Karnataka High Court
Sri B.N.Devaraju vs Smt. Shakeela S.Shetty on 19 April, 2024
Author: H.P. Sandesh
Bench: H.P. Sandesh
1
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 19TH DAY OF APRIL, 2024
BEFORE
R
THE HON'BLE MR. JUSTICE H.P. SANDESH
R.S.A. NO.2397/2006 (INJ)
C/W.
R.S.A. NO.2396/2006 (DEC/INJ)
IN R.S.A. NO.2397/2006:
BETWEEN:
SRI B.N.DEVARAJU
S/O LATE B.NANJAPPA
AGED ABOUT 82 YEARS
R/AT KAMADENU NILAYA
2ND MAIN, 2ND CROSS,
HEMAVATHI NAGAR
HASSAN-573 201.
ALSO R/AT NO.575/1, 4TH CROSS,
MALLIKARJUNA NAGAR
SAKALESHPURA,
HASSAN DISTRICT.
... APPELLANT
[BY SRI S.P.SHANKAR, SENIOR COUNSEL FOR
SRI JAYAKUMAR, ADVOCATE]
AND:
1. SMT. SHAKEELA S. SHETTY
C/O. K. PADMANABHA SHETTY
AGED ABOUT 45 YEARS
R/AT HEMAVATHY ESTATE
UDEYAR POST,
2
SAKALESHPUR TALUK
HASSAN DISTRICT-573201.
2. DR. H.A.GANGAPPA
DEAD BY LRS
2(a) DR. RAGHUNANDAN HANBAL GANGAPPA
NO.186, 38TH CROSS
9TH MAIN, 5TH BLOCK,
JAYANAGAR
BANGALORE - 560 041.
ALSO AT POST BOX NO.1790
WOODS CENTER
CENT JOHN'S ANTIGUA.
2(b) RAMYA BHAGAVAN
NO.11147,
YELLOW LEAFWAY
JERMAN TOWN
M.D.20876, MERY LAND
USA.
2(c) RATHI GANGAPPA
NO.186, 38TH CROSS
9TH MAIN, 5TH Block
JAYANAGAR
BANGALORE-560 041.
(AMENDED VIDE COURT ORDER DATED 02.01.2024)
3. SRI B.N. CHANDRALEKHA
W/O N.C. DAYANANDA
AGED ABOUT 56 YEARS
LAND LARD,
NAGRALI VILLAGE
NANJANGUDU TALUK
MYSORE DISTRICT-570 001.
3
4. SRI S.C.SIDDAGANGAMMA
DEAD BY LRS
4(a) N.C.BASAVARAJU
S/O LATE N.E.CHANNABASAPPA
NO.161, 1ST MAIN
JAYALAKSHMIPURAM
MYSORE-570 001.
4(b) SMT. N.C.NAGARATHNA
W/O H.S.MALLIKARJUNAPPA
NO.225, GANESH KUTEERA
9TH MAIN, HRBR LAYOUT
1ST BLOCK, KALYANANAGAR
BANGALORE-560 043.
4(c) N.C.SARVAMANGALA
W/O S.M.SIDDALINGASWAMY
NO.86, GROUND FLOOR
NHCS ALYOUT, 1ST MAIN
3RD STAGE, 4TH BLOCK
BASAVESHWARNAGAR
BANGALORE-560 079.
4(d) SRI N.C.DAYANAND
S/O LATE N.E.CHANNABASAPPA
R/AT NAGRALE VILLAGE
NANJANAGUDU TALUK
MYSORE DISTRICT-570 001.
4(e) SMT.N.C.SHARADA
W/O C. VEERAIAH
NO.38, NEAR GVEI SCHOOL
3RD BLOCK, 5TH MAIN
JAYALAKSHMIPURAM
MYSORE-570001.
4(f) SMT. N.C.INDIRA
W/O K.B.SIDDAPPA
4
A-03380, VANIVILASA ROAD
NEAR DOUBLE TANK
LAKSHMIPURAM
MYSORE-570001.
4(g) SMT. LATHA
W/O N.C.KUMAR
DODDA INDUVADI VILLAGE
KOLLEGALA TALUK
CHAMRAJNAGAR DISTRICT-571313.
(AMENDED VIDE COURT ORDER DATED 16.12.2016)
5. SRI B.N.VASANTHA
W/O B.N.SHIVA MURTHY
MAJOR, HOUSE NO.878,
LAKSHMIPURAM
MYSORE-570 001.
... RESPONDENTS
[BY SRI R.B.SADASHIVAPPA, ADVOCATE FOR
SRI PRAKYATH SHETTY K., ADVOCATE FOR R1;
SMT. KAVYA ANILKUMAR, ADVOCATE FOR R4(a, c, e & f);
VIDE ORDER DATED 23.08.2016,
NOTICE TO R4(g) HELD SUFFICIENT;
R3, R4(d), R5, R2(a), R2(b) AND R2(c) ARE
SERVED BUT UNREPRESENTED]
THIS R.S.A. IS FILED UNDER SECTION 100 OF CPC
AGAINST THE JUDGEMENT AND DECREE DATED 22.04.2006
PASSED IN R.A.NO.173/2004 (OLD NO.20/2000) ON THE FILE
OF THE PRESIDING OFFICER AND ADDL.DISTRICT JUDGE, FAST
TRACK COURT-I, HASSAN, DISMISSING THE APPEAL AND
CONFIRMING THE JUDGEMENT AND DECREE DATED 13.04.2000
PASSED IN O.S.NO.8/1992 ON THE FILE OF THE CIVIL JUDGE
(JR.DN.) AND JMFC, SAKLESHPUR AND ETC.
