Karnataka High Court
Sri G. Nagaraju vs Mr. Ramesh on 26 May, 2023
Bench: H.P.Sandesh
1
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 26TH DAY OF MAY, 2023
R
BEFORE
THE HON'BLE MR. JUSTICE H.P. SANDESH
R.S.A. NO.1837/2017 (PAR)
BETWEEN:
1. SRI G. NAGARAJU
S/O. GURAPPA REDDY
AGED ABOUT 60 YEARS
R/AT NERALURU VILLAGE
ATTIBELE HOBLI
ANEKAL TALUK. ... APPELLANT
(BY SRI VINOD PRASAD, ADVOCATE)
AND:
1. MR. RAMESH
S/O. LATE YELLAPPA
AGED ABOUT 40 YEARS
R/AT HELALIGE VILLAGE
ATTIBELE HOBLI,
ANEKAL TALUK
MUNIYELLAMMA
W/O. LATE YELLAPPA
(DIED ON 28.02.2015)
LEGAL HEIRS ON RECORD
2. RAMACHANDRA
S/O. LATE YELLAPPA
AGED ABOUT 52 YEARS
3. MUNIRAJU
S/O. LATE YELLAPPA
AGED ABOUT 50 YEARS
2
4. VENKATESH
S/O. LATE YELLAPPA
AGED ABOUT 57 YEARS
5. LALITHAMMA
D/O. LATE YELLAPPA
AGED ABOUT 45 YEARS
RESPONDENTS NO.2 TO 5 ARE
RESIDING AT HELALIGE VILLAGE
ATTIBELE HOBLI, ANEKAL TALUK.
6. SRI SRINIVAS MURTHY
S/O. LATE S. NARASIMHAIAH
AGED ABOUT 60 YEARS
R/AT NO.664, SRI SAIRAM NILAYA
3RD CROSS, TEACHERS COLONY
ANEKAL TALUK ROAD
ATTIBELE HOBLI
ANEKAL TALUK
BENGALURU-560 099 ... RESPONDENTS
(BY SRI M.J.ALVA, ADVOCATE FOR R1;
SRI V. ANAND, ADVOCATE FOR R6;
R2 TO R5 ARE SERVED)
THIS R.S.A. IS FILED UNDER SECTION 100 OF CPC
AGAINST THE JUDGEMENT AND DECREE DTD:09.06.2017
PASSED IN R.A.NO.5029/2015 ON THE FILE OF THE III
ADDITIONAL DISTRICT AND SESSIONS JUDGE, BENGALURU
RURAL DISTRICT, SIT AT ANEKAL, ALLOWING THE APPEAL AND
SETTING ASIDE THE JUDGEMENT AND DECREE DTD:14.01.2015
PASSED IN O.S.NO.88/2013 ON THE FILE OF THE SENIOR CIVIL
JUDGE AND JMFC, ANEKAL, BENGALURU RURAL DISTRICT.
THIS R.S.A. HAVING BEEN HEARD AND RESERVED FOR
JUDGMENT ON 20.04.2023 THIS DAY, THE COURT
PRONOUNCED THE FOLLOWING:
3
JUDGMENT
This second appeal is filed by the appellant-defendant No.6
praying this Court to set aside the judgment and decree dated
09.06.2017 passed by the Court of III Additional District and
Sessions Judge, Bengaluru Rural District, sitting at Anekal in
R.A.No.5029/2015 and set aside the judgment and decree dated
14.01.2015 passed by the Court of the Senior Civil Judge and
JMFC at Anekal, Bengaluru Rural District in O.S.No.88/2013.
2. The parties are referred to as per their original
rankings before the Trial Court as plaintiff and defendants for the
sake of convenience and brevity.
3. The factual matrix of the case of the plaintiff in
O.S.No.88/2013 while seeking the relief of partition is that the
suit property was the service inam land re-granted in favour of
Thoti Chinnappa, S/o. Thoti Chikkelliga. The said Thoti
Chinnappa being the owner in possession of the suit property,
out of his love and affection towards Yellappa, S/o. Gabbaiah
had gifted the suit property in favour of the said Yellappa
through the gift deed dated 08.05.1972. Since the date of said
gift deed, he was in actual possession and enjoyment of the suit
property. All the revenue documents have been transferred in
the name of Yellappa. The said Yellappa died intestate leaving
behind his wife Muniyellamma i.e., defendant No.1 and his
children i.e., defendant Nos.2 to 5 and plaintiff. The plaintiff
being the class-I legal heir and successor to the suit property,
continued in joint possession of the suit property. After the
death of Yellappa, the revenue records have been continued in
the name of the defendant No.1 on behalf of all the joint family
members. This being the facts, the plaintiff and defendant Nos.1
to 5 are in actual possession and enjoyment of the suit property.
