Karnataka High Court
Rangahanumaiah vs Devaraju on 2 June, 2023
Bench: H.P.Sandesh
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RSA No. 209 of 2007
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
ND
R
DATED THIS THE 2 DAY OF JUNE, 2023
BEFORE
THE HON'BLE MR JUSTICE H.P.SANDESH
REGULAR SECOND APPEAL NO. 209 OF 2007 (PAR)
BETWEEN:
1. RANGAHANUMAIAH
NOW DEAD BY LRS
1(a) G.R. RANGASHAMAIAH
S/O. LATE RANGAHANUMAIAH
HINDU, NOW AGED 45 YEARS
R/AT S. GOLLAHALLI, HIREDODDAWADI
KOLALA HOBLI, KORATAGERE TALUK
TUMAKURU DISTRICT-572 140.
1(b) G.R. RAMU
S/O. LATE RANGAHANUMAIAH
HINDU, NOW AGED 41 YEARS
R/AT NO.403, S.R.S.ROAD
NEW LAYOUT, VTC: PEENYA I STAGE
Digitally signed
by SHARANYA T PEENYA SMALL SCALE INDUSTRIES
Location: HIGH BENGALURU NORTH
COURT OF
KARNATAKA BENGALURU-560 058.
1(c) G.R. SREERANGAIAH
S/O. LATE RANGAHANUMAIAH
HINDU, NOW AGED 32 YEARS
R/OF S.GOLLAHALLI, HIREDODDAWADI
KOLALA HOBLI, KORATAGERE TALUK
TUMAKURU DISTRICT-572 140.
1(d) SMT. RAJAMMA
W/O. LATE KEMPARANGAIAH &
D/O. LATE RANGAHANUMAIAH
HINDU, AGED 47 YEARS
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RSA No. 209 of 2007
R/OF BYCHENAHALLI, KOLALA HOBLI
KORATAGERE TALUK
TUMAKURU DISTRICT-572 129.
1(e) SMT. ANNAPOORNAMMA
W/O. KEMPA RAJU &
D/O. LATE RANGAHANUMAIAH
HINDU, AGED 43 YEARS
R/AT BYCHENAHALLI, KOLALA HOBLI
KORATAGERE TALUK
TUMAKURU-572 129.
...APPELLANTS
[BY SRI. T.C. SATHISHKUMAR, ADVOCATE FOR
APPELLANT 1(a) TO 1(e)]
AND:
1. DEVARAJU
S/O. KEMPARANGAIAH
HINDU, NOW AGED 45 YEARS
2. PANDURANGAIAH
S/O. KEMPARANGAIAH
HINDU, NOW AGED 56 YEARS
3. KEMPARANGAIAH
S/O. DANDI RANGAPPA
NOW DEAD R/BY HIS LRS
3(a) SMT. CHIKKARANGAMMA
W/O. LATE KEMPARANGAIAH
HINDU, NOW AGED 65 YEARS
RESIDENT OF S.GOLLAHALLI VILLAGE
KOLALA HOBLI, KORATAGERE TALUK
TUMAKURU DISTRICT.
3(b) SMT.LAKSHMIRANGAMMA
W/O. JAYANNA
HINDU, AGED 34 YEARS
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RSA No. 209 of 2007
R/OF URADAGERE
TUMAKURU TALUK
TUMAKURU DISTRICT.
3(c) SMT. KEMPAMMA
W/O. NARASAIAH
HINDU, AGED 31 YEARS
R/OF AREGUJJANAHALLI VILLAGE
URDAGERE HOBLI,
TUMAKURU TALUK
TUMAKURU DISTRICT.
...RESPONDENTS
(BY SRI. VIJAYA KUMAR &
SRI S.T.THIPPESWAMY, ADVOCATES FOR R1 AND R2;
R3(a), R3(b) AND R3(c) ARE SERVED)
THIS RSA IS FILED U/S. 100 OF CPC AGAINST THE
JUDGEMENT & DECREE DATED 29.09.2006 PASSED IN
R.A.NO.213/2004 ON THE FILE OF THE II ADDL. DISTRICT
JUDGE, TUMAKURU, DISMISSING THE APPEAL AND
CONFIRMING THE JUDGEMENT AND DECREE DATED
13.10.1997 PASSED IN OS.NO.9/1993 ON THE FILE OF THE
MUNSIFF & JMFC, KORATAGERE.