5
R.S.A. NO.2396/2006:
BETWEEN:
SRI B.N.DEVARAJU
S/O LATE B.NANJAPPA
AGED ABOUT 59 YEARS
R/AT TATADAGADDE ESTATE
SAKALESHPURA
HASSAN
... APPELLANT
(BY SRI S.P.SHANKAR, SENIOR COUNSEL FOR
SRI JAYAKUMAR, ADVOCATE)
AND:
1. SMT. SHAKEELA S. SHETTY
@ SHASHIKALA K. SHETTY
AGED ABOUT 45 YEARS
HEMAVATHY ESTATE,
UNDVAR POST
SAKLESHPUR TALUK
HASSAN DISTRICT
2. SRI B. NANJAPPA
DEAD BY LRS
2(a) SMT.CHANDRAMATHI
W/O LATE B.NANJAPPA
C/O. KOMALATHA RAJEGOWDA
BEHIND SAHYADRI THEATRE,
ARALEPET, HASSAN - 573 201.
2(b) SMT.B.N.SRIDEVI
D/O LATE B.NANJAPPA
AGED ABOUT 24 YEARS
C/O KOMALATHA RAJEGOWDA
BEHIND SAHYADRI THEATRE,
ARALEPET, HASSAN - 573 201.
6
2(c) SRI B.N.SACHIN
AGED ABOUT 21 YEARS
S/O LATE NANJAPPA
C/O KOMALLATHA RAJEGOWDA
BEHIND SAHYADRI THEATRE,
ARALEPET, HASSAN - 573 201.
2(d) SMT.VANAJAKSHI
W/O N.S.GURUSIDDAPPA
AGED ABOUT 76 YEARS
R/AT NAGARALE VILLAGE
NANJANGUD TALUK
MYSORE DISTRICT
2(E) SMT. B N VASANTHA
W/O SHIVAMURTHY
AGED ABOUT 67 YEARS
R/AT NO.876/1C,
JHANSI LAKSHMI BAI ROAD
MYSORE.
2(f) SMT.CHANDRALEKHA
W/O DAYANANDA
AGED ABOUT 63 YEARS
R/AT NAGARALE VILLAGE
NANJANGUD TALUK
MYSORE DISTRICT
3. SMT. B.C. JAYAMMA
W/O LATE B.S.CHANDRASHEKAR
AGED ABOUT 50 YEARS
TOTADAGUDA ESTATE
SAKALESHPURA
HASSAN DISTRICT
THE 3RD RESPONDENT DIED,
THE APPELLANT AND RESPONDENT NO.2(a to f)
ARE THE LRS OF RESPONDENT NO.3
7
(AMENDED VIDE COURT ORDER DATED 10.03.2021)
... RESPONDENTS
(BY SRI R.B.SADASHIVAPPA, ADVOCATE FOR
SRI PRAKYATH SHETTY K., ADVOCATE FOR R1;
VIDE ORDER DATED 22.08.2017,
APPEAL IS DISMISSED AGAINST R2(d);
VIDE ORDER DATED 10.03.2021,
R2(a to f) ARE LRS OF DECEASED R3;
R2(a to f) ARE SERVED]
THIS R.S.A. IS FILED UNDER SECTION 100 OF CPC
AGAINST THE JUDGEMENT AND DECREE DATED 22.04.2006
PASSED IN R.A.NO.7/2002 ON THE FILE OF THE PRESIDING
OFFICER AND ADDL. DISTRICT JUDGE, FAST TRACK COURT-I,
HASSAN AND ETC.
THESE APPEALS HAVING BEEN HEARD AND RESERVED
FOR JUDGMENT ON 04.04.2024 THIS DAY, THE COURT
PRONOUNCED THE FOLLOWING:
JUDGMENT
These two appeals are filed challenging the judgment and
decree dated 13.04.2000 passed in O.S.No.8/1992 and the
judgment and decree dated 22.04.2006 passed in
R.A.No.173/2004 and also the judgment and decree of reversal
order dated 22.04.2006 passed in R.A. No.7/2002 as against the
judgment and decree dated 16.01.2002 passed in
O.S.No.22/1993.
2. Heard the learned counsel appearing for the
respective parties.
3. The factual matrix of the case of the plaintiff in
O.S.No.22/1993 that she has filed the suit for the relief of
declaration and permanent injunction contending that the
property originally belonged to one Nanjappa D/o
Devappagowda. The said property is an undivided Hindu Joint
Family property. The said Nanjappa had gifted the said property
in favour of his daughter - B N Chandralekha under a registered
gift deed dated 30.09.1976. One Dr. S Surendra Shetty has
purchased the said property from B N Chandralekha for valuable
consideration of Rs.18,000/- under a registered sale deed dated
06.10.1980. Dr. Surendra Shetty inturn sold the said property
to the plaintiff (Smt. Shakheela Shetty) who is his sister under a
registered sale deed dated 08.05.1985 for valuable consideration
of Rs.20,000/-. The plaintiff had acquired the title and
possession of the suit schedule property from his brother
Dr.Srendra Shetty. Ever since then, she is in possession and
enjoyment of the same without interference from anybody. That
on 01.12.1991, defendant No.1, who is the appellant in both the
appeals, with his followers tried to trespass into the suit
schedule property and damaged the fence by removing the
same. The father of the plaintiff who is the GPA holder of the
plaintiff lodged a compliant in the police station, Sakaleshapura
and subsequently, the plaintiff instituted the present suit for the
relief of declaration of title and permanent injunction.