Recently, one Venkataswamy, S/o. Chinnappa attempted to
interfere with the possession of the plaintiff over the suit
property. At that time, they have filed the suit in
O.S.No.473/1991 before the Munsiff and JMFC, Anekal. The said
suit was decreed in favour of the plaintiff and his family
members through the judgment and decree dated 21.04.1994.
The said judgment and decree became final and conclusive, as
there is no appeal against the said judgment and decree. Now,
the defendant No.6, without having any manner of right, much
less possession over the suit property, tried to put up
construction on 05.11.2012 in and over the suit property. At
that time, the plaintiff with the help of villagers, stopped the
illegal act of the defendant No.6. Thereafter, the plaintiff
enquired and came to know that the defendant No.1 has
purported to have registered the sale deed dated 03.08.1995 in
favour of the defendant No.6. On the basis of the sale deed
dated 03.08.1995, the defendant No.6 entered his name to the
records of the suit property. The plaintiff, immediately conveyed
the panchayath on 01.10.2013 and enquired about the
alienation. The plaintiff and defendant Nos.1 to 5 being the joint
family members, they are entitled to 1/6th share over the suit
property. The defendant No.1 has no right to execute the sale
deed in favour of the defendant No.6. The said document in
favour of the defendant No.6 is a created document and the
same does not confer any right, title in favour of the defendant
No.6. Now, on the basis of the illegal documents, the defendant
No.6 is trying to dispossess the plaintiff from the possession of
the suit property. The plaintiff being the joint family member,
he is entitled to 1/6th share over the suit property. But, the
defendants are not ready to effect the partition. Hence, the
defendant No.6 has filed this suit.
4. In pursuance of the suit, notice was ordered to the
defendants and the defendants, after service of notice, did not
choose to appear before the Trial Court and they were placed
exparte.
5. The plaintiff, in order to prove his case, examined
himself as P.W.1 and got marked the documents as Exs.P1 to
P10. The defendants have not chosen to examine any witness
and did not mark any documents.
6. The Trial Court, after considering the pleadings and
the material available on record, framed the points for
consideration, whether the plaintiff proves that he is in joint
possession of the suit property and the suit property is available
for partition, whether the plaintiff is entitled for the relief as
sought for and what order or decree.
7. The Trial Court, after considering both oral and
documentary evidence placed on record, answered point Nos.1
and 2 as 'negative' and dismissed the suit, in coming to the
conclusion that there was a sale in favour of defendant No.6 and
the same was made on 05.08.1995 and thereafter, all the
revenue records are standing in the name of the purchaser and
the plaintiff has filed the suit, after lapse of more than 15 years
and the defendant No.6 is in actual possession and enjoyment of
the suit schedule property. Hence, the suit property is not
available for partition in the family of the plaintiff.
8. Being aggrieved by the judgment and decree of
dismissal of the suit by the Trial Court, an appeal is filed before
the First Appellate Court in R.A.No.5029/2015. The First
Appellate Court, having considered the grounds urged in the
appeal and also there was delay in filing the appeal, formulated
the points, whether there is a sufficient cause to condone the
delay in preferring this appeal and whether the impugned
judgment and decree calls for interference. The First Appellate
Court, having re-appreciated both oral and documentary
evidence placed on record, answered all the points as
'affirmative' and reversed the judgment of the Trial Court and
decreed the suit of the plaintiff declaring that the plaintiff is
entitled for 1/5th share over the suit property. Being aggrieved
by the divergent findings of the Trial Court and the First
Appellate Court, the present second appeal is filed before this
Court.
