Karnataka High Court
Smt. Rukmabai W/O Bhimappa Pujari And ... vs Bhimappa S/O Chandram Pujari And Ors on 7 June, 2024
Author: S.Vishwajith Shetty
Bench: S.Vishwajith Shetty
-1-
NC: 2024:KHC-K:3702
RSA No. 7181 of 2013
IN THE HIGH COURT OF KARNATAKA,
KALABURAGI BENCH
DATED THIS THE 7TH DAY OF JUNE, 2024
BEFORE
THE HON'BLE MR. JUSTICE S.VISHWAJITH SHETTY
REGULAR SECOND APPEAL NO. 7181 OF 2013 (PAR)
BETWEEN:
1. SMT. RUKMABAI W/O BHIMAPPA PUJARI
AGE: 41-YEARS, OCC: HOUSEHOLD,
R/O. INGALAGI,
TQ: INDI, DIST: BIJAPUR.
2. MAHANANDA D/O BHIMAPPA PUJARI
AGE: 24-YEARS, OCC: HOUSEHOLD,
R/O. INGALAGI,
TQ: INDI, DIST: BIJAPUR.
3. SUNANDA D/O BHIMAPPA PUJARI
AGE: 27-YEARS, OCC: STUDENT,
R/O INGALAGI,
Digitally TQ. INDI, DIST. BIJAPUR.
signed by
SHILPA R
TENIHALLI
Location:
4. PUTTAKKA D/O BHIMAPPA PUJARI
HIGH
COURT OF
AGE: 25-YEARS
KARNATAKA OCC: STUDENT,
R/O INGALAGI, TQ. INDI,
DIST. BIJAPUR.
5. SURAMADEVI D/O BHIMAPPA PUJARI
AGE: 16-YEARS, OCC: STUDENT,
R/O INGALAGI,
TQ. INDI, DIST. BIJAPUR
6. SUJATA D/O BHIMAPPA PUJARI
AGE: 11-YEARS, OCC: STUDENT,
-2-
NC: 2024:KHC-K:3702
RSA No. 7181 of 2013
R/O INGALAGI, TQ. INDI,
DIST. BIJAPUR.
...PETITIONERS
(BY SMT. PRIYANKA LOKUR &
SRI YASHAS S. DIKSHIT, ADVOCATE)
AND:
1. BHIMAPPA S/O CHANDRAM PUJARI
OCC: NIL,
R/O INGALAGI,
TQ. INDI, DIST. BIJAPUR.
2. SHANTAVVA W/O PARASAPPA GAVALI
AGE: MAJOR, OCC: HOUSEHOLD,
R/O KURABAR ONI, INDI
TQ. INDI, DIST. BIJAPUR.
3. SAKUBAI D/O PARASAPPA GAVALI
AGE: MAJOR,
OCC: HOUSEHOLD,
R/O KURABAR ONI, INDI
TQ. INDI, DIST: BIJAPUR.
4. SURAVVA D/O PARASAPPA GAVALI
AGE: MAJOR,
OCC: HOUSEHOLD,
R/O KURABAR ONI, INDI
TQ. INDI, DIST. BIJAPUR.
5. SMT. BHAGAVVA W/O PARASAPPA GAVALI
AGE: 48-YEARS
OCC: HOUSEHOLD,
R/O KURABAR ONI, INDI
TQ. INDI, DIST. BIJAPUR
6. RASOOL PATEL S/O BANDAGI PATEL MASALI
AGE: 34-YEARS
OCC: AGRICULTURE,
R/O INGALAGI,
TQ. INDI, DIST. BIJAPUR
...RESPONDENTS
(BY SRI SANJEEVKUMAR C. PATIL, ADVOCATE FOR R2 TO R6;
-3-
NC: 2024:KHC-K:3702
RSA No. 7181 of 2013
R1 DEAD APPELLANTS ARE TREATED AS LR'S OF
DECEASEED R1)
THIS RSA IS FILED U/S. 100 OF CPC, AGAINST THE
JUDGEMENT AND DECREE DATED 26.02.2013 PASSED IN R.A.
NO. 112/2011 ON THE FILE OF THE III ADDL. DIST. JUDGE AT
BIJAPUR. WHEREIN, THE APPEAL WAS DISMISSED AND THE
JUDGEMENT AND DECREE DATED 30.06.2011 PASSED IN O.S.