THIS APPEAL COMING ON FOR FINAL HEARING, THIS
DAY, THE COURT DELIVERED THE FOLLOWING:
JUDGMENT
This second appeal is filed challenging judgment and
decree dated 29.09.2006 passed in R.A.No.213/2004 on the file
of the II Additional District Judge, Tumakuru and confirm the
judgment and decree dated 13.10.1997 passed in
O.S.No.9/1993 on the file of the Munsiff and J.M.F.C.,
Koratagere.
RSA No. 209 of 2007
Heard the learned counsel for the appellants and learned
counsel for the respondents.
2. The parties are referred to as per their original
rankings before the Trial Court to avoid confusion and for the
convenience of the Court.
3. The factual matrix of the case of the plaintiffs, while
seeking the relief of partition and separate possession of their
2/3rd share in the suit schedule property is that suit schedule
property is the ancestral Hindu Joint Family property i.e., the
plaintiffs and second defendant. The plaintiffs and second
defendants were in joint possession of the suit schedule
property. The family of the plaintiffs and second defendant was
in affluent circumstances and there was no need to the family
to incur the debts. The first defendant is a stranger to the
family and second defendant has no exclusive right and
possession over the suit schedule property to sell the same.
The first defendant is interfering with the possession of the suit
schedule property. When questioned the same, the first
defendant denied the title of the plaintiffs over the suit
schedule property by saying that he has purchased the suit
RSA No. 209 of 2007
schedule property from the second defendant. It is contended
that the second defendant has no manner of right to alienate
the suit schedule property in favour of any person, much less
the first defendant. The second defendant at worst, can
alienate his share and not the share of the plaintiff Nos.1 and
2. If any alienation is made by the second defendant in favour
of the first defendant, the same is not binding on the plaintiffs.
Hence, sought for the relief of partition.
4. In pursuance of the suit summons, the first
defendant appeared before the Court and filed the written
statement contending that age of the first plaintiff at the time
of filing the suit was 30 years and the second defendant was 28
years of age and the plaintiffs have given false age as 20 years
and 18 years at the time of filing the suit. It is contended that,
in order to prove the fact that the suit is within the law of
limitation, false averments are made in the plaint and suit is
barred by limitation. It is contended that, suit is not filed
within three years, after they have attained the age of
majority. It is contended that the suit schedule property is also
not the Hindu Joint Family property as contended by the
plaintiffs and second defendant and they are also not in joint
RSA No. 209 of 2007
possession as contended in the plaint. It is contended that,
immediately on the date of sale itself, possession was delivered
in favour of the first defendant and hence, the question of joint
possession does not arise. The sale is made by the second
defendant for valuable sale consideration and in order to clear
the loan, he had sold the property and the same is for the
family benefit and legal necessity and hence, there is a cause of
action for filing the suit. It is also contended that, property was
sold in the year 1974 and suit was filed in 1993, almost after
19 years of sale of the property and that too, the second
defendant had obtained loan from P.L.O. Bank, Koratagere for
some other persons and for himself and his family benefit and
in order to discharge the said loan, he had sold the property.
5. The Trial Court, based on the pleadings of the
parties, framed the issues whether the plaintiffs prove that the
suit schedule properties are the joint family property enjoyed
by the plaintiffs and second defendant, whether the plaintiffs
prove that the second defendant has any right to alienate suit
schedule properties in favour of the first defendant, whether
the plaintiffs and second defendant are in possession over the
suit schedule properties, whether the plaintiffs are entitled to
RSA No. 209 of 2007
2/3rd share in the suit schedule properties and whether the
defendants prove that suit schedule properties were sold for
family legal necessities and sale deed was executed on
30.12.1974 and an additional issue is also framed whether the
first defendant proves that the plaintiffs have not filed the suit
within three years after they attained the age of majority for
which the suit is barred by limitation.