9. The main contention of the learned counsel
appearing for the appellant-defendant No.6 in this appeal is that,
when the Kartha of the family, for the benefit of the family and
for lawful needs of the family had sold the property, the plaintiff,
who is the son of late Yellappa and Muniyellamma, could not
have filed the suit, as the same is binding upon him. It is also
contended that the First Appellate Court, could not have set
aside the order of the Trial Court which has rightly rejected the
suit. It is further contended that the plaintiff had not taken any
steps for cancellation of entries in the name of the appellant and
further, he has not taken any action for cancellation of the sale
deed. It is also contended that, though he is aware of the
transaction and the sale of the property by and between
defendant No.1, he could not have filed the suit and the suit is
filed beyond the period of limitation and when the suit is filed for
the relief of partition and they were not in possession, the
reasoning given by the First Appellate Court is not correct.
Hence, it is contended that the property is alienated by the
mother, who is the Kartha of the family for the benefit of the
family and for the legal necessity and when the plaintiff was a
minor, the same is also binding on him. It is also contended
that, when the plaintiff is not in possession of the suit schedule
property, the First Appellate Court ought not to have granted the
decree when the suit is filed after nearly 19 years which is also
barred by limitation and the same has remained. Hence, the
question of seeking the relief of partition does not arise, when
the property has already been sold.
10. This Court, having considered the grounds urged in
the second appeal, framed the following substantial questions of
law for consideration:
1. Whether the order of Lower Appellate Court in
reversing the finding and order of the Trial
Court is justifiable?
2. Whether the finding of the Lower Appellate
Court that the plaintiff, as class-I legal heir of
his deceased father, has succeeded, under
Section 8 of Hindu Succession Act and for that
reason, the mother alone cannot sell the suit
schedule property is correct?
3. Whether the finding of the Lower Appellate
Court that the suit is not barred by limitation,
is correct?
11. Learned counsel appearing for the appellant-
defendant No.6 in this appeal would vehemently contend that
the First Appellate Court committed an error in granting the
relief of partition, when already there was a sale in favour of the
appellant-defendant No.6. The counsel would vehemently
contend that the very finding given by the First Appellate Court
is erroneous and Section 8 of the Hindu Succession Act will not
attract and the Trial Court has given the reasoning that the suit
is filed after lapse of 19 years and the same has not been taken
note of by the First Appellate Court and the finding given is
erroneous. The counsel would vehemently contend that the
plaintiff while filing the suit, has not sought for any relief in
respect of the sale deed which was executed by the mother and
has only sought for the relief of partition. The counsel also
would vehemently contend that, if the sale is not binding upon
the plaintiff, the plaintiff ought to have filed the suit within a
period of three years of attaining majority and not filed the
same. The counsel would further contend that the First Appellate
Court not discussed in length with regard to the limitation and
committed an error in coming to the conclusion that the suit is
not barred by limitation. The counsel also would vehemently
contend that even though the judgment of the Trial Court is
exparte, the Trial Court has given the reasoning while dismissing
the suit and also comes to the conclusion that property is sold
for legal necessity in terms of Ex.P8. The counsel also would
vehemently contend that, out of 1 acre, 13 guntas, the
defendant No.6 has sold 7 guntas of land in favour of defendant
No.7 and the same is also not disclosed in the suit. The counsel
would vehemently contend that the property is purchased for the
valuable sale consideration and the same is also paid and the
First Appellate Court ought not to have decreed the suit, when
the mother had sold the property for the legal necessity and the
suit is hopelessly barred by limitation.
12. Per contra, learned counsel appearing for the
respondents-defendant Nos.1 and 6 would submit that, all the
defendants are placed exparte. Admittedly, the father got the
property by way of gift and the sale is made by the mother and
the children are not parties to the said sale deed and the father
had died intestate. The counsel would contend that the mother
was not having any exclusive right to execute the sale deed in
favour of the appellant and the plaintiff was not minor at the
time of executing the sale and he was major and his date of
birth is 21.07.1977 and sale was made on 05.08.1995 and he
had already attained the age of 18 years. During the pendency
of the suit, the appellant had also sold the portion of the
property and has not made out any grounds to set aside the
judgment and decree of the First Appellate Court. It is further
contended that the First Appellate Court has not committed any
error and passed the judgment in coming to the conclusion that
the plaintiff is the class-I legal heir of his deceased father and he
has succeeded to the property of his father under Section 8 of
the Hindu Succession Act and the mother cannot sell the suit
schedule property and the First Appellate Court has given the
finding considering the question of law. Hence, it does not
require any interference.
