that schedule properties were owned by Sangappa
during his lifetime and he died on 22.02.1988. His wife
Gangamma also died. It is admitted that Sangappa sold one
item of the property during his lifetime. It is also admitted that
defendant no.1 was managing the affairs of the family for and
on behalf of the defendant nos.1 to 5.
It is contended that defendant nos.1 to 5 by accepting
the valid consideration sold CTS No. 2880 under the registered
sale deed in favour of defendant no.7. This fact was very much
within the knowledge of the plaintiff as she is also the
permanent resident of Hunagund Town. The plaintiff adopted
the son of defendant no.1 and under such circumstances, she
could not have pleaded ignorance about the sale transaction. It
is also contended that defendant no. 7 after purchasing the
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lands constructed a house over the same. Therefore, the suit
of the plaintiff is not maintainable in respect of item no. B(2) of
Schedule 'B'. It is stated that defendant No. 7 is a bonafide
purchaser for value and hence the suit of the plaintiff is liable to
be dismissed.
5. Defendant No.1 filed the memo adopting the written
statement filed by defendant nos.2, 3, 4 and 5.
6. On the basis of these pleadings, the following issues and
additional issues were came to be framed.
1. Whether plaintiff proves that, she and defendant No.1 to
5 are the joint family members?
2. Whether plaintiff proves that, registered sale deed dated
03.12.1994 in respect of CTS No. 2880 (Pattan Panchayat No.
2396) executed by defendant No.1 to 5 in favour of defendant
No. 7 is not binding on her?
3. Whether plaintiff proves that, she has got 1/6 share in
the suit properties?
4. What order or decree.
Addl. Issue.
1. Whether defendants No.1 to 5 prove that, the alleged
sale deed dated 03.12.1994 in respect of CTS No. 2880 is a
nominal sale deed and executed for security of hand loan?
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7. Plaintiff examined herself as PW1 and got marked Exs.P.1
to 23 in support of her contention. Defendant No.1 examined
himself as DW1 and got examined DWs.2 and 3 and got
marked Exs.D.1 to D.30 in support of their defence. The trial
Court after taking into consideration all these materials on
record came to the conclusion that the plaintiff is entitled for
1/36th share in item nos. A (1 to 3) and B(1) of 'B' schedule but
she is not entitled for share in item no. B(2) of 'B' schedule
property. Accordingly, suit of the plaintiff was partly decreed.
Being aggrieved by the same, the plaintiff is before this Court.
8. I have heard Sri Arunachal P. Hegde, learned counsel for
the appellant, Sri Mrutyunjaya S. Hallikeri, learned counsel for
respondent nos.1 to 5 and Sri S.B. Hebballi, learned counsel for
respondent No.7.
9. Learned counsel for the appellant contended that
relationship between the parties as stated in schedule 'A' is
admitted. The trial Court decreed the suit of the plaintiff in
respect of item no. A (1 to 3) and B(1) of Schedule 'B' but
rejected the claim in respect of item no. B(2) of 'B' Schedule.
When admittedly item no. B(2) of 'B' schedule was belonging to
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Sangappa, the father of plaintiff and defendant nos.1 to 5, the
defendant could not have sold the same in favour of defendant
no. 7 under the registered sale deed behind the back of the
plaintiff. The said sale is not binding on the share of the
plaintiff.
10. It is contended that item no. B(2) in 'B' schedule consists
of 17 sites and in one portion defendant no. 7 constructed a
residential house. No third party interest was created by
defendant no. 7 till now. Plaintiff had never relinquished her
right over the said item of property. Ex.D.26 is not admitted
by the plaintiff. There is no registered deed to suggest
relinquishment of her right. At the most, she must have given
consent to enter the names of her brothers in the schedule
properties. Defendant No. 7 is not a bonafide purchaser for
value. Plaintiff in fact had filed I.A. No. 22 before the trial
Court to frame additional issue as to whether defendant No. 7
is a bonafide purchaser or not. The said application was
dismissed by the trial Court without any basis. Defendant No.
7 has not proved that he is the bonafide purchaser for value.
