Karnataka High Court
Sri S. Ramesh Rao vs Sri S.K.Mohan on 3 January, 2024
Author: H.P.Sandesh
Bench: H.P.Sandesh
-1-
NC: 2024:KHC:311
RSA No. 2163 of 2010
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 3RD DAY OF JANUARY, 2024
BEFORE
THE HON'BLE MR JUSTICE H.P.SANDESH
REGULAR SECOND APPEAL NO. 2163 OF 2010
BETWEEN:
SRI. S. RAMESH RAO,
S/O S.K. KRISHNA MURTHY,
AGED ABOUT 45 YEARS,
NO.1, R/AT CHINNASWAMY BUILDING,
SINGASANDRA POST,
HOSUR MAIN ROAD,
BANGALORE - 560 078.
...APPELLANT
(BY SRI. PRABHAKAR L SHETTY, ADVOCATE)
AND:
1. SRI. S.K.MOHAN,
AGED ABOUT 50 YEARS,
Digitally signed
by SHARANYA T S/O LATE KRISHNA MURTHY,
Location: HIGH R/AT YALACHENAHALLI,
COURT OF
KARNATAKA BEHIND ASHRAM,
J.P. NAGAR POST,
BANGALORE - 68.
2. MR. S. SUDHEER KUMAR,
NO.10359443/106,
INFANTRY BATTALIAN (P.A)
C/O 56 ABO.
-2-
NC: 2024:KHC:311
RSA No. 2163 of 2010
3. H.S. KRISHNA MURTHY,
MAJOR,
S/O SEETHARAMA BHATTA,
R/AT HONAGOODU ASAGODU VILLAGE,
HARIHARAPURA HOBLI,
KOPPA TALUK - 577 126.
4. SRI. S.S. MAHABALAIAH,
MAJOR,
S/O LATE SUBBA RAO,
R/AT SOORLI,
HARIHARAPURA VILLAGE AND
HOBLI, KOPPA TALUK - 577 126.
...RESPONDENTS
(BY SRI. M.B. CHANDRA CHOOD, ADVOCATE FOR
SRI. N.S. HIREMATH, ADVOCATE FOR R3;
SMT. SHEELA KRISHNA, ADVOCATE FOR R4;
R1 AND R2 - SERVED AND UNREPRESENTED)
THIS RSA IS FILED U/S. 100 OF CPC AGAINST THE
JUDGEMENT AND DECREE DATED. 15.7.2009 PASSED IN
R.A.NO. 3/2004 ON THE FILE OF THE PRL.DIST. AND
SESSIONS JUDGE, CHIKMAGALUR, ALLOWING THE APPEAL
FILED BY THE 3RD DEFENDANT/APPELLANT THEREIN AND
ALLOWING THE CROSS APPEAL FILED BY THE DEFENDANT
NO.4/RESPONDENT NO.4 THEREIN AND SETTING ASIDE THE
JUDGEMENT AND DECREE DATED. 16.12.2003 IN O.S.NO.
108/97 ON THE FILE OF THE CIVIL JUDGE (SR.DN),
CHIKMAGALUR.
THIS APPEAL, COMING ON FOR ADMISSION, THIS DAY,
THE COURT DELIVERED THE FOLLOWING:
JUDGMENT
This appeal is listed for admission.