13. Having heard the respective counsel and also
considering the pleadings and both oral and documentary
evidence placed on record, this Court has to consider the
substantial questions of law framed by this Court. The second
substantial question of law framed by this Court is whether the
finding of the Lower Appellate Court that the plaintiff, as class-I
legal heir of his deceased father has succeeded, under Section 8
of Hindu Succession Act and for that reason, the mother alone
cannot sell the suit schedule property is correct.
14. Having considered the material on record, it is not in
dispute that the suit schedule property was gifted in favour of
the father of the plaintiff and to that effect, Ex.P5-gift deed is
also produced before the Court. Having considered the recital of
Ex.P5-gift deed, it is clear that the property was gifted in favour
of the father of the plaintiff, but while selling the property in
favour of the appellant, the mother has stated that gift was
made in her favour and not in favour of her husband.
Admittedly, the husband passed away without executing any
testamentary document. Hence, it is clear that, when the
property belongs to a male person of the family, Section 8 of the
Hindu Succession Act attracts and as a class-I legal heir, the
plaintiff also succeeds to the suit schedule property along with
the mother and other brothers. The First Appellate Court has
not committed any error in coming to the conclusion that Section
8 of Hindu Succession Act applies. The material on record
discloses that, when the suit was filed, suit summons was issued
and the defendants have not appeared and contested the
matter. But, it is important to note that sale was made by the
mother, excluding other children i.e., defendant Nos.1 to 5 and
plaintiff and sale deed was executed in the year 1995 itself in
terms of Ex.P8.
15. It is also an undisputed fact that the defendant Nos.1
to 5 are also major and both the Courts have observed that the
plaintiff was minor at the time of executing the sale deed and
the same is not correct and Ex.P2-SSLC marks card of the
plaintiff discloses his date of birth as 21.07.1977 and the sale
deed was executed on 05.08.1995 and he had already attained
the age of 18 years and he was not a minor. No doubt, the suit
was filed in O.S.No.473/1991 by the mother when there was an
interference, the judgment and decree was passed in the said
suit restraining the defendants not to interfere with the peaceful
possession and enjoyment of the suit schedule property. It is
also important to note that the said judgment and decree was
passed on 21.04.1994 and within a span of 1 year, 4 months,
sale deed was executed by mother.
16. On perusal of the document at Ex.P8-sale deed, no
doubt, in the sale deed, it is mentioned that sale is made for the
legal necessity and before selling the property also, they have
obtained permission from the Assistant Commissioner in H.O.A.
No.89/94-95 dated 19.05.1995 and sale consideration was
Rs.2,00,000/-. It is important to note that, in the said sale
deed, recital is made that, her father had purchased the property
and he had gifted the property in her favour and thereafter, the
revenue records are standing in her name and the said recital is
not correct and gift deed was made in favour of her husband and
not in her favour and the recital is against the material on
record, particularly the document at Ex.P8-sale deed. In terms
of Ex.P5, gift deed was executed in favour of her husband and
not in her favour but, she has executed the sale deed stating
that she is the absolute owner of the property and she has
derived the same by way of gift from her father.
17. It is also important to note that, in terms of Ex.P8-
sale deed, all the revenue records are standing in the name of
the appellant from 1995 onwards till the filing of the suit. It is
contended in the plaint that, in the year 2012, an interference
was made by the defendant No.6, when he made an attempt to
construct the building. Having perused the material on record,
no doubt, defendant No.2 has not contested the matter and he
was placed exparte, but the fact is that the father of the plaintiff
had derived the title in respect of the suit schedule property by
way of gift and he died intestate leaving behind his wife, plaintiff
and defendant Nos.1 to 5 as his legal heirs. Hence, the First
Appellate Court has not committed any error in coming to such a
conclusion and the mother cannot sell the suit schedule property
as the absolute owner but, the fact is that the sale was not
questioned, inspite of having right to question the same.
18. The first and third substantial questions of law
framed by this Court are whether the order of Lower Appellate
Court in reversing the finding and order of the Trial Court is
justifiable and whether the finding of the Lower Appellate Court
that the suit is not barred by limitation is correct respectively.