6. In order to prove their case, the first plaintiff
examined himself as P.W.1 and also examined two witnesses as
P.Ws.2 and 3 and got marked the documents as Exs.P1 to P9.
The first defendant examined himself as D.W.1 and examined
the four witnesses as D.Ws.2 to 5 and got marked the
documents as Exs.D1 to D24.
7. The Trial Court after considering both oral and
documentary evidence placed on record, answered issue No.1
as 'affirmative', in coming to the conclusion that the suit
schedule properties are joint family properties enjoyed by the
plaintiffs and defendants and the defendants have no exclusive
right to sell the properties. Hence, granted the relief of
RSA No. 209 of 2007
partition of 2/3rd share in the suit schedule properties in favour
of the plaintiffs.
8. Being aggrieved by the judgment and decree of the
Trial Court, an appeal is filed before the First Appellate Court in
R.A.No.213/2004, wherein it is contended that the Trial Court
has committed an error in accepting the joint possession of the
plaintiffs and second defendant while answering issue No.1 and
also committed an error in coming to the conclusion that the
selling of property is not for legal necessity and the second
defendant was not having any absolute right to sell the
properties. It is also contended that the Court below committed
error in accepting the case of the plaintiffs. The Trial Court
failed to consider the contents of the document Ex.D1 and
seriously erred in considering the earlier entry in the year 1978
in RTC in the name of second defendant and failed to
appreciate that respondents have disputed the later entries. It
is further contended that he Lower Appellate Court has
committed an error in holding that second defendant has not
executed Ex.D1 for and on behalf of his minor sons is
unsustainable in law, as the suit schedule properties are not the
ancestral properties. The Lower Appellate Court has erred in
RSA No. 209 of 2007
disbelieving the evidence of D.Ws.2 and 3 and the evidence of
P.W.1 is not creditworthy in accepting the same and failed to
take note of the conduct of the plaintiffs. Hence, the First
Appellate Court formulated the points whether the Trial Court
has erred in decreeing the suit of the plaintiffs without any cost
and answered the same as 'negative', accepting the reasoning
given by the Trial Court and concurred with the finding of the
Trial Court. Hence, this second appeal is filed.
9. This Court, having heard the learned counsel for the
appellants, while admitting the appeal, framed the substantial
question of law considering the grounds urged in the appeal.
The learned counsel appearing for the appellants in the second
appeal would vehemently contend that the suit was filed for the
relief of partition, that too, against the father, who sold the
property and also against the purchaser. The counsel would
vehemently contend that there is no dispute with regard to the
fact that property was sold in 1974 but, suit was filed in 1993,
after lapse of 19 years. It is also contended that the plaintiffs
were aged about 20 and 18 years and intentionally, in order to
prove that the suit is within limitation, they have falsely
mentioned their age as 32 and 28 years.
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10. The counsel would vehemently contend that, while
filing the suit, the first plaintiff himself has signed as
Devarajaiah and also while executing the vakalath, he
mentioned his name as Devarajaiah but, in the suit, he has
mentioned his name as Devaraju. In order to prove the
conduct of the plaintiffs, documents are also produced before
the Court particularly, the document at Ex.D13-Register
Admission Book and while admitting to school, his name is
given as Devarajaiah and the said admission register is also
summoned and marked as Ex.D13. The counsel also would
vehemently contend that suit schedule properties are
purchased in the year 1959 by the father and by that time,
even the plaintiffs were not born and first plaintiff was born in
the year 1961. The counsel also would submit that suit is filed
only for the property which was sold and not included other
family property and suit is filed only for partial partition and the
same is not maintainable. The counsel also would vehemently
contend that the suit is barred by limitation since the same is
not filed within three years after attaining the majority and
both the Courts failed to consider the same and erroneously
decreed the suit and the First Appellate Court also not
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considered the same. Hence, it requires interference. The
counsel also brought to notice of this Court Ex.P5, wherein
Sy.No.42/2 is mentioned in the clearance certificate issued by
the bank. Hence, it is clear that family was having other
property bearing Sy.No.No.42/2. Admittedly, the family is
having other properties, but suit is filed only for the property
which was sold by the father.