2. Heard both the counsel for appellant and counsel
for respondents. This appeal is filed against the divergent
NC: 2024:KHC:311
findings. The factual matrix of the case of the plaintiff, who is
appellant herein is that the suit schedule property is a Hindu
Undivided Family property of plaintiff and defendant Nos.1 and
2 . Defendant No.1 is the father of the plaintiff and defendant
No.2. Defendant No.1 got his scheduled property to his share in
the family partition, through a registered partition deed dated
16.10.1957. At the time of partition, defendant No.1
represented his branch consisting of himself, plaintiff and
second defendant. Later first defendant applied to the land
tribunal for granting the occupancy rights and the land tribunal
granted the occupancy rights in favour of the defendant No.1
and the grant is also on behalf of the family of the plaintiff and
defendant No.1 and 2. Except this property, there is no other
property of the plaintiff and defendant Nos.1 and 2 and there is
no division in their family. Defendant No.1 has executed Power
of Attorney in favour of defendant No.4 on 18.03.1981 to
manage the scheduled property. Neither the plaintiff nor
second defendant has executed GPA in favour of defendant
No.4, nor have they have signed it. After the execution of GPA,
defendant No.4 did not manage the scheduled property
properly, he realized profit from the Areca Corps till 1996. The
NC: 2024:KHC:311
schedule property was not properly maintained because of the
rash and negligence on part of defendant No.4 from 1981 to
1985. He has not rendered the accounts for this period, except
appropriating the value of the crop harvested. Hence, he is
also liable to render accounts from 1981-1996. Defendant No.1
during December 1985 informed defendant not to enter upon
the scheduled property on the basis of GPA, due to his
mismanagement of scheduled property and misappropriating
Areca Crops. Defendant No.1 entered into an agreement to sell
the scheduled property to Sri.S.Chandrashekhar of Soorli
village and delivered the possession of the schedule property
for proper cultivation and management on behalf of the entire
family, for which the plaintiff and second defendant have
consented on 14.07.1996. Sri.S.Chandrashekar is cultivating
and managing the schedule property on behalf of the family of
the plaintiff, defendant Nos.1 and 2. The said agreement and
also the entrustment of the management of the property are
within the knowledge of the defendant No.4. During the first
week of March,1997, plaintiff and defendant No.1 insisted the
defendant No.4 to render correct accounts regarding proceeds
of the Areca Crops realized by him from 1981 to 1996,
NC: 2024:KHC:311
otherwise they will take legal steps. Due to the demand made
by the plaintiff and defendant No.1, defendant No.4 executed a
nominal and fictitious sale deed in the name of defendant No.3,
who is none other than the brother in law of the defendant
No.4, for a sum of Rs.50,000/-, though the value of the
property was in between Rs.One lakh to One and half lakhs.
Alleged necessities mentioned in the sale deed dated
17.03.1997 is fictitious, false and incorrect. Even though
defendant No.4 is a GPA holder has not contracted any debts to
sell the scheduled property. The alleged sale transaction has
been protested before the Court, by filing the suit and
contended that the sale deed is collusive and not binding on the
plaintiff and with only intention was to defraud the plaintiff and
defendant Nos.1 and 2, the said sale deed was executed.
Hence, plaintiff is entitled for 1/4th share in the said property
3. The defendants have appeared and filed their
respective written statement. Defendant No.3 in his written
statement has denied all the allegations made by the plaintiff
as false. It is contended that the defendant No.1 executed GPA
in favour of the defendant No.4 on 18.03.1981, this document
is attested by plaintiff No.1. Defendant No.4 is also empowered
NC: 2024:KHC:311
to execute a sale deed in favour of others. It is also his
contention that defendant No.1 was for himself and also on
behalf of a minor, second defendant along with plaintiff agreed
to sell the scheduled property to defendant No.4, under the
registered agreement of sale dated 17.03.1981 for Rs.8,000/-
and put the defendant No.4 in possession, subject to condition
that defendant No.4 should repay the loan installments of the
mortgage loan, raised by defendant No.1 from P.L.D. bank,
Koppa. Defendant No.4 also contended in his written
statement denying the plaint averment, contending that the
same is false and baseless, but admitted the relationship
between the parties. He also took the very defense in the
written statement that the power of attorney was executed and
power was also given to sell the property and the sale
agreement was executed.
4. Defendant No.2 was a minor, so defendant No.1
acted as a natural guardian to him. Defendant No.2 has filed
his written statement and supported the plaint allegations. He
admits that he executed the GPA in favour of defendant No.4,
in respect of suit schedule property. The Trail Court having
taken note of the pleadings of the parties and defendants,
NC: 2024:KHC:311
framed the issues and allowed the parties to lead evidence.
