Karnataka High Court
Javali Kalmateppa vs A. Manohar on 25 July, 2023
Bench: Rajendra Badamikar
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RSA No. 5654 of 2013
IN THE HIGH COURT OF KARNATAKA,
DHARWAD BENCH
DATED THIS THE 25TH DAY OF JULY, 2023
BEFORE
THE HON'BLE MR JUSTICE RAJENDRA BADAMIKAR
REGULAR SECOND APPEAL NO. 5654 OF 2013
BETWEEN
JAVALI KALMATEPPA
S/O MAHANTHAPPA,
AGE: 69 YEARS,
OCC: AGRICULTURE AND BUSINESS,
R/O: CHITTAVADAGI AREA,
HOSPET, TALUK: HOSPET,
DIST: BELLARY-583101.
...APPELLANT
(BY SRI. V.M.SHEELVANT, ADVOCATE)
AND
Digitally
signed by
YASHAVANT
YASHAVANT NARAYANKAR
NARAYANKAR Date:
2023.07.26
16:55:01 -
1. A. MANOHAR
0700
S/O T.M. ANGAMUTTU,
AGE: 47 YEARS,
OCC: AGRICULTURE,
R/O: AMARAVATHI AREA,
HOSPET, HOSPET TALUK,
DIST: BELLARY-583101.
2. JAVALI RUDRAPPA
S/O MAHANTHAPPA,
AGE: 60 YEARS,
OCC: AGRICULTURE,
R/O: CHITTAVADAGI AREA,
HOSPET TALUK, HOSPET,
DIST: BELLARY-583101.
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RSA No. 5654 of 2013
3. JAVALI SANJAY
S/O JAVALI RUDRAPPA,
AGE: 33 YEARS,
OCC: AGRICULTURE,
R/O: CHITTAVADAGI AREA,
HOSPET TALUK, HOSPET,
DIST: BELLARY-583101.
4. SMT. ROHINI
W/O VIRUPAXI BEMBALAGI,
AGE: 27 YEARS,
OCC: HOUSEWIFE,
R/O: CHITTAVADAGI AREA,
HOSPET TALUK, HOSPET,
DIST: BELLARY-583101.
...RESPONDENTS
(BY SRI. HANUMANTHREDDY SAHUKAR ADV. FOR R1;
R2, R3 AND R4-NOTICE SERVED)
THIS RSA IS FILED U/S.100 OF CPC, AGAINST THE
JUDGMENT AND DECREE DTD:02.04.2013 PASSED IN
R.A.NO.23/2012 ON THE FILE OF THE PRESIDING OFFICER, FAST
TRACK COURT-III AT HOSPET, DISMISSING THE APPEAL FILED
AGAINST THE JUDGMENT DTD: 17.04.2012 AND THE DECREE
PASSED IN O.S.NO.13/2010 ON THE FILE OF THE ADDL, SENIOR
CIVIL JUDGE AND JMFC., HOSPET, DISMISSING THE SUIT FILED
FOR PRE-EMPTION.
THIS APPEAL HAVING BEEN HEARD AND RESERVED ON
18.07.2023, COMING ON FOR PRONOUNCEMENT, THIS DAY
COURT DELIVERED THE FOLLOWING.
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RSA No. 5654 of 2013
JUDGMENT
This appeal is filed under Section 100 of the Code of
Civil Procedure, 1908 by the plaintiff challenging the
judgment and decree passed in O.S.No.13/2010 by the
learned Additional Senior Civil Judge & J.M.F.C., Hospet,
and confirmed by the learned Fast Track Court-III, Hospet,
in R.A.No.23/2012.
2. For the sake of convenience, the parties herein
are referred with the original ranks occupied by them
before the Trial Court.
3. The brief factual matrix leading to the case are
that, one Mahanthappa Javali of Hospet was the propositus
of the family. The plaintiff, defendant No.2, Ashok,
Channabasappa and Rajashekhar are the sons and
Vijayalaxmi, Akkamahadevi, Shankramma and
Premaganga are the daughters of Mahantappa and
Shambullingamma. That the mother died in the year 1998
leaving behind her sons and daughters as her successors.
RSA No. 5654 of 2013
The suit schedule properties were under the ownership of
propositus Mahanthappa and he was in possession and
enjoyment during his life-time and his name was mutated.