11. The counsel also would vehemently contend that,
he has filed two applications under Order 41, Rule 27 of C.P.C.
and documents are also produced before the Court. The
counsel would vehemently contend that, in order to prove the
fact that family was also having other properties, document of
RTCs in respect of land bearing Sy.No.7/3 measuring 17 guntas
of S. Gollahalli Village for the years 2006-2007 and 2007-2008,
copies of RTCs in respect of Sy.No.8/3 measuring 7 guntas of
S. Gollahalli Village for the years 2006-2007 and 2007-2008
and copies of RTCs in respect of Sy.No.76/1 measuring 1 acre,
3 guntas of S. Gollahalli Village for the years 2006-2007 and
2007-2008. The counsel also brought to notice of this Court
that he has also filed additional documents along with memo
dated 07.07.2021 and subsequently, he filed an application in
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RSA No. 209 of 2007
I.A.No.1/2023 for additional documents seeking permission of
the Court to permit them to adduce additional evidence,
wherein also, the learned counsel for the appellants produced
encumbrance certificate in respect of Sy.Nos.7/1, 7/6, 8/5 and
9/6 of S. Gollahalli for the period from 01.04.1950 to
30.03.1975 reflecting execution of registered sale deed in
favour of Kemparangaiah i.e., respondent No.3 on 09.06.1999
and the same lands are subsequently sold in favour of
appellant-Rangahanumaiah under the registered sale deed
dated 30.12.1974.
12. The counsel also would contend that encumbrance
certificates in respect of Sy.Nos.26/1 and 26/2 of S. Gollahalli
for the period from 01.04.1955 to 31.03.1961 reflecting
execution of the registered sale in favour of Kemparangaih i.e.,
respondent No.3 on 09.06.1959. The counsel also would
vehemently contend RTC copies in respect of Sy.No.26/1 of S.
Gollahalli for the period from 1991 to 2002 and 2003 to 2015
measuring 1 acre, 3 guntas, RTC copies in respect of
Sy.No.26/2 of S. Gollahalli for the period from 1991 to 2002
and 2003 to 2015 measurisng 1 acre, 7 guntas, RTC copies in
respect of Sy.No.7/3 and 8/3 of S. Gollahalli for the period
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2015-2016 measuring 17 guntas and 7 guntas respectively
standing in the name of Kemparangiah, W/o. Chikkarangamma,
RTC copies in respect of Sy.Nos.7/1 i.e., 3 guntas, 7/6 i.e., 7
guntas and 8/5 i.e., 6 guntas and 9/6 i.e., 13 guntas of S.
Gollahalli, Kolala Hobli, Koratagere for the period from 2017-
2018 and 2020-2021 are standing in the name of appellant-
Rangahanumaiah. These are the documents which clearly
discloses that the family was having other items of the
properties and in an ingenious method, the suit is filed only for
the relief of partition for the property which was sold excluding
the other family properties. Hence, the Court has to take note
of the conduct of the parties and these are the documents
which require to consider the case with regard to the third
substantial question of law framed by this Court whether the
suit filed only for partial partition is maintainable. Hence, the
applications are required to be allowed.
13. Per contra, learned counsel for the respondents
would submit that these documents are filed in the second
appeal and no proper reasons are assigned to invoke Order 41,
Rule 27 of C.P.C. and Order 41, Rule 27 of C.P.C. specifically
mentions that, if the appellant is diligent and if he is unable to
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RSA No. 209 of 2007
produce the documents before the Trial Court and if he assigns
valid reasons, then only the Court can entertain the application,
otherwise the same cannot be entertained in a second appeal
and there is an inordinate delay in producing the documents.
The counsel also would submit that, when these documents are
admitted in evidence and also given an opportunity to cross-
examine the witnesses with regard to these properties are
concerned, the question of considering the same does not arise.