All the parties to the suit are residing in Hunagund town.
Defendant No. 7 was very well aware of the right of the
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plaintiff. Under such circumstances, his contention that he is
the bonafide purchaser of the property from defendant nos.1 to
5 cannot be accepted. DW2 during cross examination
categorically stated that defendant nos.1 to 5 are having
mother and a sister. The trial Court ignored all these facts and
circumstances and rejected her claim over item B(2) of
Schedule 'B' without any basis.
11. Learned counsel also submitted that as per Ex.D.29-the
copy of the sale deed, the guideline value of the property was
Rs.1,65,000/- but it was sold for a paltry sum of Rs.65,000/-.
From all these facts and circumstances it could be safely
concluded that defendant no. 7 is not a bonafide purchaser for
value and he knowing fully well about the right of the plaintiff
ventured to purchase the property for a nominal sum. That will
not affect right of the plaintiff. Therefore, he prays for allowing
the appeal and decreed the suit of the plaintiff as prayed for.
12. Per contra, learned counsel for defendant no.7/
respondent no. 7 opposing the appeal submitted that plaintiff
has taken a specific stand in paragraph nos.15 and 16 of the
plaint that father of plaintiff and father of defendant no.6 were
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friends. Therefore, it is said that defendant no. 6 was in a
dominant position and influenced defendant nos.1 to 5 to
execute the sale deed. Even though such a plea of undue
influence is taken by the plaintiff, there is no proper pleadings
nor there is any evidence in support of the same.
13. Defendant nos.1 to 5 have never pleaded undue
influence. The only defence taken by them is that the sale
deed was executed in favour of defendant no. 7 but it was a
nominal document. Defendant nos.1 to 5 have never sought
for a counter claim seeking the relief in respect of the sale
deed.
14. Learned counsel contended that even though such a
serious allegations are made against defendant no. 6, the
appeal against him who is arrayed as respondent no. 6 in the
appeal is already came to be dismissed. Under such
circumstances, the said contention taken by the plaintiff against
both the defendant nos.6 and 7 will not sustain.
15. Learned counsel contended that Sangappa, the father of
the plaintiff and defendant nos.1 to 5 died in the year 1988.
The plaintiff had given a statement giving up her right over the
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schedule properties and submitting 'No Objection' to enter the
names of her brothers, i.e., plaintiff nos.1 to 5, in the revenue
records. The sale deed was executed by defendant nos.1 to 5
in favour of defendant no.7 on 03.12.1994. Under such
circumstances, plaintiff cannot seek any relief in respect of the
property that was sold in favour of defendant no.7.
16. Learned counsel further submitted that it is a collusive
suit filed by the plaintiff at the behest of defendant nos.1 to 5.
It is defendant nos.1 to 5 who are behind the screen to take
advantage of their own actions. Plaintiff, defendant nos.1 to 5
and defendant no. 7 are all the residents of Hunagund town.
Under such circumstances, she cannot plead ignorance about
the sale of item no. B(2) of 'B' schedule that too when
defendant No.7 is residing in the said property.
17. Learned counsel submitted that during cross-examination
of PW1, in her anxiety to deny the contentions of defendant
no.7 she has denied everything and even her signature found
on her vakalath, which is marked as Ex.D.1. That shows the
conduct of the plaintiff and therefore she is not entitled for any
relief.
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18. Learned counsel further submitted that the trial Court has
taken into consideration the materials on record and formed an
opinion that plaintiff herself consented to enter the names of
defendant nos.1 to 5 in the revenue records and knowing fully
about the sale transaction, she cannot seek share over the
property which was already sold in favour of defendant no.6.
There is no illegality or perversity in the impugned judgment
and decree passed by the trial Court. Therefore, prayed for
dismissal of the appeal with costs.
19. Learned counsel for respondent nos.1 to 5 has not
address his arguments.
20. Perused the materials on record including the trial Court
records.
21. The point that arises for consideration in this appeal is:
Whether the impugned judgment and decree
passed by the trial Court calls for interference by
this Court?