After his death in 1986, the plaintiff, defendant No.2 and
his other brothers as well as the daughters succeeded to
the suit properties as Class-l heirs. It is alleged that
defendant No.2, Ashok and Channabasappa filed a suit
in O.S.No. 126/2001 in the Civil Judge's Court (Sr.Dn),
Gadag for partition and separate possession of their share
in the suit schedule properties and the said suit came to
be dismissed and RFA No.417/2008 is pending. In spite of
filing of the suit for partition, defendant no.2 made an
attempt to alienate the suit properties along with
defendant nos.3 and 4 and hence, plaintiff objected for the
same. Defendant No.2 along with defendant No.3 and 4
have sold the suit properties in favour of defendant No.1
for a consideration of Rs.9,25,000/- under a registered
sale deed dated 02.02.2010 which is illegal and invalid.
The plaintiff has got preferential right to purchase these
properties and hence, the suit.
RSA No. 5654 of 2013
4. Defendant no.1 filed his written statement
claiming that he is the bonafide purchaser for value
without notice and he is in possession of the suit schedule
properties and he has developed the suit schedule
properties. Defendant no.2 filed his written statement
admitting the relationship between the parties. He has
contended that propositus Mahanthappa during his life-
time effected partition in respect of agricultural lands
including the suit schedule properties and contended that
the present suit properties were fallen to the share of
defendant No.2 and other brothers were allotted other
agricultural lands as their legitimate shares. It is asserted
that the respective parties were enjoying the properties
fallen to their respective shares independently and they
have become exclusive owners. He admitted filing of the
suit in O.S.No.126/2001 and dismissal. It is asserted that
plaintiff who was defendant no.1 in the said suit asserted
in the suit regarding a partition in respect of agricultural
lands and exclusive possession of the respective parties.
Iti s asserted that partition was effected in the year 1971
RSA No. 5654 of 2013
and 1974 during the lift-time of their father regarding
agricultural lands and defendant No.2 borrowed the loan
by mortgaging the suit schedule properties and sold suit
schedule properties. It is also asserted that defendant
no.2 has also sold other properties and plaintiff has not
whispered anything regarding other property and hence,
he disputed the claim.
5. The Trial Court on the basis of these pleadings,
framed following issues:
ISSUES
"1. Whether the plaintiff proves that he has
got a preferential right to purchase the Suit
schedule properties as pleaded in the plaint 2
2. Whether the plaintiff further proves that,
in favour of defendant No.1 and 2 on 2.2.2010
is invalid and not binding on the plaintiff 7
3. Whether the plaintiff is entitled to the relief
as sought for?
4. What Order or Decree?"
6. The plaintiff was examined himself as P.W.1
and placed reliance on 46 documents marked at Ex.P1 to
RSA No. 5654 of 2013
P46 while defendant Nos.1 and 2 were examined as
D.W.Nos.1 and 2 and they placed reliance on 14
documents, marked as Ex.D1 and 14.
7. Having heard the arguments and after
appreciating the oral and documentary, the learned trial
Court has answered issued Nos.1 to 3 in the negative and
ultimately dismissed the suit.
8. Being aggrieved by this judgment and decree,
the plaintiff has approached the learned District Court,
Ballary and mater came to be transferred to Fast Track
Court-III, Hospet, in R.A.No.23/2012. The learned District
Judge after re-appreciating oral as well as documentary
evidence, by order dated 02.04.2013 dismissed the appeal
by confirming the judgment and decree of the Trial Court.
9. Being aggrieved by these concurrent findings,
the plaintiff is before this Court. While admitting the
appeal on 11.06.2020 this Court framed following
substantial question of law:
RSA No. 5654 of 2013
"Whether the judgment and decree of the
Trial Court and Appellant Court holding that
preferential rights to purchase an agricultural
land was not available under Section 22 of
Hindu Succession Act, can be sustained in the
light of the judgment rendered by the Apex
Court in the case of " Babu Ram V/s.
Santokh Singh" reported in 2019 (14) SCC
162?"
10. Heard the arguments advanced by the learned
counsel for the appellant and learned counsel for the
respondents. Perused the records.
11. Learned counsel for the appellant would
contend that the suit is for preferential right pertaining to
3 suit schedule properties which are admittedly joint
family properties of plaintiff and defendant no.2. He
contended that defendant no.2 along with other two
brothers filed O.S.No.126/2001 which was dismissed and
in the said suit injunction was obtained against plaintiff
from alienating the suit schedule properties and this fact is
evident form Ex.P39 and MFA filed against the said order
came to be dismissed. He would also contend that the
plaintiff has issued public notice under Ex.P35 and P36 and
defendant no.2 inspite of knowledge sold the suit lands on
RSA No. 5654 of 2013
02.02.2010 to defendant no.1 which is witnessed by
defendant nos.3 and 4 and transaction is hit by Section 52
of the Transfer of Property Act. He would contend that
both the Courts below have rejected the claim only on the
ground that the suit schedule property are agricultural
lands and Section 22 of Hindu Succession Act do not apply
to the agricultural lands. He would contend that the
present suit properties were part of earlier suit and in view
of the decision reported on (2019) 4 SCC 162 the
agricultural land is also covered under Section 22 of the
Act and hence, both the Courts below ought to have
granted preferential right in his favour. Hence, he would
seek for allowing the appeal.