NO. 272/2007 ON THE FILE OF THE SENIOR CIVIL JUDGE AT
INDI WAS CONFIRMED.
THIS APPEAL, COMING ON FOR FINAL HEARING, THIS
DAY, THE COURT DELIVERED THE FOLLOWING:
JUDGMENT
This regular second appeal is filed under Section 100
of C.P.C, by the plaintiffs with a prayer to set-aside the
judgment and decree dated 30.06.2011 passed by the
Court of Senor Civil Judge, Indi in O.S.No.272/2007 and
the judgment and decree dated 26.02.2013 passed in
R.A.No.112/2011 passed by the Court of III Addl. District
& Sessions Judge, Bijapur.
2. The plaintiffs are the wife and children of
defendant No.1 Bhimappa S/o Chandram Pujari.
Defendant Nos.2 to 6 are not related to the family of the
plaintiffs. The father of defendant No.1 had considerable
immovable properties in Ingalagi village and in a family
NC: 2024:KHC-K:3702
partition that was affected in the year 1993, the land
bearing R.S.No.129/3 measuring 10 acres situated in
Ingalgi village was allotted to the share of defendant No.1.
Defendant No.1 on 09.02.1996 had sold 5 acres of land in
R.S.No.129/3 in favour of defendant No.5 and her
husband Parasappa. Defendant Nos.2 to 4 are the children
of defendant No.5. Parasappa died in the year 1997. Again
in the year 2002, defendant No.1 had sold remaining 5
acres of land in R.S.No.129/3 under two different sale
deeds dated 09.04.2002 and 28.06.2002 in favour of
defendant No.6. According to the plaintiffs the aforesaid
three sale deeds were executed by defendant No.1 not for
legal necessity of family but to meet expenses of his vices
and bad habits, he had sold the property which are joint
family property. The plaintiffs had approached the Trial
Court in O.S.No.272/2007 seeking partition and separate
possession of the land bearing R.S.No.129/3 measuring 10
acres situated at Ingalagi village, Indi Taluk.
NC: 2024:KHC-K:3702
3. Defendant No.1 remained absent before the
Trial Court in the said proceedings. Defendant Nos.2 to 6
who had entered appearance before the Trial Court had
filed their written statement denying the plaint averments.
It was contended in the written statement that the
plaintiffs in collusion with defendant No.1 had filed suit
seeking the relief of partition and separate possession.
Defendant No.1 and the plaintiffs had incurred heavy loans
from the bank and for the legal necessity of family they
had sold the suit schedule property. Defendant Nos.2 to 6
had made vast improvement in the land purchased by
them for valid sale consideration and they are the bonafide
purchasers of the same. Defendant No.1 as a kartha of the
family for the legal necessity of the family members had
sold the suit schedule property. Defendant No.5 in her
written statement which was filed separately has stated
that her name and the name of her husband were entered
in the revenue records of the land in question ever since
the year 1996 itself. She has contended that her husband
was the direct brother of plaintiff No.1 and all along the
NC: 2024:KHC-K:3702
plaintiffs were aware of the sale deed executed in the year
1996 and the suit was filed only in the year 2007 for
extraneous reasons. She also has stated that plaintiff No.1
and defendant No.1 had incurred heavy bank loan and
only to repay the said loan, suit schedule property was
sold. Based on the rival pleading, the Trial Court had
framed the following issues:
"1. Whether the plaintiffs prove that the
defendant no.1 sold the suit properties to meet out
his bad habits.
2. Whether the plaintiffs prove that they are
having shares in the suit properties? If so to what
extend?
3. Whether defendant nos.2 to 5 and 6 are the
bonafide purchasers of the suit properties?
4. Whether the plaintiffs valued the suit schedule
property and court fee paid correct?
5. Whether the plaintiffs have cause of action to
file the suit?
6. What order or decree?"
4. The plaintiffs in order to prove their case had
examined four witnesses as PWs.1 to PW.5 before the Trial
Court and got marked ten documents as Ex.P1 to P10. On
NC: 2024:KHC-K:3702
behalf of defendants, seven witnesses were examined as
DW1 to DW7 and 83 documents were marked as ExD1 to
D83. The Trial Court after hearing the arguments
addressed on both sides by its judgment and decree dated
30.06.2011 had dismissed the suit in O.S.No.272/2007.