4. Defendant No.1 who is the present appellant
contends that the gift deed will not convey any title in favour of
Chandralekha on whose favour the gift deed was executed as
well as the property was purchased by one Dr.Srendra Shetty
who inturn sold the said property in favour of the plaintiff,
hence, the plaintiff also did not derive title to the suit schedule
property since the said Nanjappa had no authority in law to gift
the property in favour of his daughter-Chandralekha, thus, the
alleged gift transaction is void ab initio in nature. When the said
Chandralekha did not get valid title to the suit schedule property,
the subsequent purchaser also will not get any title and they are
not at all the owner of the suit schedule property as well as they
are not in lawful possession of the said property.
5. The Trial Court having taken note of the pleadings of
the respective parties, framed the following Issues:
1. Whether the 2nd defendant was the owner of suit
property?
2. Whether Chandralekha became the owner of the
suit property by virtue of Gift deed dated
30.09.1976?
3. Whether Surendra Shetty became the owner of
the suit property having purchased the same
from Chandralekha under sale deed dated
06.10.1980?
4. Whether plaintiff is the owner of suit property
having purchased the same from Surendra Shetty
under sale deed dated 08.05.1985?
5. Whether plaintiff is in lawful possession of suit
property?
6. Whether plaintiff proves the existence of suit
property?
7. Whether first defendant is the owner of
Sy.No.164?
8. To what relief the plaintiff is entitled?
9. What order?
6. In order to prove the case of the plaintiff, she
examined four witnesses as PW1 to PW4 and got marked the
documents at Ex.P1 to P48. On the other hand, defendant No.2
is examined as DW1 and defendant No.1 is examined as DW2
and a witness is examined as DW3 and got marked the
documents at Ex.D1 to D123. The Trial Court having considered
the material available on record comes to the conclusion that
defendant No.2 had no exclusive right to dispose of the
coparcenary property and answered Issue Nos.2 to 6 as negative
and answered Issue No.7 as affirmative in coming to the
conclusion that defendant No.1 is the owner of Sy.No.164 and
the plaintiff is not entitled for any relief and dismissed the suit.
7. Being aggrieved by the judgment and decree of the
Trial Court, an appeal was preferred in R.A.No.7/2002 and the
First Appellate Court having considered the grounds urged in the
appeal memo, formulated the points as under:
1. Whether the Trial Court erred in not upholding the
gift deed, Ex.D2?
2. Whether appellant/plaintiff proves the identity and
location of the suit property?
3. Whether appellant/plaintiff proves her title to the
suit property?
4. Whether appellant/plaintiff proves her lawful
possession?
5. Whether appellant/plaintiff is entitled for relief of
declaration of title and permanent injunction, as
sought?
6. Whether judgment and decree of the Trial Court,
dismissing the suit needs any interference?
7. What order?
8. The First Appellate Court having reassessed the
material available on record, answered all the points as
affirmative in coming to the conclusion that the Trial Court erred
in not upholding the gift deed at Ex.D2 under which the plaintiff
claims the title inspite of plaintiff had proved the title and
possession of the suit schedule property. Hence, reversed the
judgment and decree of the Trial Court. Being aggrieved by the
said judgment and decree of the First Appellate Court, the
present second appeal in R.S.A.No.2396/2006 is filed by the
appellant/defendant No.1 before this Court.
9. In R.S.A.No.2396/2006, the counsel for the appellant
would vehemently contend that the appellant who is defendant
No.1 in O.S.No.22/1993, also filed a separate suit in
O.S.No.8/1992 seeking the relief of permanent injunction
wherein the said appellant/plaintiff has contended that the suit
schedule property is the ancestral property of joint Hindu family
and no one coparcener has right to gift his undivided share
without consent of others and he is in peaceful possession and
enjoyment of the same without any interruption along with other
members of the family. It is contended that the plaintiff with
bonafide intention to improve and develop the suit schedule
property has filed a suit in O.S.No.8/1985 and same came to be
decreed as against defendant Nos.1 and 2 who were signatories
to the compromise petition and suit was dismissed against
defendant Nos.3 to 32 in that suit who are not signatories to the
compromise petition. Subsequently, the suit property was
converted for non-agricultural purpose and residential sites were
formed on the same. Thus, the plaintiff is in possession of the
same. The details of the proceedings pertaining to conversion of
the same to non-agricultural purpose are furnished in the plaint.
When the things stood thus, the defendants made an attempt to
interfere with the plaintiff's possession over the suit property
and also made an attempt to remove the fence erected on the
sites fixing the boundaries. Being aggrieved by the act of the
defendants without other alternative, filed the suit for permanent
injunction.
10. The defendants contested the suit contending that
the suit is bad for non-joinder of necessary parties. B.Nanjappa
who is the father of the plaintiff had gifted the property in favour
of his daughter that is defendant No.3 on 30.09.1976 and
defendant No.3, who was in possession of the property, by virtue
of the gift, sold the property in favour of one Dr.Surendra Shetty
and the said Dr.Surendra Shetty in turn sold the property in
favour of this defendant under a sale deed. The said properties
are bearing municipal katha No.887/708 measuring 60 x 40 feet
subsequently changed as 1545/733 site No.8 and khatha
No.1546/734 bearing site No.9. The compromise decree passed
in O.S.No.8/1985 is not binding on this defendant as there was
no compromise arrived between her since the compromise was
arrived between defendant No.3 herein and the present plaintiff
herein. This defendant has been in lawful possession and
enjoyment of the site Nos.7. 8 and 9 as an absolute owner. It is
also contended that this defendant has filed the suit in
O.S.No.22/1993 for the relief of declaration and injunction.