14. The counsel also would vehemently contend that
the recitals of the sale deed is very clear that the property is
purchased by selling the ancestral property of the second
defendant and hence, it is clear that, it is an ancestral joint
family property and also in the sale deed, it is not stated that
the sale is made for any family necessity and the recitals of the
document at Ex.D1 is very clear with regard to the reason for
selling the property. The counsel also would vehemently
contend that both the Courts have given the reasoning, in
coming to the conclusion that the second defendant was not
having any absolute right to sell the property and at the most,
he could sell the property of his share and not the share of the
plaintiff Nos.1 and 2 and the same has been rightly considered
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by the Trial Court as well as the First Appellate Court. Hence,
there are no grounds to entertain the same.
15. The learned counsel appearing for the respondents
also rely upon the judgment NINGEGOWDA AND OTHERS
VS. K.B. DODDEGOWDA AND OTHERS reported in AIR
1986 KAR 90, wherein also the Division Bench of this Court
discussed with regard to alienation by Karta of joint family
consisting of himself and his sons, legal necessity and
antecedent debts, evidentiary value of recitals in the sale deed,
held that, in the circumstances of case, alienee failed to
discharge onus that he made reasonable and bonafide enquiry
as to existence of necessity for alienation. It is also observed
that the alienee had to establish one of the two things i.e., the
transaction was in fact justified by legal necessity or was for
the benefit of the joint estate or he had made reasonable and
bonafide inquiry as to the existence of the necessity and
satisfied himself that the manager was acting for the benefit of
the estate. The learned counsel referring this judgment would
vehemently contend that the appellants herein have not made
any bonafide enquiry as to the existence of necessity for the
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RSA No. 209 of 2007
alienation. Hence, this judgment is aptly applicable to the case
on hand.
16. Having heard the respective counsel and also the
grounds urged in the appeal and also the principles laid down in
the judgment referred by the learned counsel for the
respondents, this Court has to analyze the material on record.
This Court, while admitting the appeal, framed the following
substantial questions of law:
1) Whether the learned District Judge who has
exercised the appellate power could have
accepted the appeal filed against the
judgment and decree of Civil Judge (Jr.Dn.),
which normally would lie on the Civil Judge
(Sr.Dn.)?
2) Whether the judgment impugned of the
Appellate Court is maintainable in the
absence of specific findings that the suit was
barred by time?
3) Whether the suit only for partial partition was
maintainable?
17. In order to consider these substantial questions of
law and also having considered the material on record, this
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RSA No. 209 of 2007
Court has to consider the finding of appeal filed before the II
Additional District Judge and also the judgment and decree
passed by the Civil Judge, Junior Division. On perusal of the
records, it discloses that appeal was filed before the Civil Judge
and the same is numbered as R.A.No.101/1997 and thereafter,
the same was made over to the District Court. Hence, the
District Court has taken up the matter and considered the
matter on merits. Hence, it is clear that District Judge has
considered the appeal filed against the judgment and decree of
the Civil Judge, Junior Division on merits. Hence, I answer the
first substantial question of law that the District Judge has
exercised the appellate power, in view of the same being made
over to District Court and the appeal was filed rightly before the
Civil Judge, Senior Division and consequent upon transfer, the
same was considered on merits.
18. The second substantial question of law framed by
this Court is whether the judgment impugned of the Appellate
Court is maintainable in the absence of specific findings that
the suit was barred by time. Having considered the reasoning
given by the Trial Court, while the issue pertaining to the
limitation is concerned i.e., additional issue framed by the Trial
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Court with regard to the defense which has been raised that
suit is barred by limitation, answered the same as 'negative'.
The main contention of the appellants is that suit is barred by
limitation and the plaintiffs were aged about 32 years and 28
years respectively, while filing the suit. In order to prove the
same, the plaintiffs secured the document of Ex.D13, which is
the Register Admission Book and the same is dated 08.04.1961
and the suit is filed in 1993 almost after 32 years and
consequently, the age of the first plaintiff is 32 years as on the
date of the suit and the second plaintiff is two years younger to
him and his age would be 30 years on the date of filing of the
suit. The reasoning given by the Trial Court is that Ex.D13 is
not proved since, there is an insertion.