These two substantial questions of law are interconnected to
each other and hence, they are taken up together for
consideration.
19. Having considered the material on record, this Court
has to analyze whether the First Appellate Court has committed
an error in appreciating the material on record as well as not
considered the substantial questions of law which are also mixed
with both question of fact and question of law as to whether the
suit is barred by limitation.
20. Having perused both oral and documentary evidence
available on record particularly, document - Ex.P8, the first
defendant, who is the mother of the plaintiff and defendant
Nos.2 to 5 have executed the Sale Deed on 05.08.1995.
Subsequent to the Sale Deed in terms of Ex.P9-MR copy, the
property was mutated in favour of the appellant herein and in
terms of Ex.P10-RTC, all the revenue documents are standing in
the name of the appellant herein. The Trial Court while
considering the relief as sought in the plaint came to the
conclusion that on perusal of the recitals of the Sale Deed dated
05.08.1995, defendant No.1 had alienated the suit property in
favour of defendant No.6 for her family and legal necessity.
After the death of Yellappa, defendant No.1 used to manage the
property with great difficulty. Defendant No.1 alienated the suit
property in favour of defendant No.6 for the welfare of the
plaintiff and defendant Nos.1 to 5 and also taken note of the
revenue records are mutated in favour of the appellant herein
vide MR No.4/94-95 and in all the revenue records, the suit
property vest with the appellant herein. But it is the contention
of the plaintiff in the suit that he himself and his family members
are in joint possession of the property; the same is against the
material on record. If they are really in possession of the suit
schedule property they would have challenge the entries made in
the revenue records in the name of defendant No.6 before the
competent authority, the same was not challenged and only
contended that defendant No.6 has created the documents by
colluding with defendant No.1. If really defendant No.6 has
created the sale deed, the plaintiff has to take necessary action
before the competent forum. The plaintiff and defendant Nos.2
to 5 have not challenged the sale deed. When the sale was
made by the mother in the year 1995 itself, they kept quite till
filing of the suit and all the revenue records are standing in the
name of the appellant for more than 19 years.
21. I have already pointed out that in terms of Ex.P2-
SSLC marks card, he was a major at the time of selling the
property and even other defendant Nos.2 to 5, are also majors
and they have not challenged the sale deed and ought to have
filed the suit within three years, the same is not done. Hence,
the Trial Court came to the conclusion that the suit is barred by
Law of Limitation and the records reveals that defendant No.6 is
in actual possession and enjoyment of the suit schedule property
from the date of purchase.
22. It is also important to note that the sale deed is a
registered document. Unless the contrary is proved, there is a
presumption and the registered document itself is a notice when
the document was registered and the plaintiff has not produced
any material before the Court that they were in joint possession
of the suit schedule property as on the date of filing of the suit
for the relief of partition. It is also important to note that in the
plaint itself it is stated that after verification they came to know
that there was a sale deed executed by the mother in favour of
defendant No.6, but no relief is sought for cancellation of sale
deed and also not contended that the said sale deed is not
binding on the plaintiff as well as defendant Nos.2 to 5 and
directly filed the suit for the relief of partition even though the
plaintiff is not in possession of the suit schedule property and all
the revenue documents are standing in the name of the
appellant by virtue of the sale deed executed in the year 1995
itself. Hence, the First Appellate Court has committed an error
in reversing the finding of the Trial Court and came to the
conclusion that the plaintiff is claiming his share as Class-I legal
heir of his father Yellappa under Section 8 of the Hindu
Succession Act. No doubt, this Court also comes to the
conclusion that the plaintiff has succeeded to the property under
Section 8 of the Hindu Succession Act.