22. My answer to the above point is in the negative for the
following:
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REASONS
23. The admitted facts of the case are that Sangappa, father
of the plaintiff and defendant nos.1 to 5, acquired the schedule
properties and he was in possession and cultivation of the
same. The dispute between the parties is only in respect of
item no. B(2) of Schedule 'B', as the same was sold by
defendant nos.1 to 5 excluding the plaintiff, in favour of
defendant no. 7 under the sale deed dated 03.12.1994 which is
produced as per Ex.D.29, copy of which is produced by the
plaintiff as per Ex.P.20. The suit was filed by the plaintiff on
22.02.2012 contending that she came to know about the sale
by defendant nos.1 to 5 in favour of defendant no. 7 very
recently. Plaintiff admits that out of 18 plots formed by her
father in item no. B(2), one site was sold by him during his
lifetime. During cross-examination she pleaded ignorance that
defendant nos.1 to 5 were having financial need and therefore
sold the schedule property in favour of defendant no.7.
24. Plaintiff admits that she is the permanent resident of
Hunagund where she is residing in her own house since about
20 years. Defendant No.1 is also the resident of Hunagund and
their houses are situated very nearby. Plaintiff admits that she
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adopted the son of defendant No.1 and she is having good
relationship with her brothers. But however she states that at
present they were not having cordial relationship. Witness
denied that she has given a statement giving up her right over
the property before the revenue officials. She admits that she
had studied upto Metric and knows reading and writing in
Kannada. Witness stated that even after her father died in the
year 1988, she has not given any application to enter her name
in the revenue records. Witness denied suggestion that since
date of sale deed, defendant no. 7 is in exclusive possession
and enjoyment of item no. 2(b) of Schedule 'B'. Witness
denied the suggestion that defendant nos.2 to 5 have executed
the power of attorney in favour of defendant no.1 and on the
basis of the same, he sold the said property in favour of
defendant no. 7.
25. Defendant No.1 examined himself as DW1 denying the
rights of the plaintiff over the schedule property. However,
during cross-examination he admits that her sister had never
gave up her share over the schedule properties. He admits
that he has executed the sale deed in favour of defendant no.7.
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He also admits that defendant no. 7 is in possession of item
no.B(2) of schedule 'B'.
26. Son of defendant No. 7 examined himself as DW2 and
reiterated the contentions of defendant no. 7 that she is a
bonafide purchaser for value and that the plaintiff is not having
any right over the same. During cross examination witness
admits that he is residing in the house situated in the schedule
property. Witness admitted that at the time of getting the sale
deed from defendant nos.1 to 5 he was knowing that they are
having their mother and sister but they have not enquired their
mother and sister about their right. However, witness states
that since as per the revenue records it is only defendant nos.1
to 5 who are the owners of the property, they have not
enquired the plaintiff or her mother.
27. DW3-Veerappa Chatter is the witness examined on behalf
of defendant nos.1 to 5 to contend that there was no partition
amongst plaintiff and defendant nos.1 to 5 and that defendant
no. 7 has lent an amount to defendant nos.1 to 5 and as
security defendant nos.1 to 5 have executed the sale deed and
it is a nominal document. During cross-examination witness
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admits that plaintiff is also the resident of Hunagund town and
she adopted the son of defendant no.1. He admits that there is
cordial relationship between plaintiff and defendant nos.1 to 5.
Defendant nos.2 to 5 are graduates and they are in different
jobs. Witness admits that he is an Administrative Sheristedar
in a Bank. Witness states that on 03.12.1994 hand loan note
was executed and registered and he is the signatory to the
same. Defendant nos.1 to 5 have received Rs.65,000/- from
defendant no.7. Defendant no.1 was working as a Teacher in a
High School. He pleaded his ignorance as to whether
defendant nos.1 to 5 have repaid the loan of Rs.60,000/-
obtained by them.
28. Learned counsel for the appellant placed reliance on the
decision in U.G.Srinivasa Rao V. Vinaykumar and Others1
in support of his contention that any alienations made by the
co-sharers without the consent of the other co-sharer is void
insofar as the co-sharers who have not consented to the said
alienation.