12. Per contra, the learned counsel for the
respondents would contend that the land sold was
separately situated and admittedly, the lands belong to
plaintiff are not adjoining to the said land. He would also
invite the attention of the cross examination of PW1
wherein he has admitted severance in joint family during
the life time of his father itself prior to 1986 and hence,
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RSA No. 5654 of 2013
question of enforcing preferential right at the belated
stage does not arise at all. He would also assert that
there was earlier partition and parties have already
disposed of other properties which were not questioned
and this disclose the mentality of the plaintiff and sought
for dismissal of the appeal.
13. Having heard the arguments and perusing the
records, there is no serious dispute of the fact that the
plaintiff and defendant no.2 are brothers. It is also an
admitted fact that defendant no.2 had filed O.S.No.
126/2001 seeking partition in the joint family properties
and the said suit came to be dismissed and subsequently,
it was remanded back. Both parties have not at all
disclosed what is the fate of the suit after remand as from
the available records, it is evident that in RFA 417/2008
c/w RFA 495/2008 the matter was remanded. Both the
parties are silent regarding the ultimate out come of the
O.S.No.126/2001.
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RSA No. 5654 of 2013
14. Since the plaintiff has approached this Court
seeking preferential right, the initial burden is on him to
establish as to what is the ultimate result of partition suit.
15. At the same time, it is also important to note
here that the plaintiff herein was defendant no.1 in
O.S.No.126/2001 and has contested the suit for partition
on the ground of earlier partial partition pertaining to
agricultural lands. Though in this proceedings, he disputed
this aspect but, the records disclose that partial partition
pertaining to agricultural land was admitted that too long
back.
16. In this regard, cross examination of PW1 is also
relevant wherein he has admitted that his father died in
the year 1986. He also admits that in 1992 itself, they
started residing separately. When a suggestion was made
regarding partition in agricultural lands, he denied the said
suggestion, but, he claims that his father mutated the
names of respective parties to the separate properties. He
further asserts that he do not know whether it was by way
of partition or by way of gift. He is law graduate and when
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RSA No. 5654 of 2013
he is a law graduate, it is hard to accept his explanation
that he do know whether it was a partition or a gift. But,
in unequivocal terms, he admitted that during life time of
his father, he has mutated the names of receptive parties
to different properties. Even in his cross-examination, he
further admits that the property was allotted in his favour,
he has got partitioned the same between himself and his
son. If this admission is taken into consideration, then
virtually he is admitting the earlier partition which now he
is tries to dispute though he being a law graduate. Even
during subsequent cross examination, he has also
admitted that the name of his son is mutated to his share
on the ground of partition and even he admitted that
name of defendant no.2 was mutated in view of partition.
He admits the mutation entries on the basis of partition
and further admits that the other brothers and sisters
have also got mutated the properties in their respective
names.
17. Even he has admitted that defendant no.2 in
1997 itself sold some of the land to one Sanna Fakirappa
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RSA No. 5654 of 2013
and he had knowledge of the same in 1997 itself.
Interestingly, the plaintiff has not sought any preferential
rights then and all along he asserts partial partition in
agricultural land, but, now he is disputed partial partition
and wants to take advantage of suit in OS no.126/2001
claiming that he has got preferential rights.
18. Further cross examination of PW1 disclose that
in 1974 itself, the agricultural lands were mutated in his
name as well as in the name of his brother separately. He
has also admitted that defendant no.2 has mortgaged the
suit schedule properties to State Bank of India and
Pragrati Grameen Bank by availing loan of Rs.15,25,000/-.
These admission on the part of PW1 clearly establish that
since long time, the plaintiff and defendants are enjoying
the agricultural lands independently and there was
severance prior to the death of father itself as the father
effected the partition. Same was also observed in RFA
which was disposed off remanding OS No.126/2001.
These findings prima facie establish severance at this
juncture on the basis of available records.
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RSA No. 5654 of 2013
19. The plaintiff has filed the suit for preferential
right in the year 2010. He did not issue any notice to
defendant no.2 and his contention is that he has obtained
injunction against him. Admittedly, the plaintiff had
knowledge that defendant no.2 was making efforts to
alienate the suit schedule property. In that event, he
could have issued a notice to defendant no.2 expressing
his willingness to purchase the suit schedule property by
exercising preferential right under Section 22 of the Hindu
Succession Act. But, he did not do so and obtained a
injunction which disclose his intention. Section 22 of the
Hindu Succession Act reads as under:-
22. Preferential right to acquire property in certain cases
(1) Where, after the commencement of this Act,
an interest in any immovable property of an intestate, or
in any business carried on by him or her, whether solely
or in conjunction with others, devolves upon two or more
heirs specified in class I of the Schedule, and any one of
such heirs proposes to transfer his or her interest in the
property or business, the other heirs shall have a
preferential right to acquire the interest proposed to be
transferred.