The said judgment and decree was confirmed by the Court
of III Addl. District & Sessions Judge, Bijapur in
R.A.No.112/2011 by judgment and decree dated
26.02.2013. Being aggrieved by the same, the plaintiffs
are before this Court.
5. The coordinate bench of this Court while
admitting the appeal has framed the following substantial
question of law for consideration in this appeal:
"Whether both the Courts have appreciated
the oral and documentary evidence in proper
perspective in respect of sale of properties by
defendant No.1 was for legal necessity in the
absence of proper issue regarding casting burden
on defendants and that has resulted in perversity
of the findings by the Court?"
NC: 2024:KHC-K:3702
6. The plaintiffs have pleaded in the plaint that
defendant No.1 was addicted to certain vices and therefore
in order to meet the expenses of his vices he had sold the
family property in favour of defendant Nos.5 and 6 who
have filed separate written statement denying the same
and on the other hand have contended that plaintiff No.1
and defendant No.1 had borrowed huge loans from bank
and in order to pay the antecedent debts, defendant No.1
had sold the suit schedule property under three separate
sale deeds vide ExP.8, P9 & P10 in favour of defendant
no.5 and her husband and also in favour of defendant no
6. Five acres of suit schedule property was sold in favour
of defendant No.5 and her husband under sale deed dated
09.02.1996 at ExP8 and remaining 5 acres of land was
sold by defendant no 1 in favour of defendant No.6 under
two separate sale deeds dated 09.04.2002 and
28.06.2002 vide Ex.P9 & P10.
7. A perusal of recitals made in the sale deeds
would go to show that in the aforesaid sale deeds it is
NC: 2024:KHC-K:3702
mentioned that defendant No.1 had sold the suit schedule
property which are the subject matter of the aforesaid sale
deeds for the legal necessity of the family.
8. It is trite that where the manager / kartha of a
joint family sells or mortgages joint family property, the
purchaser or mortgagee is bound to inquire into the
necessity for the sale or mortgage, and the burden lies on
the purchaser or mortgagee to prove either that there was
a legal necessity in fact, or that he had made proper and
bonafide enquiry as to the existence of such a legal
necessity.
9. In the case on hand the material on record
would go to show that defendant No.1 had borrowed huge
amount of loan from PLD bank. In the plaint itself it is
admitted that there was a loan of Rs.58,000/- from PLD
bank and PW.1 during the course of her cross-examination
has admitted that there was a drought in their village 15
to 20 years prior to she giving evidence and her husband
had availed bank loan and had not repaid the said loan
- 10 -
NC: 2024:KHC-K:3702
amount. Ex.D57 and D58 are PLD bank loan account
extracts which would go to show the existence of loan
borrowed by defendant No.1. The husband of defendant
No.5 who had purchased 5 acres of suit schedule property
from defendant No.1 along with defendant No.5 is none
other than the elder brother of plaintiff No.1 and therefore
in normal circumstances he would be very well aware of
the financial condition of the family of plaintiffs and
defendant No.1.
10. DW.2 has spoken about partition that had taken
place in the family of defendant No.1. He has also spoken
about the existence of debts and has stated that for
repayment of the same, defendant No.1 had sold the land.
This witness has stated that when sale deed at Ex.P8
dated 09.02.1996 was executed, plaintiff No.1 and her
husband, defendant No.1 both were present in the office
of sub registrar, Indi and in front of attesting witness and
elders of family they had received sale consideration from
defendant No.5 and her husband.
- 11 -
NC: 2024:KHC-K:3702
11. Defendant No.6 has examined himself as DW.3.
This witness has spoken about the bank due which was
not cleared by plaintiff No.1 and defendant No.1. This
witness has stated that after the bank had issued notice to
plaintiff No.1 and defendant No.1 they had approached
him with a proposal of sale of suit schedule property and
on enquiry he was informed that for clearing bank dues
borrowed for legal necessity of the family, they intended
to sell the suit schedule property. This witness has stated
that when he had approached the sub registrar, Indi for
registration of sale deed, in view of the endorsement
about bank dues in the revenue records of property, Sub
Registrar had refused to register the documents and
thereafter loan dues were cleared by him and sale deeds
were executed in his favour. He has also stated that
subsequently another person by name Mehboobsab Mulla
had objected for registration of sale deeds on the ground
that he had entered into an agreement with defendant
No.1 and plaintiff No.1 for purchase of suit schedule
property and he has stated that he had paid a sum of Rs.2
- 12 -
NC: 2024:KHC-K:3702
lakhs to aforesaid Mehboobsab Mulla to settle his claim
and plaintiff No.1 and defendant No.1 were witness to the
same. Therefore, it cannot be said that defendant No.5
and her husband and defendant No.6 had purchased the
suit schedule property without knowing or enquiring about
legal necessity for selling the joint family property.
