Karnataka High Court
Sri R Babu Reddy vs Sri K M Ramaiah Reddy on 23 February, 2024
Author: Chief Justice
Bench: Chief Justice
1
RFA 1909/2016
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 23RD DAY OF FEBRUARY, 2024
PRESENT
THE HON'B LE MR.P .S. DINES H KUMA R, C HIEF J U ST ICE
AN D
THE HON'BLE MR. JUSTICE T.G.SHIVASHANKARE GOWDA
RFA NO.1909 OF 2016 (DEC/INJ)
BETWEEN:
SRI. R. BABU REDDY
AGED ABOUT 63 YEARS
S/O SRI. RAMAIAH REDDY
R/AT NO.73, KORAMANGALA
BENGALURU - 560 034 ...APPELLANT
(BY SRI.G.L.VISHWANATH , SR. ADV. FOR
SMT.MANASA B. RAO, ADV.)
AND:
SRI. K. M. RAMAIAH REDDY
AGED ABOUT 101 YEARS
S/O PATEL MUNIYAPPA
R/AT NO.73, KORAMANGALA
BENGALURU - 560 034
SINCE DECEASED BY HIS LRS.
1. SMT JAYAMMA
AGED ABOUT 85 YEARS
W/O K M RAMAIAH REDDY
D/O HANUMAPPA REDDY
R/@ NO 73, KORAMANGALA
BENGALURU - 560 034
2. SRI MOHAMMAD ANSAR AHMED
MAJOR IN AGE, S/O ABDUL SALAM
R/@ NO 397, BEHIND SYED BLOCK
ANNASANDRAPALYA
2
RFA 1909/2016
HAL POST VIMANAPURA
BENGALURU - 560 017
3. SRI MOHAMMED MUKHTAR AHMED
MAJOR BY AGE, S/O ABDUL SALAM
R/@ NO 12-4/32/12, CHANDRABANDA
ROAD, MUYKRAM GUNJ, RAICHUR - 584 102
4. SRI SYED SHAFEEULLA
MAJOR BY AGE
S/O SYED ZAHERUDDIN
R/A @ 37 MASJEED ROAD
J K PURAM, ADUGODI POST
BENGALURU - 560 030
5. SRI ABDUL RAHMAN SHARIFF
MAJOR BY AGE
S/O LATE AKBAR SHARIFF
R/A @ NO 43/6, 16TH CROSS
2ND MAIN LAKKASANDRA
BENGALURU - 560 030
6. SRI M THASUL ISLAM
MAJOR BY AGE, S/O M MOHAMMED
MUSTAFA, R/@ NO 39, ANJANAPURA
LANE, MYSORE ROAD CROSS
BENGALURU - 560 018
7. SRI JAMAL MOHAMMED
MAJOR BY AGE, S/O SULAIMAN ROWTHER
R/@ NO 39, ANJANAPURA, LANE MYSORE ROAD
CROSS BENGALURU - 560 018
8. SRI AZEEM KHAN
MAJOR BY AGE
S/O KHALANDAR KHAN
R/@ NO 9, 4TH CROSS
OLD GURUPPANAPALYA
BANNERGHATTA ROAD CROSS
BENGALURU - 560 029
9. SRI LIYAKATHULLA KHAN
MAJOR BY AGE, S/O B M ABDUL RASHEEM
KHAN, R/@ NO 18/1, 15TH CROSS
LALBAGH FORT ROAD,
DODDAMAVALLI
3
RFA 1909/2016
BENGALURU - 560 004
10. SMT NASIMA
MAJOR BY AGE
W/O KHADER ALI KHAN
R/@ MANGAMMANAPALYA ROAD
MADEENA NAGAR, BOMMANAHALLI
BENGALURU - 560 060
11. SMT BABIJAN
MAJOR BY AGE, W/O AZIZULLA
R/@ NO 67/1, BOMMANAHALLI
VILLAGE, BEGUR HOBLI
BENGALURU SOUTH TALUK
12. SRI MOHAMMED KALEEMULLA
MAJOR BY AGE, S/O SHAIKA HYDER SAB
R/@ NO 18, OLD KHAZI, ROAD CROSS
YOUNES BUILDING BENGALURU - 560 002
13. SRI RIZWAN SHARIFF
MAJOR BY AGE, S/O RASHOOL SHARIFF
