Karnataka High Court
Smt Ahalya H Shetty vs Smt Vathsala S Shetty on 11 January, 2024
1
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 11TH DAY OF JANUARY, 2024
BEFORE
THE HON'BLE MR. JUSTICE SACHIN SHANKAR MAGADUM
REGULAR SECOND APPEAL NO.2190 OF 2016 (PAR)
BETWEEN:
1 . SMT AHALYA H SHETTY
W/O DR. HEMACHANDRA SHETTY
AGED ABOUT 58 YEARS
2 . DR.AMARKISHAN SHETTY
S/O LATE DR.SHIVANNA SHETTY
AGED ABOUT 56 YEARS
3 . SMT. ABHINAYA SHETTY
W/O MR. ARAVIND &
D/O AHALYA SHETTY
AGED ABOUT 36 YEARS
4 . SMT. AMRUTHA SHETTY
W/O MR. BABUL BALAKRISHNA &
D/O AHALYA SHETTY
AGED ABOUT 31 YEARS
ALL ARE HAVING COMMON ADDRESS
R/AT NO.40, 16TH CROSS,
29TH MAIN, SARAKKI LAYOUT
J.P.NAGAR, BENGALURU-560 078
NOW R/AT NO.102
SOBHA DEW FLOWER,
IV CROSS, SARAKKI MAIN I PHASE
2
J.P.NAGAR,
BENGALURU-560 078
...APPELLANTS
(BY SRI M.J. ALVA, ADVOCATE)
AND:
1 . SMT VATHSALA S SHETTY
W/O LATE DR. SHIVANNA SHETTY
AGED ABOUT 79 YEARS,
NO.517, I MAIN, I BLOCK,
R.T.NAGAR, BENGALURU-560 032
PRESENTLY R/AT NO.310
VITHOLA APTS, KALENA AGRAHARA
OFF BANNERUGHATTA ROAD,
BENGALURU-560 076
RESPONDENT NO.1
SINCE DEAD REP.BY APPELLANTS
NOS.1 & 2 ARE HER LRs
AMENDMENT CARRIED OUT AS PER
COURT ORDER DTD:05.04.2017.
2 . PRASAD BALLAL
S/O LATE SUBODHA BALLAL
AGED ABOUT 51 YEARS
HEBRI TOWN, HEBRI POST
KARKALA TALUK
UDUPI DISTRICT-576 112
...RESPONDENTS
(BY SRI CHANDRANATH ARIGA K, ADVOCATE FOR C/R2;
V/O/DTD: 05.04.2017, A1 & A2 ARE TREATED AS LRs OF R1)
3
THIS RSA IS FILED UNDER SEC.100 OF CPC., AGAINST THE
JUDGMENT AND DECREE DATED 14.09.2016 PASSED IN RA
NO.6/2009 ON THE FILE OF THE PRINCIPAL DISTRICT JUDGE,
UDUPI, ALLOWING THE APPEAL AND SETTING ASIDE THE
JUDGMENT AND DECREE DATED 18.12.2008 PASSED IN OS
NO.31/2005 ON THE FILE OF THE CIVIL JUDGE (SR.DN.) AND
ACJM., KARKALA.
THIS APPEAL HAVING BEEN HEARD AND RESERVED FOR
JUDGMENT ON 10.01.2024, COMING ON FOR PRONOUNCEMENT OF
JUDGMENT THIS DAY, THE COURT DELIVERED THE FOLLOWING:
JUDGMENT
The captioned second appeal is by plaintiffs assailing the
judgment and decree rendered by the appellate Court wherein
appellate Court has allowed the appeal filed by defendant No.2
and the plaintiffs suit seeking relief of partition and separate
possession is dismissed. These divergent findings are under
challenge at the instance of plaintiffs.
2. For the sake of brevity, the parties are referred to
as per their rank before the trial Court.
3. The family tree is as under:
SMT.VATSALA.S.SHETTY
(Respondent / Defendant No.1)
|
---------------------------------------------------------------
| |
SMT.AHALYA.H.SHETTY AMARKISHAN SHETTY
(Appellant / Plaintiff No.1) (Appellant / Plaintiff No.2)
|
--------------------------------------
| |
ABHINAYA SHETTY AMRUTHA SHETTY
(Appellant/Plaintiff No.3) (Appellant / Plaintiff No.4)
4. Plaintiff Nos.1 and 2 are the children of defendant
No.1. It is not in dispute that plaintiff Nos.1 and 2 and
defendant No.1 constitute a Hindu Undivided Family governed
by Aliyasantana Law and defendant No.1 being a mother was
managing the suit land bearing Sy.No.13/1 measuring 1 acre
70 cents. The plaintiffs feeling aggrieved by the alienation
made by their mother have filed the present suit seeking relief
of partition and separate possession. Plaintiffs have alleged in
the plaint that they were not aware of alienation made by their
mother/defendant No.1 in favour of defendant No.2. Plaintiffs
have contended that suit land was granted by Land Tribunal
and the said land which was subject matter of partition in the
family was allotted to the branch of plaintiffs as well as
defendant No.1 under registered family partition deed dated
25.05.1970. Therefore, feeling aggrieved by the alienation
made by their mother, the plaintiffs have filed the present suit
by contending that they are entitled to seek their legitimate
share by effecting partition by metes and bounds.