23. In the case on hand, the mother had sold the
property in the year 1995 itself and not challenged the same for
a period of 18 years. No doubt, the plaintiff is not a party to the
said sale deed and even if he is not a party to the sale deed
when the mother had executed a sale deed in favour of
defendant No.6, the very approach of the First Appellate Court
that the suit of the plaintiff is not at all barred by limitation, is
erroneous. The First Appellate Court failed to take note of the
fact that the plaintiff was not in possession of the property
though he contend that he was in joint possession of the suit
schedule property. When he was not in possession of the
property, the very contention that he recently came to know
about the sale deed cannot be accepted and the finding given by
the First Appellate Court in paragraph No.30 that the Trial Court
came to a conclusion that the suit is barred by time in view of
the change of revenue entries and belated challenge of
Ex.P8/Sale Deed. The said reasoning is erroneous. No doubt in
the plaint, it is pleaded that he came to know about the sale
deed recently, just prior to filing of the said suit. Though the
said contention and the evidence is not challenged as reasoned
by the First Appellate Court, it is very clear that he was not in
possession of the property as on the date of filing of the suit and
all the revenue entries clearly disclose that immediately after
sale of the property in the year 1994-1995 itself mutated in
favour of the purchaser i.e., the appellant herein and the mother
had executed the sale deed way back in the year 1995 itself. No
doubt, the concept of the legal necessity etc., are not applicable
to the present Sale Transaction as reasoned by the First
Appellate Court. But the fact is that the property was sold by
the mother in the year 1995 itself and both the plaintiff as well
as defendant Nos.2 to 5 kept quiet for a period of 18 years and
the same was not challenged immediately and all of them are
majors. When they kept quiet they acquiesced their right and
the same is barred by limitation. Hence, the suit is barred by
limitation.
24. The very reasoning of the First Appellate Court is
that the Trial Court has passed the impugned judgment in a
casual manner without appreciating the contentions and the
evidence of the plaintiff in proper manner, is erroneous. No
doubt, the First Appellate Court having the power to re-
appreciate both oral and documentary evidence available on
record on facts as well as the question of law and failed to
consider both the question of law and question of fact i.e., the
suit is barred by limitation and the same is mixed question of
fact and question of law. The very revenue documents produced
by the plaintiff viz., Ex.P9-MR copy as well as Ex.P10-RTC,
clearly discloses that the revenue entries are made in the year
1995 itself and nothing is discussed by the First Appellate Court
with regard to the documents - Exs.P9 and P10, even though the
defendants have not contested the matter and failed to consider
the very suit is barred by limitation. It has to be noted that the
mother had executed the sale deed for consideration and the
recitals are very clear that the said sale is for the benefit of her
family when the sale consideration is accepted by the mother
and the major sons are aware of the same i.e., selling of the
property and parting with the possession of the property in
favour of defendant No.6 in the year 1995 itself, kept quiet for a
period of 18 years, the suit was filed in the year 2013, the
pleading also very clear that in the year 2012 November itself,
the defendant i.e., appellant herein is interfered with the
possession of the plaintiff and he has stated that the Panchayath
was arranged in the month of October 2013 even after having
the knowledge according to the plaintiff kept quiet for a period of
one year even for arranging the Panchayath.
25. This Court would like to refer 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 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. This is the proper sense of the term
acquiescence, 'and in that sense may be defined as
acquiescence, under such circumstances as that assent may be
reasonably inferred from it, and is no more than an instance of
the law of estoppel by words or conduct. Acquiescence is not a
question of fact but of legal inference from facts found. The
common case of acquiescence is where a man, who has a charge
or incumbrance upon certain property, stands by and allows
another to advance money on it or to expend money upon it.
Equity considers it to be the duty of such a person to be active
and to state his adverse title, and that it would be dishonest in
him to remain willfully passive in order to profit by the mistake
which he might have prevented. It is also observed that, in such
cases, the conduct must be such that assent may reasonably be
inferred from it. The doctrine of acquiescence has, however,
been stated to be founded upon conduct with a knowledge of
legal rights, and as stated in some cases appears to imply the
existence of fraud on the part of the person whose conduct
raises an estoppel.
26. 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".
27. This Court also would like to rely upon the judgment
of this Court in H.M. RUDRARADHYA VS. UMA & OTHERS
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 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. This Court has also taken note of Article 60 of the
Limitation Act, wherein three years time is stipulated to
challenge the sale made by the natural guardian transferring the
minor interest. In Para No.13 of the judgment, the Court has
taken note of the sale of the suit property in favour of the first
defendant and suit was not filed within three years and hence,
comes to the conclusion that suit was barred by law of limitation
and also observed that, when the sale transaction is voidable
transaction, it is for the plaintiff, to sue for possession of the
property and it is incumbent upon him to pray for such a relief.