R/A BANNERGHATTA ROAD CROSS
BISMILLA NAGAR
3RD MAIN 6TH CROSS
BENGALURU - 560 029
14. SMT NOOR JAN
MAJOR BY AGE
S/O SYED BASHEER
R/@ NO 10 BTM I STAGE
GURAPPANAPALYA
BANNERGHATTA ROAD CROSS
BENGALURU - 560 029
15. SRI AKRAM PASHA
S/O K ABDUL BASHIR
MAJOR BY AGE, NO 16
2ND MAIN ROAD, 2ND CROSS
SOMESHWARANAGAR
JAYANAGAR I BLOCK
BANGALORE - 560 011
16. SRI M S CHANDRAHAS
MAJOR BY AGE, S/O SINGAPPA
4
RFA 1909/2016
R/A NO 34/462, 12TH CROSS 8TH MAIN
WILSON GARDEN, BENGALURU - 560 027
17. SRI N C VENKATESH
MAJOR BY AGE, S/O SRI CHANDRAIAH
NO 273, 12TH CROSS, WILSON GARDEN
BANGALORE - 560 027
18. SRI HARISH HANBALU
MAJOR BY AGE, S/O YELLAPPA GOWDA
NO 18, 8TH MAIN, 13TH CROSS
WILSON GARDEN, BANGALORE - 560 027
19. SRI SYED SADIQ
MAJOR BY AGE, S/O SYED SABJAN
MANGAMMANAPALYA CROSS
NEAR HSR LAYOUT BOMMANAHALLI
BANGALORE - 560 068
20. SRI SYED SABJAN
MAJOR BY AGE, S/O SYED KHASIM
MANGAMMANAPALYA CROSS
NEAR HSR LAYOUT, BOMMANAHALLI
BANGALORE - 560 068
21. SRI DADAPEER
MAJOR BY AGE, S/O LATE MOHAMMED HANEEF
MILAN TEA HOUSE, KALASIPALYA
BANGALORE - 560 002
22. SRI ALLAH BAKSH
AGED ABOUT 46 YEARS
S/O SRI SHAIK PEER SAB
R/AT NO 10, ST MARIMAS
ENGLISH SCHOOL NEW
GURUPPANAPALYA B G ROAD
BANGALORE - 560 029
23. SMT HAMEERA BANU
AGED ABOUT 44 YEARS
W/O SRI SHAFIULLA, NO 19
1ST MAIN, YARAB NAGAR
BSK II STAGE, BANGALORE - 560 070
24. SMT SHABEEN TAJ
AGED ABOUT 51 YEARS
5
RFA 1909/2016
W/O SYED AFSAR, R/@ NO 144,
MASJID-E- BILAL BLDG.
OPP KSRTC BUS STAND
NEW PET ANEKARI
BENGALURU RURAL DIST.
25. SMT YASMEEN TAJ
MAJOR BY AGE
W/O SRI MOHAMMED ALI
NO 2, BTS MAIN ROAD
OPP ADUGODI POST OFFICE
BANGALORE - 560 030
26. SRI K L THOMAS
MAJOR BY AGE
S/O SRI K P LAZAR NO 31
MARIA NIVAS, 1ST MAIN
1ST CROSS BHARATHI LAYOUT
BANGALORE - 560 029
27 . SRI PYARU KHAN
AGED ABOTU 70 YEARS
S/O SRI JANAULLA KHAN NO 3,
VINOBHA NAGAR, H SIDDAIAH
ROAD CROSS BANGALORE - 560 027
...RESPONDENTS
(VIDE ORDER DATED 31.07.2018
SERVICE OF NOTICE TO
R1, R2, R4, R6, R7, R9 TO R23
AND R25 AND R27 IS ACCEPTED
BY WAY OF PAPER PUBLICATION;
R3, R5, R8, R24 & R26 ARE SERVED)
THIS RFA IS FILED UNDER SECTION 96(1) OF CPC.,
1908 AGAINST THE JUDGMENT AND DECREE DATED
26.09.2016 PASSED IN OS.NO.7051/2004 ON THE FILE OF
THE XIV ADDL.CITY CIVIL JUDGE AT BENGALURU,
DISMISSING THE SUIT FOR DECLARATION, MANDATORY
INJUNCTION AND PERMANENT INJUNCTION.