Accordingly, plaintiff No.1 is examined as PW-1 and also
examined one witness as PW-2, got marked the documents as
Exhibit P-1 to 9 and defendants also examined witnesses as
DW-1 and 2, got marked the documents as Exhibit D-1 to 32.
The Trial Court considering the oral and documentary evidence,
came to the conclusion that plaintiff is entitled for 1/4th share
in the scheduled property and defendant No.3 shall hand over
1/4th share of the plaintiff No.1 and also declared that the sale
deed executed in favour of defendant No.3 dated 17.03.1997
by defendant No.4 is not binding on the 1/4th share of the
plaintiff no.1.
5. Being aggrieved by the judgment and decree of the
Trial Court, an appeal is filed in RA No.32/2004 and First
Appellate Court having considered the grounds urged in the
appeal, formulated the point, whether the impugned judgment
is not legal and whether it requires interference. On
reappreciation of both oral and documentary evidence, the First
Appellate Court came to the conclusion that impugned
judgment is not legal and answered the point as affirmative
NC: 2024:KHC:311
and set aside the judgment and decree of the Trial Court.
Hence, the second appeal is filed before this Court.
6. Learned counsel for appellant in his arguments
vehemently contended that though he is a signatory to the sale
agreement, he has signed the registered GPA as a witness and
not as an executant of the GPA. Learned counsel also
vehemently contend that property was granted in the year
1979 in favour of the family and there was a non alienation
clause and sale was made in the year 1981 itself during the non
alienation period. Hence, the very execution of the sale
agreement and also GPA is in contravention of the grant made
by the land tribunal. All these aspects have not been taken
note of by First Appellate Court. The First Appellate Court
committed an error in reversing the findings of the Trial Court
and well reasoned order passed by the Trial Court is reversed
without considering the material on record. Hence, prayed this
Court to admit the second appeal and frame a substantive
question of law, that the Trial Court committed error in
considering the fact that scheduled property is Hindu Undivided
Family property and GPA executed by the father of the
appellant is binding on the appellant and also the sale
NC: 2024:KHC:311
transaction between the defendant No.4 and 3, as against the
interest of the appellant and the very approach of First
Appellant Court is erroneous.
7. Per contra, learned counsel appearing for the
respondents vehemently contended that though the suit is filed
by plaintiff Nos. 1 and 2 and this appellant is plaintiff No.1 and
his brother is arrayed as plaintiff No.2 and that on the date of
agreement he was major and also signatory to the sale
agreement. The registered GPA was executed by the father
and he was also a signatory as witness to the documents of
GPA which is marked as Exhibit D-1. Learned counsel also
vehemently contend that he kept quite from 1981 and only
when the sale deed was executed by defendant No.4, in favour
of defendant No.3, he filed a suit and the said suit is collusive.
The counsel vehemently contends that even though defendant
Nos. 1 and 2 have considered the sale made in favour of the
defendant No.4 and also vehemently contends that when the
GPA was executed, the power was given to sell the property
and accordingly defendant No.4 has sold the property in favour
of respondent No.3. The Trial Court committed error in
appreciating the both oral and material evidence. In the appeal
- 10 -
NC: 2024:KHC:311
filed by the respondents, the First Appellate Court rightly comes
to the conclusion that when he was a party to the sale
agreement and a signatory to the GPA and he was a consenting
party for the agreement and a witness to the GPA exhibit P-1
and he has not thrown any aspersions against his father for
the transaction and this fact has been taken note of by the First
Appellate Court and not committed any error and there are no
grounds to admit and frame any substantiate question of law.
8. Heard the counsel appearing for appellant and also
the counsel appearing for respondents and also perused the
materials on record. No doubt in the suit OS No.108/1997, the
appellant has questioned the very sale deed executed by
defendant No.4 in favour of defendant No.3 and he contends
that the power was given to him only for managing the
property and also sought for order to render accounts in
respect of scheduled property. The Trial Court comes to the
conclusion that the property is a HUF property and also comes
to the conclusion that the first plaintiff has proved the
confirmation of ownership by the land tribunal on the first
defendant, would enure to the benefit of the other members of
the HUF and also Trial Court comes to the conclusion that HUF
- 11 -
NC: 2024:KHC:311
has no other property to share among family members and not
accepted the contention of defendant and answered the other
issues as negative and comes to the conclusion that the plaintiff
has proved the sale deed executed by defendant No.4, in
favour of defendant No.3 is collusive, and fictitious document.