19. No doubt, D.W.4 admitted that name of Ranga is
incorporated, the Court has to look into the very document of
Ex.D13 and even insertion is also in the same handwriting
which is the original and the same is also more than 30 years
old document and author of the document could not be
examined but, the person who was in custody has been
examined before the Court and got marked the same before
the Court and the Trial Court has magnified the admission
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given by the D.W.4 with regard to that he cannot say, who has
corrected the same but, failed to take note of the very conduct
of the first plaintiff. The first plaintiff, while filing the suit has
signed as Devarajaiah and also, while giving vakalath to the
advocate, he has signed as Devarajaiah but, while filing the
suit, his name is mentioned as Devaraju. He also contends
that, he did not go to any school but, in the cross-examination,
he categorically admits that he is the son of Kemparangaiah
and not disputes the same.
20. It is important to note that, he claims that he is an
illiterate. But, he has signed the document of plaint, vakalath
and even after giving the evidence also, not put any thumb
impression but, claims that, he learnt the same in the
Saksharatha Scheme. The evidence of the very witness, who
has been examined on his behalf is very clear that, they are the
residents of the very same village. It is also important to note
that, when he tried to give evidence in other way, noted in the
cross-examination that the answer elicited from the mouth of
D.W.1 is very clear that, in his village, they have school and
when suggestion was made that in the admission register, it is
mentioned that Devaraju is the son of Kemparangaiah and he is
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the same person but, he did not deny the same and only says
that he is not aware of the same and no specific denial with
regard to the admission register and he categorically admits
with regard to the fact that his father was maintaining the
family and he was the karta of the family but, he claims that
only difference between him and his brother is only two years.
21. It is also important to note that, when the cross-
examination was made with regard to the RTC Extract and the
same is standing in the name of purchaser, he denies the same
and says that he did not see the RTC as to in whose name the
same is standing and also did not see the contents of the notice
which was given and for what purpose the said notice was
given. Hence, the very admission of D.W.1 is very clear that
he has not specifically denied the admission register and also,
when the document is 30 years old and the school register is
secured before the Court and marked through the custodian of
the said document and the fact that he is also the resident of
S.Gollahalli is not in dispute and these are the material not
considered by both the Trial Court as well as the First Appellate
Court.
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22. It is also important to note that, suit is filed in the
year 1993 but, the plaintiffs claim that they were aged about
20 years and 18 years at the time of filing the suit. In order to
substantiate the fact that they were aged about 20 years and
18 years at the time of filing the suit, no material is placed
before the Court. The Trial Court as well as the First Appellate
Court has blindly accepted the oral evidence of plaintiffs,
instead of considering the 30 year old document of Ex.D13
which is marked through the person, who is the custodian of
the said document i.e., the Register Admission Book and no
explanation on the part of the first plaintiff to show that he is
an illiterate and in order to prove that he is an illiterate also, no
document before the Court and both the Courts have
committed an error in accepting the contention of the plaintiffs.
The material on record is very clear that the suit was filed after
19 years of sale made by the father and the document Ex.D13
discloses that he was aged about 32 years on the date of filing
of the suit since, the date of birth in the school records is of
1961.
23. It is settled law that, when the sale is challenged by
the minor children, they have to seek for the relief within three
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years of sale and Article 60 is applicable to challenge the said
sale. It is also important to note that suit is filed only for the
relief of partition and not questioned the sale deed and even,
not contended that the sale is not binding on him and this
Court, in the judgment reported in ILR 2014 KAR 1293,
wherein this Court, considering the material on record with
regard to application of Article 60 of Limitation Act, 1963 held
that, when there is a transfer of minor's interest by the natural
guardian and suit is filed for setting aside the sale from the
date of minor attaining the age of majority, the transfer of
minor's property by a natural guardian in contravention of
Clauses (2) and (3) of Section 8 of the Act of 1956 is a voidable
transaction and suit to set-aside the sale and for possession
has to be filed within 3 years under Article 60 of the Limitation
Act and further held that, suit for a declaration that the sale
deed is not binding on her interest in the suit property and this
relief is similar to setting aside the sale, which is contemplated
under Article 60 of the Limitation Act and in the absence of the
said relief, the suit itself cannot be maintained and ought to
have filed the suit within three years.