11. Defendant No.2 in his written statement also denied
the allegations made in the plaint and he contended that the said
Nanjappa gifted certain properties to defendant No.3 on
18.09.1976 and defendant No.3 herein in turn has sold khatha
No.876 i.e., site No.7, khata No.879 i.e., site No.10 on
07.08.1980. Afterwards, this defendant has been in lawful
possession and enjoyment of the said site Nos.7 and 10. The
defendant also filed a suit in O.S.No.340/1991 against the
plaintiff in respect of said sites. It is also contended that decree
passed in O.S.No.8/1985 is not binding on this defendant since
the defendant is not a party to the said proceedings.
12. Defendant No.3 also filed written statement denying
the averments made in the plaint contending that the father of
defendant No.3 namely B Nanjappa who had gifted the property
after converting the land into sites or layouts. The site Nos.6, 7,
8 and 9 as well as 17, 18, 25 and 26 have been gifted to
defendant No.3 by a registered gift deed. Defendant No.3 has
been the owner of the suit schedule property and out of the said
sites, site Nos.6 and 7 were sold to this defendant and site Nos.8
and 9 were sold to defendant No.1 and site Nos.17, 18, 25 and
26 remained with defendant No.3 and she is the owner in lawful
possession of the said sites. The said Nanjappa who is also the
brother of defendant No.5 alienated the site Nos.14 and 15 to
third person and from the third person, defendant No.5
purchased site Nos.3 and 35 and he is the owner in possession
of the same. Compromise decree passed in O.S.No.8/1985 is
not binding on the 3rd as well as 5th defendants. As per the said
layout sketch, the sites are situating in both Sy.Nos.164 and 165
and thereafter, katha was transferred and even houses are being
constructed there. Hence, prayed to dismiss the suit.
13. The Trial Court having considered the pleadings of
the respective parties, framed the following Issues:
1. Whether the plaintiff proves that he was in lawful
possession of the suit schedule property as on the
date of filing the suit?
2. Whether the plaintiff further proves that the
alleged interference by the defendants?
3. What order or decree?
14. On behalf of the plaintiff, he himself examined as
PW1 and got marked the documents at Ex.P1 to P10. On the
other hand, defendant No.2 has stepped into the witness box
and examined as DW1 and no document has been marked. The
Trial Court having considered both oral and documentary
evidence placed on record answered the Issues as negative and
dismissed the suit. Being aggrieved by the judgment and decree
of the Trial Court, an appeal was preferred in R.A.No.173/2004.
The First Appellate Court having considered the grounds urged in
the appeal memo, formulated the points as follows:
1. Whether appellant/plaintiff proves his lawful
possession?
2. Whether appellant/plaintiff proves alleged
interference?
3. Whether appellant/plaintiff is entitled for
permanent injunction?
4. Whether the judgment and decree of the Trial
Court, dismissing the suit needs any interference?
5. What order?
15. Having considered both oral and documentary
evidence placed on record confirmed the judgment and decree of
the Trial Court answering all the points as negative. Being
aggrieved by the said judgment and decree of the First Appellate
Court, the present second appeal in R.S.A.No.2397/2006 is filed
before this Court.
16. Having considered the grounds urged
R.S.A.No.2396/2006, on 02.12.2010, this Court has framed the
following substantial questions of law:
1. Whether the father of the vendor of the plaintiff,
as the karta of the family, could made a gift of
the undivided extent of the property in respect of
his daughter?
2. Whether the father, as karta could, within a
reasonable limit, gift a property in favour of his
daughter to secure her maintenance or for such
other pious purposes, notwithstanding that it is
the undivided interest of the family?
17. This Court also in R.S.A.No.2397/200, having
considered the grounds urged in the appeal memo, on
28.06.2013, additional substantial question of law has been
framed by recasting the same which reads thus:
Whether the Trial Court and appellate Court have
committed an error on facts or law in dismissing the
suit and confirmation by the appellate Court, on the
ground that the plaintiff has failed to prove factum of
possession?
18. The counsel for the appellant in his argument would
vehemently contend that the respondent No.1 who had filed the
suit in O.S.No.335/1991 has sought for the relief of declaration
and injunction and the same is filed through a GPA holder. The
contention of respondent No.1 who is the plaintiff in the said suit
which was renumbered as O.S.No.22/1993 that there was a gift
deed dated 30.09.1976 in favour of one Chandralekha who is the
daughter of B.Nanjappa. The counsel for the appellant would
vehemently contend that the father cannot gift the property out
of undivided coparcenary property. Though defendant No.2 who
is the executant of gift deed supported the case of defendant
No.1 who denied the plaint averments and also denied the gift
and title of the plaintiff and contended that suit itself is not
maintainable. The Trial Court rightly dismissed the suit on the
ground that undivided interest cannot be gifted in favour of the
plaintiff. The counsel also in his arguments would vehemently
contend that the First Appellate Court committed an error in
reversing the finding of the Trial Court and there must be a
reasoned order while reversing the judgment of the Trial Court.