5. Defendant No.1 who is the mother has not chosen
to contest the proceedings. Defendant No.2 who is the
purchaser of undivided interest filed written statement and
stoutly denied the entire averments made in the plaint.
Defendant No.2 on the contrary claimed that the sale
transaction entered into by plaintiffs mother in his favour
binds the plaintiffs as well. Defendant No.2 questioned the
maintainability of the suit on the ground that plaintiffs cannot
a maintain a simple suit for partition without seeking
cancellation of the sale deed executed by their mother in his
favour. Defendant No.2 also contended that on account of
long passage of time and the plaintiffs conduct in not
questioning the alienation also gives an indication that
plaintiffs have waived off their undivided right in the property
and the same amounts to abandonment.
6. Plaintiffs and defendants to substantiate their
respective claim have let in oral and documentary evidence.
7. Trial Court having examined the pleadings
answered issue Nos.1, 2 and 4 in the affirmative. While issue
No.3 was answered in the negative and against defendant
No.2. While answering issue No.3 in the negative, trial Court
held that defendant No.2 has failed to prove that the sale by
defendant No.1 in his favour was for family necessity and
consequently, issue No.4 was answered in the affirmative and
while answering the said issue in affirmative, trial Court held
that sale deed executed by defendant No.1 is not binding on
plaintiffs share. The defendant No.2 since questioned the very
maintainability of the suit, issue No.5 was framed in that
regard. Trial Court answered issue No.5 in the negative and
held that suit is maintainable without seeking cancellation of
the sale deed dated 27.02.1987. The trial Court while
answering additional issue No.1 in the negative also held that
defendant No.2's claim that plaintiffs having kept quite for
such a long time amounts to deemed consent for the
transaction entered into between defendant No.1 and
defendant No.2 was also not acceded to by the trial Court and
additional issue was answered in the negative and against the
defendant No.2.
8. Trial Court having examined the records and having
regard to the fact that there is no serious challenge and
dispute in regard to the fact that suit land is an Aliyasantana
property proceeded to hold that plaintiffs have got
independent right in the suit land and since they are not
signatories to the sale deed, the said sale deed would not bind
on the plaintiffs and consequently, suit is decreed granting
1/5th share each to the plaintiffs.
9. Defendant No.2 feeling aggrieved by the judgment
and decree of the trial Court preferred appeal before the
appellate Court.
10. Appellate Court as a final fact finding authority has
formulated in all five points. While answering point No.1 in
the affirmative, appellate Court was of the view that since
plaintiffs have not questioned the sale deed dated 27.02.1987,
the provisions of Section 29(1) of the Madras Aliyasantana
Act, 1949, cannot be made applicable to the present case on
hand. Appellate Court was of the view that plaintiffs could not
have maintained a suit for partition and separate possession
without seeking cancellation of the sale deed dated
27.02.1987. While answering point Nos.4 and 5 in the
affirmative, appellate Court was of the view that the sale
made by defendant No.1/mother in favour of defendant No.2
was for family necessity and therefore, the finding recorded by
trial Court on issue No.3 was reversed and consequently,
appeal was allowed and suit is dismissed. These divergent
findings are under challenge.
11. This Court vide order dated 25.05.2023 has
formulated following substantial questions of law:
"1) Whether the Appellate Court justified in
rejecting the relief of partition on the ground that
plaintiffs have not sought the cancellation of sale deed
dated 27.02.1987?
2) Whether the interpretation of Section 29(2)
of the Madras Aliyasantana Act made by the First
Appellate Court is correct and proper in view of the
absence of written consent of the appellants?"
12. Learned counsel appearing for plaintiffs in the light
of substantial questions of law framed by this Court has
straight away placed reliance on the judgment rendered by the
Division Bench of this Court in the case of Ganapati
Santaram Bhosale vs. Ramachandra Subbarao Kulkarni1.
He has also placed reliance on the judgment rendered by the
Coordinate Bench in the case of Munithayamma and
Another vs. Byanna and Others2. Referring to the dictum
laid down by the Division Bench and Coordinate Bench, he
would point out that it is not in dispute that plaintiffs and
defendant No.1 constitute an Undivided Joint Hindu Family and
the parties are governed under Aliyasantana Law and
therefore, mother had no absolute right to alienate the
property without the consent of other family members.