28. Having considered the principles laid down in the
judgments referred (supra) i.e., principles of doctrine of
acquiescence and law of limitation, the plaintiff has not taken
any steps for challenging the sale made by the mother. I have
already pointed out that, sale was made in the year 1995 itself
and even the plaintiff had also attained the age of majority as on
the date of the sale and other defendants, who are the children
have also kept quiet and they have not challenged the very sale
made by the mother.
29. It is also important to note that, I have already
pointed out that, in the sale deed itself, it is mentioned that sale
is made for the benefit of the family and the revenue documents
which are produced by the plaintiff himself in terms of Ex.P9-
M.R. Copy as well as Ex.P10-RTC clearly discloses that, all the
revenue entries are changed in favour of the appellant-purchaser
and the plaintiff and the defendants have kept quiet for a period
of 18 years. It is also made clear that possession was also
delivered in favour of the appellant when the sale was made in
the year 1995 itself. When the possession has parted with the
subsequent purchaser, the suit is filed in the year 2013 and
revenue entries are also not challenged and parting with the
possession is also not challenged and not sought for any relief of
possession and in an ingenious method, a suit is filed only
claiming the share in the suit schedule property without seeking
the relief of setting aside the sale made by the mother. No
doubt, the First Appellate Court, having considered the rights of
the respective parties, comes to the conclusion that Section 8 of
the Hindu Succession Act applies and they are entitled for the
relief, but the fact is that, the First Appellate Court failed to take
note of the fact that there is an inordinate delay in filing the suit
and when the right is not exercised for a long time, the very
right is non-existent as observed by the Apex Court in
PRABHAKAR's case reported in (2015) 15 SCC 1.
30. It is relevant to note that, in the case on hand also,
doctrine of acquiescence is applicable and the major sons have
not challenged the sale made by the mother and kept quiet for a
period of 18 years and when the doctrine of acquiescence is
applicable and the litigants have approached the Court belatedly
without any justifiable explanation for bringing the action after
unreasonable delay, the very right of the litigants gets defeated
and the right of the plaintiff as well as the other major sons, who
have been arrayed as defendants in the case on hand and no
explanation is offered by the plaintiff. The other major sons have
also not challenged the very sale made by the mother and have
not sought for the relief of declaration in respect of the sale
already made by the mother but, only claimed the share in the
suit and they ought to have challenged the sale deed and sought
for the relief of declaration and no such relief is sought.
31. It is important to note that the First Appellate Court
also failed to take note of law of limitation, since the suit is filed
after 18 years of the sale made by the mother. When the suit is
barred by limitation, the same ought to have been considered by
the First Appellate Court and the First Appellate Court failed to
take note of the same and committed an error in reversing the
findings of the Trial Court and the Trial Court has given the
reason with regard to limitation as well as with regard to not
challenging the sale within the stipulated time, though not
referred the doctrine of acquiescence.
32. The First Appellate Court failed to take note of the
fact that the sale deed was registered and the very registration
itself is notice to the public and the plaintiff and other
defendants i.e., major sons were living together and had the
knowledge of sale and hence, now the plaintiff cannot contend
that he came to know the same only on intervention. Apart from
that, the plaintiff and defendant Nos.2 to 5, who have also
succeeded to the estate of the property left by the father kept
quiet for a period of 18 years and filed the suit after 18 years
through another brother, who is younger to all of them and that
too, seeking the relief of only partition, even though they were
having the knowledge of sale transaction made by the mother in
favour of the appellant and parted with the possession of the
property and cannot claim that not having the knowledge, when
the purchaser is in possession and invested money for the
improvement and the revenue records are also changed to his
name. These are the aspects which have not been considered by
the First Appellate Court. Hence, I am of the opinion that the
First Appellate Court has committed an error in reversing the
finding of the Trial Court and I answer the first and the third
substantial questions of law as 'affirmative'.
33. In view of the observations made above, I pass the
following:
ORDER
(i) The appeal is allowed.
(ii) The impugned judgment and decree dated
09.06.2017 passed in R.A.No.5029/2015, is
hereby set aside. Consequently, the judgment
and decree dated 14.01.2015 passed in
O.S.No.88/2013 is restored.
Sd/-
JUDGE
ST/cp*