12. "Antecedent debt" means in fact as well as in
time, that is to say, that the debt must be truly
independent of and not part of the transaction which is
questioned. A debt which exists as on the date of
transaction in question is considered as an antecedent
debts and any borrowing at the time of transaction in
question cannot be considered as an antecedent debt. In
the case on hand, defendant No.1 and plaintiff No.1 had
borrowed bank loan and as on the date of execution of
sale deeds as per Ex.P8, P9 and P10, the debts were over
due.
13. The material on record would go to show that
steps were taken by the bank for recovery of aforesaid
- 13 -
NC: 2024:KHC-K:3702
debts and plaintiff No.1 was all along present with
defendant No.1 while he executed the aforesaid three sale
deeds in favour of defendant No.5, her husband and
defendant No.6. Therefore, it cannot be said that the suit
schedule property was not sold by defendant no.1 for legal
necessity of his family. Though the trial court has caste
the burden on the plaintiffs to prove issue No.1, the
material on record would go to show that defendant Nos.2
to 6 have successfully discharged their burden in proving
that suit schedule properties were sold by defendant No.1
for legal necessity of his family members.
14. The Hon'ble Supreme Court in the case of
GANGAI VINAYAGAR TEMPLE & ANR V. MEENAKSHI
AMMAL & ORS. - AIRONLINE 2015 (3) SCC 624 has
observed that non framing of an issue is not of much
significance when the parties to the suit are aware of rival
case and based on the issue framed the parties have led
their evidence. In the present case though the trial court
has caste burden on the plaintiffs to prove issue No.1,
- 14 -
NC: 2024:KHC-K:3702
defendant Nos.2 to 6 by leading oral and documentary
evidence and also by producing necessary documentary
evidence have successfully proved that defendant No.1
had borrowed substantial amount of loan from various
banks for his family necessity and had sold the suit
schedule property under three registered sale deeds vide
ExP8, P9 and P10 only to repay loan dues borrowed by
him. It also has come on record that plaintiff No.1 was all
along aware of this aspect of the matter and she was all
along present with defendant No.1 while he executed the
aforesaid three sale deeds in favour of defendant No.5 and
her husband and defendant No.6. Therefore, I am of the
view that the Courts below have properly appreciated the
oral and documentary evidence in respect of sale of suit
schedule property by defendant No.1 and have arrived at
a right conclusion that sale deeds executed by defendant
No.1 vide ExP8, P9 and P10 in favour of defendant No.5,
her husband and defendant No.6 was for the legal
necessity of the family and non framing of issue casting
burden on the defendants has not resulted in arriving at
- 15 -
NC: 2024:KHC-K:3702
finding which is either illegal or perverse in nature and
therefore aforesaid substantial question of law framed by
this Court while admitting the appeal is answered
accordingly.
15. The material on record would go to show that in
addition to the suit schedule property, family of defendant
No.1 and plaintiffs also have 11 acres 8 guntas of
agricultural property in survey No.140/1 situated at Indi
village and in addition to aforesaid property the family also
owns 3 other houses in Ingalagi. PW1 during the course of
her deposition has admitted the aforesaid fact. The
plaintiffs have not included the aforesaid joint family
property in the present suit.
16. The coordinate bench of this Court in the case
of TUKARAM V. SAMBHAJI & ORS - ILR 1998 KAR
681 has held that suit filed for partition of alienated items
only, even though joint family owns number of other
property is not maintainable. Under the circumstances, I
do not find any illegality or perversity in the judgment and
- 16 -
NC: 2024:KHC-K:3702
decree passed by the trial Court confirmed by the first
appellate Court, which are challenged in this regular
second appeal.
17. The material on record would go to show that
the plaintiffs have not approached this Court with clean
hand and the suit filed by the plaintiffs is in collusion with
defendant No.1 who had executed the sale deeds in
question for valid sale consideration and the aforesaid sale
deeds were executed for discharging the debts borrowed
by him for legal necessity of his family.
18. Accordingly, the following :-
ORDER
Regular second appeal is dismissed.
Sd/-
JUDGE
NMS