THIS RFA HAVING BEEN HEARD AND RESERVED FOR
JUDGMENT ON 13.10.2023 AND COMING ON FOR
PRONOUNCEMENT OF JUDGMENT THIS DAY,
T.G.SHIVASHANKARE GOWDA J., DELIVERED THE
FOLLOWING:
6
RFA 1909/2016
JUDGMENT
In this appeal, the plaintiff has challenged the
dismissal of his suit filed for declaration and
mandatory injunction by judgment and decree dated
26.09.2016 passed in O.S.No.7051/2004 by the XIV
Additional City Civil Court, Bangalore (CCH-28) (for
brevity 'the Trial Court').
2. For the sake of convenience, parties shall be
referred as per their status before the Trial Court.
3. Brief facts of the case are, land in
Sy.No.47/4, 50/3 to an extent of 1 acre 29 guntas
situated at Venkojirao Khane village, Begur Hobli,
Bangalore South Taluk is the subject matter of the
suit (for brevity 'the suit schedule property').
Plaintiff is the son of defendants No.1 and 2. Suit
schedule property is the joint family property of
plaintiff and defendant No.1. Land in Sy.No.113/2 to
an extent of 1 acre 3½ guntas and house at
Koramangala were allotted to the share of
defendant No.1 in the partition between him and his
brothers. Land was acquired by CITB (now BDA) for
formation of Koramangala Layout in the year 1969
by paying compensation of Rs.1.05 Lakhs. In the
year 1971, Koramangala house belonging to family
was agreed to be sold. These funds was utilized for
acquiring the suit schedule property. Defendant
No.2 did not possess any independent source of
income to purchase the suit schedule property, it
was acquired in her name in Trust.
3.1. Defendant No.2 has no right to execute
the sale deed in favour of defendants No.3 to 17.
The alleged sale deeds are not binding on the joint
family. In the month of September 2003, plaintiff
learnt about the said sales, he has issued notice to
defendants No.3 to 17 and on receipt of the notice,
they attempted to change the nature of the property.
Hence, plaintiff has filed the instant suit for
declaration.
4. Suit is opposed by defendants No.4, 7 and
11 by filing their written statements.
4.1. Defendant No.4 in the written statement
interalia denied the allegations made in the plaint
and contended that defendant No.2 is the absolute
owner of the suit schedule property. He has
measuring 90 feet x 55 feet through registered sale
deed dated 06.03.2008 and he is in possession and
enjoyment of the same. This suit against the
defendants is for wrongful gain.
4.2. Defendant No.7 in the written statement
interalia contended that the suit property is a self-
acquired property of defendant No.2. Sale deed
executed in their favour is for legal necessity,
plaintiff is not the owner of the suit property. He
cannot seek the relief of declaration in respect of
alienation made by his parents i.e., defendants No.1
and 2. The suit is time barred. The suit filed is a
result of collusion between plaintiff and defendants
No.1 and 2.
4.3. Defendant No.11 in his written statement
interalia contended that the suit schedule property
was purchased by defendant No.2 on 25.10.1971
when the plaintiff was a minor. The plaintiff has no
source of income to contribute for such acquisition
by defendant No.2. Suit property is an exclusive
property of defendant No.2. The suit is engineered
by defendants No.1 and 2 in collusion with the
plaintiff. Defendant No.2 has executed a registered
Power of Attorney in favour of one Pyaru Khan who
sold the sites in the suit schedule property to several
persons including this defendant. All the sites
formed in the suit property are in possession of
defendants No.3 to 17 as a bonafide purchasers.
Plaintiff and defendant No.1 have consented for
documents, sale deeds, General Power of Attorney in
favour of others and now they cannot contend
misuse of power by defendant No.2. On these
grounds, defendants have sought for dismissal of the
suit.