The counsel also would vehemently contend that identity of the
property is doubtful. It is the contention of the plaintiff that
sites are formed in Sy.No.164 as well as in Sy.No.165 and both
the survey numbers also allotted in favour of the appellant
herein. The counsel and also brought to notice of this Court to
Section 130(a) and (b) of CPC. The counsel also in his
arguments would vehemently contend that when the appellant
had filed the suit for the relief of injunction claiming that he is
the owner in respect of the suit schedule property based on the
compromise decree entered into between the parties and
produced Ex.P1, the Trial Court failed to consider the same and
erroneously dismissed the suit even though possession has not
been proved. The First Appellate Court also committed an error
in confirming the judgment and decree of the Trial Court. Hence,
the very approach of both the Courts are erroneous.
19. The counsel for the appellant in support of his
arguments also filed written submission reiterating the
contentions urged in both the appeals. The counsel also would
vehemently contend that title on the basis of which injunction
was sought by the appellant in view of the compromise decree
passed in O.S.No.8/1985 and the said suit was filed for the relief
partition and separate possession wherein land of 6 acres 19
guntas in Sy.No.164 that is the suit schedule property was
allotted in favour of this appellant and he was put in possession
of the same. The Trial Court also dismissed the suit in
O.S.No.8/1992 on technical ground stating that 1 acres 1 gunta
of land carved out of 6 acres 19 guntas in Sy.No.164 was
acquired by the National Highway Authority which has altered
the schedule of the land and further that the compromise decree
for partition in O.S.No.8/1985 does not bind the defendants as
they were not parties to the same. The very approach of both
the Courts is erroneous.
20. The counsel also in support of his arguments relied
upon the judgment reported in AIR 1987 SC 1775 in the case
of THAMMA VENKATA SUBBAMMA (DEAD) BY L.R. vs
THAMMA RATTAMMA AND OTHERS and contend that
alienation of undivided interest in joint family property by karta
or any member is void and unenforceable and held that although
the gift ostensibly in favour of brother, but really the donor
meant to relinquish his interest in the coparcenary in favour of
the brother and his sons. A gift by a coparcener of his undivided
interest in the coparcenary property is void. The reason as to
why a coparcener is not entitled to alienate his undivided
interest in the coparcenary property by way of gift is that an
individual member of the joint Hindu family has not definite
share in the coparcenary property and hence, does not convey
any title.
21. The counsel also relied upon the judgment reported
in AIR 1999 SC 1441 in the case of VIDHYADHAR vs
MANKIKRAO AND ANOTHER and contend that non-
examination of party is fatal and the evidence is not to be looked
into and plaintiff not submitting to cross-examination vitiates
plaintiff's case.
22. The counsel also relied upon the judgment reported
in AIR 1972 SC 2299 in the case of M KALLAPPA SETTY vs M
V LAKSHMINARAYANA RAO and brought to notice of this
Court paragraphs 5 and 6 of the said judgment and referring this
judgment contended that Shakeela Shetty cannot seek decree
against true owner who is in possession of land allotted to him in
terms of the judgment and decree passed in O.S.No.8/1985.
23. The counsel also relied upon the judgment reported
in (2019) 6 SCC 409 in the case of THULASIDHARA AND
ANOTHER vs NARAYANAPPA AND OTHERS and the counsel
referring this judgment would vehemently contend that the
scope of Section 100 of CPC in case of reversing the judgment
by the First Appellate Court or even concurrent finding if very
limited. The scope of Section 100 of CPC that is formulation of
substantial question of law (including as to perversity of findings
of fact, if any) sine qua non for exercise of jurisdiction by High
Court in second appeal, in absence thereof, concurrent findings
of fact cannot be reversed in second appeal and interference
with concurrent findings of fact by High Court in second appeal
permissible when material or relevant evidence not considered or
when findings arrived at by relying on inadmissible evidence by
First Appellate Court. The counsel would vehemently contend
that the Court can exercise the power conferred under Section
100 of CPC.
24. The counsel also brought to notice of this Court
Section 103 (a) and (b) of CPC wherein it is held that High Court
can interfere if there is misreading of document or faulty
inference from proved facts, not withstanding the bar under
Section 100 of CPC. The counsel referring this Section also
contend that this Court can exercise the powers under Section
100 of CPC when the material has not been discussed.
25. Per contra, the counsel appearing for the
respondents in his arguments would vehemently contend that it
is not in dispute that one Devappagowda who is the common
ancestor had two sons by name B.Nanjappa and B. Shivappa.
He held and possessed joint family properties inherited from his
ancestors. Said two sons of Devappagowda effected a registered
deed of partition bearing No.221 of Book I, Vol.394, pages 88
onwards dated 18.05.1953 brining about severance between
B Nanjappa and B Shivappa and properties that fell to their
share were held for benefit of their families. It is contended that
the said B Nanjappa derived the title in terms of the said
partition. The counsel in his argument would vehemently
contend that the suit filed by Shakeela Shetty in
O.S.No.335/1991 which is renumbered as O.S.No.22/1993 for
the relief of declaration and injunction in respect of site Nos.8
and 9 measuring east to west 60 feet and north to south 80 feet.
The counsel also would vehemently contend that O.S.No.8/1992
was filed by the present appellant for the relief of bare injunction
in respect of Sy.No.164 totally measuring 6 acres 19 guntas.
The counsel also would vehemently contend that the concurrent
finding given by both the Courts is based on the material
available on record hence, it does not require any interference.