The First Appellate Court having reassessed the oral and
documentary evidence available on record, having taken note
of the fact that this appellant is also a party to the sale
agreement and apart from that the GPA is executed by the
father, in terms of Exhibit D-1, in favour of defendant No.4 and
also the power was given to defendant No.4 to execute the sale
deed in terms of Exhibit D-1 and he has sold the property. In
paragraph 25 of the judgment of the First Appellate Court, the
Court has taken note of the fact that the first plaintiff, who is
appellant herein is also a consenting party for the agreement of
sale and witness to the GPA executed by defendant No.1 and
also he never expressed any aspersions against the father
about the transaction, that transaction made by the father is
any 'Avyavaharika Debt' and utilizing the sale proceeds to meet
such 'Avyavaharika Debt'. It is also important to note that
when the plaintiff is a party to the sale agreement and also a
- 12 -
NC: 2024:KHC:311
witness to the document of GPA and in terms of the GPA, which
is marked as Exhibit D-1, power is given to sell the property to
defendant No.4 and defendant No.4 in turn sold the property in
the year 1997, that is on 17.03.1997. The plaintiff/ appellant
herein is a party to the sale agreement and a signatory to the
document of Power of Attorney and having knowledge he kept
quite till 1997, and even though the sale transaction was made
in the year 1981 and only when the sale was made by
defendant No.4, in favour of defendant No.3, had filed a suit
contending that the Power of Attorney does not give any right
to sell the property. When the document of Exhibit D-1 is a
registered document of Power of Attorney and the recital of the
document, particularly in clause 6, it is very clear that power is
given even to sell the property and the appellant also not
disputed the fact that he was a signatory to the document as a
witness and also a party to the sale agreement. When such
material is before the Court, now the appellant cannot blow hot
and cold contending that that no sale consideration was
received, when he was a party to the sale agreement and also
a signatory to the Power of Attorney, that to almost after 16
years of the said sale transaction of the year 1981.
- 13 -
NC: 2024:KHC:311
9. The second ground urged by the appellant's counsel
is that there was grant in the year 1979 and the same is also in
favour of the family and no doubt there was a grant in favour of
the father, that is defendant No.1, in the year 1979 and the
fact that there was non alienation clause and there was a sale
agreement executed in terms of Exhibit D-31 and no sale was
made. The Power of Attorney was executed and power was
given to even to sell the property and during the period of non
alienation no sale transaction was taken place and sale
transaction took place only after expiry of 15 years from 1979
and now the counsel cannot contend that the sale was made
during the non alienation period and also there is no substance
in the contention of appellant's counsel. Other ground is also
that the father and brother have ratified the sale during the
pendency of the suit, this appellant has not ratified the sale in
respect of supporting the case the plaintiff/appellant and the
same can not be a ground to come to other conclusion that the
First Appellate Court committed an error. I do not find any
error in the order passed by the First Appellate Court in coming
to the conclusion that already there was a sale agreement and
this appellant is a party to the sale agreement and also
- 14 -
NC: 2024:KHC:311
signatory to the Power of Attorney, executed by the father. He
is having knowledge of the transaction between defendant No.1
and defendant No.4 and only when the sale was made by
defendant No.4, in favour of defendant No.3, had come up
before the Trial Court challenging the same and the very
reasoning given by the First Appellate Court does not require
interference and no ground is made out to admit the second
appeal. Both the question of fact and question of law was
taken note of by the First Appellate Court and hence, no ground
to admit the same.
9. In view of the discussions made above, I pass the
following Order:
ORDER
Appeal is dismissed.
Sd/-
JUDGE
NJ
CT:SNN