5. On the basis of the pleadings, the Trial Court
has framed following issues:
1. Whether the plaintiff proves that the
suit schedule property is joint family
property of the plaintiff and the
defendants?
2. Whether the plaintiff further proves that
the alienation made by 1st or 2nd defendant
in favour of defendants 3 to 7 is not
binding on him and as such, defendants 3
to 7 do not derive any right, title and
interest over the suit schedule property?
3. Whether the plaintiff is entitled for the
reliefs as prayed for?
4. What Order or decree?
ISSUE No.2 IS RECASTED AS FOLLOWS:
1. Whether the plaintiff further proves
that the alienation made by 1 st or 2nd
defendant in favour of defendants No.3 to
17 is not binding on him and as such,
defendants No.3 to 17 do not derive any
right, title and interest over the suit
schedule property?
6. Before the Trial Court, plaintiff and two
witnesses are examined as PWs-1 to 3 and marked
Exs.P1 to P122. On behalf of the defendants, no
evidence was let in. After considering the pleadings,
evidence on record and hearing both the sides, the
Trial Court answered issues No.1 to 3 in the negative
and has dismissed the suit. Aggrieved by the same,
plaintiff has filed this appeal on various grounds.
7. We have heard the arguments of
Sri.G.L.Vishwanath, learned Senior Counsel for
Smt.Manasa B.Rao, learned Counsel for the
appellant/plaintiff. Defendants served and
unrepresented.
8. It is the contention of the learned Counsel
on behalf of the plaintiff that five sale deeds were
executed few weeks before filing of the suit,
remaining sale deeds have been executed during the
pendency of the suit thereby hit by lis pendens. The
Trial Court has failed to consider legal effect of
Ex.P9/Palupatti wherein defendants No.1 and 2 have
given up their right in the suit schedule property in
favour of the plaintiff. Defendants No.1 and 2 could
not have sold the suit schedule property to other
defendants after executing of Ex.P.9. Defendant
No.2 did not have any means to purchase the suit
property. The land in question was not converted
into non-agricultural purpose, no layout plan was
approved by any competent authority, alienation of
the sites through sale deeds will not confirm title on
the defendants and the Trial Court has erroneously
dismissed the suit.
9. We have given our anxious consideration to
the arguments addressed on behalf of the plaintiff
and perused the records.
10. In the light of the rival contentions urged
on both parties, the points that arise for our
consideration are:
(i) Whether the suit schedule property is the
joint family property of the plaintiff and
defendant No.1?
(ii) Whether the alienation made by
defendant Nos.1 and 2 in favour of
defendant Nos.3 to 17 is binding on the
plaintiff?
(iii) Whether the plaintiff is entitled to
declaration sought for?
(iv) Whether the impugned judgment is
perverse and calls for our interference?
REG: POINT NO.(i):
11. The relationship between the plaintiff and
defendant Nos.1 and 2 is admitted. Defendant No.1
is separated from his joint family in the year 1969.
In the year 1971, the suit schedule property was
acquired in the name of defendant No.2. The
property fallen to the share of defendant No.1 was
acquired by the BDA in the year 1969 for formation
of Koramangala Layout and compensation was
granted to him. In the year 1971, the house
belonging to defendant No.1 situated at
Koramangala was agreed to be sold for Rs.10,000/-.
12. It is the specific case of the plaintiff that a
sum of Rs.1,05,000/- and Rs.10,000/- arranged as
advance was utilized for acquiring the suit schedule
property in the name of defendant No.2 in the year
1971. Therefore, mother is only a name-lender and
the suit property is the joint family property of
plaintiff and defendant No.1. Both defendants have
no right of alienation and therefore, he sought for
declaration that the alienation in favour of defendant
Nos.3 to 17 is not binding on him and by virtue of
Palu Patti executed by his parents on 28.01.1987, he
has acquired title over the entire property.
13. In support of the said contentions, the
plaintiff and two witnesses have been examined.