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24. This Court also would like to rely upon the
judgment of the Apex Court in PRABHAKAR VS. JOINT
DIRECTOR, SERICULTURE DEPARTMENT AND ANOTHER
reported in (2015) 15 SCC 1, wherein the Apex Court in Para
No.38 observed with regard to doctrine of acquiescence and
held that, it is now a well-recognised principle of jurisprudence
that a right not exercised for a long time is non-existent. Even
when there is no limitation period prescribed by any statute
relating to certain proceedings, in such cases, Courts have
coined the doctrine of laches and delay as well as doctrine of
acquiescence and non-suited the litigants who approached the
Court belatedly without any justifiable explanation for bringing
the action after unreasonable delay. Doctrine of laches is in
fact an application of maxim of equity "delay defeats equities".
25. This Court also would like to rely upon the
judgment of the Apex Court in B.L. SREEDHAR AND OTHERS
VS. K.M. MUNIREDDY (DEAD) AND OTHERS reported in
(2003) 2 SCC 355, wherein the Apex Court, while discussing
with regard to law of acquiescence in Para No.22, extracted
Para No.40 of illustrious book Estoppels and the Substantive
Law under the title "Conduct of indifference or Acquiescence
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and held that, it is settled law that an estoppel may arise as
against persons who have not willfully made any
misrepresentation, and whose conduct is free from fraud or
negligence, but as against whom inferences may reasonably
have been drawn upon which others may have been inducted
to act. The doctrine of acquiescence may be stated thus, 'if a
person having a right, and seeing another person about to
commit, or in the course of committing, an act infringing upon
that right, stands by in such a manner as really to induce the
person committing the act, and who might otherwise have
abstained from it, to believe that he assents to it being
committed, he cannot afterwards be heard to complain of the
act.
26. It is also important to note that sale was made in
1974 itself and it is also very clear that, even revenue entries
are also made in the name of the purchaser immediately after
property was sold. It is unfortunate that both the Courts not
taken note of the same but, comes to the conclusion while
answering issue No.1 that they are in joint possession as
claimed by the plaintiffs since, the plaintiffs claim that they are
in joint possession and the fact that the possession of the
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property has parted on the date of the sale itself has not been
considered. No doubt, learned counsel for the respondents
brought to notice of this Court referring the sale deed, wherein
it is not mentioned that the sale of the property is for legal
necessity and also for the benefit of minors but, it is specifically
mentioned in the document that, it is for clearance of loan
which was obtained from P.L.O. Bank. No doubt, there is a
reference in the sale deed in Ex.D1 that he had purchased that
property by selling the joint family property and no dispute to
that effect, since the document itself discloses the same. When
the document itself discloses that sale was for clearance of the
loan, the very contention of the learned counsel for the
respondents cannot be accepted and both the Courts
committed error in considering the document of Ex.D1 in
proper perspective and there was no need to mention that sale
is for legal necessity but, the Court has to see the reason for
sale and the same is also for clearance of loan.
27. It is also important to note that the document which
the learned counsel for the respondents relies upon to consider
the grounds urged in this appeal is very clear that possession
was delivered on the date of sale in the year 1974 itself, inspite
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of it, both the Courts while answering issue No.1 as
'affirmative' comes to the conclusion that the plaintiff Nos.1 and
2 and also the second defendant are in joint possession of the
property. It is nothing but an attempt made to question the
sale made by the father of the second defendant after 19 years
of sale and doctrine of acquiescence is applicable to the case on
hand. Apart from that, suit is barred by limitation and suit has
to be filed within three years immediately after attaining
majority and both the Courts failed to take note of the conduct
and while filing the suit, the age of the plaintiffs is mentioned
as 20 years and 18 years respectively and failed to take note of
the fact that the first plaintiff has signed the plaint and also the
vakalath as Devarajaiah but, he contend that his name is
Devaraju, though the document at Ex.D13 mentions his name
as Devarajaiah. Hence, the very conduct of the plaintiffs has
not been appreciated by the Trial Court and also the First
Appellate Court and when the suit is barred by limitation, ought
not to have entertained the suit. Hence, I answer the second
substantial question of law as framed by this Court whether the
judgment impugned of the Appellate Court is maintainable in
the absence of specific findings that the suit was barred by time
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is maintainable, since the appellate Court has to consider the
same and the same is a question of law and even though, no
ground is urged, as a First Appellate Court, ought to have
considered the same but, not considered the same and this
Court, while exercising the power under Section 100 of C.P.C.
can consider the same as substantive question of law.