Referring to the dictum laid down by the Division Bench, he
would point out that since plaintiffs have antecedent right in
the property, there is no need for them to seek cancellation of
the sale deed. He would go one step further and claim that
plaintiffs even need not seek a formal declaration that the sale
is not binding on their legitimate share. Reliance is placed on
para 48 of the judgment rendered by the Coordinate Bench in
RFA.No.87 of 1975 Dtd: 12.02.1985
AIR Online 2022 Kar 187
the Munithayamma vs. Byanna (supra). He would refer to
para 48 of the said judgment and contend that the Division
Bench judgment rendered in the case of Ganapati Bhosale
(supra) held that a non-alienating coparcener can maintain a
partition suit without questioning the sale deed and it would
be sufficient if he merely asks for a share. Interpreting the
principles laid down by Division Bench, Coordinate Bench at
para 48 has held that Division Bench has not examined
whether it is imperative or mandatory for a coparcener to seek
for a declaration that it is not bound by any alienation or
interest that has been created in the properties. He would
point out that coordinate Bench has held that such a
declaration is not required to be mandatorily sought so as to
maintain a suit for partition on account of alienation by the
other family member. He has also placed reliance on the
judgment rendered by this Court in the case of Inas Aranha
vs. Shivayya Banga and Others3. Referring to the
principles laid down by the Coordinate Bench, he would point
ILR 2013 Kar 619
out that a member of Aliyasantana has no right to sell the
properties and therefore, the purchaser dehors the sale by one
of the family member will not acquire absolute right over the
entire extent.
13. Per contra, learned counsel appearing for defendant
No.2 would however support the findings recorded by the
appellate Court while dismissing the suit. He would point out
that in the light of principles laid down by Division Bench in
the judgment cited supra, plaintiffs if not seeking cancellation
of sale deed, were atleast required to seek a formal
declaration that the sale deed executed by defendant No.1 in
favour of defendant No.2 would not bind their legitimate
share. He would also point out that defendant No.2 who is a
purchaser who had purchased for valuable sale consideration
being a bonafide purchaser is found to be in exclusive
possession and therefore, no relief can be granted to the
plaintiffs. He would also bring to the notice of this Court that
the sale is made on 27.02.1987 while plaintiffs have chosen to
file the suit only on 07.04.1997 and therefore, he would point
out that by conduct it can be inferred that plaintiffs had given
their consent and authorization to defendant No.1 to alienate
the property. On these set of grounds, he would point out
that substantial questions of law framed by this Court needs to
be answered in the negative and against the plaintiffs.
14. Heard learned counsel appearing for plaintiffs and
learned counsel appearing for defendant No.2. I have given
my anxious consideration to the findings recorded by both the
Courts. I have also given my anxious consideration to the
judgments cited by both the Counsels.
My findings on first substantial question of law:
15. Admittedly, plaintiffs and defendant No.1 constitute
an Undivided Joint Hindu family and are members of
Aliyasantana family. It is not in dispute that suit land is an
Aliyasantana property and the same can be inferred from the
recitals in the sale deed executed by defendant No.1 in favour
of defendant No.2. Defendant No.2 can non-suit the plaintiffs
only on two counts. Firstly, if he is able to demonstrate that
the alienation by defendant No.1 is only for family necessity.
Secondly, as claimed in the written statement if he is able to
demonstrate that the present suit filed by plaintiffs is a
collusive suit only to set at naught a valid sale deed executed
by mother for valuable sale consideration.
16. On examining the judgment rendered by the trial
Court, though defendant No.2 has taken a contention that the
alienation by defendant No.1 on 27.02.1987 was for family
necessity, there is absolutely no evidence let in by defendant
No.2 to substantiate his claim that alienation by defendant
No.1 was for family necessity. Accordingly, issue No.3 is
answered in the negative. Though a plea of collusion is set up
in the written statement, however, it seems that defendant
No.2 has abandoned the said defence during trial. There is no
issue framed by the trial Court and defendant No.2 has also
not made any attempts by filing appropriate application calling
upon the trial Court to frame an issue on collusion. If these
two elements are taken out, then the question that needs to
be examined by this Court in the light of substantial question
of law framed at Sl.No.1 as to whether plaintiffs could have
maintained a suit for partition without questioning the sale
deed dated 27.02.1987. The law in that regard is no more res
integra. The Division Bench of this Court in the judgment
cited supra has clearly held that in a suit for partition, a non-
alienating member need not question the sale deed executed
by one of the family member. It is sufficient if he asks for his
share in the joint family properties. The Division Bench held
that he can seek a formal declaration. The question that
needs examination is as to whether a suit for partition has to
fail in the event plaintiffs who are non-alienating members of a
joint family fail to seek a formal declaration. My answer is
emphatically 'No'. As it is a trite law that in a joint family
ancestral property, the members have a pre-existing right and
such a right is acquired by birth. If the family members have
an antecedent right, the alienation made by one of the
member in excess of his/her legitimate share would not take
away the right of the other non-alienating family members.