Ex.P1 is the award passed by the CITB (now BDA) in
respect of acquisition of 3 acres 14 guntas of land in
Sy.No.113/2 of Koramangala on 27.12.1973. The
award carries the name of Mariyeppa and his three
sons viz., Govinda Reddy, Ramaiah Reddy
(defendant No.1) and Thimma Reddy. A sum of
Rs.1,01,581/- was received from CITB as
compensation. Ex.P66 is the sale deed dated
20.10.1971 in the name of defendant No.2. The
consideration paid under the said document is
Rs.8,000/-. Ex.P3 is the Partition Deed dated
02.10.1969 where defendant No.1 acquired the
property which in turn the subject matter of the
acquisition under Ex.P1/award. Ex.P4 is the sale
agreement dated 23.08.1971 by defendant No.1 in
favour of A.Rajagopal for a consideration of
Rs.10,000/- and a sum of Rs.4,500/- was received
as a part consideration. If the award passed by the
CITB on 27.12.1973, 2 years 2 months after the
acquisition of the suit property under Ex.P66, the
contention of the plaintiff that the said compensation
was utilized for acquiring the suit schedule property
in the name of defendant No.2 is untenable.
14. Insofar as agreement under Ex.P4 is
concerned, a consideration of Rs.4,500/- was
received from A.Rajagopal by defendant No.1. As
per Ex.P3 (partition deed), no house property at
Koramangala was allotted to defendant No.1 towards
his share. Even such alienation by defendant No.1 in
favour of A.Rajagopal and taking consideration of
Rs.4,500/- will not be sufficient to purchase the suit
schedule property. It is pertinent to note that after
receipt of compensation under Ex.P1, a sum of
Rs.25,000/- was repaid to A.Rajagopal, cancellation
of Ex.P4/agreement was obtained under Ex.P5. This
shows that the advance money received by
defendant No.1 has been returned to A.Rajagopal
with interest and the house property in Koramangala
was retained by the family. Plaintiff's contention
that sale consideration was mobilized by defendant
No.1 has no substance. During the interval of 1969
partition, 1971 acquisition, 1971 agreement for
alienation, 1973 payment of compensation and
discharge of loan to A.Rajagopal in 1974, the plaintiff
was a minor. How he learnt about the transaction by
his parents is not explained by him nor any evidence
is let in. Therefore, plaintiff's claim that the
acquisition of the property in favour of the mother by
father is out of joint family funds/income is incorrect.
We are not persuaded with the contention of the
plaintiff that the suit schedule property is the joint
family property of plaintiff and defendant No.1.
Accordingly, we answer point No.(i).
Reg. Point No.(ii):
15. The suit schedule property is an agricultural
land. As rightly contended by the learned Senior
Counsel for the plaintiff that there was no approved
plan or conversion of the land to non-agricultural
purpose. Defendant Nos.3 to 17 are the purchasers
of several sites in Sy.No.7 and these sites are all
revenue sites. There cannot be any approved plan
nor it can be expected that any public authority will
approve revenue layout for conversion of the land.
The sale deeds in favour of defendant Nos.3 to 17
are produced at Exs.P30 to P47.
16. We have carefully perused the sale deeds.
There is no reference in the sale deeds that the suit
schedule property was converted into non-
agricultural purpose or any approved layout has
been made. The land was formed as revenue layout.
It is pertinent to note that defendant No.2 is the
vendor in respect of sale deed at Exs.P30, P31, P33,
P34, P37, P38, P39, P41, P42, P44, P45, P46 and
P47 whereas the sale deed in Exs.P35, P36, P40 and
P43 has been executed by the GPA holder of
defendant No.2. There is a subsequent transfer of
Ex.P35 by the buyer Alla Baksh to one Urmiladevi.
Ex.P67 is the GPA executed by one Mohammed
Kaleemulla to one Syed Habeeb on 17.05.2002.
Ex.P69 is the GPA of Liyaqat Khan to one Bibijan on
02.06.2003. Ex.P70 is the GPA of defendant No.2 in
favour of one Syed Shefeeulla on 29.07.2003.