Therefore, I answer the second substantial question of law
accordingly.
28. The third substantial question of law is whether the
suit only for partial partition was maintainable. No doubt, on
perusal of the plaint, it is seen that the suit is filed only for the
property which was sold by the second defendant in favour of
the first defendant, not disputes the fact that the minors were
not the parties. But when the plaintiffs have challenged the
very sale contending that their father was not having absolute
right, but filed the suit only for the relief of partition and not
included all the family properties. No doubt, the appellants
have also not produced any documents before the Trial Court
but, now, they have made an attempt to produce the
documents that the plaintiffs' family was having other
properties by invoking Order 41 Rule 27 of C.P.C. and those
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documents are pertaining to the properties purchased by the
father even prior to the selling of the property and
encumbrance certificate also discloses the same.
29. No doubt, the counsel for the respondent would
contend that unless those documents are admitted and given
an opportunity, those documents cannot be relied upon in the
second appeal and the appellants have also not made any
efforts before the Trial Court as well as the First Appellate Court
and only the Court can exercise the powers under Order 41
Rule 27 of CPC if the appellants are diligent in producing the
documents and no such diligence is shown by the appellants.
However, it is important to note that the plaintiffs themselves
have produced the document at Ex.P5 - loan clearance
certificate issued by the bank in the year 1984 to show that
they have cleared the loan but no date of loan is mentioned in
that document. But it is clear that the alleged loan clearance
certificate is in respect of Sy.No.42/2 and their own document
itself clearly discloses that the family was having the other
properties and they have availed loan and cleared the same
and this document is produced before the Trial Court to show
that there was no need to sell the property as the family
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availed loan by pledging document of the family. But the
document is clear that the loan was cleared in the year 1984
but no details are mentioned to show that when the loan was
obtained and the document at Ex.P5 clearly show that the
family is having other property in Sy.No.42/2. Hence, it is
clear that other properties were there in respect of the family.
Thus, the Court has to take note of the conduct while filing of
the suit only in respect of the property which was sold by the
father, a suit is filed for the relief of partition. Hence, I answer
point No.3 that the suit is filed only for partial partition which is
not maintainable by answering third substantial question of
law.
30. The counsel for the respondents also relied upon
the judgment in NINGEGOWDA AND OTHERS vs K.B.
DODDEGOWDA AND OTHERS reported in AIR 1986 KAR 90
wherein this Court held that when the transaction was made, it
is the duty of the purchaser to discharge the onus that he made
reasonable and bonafide enquiry as to existence of necessity
for alienation. In the case on hand it has to be noted that the
suit was filed after 19 years of sale that means the sale was
made in the year 1974 and belatedly, filed the suit in the year
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1993. This Court comes to the conclusion that the suit is
barred by limitation and the suit ought to have been filed within
the three years in terms of the Article 60 of the Limitation Act.
The judgment relied upon discloses that sale transaction has
taken place in the year 1972 and the suit was filed in the year
1973 i.e., immediately and hence, the factual aspects will not
come to the aid of the contention of the learned counsel for the
respondents and the reason for sale is also for clearance of loan
availed. Hence, the judgment is not applicable to the facts and
circumstances of the case.
31. In view of the discussions made above, I pass the
following:
ORDER
The second appeal is allowed. The impugned judgments
and decree of the Trial Court in O.S.No.9/1993 as well as the
First Appellate Court in R.A.No.213/2004 are set aside.
Consequently, the suit in O.S.No.9/1993 is dismissed. No cost.
Sd/-
JUDGE
ST,SN