The counsel also would vehemently contend that the Trial Court
committed an error in O.S.No.8/1992 in dismissing the suit but
the First Appellate Court rightly appreciated both oral and
documentary evidence placed on record. It is also contended
that the suit is not maintainable since land was converted and
formed layout as per plan at Ex.D109 and sites are formed and
sold. Based on the compromise decree at Ex.P35, claim is made
by the appellant and Ex.P1 is the decree passed in
O.S.No.8/1985. No doubt, as per compromise decree, Sl.No.3 to
the extent of 6 acres 19 guntas in respect of Sy.No.164 was
allotted in favour of the plaintiff. However, the fact that before
allotting and compromising the suit in O.S.No.8/1985 in terms of
Ex.P1 and P35, already gift was made and sale transaction was
taken place. When such being the case, both the Courts have
not committed any error in appreciating both oral and
documentary evidence placed on record. The counsel would
vehemently contend that, the question was arised before this
Court that the father cannot gift the property of undivided share
and the same has been answered by the First Appellate Court
considering the Hindu Law as well as the judgment of the Apex
Court and rightly comes to the conclusion that it can be gifted.
26. The counsel in support of his argument he relied
upon the judgment reported in (2004) 1 SCC 295 in the case of
R KUPPAYEE AND ANOTHER vs RAJA GOUNDER wherein the
Apex Court held that a father can make gift of ancestral
immovable property within reasonable limits in favour of his
daughter at the time of her marriage or even long thereafter.
Reasonable limits would depend upon factors such as status of
the family, extent and value of the property gifted. Where
respondent father himself takes the stand that the gift made by
him in favour of his daughters was not valid, he must plead and
prove that the gift was excessive and unreasonable. The counsel
would vehemently contend that father had not disputed the
execution of the gift. The gift was also made in the year 1976
prior to her marriage and her marriage was performed in the
year 1979 and said fact is also well within the knowledge of the
present appellant and the appellant also admitted the same.
Having the knowledge of earlier gift made by his father, the
appellant has filed the suit and compromise was also entered in
the said suit excluding other defendants and the same is not
binding on the parties who are not the parties to the said
compromise and the said fact has been considered by both the
Courts. The counsel would vehemently contend that both the
Courts have not committed any error and it does not require any
interference.
27. In reply to the arguments, the counsel for the
appellant filed further submission in addition to and in
continuation of written submission of 18.03.2024 contending
that the Court can invoke Section 103 (a) and (b) of CPC and
relied upon the judgment of the Apex Court reported in AIR
2021 SC 2438 in the case of NARAYAN SITARAMJI
BADWAIK (DEAD) THROUGH LRS vs BISARAM AND
OTHERS and brought to notice of this Court paragraphs 10 and
11 with regard to the scope of Section 100 of CPC wherein
discussed Section 103(a) and (b) of CPC and observation made
in paragraph 11 that a bare perusal of this section clearly
indicates that it provides for the High Court to decide an issue of
fact, provided there is sufficient evidence on record before it, in
two circumstances. First, when an issue necessary for the
disposal of the appeal has not been determined by the lower
appellate Court or by both the Courts below. And second, when
an issue of fact has been wrongly determined by the Court(s)
below by virtue of the decision on the question of law under
Section 100 of CPC.
28. The counsel also relied upon the judgment reported
in AIR 2000 KAR 27 in the case of BABU MOTHER SAVAVVA
NAVELGUND AND OTHERS vs GOPINATH with regard to
coparcenary property, sale of undivided property by a
coparcener, validity, no legal necessity proved, sale would be
bad and not binding on plaintiff to the extent of his share in the
property and brought to notice of this Court to the discussion
made in Article 258 of Mulla's Hindu Law, gift of undivided
interest. Article 267 and interpretation clause with regard to
void agreement wherein it is held that void document being a
nullity in the eye of law, does not require to be challenged while
the voidable document can be challenged by the person
aggrieved or who has executed. The counsel would vehemently
contend that when the void document is executed and need not
to be challenged and hence, prayed this Court to allow both the
second appeals and set aside the judgment and decree of the
Trial Court.
29. Having considered the grounds urged in these
appeals as well as the submissions of the learned counsel
appearing for the respective parties and also in keeping the
substantial question of law framed by this Court on 02.12.2010
referred above and also recasting of substantial question of law
on 28.06.2013 by this Court, this Court have to consider all the
substantial questions of law together and also consider the
pleadings of both the parties in their respective suits.
30. The suit is filed for the relief of declaration and
injunction by the subsequent purchaser from the daughter of the
father of the appellant herein. No dispute with regard to the fact
that the property is derived to the father in terms of the partition
deed of the year 1953. Though it is mentioned that it is a self
acquired property of the father B.Nanjappa, the material
discloses that the property is a coparcenary property. It is also
important to note that firstly, this Court framed the substantial
question of law with regard to that whether the father of the
vendor of the plaintiff, as the karta of the family, could make a
gift of the undivided extent of the property in favour of his
daughter within a reasonable limit to secure her maintenance
and other substantial question of law is with regard to
possession of the plaintiff is concerned. All these questions
involved between the parties and the same has to be considered
reanalysing the material available on record within the scope of
Section 100 of CPC. The counsel for the appellant mainly relies
upon Section 103 (a) and (b) of CPC as well as the power of
father in gifting the property of undivided interest in the
coparcenary property.