2004(3) KCCR 1637
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29. In the light of the oral and documentary evidence, the
contention of defendant nos.1 to 5 that they have executed a
nominal sale deed in favour of defendant no. 7 by accepting a
paltry sum of Rs.65,000/- cannot be accepted. Defendant no.1
who was managing the affairs of the family was working as a
Teacher in a High School, as admitted by DW3. Defendant
nos.2 to 5 are also graduates and are employed and are
residing at different places.
30. It is pertinent to note that plaintiff and defendant no.1
are the residents of Hunagund town. The house of plaintiff and
defendant no.1 are situated nearby and plaintiff has adopted
the son of defendant no.1. Plaintiff was aged 58 years when
she filed the suit. In the light of these undisputed facts, the
contention of the plaintiff as set out in the plaint is to be
appreciated.
31. Defendant No. 7 is placing reliance on Ex.D.26-the
statement of the plaintiff dated 27.12.1989 given before the
City Surveyor to the effect that she has 'No Objection' to enter
the names of defendant nos.1 to 5 in the revenue records. She
stated that she is already married and her father spent more
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than her share in the property, to arrange her marriage.
Therefore she is giving up her right in favour of her brothers.
Similar statement as per Ex.D.25 was also said to have been
given by Smt. Gamgamma-the mother of the plaintiff and
defendant nos.1 to 5. It is pertinent to note that both these
statements were recorded on 27.02.1989, i.e., immediately
after the death of her father Sangappa in the year 1988. Her
mother Gangamma died in the year 2000. The plaintiff filed
the suit in the year 2012. In the light of these facts and
circumstances, the contentions of the plaintiff that she was
never knowing about the sale deed executed by defendant
nos.1 to 5 or that she has not consented to enter the names of
their brothers only in the revenue records, cannot be accepted.
32. DW3 who was examined in support of the defence taken
by the plaintiff and defendant nos.1 to 5 categorically stated
that relationship between plaintiff and defendant no.1 is cordial
even till date and the son of defendant no.1 was adopted by
the plaintiff. This evidence goes a long way in deciding the
matter and it probabalizes the defence taken by the defendant
no.7 that defendant no.7 himself is behind the screen in filing
the suit through the plaintiff. When admittedly defendant no. 1
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is in possession of the property and residing in the house
situated therein at Hunagund town, the plaintiff who is the
permanent resident of the said town could not have pleaded
ignorance about the alienation of the property. Therefore, I do
not find any bonafides in the contentions raised by the plaintiff.
The only conclusion that could reasonably reached is that the
plaintiff has permitted her brothers, viz., defendant nos.1 to 5
to enter their names in the schedule property as per her
statement marked as Ex.D.26, she never raised any objection
for her brothers alienating the schedule property but
subsequently when there is rise in the market value of the item
no. B(2) of schedule 'B' property, they thought of filing the suit
seeking share over the same. The inconsistent stand taken by
the defendant no.1 strengthens such a possibility. Therefore, I
am of the opinion that the plaintiff is not entitled for any share
over item no. B(2) of Schedule 'B'.
33. The decision of the co-ordinate bench of this Court in
U.G.Srinivasa Rao (supra), is not applicable to the facts of the
present case for the reason that the plaintiff had voluntarily
permitted the names of defendant nos.1 to 5 to be entered in
the revenue records and not bothered to seek her share over
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the schedule property till 2012 even after death of her father in
the year 1998. She has not raised any objection inspite of the
fact that defendant no.7 was put in possession of the said
property after purchase of the same under the registered sale
deed even though she is also the resident of the same town-
Hunagund.
34. I have gone through the impugned judgment and decree
passed by the trial Court. It has taken into consideration the
materials on record in proper perspective and has arrived at a
right conclusion. I do not find any reason to interfere with the
same. Hence, I answer the above point in the negative and
proceed to pass the following:
ORDER
The appeal is dismissed with costs.
The judgment and decree dated 14.08.2014 passed in
O.S. No. 8/2012 on the file of the learned Senior Civil Judge &
JMFC, Hunagund, is hereby confirmed.
Send back the trial Court records with a copy of the
judgment.
SD/-
JUDGE