(2) The consideration for which any interest in the
property of the deceased may be transferred under this
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RSA No. 5654 of 2013
section shall, in the absence of any agreement between
the parties, be determined by the court on application
being made to it in this behalf, and if any person
proposing to acquire the interest is not willing to acquire it
for the consideration so determined, such person shall be
liable to pay all costs of or incident to the application.
(3) If there are two or more heirs specified in
class I of the Schedule proposing to acquire any interest
under this section, that heir who offers the highest
consideration for the transfer shall be preferred.
20. No doubt earlier Section 22 was not made
applicable to agricultural lands. But, however, the Hon'ble
Supreme Court in a decision reported in Babu Ram V/s.
Santokh Singh (deceased) through his LRs. and
others reported in 2019 (14) SCC 162 has held that
Section 22 is applicable to agricultural lands also.
21. It is evident that preferential right can be
exercised in any immovable property of a intestate. That
means when the property is being inherited, the other
coparceners can exercise the preferential right. The
intention of the legislation is to see that a third person
shall not come in a joint possession with other family
members. However, in the instant case, the evidence
disclose that the partition was effected in long back
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RSA No. 5654 of 2013
pertaining to agricultural lands and suit lands were of all
along enjoyed by defendant no.2 as his absolute
properties. It is also evident that defendant no.2 has also
sold some other properties in 1997 which were allotted to
him which were also joint family properties. But, no
preferential right was claimed in respect of those
properties.
22. Further, as observed above, the plaintiff before
institution of the suit has not issued any notice for
exercising his preferential right to defendant no.1.
Further, the other coparceners on Class I heirs of
propositus were not included so as to exercise the
preferential rights exclusively and he has also not moved
any application before the Court for determining
consideration and now, he submits that whatever the
consideration amount paid by defendant no.1 to defendant
no.2, he is prepared to pay it. But admittedly, defendant
no.1 has improved the land. It was the duty of the plaintiff
to move an application for determination of the
consideration amount which he has not done. It is not in
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RSA No. 5654 of 2013
dispute that the suit schedule properties are situated
separately. In these suit lands, no share was allotted to
the plaintiff and it is not the case that any portion of the
said survey number is in his possession. Further, PW1
admitted that his property is not abutting the suit schedule
properties and they are separately situated. When there
was already partition long back, after lapse of so many
years, question of exercising preferential right does not
arise at all. No doubt the decision reported in Babu Ram
V/s. Santokh Singh (deceased) through his LRs. and
others reported in 2019 (14) SCC 162 referred above
clarifies that preferential right under Section 22 of the Act
is also applicable pertaining to agricultural lands. But,
when the partition was effected long back, and for years
together, the parties are enjoying property independently,
the question of exercising preferential right at such a
belated stage does not arise at all, that too when the
parties have independently transacted in respect of
various other properties.
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RSA No. 5654 of 2013
23. In view of the facts and circumstances and
considering the conduct of the plaintiff and his cross
examination, it is evident that he has not approached the
Court with clean hands and taking inconsistent and
contrary stands. When he himself has set up defence in
OS no.126/2001 regarding partial partition to the
agricultural lands long back, now, he is disputing this
aspect and under such circumstances, the principles
enunciated in the above said decision referred in Babu
Ram's case cannot be made applicable as preferential
right cannot be exercised at a belated stage when the
parties have partitioned properties long back. Under these
circumstances, the claim of the plaintiff is not sustainable.
24. He has not even made any efforts for depositing
of the consideration amount and nor moved any
application for determining the consideration amount.
Admittedly, Defendant no.1 has developed the suit
schedule property and the preferential right of other
brothers is required to be considered and they were not
impleaded in the suit and the plaintiff could have
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RSA No. 5654 of 2013
impleaded them and then highest bidder would have been
considered. None of these steps were taken by the
plaintiff and he has simply filed the suit for enforcing his
preferential right in respect of the property partitioned
long back. Under such circumstances, the provision of
Section 22 of the Act cannot be made applicable and the
plaintiff by his conduct itself, waived his right in this
regard. Hence, the substantial question is answered in the
affirmative in favour of defendants. As such, the appeal
being devoid of any merits does not survive for
consideration. Accordingly, I proceed to pass the
following:
ORDER
The appeal stands dismissed.
Sd/-
JUDGE
Vmb