Ex.P71 is the GPA of one Thasul Islam and Jamal
Mohammed to one Smt.Almas Syed. Ex.P95 is the
GPA executed in favour of defendant No.2 to Nisar
Ahmed on 15.01.2005. Ex.P96 is the GPA of
V.P.Fakirsab to T.Saleem. Exs.P98 to 121 are GPA
executed by defendant No.2 in favour of Mohammed
Zakir Hussain, Humeera Banu, Syed Ameen, Ayaz
Ahmed, Shafi Ahmed, Mumtaz Begum, etc. The sale
deed executed by defendant No.2 in favour of the
purchasers was attested by defendant No.1 as a
consenting witness. This shows that defendant
Nos.1 and 2 jointly alienated sites formed in the suit
schedule property. Even for the sake of argument,
claim of the plaintiff that the suit schedule property
is the joint family property is to be accepted,
defendant No.1 is the owner of the property and he
has alienated the property along with his wife.
Thereby contention of the plaintiff that defendant
Nos.3 to 17 will not acquire any title by virtue of
such sale deed is not acceptable.
17. It is interesting to note that defendant
Nos.1 and 2 having two daughters i.e., one
Padmamma (married) and Gayathridevi (unmarried).
They were not arrayed as parties to the suit. If it is
so, as we discussed while answering point No.(i), the
plaintiff has failed to establish that acquisition of the
suit schedule property in the name of defendant
No.2 is not for the joint family nor the suit property
is a joint family property of plaintiff and defendant
No.1. Hence, the alienation made by defendant No.2
being the owner of the property consented by her
husband is binding on the plaintiff. Accordingly, we
answer point No.(ii).
Reg.Point No.(iii):
18. The plaintiff's claim is that he has acquired
the entire property by virtue of Palupatti executed by
defendant Nos.1 and 2 in his favour. Ex.P6 is the
said Palupatti dated 28.01.1987. To support the
Palupatti, plaintiff has relied upon the testimony of
PWs-2 and 3.
19. We have carefully perused their
testimonies. Since the defendants have not
contested the suit, there is no cross-examination.
Even if their testimony is accepted that Ex.P6 is the
Palupatti, it is interesting to note that the recitals of
Palupatti refers to gifting of entire suit schedule
property. The names of two daughters Padmamma
and Gayathridevi are not referred in the Palupatti.
There is no share allotted to defendant Nos.1 and 2.
The entire property was given to plaintiff. From the
evidence of PWs-1 to 3 and recitals of Ex.P6, it
indicates that the document 'Palupatti' is a 'gift
deed'.
20. Section 17 of the Registration Act, 1908
contemplates mandatory registration of a document
if the value is more than Rs.100/-. Undoubtedly, on
the date of Palupatti, the suit property was worth
more than Rs.100/-. Hence, being an unregistered
document, it can only be perused for the collateral
purpose that the property referred in the Palupatti
belonging to defendant Nos.1 and 2 and it has been
acquired by defendant No.2. Except that, Ex.P6
cannot be treated as an evidence of partition. The
essence of partition is not forthcoming in Ex.P6 as no
share was allotted to the parents or sisters. Hence,
the claim of the plaintiff even if accepted declaring
that the suit property is a joint family property under
Ex.P6, he will not derive any title. The plaintiff has
not filed the suit for partition, for separate
possession of his share of the property by arraying
his sisters as party. Hence, relief prayed for by the
plaintiff cannot be granted. Accordingly, we answer
this point No.(iii).
Reg. Point No.(iv):
21. We have perused the impugned judgment.
The Trial Court has recorded that the plaintiff has not
acquired title over the suit schedule property by
virtue of Ex.P6/Palupatti as it requires compulsory
registration. The suit schedule property is not joint
family property of the plaintiff and defendant No.1
and therefore, plaintiff is not entitled to the relief of
declaration. We do not find any error or illegality in
the impugned judgment and it does not call for our
interference.
22. In view of our finding on point Nos.(i) to
(iv), the appeal is devoid of merits. In the result,
the following:
ORDER
The appeal is dismissed.
No costs.
Sd/-
CHIEF JUSTICE
Sd/-
JUDGE
KNM/-