31. Having considered the material available on record,
it is not in dispute that the property is belongs to the family of
Nanjappa and the appellant is also the son of said Nanjappa. It
is not in dispute that gift was made in favour of the daughter of
Nanjappa that is Chandralekha in the year 1976 and the same is
also through a registered document. It is also important to note
that the First Appellate Court also having considered the grounds
urged in the appeal taken note of the fact that a kartha of the
family can gift the property in favour of the daughter. The
counsel for the respondents also relied upon the case of
KUPPAYEE referred supra and as against the said judgment, the
counsel for the appellant also relied upon the judgment reported
in the case of THAMMA VENKATA SUBBAMMA referred supra
wherein it is held that gift of undivided share of coparcener is
void. But in the subsequent judgment of the Apex Court, it is
held that the father can made gift of ancestor immovable
property within reasonable limits in favour of his daughter at the
time of her marriage or even long thereafter. Reasonable limits
would depend upon factors such as status of the family, extent
and value of the property gifted, where respondent father
himself takes the stand that the property gift made by him in
favour of his daughters was not valid, he must plead and prove
that the gift was excessive and unreasonable. Having
considered this judgment, it is clear that the father can gift the
ancestors property within reasonable limits in favour of his
daughter. The First Appellate Court also in paragraph 25 taken
note of the legal position with regard to gift and Section 226 of
Mulla's Hindu Law wherein it says that
"The Hindu father or other managing member has
power to make gift, within reasonable limits of
ancestral immovable properties, for pious purpose.
But the alienation must be made by an act
intervivoce and not by will."
32. The First Appellate Court also taken note that at
page 295 of Mulla in his principles of Hindu Law, 15th Edition, in
a commentary under Section 226, observes with reference to
AIR 1964 SC 5 AND 10 in GURAMMA vs MALLAPPA wherein
it is held that in the mentioned case, Supreme Court examined
the whole question and hold that it was open to a father to make
a gift to immovable property to daughter, if the gift is of
reasonable extent, having regard to the properties hold by the
family.
33. The First Appellate Court also taken note of the
judgment which was relied upon by the counsel for the
respondents in the case of KUPPAYEE referred supra. Having
taken note of the principles laid down in the judgments referred
supra by the appellant counsel that coparcener is void in respect
of the coparcenary property but KUPPAYEE's case referred
supra is aptly applicable to the case on hand. In the case on
hand, it is emerged during the course of evidence that the gift
deed was executed in the year 1976 that is prior to the marriage
of a daughter and admittedly marriage of the daughter was
performed in the year 1979. It is also important to note that the
said daughter also sold the property in the year 1980 i.e., after 4
years of gift made to her and on the very next year of her
marriage. It is disputed by the appellant with regard to gift is
concerned and also the subsequent sale made in favour of the
plaintiff. But admitted in the cross-examination that property
was converted in the year 1967 itself by his father and the father
was also a kartha of the joint family. It is also case of the
plaintiff that she has filed a suit for the relief of declaration and
injunction when the registered document was conveyed in favour
of daughter who in turn had executed the sale deed and the
appellant is also having the knowledge of the said sale deed
even prior to filing of the suit by him in O.S.No.8/1985. The First
Appellate Court also taken note of admission on his part in the
cross-examination of DW2 who is the appellant wherein he
categorically admitted that the father was cordial with him till
1985 and only when his father started selling the sites, the
differences was arisen between both of them.
34. It is also important to note that DW2 categorically
admitted that he did not take any steps for challenging the gift
made in favour of his sister - Chandralekha and Vasantha and
Siddagangamma who is the sister of his father because he got a
share in the family property. It is also important to note that
the appellant did not object for gifting of property and he had
the knowledge of gift, it is nothing but a tacit consent for gifting
the property and when differences was arises between father
and son, in 1985, he had filed the suit. It is also important to
note that he claims that site Nos.8 and 9 comes in Sy.No.165
and he categorically admits that in terms of Ex.D109, his father
had gifted site Nos.8 and 9 in favour of his sister. Hence, it is
clear that DW2 is also having got marked Ex.D109 and relying
upon the same admitted the correctness of the said sketch
hence, the appellant has indirectly admitting the allotment of
site Nos.8 and 9 in favour of Chandralekha by way of gift. The
said fact is also taken note of by the First Appellate Court. The
appellant has not only admitted with regard to the execution of
gift deed but also admitted the document of Ex.D109 produced
by himself and the same also issued under the seal and
signature of TMC which shows that the land is also converted
and there is nothing to disbelieve the document at Ex.D109. All
these factors are also taken note of by the First Appellate Court.
35. I have already pointed out that when the appellant
categorically admits that his father had converted the land in the
year 1967 itself and he was got married subsequent to the
execution of the gift deed in favour of his sister and also
admitted fact that sites which have been formed in the said
property were also sold to the different prospective purchasers
and only he relies upon the document of Ex.P1, compromise
decree. It is important to note that the said compromise is also
between the family members and subsequent purchasers are
also not parties to the said compromise. It is the fact that sites
are also given to the daughter - Chandralekha as well as the
Vasantha and those sites are also formed in the said layout and
the same is also evident from the document at Ex.D109 with
regard to showing of formation of sites. When such material is
available before the Court and answer is also elicited from the
mouth of DW2 who is the appellant, now, he cannot contend that
no title conveys in favour of his sister by execution of the gift
deed made by his father. It is also important to note that
differences were also arisen between himself and his father after
his marriage. The judgment relied by the respondents' counsel is
very clear that the father can made the gift of ancestor's
immovable property within reasonable limits in favour of his
daughter at the time of her marriage or even long thereafter.
The said gift was made prior to her marriage and reasonable
limits would depend upon factors such as status of the family,
extent and value of the property owned by the family.