The fact that defendant No.2 has failed to substantiate that
the alienation was for family necessity and that alienation was
with the consent of plaintiffs herein, a simple suit for partition
and separate possession is very much maintainable. The
Division Bench dictum rendered in the judgment cited supra
calling upon the plaintiffs to seek a formal declaration is
director in nature and not mandatory. A joint family member
who has a independent right, even in absence of a formal
declaration cannot be non-suited as it is a pre-existing right
and such a right is not lost merely because plaintiffs have not
chosen to seek a formal declaration that it is not binding on
their legitimate share. If plaintiffs have a independent right
dehors alienation made by one family member, the plaintiffs
can maintain a simple suit for partition and separate
possession even without seeking a mere formal declaration.
The fact that Division Bench held that plaintiffs have to seek a
mere suit for formal declaration that they are not bound by
alienation presupposes and refers to the pre-existing right of
joint family members. If plaintiffs have independent right, the
alienation in itself will not deprive their legitimate share in the
suit schedule property unless that alienation is shown to be for
the benefit of the family.
17. In the light of discussion made supra, the finding of
the appellate Court that plaintiffs could not have maintained a
suit for partition without seeking cancellation of sale deed
suffers from perversity, serious infirmity and is patently
erroneous. The findings recorded by the appellate Court on
point No.1 is found to be in contravention with the dictum laid
down by the Division Bench in the case of Ganapati Bhosale
(supra). Therefore, the first substantial question of law needs
to be answered in the affirmative and against defendant No.2.
My findings regarding second substantial question of
law:
18. The appellate Court while re-assessing the evidence
on record and while recording its finding on point Nos.4 and 5
has strangely come to conclusion that the sale made by
defendant No.1/mother was for family necessity. The
appellate Court was of the view that defendant No.2 has
succeeded in substantiating that sale was for family necessity
and therefore, she was competent to enter into a sale
transaction with defendant No.2. On examining the
observations made by the appellate Court, this Court would
find that the finding that sale was for family necessity is not at
all supported by any reasons. Appellate Court proceeds on an
assumption that while plaintiff No.1 was residing in Bangalore
and defendant No.2 was residing at Tamilnadu, it proceeds on
an assumption that none of the families were interested in
retaining this property and therefore, that led to alienation.
Having recorded these findings, appellate Court ultimately
proceeds to hold that sale is for family necessity. Therefore,
the reasons assigned by the appellate Court while answering
point Nos.4 and 5 is not supported by any reasons and the
reversal of finding of the trial Court on issue No.3 which deals
with as to whether alienation was for family necessity is found
to be perverse. If there is no dispute that the parties are
governed under the provisions of Aliyasantana Act, then in
terms of Section 29(2) of the said Act, the alienation made by
defendant No.1/mother in selling the entire extent without
seeking consent of the other family members would not bind
the plaintiffs. The appellate Court has not adverted to this
aspect while non-suiting the plaintiffs on the ground that
plaintiffs have not sought for cancellation of sale deed dated
27.02.1987. Defendant No.2 has also admitted that sale deed
by defendant No.1 in his favour was without the consent of
plaintiffs. Defendant No.2's stand in the written statement is
that on account of passage of time, it has to be presumed that
there was a implied consent by conduct by the plaintiffs and
therefore, plaintiffs cannot maintain a suit for partition.
Having taken such a stand, defendant No.2 has not
substantiated his stand. Therefore, the reversal of the
findings on issue No.3 by the appellate Court without
recording its reasons for reversal suffers from serious
perversity and also contravenes the provisions of Rule 30 and
31 of Order 41. Accordingly, the second substantial question
of law is answered in the affirmative and against the
defendant No.2. The appellate Court erred in recording a
finding that sale was for family necessity and therefore, the
same would bind the plaintiffs. The appellate Court has not
adverted to the issue relating to as to whether the sale was
with consent of other family members as required under
Section 29(2) of Madras Aliyasantana Act.
19. For the reasons stated supra, the substantial
questions of law framed by this Court are accordingly
answered in the affirmative and against defendant No.2.
20. Hence, I pass the following:
ORDER
(i) The second appeal is allowed;
(ii) The judgment and decree rendered by the
appellate Court in R.A.No.6/2009 is set aside.
Consequently, judgment and decree rendered by the
trial Court in O.S.No.31/2005 is confirmed;
(iii) The pending interlocutory application, if
any, does not survive for consideration and stands
disposed of accordingly.
Sd/-
JUDGE
CA