36. In the case on hand, it is also clear that family is
having more properties i.e., to the extent of 6 acres 19 guntas
allotted to the appellant in terms of compromise which was
entered between the father and son in the suit in O.S.No.8/1985
and prior to that compromise, already gift was made as well as
sale was also taken place based on the said gift deed. Though
there was a compromise between his father and son, the same
will not bind on the other parties, though the suit was filed
against other defendants also they are not parties to the
compromise, hence, the Court has given finding that the
compromise is not binding on the earlier purchasers when they
are not parties to the compromise. The records also reveals that
the family was having larger extent of properties and share was
given to the present plaintiff to the extent of 6 acres 19 guntas.
It is also evident from the records that a land of 1 acre 1 gunta
was also acquired for national highway and the same is also
noticed by the Trial Court while rejecting the relief of bare
injunction when the suit is filed to the extent of 6 acres 19
guntas.
37. The recasting of substantial question of law by this
Court in other connected R.S.A.No.2397/2006 is with regard to
the possession is concerned. The fact is that the suit is filed for
the larger extent and the same is also taken note of by the Trial
Court while dismissing the suit for permanent injunction and
even extracted the admission given by the appellant in
paragraph 11 and taken note of said compromise petition which
is filed only on behalf of plaintiff, defendant Nos.1 and 2 therein
and the said suit was decreed only against defendant Nos.1 and
2 therein, hence, the Trial Court comes to the conclusion that
compromise decree is not binding on the defendants in this suit
wherein five defendants were arrived as parties in the suit for
bare injunction. In paragraph 11, it is also taken note of
admission given by the appellant that before filing the suit in
O.S.No.8/1985, he had seen the gift deed and he also
categorically admits that he came to know about the same in the
year 1985 itself and he also categorically admitted that in the
said suit, he had sought the relief in respect of the sites which
have been shown in the gift deed and sought the relief but he
denies only the fact that when the father had executed the gift
deed and possession was given to her saying that he is not
aware of the same and not specifically denied with regard to the
possession is handed over to his sister. It is also important to
note that when the suggestion was made that when his sister -
Chandralekha had sold the site in favour of the purchaser and
she has given the possession of the same and the said
suggestion was denied stating that he has not aware of the same
and not specifically denied that possession was delivered. He
also categorically admits that when the sites were given as per
the gift deed and khatha was changed in favour of defendant
no..3 who is his sister - Chandralekha.
38. It is also important to note that in respect of site
Nos.7 and 10, sale deed was executed in favour of defendant
No.2 through registered sale deed dated 07.06.1980 and the
same also denied by the appellant stating that he is not aware of
the same but he admits that defendant No.3 got the site Nos.7
and 10 from his father and also denies the sale deed executed
by defendant No.3 in favour of defendant No.2 in respect of site
Nos.7 and 10 and also denied that he is not aware of the same
and not specifically denied the said transaction also. But he had
filed the suit for the relief of permanent injunction in respect of
entire land.
39. The Trial Court also while dismissing the suit, in
paragraph 13, taken note of Ex.P2, P3, P4, P6 and P7 and taken
note of the evidence given by the appellant in O.S.No.22/1993
and judicial notice was taken under Section 56 of the Indian
Evidence Act and his admission is also extracted in paragraph 13
and taken note of the fact that the land has been converted as
non-agricultural land in view of admission that in the year 1967
itself the property was converted and katha also changed. The
Trial Court in detail discussed the material available on record
and comes to the conclusion that the plaintiff has not come to
the Court with clean hands when he is seeking the discretionary
relief of permanent injunction and he has suppressed the
material facts and hence, the Trial Court rightly comes to the
conclusion that the plaintiff is not in lawful possession of the
entire suit schedule property and also taken note of acquisition
of property for national highway and answered the issue as
negative while answering Issue No.1. When such reasons are
given by the Trial Court and the same is also accepted by the
First Appellate Court, the re-casted substantial question of law is
answered accordingly that the plaintiff has failed to prove factum
of possession.
40. Having considered the material available on record
and also the substantial question of law framed by this Court, it
is very clear that father of the vendor of the plaintiff as the
kartha of the family made a gift of undivided extent of the
property in favour of his daughter even though the same is an
undivided interest of the family, as per the judgment of the Apex
Court relied upon by the respondents' counsel in the case of
KUPPAYEE referred supra and same was also within the
knowledge of the appellant. Accordingly, I answer said
substantial question of law. In view of the reasoning given by
the Trial Court as well as the First Appellate Court in a suit for
permanent injunction have not committed any error and so also
in respect of suit for declaration and injunction, the Trial Court
committed an error and same has been reversed by the First
Appellate Court considering the material available on record and
also taken note of the scope of gifting of the property by the
kartha of the family for reasonable extent and also he was
having a share in the coparcenary property and for the pious
purposes that too performing the marriage of his daughter who
is also a daughter of joint family made such gift. The answer
elicited from the mouth of the appellant himself that he admitted
the earlier gift and had knowledge even prior to filing of the suit
in O.S.No.8/1985 for partition and he had seen the gift deed and
aware of the same. Apart from that the appellant's sister who
got the property by way of gift also executed the sale deed on
the very next year of her marriage i.e., in the year 1980. When
such all these aspects has been considered by the First Appellate
Court while reversing the finding of the Trial Court, this Court
does not find any error in granting the relief in favour of the
plaintiff/respondent No.1 herein since the appellant got
compromised the suit including the property already gifted and
sold when the same is not in the possession of the family as on
the date of compromise.
41. In view of the discussions made above, I pass the
following:
ORDER
Both the second appeals are dismissed.
Sd/-
JUDGE
SN
